Okello v Akello and Another (Civil Appeal 135 of 2021) [2025] UGHC 38 (31 January 2025)

# **THE REPUBLIC OF UGANDA**

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

### **HIGH COURT - CIVIL APPEAL No. 135/2021**

## **(Formerly HIGH COURT GULU - CIVIL APPEAL No. 037/2021)**

# **(ARISING FROM CIVIL SUIT No. 044/2015: THE CHIEF MAGISTRATE'S COURT OF KITGUM HOLDEN AT PATONGO).**

#### **OKELLO THOMAS APPELLANT**

**Versus**

#### **1. AKELLO ROSE**

**2. ABUR MAILINE RESPONDENTS**

#### **BEFORE: HON. MR. JUSTICE PHILIP W. MWAKA.**

#### **JUDGEMENT.**

#### **Introduction and Background.**

[1]. This Appeal was instituted *vide* Memorandum of Appeal filed in this Court on the 21st day of May, 2021. The Appeal is in respect of the Judgment of His Worship Oji Phillips, Magistrate Grade One, Patongo, then Chief Magistrate's Court of Kitgum holden at Patongo delivered on the 23rd April, 2021. The Judgment was delivered in favour of the Defendants now the Respondents and against the Plaintiff now the Appellant. The Lower (Trial) Court determined that the Defendants are the lawful customary owners of the suit land described as being in various portions situate at Orama Central Village and Orama Tebung Village both found in Kal Parish, Patongo Sub County in Agago District said to measure approximately twenty (20) acres - much as no coordinates or survey report was provided to ascertain the specific dimensions, features and acreage.

- [2]. The Trial Court accepted and found the testimony and evidence of the Defendants and their witnesses more probable than the Plaintiff's that they had acquired twenty-six (26) acres of land, including the suit land, in 2003 from their late father in law, Okumu Galdino (Odongo), the father of their husband - Okidi Francis, presumed deceased - upon his demise and had since lived on and cultivated the land without interference. The Plaintiff later begun making claims to the suit land following the death of Okumu Galdino and the abduction of Okidi Francis by Lord's Resistance Army (LRA) insurgents (rebels). The suit land had been given to the late Okumu Galdino by the Plaintiff's mother Regina Akidi (now deceased) – apparently being his sister and thus he was the Plaintiff's maternal uncle. The Trial Court determined that the Defendant(s) (DW1 – Akello Rose) and their witnesses' testimony (DW2 - Odong Akile, DW3 – Miria Adoch and DW4 – Onying Robert) was consistent and corroborated each other in as far as the Defendants acquiring the suit land from their late father in law, Okumu Galdino, upon his death in 2003 whom had in turn been given the land by the Plaintiff's late mother, Regina Akidi, and that their testimony was further also corroborated by the Plaintiff himself, PW1, and his biological sister, PW2 – Apio Milana, in as far as admitting that Okumu Galdino had in fact been given the land by Regina Akidi. The Trial Court determined that the Defendants are the customary owners of the suit land and further that the Defendants could not be trespassers on their own land having found on the first issue that they owned the suit land and as a result of the Plaintiff failing to discharge his required evidentiary burden of proof, the suit was dismissed with costs. The Trial Court, however, did not visit the *Locus in Quo* supposedly due to difficulty in accessing it as well as it was said to be of a scattered nature and in various portions. - [3]. The Plaintiff, now the Appellant, Appealed the decision of the Lower (Trial) Court and raised four (4) grounds of Appeal set out hereunder –

- **i. The Learned Trial Magistrate erred in Law and in fact when he held that the Respondents/Defendants had a cause of action against the Appellant/Plaintiff hence arriving at an erroneous decision.** - **ii. The Learned Trial Magistrate erred in Law and in fact when he did not resolve the matter of whether the Respondents' father was given the land in dispute thus arriving at a wrong decision. (Modified for coherence).** - **iii. The Learned Trial Magistrate erred in Law and in fact when he failed to give reasons for his decision/Judgment arriving at a wrong conclusion.** - **iv. The Learned Trial Magistrate erred in Law and in fact when he failed to examine the period of time the parties acquired the land.** - [4]. The certified Judgment and proceedings of the Lower (Trial) Court were duly provided together with the original file of the Trial Court.

# **Pleadings and Proceedings in the Lower (Trial) Court.**

[5]. The cause of action in the suit in the Trial Court as evidenced by the pleadings – the Plaint filed on the Record of the Court is founded in claims of ownership of and trespass to the suit land variously described as being under customary tenure at Orama Central Village and Orama Tebung Village, Kal Parish, Patongo Sub County in Agago District estimated to measure approximately twenty (20) Acres. The Plaintiff filed the suit on the 9th July, 2015 and avers that the suit land originally belonged to his late father, Awio Binasio, who opened the land for settlement long ago (the year is not specified) when it was vacant and used it together with his family including himself. The Plaintiff avers that he inherited the suit land upon the death of his late father in 1958.

- [6]. It was the Plaintiff's case that the suit land measures approximately twenty (20) acres - of which fourteen (14) acres in dispute are in Orama Tebung Village and six (6) acres in dispute are in Orama Central Village. The neighbours are Kasimiro Ongom to the East, Agee John to the South, Odong Gaudensio to the West and Cipiriano Menya to the North. The Plaintiff avers that Okumu Galdino was given land measuring approximately six (6) acres by himself and his mother, Regina Akidi, to settle on together with his family including the Defendants which he is not claiming. He does not specify the precise location of the land he claims is not in dispute. It is further his case that in 2011, the Defendants entered twenty (20) acres of land and started clearing it to cultivate crops which trespass he reported to the Local Authorities and they were duly cautioned inspite of which they remained adamant in continuing to use the land resulting in this suit. - [7]. The Defendants filed their joint Written Statement of Defence on the 13th July, 2015 denying the Plaintiff's allegations and contesting that the suit land is twenty (20) acres. They contend that they are the Lawful owners of the suit land which was acquired by their late father in law, Okumu Galdino, in 1962 who settled on the land together with family members including Okidi Francis, their husband. It is their case that they inherited the suit land from their husband upon his abduction in July, 2002 by Lord's Resistance Army rebels during the insurgency in Northern Uganda and have since then been using the gardens for cultivation together with their families without interference, of which they are customary owners, and in 2011 the Plaintiff made a false claim and encroached on twenty (20) acres. The neighbours on the suit land are Omenya Cipiriano to the North, Odong Agang DP to the East, Agea John and Alberto Onying to the South and Odong Gaudensio to the West. The Court observes that the description of neighbours here is similar except for the East. - [8]. No Counter-Claim was filed by the Respondents as Defendants at the Trial.

#### **The Appellant's Case and Submissions.**

- [9]. The Appellant filed Submissions on the 11th January, 2024 and submitted as follows – - [10]. On grounds 1, 2 and 3 which were handled jointly; it was his submission whilst reiterating that he inherited the suit land from his late father Awio Binasio - firstly that the Respondents as Defendants did not file a Counter-Claim with their Written Statement of Defence and he introduces the notion obscurely submitting at length that the Respondents are from a different Clan from the late Okumu Galdino (their father in law) hence they could not purport to have customary land in the Villages specified comprising the suit land which is why they failed to Counter-Claim. Much as there was no Counter-Claim presented (and the reasons why are purely speculative) and the issue of land ownership was resolved by the Trial Court in favour of the Respondents, the Court observes that the matter of the Respondents' Clan did not feature at the Trial whatsoever neither by Pleading nor by any evidence led on it. It is also noteworthy that there was no dispute by either of the parties as to the land being of a customary nature – which they each claimed as such and the Learned Trial Magistrate found the Respondents to be owners of. This will be addressed more later. This argument being raised for the first time on Appeal as a novel argument without any evidence having been led on it at Trial is barred in Law and is further barred by virtue of not having been raised as a ground of Appeal, were it even tenable. It is therefore disallowed. **See:**

# **Order 43 Rule 2 of the Civil Procedure Rules, SI 71-1.**

[11]. Secondly, he also obscurely submits that the Respondents did not have a cause of action (being his own to establish) reiterating that the Respondents are from a different Clan which the Court already addressed herein-above and concluding that had the Learned Trial Magistrate properly evaluated the evidence, he would not have declared the Respondents customary owners of the suit land.

- [12]. Thirdly, specifically on ground 3, he again submits and contests the finding that the Respondents are the customary owners of the suit land measuring twenty-six (26) acres on the basis that there was no Counter-Claim stipulating as such and contends that the Trial Magistrate did not address his mind to the Law regarding customary land tenure and also he did not specify which of the Respondents' witnesses corroborated each other. It is his submission that the Learned Trial Magistrate did not give reasons in his Judgment and therefore came to a wrong conclusion as regards ownership by customary tenure. - [13]. In concluding, the Appellant while still dwelling on the Respondents not being from their Clan which line of argument is already disallowed by the Court as not being founded in the pleadings or Trial testimony let alone the grounds of Appeal - lamented the failure of the Trial Court to visit the *Locus in Quo* which he submits affected the determination of which portion of land comprised the suit land and which portions did not. He reiterates that he gave the Respondents' father in law land - now stated as thirteen (13) acres in departure from his pleadings stating that the land area given was six (6) acres - and the Respondents' encroached on ten (10) acres of his land. The Court observes the numerous inconsistencies in the description of and the claimed acreage of the suit land in contest including different iterations stated by the Appellant himself and at the Trial Court including variations of description in the pleadings as twenty (20) acres, in his testimony at Trial as ten (10) gardens or interchangeably ten (10) acres and in his submissions as ten (10) gardens or acres vis-à-vis the land allegedly given. - [14]. It is his prayer that the Appeal is allowed, the Judgment and Orders of the Trial Court are set aside, he is declared the customary owner of the suit land and he is also awarded costs on Appeal and in the Trial Court. - [15]. The Appellant did not address the fourth ground of Appealed which the Court deems as having been abandoned by him.

#### **The Respondents' Case and Submissions.**

- [16]. The Respondents filed Submissions on the 7th February, 2024 and submitted – - [17]. The Respondents firstly submit on a preliminary point of Law that the Grounds of Appeal save for the 1st ground offend the provisions of the Law in regards to framing of Appeals and prayed that they (Grounds 2, 3 and 4) are struck out. It is their case citing **Order 43 Rules 1 and 2 of the Civil Procedure Rules, SI 71-1** and *inter alia* **CACA No. 079/2003: The Attorney General Vs. Florence Baliraine** that the grounds should be set forth concisely and under distinct heads of objection to the Decree appealed against without narrative or argument and they argue that the grounds are not set out with sufficient conciseness and are narratives and for that reason grounds 2, 3 and 4 should be struck out. - [18]. Without prejudice, secondly, in respect to the 1st ground of Appeal they submit that nowhere in his Judgment did the Learned Trial Magistrate find that they have a cause of action against the Appellant - as the Plaintiff earlier. The Decree is simply to the effect that the suit was dismissed with costs. It is their case that ground 1 is hypothetical, imaginary and thus misleading. - [19]. Thirdly, on grounds 2 and 3 of Appeal argued together, they submit that the focus of the testimony at the Trial was their father in law, Okumu Galdino, and not their father. The Court observes that ground 2 was in fact framed regarding the Respondents' **"father" and not their "father in law" – Okumu Galdino (Odong)**. They go on to submit that thirteen (13) acres the Appellant admitted was given to Okumu Galdino was **"different"** from the land for which he had filed suit in the Trial Court and there was therefore no basis for the Learned Trial Magistrate to make a determination on subject matter which was not part of the Trial. This is in departure having earlier claimed in their testimony that the **"suit land"** is twenty-six (26) acres. It is also disingenuous since they claim to own the suit land by customary tenure. Apparently, the inconsistencies are on both sides.

- [20]. The Respondents submit that it was not an agreed fact nor was cogent evidence presented that Okumu Galdino was given land - whether part of the suit land or another piece, by the Appellant himself – but rather the land was given to him by the Appellant's mother. They contend that the Appellant's witnesses gave divergent testimony with PW2, Apio Milana, his biological sister testifying that their mother gave Okumu Galdino thirteen (13) acres, while PW3, Agee John, made no mention of the thirteen (13) acres and PW4, Lapogo Rose, testified that the Appellant gave part of his own land to them measuring thirteen (13) acres. - [21]. The Respondents highlight the testimony of DW1, Akello Rose, (who did not know about the acreage of land the Appellant gave their father in law), DW2, Odong Akile, that Okumu Galdino came to the suit land in 1962 becoming a Parish Chief in 1962 and opening the suit land - not the Appellant and DW4, Onying Robert, who testified that the land was opened by Okumu Galdino. - [22]. On the fourth ground of Appeal, the Respondents correctly submit that the Appellant did not make any submissions. The Court already determined as much. - [23]. In conclusion, the Respondents prayed that the Appeal is dismissed with costs.

#### **Representation and Proceedings.**

- [24]. Counsel, Mr. Owor David Abuga, represented the Appellant. The Appellant was present in Court. - [25]. Counsel, Mr. Ogik Jude, holding brief for Counsel, Mr. Rubangakene Daniel, represented the Respondents. The 1st and 2nd Respondents were present in Court. - [26]. The recent proceedings before the Court were on the 30th August, 2024, 30th July, 2024, 5 th June, 2024, 22nd May, 2024, 14th March, 2024 and the 26th September, 2023.

#### **Considerations and Determination of the Court.**

- [27]. As is often the case with customary land ownership claims, the Court observes that there is at least a degree of kindred and, or affinity between the respective conflicting parties being siblings, family, relatives, Clansmen or Sub-Clansmen all with a common patriarch and ancestor(s) and, or sometimes by association in-laws and others. The conflict commonly manifests itself between blood relations and less commonly a stranger being the occasional neighbour or purchaser. Put in perspective, a claimant may see his siblings and family and where applicable other close relatives as trespassers to the land of a deceased intestate claimed as having been inherited to his or her benefit and to their exclusion – even as lineal descendants. Moreover, the greatest victims in any society which may be perceived as patriarchal are the women and children whom may be effectively dispossessed of their benefit by lineage or for that matter birth right and also marriage. These may have been members of the same homestead. - [28]. As such, the testimony and evidence in such cases is often plagued with overlapping claims by beneficiaries and perceptions of entitlement of ownership arising mostly from inheritance upon the death intestate of a Patriarch and, or from the notion that the land had already been distributed as would be by gift *inter-vivos*. This is sometimes compounded by filings of suits by other potential beneficiaries and others seeking to assert ownership or their interests to the exclusion of yet other family members also being potential beneficiaries of the intestate Deceased. Moreover, they may purport by Court action to intentionally circumvent the procedures and protocols established for the orderly succession of property under the **Succession Act, Cap. 268** where the land and other property would otherwise ordinarily be properly and fairly distributed to all the established beneficiaries by the Administrator of the Estate of the Deceased. **See: HCCS (Kitgum) No. 50/2014: Otim Julius Peter Vs. Pader District.** ## **Duty of the Court as a First Appellate Court.**

[29]. **Section 80 of the Civil Procedure Act, Cap. 282** provides for powers of this Court in considering and determining Appeals and the scope of its mandate in so doing. As a first Appellate Court, the Court is conscious of its duties to review, reconsider and re-evaluate afresh the evidence of the case as well as the materials adduced before the Learned Trial Magistrate thus effectively rehearing the case and making up its own mind without disregarding the Judgment Appealed from but carefully weighing and considering it. In considering which witness should be believed over the other, where the question turns on manner and demeanour the Appellate Court should be generally guided by the impressions made on the Trial Court which saw the Witnesses. Notwithstanding, other factors and evidence affecting the credibility of witness testimony may be re-appraised and considered by the Appellate Court warranting a divergent view even on a question of fact where it has not seen the witness. The Appellate Court will only interfere with errors of the Trial Court where the error has occasioned a miscarriage of Justice – including where the Trial Court did not take into account particular material circumstances or where the conclusions are inconsistent with the evidence of the Trial Court's Record observing that the burden of proof to be discharged to the required standard rests with the Appellant. **See: Kifamunte Henry Vs. Uganda: SCCA No. 10/1997 citing with approval Pandya Vs. R (1957) EA 336, Okeno Vs. Republic (1972) EA 32, Charles B. Bitwire Vs. Uganda SCCA No. 23/1985 and SCCA No. 4/2016: Fredrick Zaabwe Vs. Orient Bank Ltd, Father Begumisa Nanensio & 3 Others Vs. Eric Tiberaga: SCCA No. 17/2000. [2004] KALR 236, Lovinsa Nankya Vs. Nsibambi: [1980] HCB 81, Manigaruha Gashumba Vs. Sam Nkundiye: CA (Court of Appeal) No. 23/2005 & High Court Civil Appeal (Gulu) No. 053/2015: Acaa Bilentina Vs. Okello Michael.**

- [30]. In considering and re-evaluating the testimony and evidence on the Record of the Trial Court, this Court observed significant ambiguity in the nature and description of the **"suit land"** in contention at the Trial Court and now subject of this Appeal. This was made all the more difficult by the Trial Court not having visited the *Locus in Quo* from which it would have recorded its own findings as to *inter alia* its dimensions, features and acreage in relation to the witness testimony given at the Trial. Another complication was the stated disjointed nature of the land claimed to consist of different portions in different villages stretching from Orama Central Village to Orama Tebung Village. - [31]. It is imperative that any Court, moreso one entertaining land matters, is certain of its subject matter to enable it arrive at a tangible decision reflecting the situation and realities on the ground so as to render an enforceable and nonacademic decision. This is especially crucial in this Jurisdiction when adjudicating matters with claims of customary land ownership or other forms of land ownership or interest which generally tend to be un-surveyed and unregistered. Good practice would require provision in evidence by a claiming or counterclaiming party of a survey report or at the very least some scientific indication of the land's coordinates. This is as opposed to relying entirely on natural barriers which may be erased or on neighbours whose residency may not be perpetual. - [32]. In his Plaint, the Appellant himself pleaded that the suit land measures twenty (20) acres. Later, in his testimony he departed from his pleadings – which was correctly observed by the Trial Court – and even now on Appeal still in departure he asserts in his Submissions that the suit land, specifically the land in dispute, in fact measures ten (10) acres with two (2) acres at Orama Central Village and eight (8) acres at Orama Tebung Village. Thus, this would immediately render his initial averment that the Defendants, now the Respondents, encroached on twenty (20) acres of his land exaggerated and patently false.

- [33]. It is not for the Court to impute or attempt to discern or deduce facts in a vacuum of information. This would be tantamount to speculation. Rather, it is incumbent on a party asserting a claim to present to the Court clear and direct quality evidence to establish facts based on averments in one's Pleadings of ownership, possession, occupation, interest and, or any factors from which one may claim that his or her interest arises. This is the primary duty of a claiming or counter-claiming litigant in discharging their burden of proof before the Court against an allegedly infringing party under **Sections 101 – 104 and 106 of the Evidence Act, Cap. 8**. - [34]. In further re-evaluating and scrutinizing the Trial testimony and evidence for consistency on the contentious **"suit land"**, the Court found it necessary to consider the neighbours mentioned. In paragraph 4(c) of the Plaint, the neighbours are described as Menya Cipiriano to the North, Agee John to the South, Odong Gaudensio to the West and Casimiro Ongom to the East. This description is generally corroborated in paragraph 9 of the Joint Written Statement of Defence mentioning neighbours as **"Omenya"** Cipiriano to the North, **"Agea"** John and **Alberto Onying** to the South and Odong **"Galdensio"** to the West - with one exception **"Odong Agang DP"** said to be to the East, not having been mentioned. In his Trial testimony, the Appellant generally confirmed his pleadings with Omenya Cipiriano to the North, Agea John and **"Alex Oculo"** to the South, Odong Gaudensio and **"Valentino Arube"** to the West – now also including the recently built **"Orama Parents School"** to the West and Ongom (Deceased) to the East. The Respondents, however, varied their earlier description of the neighbours in their pleadings and now identify the Appellant himself as being their neighbour to the North, with now **"Lapobo Rose (PW4)"** said to be to the South, Odong Gaudensio to the West - which is consistent and now **"Okidi Alum"** said to be to the East.

- [35]. Whilst this may be helpful, it is nowhere near definitive. It will need to be considered alongside other testimony. In the agreed facts both parties agreed that the land stretches from Orama Central Village to Orama Tebung Village, albeit in portions. It was also agreed that the land measures twenty (20) acres – though this does not hold, since as already observed the area of alleged encroachment is now ten (10) acres. The Court observes that the Appellant gave his address in the Plaint and in his testimony as Orama Tebung Village while the Respondents gave their address in the Defence and their testimony as Orama Central Village. - [36]. The Court shall now proceed to consider and address the Grounds of Appeal in the order in which they are raised –

## **Ground 1 - The Learned Trial Magistrate erred in Law and in fact when he held that the Respondents/Defendants have a cause of action against the Appellant/Plaintiff hence arriving at an erroneous decision.**

## **Preliminary Point of Law on the 1st Ground of Appeal.**

[37]. The Respondents contested the framing of this ground of Appeal on the basis that it does not arise from anywhere in the Judgment of the Learned Trial Magistrate and it is therefore hypothetical, imaginary and misleading for which reasons it ought to be struck off. The Appellant did not reply to the objection. In determining this ground, the Court has duly exhaustively scrutinized the Judgment of the Learned Trial Magistrate as well as the pleadings and proceedings and agrees with the Respondents that no decision was made in respect of the Defendants/Respondent having a **"cause of action"** against the Plaintiff/Appellant. The ground therefore does not arise or relate to any *Ratio Decidendi* of the Trial Court. Moreover, this is apparent in the context that the Defendants did not present a Counter-Claim against the Plaintiff in their pleadings. As such, there was no **"cause of action"** to speak of. In the result, ground 1 of the Memorandum of Appeal is accordingly struck out.

**See: Court of Appeal Civil Appeal No. 117/2012: Sukuton Ali Vs. Augustine Kapkwonyongo and 2 Others.**

**Ground 2 - The Learned Trial Magistrate erred in Law and in fact when he did not resolve the matter of whether the Respondents' father was given the land is dispute thus arriving at a wrong decision. (Modified for coherence).**

**Ground 3 - The Learned Trial Magistrate erred in Law and in fact when he failed to give reasons for his decision/Judgment arriving at a wrong conclusion.**

**Ground 4 - The Learned Trial Magistrate erred in Law and in fact when he failed to examine the period of time the parties acquired the land.**

## **Preliminary Points of Law on the 2nd, 3rd and 4th Grounds of Appeal.**

[38]. The 2nd, 3rd and 4th Grounds of Appeal shall be addressed together since they all relate to the claim by the Appellant that the Learned Trial Magistrate failed to consider certain aspects of Trial evidence and, or failed to pronounce himself in his Judgment on various aspects of the case and evidence cited and, or failed to give reasons for his decisions in his Judgment. The Respondents raised points of Law in regards to propriety of the 2nd, 3rd and 4th grounds of Appeal to the effect that they offend **Order 43 Rules 1 and 2 of the Civil Procedure Rules** in as far as they are not concisely set out and are narrative in nature on which basis they prayed that they should be struck out. The Respondents further contended in regard to the 2nd ground of Appeal that it was framed in respect of the Respondents' **"father"** who was never in issue at the Trial. It was only the role of the Respondents' **"father in law"** - Okumu Galdino - that featured as a protagonist at the Trial. The Appellant did not reply to the objection.

- [39]. The Court has had occasion to review the grounds of Appeal contested vis-à-vis the Record of the Trial Court and its Judgment. Specifically, regarding the 2nd ground of Appeal, the Court agrees with the Respondents and finds that the Respondents' **"father"** was never in evidence or in issue in any way at the Trial. The evidence and contentions at the Trial were instead in respect of land agreed to have been given to the Respondents' **"father in law"**, Okumu Galdino (Ongom). It is the finding of the Court that the 2nd ground of the Memorandum of Appeal does not arise from the *Ratio Decidendi* of the Judgment of the Trial Court or feature anywhere in the proceedings of the Trial Court. It is therefore struck out. However, in regard to the 3rd and 4th grounds of Appeal, the matters raised merit this Court's consideration being substantive questions of Law and fact arising from the Judgment of the Trial Court and shall be duly considered. Much as the Court had already observed that the Appellant did not address the 4 th ground of Appeal in his Submissions which he is deemed to have abandoned, the Court shall nonetheless consider it owing to its centrality in the litigation. - [40]. In the 3rd and 4th grounds of Appeal, the Appellant contends that the Learned Trial Magistrate did not give reasons for his decisions/Judgment arriving at a wrong conclusion and the Learned Trial Magistrate failed to examine the period of time the parties acquired the land. The Court has extensively reviewed the Judgment of the Learned Trial Magistrate and observes that the Trial Court duly assessed and took into account the pleadings and testimony of the respective witnesses on both sides especially regarding the modes of acquisition claimed by either party and specifically on the contested issue of ownership of the suit land. The Court considered the Appellant's claim to the suit land on the basis of having acquired it in 1958 by inheritance upon the demise of his late father Awio Binasio as well as his testimony that he gave the late Okumu Galdino land to cultivate and settle upon from which the Respondents derive their interest.

- [41]. In its Appellate role, the Court has re-evaluated and reviewed the testimony and evidence on Record at the Trial addressing itself to the Appellant's cause of action founded in ownership and trespass while taking into account the responses in Defence and Judgment of the Trial Court and finds that: - - [42]. Firstly, the Appellant failed to properly establish the dimensions, acreage and even a precise description of the suit land - supposedly the land in dispute - and the Court is left in doubt as to his claim of ownership over it. This ambiguity favours the Respondents. The area of twenty (20) acres considered by the Trial Court as the **"the suit land"** is not consistent with the testimony and evidence that emerged at the Trial. The area later claimed by the Appellant in his testimony on oath to be in dispute is in fact ten (10) acres. This is repeated in this Appeal. - [43]. Whilst the Appellant avers that he does not lay claim to the land given to Okumu Galdino by his late mother, Regina Akidi, and by his own account himself and now claimed by the Respondents and said to measure six (acres) or thirteen (13) acres or twenty-six (26) acres by different witnesses, it would appear from the description of the neighbours to be the same land. The Appellant's averment that the land in dispute is different from that given to Okumu Galdino – which had been relinquished - and does not constitute the suit land is not established by the evidence provided. The variations in acreage claimed lend to the general confusion. It is apparent that the Trial Court determined that the suit land being the land in dispute was in fact the same land claimed to have been relinquished by grant to the late Okumu Galdino. The Trial Court cannot be faulted. - [44]. Secondly, the Appellant did not lead any evidence at the Trial in respect of his alleged land ownership being by virtue of customary tenure. The witnesses he presented did not have the stature to establish the land claimed as falling under customary tenure by virtue of any custom or tradition. In fact, it was apparent that they mostly lived elsewhere and largely did not know about the land.

- [45]. In realising the gaps in his evidence at the Trial in respect of his shortcomings in establishing customary tenure, the Appellant in a desperate bid purports to remedy the gaps by addressing it in his submissions here in this Appeal by way of submitting at length that the Respondents are from a different Clan thus suggesting their ineligibility to own the land. The Appellant was at liberty to call witnesses to testify as to customary tenure in the area including the same Clan heads he alludes to which opportunity he failed to utilize at the Trial. - [46]. Thirdly, the Trial Court correctly observed and this Court similarly finds that the Appellant's evidence was significantly inconsistent and his witnesses substantially did not corroborate each other in fact contradicting each other in as far as - PW2, the Appellant's elder sister – Apio Milana, not a resident of the area admitted that she did not know any details regarding the suit land including its size or dimensions and had no knowledge of the trespass by the Respondents later also admitting that she had been told by the Appellant what to tell the Trial Court. She claimed that the disputed land measured twenty (20) acres which the Appellant had already conceded was ten (10) acres. This rendered her evidence regarding the dispute over the land of minimal value having no independent knowledge of the dispute and inconsistent with the Appellant's. Significantly, she testified that their mother Regina Akidi had given Okumu Galdino twenty-six (26) acres of land thereby also contradicting the Appellant on the acreage and source. PW3 – Agee John, is described as a neighbour on the Southern side of the suit land. In his testimony, he admitted that he did not know the area or acreage of the suit land or its neighbours. The Court also observed that he gave his residence as an area different from that where the land in contention is. PW3 did not claim to be a neighbour either. He later admitted that he heard about the dispute from the Appellant. It is clear that he does not independently know about the land dispute. This rendered his evidence not credible and of limited value.

- [47]. The testimony of PW4 is significantly at odds with the Appellant's, his other witnesses and his case in the Trial Court founded in trespass. PW4 is the Appellant's sister in law – Lapogo Rose, and interestingly testified that she is in fact **"staying on the suit land … … I have lived on the suit land for over 50 years"** and insisting that the Respondents **"have never stayed on the suit land"**. The core element in a cause of action in asserting the tort of trespass besides claiming ownership is the contention that an individual or entity is wrongly in occupation or possession of one's land – which becomes the **"suit land"**. Thus, PW4's claim of occupation and possession of the suit land – as opposed to the Respondents - entirely undermines the Appellant's cause of action in trespass. This not only added to the ambiguity over the suit land, but his own witnesses doomed the Appellant's case - even prior to the Defence. - [48]. In contrast, in considering and re-evaluating the testimony and evidence of the Respondents, the Trial Court correctly observed which this Court similarly finds that their witnesses were more credible than the Appellant's on the basis that their testimony was consistent and they corroborated each other demonstrating independent knowledge of the suit land. DW2, Odong Akile, a neighbour testified insisting that the disputed land belonged to the late Okumu Galdino (Ongom) together with whom the Respondents lived with their husband prior to his abduction - with the Respondents now in occupation. DW3, Maria Adoch, related to the Appellant as his Aunt and also mother in law of the Respondents as the surviving widow of the late Okumu Galdino Ongom and step mother to the Respondents' husband, Okidi Francis, testified that the land in dispute belonged to her late husband, Okumu Galdino Ongom, on which she lived with him together with the Respondents and their husband which they still occupy and is now claimed by the Appellant. She left the land during the insurgency. The Court finds this witness by virtue of her stature the most authoritative. - [49]. The last Respondent witness was DW4, Onying Robert, a resident of Orama Central Village and he testified that the suit land was opened by Okumu Galdino and the Respondents lived with their husband on the land before his abduction. The Respondents have continued living on the land after the demise of Okumu Galdino and abduction of their husband. The Appellant claimed the land after the demise of Okumu Galdino. - [50]. In sum, the import of the Respondents' cogent, consistent and corroborative testimony is that they have always remained on and utilized the same land given to their late father in law, Okumu Galdino, by his sister also being the Appellant's late mother, Regina Akidi, now comprising his Estate, claimed by the Appellant. The Court did not perceive any significant inconsistencies in their testimony. This therefore dispels any doubts that the land claimed by the Appellant as being in dispute **"the Suit land"** is in fact the same land which was relinquished having been given to the late Okumu Galdino. It is apparent that the Appellant's claims are opportunistic and mired in confusion and uncertainty and the suit was therefore bound to fail. It is therefore the finding of this Court that the Appellant did not establish on a balance of probabilities in the Trial Court his ownership of the suit land moreso by virtue of customary tenure or that the Respondents were in trespass. This Court finds that the Trial Court did not come to a wrong conclusion having duly assessed the testimony and evidence including the period of their respective claims of interest and the Trial Court properly dismissed the suit after finding that the essential elements of trespass, especially ownership, were not established on a balance of probabilities by the Appellant then as the Plaintiff. Grounds 2 and 3 of the Memorandum of Appeal therefore fail.

## **See: Supreme Court Civil Appeal No. 11/2002: Justine E. M. N. Lutaaya Vs. Stirling Civil Engineering Co. Ltd & CACA No. 04/1987: Sheikh Mohamed Lubowa Vs. Kitara Enterprises Ltd.**

- [51]. This case would have benefitted greatly from a visit by the Court to the *Locus in Quo* to ascertain the testimony and evidence of the parties thereby establishing the realities on the ground, most especially the description of the various portions of land in dispute and its relation to each of the conflicting parties. Though desirable, it was not fatal in as far as a miscarriage of Justice was not occasioned. This was not raised as a basis of this Appeal in the Memorandum of Appeal and the Court will not dwell on it. In view of the deficiencies in the Appellant's case, he failed to discharge the burden of proof of establishing his ownership and proving trespass anyway and the material provided at the Trial was sufficient to support the conclusions reached by the Trial Court and by this Court in its reevaluation. In any case, as has already been observed by the Court the Appellant's claims appeared to be rather opportunistic. The lesson which should be taken is that a diligent litigant should take the trouble and spare no effort in their preparation to establish the subject matter of any suit to be filed. Moreso, matters involving previously un-surveyed and undocumented lands which would benefit from technical and expert testimony to establish its parameters. The moment a Court perceives guess work, uncertainty, vagueness, ambiguity, variations and, or shifting positions including departure from one's pleadings, it works against the litigant asserting a claim. It is not for the Trial Court to assume the role of surveyor at the *Locus in Quo* itself and the boundaries viewed at the *Locus in Quo* should already be set since a *Locus in Quo* visit is not intended to fill gaps evidence, otherwise the Court runs the risk of turning itself into a Witness. - [52]. **See: Fernandes Vs. Noroniha [1969] EA 506, De Souza Vs. Uganda [1967] EA 784, Yeseri Waibi Vs. Edisa Byandala [1982] HCB 28, Nsibambi Vs. Nankya [1980] HCB 81, HCCA (Masaka) No. 59/2019: Ddamulira Aloysius Vs. Nakijoba Josephine, Bongole Geoffrey Vs. Agnes Nakiwala: CACA No. 076/2015.**

[53]. Notwithstanding the determination of the grounds of Appeal herein-above, some important points of Law were raised by the Appellant regarding the Trial which this Court by virtue of presiding over this matter is bound to address and hereby addresses hereunder. In determining this Appeal, the Court is entreated to resolve all matters having sufficient evidence with completeness and finality.

**See: Order 43 Rule 20, 26 and 27 of the Civil Procedure Rules, CACA No. 212/2020: Ellis R. Kasolo Vs. Security Group (U) Ltd, Peters Vs. Sunday Post Ltd [1958] EA 424, Selle & Anor Vs. Associated Motor Boat Co. & Others [1968] EA 123 and King Vs. Thompson [1914] 2 KB 99.**

- [54]. The Appellant highlighted in his submissions that the Respondents as Defendants in the Trial Court did not file a Counter-Claim and on that basis impugns the finding of the Trial Court that the Respondents as Defendants were the **"Lawful customary owners of the suit land"**. It was also the Appellant's submission that the Respondents did not adduce any evidence whatsoever at the Trial, let alone expert testimony, of their ownership of the suit land by virtue of customary tenure. It is the Appellant's case that the Respondents would have had to adduce evidence in proof of their claim of ownership by virtue of customary tenure and as such the finding of the Trial Court was supported by neither a Counter-Claim nor cogent evidence. This is, of course, a double edged sword since as already determined the Appellant himself did not conform either. - [55]. Customary tenure is established by the **1995 Constitution** and provided for in the **Land Act, Cap. Cap. 236** as a form of land ownership. The establishment of ownership of land by virtue of customary tenure is a matter of proof by evidence of the custom or tradition under which the said ownership is claimed as well as the group or class of owners. It is not simply a matter of assumption or presumption, much as the Court earlier observed that it was not in contention at the Trial with both parties assuming it was land under customary tenure.

[56]. It is, however, the duty of a litigant intending to establish land ownership by virtue of customary tenure to provide a basis for a Trial Court to reach such a determination. Customary tenure is at par with other forms of land tenure. The traditional and cultural structures of the community in which the land is situate are best placed to provide this kind of expert testimony as a guide for a Court determining the issue. Short of this, a Court is constrained to make such a determination and the litigant therefore risks leaving establishment of ownership by a simpler or lesser interest such as by possession or occupation.

**See: HCCA No. 051/2017: Atunya Valiryano Vs. Okeny Delphino, CACA No. 059/2009: Balamu Bwetegeine Kizza and Anor Vs. Zephania Kadooba Kizza and Constitutional Petition No. 28/2019: Hon. (Rtd.) Justice Galdino Okello Moro & Others Vs. The Attorney General.**

- [57]. The Court is cognizant especially of the Judgment of the Constitutional Court in **Constitutional Petition No. 28/2019: Hon. (Rtd.) Justice Galdino Okello Moro & Others Vs. The Attorney General** in relation its decision in regards to the nature of customary tenure in the Acholi Sub Region. The Court observes that the element of establishing customary ownership of specified land remains subject to proof of the custom or tradition and the group affected and remains paramount in any determination by a Court which would have to exclude any land held by Government or Local Government entities or other interests. - [58]. That said, a review of the testimony and evidence of the Respondents' witnesses indicates that no effort was made by them in establishing customary ownership of the suit land. In fact, substantial effort was made pursuing the diversionary argument that the land given to Okumu Galdino from which they claim to derive their interest does not constitute any part of the suit land. If that were the case, it would therefore be untenable for the Trial Court to determine as it did that the Respondents were the **"lawful customary owners of the suit land"**.

[59]. This Court observes that the Trial Court framed the issue of ownership in broad terms – **"Who of the parties is the Lawful customary owner of the suit land in dispute"**. Clearly, the Trial Court had already presumed that the suit land was of customary tenure even before considering the evidence. This was accepted by the parties. The Appellant seemingly satisfied did not see the need to go the extra mile to prove ownership of the land by virtue of customary tenure – not until it later dawned on him and belatedly became a concern to him in this Appeal which has already been considered herein-above. It is apparent that framing an issue in such broad terms as the Trial Court did risks the Court going on a fishing expedition for **"the owner"**. It may so happen that **"the owner"** is neither of the parties before the Trial Court. In the circumstances of this case, the Respondents claim that their interest in the land given to the late Okumu Galdino is through **"inheritance"** by virtue of both Okumu Galdino as their father in law whose demise was in 2003 and, or through his son Okidi Francis being their husband who was abducted by Lord's Resistance Army insurgents in 2002 and has not been seen since and for that matter may be presumed deceased by virtue of **Section 108 of the Evidence Act, Cap. 8**. Either may be considered an intestate deceased. **DW3, Maria Adoch**, testified that Okumu Galdino had three (3) wives including herself with Okidi Francis' mother being the late Jerobina Alal. This was not controverted. It is therefore reasonable for the Court to make the inference that there may well be other beneficiaries to their Estates – not party to the litigation. Framing the issue in the manner done casting it broadly, especially without a Counter-Claim asserted, risks a gross miscarriage of Justice and may result in perpetual litigation with dispossessed beneficiaries seeking to set aside the decision, albeit having been reached by the Trial Court in good faith. It would have been sufficient for the Court to determine the more concise issue

of – **"Whether the Plaintiff is the owner of the suit land in dispute"**.

- [60]. The Court has already observed that any matter regarding succession of the estate of the late Okumu Galdino is best left to the orderly procedures involving all beneficiaries as provided for by the **Succession Act, Cap. 268**. - [61]. In respect of the absence of a Counter-Claim filed by the Respondents as the Defendants in the Lower (Trial) Court, it is trite on the one hand that generally no decision should be made or relief granted by a Court on a ground which has not been pleaded and proved and on the other hand that a party, moreso a Defendant, who has not filed a Counter-Claim in the Trial Court is generally not entitled to affirmative remedies. **See: Candy Vs. Caspair Air Charter Ltd [1956] EACA 139, SCCA No. 6/1999: Francis Sembuya Vs. All Ports Services Ltd and SCCA No. 08/2003: Goustar Enterprises Ltd Vs. John Oumo Kokas.** - [62]. In **High Court Civil Appeal (Kitgum): Olum Bazilo Vs. Oweka Paul and 2 Others** cited by the Appellant, this Court simply observed that the Trial Court in its Judgment referenced a Counter-Claim which had not been put up by the Defendant in his pleadings at the Trial. A Counter-Claim cannot be presumed or imputed. An award cannot be made on the basis of a non-existent Counter-Claim though a Court may in its discretion determine questions of Law and fact finally (i.e. offsets) where the evidence is sufficient to enable it do so. **See: High Court Civil Suit No. 1/1989 (Fort Portal): Christopher Katuramu Vs. Maliya & 3 Others.** - [63]. In view of these considerations herein-above, it is therefore the finding of this Court that the testimony and evidence on the Record of the Lower (Trial) Court did not support the finding that the Respondents are the **"customary owners of the suit land"**. This Court therefore in its discretion sets aside and varies the said finding of the Trial Court and replaces it with a finding that – the Plaintiff did not establish on a balance of probabilities that he owns the suit land.

## **Determination of the Court.**

[64]. Having considered the Memorandum of Appeal, the Judgment and Proceedings of the Trial Court, the Pleadings of the respective parties in the Trial Court and the Submissions of the respective parties - this Court finds that the Appeal is without merit, substantially fails and is hereby dismissed with costs.

## **Orders of the Court.**

- [65]. The following Orders are accordingly issued - i. Grounds 1 and 2 of the Memorandum of Appeal are struck out. - ii. The Appeal substantially fails on all the remaining grounds, 3 and 4, and is hereby dismissed. - iii. The Order of the Trial Court declaring the Respondents the customary owners of the suit land is hereby set aside and varied by substituting it with an Order that the Appellant as the Plaintiff at the Trial failed to establish ownership of the suit land. - iv. The Appellant shall bear the Costs in this Court and the Trial Court.

It is so Ordered.

**Signed and Dated on the 31 st day of January, 2025. (High Court, Kitgum).**

**Philip W. Mwaka**

**Acting Judge of the High Court.**

## **Delivery and Attendance.**

This signed and dated Ruling shall upon the Directions of the presiding Judge be delivered to the Parties electronically on **Friday, the 31 st day of January, 2025 at 10:00am** by the Deputy Registrar, High Court Kitgum Circuit.

- 1. Counsel for the Appellant Mr. Owor David Abuga. - 2. The Appellant Mr. Okello Thomas. - 3. Counsel for the Respondents Mr. Ogik Jude

holding brief for

Mr. Rubangakene David.

- 4. The Respondents Ms. Akello Rose and Ms. Abur Marilline - 5. Court Clerk, present Mr. Atube Michael.


**Philip W. Mwaka**

**Acting Judge of the High Court.**

**31 st day of January, 2025**