Okullu v Okidi (Civil Appeal 125 of 2015) [2025] UGCA 18 (30 January 2025)

Full Case Text

# THE REPUBLIC OF UGANDA

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

[Coram: Egonda-Ntende. Barishaki and Gashirabake, JJA]

# CIVIL APPEAL NO. OI25 OF 2015

(Arisingfrom High Court Civil Appeal No.026 of 2013 at Gulu)

# BETWEEN

OKULLU BONNY DABY= APPELLANT

## AND

OKIDIJOSEPH RESPONDENT

(On appeal from the Judgment of High Court of Uganda at Gulu (Keitirima, J.) delivered on l\th April, 2015)

# JUGDMENT OF FREDRICK EGONDA-NTENDE JA

## Introduction

- tll This is a second appeal against the decision of the High Court of Uganda sitting at Gulu in Civil Appeal No. 026 of 2013. The respondent, Okidi Joseph, through a power of attomey instituted a suit against the appellant, Okullu Bonny Dabi, at the Chief Magistrates Court of Pader wherein he sought a declaratory order of ownership of the suit land situated at Olwor Nguu Central ward, Acoro Parish, Pader Town Council, Pader District measuring about 100 acres, an order ofvacant possession, permanent injunction, general damages and costs. - 12) The respondent (original plaintiffl contended that he is the rightful owner of a customary piece of land situate at Olwor Nguu central ward, Acoro Parish, Pader Town Council, Pader District, measuring approximately 100 acres. The respondent claimed that his father acquired the suit land when it was still a virgin forest and started living thereon without interference. The respondent contended around the period 2006 while people were retuming home from the IDP Camps, the appellant without any color of right trespassed and encroached on his land claiming that the suit land belongs to his mother in law. He claimed that he attempted to stop the appellant from his unlawful action of trespass on the suit land in vain.

- t3l The appellant (original defendant) on the other hand denied the respondent's claim and set forth a counterclaim where he claimed that he inherited the suit land from his late father Dabiniano Abwola who also inherited the same from his fore fathers. He stated that Dabiniano Abwola and his other relatives were buried on part of this land and that nobody lodged a complaint. He stated that the respondent used to live in Acoro village about 3 kilometres from the northern border ofthe disputed land and that in 2006, the respondent trespassed onto and tried to cultivate the suit land by force but was ejected whereupon they left. The respondent came back in 2009 and built huts on the suit land. The appellant contended that the respondent has no interest in the suit land and prayed for general damages, mesne profits, interest and costs of the suit. - The trial Court in its decision declared the appellant, Okullo Bonny Dabi, as the owner of the suit land and ordered that the respondent, Okidi Joseph, to vacate the suit land. Okidi Joseph, being dissatisfied with the decision of the trial Court appealed to the High Court on grounds below: t4l

'(l ) 'fhat the Leamed trial Magistrate ened in law and fact by f'ailing to properly evaluate the evidence on Cou( record thereby reaching a wrong decision and judgment.

(2) That the leamed trial Magistrate erred in law b1 misapplying the [,imitation Act and thereby reaching a wrong decision and judgment

(3) 'l'hat the leamed trial Magislrate was biased by challenging the power of attomey that was granted to the plaintiffand yet this was not in issue. thereby making a biased decision and judgment.'

The first appellate Court found that the trial court was wrong in decreeing that the whole suit land belongs to the appellant and allowed ground no. 1 of the appeal. On ground no. 2, it found that the limitation period started running from 2006 and it disallowed the said ground. It allowed ground No. 3. The appellate Judge ordered that the suit land be demarcated by the Sub-County Chief between the appellant (Okullo Bonny Dabi) and the respondent (Okidi Joseph) on the basis ofthe sketch map that had been drawn by the trial Magistrate, so that both parties maintain the developments on their portions of the land, together with the graves of their relatives. t5l

t6l Being dissatisfied with the decision of the first appellate court, the appellant (Okullo Bonny Dabi) has now appealed to this Court on the following grounds:

> '(t; fnat the leamed appellate Judge erred in law and fact when he failed to properly evaluate the evidence on Court record thereby coming to a wrong decision. (2) That the leamed appellate Judge erred in law and fact when he failed to apply the Limitation Act thereby reaching a wrong decision and judgement.'

- The respondent opposed the appeal and raised two preliminary objections, namely; 17l - (l) That the first ground of appeal is incompetent and ought to be struck out.

(2) That both grounds of appeal offend Section 72 (l) nd Section 74 of the Civil Procedure Act.

## Representation

t8l At the hearing, the appellant was represented by Mr. Okello Alfred Oryem while the respondent was jointly represented by Mr. Ikilai Ben and Mr. Egaru Ben.

# Submissions of Counsel on the Preliminary Points of Law

- t9] In respect of the first preliminary objection, counsel forthe respondent relied on Rule 86 ( I ) of the Judicature (Court of Appeal Rules) Directions, S.l l6-13 and submitted that the ground I was too general and did not specifu the error in the judgment of the first appellate Court. He submitted that Rule 86 is mandatory and failure to comply warrants a striking out of the ground of appeal. He also relied on the case ofRanchobhai Shivbhai Patel Ltd v Wambusa and Others l20l8l UGSC 68. - Il0] On the second point of law, respondent's counsel submitted that sections 72 and74 of the Civil Procedure Act require that grounds of appeal in a second appeal must be those of law and not of mixed law and facts. He submitted that the grounds of appeal in the instant case are of mixed law and fact. He relied on Lubansa Jamada v Dr. Ddumba Edward. Court of Appeal Civil Appeal No.0l0 of 20ll(unreported). - I I ] Counsel for the appellant was given leave to file submissions in rejoinder. No such submissions were filed within the time that Coun had prescribed. As such there was no response to the appellant's preliminary objections.

[2] Counsel forthe respondent in his submissions faulted ground 1 of the appeal for offending Rule 86(1) ofthe Judicature (Court ofAppeal Rules) Directions, S.l 16-13. Rule 86(l) reads as reproduced herein-below;

> 'A memorandum of appeal shall set fbrth concisely and under distinct heads. without argument or narrative. the grounds ofobjection to the decision appealed against, specifying the points which are alleged to have been wronglully decided, and the nature ofthe order which it is proposed to ask the court to make.'

# [ 3] Ground No.1 states,

'1. That the leamed Appellate Judge erred in law and fact when he failed to properly evaluate the evidence on Court record thereby coming to a wrong decision.'

- [4] An examination ofthe above ground of appeal indicates that the same is general and vague in nature as it does not distinctly specifu what was wrongly decided by the trial Judge. The appellant simply states that the appellate Judge failed to properly evaluate the evidence on record without specifically pointing out the evidence that was not properly evaluated. - [ 5] It is evident that ground No. I offends Rule 86( I ) . In Sietco v Noble builders (U) Ltd t 19971 UGSC 2l the Supreme Court disallowed a ground that failed to specifo the points allegedly wrongly decided by the trial court for offending a similar rule. - The respondent's first preliminary objection is upheld. ll6l - Owing to the above, ground no.l is found to be untenable, incompetent, and is hereby struck off. ll Tl - As regards the second preliminary objection, Counsel for the respondent submitted that Sections 72 and74 of the Civil Procedure Act requires that grounds ofappeal in a second appeal must be those of law and not of mixed law and fact. He submitted that the ground of appeal in the instant case is of mixed law and fact. ll8l - [ 9] This is a second appeal and as such, it is govemed by Section 72 of the Civil Procedure Act which provides that a second appeal can only be on a point of law. Section 72 (l ) of the Civil Procedure Act, Cap. 282 provides that:

'Except where otherwise expressly provided in this Ac1 or by any other law for the time being in florce. an appeal shall lie to the Court ofAppeal from

every decree passed in appeal by the High Court. on any of the tbllowing grounds, namely that-

(a) the decision is contrary to law or to some usage having the lbrce of law;

(b) the decision has failed to determine some material issue of law or usage having the force of [aw;

(c) a substantial error or defect in the procedure provided by this Act or by ary other law for the time being in force, has occurred which may possibly have produced error or delect in the decision ofthe case upon the merits.'

- [20] Section 72 is further buttressed by Section 74 which provides that no second appeal shall lie on any ground other than that provided for in Section 72. - [21] In Elizabefh Nalunansi Wamala versus Jolly Kasande & Others [2017l UGSC 2I , it was observed that a second appellate court is precluded from questioning the findings of fact ofthe trial court, provided there was evidence to support those findings. Although the second appellate court might probably have arrived at a different conclusion on the evidence it can only interfere with the first appellate court's decision on a question of law. - t22l Iagree that a second appeal is restricted to questions oflaw and not mixed law and facts. - 123) What amounts to a question of law was explained by this Court in Lubanea Jamada v Dr. Ddumba Edward. [20 ] 6] UGCA I I ,where Kasule, JA, stated,

'An appeal on a point of law arises when the Cou(, whose decision is being appealed against, made a finding on the case before it, but got the relevant law wrong or applied it wrongly in arriving at that finding. The Court reaches a conclusion on the facts, which is outside the range that the said Court would have arrived at, had that Court properly directed itself as to the applicable law.'

The error must be as a result of misapplication or misapprehension of the law. A manifest disregard of the law is an error of law. A question of law is about what the correct legal test is, as contrasled with a question of fact, which is concemed with what actually took place between the parties to the dispute. When the issue is whether the facts satisfy the legal tesl, then a question of mixed law and fact arises.'

- [24) Regarding ground no. 2 ofappeal, whereas it was framed as "That the leamed appellate Judge erred in law and fact" the complaint is that he failed to apply the Limitation Act and thereby reached a wrong decision and judgement. - 125) Despite the words 'erred in law and fact' as indicated in the ground 2, the appellant faults the appellate Judge for failing to apply the Limitation Act. The substance of the second ground ofappeal is therefore premised on a point of law much as it could have been better and more specifically framed. - [26] The second preliminary objection in relation to this ground is overruled. I will proceed to consider ground 2.

# Ground No 2

- [27) Counsel for the appellant cited section 5 of the Limitation Act and faulted the appellate Judge for having misapplied the said provision. - [28] Counsel for the appellant submitted that the appellate judge ought to have found that the right ofaction accrued to respondent's (plaintiffs) father in 1982 when he learnt about the appellant's seftlement on the suit land. He submitted that respondent ought to have brought the suit to recover the same by 1994 and that by filing the suit in2012, he was time barred because the person through whom the respondent claims to have inherited the suit land from was already barred from bringing the suit based on the interpretation in the second leg of Section 5 of the Limitation Act. - [29] Counsel for the respondent submitted that the evidence was clear. The appellant trespassed on the suit land in 2006 and that the appellate Judge was right in holding that the respondent's right of action accrued in 2006. - [30] The respondent in paragraph 5 (d) ofits plaint stated that the appellant trespassed on the suit land in 2006. The appellant in paragraph 8 of its counterclaim averred that the respondent trespassed on the suit land in 2006, was ejected and retumed in 2009. - [3 I] The trial magistrate in his decision observed that the respondent settled on the land in 1982 and therefore the suit was time barred. - [32) The appellate Judge held that the respondent's evidence was that the appellant trespassed in 2006 and that it was irrelevant as to when the appellant claimed to have entered on the land.

[33] As I understand it, the appellant's argument is that the period of limitation started running from 1982 when he claimed to have entered the land and not in 2006 when the respondent claims that he became aware of the appellant's trespass.

# [34) When in law does the time or period of limitation start to run?

[35] The response to the above question lies in Section 5 of the Limitation Act. It states,

> 'No action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right ofaction accrued to him or her (for emphasis) or, if it first accrued to some person through whom he or she claims, to that person.'

- [3 6] The import of section 5 is that the right of action accrues to the party whose interest on the land has been infringed and is aggrieved. The period of limitation in section 5 starts running from the date that the party bringing the action or suit (plaintiff) becomes aware of the trespass to the suit land. It is not from date on which the defendant alleges to have been settled or acquired interest on the land. - 137) The pleadings of both parties were clear on this point. The plaint in paragraph 5 (d) stated that the defendant trespassed on the suit land in 2006 as people returned from IDP camps. Similarly, in the counter claim of the det'endant it is contended that the plaintiff first trespassed on this land in 2006. He was chased away and retumed in 2009. The evidence of the plaintiff(respondent herein) was that the appellant trespassed in 2006. The evidence from the respondent's witnesses at the hearing before the trial Court was to similar effect. At no point on the record does the respondent indicate that he observed the appellant's first act oftrespass as being in 1982. - [38] The trial Judge was therefore right in holding that the date on which the appellant claims to have settled on the land is immaterial. The Judge held that what is material is the date on which the respondent (plaintif| first become aware of the trespass. The respondent both in his plaint and evidence was clear that he became aware of the appellant's trespass in 2006. - [39] The period of limitation for bringing an action for recovery of land commenced in 2006 and not 1982 as claimed by the appellant.

[40] I cannot fault the first appellate court in holding that the limitation period started running from 2006. This ground ofappeal fails and it is accordingly rejected.

# Decision

[41] I find no merit in the appeal. I would uphold the decision of the first appellate Court and dismiss this appeal with costs. As Barishaki Cheborion and Gashirabake, JJA, agree this appeal is dismissed with costs.

Dated, signed and delivered at Gulu tfliS&ty of 2o2g ..rts

redrick Egonda-Ntende Justice of Appeal

#### THE REPUBLIC OF UGANDA

IN THE COURT OF APPEAL OF UGANDA HOLDEN AT GULU

(Coram: Egonda-Ntende, Barishaki and Gashirabake, JJA(

#### CIVIL APPEAL NO. 0125 OF 2015

(Arising from High Court (Gulu), Ciuil Appeal No. O26 of 2013)

#### BETWEEN

OKULLU BONNY DABY ......... APPELLANT

#### AND

OKIDI .]OSEPH RESPONDENT

(On appeal from the Judgment of High Court of Uganda at Gulu (Keiterima, J.) deliuered on 1 Oth April, 2O 1 5)

JUGDMENT OF CHEBORION BARISHAKI, J,A

I have had the beneht of reading in draft the judgment prepared by the Hon, Dr. Justice Fredrick Egonda - Ntende, JA in the above appeal and I agree with the analysis he has made, the conclusions reached and the orders he has proposed.

Dated at Kampala this3ooday o 025 L Cheborion Barishaki

Justice of Appeal

## THE REPUBLIC OF UGANDA

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

(Coram: *Egonda-Ntende, Barishaki, and Gashirabake, JJA)*

## CIVIL APPEAL NO. 0125 OF 2015

(*Arising from High Court Civil Appeal No. 026 of 2013 at Gulu*)

### **BETWEEN**

## OKULLU BONNY DABY::::::::::::::::::::::::::::::::::::

#### AND

OKIDI JOSEPH ::::::::::::::::::::::::::::::::::::

## **JUDGMENT OF CHRISTOPHER GASHIRABAKE, JA.**

I have had the benefit of reading in draft the judgment of my senior brother Hon. Justice Fredrick Egonda-Ntende, JA in the above mentioned Appeal.

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

Japy Dated at Kampala this .................................... $...2025$ .

istopher Gashirabake

**JUSTICE OF APPEAL.**