Ocaya v Abwol and Another (Civil Appeal No. 76 of 2020) [2023] UGHCCD 27 (9 February 2023)

## THE REPUBLIC OF UGANDA

#### IN THE HIGH COURT OF UGANDA HOLDEN AT GULU

## CIVIL APPEAL NO. 76 OF 2020

(ARISING FROM CIVIL SUIT NO. 002 OF 2016, CHIEF MAGISTRATES COURT OF KITGUM HOLDEN AT PADER)

15 OCAYA MICHAEL.......... **APPELLANT**

#### **VERSUS**

20 1. ABWOL REBECCA ATOO TEREZA................................... ............ RESPONDENTS

#### 25 BEFORE: HON. MR. JUSTICE GEORGE OKELLO

#### <table><tbody>JUDGMENT</tbody>

#### **Background facts**

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The Respondents sued the Appellant in the trial court seeking a declaration that the Respondents own surveyed customary 35 land of approximately 60 acres, situate at Telela Central village, Ogom Parish, Ogom Sub- County, Pader District. The Respondents claimed to have inherited the suit land from their late father in law, a one Erica Cwa. They contended that the late was given the land in 1952 by his father in law and upon his

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$\mathsf{S}$ death, passed the land to the Respondent's husbands, Odong Peter, and Ogwang Laban, respectively, who are now deceased. They averred that many years past, the Appellant's father, a one Anying Hannington (a clan brother to Erica) attempted to settle on the suit land but was chased by Erica. The Respondents contended that they have been in possession of the land even $10$ after the death of their respective husbands. They averred that, they were displaced by the Lord's Resistance Army (LRA) war in Northern Uganda and upon their return to the suit land from Internally Displaced Persons (IDPs) Camps, they found the Appellant in possession. They further contended that the 15 Appellant had been selling and renting out part of the suit land to third parties and denying the Respondents from using the same. They crowned their averments that on 9<sup>th</sup> February, 2016, the Appellant destroyed bricks of the 2<sup>nd</sup> Respondent, and a day later, threatened to kill the Respondents with spears. The $20$ Respondents prayed for general damages for trespass, eviction and demolition orders, a permanent injunction, an order for recovery of the land already sold, mesne profits, interests, and costs.

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In his brief written statement of defence, the Appellant denied $\mathsf{S}$ the allegations. He averred that he inherited the suit land from his late grandfather, Hannington Anying, *vide* a Will read in the year 2009. The Appellant sought to be declared a customary owner of the suit land. He also prayed for general damages, eviction order, a permanent injunction, and costs of the suit. $10$

After the trial by two Magistrates in succession, His Worship Akankwasa Edward Kaboyo, Magistrate Grade One visited the locus in quo. In his Judgment given on 6<sup>th</sup> October, 2020, the Learned Magistrate found for the Respondents, holding that they own the suit land. Court ordered for eviction of the Appellant, issued a permanent injunction, and awarded costs of the suit to the Respondents. Unhappy with the Judgment and orders, the Appellant lodged the instant Appeal.

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## **Grounds of Appeal**

There are three grounds of appeal, namely;

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- 1. Had the Learned trial Magistrate properly evaluated the $5$ evidence on record, he would have found that the suit was time barred. - 2. Had the Learned trial Magistrate properly evaluated the evidence on record, he would have not erred in law and fact when he declared Hannington to be a licensee on the suit land.

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3. The Learned trial Magistrate erred in law and fact when he failed to properly conduct the locus in quo thus occasioning a miscarriage of justice.

The Appellant prayed that the Appeal be allowed; the Judgment 15 and Orders of the Learned trial Magistrate be set aside; The Appellant be declared the lawful owner of the suit land; and costs of the appeal and costs in the trial court be awarded to the Appellant.

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#### $\mathsf{S}$ Representation

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During the hearing Learned Counsel Mr. Openy Samuel appeared for the Appellant, while Learned Counsel Mr. Simon Peter Ogenrwot represented the Respondent. Both counsel lodged written submissions which I have read and for which I am grateful.

# Resolution of the grounds of Appeal

As a first appellate court, the parties are entitled to obtain from this court, the court's own decision on issues of fact and issues of law. However, in case of conflicting evidence, I have to make 15 due allowance for the fact that I have neither seen nor heard the witnesses testify and make an allowance in that regard. I must however weigh conflicting evidence and draw my own inference and conclusions. See: Fr. Narensio Begumisa & 3 others Vs.

Eric Tibebaga, Civil Appeal No. 17 of 2002, (per Mulenga, JSC). 20 See also Coghlan Vs. Cumberland (1898)1 Ch. 704, wherein the Court of Appeal of England put the matter succinctly as follows;

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"Even where, as in this case, the appeal turns on a question of $\mathsf{S}$ fact, the court of appeal has to bear in mind that its duty is to rehear the case, and the court must reconsider the materials before the Judge with such other materials as it may have decided to admit. The Court must then make up its own mind, not disregarding the Judgment appealed from, but carefully $10$ weighing and considering it; and not shrinking from overruling it if on full consideration the court comes to the full conclusion that the Judgment is wrong...when the question arises which witness is to be believed rather than another and that question turns on the manner and demeanour, the court of appeal 15 always is, and must be, guided by the impression made on the Judge who saw the witnesses. But there may obviously be other circumstances, quite apart from the manner and demeanor, which may show whether a statement is credible or not; and these circumstances may warrant the court in differing from the 20 Judge, even on a question of fact turning on the credibility of witness whom the court has not seen." See: Pandya Vs. R [1957] EA 336. In Pandya, the above passage was cited with approval.

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Court held that the principles declared above are basic and $\mathsf{S}$ applicable to all first appeals.

In Kifamunte Henry Vs. Uganda, Criminal Appeal No. 10 of 1997, the Supreme Court held that it was the duty of the first appellate court to rehear the case on appeal, by reconsidering all the materials which were before the trial court, and make up its own mind. The Court held that failure by a first appellate court to evaluate the material as a whole constitutes an error of law.

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The first two grounds of appeal are badly drawn. They are argumentative. They therefore offend the provision of Order 43 rule 1 (2) of the CPR which requires, among others, that a ground of appeal should not be argumentative. Courts have struck out grounds which offend the rules of court. See: Alimarina Okot & 4 others Vs. Lamoo Hellen, Civil Appeal No. 26 of 2018 (Stephen Mubiru, J.), following binding decisions such as <u>Katumba Byaruhanga Vs. Edward Kyewalabye Musoke</u>,

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Court of Appeal Civil Appeal No. 2 of 1998; AG vs. Florence $\mathsf{S}$ Beliraine, Court of Appeal Civil Appeal No. 78 of 2003.

I accordingly strike out grounds 1 and 2 of the grounds of appeal for being argumentative.

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I will however adopt the approach this Court adopted in Alimarina Okot & 4 others Vs. Lamoo Hellen, Civil Appeal No. 26 of 2018 (Stephen Mubiru, J.,) where after striking out a ground of appeal, the court proceeded to consider the offending ground, I think for completeness, and just in case the court was wrong.

Because of the poor manner in which the first two grounds of appeal were drawn, I will not reproduce them but proceed to resolve each ground under broad heads, encapsulating the gist 20 of the complaints.

## Ground 1: time- bar of the suit

Learned Counsel for the Appellant submitted that the action being for recovery of land, was time barred under section 5 of 25

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$\mathsf{S}$ the Limitation Act. He argued that the suit ought to have been lodged by the Respondents within twelve years from the date their right of action accrued. Counsel contended that the date the suit should have been filed should have been that when the Appellant was alleged to have wrongly appropriated the suit land from the Respondents. Counsel cited section 11 of the $10$ Limitation Act in support of his arguments. He also contended that the exemption to the time bar, such as disability, ought to have been pleaded by the Respondents, if any, but none was pleaded and canvassed.

Referring to testimonies of various witnesses, Learned Counsel argued that the suit land was gifted to the Appellant's grandfather (Hannington) who occupied it from as far back as the year 1959, till his death in 2009. Learned Counsel reasoned that the suit having been (allegedly) filed fifty years later, it was time barred. Counsel asked court to allow this ground of appeal.

Responding to the submissions, Learned counsel for the Respondents argued that the evidence adduced before the trial court showed that the dispute started in 2007 when the

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Respondents returned from the IDP Camps. He argued that, $\mathsf{S}$ that is when the Appellant told the Respondents to leave the suit land, claiming the same does not belong to the Respondents. Counsel invited court to dismiss the ground of appeal, reasoning, the suit was not time barred.

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I have perused the record of the trial Court as well as the pleadings of the parties. To begin with, the Appellant did not raise the issue of limitation in his defense. By his default, the Appellant flouted the mandatory requirement of Order 6 rule 6 of the Civil Procedure Rules (CPR). He ought to have shown by his pleading that the suit was time barred. Having neglected, the Appellant cannot be allowed to take the Respondents by surprise, more so on appeal, by raising the issue of limitation.

The issue of limitation was not raised during the scheduling 20 conference in the trial court as none was conceivable, within the parties' pleadings. The trial court cannot therefore be criticized for not dealing with a point which was not in issue before it. In my view, the point was raised on appeal as an afterthought. In any case, paragraph 5 (e) of the Plaint clearly shows that the $25$

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$10$ Respondents' cause of action accrued when they returned from $\mathsf{S}$ the IDP Camp and that is when they found the Appellant in occupation of the suit land. Although the date of their return from the IDP Camp is not pleaded, the evidence on record especially that of Atto Tereza (PW1) was that the dispute arose in 2007 when the LRA war ended and displaced persons $10$ (including the Respondents) started returning home. Other witnesses, such as DW2 (Ojok Philips) put the year of the dispute in 2014, while Olum Joseph Abal (DW3 but in error indicated as DW2) said the dispute begun in 2006. Okeny Justine (DW4) put it in the year 2014. 15

Given the foregoing pieces of evidence, I find that even if limitation period had been in issue, The Appellant's arguments that the Respondents' cause of action must have accrued in 1959 would have been defeated by what his own witnesses stated on oath. In my Judgment, I find that the Respondents' plaint complied with the requirement of Order 7 rule 1 (e) of the CPR by averring the facts constituting their cause of action and when it arose. The omission to state the exact year when the

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Respondents returned from the IDP camp, on the facts, was not $\overline{5}$ fatal because evidence adduced show that the suit was filed within time. I therefore find that the argument that the suit was time barred is misplaced and reject it. Consequently, ground 1 lacks merit and I would dismiss it.

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Ground 2: The finding on the status of the Appellant's grandfather (Hannington Anying) as a licensee on the suit land.

Both learned counsel combined their arguments under this 15 ground with arguments suitable for ground one. I have decided to resolve this ground alone.

In his Judgment, the trial court held that, on the evidence adduced, the Appellant's grandfather was given permission to 20 cultivate and use the suit land temporarily. Court concluded that, that makes the Appellant's grandfather a licensee on the suit land. Accordingly, Court held that the Appellant's grandfather could not pass the proprietary interest in the suit land, as part of his estate to the appellant. Court reasoned that 25

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- the Appellant could not have therefore acquired better title than $\mathsf{S}$ his grandfather had. Court found for the Respondents, concluding that they could share in their late husband's estate, comprising of the suit land. - The record shows that the Respondents' husbands were sons to 10 the late Erica Cwa and had therefore inherited from their father. That meant, upon their deaths, their widows, being the Respondents, inherited the suit land. - I have considered the rival submissions of both parties on this 15 ground. I agree with the finding of the Learned trial Magistrate that the suit land belonged to Erica Cwa who passed it to his sons who were the husbands of the Respondents. My agreement with the trial court does not however stretch to the three gardens which Erica Cwa allowed Hannington Anying, the 20 Appellant's grandfather to occupy and use. I will elaborate more on this point later in this Judgment.

The evidence adduced by Atto Tereza (PW1) who at the time of testifying (09.03.2017) was 64 years, shows that she appeared 25

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to know the history of the suit land very well. She testified that $\mathsf{S}$ the suit land is approximately 66 acres and belonged to her father in law. She stated that the father in law inherited the same from Elisha Chwa (his own father) in 1952, and that she had been on the suit land since 1979. The evidence of PW1 was not controverted. PW1 disclosed that Erica Cwa (the father in $10$ law) allowed Hannington Anying (the Appellant's grandfather) to temporarily stay on the suit land. PW1 did not prove that Hannington Anying was chased from the suit land, although she had pleaded so. I therefore find that Hannington Anying 15 remained on the suit land until his death. It was conceded that Hannington was buried on the suit land. As I will discuss, this fact seems to me, to be inconsistent with the fact of a mere license, especially with regard to the three gardens which Hannington was allowed by the Respondents' father in law to settle on. 20

Similarly, Abwol Rebecca (PW2) who at the time of her testimony was 52 years (11. 04.2017) testified that she had been occupying the suit land since marriage in 1986. She stated that

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the land was approximately 60 acres. Indeed, the Respondents $\mathsf{S}$ pleaded sixty acres as being the subject matter of the dispute. I find the differences in the acreage of 66 stated by PW1, and 60 acres as stated by PW2, to be a minor contradiction. This could be explained by the fact that the land was unsurveyed as at the time these witnesses testified. In any case, the approximation $10$ by the two witnesses was close. I do not hold the contradictions against the Respondents.

The Respondents were corroborated by their witnesses. Ogenga Nicholas (PW3) a 72 year old, testified that he knows the suit 15 land well. He stated that the land belonged to Elisha (I think Elisha Cwa) and that Elisha had also been given the same land by a father in law in about the pre-independence period (1962). I note that although this piece of evidence in a way varied from the Respondents' averment that their father in law (Erica Cwa) 20 had been given the land in 1952, it seems PW3 was testifying on the first land acquisition by Elisha Cwa, not Erica Cwa, hence the differences in the timing. Nonetheless, all the witnesses for the Respondents were consistent on the important

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- fact that the land belonged to Erica Cwa through whom the $\mathsf{S}$ Respondents, as daughters in law, claim. They were also consistent that the land was acquired way back before Uganda attained independence in 1962. - I note that PW3 was not challenged on his evidence. PW3 was $10$ married to the Appellant's Aunt (in error captured as married to plaintiff's aunt. However, when read in context, PW3 was referring to the Appellant.) PW3 therefore was an uncle to the Appellant. He was in my view, a neutral witness, although called 15 by the Respondents. He was in away related to both parties to the litigation. It was not shown that PW3 lied or had reason to lie against his wife's Nephew (the Appellant). No evidence of a grudge or otherwise, was adduced or canvassed to discredit PW3. This witness also confirmed that, Acholi custom allow wives to inherit property of their deceased husbands. In my $20$ view, this custom is in line with article 21 of the Constitution of Uganda which prohibits discrimination on the basis of sex. The particular custom of the Acholi is therefore not repugnant to any law of the land and not repugnant to natural justice, equity

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and good conscience. I would therefore wholly uphold the $\mathsf{S}$ custom within the province of section 15 of the Judicature Act Cap.13.

Olal Jackson Lee (PW4) confirmed on oath that the land was given to Erica Cwa by the father of PW4 (Olum Adimiriki.) That $10$ means Erica Cwa was a son in law to Olum. PW4 categorically denied that the suit land was given to the Appellant's father (he meant grandfather Hannington). PW4 testified that he (and his family) had no problem with the Respondents' use of the suit land. Both PW3 and PW4 stated that Erica Cwa planted mango $15$ trees on the suit land. PW4 added that Erica had also planted tamarind trees. PW5 (Chwa Marcelino), an 80 year old, corroborated the testimonies of the other witnesses of the Respondents, especially about Erica Cwa's ownership of the suit land. He stated that Cwa was given the land in 1952 by his 20 father in law.

The Appellant (DW1) testified in his defense and also called witnesses. At the time of his testimony on 26. 06. 2018, DW1 was 36 years old, meaning he was born in 1982. He described

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the Respondents as his clan mothers. He stated that the land $\mathsf{S}$ in dispute belonged to Anying Hannington. He said Anying got the land in 1959. DW1 however did not name the person from whom Anying Hannington got/ inherited the suit land. He however stated that his own father, Odong was born on the suit land, but died in 1982 and was buried there. $10$

The Appellant sought to introduce in evidence, a questioned Will of his late grandfather. The attempt was rejected, and rightly so, because there was no attesting witness or heir, to prove the Will in evidence. The Will was not dated. It was thumb-printed, $15$ allegedly by the testator, yet the Will is written in English and lacks a certificate of translation for the testator who appeared illiterate. This was contrary to the mandatory provision of the Illiterates Protections Act. The Appellant's attempt therefore to prove that the suit land was bequeathed in the Will by his $20$ grandfather, to the Appellant, failed. Neither did DW1 show that he was an administrator of the estate of the late grandfather (Hannington Anying) as no evidence was adduced to show that

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he had been appointed by court to administer the estate of the $\mathsf{S}$ said deceased.

DW1 testified that there was a conspiracy between clan leaders and the Respondents to grab the suit land from him. He however did not buttress this claim, which in my view, remained bare. DW1 did not show that the Respondents' claims were concocted or stage-managed to defeat his own.

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DW2 (Ojok Philips) testified as a neighbor to the suit land (in the North). He stated that the grandsons of Hannington occupy 15 the suit land. He named them. This bit of occupancy as at 26<sup>th</sup> June, 2018 is not disputed, because the Respondents had averred that they found the Appellant (a grandson of Hannington) in occupation of the suit land in 2007. The 20 Respondents stated that, that is when the dispute arose. DW2 however confessed that he did not know when the suit land was acquired (by the Appellant and his ancestors). DW2 claimed that the Respondents (especially Atto Tereza) was a resident of another village (not where the suit land is). This claim was also made by DW3 (Olum Joseph Abal), the former LC 1 Chairperson $25$

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- of Telela East village, in respect of both Respondents. DW3 $\mathsf{S}$ claimed the Respondents lived elsewhere. These witnesses' claims were not confirmed by the Appellant himself. Their claims were also destroyed by the sketch plan drawn at the locus in quo, which show that the Respondents have houses on the suit land. If the Respondents did not live on the suit land, $10$ as the Appellant's witnesses claimed, why then did the Appellant seek to have the Respondents evicted from the suit land (although in the absence of a counter claim)? The evidence in this regard is not credible. Moreover, the Appellant's prayer in the Written Statement of Defence confirm that as at the date $15$ of the testimony of his witnesses, the Respondents were already in possession of the suit land and thus resident in Telela village, and not elsewhere, as DW2 and DW3 purported. - I find that DW2 was unhelpful as he did not know when the 20 grandfather of the Appellant allegedly acquired the suit land. Even DW3 who claimed to have been the LCI Chairperson of the area and alleged to be a neighbor, did not know the size of the suit land. DW3 said the land owned is 10 acres and belongs to

Hurodu. $\mathsf{S}$ Hannington and at the same time, belong to the Appellant. DW3 did not indicate how the ownership of Hannington could be traced through history. Although he was 56 years old, DW3 lacked knowledge of history of the suit land. This was unlike the Respondents and their witnesses who were fairly more senior citizens and appeared to appreciate the correct account of the $10$ rival ownership claims.

DW4 (Okeny Justine), aged 41 years was unhelpful either. He testified that the land is over 88 acres (hand-written court record. The typed record carried a typo, thus 880 acres). $15$ Interestingly, DW4 claimed he was a village-mate of the Appellant. DW4 later conceded that he did not know when and how the land was acquired. I think DW4's concession was right because he also later conceded that he was not a neighbor to the suit land and that he came to know the Appellant only in 20 2014. DW4 stated, quite obliviously in my view, that the dispute started in the year 2014. I think DW4 was not helpful, save for his late concessions.

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From the analysis of the material on record, I agree with the $\mathsf{S}$ finding of the trial court that the Respondents proved their ownership claims to the suit land. I however put a rider, that the proof did not extend to the three gardens (three pieces of land) which Hannington Anying had been given by Erica Cwa.

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The trial court therefore partially correctly resolved the issue, holding that the Respondents were the lawful owners of the suit land, except the three gardens, which I will amplify my views on, in my concluding part of this Judgment. I would have therefore dismissed the above ground of appeal for lacking merit but for the different view I have taken in respect of the portion of the suit land, being strictly the three gardens which the Appellant seems to have some valid claim over.

In resolving the issue of ownership, as noted, the trial Court 20 held that the Appellant's grandfather (Hannington Anying) was a mere licensee on the suit land. That finding, with respect, is not supported by evidence especially with regard to the three gardens I have alluded to herein. It seems to me that, that was the status of Hannington Anying in the earlier years of his 25

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occupancy of the land. However, the subsequent course of $\mathsf{S}$ events militate against that conclusion. The Appellant was able to show that his grandfather (Hannington Anying) and the Appellant's father (Odong) died and were buried on the suit land. These significant occurrences were not denied by the Respondents. These occurrences are inconsistent with the fact $10$ and status of these deceased persons as having been mere licensees on part of the suit land, that is, the three gardens.

On the evidence therefore, it is my finding that, whereas the Appellant had no better ownership claim than the Respondents 15 in respect of the whole land, yet their fact of long possession and use of part of the suit land especially the three gardens, were not strongly challenged by the Respondents. Disputes only arose when the Appellant laid claim over the entire land and wanted to show the Respondents where they should occupy, 20 and also attempted to bar them occupying and using the land completely. The Respondents recognized that the Appellant's grandfather (Hannington) was welcomed to the area by Erica Cwa (Respondents' father in law) who allowed the said

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- grandfather of the Appellant to settle on three gardens, as per $\mathsf{S}$ the evidence of Atto Tereza (PW1). In the circumstances, the law ought to recognize the long user and possession of the three gardens by the Appellant's grandfather, Hannington, even though wrongly labelled as a licensee thereon. I hold that the long possession of strictly three gardens by the Appellant and $10$ - his grandfather (Hannington) raises the presumption of ownership of the said three gardens in their favour. That possession was not terminated by anyone with better title to the said three gardens. See: Asher Vs. Whitlock (1865) LR 1 QB 1, - Cockburn C. J, at p.5. See also Fowley Mavine Vs. Grafford 15 1968] 1 All ER 979; Okello Johnson Vs. Lalam Angella, Civil Appeal No. 013 of 2019 (Stephen Mubiru, J.)

It is therefore my finding that whereas a license does not create an estate in land (Head Vs. Hartley 42, Ch. D. 461), it is inconceivable that a mere licensee (Hannington) and his adult son (Odong) could be allowed to be buried on part of the suit land, that is, land comprising of the three gardens. It was not shown that their burials were temporary. In the circumstances,

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it is my finding that the Appellant has right to remain only on $5$ the three gardens which his grandfather (Hannington) was given by Erica Cwa.

Given my conclusions, I accordingly partially allow ground two of the Appeal, to the extent stated above.

## Ground 3 Conduct of the Locus in quo proceedings

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It was argued for the Appellant that the trial court failed to use the locus in quo visit and proceedings thereat, to confirm the exact size of the suit land. Counsel argued that an issue regarding the size of the suit land was raised but was never resolved. Counsel for the Appellant also contended that the Respondents stated that the suit land is 66 acres whereas the Appellant stated that it is 70 acres. He reasoned that according to the Appellant, of the 70 acres, 10 is used for settlement whereas 60 acres is for cultivation purposes. Learned counsel submitted that the trial court should have investigated the true fact at the *locus*.

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On his part, Learned counsel for the Respondents did not agree. $\mathsf{S}$ He contended that, contrary to the Appellant's contention, the trial court did what was expected of it.

I have considered this ground and perused the record and the sketch plan drawn at the locus. None of the parties sought to 10 recall any witness to testify or clarify at the locus, any issues testified on in court. The Appellant cannot therefore be heard to blame the trial court for having not done 'investigations' at the locus in quo. What the Appellant suggests is contrary to the 15 principles established over the years regarding the *locus* in quo proceedings. It suffices to state that the purpose of locus in quo visit is not to fill the gaps in the evidence of either party but to check on the evidence given by witnesses in court, lest a trial court turns itself into a witness in the matter. See: Yeseri Vs.

Edisa Lusi Byandala (1982) HCB 28. 20

> In the present matter therefore, I find that the Court clearly drew the sketch plan of the locus in quo and shaded the areas in dispute, clearly marking out where the parties are settled.

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Therefore, if the Appellant felt there was a need to specifically $\mathsf{S}$ demonstrate something at the locus, he ought to have applied to the trial court. Having neglected, the Appellant cannot criticize the trial court. I therefore find that the above ground of appeal is not well conceived and ought to fail.

In the final result, the Appeal largely fails, save to the extent stated herein before. Because of the partial success, I would set aside the Orders of the trial court and substitute with it, the following orders;

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- 1. The Respondents are hereby declared owners of the suit land except three gardens which the Appellant's grandfather Hannington Anying was given, occupied and cultivated with the consent and approval of Erica Cwa. - 2. The three gardens mentioned in 1 above are hereby declared to belong to the Appellant and his siblings and those claiming under them, with full rights and authority to occupy and use as they please.

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- 3. A permanent injunction issues restraining the Appellant, $\mathsf{S}$ his siblings and all those claiming under them from in any way interfering with the Respondents' ownership, occupation, and use of the rest of the suit land, except the three gardens declared in 1 above. - $10$ 4. The parties are free to have their portions of the suit land surveyed and delineated, with the Appellant's portion limited only to three gardens, as stated in 1 above. - 5. The Appellant shall pay to the Respondents half of taxed costs of the trial court and half of the taxed costs of the Appeal.

I so order.

Delivered, dated and signed this 9<sup>th</sup> February, 2023 20

> Hentschu 09/2/2023 George Okello **JUDGE HIGH COURT**

Judgment read in open court in the presence of: $\mathsf{S}$

## 1:30pm

09<sup>th</sup> February, 2023

## Appearance $10$

Ms. Lillian Dorah Piloya, Counsel for the Appellant.

Ms. Atimango Jolly, Counsel for the Respondents.

The parties are present in Court.

Ms. Grace Avola, Court Clerk.

Ms. Piloya: The matter is for Judgment. We are ready to receive.

Ms. Atimango: I am ready to receive the Court Judgment.

Judgment read in open Court. Court:

> Harodu 09/2/2023 George Okello **JUDGE HIGH COURT**