Okan v Kaahwa (Civil Appeal 6 of 2023) [2023] UGHCLD 333 (15 September 2023)

#### THE REPUBLIC OF UGANDA

#### IN THE HIGH COURT OF UGANDA AT HOIMA

CIVIL APPEAL NO. 006 OF 2023

(*Formerly Masindi Civil Appeal No. 064 of 2021*) (Arising from Masindi Civil Suit No. 009 of 2020)

OKAN JACKSON:::::::::::::::::::::::::::::::::::: **VERSUS**

KAAHWA FRANCIS RESPONDENT

Before: Hon. Justice Byaruhanga Jesse Rugyema

# Judgment

This is an Appeal from the Judgment of His Worship **Ssejemba** $[1]$ Moses, Chief Magistrate of Masindi dated 10<sup>th</sup> December, 2021.

#### **Facts of the Appeal**

- $[2]$ The Respondent/ Plaintiff filed $\mathbf{a}$ suit against the Appellant/Defendant for trespass and a declaration that the Respondent was the lawful owner of land situate at **Beroya** village, Buliisa Sub-county, Buliisa District (the suit land) and a permanent injunction restraining the Appellant from entering or in any way interfering with the Plaintiff's enjoyment and possession of the suit land. - It was the Respondent's case that on 8<sup>th</sup> August, 2010, he $[3]$ purchased the suit land measuring approximately 6 acres from

one Onegiu Jedhome and that since purchase, he has been in possession of the land cultivating food crops thereon until sometime in April, 2019 when the Defendant without any claim of right and without the Respondent's consent entered onto part of the suit land and started illegally cultivating crops thereon thereby depriving the Respondent of the use and enjoyment of his land.

- The Appellant/Defendant on the other hand averred and $[4]$ contended that the Respondent/Plaintiff bought the suit land from a wrong party, whom he described as a "thief" who had no authority to sell the land as it did not belong to him and therefore, the Respondent should revert to him for refund of the purchase price. - Upon evaluation of the evidence that was presented by the parties $[5]$ before him, the trial Chief Magistrate found that the Respondent purchased the suit land from **Onegiu Jedhone** who had a right in the land by way of inheritance from his parents a one **Ephraim** and Siporah and that there was no evidence to support the Appellant's claim that he was either gifted/donated land by his auntie **Apio Everlyne** or that the said **Apio Everlyne** ever owned the land. He held that the Respondent was the lawful owner of the suit land and the Appellant was a trespasser thereon. - The Appellant was dissatisfied with the Judgment of the trial Chief $[6]$ Magistrate upon which he lodged the present Appeal on the following grounds.

$\mathsf{2}$

- The learned trial Magistrate erred in law and in fact when $\cdot 1\,.$ he wrongly evaluated the evidence and as a result made wrong findings on the issues in the case. - The learned trial Magistrate erred in law and in fact when $2.$ he misdirected himself on the principles of law namely, the burden and standard of proof. - The learned trial Magistrate erred in law and in fact by 3. failing to conduct a proper locus thereby coming to a wrong conclusion amounting to miscarriage of justice.

### **Counsel legal representation**

- The Appellant was represented by Mr. Adopa Alex of Ms. Etum & $[7]$ **Co. Advocates, Lira** while the Respondent was represented by Mr. Lou Jarvis of Ms. Kiwuuwa & Co. Advocates, Kampala. Both submissions $\overline{f}$ or Counsel filed their respective written consideration of this Court in the determination of this Appeal. - Both Counsel argued grounds 1 and 2 together because both [8] grounds relate to how the trial Court evaluated the evidence before it and whether it properly applied the burden and standard of proof. In the premises I shall equally deal with grounds 1 and 2 together and then ground 3 separately.

## **Preliminary Objection**

Counsel for the Respondent raised a preliminary to the effect that [9] the Appellant's grounds of Appeal offended the provisions of 0.43 rr 1 & 2 CPR which require a Memorandum of Appeal to set forth concisely the grounds of the objection to the decision appeared against. Relying on the authority of Nyero Jema Vs. Olweny Jacob & Ors, H. C. C. A. No. 050 of 2018, Gulu, Counsel sought for the striking out and or dismissal of the appeal for the Appellant's failure to comply with the Rules which compel him to clearly set out his grievance against the trial Court's findings.

- [10] Counsel for the Appellant did not respond to the objection by way of any submissions in rejoinder. - [11] I agree, the law under **0.43 rr 1 & 2CPR** require a Memorandum of Appeal to set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative, and the grounds should be numbered consecutively. - [12] In Nyero Jema Vs. Olweny Jacob & Ors (Supra) Court observed that:

"Properly framed grounds of appeal should specifically point out errors observed in the course of the trial, including the decision, which the appellant believes occasioned a *miscarriage of justice".*

Upon perusal of the 3 grounds of appeal in the instant case, I find that indeed the grounds specifically pointed out errors observed in the course of the trial i.e., evaluation of evidence in relation to issues in the case and the application of the burden and standard of proof. Then lastly, the trial Chief Magistrate's conduct of the locus in quo which in the Appellant's view was erroneous and led to a wrong conclusion amounting to a miscarriage of justice.

- [13] I find that the Appellant's framing of the grounds of appeal complied with the provisions of O.43 rr 1 & 2 CPR for the Memorandum of Appeal set forth concisely the grounds of objection to the decision appealed against under distinct heads and were numbered consecutively. The grounds are neither argumentative nor narrative. It specified the points which are alleged to have been wrongly decided and the proposed orders for Court to make. - In the premises, I find the preliminary objection devoid of any $[14]$ merit and it is accordingly dismissed.

# **Merits of the Appeal**

Grounds 1 & 2:

- The learned trial Magistrate erred in law and in fact $(a)$ when he wrongly evaluated the evidence and as a result made wrong findings on the issues in the case. - The learned trial Magistrate erred in law and in fact $(b)$ when he misdirected himself on the principles of law namely, the burden and standard of proof. - [15] The duty of this Court as the first appellate Court is well settled. It is to evaluate all the evidence which was adduced before the trial Court and to arrive at its own conclusions as to whether the finding of the trial Court can be supported: Fredrick J. K. Zabwe s. Orient Bank & 5 Ors S. C. C. A, No. 04 of 2005. - [16] On the burden and Standard of Proof, in Civil suits it lies with the Plaintiff who has to prove his or her case and the standard of

proof is on the balance of probabilities; Sebuliba Vs. Co-operative Bank Ltd [1982] HCB 130. S.103 of the Evidence Act is to the effect that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. He who asserts must prove, see also Jovelyn Barugahare Vs. A. G., S. C. C. A. No. 28 of 1993.

- [17] In the instant case, in his bid to prove his case that he is the lawful owner of the suit land, the Respondent/Plaintiff pleaded and testified that he acquired the suit land measuring 6 acres situate at Beroya village, Buliisa Sub-county, Buliisa District from Jedhome (Pw2) and a one Jackson Ongeyi as per his purchase agreement dated 8<sup>th</sup> August, 2010 exhibited and admitted in evidence as **P. Exh.1**. Thereafter, he took possession of the land by putting a caretaker by the names of Kaahwa Bayi, an elder in the area, then later in 2012 placed thereon, a one Kolis (Pw3) and a one Benja who carried out cultivation of crops, mainly cassava on the land thereof. - [18] It was his further evidence that from 2010 when he, the Respondent purchased the suit land, nobody came up with any claim $over$ the until 2018/2019, when suit land the Appellant/Defendant came on to the land and destroyed the caretakers' crops and planted his own crops. - [19] During cross examination, the Respondent explained that before purchase, there were 2 built structures on the land where the seller, Jedhome lived. It was his homestead.

$\mathsf{6}$

- [20] **Onegiu Jedhome** (Pw2), the vendor, explained in his evidence that he was born and lived on the suit land with his family who included his mother, a one Siporah and auntie Apio Everlyne who were killed in the fire when their huts were set on fire for it was thought, there was oil under the land because the Chinese had placed some metallic structure on the land. It is a one Okaba **Japielo**, his uncle who is also grandfather to the Appellant who is suspected to had killed his mother and auntie in the fire that gutted their huts. According to him, the Appellant had no claim over the land save for greed arising from expectation that there was oil for exploration. His father who died when he was young was buried on the suit land. That he had to sell the land save his life from those who killed his mother for the land. - [21] Both Pw1 and Pw2's evidence was corroborated by that of Kolis (Pw3) and Okumu Peter (Pw4), a Catholic Catechist who had been the area L. C. I Chairperson from 1993 to 2017. According to him (Pw4), an Oil Company found oil on the land and placed thereon a signpost. This is what sparked the scramble for this land. - The Appellant/Defendant on the other hand testified that the land $[22]$ was donated to him in 1996 by his auntie Apio Everlyne, his grandfather's sister in the presence of elders when he was 12 years of age. - [23] The elders named to had witnessed the donation of the land by Apio Everline to the Appellant were Bikobo Boniface (Dw2) and Okaba Japielo. (Dw3). - [24] It was the further evidence of the Appellant (Dw1), Dw2 and Dw3 that during the absence of the Appellant who had gone to the lake shore for business (at Kityebere), his auntie Apio Everlyn who had donated the suit land to him left the land for marriage in Oribo village where she was burnt to death in the house with her sister Siporah, the mother of the vendor (Pw2) who had come to visit her.

[25] However **O.6 r 10 CPR** provides thus as regards defence pleadings:

> "When a party in any pleading denies an allegation of fact in the previous pleading of the opposite party, he or she must not do so evasively, but answer the point of substance. Thus, if it is alleged that he or she received a certain sum of money, it shall not be sufficient to deny that he or she received that particular amount but he or she must deny that he or she received that sum or any part fit or else set out how much he or she received. If the allegation is made with diverse circumstances, it shall not be sufficient to deny it along with those circumstances".

[26] In other words, as explained in **Odgers Principles of pleading** and practice, 22<sup>nd</sup> Edition, at page 136

> "It is not sufficient for a Defendant in his defence to deny generally the allegation in the statement of claim ..... each party must traverse specifically each allegation of fact which he does not intend to admit. The party pleading must make it clear how much of his opponent's case he disputes".

[27] In Namadashanker M. Joshi Vs. Uganda Sugar Factory Ltd H. C. C. A No. 16 of 1968, Spry J. A. explained that what is expected

of the Defendant is to furnish particulars where he is making a positive averment and to plead facts on which he seeks to defend himself to avoid surprises during trial.

- [28] In the instant case, whereas the Respondent/Plaintiff pleaded that he is the lawful owner of the suit land having purchased it from a one Onegiu Jedhone as per the purchase agreement dated $8^{\rm th}$ August 2010 (PExh.1), the Appellant/Defendant in his defence, merely denied generally the grounds alleged by the Respondent's Plaint thus rendered his Witness Statement of Defence evasive which offends **O.6 r 10 CPR**. The appellant did not plead any facts on which he sought to defend himself that he is the rightful owner of the suit land. - [29] As a result, the Appellant adduced evidence in Court which departed from his pleadings which was merely a general denial thus offending **O.6 r 7 CPR**. In this case therefore, the Appellant having been merely evasive in his defence, he could not lead or adduce evidence that he acquired the suit land by way of donation from his auntie **Apio Everlyne**, a fact he never pleaded. It is as if the Appellant's led evidence in Court was a mere afterthought. - No wonder the trial Chief Magistrate preferred the Respondent's $[30]$ evidence to that of the Appellant. There is no credible evidence that the said Apio Everlyne donated the suit land to the Appellant. Whereas the Appellant during cross examination claimed that the land was not donated to him in secrecy because all neighbours were aware, none of the neighbours were presented and testified to support this claim. Instead, Okaba (Dw3) his grandfather who is suspected to had been behind the burning of his mother and

his auntie Apio Everlyne in the house because of the land stated during cross examination that during the donation of the suit land to the Appellant, none of his siblings were present but only his children. That it was not necessary to invite outsiders. "The affair was for the family".

- [31] From the above excerpt evidence of Dw3, it could therefore not have been the case that neighbours were aware of the alleged gift/donation of the suit land to the Appellant as his Counsel submitted. - [32] As regards a one "Ongeyi Jackson's" status, I have carefully perused the evidence of the vendor Jedhone (Pw2), no where did he state that the said **Ongeyi Jackson** was the Appellant's father. During cross examination, he revealed that:

## "We lived with Ongeyi Jackson".

At locus, he explained that Ongeyi Jackson was an uncle to the Appellant. It is Okumu Peter (Pw4), who referred to "Ongeyi as the father of the Appellant during cross examination. It is my view that Okumu Peter (Pw4) not being a member of the family could have wrongly referred to Ongeyi Jackson as the father of the Appellant since as the Appellant testified, his father Ongeyi William died long time ago in 1988 and therefore, could not have been the "Ongeyi Jackson" referred in the Respondent's purchase agreement of 2010 (P. Exh.1). In any case, an "uncle" of a person can be referred to as "father" of the person.

[33] In the premises, I do find that the referral of "**Ongeyi Jackson** by Pw4 as the father of the Appellant is neither a contradiction nor

an inconsistency detrimental to the case of the Respondent. It was a minor mix up of names that was explained by **Pw2** at locus, when he said that the said Ongeyi Jackson was an uncle to the Appellant. The Appellant did not explicitly deny this by cross examining Pw2 at locus thus this Court is entitled to take it so.

$\overline{a}$

In conclusion, I find that the trial Chief Magistrate generally $[34]$ evaluated the evidence before him properly and on the balance of probabilities, found that the Respondent proved his case that he was the rightful owner of the suit land and that Appellant was a trespasser thereon.

> Issue No. $3$ : The learned trial Magistrate erred in law and fact by failing to conduct a proper locus thereby coming to a wrona conclusion amounting to a miscarriage of justice.

- [35] In the $1^{st}$ instance, there is no contradiction in the evidence of **Pw2** who sold the suit land to the Respondent when in evidence he stated that his father was buried on the suit land and then at locus, stating that his father died in the Game park. Whereas in Court Pw2 stated that his father was buried on the suit land, at locus, he repeated the same but only explained that his father died in the National Park and it is his clothes which were buried on the suit land. This is not a contradiction as Counsel for the Appellant argued. - [36] The complaint that the trial Magistrate heard evidence of 2 witnesses Avoki Emmanuel and Rose Bahemurwaki who never testified in Court thus gross misdirection, I find that Court

referred to them as Court witnesses arising from the fact that Jedhone (Pw2) the vendor of the suit land referred to Avoki **Emmanuel** as the one who could clarify how his mother **Siporah** acquired the suit land and indeed Avoki explained that it was his father a one **Daudi Anyolito** who sold the suit land to **Siporah** and her husband (Respondent's parents) while Rose Bahemurwaki testified upon having been referred to by the Appellant to clarify the Appellant's case. I therefore in the premises don't see any prejudice that occasioned the Appellant. In any case, exclusive of the evidence at locus, the evidence adduced in Court was still sufficient to dispose of the suit in favour of the Respondent.

[37] As regards whether the Court visited locus and recorded the proceedings, I find that the record of locus proceedings were not typed. The hand written script however show that locus visit took place on 15<sup>th</sup> September, 2021 at Beroya village, Kisiabi Parish, Buliisa Sub-County, Buliisa District and both parties were in attendance. The parties and witnesses were examined and cross examined on oath. Though the record missed the observations, of the trial Magistrate, the sketch map and reflection of the features of the suit land as required by the Practice Direction No. 1 of 2007, guideline 3, I do not find that this was fatal to the Respondent's case. The drawing of a sketch map/plan is not mandatory in all cases of locus and it is my view that it was not necessary in this case since this was not a conflict over boundaries. Despite the anomalies at locus, the trial Magistrate was still able to check on the evidence as given by the witnesses in Court since each of the parties was able to show him and clarify all the aspects of the suit land.

[38] In conclusion, I find that the trial Chief Magistrate conducted locus visit and his failure to record his own observations and or opinion did not occasion any miscarriage of justice to the Appellant, since in any case, the Respondent had been able to establish his case in Court that he was the rightful owner of the suit land.

$\tilde{\mathcal{C}}$

[39] In the premises, I find all the 3 grounds of appeal devoid of any merit. The Appeal is in the premises dismissed with costs and the lower Court decision is accordingly upheld.

Dated at Hoima this $1.5$ day of **September**, 2023.

Byaruhanga Jesse Rugyema **JUDGE**