Oese v Akol (Civil Appeal 336 of 2019) [2023] UGCA 323 (10 November 2023)

# THE REPI]BLIC OF UGAI{DA IN fiIE COIIRT OF APPEAL OF UGAT. IDA AT I(AMPAI"A CTVIL APPEAL NO. 336 OF 2019

## [Corqm: R. Buteera, DCJ, Bamugemereire & Gashiraba]e, JJAI

# OESE JOHN PETER APPELI"ANT VERSUS

# AI(OL SILTreR RESPONDENT

(An appeal againet the decision of Batema NDA J, in High Court (Civit Appeal No. 33 of 2O1-7 at Soroti dated 17tr June 2019) (Arieing from Kumi Civil Suit No. 18 of 2015)

## JUDGMENT OF CATHERINE BAI\,IUGEMEREIRE. JA

#### 15 Introd.uction

This is a second appeal from the decision of the High court, which in exercise of its appellate jurisdiction reversed the judgment and orders of the Magistrate's court in favour of the respondent.

#### Background

20 25 The facts as ascertained from the lower court records are that the respondent, AkoI Silver (an Attorney to Oturuke Eria (a minor under the age of 18 years) sued the appellant for recovery of <sup>9</sup> gardens of land situated at Kongura village, Ongino Sub-County in Kumi District vide Civil Suit No. 18 of 2015 Kumi Grade one Magistrate's Court, alleging that the appellant had trespassed on the 9 nine gardens. The appellant filed a defence stating that he

OtLb 1.

$\overline{ }$

$\overline{a}$

was the rightful owner of the suit land having inherited it from his father, the late Yepusa Onyait.

In the late sixties, Yepusa Onyait litigated with Oturuke Eria (Senior) over land measuring 18 gardens situated at Kongura s village in Kumi district. Oturuke Eria (senior) died before the conclusion of the case and his brother Alphonse Akol took over the suit. It was the evidence of both parties that the matter went before the Parish Chief of Kodukul around 1969 who decided in favour of Yepusa Onyait the appellant's father, giving him the 18 10 gardens, which the appellant claimed to have inherited.

- The Judgment of the parish Chief was appealed against in the Chief Magistrate's Court of Soroti where Alphonse AkoI was declared the successful party, reversing the Judgment of the Parish Chief. The respondent averred that out of sympathy, - 15 Alphonse Akol gave to Onyait Yepusa 9 gardens out of the <sup>18</sup> gardens to settle on because Onyait had nowhere to go. Each party had an equal share of 9 gardens. It was also the respondent's case that Alphonse Akol loaned his 9 gardens to one Opolot but upon Alphonse Akol's death, Oturuke Eria (Junior) took over the estate - 20 and directed his son, the respondent to redeem the 9 gardens, which he did in 1976.

The respondent cultivated the I gardens until 2015 when the appellant started claiming it as part of his land that he had inherited from his father, Yepusa Onyait. The appellant occupied

25 the land forcefully in 2015 and evicted the respondent prompting the respondent to file a suit in the Magistrates' Court of Kumi.


The dispute concerned the 9 gardens that were in occupation by the respondent.

The trial Court held that the appellant was the rightful owner of the disputed land and the respondent being dissatisfied, fiIed an 5 appeal in the High Court at Soroti, which overturned the Magistrate Court's decision and held that the respondent was the rightful owner hence this second appeal by the appellant.

### Grounds of Appeal

10 1. The lea:med appellate Judge erned in law when he failed to properly exerciee the duty of the frrst appellate cotrrt.

- 2. The learned appellate Judge erred in law when he held that the respondent was entitled to the suit land. - 3. The learned appellate Judge erred in Isw when he granted 1s exceseive general damages to the nespondent.

# Repnesentation

At the hearing of the appeal, the appellant was represented by Elizabeth Nampola of Century Advocates, Kampala, while David Obore from Obore and Engulu Co. Advocates & Solicitors zo represented the respondent. Counsel for both parties adopted their scheduling notes as written submissions. The court has relied on them to arrive at this judgment.


\$ufumisgions for the Appellant.

Ground No. L: Whether the learned appellate Judge ered in law when he failed to properly exercise the duff of the frrst appellate court.

- 5 Counsel submitted that the learned appellate Judge did not properly re'evaluate the evidence on court record by ignoring the judgment of the trial Magistrate and the evidence on record. He further erred by failing to acknowledge that the Judgment of the Parish Chief was admitted and exhibited on the court record. - Counsel referred this court to the proceedings in the magistrate's court where the English translated version of the Parish Judgment was admitted and marked DX1. 10

Counsel contended that the original copy of the judgment was produced and presented in court for inspection and the appellant's

counsel prayed that the photocopy be admitted as an exhibit, which the trial magistrate rightly did. Counsel cited section 6L of the Evidence Act Cap 6, which provides for admission of primary documentary evidence. 15

It was counsel's submission that the trial magistrate did not base

his judgment solely on the Parish Chief Judgment but evaluated all evidence on record basing on other pieces of evidence from witnesses, which corroborated the Parish Chief judgment. She submitted that PW1, PWz, PW3, DW1 and DW2 all testified that the original suit started at the local level and most of these witnesses testified that the late father to the Appellant (Onyait) 20 25 won the suit.

Counsel submitted that the effect of failure by the first appellate court to re-evaluate evidence is an error of law as was held by Kanyeihamba JSC (as he then was) in Joy Tumushabe & anor v h[/S Anglo African Ltd & anor SCCA No. 7 of 1999.

#### Ground No. 2

The learned trial Judge erred in law and fact when he held that the nespondent was entitled to the suit land.

Counsel contended that a person who has a defective title couldn't pass on a better title to another person. She stated that Alphonse

- AkoI was a trespasser on the suit land and took advantage of the time that the defendant had fled for safety due to the 'Teso insurgency'to enter upon the land illegally and started cultivating it without the defendant's permission or authority. 10 - It was counsel's contention that the learned appellate Judge erred in law when he held that there was a judgment that was made by Soroti Chief Magistrates' Court giving the land to Akol Alphonse yet no copy of the said judgment was adduced in court. 15

Counsel further submitted that the respondent did not adduce evidence to prove how Alphonse Akol who had allegedly won a case on appeal in Soroti Court donated I gardens to the Appellant's father. She stated that there was no document recording such an important event that was marking the end of a long litigation. Further, that there was also no document by which Oturuke Eria, the Parish Chief donated the garden to the appellant's father. Counsel submitted that the only document 20 25

U/B <sup>5</sup>

produced by the respondent was the one redeeming the land from the mortgage hence the appellate Judge ought to have found the respondent's evidence wanting.

- 5 Counsel argued that the learned appellate Judge erred in law when he held that the suit land, which is customarily owned by the appellant's clan, belongs to the respondent who is from <sup>a</sup> different clan. She submitted that DW3 gave evidence that the suit land was customary land belonging to Atekok Ingino, the clan - 10 of the appellant. Further, that the suit land was governed by local customary regulation which were applied to the management of individual ownership and that was why when the appellant's father, Onyait Yepusa died, a clan meeting was held to pass on the suit land to the appellant. - ts Counsel further submitted that the respondent's evidence was full of contradictions on how Oturuke Eria, the Parish Chief obtained the suit land. PWz stated that Oturuke was given the land by his brothers since there was vast land. Further, that PWB stated that Oturuke was a Parish Chief who cleared the land himself and zo owned those 18 gardens while PW4 stated that Oturuke was given the land by the government.

Counsel submitted that the appellate Judge should have taken note of the danger of relying on oral testimonies alone without any d.ocumentary evidence as was held in the case of Christopher 25

uls

Kisembo & anor T/A Ishaka General Hardware v The Cooperative Banlr in Liquidation, CACA No. 93 of 2010.

#### Gnound 3

s The leamed appellate Judge erred in law when he granted excessive general damages to the respondent.

Counsel submitted that the respondent did not adduce any evidence to prove that he was using the suit land before the appellant re-entered it. It was counsel's argument that the i.0 respondent did not give any evidence as to whether he suffered any inconvenience after the appellant re-entered the suit land. Counsel submitted that the general damages of UGX 9,000,000/= awarded to the respondent were manifestly excessive for no justifiable reason.

# \$ufumisgions for the Respondent

In reply to Ground No. 1, counsel submitted that the trial Judge was justified in questioning how the translated version of the Parish Chief Judgment was admitted on court record. Counsel zo submitted that the trial magistrate admitted the Parish Chief Judgment as an identification document but despite the fact that the judgment was tendered as an identification document, the trial Magistrate admitted the English translated version of it as DXl.

zs It was counsel's submission that the appellate Judge was alive to the matter before court and properly evaluated the evidence on

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record and found glaring loopholes and inconsistencies in both the Parish Chiefs Judgment and it's translated version.

Further, on the issue of primary evidence, counsel contended that what was exhibited before the trial court was not the Parish Chief

- 5 judgment but the translated version as per the record. Counsel submitted that the trial court proceedings pointed to the fact that the trial Magistrate primarily based iself on the purported Parish Chiefs judgment of 1969 to decree the suit land to the appellant, which was erroneous, thus the learned Appellate Judge rightly exercised his duty to give judgment in favour of the - respondent. He prayed that this ground fails. 10

#### Gnound No. 2

Counsel submitted that the appellate Judge considered the trial 15 court's proceedings and rightly evaluated the evidence before coming to his conclusion that the respondent was entitled to the suit land. Counsel submitted that the appellate Judge considered the evidence of PW3 Okai Stanislaus where he stated that Alphonse Akol had loaned the suit land to his father Opolot in zo 1976 and that his family used the loaned land until the respondent redeemed it in 2004. Further, that the appellate Judge noted that Okai's evidence was in line with that of the respondent (now appellant) who told court that between 1976 and 2004, Opolot's family was cultivating the suit land and between 2004 - 25 2015, the respondent cultivated the suit land. Further, that the

appellant admitted that he started cultivating the suit land in w <sup>B</sup>

 2015. Counsel submitted that the appellate Judge rightly held that the respondent was entitled to the suit land thus ground 2 of the appeal should fail.

## 5 Ground No. 3

Counsel submitted that the appellate Judge rightly held that the appellant was unlawfully thrown out of his land and was unable to cultivate or use it in any way thus the award of 9,000,000/= as general damages which was not excessive in the circumstances.

Counsel cited Robert Cuossens v Attorney General, SCCA No. 8 of 1999 where the measure of damages is defined asi "that sum of money which will put the party who has been injured or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his 10

compensation." 15

> Counsel submitted that the appellant's appeal has no merit and prayed to this court to dismiss it with costs.

## Appellanf,s Rejoinder

z0 In rejoinder counsel for the appellant reiterated his earlier submissions but added on ground one that counsel for the respondent misguided court on his submission about the admission of the Parish chief judgment as an identification document. Counsel submitted that the lower court proceedings Zs indicate that the Parish Chiefs Judgment was tendered in court and counsel for the appellant prayed that the English version be w <sup>9</sup>

admitted, which court did and marked it exhibit DXl. Counsel contended that the document the respondent's counsel referred to in his submissions as an identification document was the clan meetings minutes and not the Parish Chiefs Judgment, as he 5 wants this court to believe.

On grotrnd two, counsel submitted that there was no clear or convincing evidence adduced to show how Oturuke Eria (snr) came to own the suit land and there was no way he could have passed on ownership to Alphonse Akol or Oturuke Eria or to the 10 respondent if he did not own the land.

Counsel reiterated his submissions on ground 3 regarding damages.

## Consideration of the Appeal

- 15 I have considered the submissions of both parties and the authorities availed to this court. The first ground of appeal concerns the failure of the appellate Judge in discharging his duty as a first appellate court. - 20 This being a second appeal, the duty of this court as a second appellate Court was stated in fito Buhingiro v SCCA No. 8 of 2OL4, that it is trite that as a second appellate court, we are not expected to re-evaluate the evidence or question the concurrent findings of fact by the High Court and Court of Appeal. However, 25 where it is shown that they did not evaluate or re-evaluate the evidence or where they are proved to be manifestly wrong on

CP <sup>10</sup>

findings of fact, the court is obliged to do so and to ensure that justice is properly and timely served.

In Kifamunte Henry v Uganda, SCCA No. 10 of L997 while commenting on the duty of a second appellate court, the Supreme Court noted that:

"This Court will no doubt consider the facts of the appeal to the extent of considering the relevant point of law or mixed law and fact raised in any appeal. If we re-evaluate the facts of each case wholesale, we will assume the duty of the first appellate Court and create unnecessary uncertainty. We can interfere with the conclusions of the Court of Appea1 if it appears that in its consideration of the appeal as a first appellate Court, it misapplied or failed to apply the principles set out in such decisions."

In the instant matter, the appellant's allegation was that the appellate Judge ignored the trial court's decision and evidence on record, which demonstrated that the Parish Chiefs Judgment was z0 admitted on record thereby failing in his duty as a first appellate court. The respondent on the other hand submitted that the trial Judge was justified in questioning how the translated version of the Parish Chiefs Judgment was admitted on court record.

zS In order to determine whether there is any merit in this appeal, I will re-evaluate the evidence led at the trial court, re-examine the ulb 11.

judgment of the learned trial magistrate and juxtapose it against the judgment and reasoning of the appellate Judge in order to determine whether the appellate Judge failed in his duty as a first appellate court to re'evaluate the evidence of the trial court.

It is trite law that a first appellate court has a duty to re-evaluate the evidence on record as a whole and arrive at its own conclusion bearing in mind that the trial court had an opportunity to observe the demeanour of the witnesses, which the first appellate court

did not have. (See rule 30 of the Judicature (Cout of Appeal Rules) Directions SI 13'10, Banco Arabe Espanol v Bank of Uganda [rggg] UGSC 1). 10

The appellate Judge in his assessment about the Parish Chiefs Judgment observed that: 15

> "Incidentally I found a copy of a translated vergion in English on record admitted ae hhibit DX1. I could not tell how it was admitted on reeord- I ordened that the defend.ant produces the original and it was prroduced for comparison with the exhibited copy. The so-called original judgment dtffers a lot from the translat€d copy admitted on re@rd...'

Both the learned trial Magistrate and the learned appellate Judge noted that the English version of the contested judgment 25 contains insertions of the village, parish and other new names which were not in the Atesot version the original. The appellate

UB 1.2

Judge further noted that the judgment has abbreviated Christian names while the translated version has them written in full. He further noted that where the original paper was torn another paper was pasted behind and gaps were filled in with fresh and

5 recent writings.

At first appeal, the Judge based on the above anomalies to find that the Parish Chiefs Judgment, defence exhibit, Exh D1, was of no evidential value and rejected it.

I have had opportunity to look at the trial court's proceedings when the contested document was admitted. For ease of reference, the proceedings are regurgitated below:- 10

"DlV'l: my father the late Onyait Yepusa had at one time litigated over the suit land with Alphonse Akol. Thie was in ...the matter was before the Parish Chief. The decision of the Parish chief was that my father was succeesful in that claim Alphonse Akol lost. I have a copy of that decision by the parish chief. It is dated 23191L969. I can identifr that document because it is signed by Okiring Lekobwam Olwakol, Ongiriang Stanley.

IWS Inenei I pray to tender in the document dated 2Y September 1969. I pray that the Englis5 trlqnslated version of it be exhibited. 20

Mr. Obonel no objection

Conrt: Document dated 23191L969 received and marked <sup>25</sup> exhibit Dxl." uta

The document in contention was admitted as an exhibit D1 as observed from the trial court record, as the above proves.

I observed that the respondent in his submissions alleged that the trial court admitted the Parish Chief s judgment as an 5 identification document. The latter statement is not correct. The Parish Chiefs Judgment was never contested and was admitted as an exhibit which was Annexure A. It was the purported Soroti Court Judgment that was objected to and admitted as an identification defence Exhibit D IDl. The appellate Judge also 10 stated his reasons for not considering the Parish Chief judgment.

- He faulted the trial Magistrate for only exhibiting the translated copy. He therefore rejected the Judgment as possessing no evidential value. - 15 The duty of this court is now to consider whether the appellate Judge rightly exercised his duty as a first appellate court in rejecting the said document.

## In Prabhakara v Basavaraj K Civil Appeals No. 1376'1377 of 2010. the Supreme Court of India fotrnd thati

20 "When the court of original jurisdiction has considered oral evidence and recorded findings after seeing the demeanour of witnesses and having applied its mind, the appellate court is enjoined to keep that fact in mind. It has to deal with the reasons recorded and conclusions arrived at by the trial 25 court. Thereafter. it is certainl]z open to the appellate court to come to its own conclusio if it finds that the reasons


which weighed with the trial court or conclusions arrived at were not in consonance with law." (Emphasis is mine).

In the instant matter the learned appellate Judge faulted the learned trial magistrate for admitting an English translation of $\mathsf{S}$ the Parish Chief's judgment, which he found to materially differ in content and form from the original document.

I am inclined to agree with the learned appellate Judge that the purported interpretation of the Parish Chief's Judgment had glaring incongruencies and anomalies which should not have been $10$ overlooked by the trial court. Be that as it may, a document once admitted in evidence, without objection and marked as an exhibit by the court, becomes part of judicial record. Admitting a document on record, however, does not necessarily make the document credible. A court has a duty to examine the credibility 15 and reliability of the admitted evidence. Looking at the reasons the learned appellate Judge gave for not accepting the Parish Chief's Judgment, I could not tell whether he referred to the Parish Chief's Judgment or whether he referred to a purported Soroti Judgment Exhibit **D ID1**. $20$

Under O. 43 rule 22 (1) (b) of the Civil Procedure Rules SI 71-1, it provides that;

"The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary in the High Court but if the High Court requires any document to

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be pmduced or any witnese to be examined to enable it to prrnounce judgment or any other subetantial cause, the High court may allow the evidence or d,octrment to be produced or witness to be examined."(Underlined for emphasis).

In the instant case, the appellate Judge ordered for the production of the original Parish Chiefs Judgment which he compared with the English translated version admitted as DX1 on court record and he found both documents to be different in form. He noted that the English version contained insertions of the village, parish and other new names. Further, he observed that while the original judgment has abbreviated Christian names the translated version has them written in full. The English exhibited document was not stamped nor certified which is contrary to the law.

Having considered the above, the appellate Judge rejected the Parish Chiefs Judgment exhibited on record. I note that had the trial Magistrate carefully analysed the Parish Chiefs Judgment presented before him, he would have noted the anomalies before admitting it on record, the way learned appellate Judge correctly did. 20

The appellate Judge had a duty to subject the evidence presented to the trial court to a fresh and exhaustive scrutiny and re-25 appraisal before coming to his own conclusion. (See Father Narsensio Begumiss and three Others v Erie fibebaga, SCCA


l?of 2000; [ZOOa] KALR 236). It is trite that the appellate court may interfere with a finding of fact if the trial court is shown to have overlooked any material fact in the evidence.

5 In this case, the learned trial Magistrate while admitting an English translated version of the Parish Chiefs Judgment overlooked the inconsistencies and anomalies in the Atesot copy of the Judgment which the appellate Judge was justified in interfering with the trial court's finding on the same.

- Basing on my analysis above, I find that the appellate Judge correctly exercised his duty as a first appellate court to reject the Parish Chiefs Judgment. In this regard, I reject the appellant's assertion that the appellate Judge failed in his duty as a first appellate court. Ground No. 1 therefore fails. 10 - Ground No. 2: The learned appellate Judge erned in law when he held that the respondent was entitled to the suit land. 15

Counsel for the appellant argued that the appellant discharged the burden of proof required under civil matters and proved, on a balance of probabilities, that he was the rightful owner of the

disputed land. The respondent on the other hand, contended that the appellate Judge rightly held that the respondent was entitled to the Suitland. 20

This court as a second appellate court can only interfere with the conclusions of the first appellate court if it appears to it that in its consideration of the appeal as a first appellate court, it misapplied or failed to apply the principles set out in law. This in essence,

 brings us to the question of who is the rightful owner of the disputed land? The respondent who was the plaintiff at the trial court had the burden to prove that he was the rightful owner. The question in this case was whether the burden of proof was 5 discharged and whether the matter was proved on the balance of probabilities as the standard requires. The plaintiff bears the burden to prove his case by a preponderance of the evidence which means the plaintiff merely needs to show that the fact in dispute is 'more likely than not.'When the standard for a case is "the 10 preponderance of evidence," it means that the plaintiff need only prove that his/her argument is more likely right than wrong.

a

In Miller v Minister of Pensions, ltg+il 2 AI,L ER 372 Lord Denning held thati

"The degree is well settled. It must carry a reasonable degree 15 of probabitity but not too high as is required in a criminal case. If the evidence is such that the tribunal can say, we think it more probable than not, the burden of proof is discharged but if the probabilities are equal, it is not."

20 The respondent therefore had the burden to prove his facts on <sup>a</sup> balance of probability. As illustrated in Jovelyn Barugahare v Attorney General, SCCA No 28 of 1993, he who asserts a fact must prove it. The onus is on a party to prove a positive assertion and not a negative assertion. It therefore means that, the burden 25 of proof lies upon him who asserts a fact, and not upon him who

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denies, since from the nature of things he who denies a fact can hardly produce any proof.

To succeed in his claim, the burden lay on the respondent (who was the plaintiff in the trial court) to adduce such evidence as would satisfy court that indeed he was the rightful owner. He had to do this by proving that his late father was entitled to the disputed 9 gardens, as he claimed.

The evidence regarding the loaning out and redeeming the <sup>9</sup> 10 gardens draws attention to the transactions that took place on this land in spite of the disagreements between the two parties. This evid.ence was that before his death, Alphonse AkoI (the respondent's father) had loaned 9 long gardens he inherited, to one Opolot in order to raise enough money to pay for the bride 15 price of a woman he intended to marry. PWB Okai Stanslus, (Opolot's son) testified that Alphonse Akol loaned the land to his father Opolot in 1976 and that his family used the loaned land for a long time until Silver Akol (the respondent) redeemed it in 2004. PWB testified that he received the land on behalf of Opolot's zo family. He testified that the loan agreement was destroyed upon the land being redeemed but that he had the redeeming agreement, which was exhibited on court record with no objection from the appellant.

The above piece of evidence to the effect that the Opolot family 25 was in occupation of the land from 7976 to 2004 is not in

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contention. However, after redeeming it, the plaintiff occupied the Iand tilt 2015.

I can safely conclude, based on the appellant's and the respondent's evidence, that the 9 gardens were for Opolot and that the respondent was in occupation of the land for a long time from 1976 to 2015. The appellant failed in his duty to prove that the respondents had no claim of right over the piece of land. Ground No. 2 fails.

10 Ground No. 3: The leamed appellate Judge emed in law when he granted excessive generd damagBs to the respondent.

The appellant's counsel contested the award of UGX 9,000,000/= as general damages to the respondents as manifestly excessive and not justifiable. His submission was that the respondent did 15 not prove that he suffered any inconvenience after the appellant re-entered the land.

In Matiya Byabalema & 2 Ors v Uganda Tlansport Company SCCA No.10 of 1993 the court found that:

- "An appellate Court may only interfere with an award of zo damages upon proof that the trial Court, in awarding the damages, proceeded on a wrong principle or misapprehended the evidence and as a result arrived at an award which was inordinately too high or too low." - 25 Similarly, in Omunyokol Akol Johnson v Attorney General CACA No. 71 of 2010, this court held that:


"Award of damages is an exercise of discretionary powers of the trial court. Usually an appellate court is reluctant to interfere with such awards because it is considered imprudent to substitute the appellate's court own opinion with that of the trial court. The exercise of discretion should be done with care and on principles that have been laid down. However, there are two settled areas where an appellate court will interfere with the exercise of discretion. The first is where the trial court acted on wrong principles and the second is where the amount awarded is manifestly excessive or manifestly low that a misapplication of a wrong principle is inferred."

In Halsbury's Laws of England, 4th Ed. Vot. 46 (Z), (London: Butterwortn-'s, 1999, at paragraph 626), the law on damages for trespass to land is addressed as follows:- 15

"A claim for trespass, if the claimant proves trespass, he is entitled to recover nominal damages, even if he has not suffered any actual loss. If the trespass has caused the claimant actual damage, he is entitled to receive such an amount as will compensate him for his loss. Where the defendant has made use of the claimant's land, the claimant is entitled to receive by way of damages such a sum as should reasonably be paid for that use.... if the trespass is accompanied by aggravating circumstances which do not

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allow an award of exemplary damages, the general damages may be increased."

The respondent was able to prove ownership of the disputed land 5 on a balance of probabilities.

Ideally on second appeal we would only be concerned with matters of law since matters of fact would have been duly determined on first appeal. However, we have found it necessary to re'evaluate the law and facts in this case in order to answer the ground of 10 appeal. The history of this case proves that the historical links of the families to this land is intertwined. The families have intermittently dwelt on the disputed land, one after the other. Given those circumstances they each have reaped from it at different times. Be that as it ffi&y, I find that the appellant was 15 absent from the land for close to 11 years. When he resurfaced, he forcibly attempted to re-enter land now occupied by the

respondent, an act I do not find justifiable. I would not interfere with the award of damages of UGX 9000000 awarded by the appellate Judge.

20 I would therefore dismiss Ground No. 3 of the appeal.

In conclusion I agree with the appellate Judge that each party is entitled to the 9 gardens they occupy. We find that the learned appellate Judge properly exercised his duty as the first appellate <sup>25</sup> court. He was able to bring clarity to the underlying conflict in the

case. I would find that this appeal lacks merit. I therefore, would dismiss it with no order as to costs.

Dated at Kampala this....................................

$\mathsf{S}$

$10$

# **CATHERINE BAMUGEMEREIRE** JUSTICE OF APPEAL

#### Nota bene $15$

The families are advised to each survey their separate 9 gardens and apply for certificates of title. If this land is brought at the Registration of Title's Act, there will be certainty in matters ownership and hopefully they will live peaceably with each other.

If the parties do not have the resources to apply for certificates of $20$ title, they could consider applying for certificates of occupancy under section 33 of the Land Act as amended.

$25$

## THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

### CIVIL APPEAL NO. 336 OF 2019

(Coram: R. Buteera DCJ, C. Bamugemereire & C. Gashirabake, $$

OESE JOHN PETER :::::::::::::::::::::::::::::::::::

#### **VERSUS**

AKOL SILVER RESPONDENT $\cdots \cdots \cdots \cdots \cdots$

(An Appeal from the decision of Batema N. D. A J, in High Court (Civil Appeal No. 33 of 2017 at Soroti dated 17<sup>th</sup> June, 20219) (Arising from Chief Magistrate's Court of Kumi Civil Suit No. 18 of $2015$ )

#### JUDGMENT OF BUTEERA, DCJ

I have had the benefit of reading in draft the Judgment of C. Bamugemereire, JA in respect of this appeal. I do agree with her reasoning, conclusion and orders she proposed.

Since C. Gashirabake, JA also agrees, the appeal lacks merit and it is therefore dismissed with costs in the terms as proposed in the lead Judgment of C. Bamugemereire, JA.

1ard Buteera

DEPUTY CHIEF JUSTICE

$16 - 160 - 2023$

#### THE REPUBLIC OF UGANDA

#### IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

Richard Buteera-DCJ, Catherine Bamugemereire, Christopher (Coram: Gashirabake, JJA)

#### CIVIL APPEAL NO. 336 OF 2019

#### JOHN PETER OESE...................................

#### **VERSUS**

SILVER AKOL::::::::::::::::::::::::::::::::::::

## JUDGMENT OF CHRISTOPHER GASHIRABAKE, JA.

I have read in draft the judgment of Hon. Lady Justice Catherine Bamugemereire, JA.

I concur with the judgment and the orders proposed and I have nothing useful to add.

Dated at Kampala the 10 day of Konentse 2023.

Christopher Gashirabake **JUSTICE OF APPEAL.**