Obwoon Pius and 2 others vs Ojenaese John (Civil Appeal No. 4 of 2022) [2022] UGHC 89 (12 October 2022)

The Republic of Uganda

# In The High Court of Uganda Holden at Soroti

Civil Appeal No.004 of 2022

(Arising from Civil Suit No. 22 of 2014 Chief Magistrates Court of Katakwi at Katakwi)

$\mathsf{S}$

1. Obwoon Pius

2. Olinga $s/o$ Egwang

3. Oujor $s/o$ Oujor

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Versus

Ojenaese John Peter 15

Before: Hon Justice Dr Henry Peter Adonyo

#### **Judgement**

1. Background:

This appeal arises from the judgment and orders of the Chief Magistrates 20 Court of Katakwi at Katakwi delivered on the 22<sup>nd</sup> day of December 2021 by H/w Owino Paul Abdonson.

Ojenaese John Peter, (The respondent herein) did file Civil Suit No. 22 of 2014 against Obwoon Pius, Olinga s/o Egwang and Oujor s/o Oujor (the appellants herein) before the Chief Magistrates Court of Katakwi seeking 25 for the recovery of 52 acres of land located at Aledei village, Ongatunyo Parish, Ongongoja Sub County, a permanent injunction and costs of the suit.

The claim of the respondent before the lower court was that at all material $\mathsf{S}$ times the suit land of 52 acres of land located at Aledei village, Ongatunyo Parish, Ongongoja Sub County belonged to his late father called Etukoit Faustino and that upon his death in 1998, the respondent inherited the same and lived on it peacefully till 2013 when the appellants fraudulently began claiming it as their own and even constructed grass thatched houses 10

on it and cultivated it.

In their joint written statement of defence, the appellants denied the respondents claim as regard the 52 acres of land and contended that the land in dispute between the parties had been 8 gardens which were given back to the respondent after he won an appeal in Soroti Court.

The further respondents contended that the suit land of 52 acres of land located at Aledei village, Ongatunyo Parish, Ongongoja Sub County belongs to the father of the $1^{st}$ appellant with the $2^{nd}$ and $3^{rd}$ appellants having no interest at all in the suit land as they are just step brothers to the $1^{st}$ defendant.

The appellants further informed court that at the respondent's father had during the Karamojong cattle raids in 1968 approached the 1st appellant's father for a piece of land to temporarily settle on with a promise to return the same to its original land when peace prevails but was now claiming what never belonged to them in the first place.

During the trial in the lower court, the issues which the trial court had to consider and which it eventually made decision on were;

- Who owns the suit land? $i.$ - Whether the defendants have trespassed on the suit land? ii. - What remedies are available to the parties? iii.

- From the records of the lower trial court, the lower trial court, after 5 carefully hearing the evidence from both parties, proceeded to enter judgment in the favour of the respondent/plaintiff who it subsequently declared the owner of the suit land of 52 acres of land located at Aledei village, Ongatunyo Parish, Ongongoja Sub County. - The said court then proceeded to issue to the respondent a permanent 10 injunction against the appellants. It also granted the appellant general damages and costs of the suit.

The appellants/ defendants were not satisfied with the judgment of the lower court and so they appealed to this Honourable Court citing nine (9) grounds of appeal.

2. <u>Grounds of Appeal:</u>

- The learned trial Magistrate erred in law and fact when he failed i. to frame an issue on the size and boundaries of the suit land thereby occasioning a miscarriage of justice. - The learned trial Magistrate erred in law and fact when he ii. decreed the respondent as the owner of unascertained suit land thereby occasioning a miscarriage of justice.

The learned trial Magistrate erred in law when he failed to put iii. into consideration the evidence and observation of the court at the locus in quo thereby occasioning a miscarriage of justice.

The learned trial Magistrate erred in law and fact when he failed iv. to properly evaluate the evidence as a whole on record with respect to the size and boundaries of the suit land thereby arriving at a wrong conclusion.

$25$

- The learned trial Magistrate erred in law and fact when he misapplied the law on limitation on the appellants thereby causing a miscarriage of justice. - The learned trial Magistrate erred in law and fact when he failed vi. to find that the respondent's claim against the appellants was barred by the law of limitation. - The learned trial Magistrate erred in law and fact when he based vii. his judgment on inconsistent and contradicting testimonies of the respondent and his witnesses thereby occasioning a miscarriage of justice.

The learned trial Magistrate erred in law and fact when he viii. allowed the respondent to depart from his own pleadings thereby occasioning a miscarriage of justice.

The learned trial Magistrate erred in law and fact when he ix. awarded excessive general damages against the appellants without a basis thereby occasioning a miscarriage of justice.

## 3. <u>Representation:</u>

V.

$\mathsf{S}$

M/s Baobab Advocates of Kampala represented the Appellants while M/s Omongole & Co Advocates of Kampala represented the respondent. Both 25 counsels presented written submissions in prosecuting this appeal. The submissions together with the pleadings, proceedings and judgment and orders of the lower court, which are on record, have been considered in determining this appeal.

# 4. Duty and Powers of first appellate court:

The Constitution of Uganda establishes the Courts of Judicature under as the Supreme Court, Court of Appeal and the High Court with their appellate jurisdictions to hear appeals from courts below them. There are three avenues provided for litigants for appeal in this jurisdiction but the ground upon which appeal are allowed at each avenue differ. These avenues are categorized as the first appeal, second appeal and third appeal. Each appellate court has a duty distinct from another.

For the High Court, which this Honourable Court is, Article 139 (2) of the Constitution of Uganda 1995 As Amended enjoin the High 15 Court with the duty to hear and disposes of appeal from the lower court subject to the provisions of the Constitution and other laws of Uganda.

S. 14 of the Judicature Act clothed the High Court with unlimited original jurisdiction in all matters and such appellate jurisdiction.

The High Court therefore has powers to determine appeal from chief 20 magistrates' court and other subordinate courts as in exercise of their original jurisdiction. This means that where a person is dissatisfied with the decision of the lower court he or she may appeal to the High Court on the ground that the said lower court had failed to evaluate the evidence and the law thereby reaching a wrong conclusion which occasioned a 25 miscarriage of justice.

An appellate court exists primarily to review and correct errors made in the primary or trial courts. While specific procedures might vary among the appellate court systems in the United States, these courts all perform that primary function. In addition, appellate courts deal with the development and application of law. This duty was well pronounced by

$\mathsf{S}$

the Court of Appeal of Uganda in Byamukama v Uganda (2) $\mathsf{S}$ (Criminal Appeal 194 of 2013) [2016] UGCA 67 (07 December 2016) cited as [2016] UGCA 67.

A number of cases have restated this duty. In *Kifamunte vs Uganda* -S. C. Crim. Appeal No. 10 of 1997, the Supreme Court reaffirmed this duty of the first appellate Court as follows: -

"We agree that on first appeal from a conviction by a judge, the appellant is entitled to have the appellate Court's own consideration and views of the evidence as a whole, and its own decision thereon. The first appellate Court has a duty to review the evidence of the case and to reconsider the materials before the trial judge. The appellate Court must then make up its own mind, not disregarding the judgment appealed from, but carefully weighing and considering it."

Other authorities on this, includes *Pandya vs R. [1957] E. A. 336*, and 20 Bogere Moses vs Uganda - S. C. Crim. Appeal No. 1 of 1997. These cases also point out that in exercising the duty, a first appellate court, is enjoined to appraise the evidence afresh, must always remind itself that it never had the benefit of observing the witnesses testify in court at the trial; hence, it lack the competence to judge witnesses' demeanour. 25

### 5. Summary of evidence:

In the instant case before me, the evidence adduced by the respondent/plaintiff in the lower trial court in proof of his case are 30 summarised as follows;

PW1, Ojenaese John Peter, testified that the appellants are related to $\mathsf{S}$ one another and are his neighbours. That he is not related to the appellants. He stated that he inherited the land from his father Etukoit Faustino who also inherited it from his father Oburatum. That the suit land was 60 acres and that the appellants were claiming a whole 52 acres while the 8 acres which was litigated upon by his father and the 1st appellant is not disputed. That the appellants are using the 52 acres for 10 cultivation and settlement.

PW1 further stated that the $2^{\rm nd}$ and $3^{\rm rd}$ appellants had built homes thereon but the $1<sup>st</sup>$ appellant's home was outside the suit land. That the appellants entered the land in 2001 but prior to their entry he had been using the land from when he was born.

That the appellants destroyed his home and property that were on the suit land and as a result he took refuge outside the suit land. That his father, grandfather and paternal uncles were buried on the suit land.

During cross-examination by the $1^{\ensuremath{\text{st}}}$ appellant, PW1 stated that the $1^{\ensuremath{\text{st}}}$ 20 appellant lost the case against his father in 1994 but the 1<sup>st</sup> appellant's father did not give his father the land. He stated that he is not on the suit land because the $1^{st}$ appellant destroyed his home and in 2014 the $1^{st}$ appellant was convicted and sentenced to one-month imprisonment for malicious damage to property and criminal trespass. 25

PW2, Oburatum Faustino, biological brother to the respondent largely corroborated and reiterated what PW1 stated. He however insisted that the appellants were using all the 60 acres of land. He did not recall when the appellants entered the land but told court that the $2^{\rm nd}$ and $3^{\rm rd}$ appellants built their houses approximately 2 years ago from 2018. He 30 added that there were 9 graves on the suit land, some visible and others not because of continuous cultivation.

During cross examination he stated that his grandfather had many wives 5 and so some of his uncles were taken to Acowa. That the suit land was given to Etukoit their father and the land in Acowa was given to Adungo.

PW3, Ilatum Pampas testified that the suit land belonged to the respondent and there was a boundary separating the respondent's and from the appellant's land.

That the plaintiff was born on the suit land and inherited it from his father. He stated the appellants destroyed the home and properties of the respondent in 2001 and constructed their homes in 2013. That when the appellants destroyed the respondents home and property he reported them to the police and after that there was some insecurity in the area and

people fled in different directions.

That when the appellants encroached on the land in 2013 the respondent filed a suit against them.

During cross-examination by the 1<sup>st</sup> appellant he stated that the respondent and his siblings left the suit land because the 1<sup>st</sup> appellant 20 destroyed their houses.

PW4, Opio Silver corroborated the origins of suit land as testified by PW1, 2 and 3. He told court that the respondent had been on the suit land for several years. That the respondent's father was buried on the suit land. That the appellants chased away the respondent from the suit land and destroyed all his properties in 2001.

That the respondent reported to the relevant authorities but he does not know how the case ended.

That the appellants constructed houses on the land in 2002 but they were reported to the LC 1, LC III and then court. 30

$[8]$

During cross-examination he stated that before 2002 the 1st appellant was $\mathsf{S}$ in his own land and not the suit land.

**DW1 Obwoon Pius** testified that the $2^{nd}$ and $3^{rd}$ appellants were his nephews and the respondent is his in-law. That the suit land belongs to his father Ecuman Augustino who died in 1977 and he then inherited the suit land.

That his father gave the respondent's father 4 acres in 1968 after he was displaced from their land in Obwobwo, Ongongoja and after the death of his father, Etukoit trespassed on 8 gardens of his land. He continued to state that the respondent started trespassing on the suit land before his

- father's death and his father reported the case to the parish chief and a 15 sisal boundary was planted, however, the respondent uprooted the sisal. That his father continued defending the land till he died and he came in and later sued the respondent's father in Katakwi Grade II Court in 1994 and he won but the Etukoit appealed to the Chief Magistrate Soroti and won, that Obwoon appealed to the High Court and lost again. - That Faustino left the land in 1994 and went to stay with his brothers in Acowa. That these suits were in respect of 8 gardens which he lost and now the respondent sued him for 52 acres yet he only knew of 8 acres. That apart from the 8 acres the rest of the land was his. - That in 2013 he was arrested together with his three brothers and nephew $25$ for trespass over 52 acres of land and they were remanded for a month and were set free, court found that they did not trespass and also told them to go back and surrender to the respondent and they went and gave respondent 8 gardens with the help of the LC1. - That the respondent refused to the LC1 resolution and he ran to court and 30 the court wrote a letter to O/C Police I/C Lands that the very 8 gardens be given to the respondent but he refused to take them and is now claiming $5$ 52 gardens he does not own.

That he does not know why the 2<sup>nd</sup> and 3<sup>rd</sup> defendants are being sued because they are not even within the suit land.

During cross-examination he stated that he was the first to raise the issue of 8 gardens and it was five years after 1968. That the plaintiff had nothing 10 on the suit land and when they lost the case in 1994 they left the suit land and it was till 2013 when he came to lay claims.

He insisted that he won he case before the Magistrate and that information was extracted for him. In 1968 he was 10 years old, he sued the plaintiff when he was 36 years old. That he does not have any written document between Faustino Etukoit and his late father from 1968.

That he does not have a copy of the Grade II Court judgment because the father of the respondent immediately appealed. That his father took the matter only to the parish chief but he does not have a copy of the report or minutes of the meeting convened by the parish chief.

DW2, Olinga Julius testified that DW1 is his paternal uncle and DW3 his cousin but he does not know the respondent. That the land where he has constructed was given to him by his father Egwang. He goes on to add that he had built a house and kitchen on the suit land and the land initially belonged to Ecodu who was buried on the suit land.

That the 1<sup>st</sup> and 3<sup>rd</sup> appellants were given land by Ecodu. That the police came to give the respondent 8 gardens but he refused. He further stated that they have 62 gardens which belonged to their grandfather Ecodu and the 8 were curved therefrom.

During cross-examination he stated that paragraph 4 of the WSD is wrong 30 and he has interest in the suit land with his orange trees, mvule trees,

cassava and his home. That it is his father who knows much about the suit $\mathsf{S}$ land.

DW3, Oujor James testified that the land he is staying on belongs to his father but his father stays on a different piece of land though he has a house on the suit land.

During cross-examination he stated that he did not know whether the 10 respondent has an interest in his 2 gardens.

DW4, Igela Karoli corroborated the evidence of DW1 with regard to its origins and how the respondent's father came to the suit land.

He also added that the suit land which is almost half the village belonged to Ecuman Gosta and his sons are all still on the suit land.

He further stated that the respondent's father and mother were buried on the suit land because they were in-laws to the 1<sup>st</sup> appellant and they had nowhere else to be buried.

That they came from Obwobwo after being displaced in 1968 during the insurgency and they stayed on the suit land for 2 years before they died. 20 During cross-examination he stated that he was sure the respondent's father lost the case against the 1<sup>st</sup> appellant. That he is not sure about the size of the suit land.

DW5, Obwale Eugenio testified that the suit land is around 8 gardens and it belonged to Ecuman Augustine. That the Lemukol requested for 25 land from Ecuman to settle on and he married Imodingot an aunt to the 1<sup>st</sup> appellant. That they lived on the land from 1968 to 1994 He continued to state that it is the grandfather of the respondent Oburatum that married Imodingot.

$[11]$

Counsel for the appellant abandoned the 9<sup>th</sup> ground of appeal and $\mathsf{S}$ proceeded to argue the grounds 1 and 2, 3 and 4, 5 and 6 and finally 7 and 8 together.

#### 6. Submissions and Resolution:

a. Grounds 1 and 2:

- Ground One: The learned trial Magistrate erred in law and fact when he failed to frame an issue on the size and boundaries of the *suit land thereby occasioning a miscarriage of justice.* - *Ground Two*: The learned trial Magistrate erred in law and fact when he decreed the respondent as the owner of unascertained suit *land thereby occasioning a miscarriage of justice.* - The essence of the appellant's arguments is that there was disagreement 20 between the appellants and the respondent on size and boundary of the land as noted in their pleadings and evidence and the court had a duty under Order 15 rule 3 (a)-(c) Civil Procedure Rules to frame issues for purposes of arriving at the right decision and pin-point the real and substantial points of difference between the litigating parties. That the 25 court ought not to have decreed 52 acres to the respondent without first ascertaining its size.

It is clear from the evidence of the respondent that the 8 acres litigated over by his father were not in dispute. Testifying as PW1 he stated that the land was originally 60 acres and after the suit in 1994, they stopped 30 encroaching on the 8 acres and he was suing for 52 acres.


The appellants on the other hand accepted that the 52 acres existed but $\mathsf{S}$ did not belong to the respondent and were insisting that the only land he was entitled to were the 8 acres. I therefore do not see how the trial Magistrate erred in law and fact when he failed to frame an issue on size and boundaries of the suit land. Grounds 1 and 2 fails.

## b. Grounds 3 and 4:

- Ground Three: That the learned trial Magistrate erred in law when he failed to put into consideration the evidence and observation of the court at the locus in quo thereby occasioning a miscarriage of justice. - Ground Four: The learned trial Magistrate erred in law and fact when he failed to properly evaluate the evidence as a whole on record with respect to the size and boundaries of the suit land *thereby arriving at a wrong conclusion.*

Counsel submitted on the importance of locus using various case law. Counsel rightfully noted that there is no record of locus proceedings on the file.

Counsel further submitted that what ought to have been done at locus in $25$ quo was not done and the judgment is bare as it lacks the courts observation at locus vis-à-vis the what the witnesses told court.

In Bale and 2 ors versus Okumu, Civil Appeal No. 21 of 2005, page 4 Justice Bashaija K. Andrew stated that;

"It is clear that the view of a locus in - quo is in addition to; 30 and cannot be a substitute for evidence already given in

# court. It would follow that visiting locus in-quo by court is not mandatory and court reserves the right to visit locus inquo in deserving cases - which is its discretion to exercise".

The court has discretion to visit locus and whatever evidence it collects is in addition to the evidence given in court. The trial Magistrate evidently visited locus however he did not prepare locus proceedings and this 10 hampers any observations this court can make relying on the same. Whether or not the trial magistrate failed to put his observations at locus in consideration in his judgment occasioned a miscarriage of justice can only be ascertained if this court had access to the proceedings.

With the regard to the size and boundary of the suit land, the respondents 15 claim was not based on size or boundaries and neither was that of the appellants.

As seen in the evidence above the point of disagreement was on the origin of the suit land with each party pointing to their parents as their point of inheritance. This issue was resolved and so the suit was resolved. Grounds $3$ and 4 fail.

#### c. Ground 5 and 6:

- *Ground Five: The learned trial Magistrate erred in law and fact* when he misapplied the law on limitation on the appellants thereby *causing a miscarriage of justice.* - Ground Six: The learned trial Magistrate erred in law and fact when he failed to find that the respondent's claim against the appellants was barred by the law of limitation.

$[14]$

$\mathsf{S}$

- $\mathsf{S}$ Counsel for the appellant submitted that the trail Magistrate misdirected himself when he used what appeared to be the weakness in the appellant's case to find for the plaintiff yet section 101 of the Evidence as correctly stated by the trial Magistrate provides that he who alleges must prove. That the trial magistrate misdirected himself to think that the appellants - were recovering land when he held that they sat on their rights as they had 10 never counterclaimed for recovery of land.

He further submitted that it's the respondent on the other hand who was barred by limitation as he filed his suit 13 years after the cause of action arose. That the cause of action took place in 2001 and the respondent filed

his suit in 2013. $15.$

#### **Section 5 of the Limitation Act** provides that;

No action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or her or, if it first accrued to some person through whom he or she claims, to that person.

The limitation period applies after expiry of 12 years. The respondent and all his witnesses stated that he was forced out of the land in 2001, however, no exact month or date was given. The suit was then filed in 2014 which is 13 years later, however, it should be noted that before he filed the suit, he 25 first filed a complaint with police and other local authorities as testified by his witnesses and I find that he had already started the process of trying to resolve the issue without going to court and when that failed he filed his suit. Ground 5 and 6 equally fail.

### d. Grounds 7 and 8:

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- *<u>Ground Seven</u>*: *The learned trial Magistrate erred in law and fact* when he based his judgment on inconsistent and contradicting *testimonies of the respondent and his witnesses thereby* occasioning a miscarriage of justice. - *Ground Eight*: The learned trial Magistrate erred in law and fact *when he allowed the respondent to depart from his own pleadings thereby occasioning a miscarriage of justice.* - Having considered the earlier grounds and resolved them in the negative, 15 I find it not useful any longer to delve into these two grounds exhaustively as I do not find from the record of the lower trial court any major inconsistencies in the respondent's evidence that could have changed the outcome of the judgment of the lower trial court. - This is because civil suits are won on a balance of probabilities and not on 20 findings beyond reasonable doubt as in criminal matters. From my assessment and summation of the records of the lower trial court, I find that the trial Magistrate from his decision clearly weighed the evidence given by both sides before him and found that the plaintiff / respondent had proved his case on a balance of probabilities. The judgment and 25 - orders of the trial court were thus correctly made after proper assessment of evidence before the said court. I find no fault in regard to the trial court's final findings as it was based on facts and evidence before it.

Accordingly Ground 7 and 8 equally fail.

## 7. Conclusion:

From my assessment of the lower court record and its decision, all the grounds of appeal do fail as they are all answered in the negative, accordingly this appeal is found to have no merit. It is thus dismissed.

$20$

$\mathsf{S}$

8. Orders:

- This appeal lacks merit and is thus dismissed. $\overline{\phantom{a}}$ - The judgment and orders of the lower court is hereby confirmed.

The costs in this appellate court and in the lower court is to awarded $\overline{\phantom{a}}$ to the respondent and are to be borne by the appellants.

I so order.

Hon. Justice Dr Henry Peter Adonyo

Judge

12<sup>th</sup> October, 2022

$[17]$