Ogwang Francis v Apili Sarah (Civil Appeal No. 045 of 2021) [2025] UGHC 262 (8 May 2025)

# **THE REPUBLIC OF UGANDA**

### **IN THE HIGH COURT OF UGANDA HOLDEN AT LIRA**

## **CIVIL APPEAL NO.045 OF 2021**

**(ARISING FROM LAND CLAIM NO. 007 OF 2020 OF THE CHIEF**

**MAGISTRATES COURT OF AMOLATAR HOLDEN AT AMOLATAR)**

**OGWANG FRANCIS……………………………………………............... APPELLANT**

## **AND**

**APILI SARAH……………………………………………………………….. RESPONDENT**

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

#### **JUDGMENT**

The parties to this appeal are step siblings fighting over three gardens/ land which originally was their father's. Mr. Lawrenti Ogwal divided all his landed property amongst his children during his life time. It is said he died in April, 2020. He left the dispute between the children raging on in the judicial systeman episode no father wishes to happen between his beloved children. Her Worship Kaibei Cherotic, Magistrate Grade One of Amolatar adjudicated the matter. The appellant was the defendant. The respondent successfully sued him. The land is situated in Acotedo Village, Agwingiri Parish, Agwingiri Sub- County, Amolatar District. The respondent says she was given three gardens by her late father at a distribution function held on 13 October, 2012. Other siblings

received their shares. The distribution was documented. The lands were demarcated with planted trees. However, in November of 2012, when the respondent ploughed the land in readiness for planting season, the appellant is alleged to have gone there and removed the boundary trees. On reporting to their father, his intervention was greeted with an assault by the appellant. Police was notified and when the appellant appeared at Police he sought for forgiveness undertaking to vacate the suit land and replant the boundary trees. On release by Police, the appellant refused to live by his word but continued to cultivate the suit land. He is alleged to have threatened the respondent with death if she stepped on and cultivated the suit land. The clan elders, Mr. Lawrenti personally as well as the local leaders intervened to no avail. In 2013, the appellant and four siblings sued their father (Mr. Lawrenti) impugning the land distribution. They lost the case. The matter was adjudicated by H/W Magomu Nasuru, Magistrate Grade One. After that decision, the clan and the local leaders replanted the boundary trees but they were uprooted by the appellant. The respondent sought the help of the area Local Council 1 Chairperson who referred her to the Deputy Community Liaison Officer Amolatar Police Station. The latter attempted to resolve the matter with the involvement of the local authority but the appellant made a no show at an arranged village meeting. A criminal case was opened against the appellant, however, the Resident State Attorney advised against it. He guided the parties to pursue civil action. The suit was for declaration of ownership, declaration that the appellant is a trespasser, for a

permanent injunction to issue for trespass, for an eviction order, for general damages, mesne profit, and costs to issue against the appellant.

In his response, the appellant made general denials. As regards the averment of land distribution in 2012, he averred that whereas there was distribution it was full of fraud so the distribution was cancelled by a Magistrate Grade One of Amolatar in 2014. He of course does not plead the details of the proceedings in which that was so. He added that after the cancellation, on October, 11, 2014, his father's entire land were equally divided to every family member (a sort of fresh distribution). According to the appellant, the sister does not own the suit land, and in any case, he has settled on it since 2020. Without finding it proper to make a counter claim, the appellant asked the trial court to issue a permanent injunction against the respondent, plus general damages. He also prayed for costs of the suit.

Notably, during their action in the court below, the parties did not partake of legal services. The respondent (as plaintiff) annexed some documents to her plaint to support the alleged distribution of 2012. The documents were written in luo and no English translation were annexed. They were later disallowed from being exhibited. An order dismissing a suit the appellant had lodged against his father was received in evidence. In the like manner, the appellant annexed a document to the written statement of defence but because it was not translated

from luo, it was not admitted in evidence. I will comment more on these as the matter has featured in the appeal.

The respondent testified and called four additional witnesses. All were cross examined by the appellant. Similarly, the appellant testified and called two more witnesses whom the respondent cross-examined. The trial court visited the suit land and drew a sketch map. Prior to the visit, a notice was issued to the parties and copied to the District Police Commander of Amolatar. I shall advert to the conduct of the locus in quo proceedings as a ground of appeal was framed around it.

In her Judgment read on 09 December, 2021, the learned Magistrate agreed with the respondent. She declared her as being the rightful owner of the suit land holding the appellant a trespasser. She ordered for vacant possession, awarded the respondent general damages of shs. 3,000,000 on account of the land deprivation by the appellant, plus costs. Interests of 8% per annum was imposed on general damages and costs to accrue from the date of judgment till full payment. Although not at issue, I shall comment on the rate of interest award on costs.

The appeal initially rested on three grounds but ground one was abandoned in the written argument. For that reason, I shall re-number the remaining two grounds. They are;

- 1. The learned trial Magistrate erred in law and fact when she conducted the locus visit in contravention of the well laid down procedure without the respondent's witnesses to verify the evidence given in court and the respondent failed to show the exact boundaries of the land at the locus visit. - 2. The learned trial Magistrate erred in law and fact during evaluating evidence to hold that the appellant had failed to prove ownership of the suit land yet the appellant had provided sufficient evidence on how he had acquired ownership of the customary land hence occasioning a miscarriage of justice.

The appellant prays the appeal should be allowed, the trial court's judgment be set aside, and the appellant is declared the owner of the suit land.

I should mention that the grounds of appeal are, with respect, not smartly drawn. There is lack of precision in both while one is more argumentative, vague and general. However, since no objection has been raised, I shall leave it at that.

By way of background, I should state that the appeal was initially dismissed by this court (Gaswaga J) for want of prosecution. However, on the application by the appellant and with the consent of the respondent and their counsel, I set

aside the dismissal and reinstated the appeal on 28 November, 2024 for hearing on merit. To save time and costs, I directed Mr. Adupa Alex, learned counsel who appeared for the applicant/ appellant to obtain the trial court record and serve Ms. Hope Lydia Abeja and file submission. Ms. Abeja, learned counsel and Mr. Adupa, complied. I have perused their arguments. I am grateful.

As a first appellate court, this Court has a duty to re-evaluate the evidence on record and reach its own conclusions while giving allowance for the fact that it did not see the witnesses testify and unable to comment on their demeanor especially where there is conflicting evidence. Court must, however, still be guided by the impressions of the trial court, if any, who saw the witnesses testify. There may obviously be other circumstances quite apart from manner and demeanor which may show whether a statement of a witness is credible or not, and may warrant this court in differing from the trial court even on a question of fact turning on the credibility of witnesses whom this Court has not seen. Court must, therefore, re-hear the case while carefully weighing and considering all material on record, including the impugned judgment by not disregarding but considering it and must proceed to draw its own inferences and conclusions both on matters of fact and matters of law. Where this court finds that the lower court Judgment is wrong, it should overrule it. Furthermore, given that an appeal is by way of a retrial, this court is not bound to follow the trial court's findings of fact if it appears either that the trial court failed to take account of particular

circumstances or probabilities or if the impression of the demeanor of a witness is inconsistent with the evidence generally. See: **Selle & another Vs. Associated Motor Boat Co. Ltd & others (1968) E. A 123**, **David Muhenda & 3 others Vs. Margaret Kamuje, Civil Appeal No. 9 of 1999 (SCU).**

In my resolution, I will proceed with ground two first although both counsel addressed ground 1 first. Ground two although badly drawn touches the root of the dispute as to who owns the suit land. I have found it unnecessary to reproduce the written arguments of counsel because both largely never agreed on matters of evidence and their evaluation. It is thus my duty to set out the evidence as supported by the record and subject it to exhaustive scrutiny.

I note that the learned trial Magistrate correctly set out the law on the burden of proof. She properly captured the issues as framed at the scheduling conference, namely, who is the rightful owner of the suit land, and the remedies available. The court summarized the evidence as adduced by the two sides. It noted that each side claims to have got the suit land from his/her father. Court posed the question as to whose version is true. The trial court believed the respondent's version. It noted that whereas the parties tendered in documents, they were only marked for identification pending production of translated copies in English. The court noted that translated versions were not ultimately exhibited. Thus court

was left only with the witnesses' accounts and the observations made by it at the locus in quo.

The trial court observed that the respondent and her witnesses testified that the suit land was distributed in 2012 which evidence the appellant admitted. It was cognizant that the only point of departure was the appellant's claim that the 2012 distribution was nullified and a fresh distribution done in 2014. The trial court observed that the respondent denies the alleged re-distribution. The court doubted the 2014 re-distribution stating that the document the appellant was relying on (the Identification document DID1) bore erasures and the author never testified on it.

The trial court noted that the respondent's witnesses were clan elders while the defence witnesses were neighbors so the story told by the clan leaders (respondent's witnesses) were believable compared to the version by the neighbors. The court concluded that there was no evidence proving the claim that the 2012 land distribution was ever nullified. For those reasons, the trial court believed the respondent (plaintiff) holding in her favour.

I proceed to re-evaluate the evidence in so far as is relevant to the competing ownership claim. The respondent averred in the plaint that the three gardens/ (the suit land) were her share of the land distribution to whole the children of

their father- Lawrenti Ogwal. That the distribution was done on 13 October, 2012. (Para. 4(a) of the plaint). She averred that the exercise was reduced into writing. She makes reference to annexure "A" to the plaint. That document was not expressly denied by the appellant in his written statement of defence. The appellant's only averment was that the land distribution mentioned by the respondent was fraudulent and was cancelled by a Magistrate Grade 1 of Amolatar in 2014. I will later consider these averments in light of the evidence adduced by both sides.

In her testimony on 03 February, 2021, the respondent (PW1) who was 54 years old told the trial court her story which are substantially the facts pleaded in her plaint and which I have mentioned in my prefatory. Because it is lengthy I feel no need to reproduce it. I only wish to add her testimony that the suit land was distributed in the presence of some persons whom she named. Among the witnesses to the distribution was PW2 (Ogwal Jasper) whom the respondent said was their clan secretary. PW1 named six other persons whom she says were present. This court, notes, none of the six others testified. PW1 spoke of how she planted trees (Omara-Omara) to demarcate her land boundary but stated that they were subsequently removed by the appellant. The witness referred to the 2012 land distribution document which the trial court marked as PID1. In cross examination by the appellant, PW1 stated that there was no land distributed in 2014 (referring to the re-distribution alleged by the appellant). She also stated

that she did not attend any land distribution in 2014 and that the Minutes which the appellant had attached to his written statement of defence and was relying on (DID1) were forgeries.

PW2 (Ogwal Jaspher) a 42 year old, testified that the suit land was given to the plaintiff by the clan and her father (Ogwal Lawrenti) on 13 October, 2012. PW2 was the secretary to the clan chief and says he witnessed the distribution together with the chief. According to him, land was distributed to thirteen children of Mr. Lawrenti. Mr. Lawrenti gave the girl children three gardens each while the boy children each received 13 gardens. Holes were dug to demarcate their boundaries but since it was dry season the beneficiaries were advised to plant Omara-Omara trees during rainy season. According to PW2, the appellant and two siblings were absent during the land distribution exercise but they were later told to visit the clan chief who would show them their shares. According to PW2, the appellant and the other siblings refused to go for their shares. The witness also stated that he was not aware of the alleged 2014 land distribution because he was not invited. He identified a document marked PID2 which bears his name and signature. He also stated that the original of PID2 was with the Clan land Committee Chairman who has since passed on. In cross-examination by the appellant, PW2 denied that the 2012 land distribution was conducted forcefully. He also testified that the purported signature of Mr. Lawrenti appearing in the 2014 purported land re-distribution document is forged.

PW3 Wange Richard alias Okaye Martin a 44 year old testified that he was a clan leader (not chief) of the parties' clan. He conceded he was not present during the 2012 land distribution by Mr. Lawrenti but insisted that the suit land is owned by the respondent. He also testified that Mr. Lawrenti called him in 2018 when the appellant has trespassed on the suit land. He was invited to resolve the dispute. The appellant did not attend the meeting although he was invited. PW3 forwarded the matter to his superior (Clan Chief) who convened another meeting. The team moved around the suit land. There was grass forming the boundary between the suit land and that of the appellant. PW3 and the Chief reduced the matter into writing which indicated that the suit land belongs to the respondent. PW3 testified that a document was with the clan chief. When asked about the name of the chief, he said he had forgotten.

PW4 Okao Alfred, a 70 year old testified that he was the clan chief and the disputants are the children of Mr. Lawrenti Ogwal. The suit land is about three gardens. Mr. Lawrenti invited PW4 and showed him and others present the land Mr. Lawrenti had given to the respondent. PW4 and others moved around the boundaries made of natural trees and anthills and a main road. According to the witness, Mr. Lawrenti gave the suit land to the respondent on 22 August 2018. The respondent reported to PW4 the act of trespass by the appellant. PW4 saw the land that had been cleared. The appellant admitted clearing it. The appellant

told PW4 that he needed a refund (for expenses incurred in clearing the suit land). PW4 advised the respondent to refund the appellant shs. 60,000 within three weeks. Later, the appellant trespassed on the whole land. On being asked, the appellant reportedly told PW4 that the respondent own no land in the area. Asked about a document, PW4 testified that it was with the secretary Odongo Alfred (PW5). In cross-examination by the appellant, PW4 conceded he was absent when Mr. Lawrenti distributed land to his children. However, the witness maintained that the appellant was present when PW4 and others went through the suit land in 2018 to confirm the boundary. He also stated that the appellant signed the 'document'. According to PW4, he does not know of any land distributed in 2018.

Odongo Alfred a 64 year old witness testified as PW5. He stated that he was the clan general secretary and that the parties belong to the same clan and are step siblings. According to PW5, the respondent was given three gardens. PW5 was present during the distribution exercise. Boundary trees were planted in his presence to demarcate the distributed land. In 2018, the respondent's father called PW5 to go to his home over a land dispute saying the appellant had grabbed the respondent's land. PW5 advised the appellant to vacate the suit land but the latter said he had used shs.60, 000 to clear it. PW5 advised the respondent to disburse the money through the clan leader. Later, the respondent told PW5 that the appellant had declined the money. On 22 August, 2018, PW5

and others went to settle the dispute. It was documented in luo language. Mr. Lawrenti, the appellant, the respondent, and the clan leader signed in a book. This court notes that the trial court stood over the matter, allowing PW5 to photocopy the book he was speaking to. The photocopy was later brought to court and marked PID2 pending production of an English version. It was in luo. In cross-examination by the appellant, PW5 maintained he went to the home of Mr. Lawrenti on 22 August 2018 to resolve the land dispute and both the LCI chairman and the clan leader were present. About the land boundary, PW5 insisted it was natural grass, natural trees and Omara-Omara trees that defined it.

In his defence, the appellant (DW1) testified on 24 March, 2021. He was 37 years old. He stated that the respondent is a step sister (they share the same father). DW1 stated that their father (Ogwal Lawrenti) distributed land at first in 2012 on a date he could not recall as DW1 did not attend the ceremony so the distribution was nullified. And on 11 October, 2014, Mr. Lawrenti distributed the land (a fresh) amongst nine boys and each son got 13 acres/gardens. The daughters, wives, and Mr. Lawrenti were to share 09 acres/gardens. A document was written to that effect by Okuc Fred who was the secretary to the clan chief. Mr. Okuc also drew a map. The appellant signed the document. The respondent, Mr. Lawrenti, the wives and other children of Mr. Lawrenti also signed. Live boundaries (trees) were planted to demarcate the distributed land. Regarding the

civil suit he and siblings had lodged against their father (in 2013), DW1 testified that they sued Mr. Lawrenti because he had sold some land so the suit paved way for the land distribution. DW1 conceded they lost the case but appealed. He of course did not furnish the appeal details.

Regarding the document mentioned by the respondent (PID1), DW1 stated that he did not attend the 2012 land distribution so he was unaware that a document was written. Regarding the alleged 2014 land re-distribution, DW1 stated that a one Tila Fideli was the clan leader who attended the exercise and Mr. Tila signed the document. DW1 insisted that the respondent attended the 2014 land redistribution and should not be heard to deny it. He testified that he was cultivating the suit land without any problem. In cross-examination, DW1 stated that he was given 13 gardens/acres. He denied using any land belonging to the respondent. He also denied that in 2018 he attended a dispute resolution meeting of clan leaders. He, however, stated that he signed the General Secretary's Book (PID2) in respect of 09 acres of land left for the girls and the parents. DW1 agreed that he was summoned (to Police) for removing boundary marks. He, however, denied apologizing to the respondent while at Police saying the Police found the respondent's claim to be baseless.

The appellant called a 74 year old Ekejje David as a witness (DW2). Mr. Ekejje was a retired Parish Chief. He stated that the dispute relates to about two

gardens. The land initially belonged to the father of the parties but in 2014 the father gave it to the appellant. DW2 was present during the land distribution and land was given to the appellant and brothers. Only boys were given land. Girls were not given land. The appellant and his brothers each received 13 gardens. A document was written to confirm the land distribution. Okuc Fred was the author. DW2 signed it. The respondent also signed it and so did the appellant. Boundary marks were planted to demarcate each son's land. DW2 and others dug holes and gave each son time to plant natural boundaries. This court notes that the trial court observed that DW2 identified his name and signature on a document dated 11 October, 2014 which the court marked DID1 pending English translation from the luo version. In response to court question, DW2 confirmed to the trial court that he had failed to see the respondent's signature on DID1. He also confirmed he did not attend the 2012 land distribution. In cross examination by the respondent, DW2 conceded he was clan chief from another clan. He, however, insisted he was invited by the clan chief of the parties' clan to attend the meeting. He also insisted that the respondent was not given land by her father.

DW3 Okori Moses, a 70 year old and a brother to Ogwal Lawrenti was the last defence witness. He stated that the suit land belong to the appellant having been given by Mr. Lawrenti on 11 October 2014 in the presence of the witness. According to DW3, the appellant was given 13 acres. The respondent was not

given any land. Omara-Omara trees were planted around each beneficiary's land. Opuc Fred documented the distribution. Both parties signed and so did DW3. On record, the trial court noted that DW3 identified his signature on a document dated 11 October 2014 (DID1). In cross examination, DW3 claimed he attended the land distribution function having been invited by Mr. Lawrenti and it was Mr. Lawrenti who was distributing land. DW3 also testified that after the 2014 land distribution, nine acres of land were left undistributed which remained for Mr. Lawrenti and the girls. The witness insisted that all the children of Mr. Lawrenti were present.

After the close of the defence, the trial court visited the suit land. I will address this later underground one.

From the totality of the evidence, it is very clear that the appellant does not dispute the 2012 land distribution by his father. His only problem is that the distribution was done in his absence and in the absence of other siblings. He also does not deny that out of the 2012 distribution he was given some land. Whereas some witnesses put it at thirteen gardens, elsewhere it appears they were nine. The appellant claims because of their absence during the distribution exercise, the distribution was fraudulent and was nullified by court. Fraud of course is such a serious matter and the suggestion that the 2012 land distribution was annulled in an earlier judicial proceedings should have been

proved in evidence. Here the appellant did not adduce evidence to prove the alleged nullification. He does not give details of the proceedings and court that allegedly nullified the 2012 land distribution. It is written in **Halsbury's Laws of England, Civil Procedure, Vol. 12 (2020), at paragraph 698** that in respect of a particular allegation the burden of proof lies on a party for whom the substantiation of that particular allegation is an essential component of his case. Thus the evidential burden (burden of adducing evidence) only shifts to the opposite party once the allegations have been established by the person alleging or claiming. In the present case, the appellant failed to prove the alleged cancellation of the 2012 land distribution.

I note that from the 2012 distribution, the appellant received more land than his sisters who each received only three gardens. The evidence show they were four sisters two of whom had returned home from their marriages. Whereas this court cannot question Mr. Lawrenti's wisdom given the autonomy to distribute his landed property as he wished, the girls have not complained. It is, therefore, bizarre that the appellant could claim his father was out of order and that he acted fraudulently. His complaint was, in my judgment, baseless. The appellant had no basis for ignoring the advice of his father that the appellant goes to the clan head who would show him his share. Whether he was given thirteen or nine gardens, the appellant was quite unreasonable in his demands and actions. The unappreciative conduct was uncalled for in light of the father's magnanimity and wisdom. Property law works on the premise that there is private autonomy in

property transactions. So individuals are viewed as possessed of power to effect changes in their legal relations to property which power is a fundamental incident of owning property. Private autonomy imports a sense of freedom of disposition of property. As the land owner, I think Mr. Lawrenti had the power to dispose of it. And that right is protected by article 26 (1) of the Constitution of Uganda, 1995 which provides: **"Every person has a right to own property either individually or in association with others."** Inherent in the constitutional right to land ownership is the right to dispose of one's property. The disposal right may of course not apply to property already lost under article 26 (2) of the Constitution where it has been compulsorily taken by Government in accordance with the constitutional requirements, or where for instance, the property is already attached through a court process by a creditor in satisfaction of judgment debt and has not been set aside, or where property is attached in exercise of statutory power of sale under, for example, mortgage arrangements or in insolvency proceedings. Dispositive powers may also not be available in respect of family land under section 40 (1) (c) of the Land Act Cap 236 where a spouse seeks to give family land away as a gift *inter vivos* without the consent of the other spouse. Family land, according to section 39 (4) of Cap 236 is where the family ordinarily reside and derive sustenance or land which is treated as such according to the norms, culture, traditions or religion of the family. For related discussions on family land, see: **Ojwik Vs. Akello, Misc. Application No. 42 of 2022 [2025] UG HC 13 at p.24**

Turning to the alleged 2014 land re-distribution, unfortunately, the same was not proved by the appellant on the balance of probability. First, DID1 was not admitted in evidence as exhibit. The defence witnesses who claim Mr. Lawrenti initiated and concluded the distribution and indeed invited them to witness it, with respect, were not supported by any other family member of Mr. Lawrenti. It is quite sad that Mr. Lawrenti died in April, 2020 before the parties could adduce evidence in the matter a year later. Had he lived Mr. Lawrenti perhaps might have shed light on the contestations. His demise, however, does not mean the real truth was incapable of being unparked from the sea of stories. I note the importance both sides attached to the identification documents to support their respective claims. But as noted, the documents were not translated to English and remained mere identification documents with no relevance in legal proof. In hindsight, I think being a significant matter under contest, the trial court ought to have assisted the self-represented lay litigants to have the documents translated by the clerk of court who doubled as the court interpreter. This to my mind would not, in the circumstances, have tantamount to the court descending into the arena of litigation or conducting the case for the parties. Courts are allowed to exercise some flexibility in adjudication where lay litigants are unrepresented. See: **Otto Justine Vs. Tabu Richard, Civil Appeal No. 23 of 2015 (HCT)**; **Obua Vincent Vs. Okot Albino & 2 Others, Civil Appeal No. 52 of 2017 (HCT)**; **Odoch Jenasio Vs. Okot Ceasar & 3 others, Civil Appeal No. 008 of 2018 (HCT).**

I appreciate that the language of court is English and all evidence must be recorded in English under section 88 of the Civil Procedure Act Cap 282 as explicated in **Godfrey Katunda Vs. Betty Atuhaire Bwesharire, HCMA No. 185/2004** by Mugamba J (as he then was). However, in the case instant, a translation of the documents from luo under the superintendence of the trial court would have plugged the gap. The learned trial Magistrate, with respect, simply ignored the documents. While she was right because the law supports her decision, as noted, the court ought to have acted more proactively to do justice by accommodating the lay litigants. Whereas the court cited no authority for decision, I think the dictum in **Namusisi and others v Ntabaazi [2006] 1 EA 247 (SCU)** supports her. There, the majority stated:

**"After that ruling the defence abandoned DW2 as a witness. So the (transfer) instruments were not tendered in evidence. I do not with respect appreciate how the learned Justices of Appeal could look at and rely on documents not admitted in evidence at the trial to bolster the respondent's case. A situation similar to this arose in Dhanji Ramiji v Malde Timba [1970] EA 422. An appellant was cross-examined on an affidavit at the trial but the affidavit was not admitted in evidence. On appeal in the East Africa Court of Appeal, appellant's counsel sought to rely on that affidavit to support appellant's case. The East Africa Court of Appeal held that it could not look at the affidavit as it was not part of the evidence at the trial."** (Underlining is mine.)

That said, I have noted that in his account, the appellant never disputed the fact that PID1 bore the detailed distribution of 2012. And as noted, the appellant's only complaint was that he was absent during that exercise. I think that is why the appellant conjured the view that the distribution was annulled whereas not. Regarding DID1 which is an alleged document of land redistribution done in 2014, I note the defence concession that DID1 does not bear the respondent's signature. Although this court is not permitted to rely on the identification documents as they were never admitted in evidence by the trial court, I should, however, state for the record that I gleaned through them and wish to say had they been translated to English and admitted in evidence, the appellant's own document, and the respondent's documents, respectively, would have been so adverse to the appellant's case that perhaps he might not have been complaining. The appellant's own document is clear that the 2014 purported land redistribution by his father was actually not done by Mr. Lawrenti but by a one Tila Fideli who was said to have been the clan head as some defence witnesses spoke about. Significantly, Mr. Lawrenti never authorized Mr. Fideli and so the latter had no autonomy whatsoever over Mr. Lawrenti's property and could not thus purport to re-distribute in the absence of a court order or Mr. Lawrenti's express authorization, consent and approval. DID1 would have been more disastrous to the appellant because it shows that as Mr. Fideli was on 11 October, 2014 purporting to exercise the powers he lacked, Mr. Lawrenti and some of his children namely Opuch Patrick, Omara Jacob, Obura Robby and

Apili Sarah (the respondent) stormed out of the meeting. I am thus not far off to opine that perhaps the appellant knew the real dangers of having DID1 admitted in evidence as he understood luo and so found no need of having it translated in the language of court. In the circumstances, no prejudice was occasioned to either party by the decision of the trial court not to assist the parties in relation to the identification documents.

Before I take leave of the issue, whereas PID1 remained in Luo language, during my perusal of the appeal file, I surprisingly saw a translated copy of PID1 done by the clerk of the trial court and purportedly on 25 March, 2021 which was a day before PW5 (Odongo Alfred) testified. I strongly doubt that the document was translated on the date purported because had that been the case the document should have been brought to trial court's attention and marked as exhibit by the court. In the circumstances, I agree with the learned trial Magistrate that all the identification documents were not translated in English. The trial court was correct not to consider the identification documents in the evaluation of evidence before it. That being the case, I agree with the findings and conclusions reached by the trial court that the respondent was able to prove her case on the balance of probability. The trial court's findings are bolstered by the oral evidence on record which I have alluded to. However, for emphasis, aside from admitting in his pleading and evidence that his father distributed his landed property in 2012, the appellant accepts that he was summoned to Police for removing the boundary marks planted by his sister around the suit land. Therefore, his

contrary claim that he occupied the suit land without any qualm was rather dishonest because the sister challenged the appellant's actions from the very start and all the way through to court. The appellant also admits signing the General Secretary's Book (DID2). Although that document was not admitted in evidence, it has on the last page an "attendance list". And having perused DID2, I should similarly say that had it been translated into English and admitted as an exhibit, the document would have proved that during a family meeting with the clan leaders on 22 October, 2018, Mr. Lawrenti was categorical that the appellant trespassed on the three gardens of Apili Sarah-the respondent and when restrained he turned violent against Mr. Lawrenti. The document would have also shown that at the end of the meeting, it was agreed that the appellant vacates the suit land and that Ms. Apili pays him shs. 60,000 for the expenses he might have incurred in clearing it. These revelations from DID2, interestingly, are consistent with the oral evidence received by the trial court. In conclusion, therefore, I should state that the appellant and his witnesses did not controvert the 2012 land distribution by Mr. Lawrenti. I thus read with surprise the straight lie by DW2 that no daughter of Mr. Lawrenti was given land. This witness, however, failed to identify the respondent's name on the purported 2014 land redistribution document. DW2 also appears to be completely unknowledgeable about the whole matter when he says the disputed land is approximately two gardens. On the other hand, DW3 went a notch higher by claiming that the respondent signed the 2014 land re-distribution document wherein she was getting nothing and yet his colleague (DW2) had conceded to the contrary. In the

later cross examination, DW3 was to claim that only nine acres of land were left for Mr. Lawrenti, his wives, and four daughters two of whom had returned home after marriage and that included the respondent. I think I have said a lot about the matter. In a nutshell. it is my finding that the appellant failed to prove his claim.

Let me comment briefly on the trial court's factual finding that all defence witnesses were neighbours and could not be believable more than the clan leaders who testified for the respondent. With respect, I am unable to agree with the so-called factual finding because no evidence is there to support it. On the contrary, DW2 was an in law to the parties having married their sister while DW3 was a brother to Mr. Lawrenti. They were, therefore, close witnesses to the family and not mere neighbours. I also think the notion that clan leaders were capable of telling the truth more than mere neighbours is not only wrong but dangerous because the credibility of witnesses is not pegged on relationships. That said, the factual error of the trial court is not significant because, on the evidence, the defence witnesses were not credible on the fundamental aspect of the case. I say so not because they were not clan members but because they were not conversant with some key facts such as the 2012 land distribution by Mr. Lawrenti. I, therefore, agree with the trial court when it disbelieved the appellant and his witnesses and when it found the respondent and her witnesses credible.

Without detracting from the finding of the trial court on the credibility of witnesses, I read a few instances of contradictions in some aspects of witnesses' accounts. The contradictions related to who the neighbours to the suit land were. This is evident in the testimony of PW1, PW2 and PW3 while PW4 and PW5 did not know who the neighbours were. I note a further contradiction regarding the year the appellant is said to have trespassed on the suit land. Whereas PW3 says it was in 2018 the rest of the witnesses maintain 2012. As to the year Mr. Lawrenti distributed land to his children, whereas the rest of the respondent's witnesses mentioned 2012, PW4 said land was distributed on 22 August, 2018. That said, it is my judgment that these inconsistencies and contradictions are minor and thus inconsequential. Whereas some aspects of the testimonies are not fundamental as they did not go to the fact of who owns the suit land especially the details of neighbors, the rest of the contradictions appear to defeat a conceded fact that that the suit land was part of what Mr. Lawrenti distributed in 2012. The law is that when faced with conflict of evidence on a material issue which could affect substantially the outcome of an action, the court should, in order to resolve the question of which witness is honest and which one is dishonest, or which is reliable or unreliable, look at what the common ground between the parties are/ is by looking at their pleadings. Thus what the pleadings have identified as not at issue will be incontrovertible. See: **Dale Piper Vs. Mark Hales [2013] EW HC B1 (QB)** cited with approval in **Agatha Kalanzi Vs. Milly Katongole & Another, Civil Appeal No. 047 of 2019 [2025] UG CA 78.** In the instant case, on the pleadings and the evidence, the appellant

accepted that their father distributed his land in 2012 on a day he was absent. (See page 15 of the record and paragraph 6 of the written statement of defence.) This admission was quite telling. Thus although the propriety of the distribution is impugned by the appellant when he calls it a fraud, he did not prove it. For the reasons stated, the contradictions in the respondent's evidence are inconsequential. I noted other inconsistencies regarding the year the trespass is said to have happened. Two witnesses for the respondent (PW4 and PW5) said it was in 2018 while the rest spoke about 2012. The apparent contradictions are in fact not real because the evidence show that whereas the appellant encroached on his sister's land in November, 2012, the trespass continued throughout the later years. PW4 and PW5 were testifying to the event of 2018 when they tried to resolve the impasse. They walked around the land boundary and noted the trespass by the appellant. I think the so-called contradictions should be looked at in that context. Both witnesses were clan chief and clan general secretary, respectively. In any case, the appellant boasted in cross examination that he was using the suit land as at the time of his testimony in 2021. He was of course not honest when he says he was using it without any problem. His use was challenged by the respondent. I note the appellant's denial of attending any dispute settlement meeting in 2018 but at the same time, he admitted signing the General Secretary's book (PID2 which was tendered for identification through PW5). Albeit not received in evidence, PID2 sought to speak to the dispute settlement attempts by the clan. The attendance list which

is an embodiment of the document was written in English and placed the appellant at the clan meeting.

In conclusion, having evaluated the oral evidence on record, I find the inconsistencies and contradictions to be minor. On the contrary, the appellant and his witnesses lacked credibility on the fundamental matters. I say so because their testimonies on critical issues quite conflicted with what was admitted in the appellant's pleading. I think their motive were to speak to what they knew nothing about as DW2 and DW3, for example, did not know about the 2012 land distribution by Mr. Lawrenti. DW2 did not know how much of the land was in dispute. He said two gardens. Both DW2 and DW3 in fact concede they were not in attendance during the 2012 land distribution by Mr. Lawrenti. In **Dale Piper Vs. Mark Hales [2013] EW HC B1 (QB)** the case of **Grace Shipping Vs. Sharp & Co. [1987] 1 Lloyds Law Rep. 207 at p.215-6** was cited. In the latter case, **Armagas Ltd Vs. Mundogas S. A (The Ocean Frost) [1985] 1 Lloyds Rep. 1, at p.57** was followed where a member of the court had said:

**"Speaking from my own experience, I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not,**

**and where there is a conflict of evidence as it was in the present case, reference to the objective facts and documents, to the witnesses' motives, and to the overall probabilities, can be of very great assistance to a Judge in ascertaining the truth."** (Underlining is for emphasis.)

For the reasons given, I agree with the evaluation of the evidence by the learned trial Magistrate and ground 2 ought to fail.

The first ground of appeal as I could decipher is that, the trial court visited the suit land in the absence of the respondent's witnesses who were denied the chance to point out the areas they had testified about in court. The other limb of the ground is that the respondent failed to show the exact boundary of the land at the locus. This ground, I must say, with respect, was framed without seriousness. The respondent is not complaining about anything and much less the locus proceedings. She has not appealed. I wonder why the appellant appears to be complaining on her behalf. The respondent had the autonomy to choose whether her witnesses who had attended court should attend the locus hearing or not. Having opted not to call them at the locus, the appellant cannot complain about it. The record of the trial court is also clear that a notice of the locus visit was issued by court and addressed to the parties. It was dated 18 October, 2021 requiring the parties and their witnesses, if available, to attend the locus hearing on 25 December, 2021. Of course I believe the Christmas day was mentioned in the notice in error because the record of the locus sitting shows the court

conducted the locus visit on 25 November, 2021 which only the parties attended. They appear to have decided not to call their witnesses who had testified in court. The record shows that the respondent showed the court the land boundary. The trial court noted that the appellant accepted the boundary save the aspect of who the southern neighbor was. Court also recorded that the appellant claims to own the land visited and shown by the respondent. Both parties cross examined each other. The trial court went on to record its independent observations noting that the suit land was partly cultivated and partly used for grazing cattle, and the southern boundary had elephant grass, among other observations.

In his submission, learned counsel for the appellant digressed, contending that, none of the appellant's witnesses were mentioned at the locus or given an opportunity to verify their testimony which he claims was in violation of the established procedure for carrying out the locus in quo proceedings hence a miscarriage of justice was occasioned. I note, with respect, first, a very confused start to the submission in which counsel suggests that witnesses for the parties did not attend the locus in quo proceedings. Second, I note the other bit of the submission that witnesses attended but were not recorded. The ultimate arguments which are at cross purposes materially vary from the ground of appeal. Interestingly, the claim that witnesses attended the locus but did not speak, is not supported by the material on record. All in all, I find that the locus

in quo proceedings was conducted in compliance with the practice and principles laid down over the years. See: **Practice Direction No. 1 of 2007** and the cases of **Yeseri Vs. Edisa Lusi Byandala [1982] HCB 28**; **David Acar & 3 Others Vs. Alfred Acar Aliro [1982] HCB 60**; **Bongole Geoffrey & Others Vs. Agnes Nakiwala, CACA No.0076 of 2015**. For a broader discussion of the subject, see: **A presentation by the Learned Author, Joseph Kyazze on "The Law, Procedure and Practice of Locus In quo in Land Litigation" 09th UJOA-JTI DAILOGUE SERIES held on 17th May 2023.**

In conclusion, I find no merit in the complaint and ground 1 is dismissed.

Before I take leave of this appeal, I noted learned counsel's line of argument in which he seeks to impugn the order of a declaration that the appellant is a trespasser. He claims the declaration did not flow from any framed issue on trespass. Learned counsel sought to fault the trial court for finding trespass. With respect, the course taken by learned counsel is wrong. The arguments do not flow from any framed ground of appeal seeking to impugn the particular finding. Moreover, no leave was sought to make the argument which in any case would not avail the matter not being a pure point of law. In any case there is no basis for faulting the trial court given the overwhelming evidence of trespass. The appellant is shown to have entered the respondent's land without her authorization well aware that she had been given by her father, and demarcated

and ploughed it. He brazenly pulled down the boundary trees and started using the suit land. This was a pleaded matter and a declaration of ownership was prayed for by the respondent. She also prayed that the appellant be declared a trespasser and that an order of eviction issues. At the scheduling conference, trespass featured in the respondent's statement of the case. The trial court cannot, therefore, be faulted for the findings. The trial court's finding of trespass flowed from its affirmative finding of land ownership for the respondent with the consequence that the appellant who had failed to prove his purported claim was held a trespasser. Thus not expressly framing trespass as an issue could not by itself stop the trial court, as a matter of judicial responsibility, from making the affirmative declaration and issuing the appropriate reliefs which had been pleaded.

Both grounds having failed, the appeal is dismissed with costs. I should observe that, had the conduct of the appellant towards his step sister been civil, and had he listened to the wisdom of his father and the clan elders and the local authorities and the Police, litigation would have been avoided. And whereas courts have held that in as far as possible, in a family dispute, parties should be ordered to meet their own costs to encourage reconciliation (**Okwonga George & another Vs. Okello James Harrison, Misc. Application No. 132 of 2021**), I should say that is the exception to the law that costs follow the event but there must be good reason to deny a successful party costs of litigation of course

depending on the facts and circumstances of each case. Any costs denial must also be judicious and with good reason, otherwise, costs always follow the event in line with section 27 (2) of the Civil Procedure Act. See: **Jennifer Behingye & 2 Ors Vs. School Outfitters (U) Ltd, CACA No. 53 of 1999 (UR)**; **Francis Butagira Vs. Deborah Namukasa, Civil Appeal No. 6 of 1989 (SCU)**. It is thus for the given reasons that costs of this appeal shall be paid by the appellant to the respondent. I uphold the decree and the orders of the Magistrate Grade One H/W Kaibei Cherotic save that the costs of the trial court shall be limited to disbursements only as the respondent was self-represented before that court. The disbursements shall instead attract interest of 6% per annum from the date of taxation by the trial court and not the 8% per annum given by that court from the date of its Judgment. This is because although interest is conventionally not awarded on costs, it was not illegal for the trial court to award it because section 27 (3) of the Civil Procedure Act Cap 282 allows for it although the rate must not exceed 6% per annum and in my view, interest on costs if awarded, should accrue from the date of taxation not the date of judgment because a clear amount only gets known after taxation. So in this case, interest of 8% on costs was illegal as it exceeded the 6 % statutory capping which this court could not ignore. See: **Makula International Ltd Vs. His Emminence Cardinal Nsubuga and Dr. Kyeyune, Civil Appeal No. 4 of 1981 [1982] UGSC**

On interest award on costs, see also the decision in **Okello Michael Vs. Anywar Quinto, HCCS NO. 17 of 2021.** However, in this appeal, as decreed by the trial court, the general damages awarded shall continue to attract the 8% interest per annum from the date of the trial court's judgment till full payment. In conclusion, with the modifications, the awards of the trial court are upheld and shall be complied with by the appellant in totality.

It is so ordered.

Dated, signed and delivered this…8th.. May, 2025

George Okello JUDGE

9:25am

08/05/2025

## **Attendance**

Mr. Alex Adupa, counsel for the appellant present

Ms. Hope Lydia Abeja, counsel for the respondent present

Appellant in court

Respondent absent

Mr. Esau Opio, Court clerk

George Okello JUDGE