Obete & 2 Others v Olwo (Civil Appeal 29 of 2016) [2023] UGHC 351 (21 February 2023)

Full Case Text

#### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA HOLDEN AT LIRA

### LAND APPEAL NO.029 OF 2016

(Arising from the Land Claim NO. 018 of 2013 held at Apac Magistrate Court)

- 1. OBETE EDWARD - 2. OULA GEORGE - 3. ATAR SEVENTH- DAY ADVENTIST CHURCH::::::::::::::::::::::::::::::::::

#### **VERSUS**

#### OLWO GODFREY::::::::::::::::::::::::::::::::::::

**CIVIL PROCEDURE:** Appeal against the decision of trial Magistrate in Apac Magistrate Court that found the respondent the lawful owner of the disputed land.

**HELD:** The appeal is dismissed

# **BEFORE: HON. MR. JUSTICE ALEX MARCAY AJIJI JUDGMENT**

- 1. The plaintiff herein referred to as the respondent jointly and severally sued the appellants in Land Claim No. 018 of 2013 for general damages for trespass, eviction orders, recovery of possession of land and a permanent injunction restraining the defendants/ appellants from further trespass on the Plaintiff's/ respondent's land located at Centre Cell, Abedi Parish, Apac Sub County in Apac District. - 2. The respondent called 4 witnesses in court and 4 witnesses at Locus. The appellants also called 4 witnesses in court and 4 at locus. - 3. The trial magistrate found that the land belongs to the respondent and ordered as follows; - The $1^{st}$ and $2^{nd}$ defendants with structures on the land to negotiate with the i. plaintiff/respondent, value the land and pay the respondent the current value of the land, - That if the $1^{st}$ and $3^{rd}$ defendant failed to negotiate they are given 6 months to remove $\ddot{1}$ . their illegal structure on the suit land and vacate or the same be demolished therefrom - iii. That general damages in the amount of shs. $3,000,000/$ = against each defendant for trespass to the plaintiff's land.

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iv. That the plaintiff is awarded the costs of the suit.

- 4. The appellants were dissatisfied with the above decision of the trial magistrate hence this appeal. - 5. The appeal is based on two grounds and they are as below; - The learned trial magistrate erred in law and facts when he failed to evaluate evidence advanced by the appellants/defendants on court record thereby arriving at a wrong decision which occasioned a miscarriage of justice in the circumstances. - The learned trial magistrate erred in law and facts when he passed judgment against ii. a wrong party thereby causing a miscarriage of justice in the circumstances - 6. They prayed that the appeal be allowed, set aside and quash the judgment and orders of the lower court and award any other remedy and or relief. - 7. It is however noted that in the appellants' submissions, the second ground of appeal was changed to read " That the learned trial magistrate erred in law and fact when he misdirected himself on the law of trespass hence arriving at erroneous decision" - 8. The appellants were represented by Banenya, Mugalu and Kakona Advocates and the respondent was represented by Justice Centre's Uganda. - 9. This being a first appeal, this court is under an obligation to re-hear the case by subjecting the evidence presented to the trial court to a fresh and exhaustive scrutiny and re-appraisal before coming to its own conclusion. This duty is well explained in Father Nanensio Begumisa and three Others v. Eric Tiberaga SCCA 17of 2000; [2004] KALR 236 thus; It is a well-settled principle that on a first appeal, the parties are entitled to obtain from the appeal court its own decision on issues of fact as well as of law. Although in a case of conflicting evidence the appeal court has to make due allowance for the fact that it has neither seen nor heard the witnesses, it must weigh the conflicting evidence and draw its own inference and conclusions.

## **10. RESPONDENT'S CASE**

$i.$

11. PW1 OLWO GEOFREY aged 68 years told court that he knew the 2nd defendant as a son of his clan brother. The suit land measures 7 aces located at Lango Centre Cell, Abedi Parish, Apac Sub-County. It has four Mango tress, Palm trees, 2 stems of Muvule trees and it neighbors Okino Renia on the west, Oula George in the North, Ekwang Merizade in the East and Ogwal Feskarse in the South.

- 12. He said the land belongs to him as he inherited it from his father called Ogwal Christopher in 1970. His father acquired the alleged suit through by clearing the bush in 1966. He said since 1970, he was cultivating cotton on the suit land, Simsim and maize but stopped using the suit land in 1985 and he left it to fallow. He said the 1st defendant encroached on his land and he reported him to the local leaders Manuba Kumi and they warned him but he did not leave the land. The 1st defendant's response was that he was to be on the suit land temporarily and he was going to migrate to Chegere where his neighbors were. He said the Government was then over taken and people were running. After, PW1 went and told the 1st defendant that if he was interested in his land, he should give him another land but the 1st defendant told him to wait for his son to come back from school. When his son came back, he did not give him the land as he had promised. PW1 then went to the 1st defendant and he told him that he had no land for him and that he just cleared the bush. PW1 then reported the 1st appellant to the clan chief in charge of land, he was summoned and he told the clan chief that it was not PW1's land and that to date the 1st appellant is still on his land. - 13. He said he sued the 2nd defendant/ appellant because he encroached on his land in 1985 and started cultivating on his land and gave part of his land to the seventh day Adventist in 1989. He then reported the matter to the clan and they found the can belonged to the respondent - 14. In cross-examination PW1 told court that his father migrated to Loro with another woman and left him on the suit land. - 15. PW2 OGWANG SARIBATORY aged 67 year. The 2nd defendant/appellant is his clan mate and the 3rd defendant/ appellant is his nephew. He said he came to know the land in dispute in 1966. It is 7 acres located in Lango Centre Cell, Abedi Parish, Apac Sub-County in Apac District. He said the land neighbors Okino in the West, the 2nd appellant in the North, Ogwal John in the South and a road to Apac to Aduku in the East. - 16. He said the plaintiff's father/respondent started settling on the suit land in 1966. The suit land belongs to the plaintiff as he inherited it from his father in 1968. He first settled on the suit land and in 1977 he shifted on the other side of the road to settle in his brother's house and took care of his mother. In 1988 the 1st appellant came by force and started constructing on the land. The plaintiff reported to Manuba Kumi authority and it was litigated but the judgment was not passed because the 1st appellant said he was temporarily

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there and that he was to proceed to Chegere. He said after, there was insurgency and after the overthrow of Amin's Government, the 1st defendant planted trees, cultivated the land and his son built on the land.

- 17. He said the 2nd defendant sold part of the plaintiff's land to the church. He came to know about the sale when the plaintiff went to cultivate on the land and the church arrested him claiming that they bought the land from the $2^{nd}$ appellant and yet the $2^{nd}$ appellant had no interest to sale to the church. He said the 2nd appellant only neighbors the suit land. The 1st appellant first settled in Atar and migrated to Atik Cell. He said the land of the father of the 1st appellant is different from the suit land. The 1st appellant's father died on his suit land which $1\frac{1}{2}$ miles away. - 18. In cross-examination, PW2 told court that he was a member of Munumba Kumi authority and that while in the meeting with the authority, the 1st appellant told them that he was on the land temporarily and that he was going to migrate to Chegere. - 19. PW3 EBONG MAXON aged 49 years told court he knows the land in dispute measuring 7 acres. The suit land is located at Lango Centre Cell, Abedi Parish, Apac Sub-County in Apac District. It neighbors Okino on the West, 2nd appellant in the North, Ogwal in the South and a road from Atar to Aduku in the East. He said he grew up in the area and that is how he came to know the land in dispute. He said the plaintiff/respondent is his maternal Uncle and he was staying on the suit land. - 20. He said the respondent is the customary owner of the suit land as he inherited it from his father Ogwal Christopher in 1970 but he did not know how Ogwal Christopher got the land because he found him there when he was born. He said Ogwal Christopher had two women and in 1966, he migrated with one woman to Loro and left the respondent with his mother on the suit land. Ogwal died from Loro and was buried in Loro. He said there is still one palm tree planted by Ogwal Christopher, 4 mango trees, Odutu trees and Abata tree on the boundary. When the respondent was left on the land, he grazed and cultivated it and constructed a house on it but he shifted on his brother's home because he was weak and lame and building was a problem to him. - 21. He said in 1985, the 1st appellant migrated from a place called Buri Akwani to the suit land and started constructing on it. The respondent asked him why he was constructing on the suit land and he requested the respondent to allow him to construct on the suit land

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temporarily as he was about to shift to Chegere to his in law. He said the respondent reported the 1st appellant to Munumba Kumi who warned him to leave but he refused to vacate claiming that he got the suit land vacant. The respondent then reported the 1st appellant to LADRA in 2010 who also passed a judgment in favor of the respondent but the 1st appellant refused to vacant and asked for compensation for the trees he had planted.

- 22. He said the 2nd appellant in 1989 gave part of the respondent's land to the Church and the church now constructed a permanent structure on the respondent's land. The respondent reported to the Local leaders who stopped the Church from using his land. - 23. In cross- examination PW3 told court that he was present when the appellants' were taken to LADRA and that he was a witness. He said he started studies in Atar P/S and at that time the respondent was settled in the area where the church is constructed but his brother shifted to another place with his family and the respondent shifted to his brother's house across the road. He said when the 2nd appellant gave the respondent's land to the church, the respondent warned him through the LC1 Ogwal Nelson. - 24. PW4 CHARLES AYO aged 75 years, a secretary of LADRA said he came to know about the respondent when he came to report in LADRA office in 2010. He told their office that the 1st appellant had resisted on his land. LADRA summoned the appellants for mediation on 7th/05/2010. The 1st appellant denied the allegations. He said then went to see the land in dispute in June. When they went there, they found the church being constructed and that there was a grass thatched church already on the land. There resolution was that the land belonged to the respondent and they wrote a letter to the LC1 to ensure that the respondent gets back his land. - 25. In cross- examination PW4 said that while in the meeting, they found that the land belonged to Ogwal Christopher the father of the respondent

#### 26. RESPONDENT'S EVIDENCE AT LOCUS

27. PW5 FENAKASI OGWAL aged 68 years old, a resident of Atar Cell, Abedi Parish, Apac Sub-County told court that he came to know the respondent when he came with his parents from Bunyoro and they settled on the suit land. They started on the upper side of Atar Aduku road. He said the 1st appellant was in a place called Apuri village and shifted to the suit land. He said the respondent was the first person to come on the suit land. He said he knew the suit land very well, the father of the respondent planted the Palm tree and his wife

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was there. They first settled down on the suit land and shifted. The respondent's father left the suit land and went to Loro with a woman. The home of the 1st appellant is on the land of the respondent. The home of Emuno the son of the 1st appellant is also on the respondent's land. The Church is also on the respondent's land and that it is the 2nd appellant who gave the respondent's land to church.

- 28. PW6 OTIM ALFRED aged 68 years a resident of Atar Cell, Abed Parish, Apac Sub-County in Apac District while at locus told court the respondent is his Uncle and the 1st appellant is his brother in law. He said he knows the dispute because he is neighbor to the suit land. He came to know about the dispute in 1996. He did not the owner of the suit because his Uncle never showed him the boundaries or the owner of the upper land. - 29. PW7 OMARA RAY aged 63 years a peasant, a resident of Atar Cell, Abedi Parish, Apac Sub-County in Apac District. He said the respondent is his brother in law. He said the 1st respondent built on the suit land in 1974. The land was vacant but he did not know who allowed him to build. He said when Ogwal Christopher shifted to Loro, the respondent was at his brother's place opposite. He said the 1st appellant told him that the respondent allowed him to settle on the suit land temporarily. The place where the 1st appellant built and his son is for the respondent as he inherited it from his father Ogwal Christopher. He said the 1st appellant has his home in Burakwana where he digs and where his father was buried. He further told court that where the 2nd appellant built and where the church is, is where the respondent's father had settled and had a home. - 30. He also said the respondent's father left the suit land in 1974 and told his son the respondent to come and settle in the place where he was. The respondent produced a daughter called Adoch from the disputed land. His house collapsed and shifted across to his brother's home where his mother was staying. He said when the respondent left, the land remained vacant and the 2nd appellant used to graze his goats from there but he did not know that he would claim the land. He said the church authority started constructing on the land but when the respondent reacted, they said it was the 2nd appellant who gave them the land. He said the land the 2nd appellant gave to the church did not belong to him. - 31. PW8 ADOKO CURANIMO aged 78 years a resident of Alogoro Cell, Abedi Parish, Apac Sub-County in Apac District. He is a brother to the father of the respondent and the 1st appellant is his brother in law. He said the 1st appellant settled on the suit land illegally.

$\mathbf{6}$ He came from Burakwana Cell and he has land there and that he was only using the suit land for cultivation. He said the suit land belongs to the respondent as he inherited from his father called Ogwal Christopher. He said the 2nd appellant's father was a clan brother to the respondent's father. He said the $2nd$ appellant gave part of the suit land to the church which land does not belong to him but to the respondent. He showed court the muvule tree near the house of the $2nd$ appellant's son is the boundary between the respondent and the $2nd$ appellant.

32. In cross-examination PW8 told court that the trees on the suit were not planted by the $2^{nd}$ appellant but by Engole like the boundary Muvule tree. He said the gardens belonged to Christopher Ogwal but not the 2nd appellant.

## 33. DEFENCE CASE.

- 34. DW1. OBETE EDWARD aged 72 years old, a peasant farmer, a residence of Atar Cell, Abedi Parish, Apac Sub-County in Apac District. He told court he know the suit land. It is measuring one acre located at Lango Centre Cell. It neighbors Okino on the West, Oula George in the North, Ogwal in the West and the respondent in the East. He said in 1974, he found the suit land vacant and he cleared the bush and started staying on it. He built his home on that land and started staying on it and to date he is on the suit land. He has used the suit land for 47 years. He said when he entered the suit land, the respondent was in Masindi and his father did not have any building on the suit land. DW1 further told court he was born in 1939 on the suit land. His father was called Samari Ekwaro died in 1980 and he was buried on the suit land. - 35. In cross-examination DW1 told court the suit land did not belong to his father but to God. It was firm land and people were cultivating it. He said he did not know the father of the respondent. - 36. DW2 OULA GEORGE aged 66 years, a peasant farmer, a resident of Lango Centre Cell, Abedi Parish, Apac Sub-County in Apac District told court that he came to know the respondent when he came back from Masindi. He said the land in which the respondent sued him is a half an acre. It neighbors Okino on the West, Abeto Edward on the South, Okello Luhino in the North and a road from Apac Aduku in the East. He said the land belongs to him as he acquired it in 1968 but the group members just called him to stay

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along the road side. He said he did not know the respondent's father and that he is just cultivating on the suit land. He said he gave the church land because it is his land.

- 37. DW3 ADOKO JUMMY aged 36 years, a peasant farmer, a resident of Acan Dyang "A" Cell, Abedi Parish, Apac Sub-County in Apac District told court that he is the representative of the church and that the church is constructed on the land belonging to the 2nd appellant. He said in 1989, the 2nd appellant found people digging some land in the forest to build a church and said the church is good and it brings development and that it should not be put in the forest. He then gave land along the road to build the church. They first constructed a temporary structure but nobody complained until 2010. He said before there was no agreement until 2003 when the agreement was signed between the church and the $2^{nd}$ appellant. - 38. DW4 EKWARO DENIS aged 50 years, a peasant farmer, a resident of Lango village, Abedi Parish, Apac Sub-County in Apac District told court that he knew the suit land measuring 5 acres and he came to the suit land in 1979 when his father the 1st appellant shifted them to that land. He said by that time the land was being used by Atar farmers group who left the land vacant and his father started staying there. He said by 1968, there was no body staying on the suit land and that by that time the respondent was in Masindi where his father died and was buried there. The respondent came back from Masindi in 1970 and when he came back, he did not settle on the suit land but just settled on the opposite side of the suit land. He said, they were surprised in 2010 when the respondent summoned them before his clan. - 39. He also said that the 2nd appellant came on the suit land in 1968 when the group farmers left and he has been on the land to date. The group farmers found the land vacant - 40. DW5 ALAMI AUGUSTINE aged 49 years, a pastor in the Seventh Day Adventist church and a resident of Lango Centre Cell, Abedi Parish, Apac Sub- County in Apac District told court that the land is 5 $\frac{1}{2}$ acres and that it belongs to the 1st appellant and the 2nd appellant. He said the 1st appellant shifted on the suit land in 1970's when it was vacant. He said the $2nd$ appellant gave the church land measuring 1 ½ acres. He said when he was born, he found the 2nd appellant on the land and that's why he confirmed that it is his land. - 41. DW6 OPIO ROBERT aged 64 years, a peasant, a resident of Acan dyang trading Centre Cell, Abedi Parish, Apac Sub- County in Apac District told court that he is a clan brother

to the 1st appellant and the 2nd appellant is his brother. He said he came to know the suit land when they gave it to Seventh day Adventist in 1985 measuring 4 acres. The 1st appellant started staying on the suit land in 1979 and he was settled on this land by the farming authority. The 2nd appellant settled on the suit land in 1968 to date. He said he did not know the father of the respondent.

- 42. DW7 OKELLO JULIUS aged 65 years, a peasant farmer, a resident of Acan dyan trading Centre cell, Abedi Parish, Apac sub-county in Apac District told court that the 1st and 2nd appellant are his neighbors. He came to know about the dispute in 1989 when the 2nd appellant gave land to the church but he did not know how the 2nd appellant got the land. The church started building but the respondent did not complain or say anything. He said he did not know the respondent's father. - 43. In cross- examination DW7 told court the respondent in 1997 cut down the trees planted by the church and he was arrested by Apac Sub County. He said the Parish Chief advised the church to continue using the land

## 44. DEFENCE EVIDENCE AT LOCUS

45. DW8 CHARLES ODUR aged 65 years, a peasant, a resident of Atar cell, Abedi Parish, Apac Sub- County in Apac District told court the 1st appellant was a neighbor to his father behind the swamp. He said he did not know the respondent's father and that the respondent had never stayed on the suit land.

## **46. RESOLUTION**

- 47. GROUND ONE: The learned trial magistrate erred in law and facts when he failed to evaluate evidence advanced by the appellants/defendants on court record thereby arriving at a wrong decision which occasioned a miscarriage of justice in the circumstances. - 48. As the law requires, I have evaluated the entire evidence on record and noted the following; - i. It is noted that all the plaintiff/respondent's witnesses told court that the land in dispute belongs to the respondent as he inherited it from his father Ogwal Christopher in 1970's. They said that the respondent's father acquired the land by clearing the bush in 1966 but he left the land and went away with another woman and left the respondent and his mother in the suit land. Since the respondent was lame and his brother who was leaving opposite had left his home, the respondent shifted to his brother's home but kept cultivating the suit

land until 1985 when he left it to fallow. The 1st appellant then encroached on the suit land. The respondent warned him to leave his land and also reported him to Munuba authorities. The $1^{st}$ respondent in response told them that he was temporarily on the suit land and that he was going to go to Chegere to his in laws. Later on, the 1st appellant started constructing on the respondent's land and he reported him to LADRA who also passed a judgment in favour of the respondent. The witnesses at locus who were senior citizens of this country and who had lived in the area for a long time, all told court that the suit land belonged to the respondent's father who acquired it by clearing the bush in 1966. The land measures 7 acres. It is still the evidence of the plaintiff witnesses that the $2nd$ appellant's land only neighbors the respondent's land but although he does not have a house on the suit land, he encroached on it by cultivating it and giving it out to the Adventist church yet it does not belong to him.

ii.

- The appellants on the other hand told court that they acquired the land by clearing the bush and that the respondent had never been on the suit land. The 1st appellant told court that he found the land vacant in 1974 and that he did not know the respondent's father. The 2nd appellant also told court that he came on the suit land in 1968 by clearing the bush and that he did not know the father of the respondent. DW4 the 1st appellant's son also told court that his father brought them on the suit land in 1979 after the Atar farmers group had left the land vacant. He said the respondent was with his father in Masindi then. - 49. I have noted contradictions from the evidence of PW5 and PW7. PW5 after him telling court that the land in dispute belongs to the respondent, he also said that the land where the church is and the palm tree is belongs to the $2nd$ appellant and that he is the one who gave it to the father of the respondent. PW7 also said that the boundary to the $2nd$ appellant's land is where his son had constructed a permanent house. He said that the land was given to them by PW7's father called Olya Mele in 1960's and he settled there. However, this did not go to the root of the case. - 50. Looking at the evidence on record it is strange that the $2nd$ appellant acquired the land in dispute in 1968 by clearing the bush but did not know the father of the respondent who came on the same land in 1966.

- 51. Although it is noted that the 1st respondent claimed that he had been on the disputed land for 47 years, the plaintiffs' evidence indicates that he was warned to leave the land the first time he stepped on it and was even reported to Kunumbi Kumi authrities but said he was temporarily there. Unfortunately, he later turned around and refused to leave claiming that he acquired the land by clearing the bush in 1974. Court did not believe him. - 52. This court believed the evidence of the plaintiff witnesses that the $2^{nd}$ appellant's land only neighbors the respondents land and that it was him who gave the church land which did not belong to him. - 53. It is however noted that the respondent claims that he inherited the land in dispute from his father who acquired it by clearing the bush in 1966. - 54. The black's Law Dictionary, 8th edition, 2004 defines taking by inheritance to mean; "to take as heir on death of ancestor; to take by descent from ancestor; to take or receive, as right or title, by law from ancestor at his demise. - 55. The common purpose of inheritance under both the customary and statutory legal regimes is that the property of the deceased intestate should be left to the use and benefit of his or her closest relatives or those who were dependent upon him or her during his or her lifetime. See a case of Magbwi Erikulano Vs. Mtn (U) Limited and Another - 56. The respondent in the instant case is a biological son of Ogwal Christopher meaning he was a close relative of the deceased. - 57. Customary law, under which the respondent brought his claim, concerns the laws, practices and customs of indigenous peoples and local communities. It is, by definition, intrinsic to the life and custom of indigenous peoples and local communities. What has the status of "custom" and what amounts to "customary law" as such will depend very much on how indigenous peoples and local communities themselves perceive these questions, and on how they function as indigenous peoples and local communities. - 58. In the instant case, it is notorious that the land in this area is owned customarily in clans. It is also an observed fact that most of the land in this area was acquired by the community by clearing the bush and that being the case, it is strange that the appellants who claim to have acquired the land almost during the same time with the father of the respondent did not know him.

- 59. Article 126 (2) (e) of the Constitution of the Republic of Uganda is to the effect that justice shall be administered without undue regard to technicalities - 60. In the view of the above, it is found that the trial magistrate properly evaluated the evidence on record. - 61. The appeal fails - 62. The trial court's findings are therefore upheld. - 63. This appeal is dismissed with costs to the respondent.

Given under my hand and seal of court this.................................... $\ldots.2023$

500 **ALEX MACKAY AJIJI**

**JUDGE**

soès absent me des absent me de derre $\overline{C}$