Okwangan and 2 Others v Otelamong (Civil Appeal 18 of 2021) [2022] UGHC 149 (12 January 2022)

The Republic of Uganda

In The High Court of Uganda Holden at Soroti

Civil Appeal No. 18 of 2021

(Arising from Katakwi Civil Suit No. 008 of 2014)


Versus

Otelamong Otela Pius (For The Late Inyangat Pius) ::::::::::::::::::::::::::::::::::::

Before: <u>Hon Justice Dr. Henry Peter Adonyo</u>

Judgment On Appeal

1. Background:

This is an appeal arising from the judgment and orders of His Worship Awacnedi Freddie, Magistrate Grade One, delivered on 18<sup>th</sup> March 2021.

The brief facts according to the appellants are that they are the owners of a suit land, which comprises about 40 acres located at Ongongoja village, Ongongoja Parish, Ongongoja Sub-county, Katakwi District, which they inherited from their late father Odee who also had inherited the same from their grandfather called Alepu who in turn had inherited the said land from their great grandfather Otuco.

On the other hand, the Respondent similarly claims the contested suit land averring that the said suit land originally belonged to his late grandfather Iculot Laberito, who passed away in 1966 and that upon his demise the same was inherited by his father called Inyangat Pius who also passed on and the suit land taken over by the respondent.

The lower court delivered judgment in favour of the respondent. The appellants were aggrieved hence this appeal on the following grounds;

- 1. That the trial magistrate erred in law and fact when he failed to evaluate the evidence on record hence arriving at a wrong decision - 2. The trial magistrate erred in law and fact when he ignored grave inconsistencies and contradictions in the respondent's evidence - 3. That the trial magistrate perfunctorily conducted the visit to the locus in quo hence arriving at the wrong decision - 4. That the decision of the trial magistrate has occasioned a miscarriage of justice upon the appellants - 2. Representation:

The appellant was represented by M/s Obore & Co. Advocates while M/s Ogire & Co. Advocates represented the respondent.

3. Duty of the $1^{st}$ appellate court:

The court in *Chepteka Samuel vs Mangusho Shadrick Civil Appeal No. 06 of 2016* referred to the duty of a first appellate court as was laid out in the case of Fr. Narsensio Begumisa and 3 Ors vs Eric Kibebaga SCCA No. 17 of 2002 (unreported) thus "The legal obligation of the 1<sup>st</sup> appellate court to reappraise the evidence is founded in the common law rather than rules of procedure. It is a

well settled principle that on a 1st appeal, the parties are entitled to obtain from the appeal court its own decision on issues of fact as well as of law. Although in case of conflicting evidence, the appeal court has to make due allowance for the fact that it has neither seen nor heard the witnesses."

This court being a first appellate court is thus obliged to act in accordance with its duty as stated above.

- 4. Submissions and Decision: - a. Grounds 1 and 2: - 1. That the trial magistrate erred in law and fact when he failed to evaluate the *evidence on record hence arriving at a wrong decision* - 2. The trial magistrate erred in law and fact when he ignored grave inconsistencies and contradict

It was submitted for the appellants that there were inconsistencies as to the size of the suit land in that whereas the respondent told the lower trial court that suit land was 200 acres, PW2 Etole John testified that the suit land was 100 acres, while PW3 Adumun Philomena and PW4 Atinge Pampus told the court that the suit land was 50 acres and 80 acres respectively. These contradictions, according to counsel for the appellants go to the root of the respondent's case and show that the testimonies of the witnesses were made up.

Furthermore, counsel for the appellants informed this court that the respondent had departed from his pleadings in the lower court where he sought to claim 40 acres and had instead claimed 200 acres which was not pleaded which fact was not taken into account by the lower trial court which had it been alived to its duty and noted such change in pleadings while evaluating the testimonies would have come to the conclusion that the appellants' evidence was more believable that those of the

respondent given the fact that witnesses of the appellants who included DW2 (Ilaborot Simon) and DW3 (Opala Simon) both testified that the suit land was 40 acres.

Furthermore, according to counsel for the appellants, as evidenced from the proceedings and the final judgment of the lower trial court, it was clear that the respondent was merely a neighbor to the suit land and had never occupied the same at all as was testified to by DW1 Okwangan William and DW2 Ilaborot Simon Peter and even the respondent himself whose home was not located even on the suit land and whose grandfather was not also buried on the suit land whereas the appellants did trace their lineage from their great father who was even buried on the suit land. Meaning that the respondent was only trying to take over the suit land as he had no claim at all to it.

Another argument by counsel for the appellants was that as seen from the testimony of DW1, DW2 and DW3 it was clear that the appellants' grandfather and great grandfather, Alepu and Otuco, were in occupation of the suit land because their graves could still be seen on the suit land in addition the appellants' late father's homesteads still being on the land which was sufficient evidence that the appellants were not only in occupation of the suit land but claim ownership of the same since the lifetime of their great grandfather Otuco yet on the other hand the respondent was not in occupation of the suit land meaning that the appellants had a better claim of title to the suit land.

For the respondent, it was submitted that an oral amendment to the pleadings was made in the lower trial court leading to the size of the land increasing from 40 acres at the time of filing the suit to 200 acres at the time of hearing of the suit and that the respondent himself Otela Otelamong (PW1) testified that the appellants were occupying his 200 acres of the suit land while PW2 Etole John testified that the suit

land was more than 100acres. Counsel argued that even DW1 Okwangan William also told the court that the suit land is about 250 acres meaning that the appellants themselves could complain about inconsistencies in the size of the land as also they were not sure given and that PW3 Adumun Philomena and PW4 Atinge Pampus' each testified that the size of the land in dispute was 50 acres and 80 acres respectively with this fact not amounting to a major inconsistency as it did not go to the root of the respondent's case with the case of *Odur David vs Ocaya Alphonse* is not being applicable since the contradictions in the present matter were minor.

In relation to the testimony of the appellants that they it was submitted that the entry of Otuco onto the suit land was because he Otuco was came into it as an in law whose daughter Atim was married to Iculot Laberito, the original owner of the land in dispute before it was inherited by Inyangat Pius and Otelamong Pius. That since Otuco did not have anyone to take care of him he moved to his daughter Atim to who was on the land so that she could take care of him and that when he died no one claimed his body and so he was obviously buried on the suit land which seems to have led to the claim by the respondent that he had interest in the suit land.

I have carefully considered the submissions of the parties as well as the authorities cited therein. My perusal of testimony of the parties in the lower court the lower court shows that Otela Otelamong (PW1) who is the respondent herein claims that he inherited the suit land from his father Pius Inyangat, who in turn acquired it from his father called Laberito Iculot. PW1's testimony is that Laberito Iculot died in 1966 and was buried on the suit land while Pius Inyangat was buried on another piece of land that he bought in Soroti. PW1 also testified that the defendants / appellants had occupied over 200 acres of the suit land which they had entered by force. This was piece of evidence is corroborated by PW2 Etole John who testified in the lower court that the suit land which was over 100 acres had been inherited from his father called

Inyangat Pius and that the plaintiff's grandfather one Iculot who died in 1966 was buried on the suit land with the respondent was using the suit land for cultivating and settlement and to date the old settlements were visible. He similarly testified that the defendants / appellants entered onto the suit land by force.

Etole John (PW2) further testified that the late Otuco through whom the appellants/ defendants sought to claim the suit land had brought onto the suit land by his daughter called Atim who was the wife of Iculot so that she could take care of him since he was terminally ill and had no one to look after him and that when he died he was buried on the suit land.

Adumun Philomena (PW3) similarly testified as Otela Otelamong (PW1) and Etole John (PW2) in so far as the material particulars are concerned. In contrast, however, Adumun Philomena (PW3) testified that the suit land measured 50 acres while Atinge Pamous (PW4) testified that the suit land measures 80 acres.

PW1, PW2, PW3 and PW4 all testified that the appellants / defendants entered onto the land forcefully and had built onto the land and were also using it for cultivation.

In their defence, the appellants/ defendants all testified that they derived their title to the suit land from their grandfather called Otuco with Okwangan William (DW1) testifying that the land in dispute was 250 acres and it belonged to his grandfather called Alepu who died and was buried on the suit land. He further told the court that he was born on the suit land which measures 40 acres to one Odee. Ilaborot Peter (DW2) testified that Pius Inyangat was married to his aunt called Atim and that the suit land belonged to his grandfather Alepu s/o Otuco and that Alepu and Otuco were both buried on the suit land but that his father was buried away from the suit land due to insurgency and he only came in to enter the suit land in 2013 whereupon he proceeded to build a homestead and also started cultivating the same and that at the

that time no one was using the suit land. Ilaborot Peter (DW2) testified further that he was born in Omerimo camp where his father was also buried.

Opala Stephen (DW3) testified that the suit land measured 40 acres and that he inherited it from his grandfather called Otuco, who was also buried on the suit land. He further testified that he had 2 houses on the suit land which he built in 2013. DW3's narration of the fact was that he, together with Okwangan William DW1 and Ilaborot Peter DW2, who are his brothers migrated from Omerimong village, where they had fled to in the year 2000 due to insecurity but went back to the suit land after that. That, before going to Omerimong, they had been staying on the suit land. However, during cross-examination, Opala Stephen (DW3) told the lower trial court that prior to his family going for refuge to Omerimong, he was staying with his grandfather Angoia who was not staying on the suit land and that he only went to occupy the suit land in 2013 after leaving Omerimong.

On the issue of ownership, the trial magistrate noted in his in his decision as follows;

"I think the defendants have based their case on a wrong belief. It is not in all cases that burial of the deceased on a piece of land is evidence of ownership. In the instant case the late Otuco was considered for burial on the late Iculot Laberito's land as father-in-law. That burial did not confer land rights on the defendants as grandchildren of the brother of the late Otuco."

The trial magistrate noted that Otuco's entry onto the suit land was through his daughter Atim, who brought him onto the suit land to care for him after he became terminally ill and blind.

Having highlighted the above, I will now revert to the issues raised by the parties in their submissions. From the testimonies highlighted above, it is true that the Otela Otelamong who is the respondent herein told the lower trial court that suit land is 200 acres, Etole John (PW2) testified that the suit land is 100 acres while Adumun Philomena (PW3) and Atinge Pampus (PW4) told the court that the suit land is 50 acres and 80 acres respectively.

It was argued by counsel for the appellants that the respondent departed from his earlier pleadings from which he had claimed 40 acres and instead claimed 200 acres which was not pleaded. DW2 (Ilaborot Simon) and DW3 (Opala Simon) both testified that the suit land is 40 acres. DW1 (Okwangan William) told the court that the suit land measured about 250 acres which claim is similar to that made by the respondent but contradicts the testimony of DW2 and DW3.

In **Bale & Another vs Okumu Civil Appeal No. 21 of 2005**, while referring to Makau Nairuba Mabel v. Crane Bank Ltd., HCCS No. 380 of 2009 per Obura J.; Okecho Alfred v. Uganda, S. C. Crim. Appeal No24 of 2001; Alfred Tarjar v. Uganda Crim. Appeal No 167 of 1969(EACA), the court summed up the position of the law relating to contradictions and inconsistencies which is now is well settled in that where there are major contradictions and inconsistencies in a piece of evidence intended to mislead or tell deliberate untruthfulness, such evidence may be rejected. If, however, they are minor and capable of innocent explanation, they will normally not have that effect.

Taking into account the testimony on record, I am in full agreement with the counsel for the respondent that the contradictions being referred to by the appellants' counsel can be considered a minor one which is capable of an innocent explanation and not meant to mislead the court as the issue of acreage is not directly in question but the ownership of the suit land.

From the testimonies on recorded which is not controverted PW1 Otela Otelamong inherited the suit land from Pius Inyangat, his father, who also acquired the suit land from his father Laberito Iculot. Iculot died in 1966 and was buried on the suit land. PW1's testimony is bolstered by that of PW2, PW3 and PW4. Further PW2, PW3 and PW4 told the trial court that the brother of grandfather of the appellants, one Otuco was brought onto the suit land by his daughter Atim, who was married to Iculot at the time which testimony corroborates that of the respondent and his witnesses given the fact that the appellants/ defendants' claim to the suit land is based on the fact their inheritance of the suit land was grounded on the fact that Alepu was their grandfather, who inherited the suit land from one Otuco.

However, what is clear to me is that the appellants/ defendants did not provide any convincing cogent evidence regarding the ownership or entry of Otuco onto the land. Neither did they specifically rebut the assertion by the respondent and his witnesses that Otuco merely came onto land as a result of his daughter Atim bringing him onto the land for caregiving.

Furthermore, it is clear from the evidence on record that the appellants' history and stay on the suit land only stems from 2013 when it is clear that they came to be on the land after coming Omerimong village given the testimonies of DW2 and DW3 that they only started staying on the suit land in 2013. There is no history or cogent fact showing how they were occupying the suit land prior to moving to Omerimong village. Only what can be gleaned from the evidence that the appellants rather were staying at the home of one Angoya who was not staying on the suit land but rather was staying about a mile away. Additionally, DW2 and DW3 were born at Omerimong village with only DW1 testifying that he was born on the suit land to Odee.

The argument of counsel for the appellant's is that from the testimony of DW1, DW2 and DW3, the appellants' grandfather and great grandfather, Alepu and Otuco, were in occupation of the suit land because their graves could still be seen on the suit land. and that their late father's homesteads were still on the same thus these pieces of evidence were sufficient evidence to prove that the appellants were in occupation of the suit land since the lifetime of their great grandfather Otuco while the respondent was not in occupation of the suit land and so the appellants had a better claim to the suit land.

I am, however, in full agreement with the finding of the trial court that the mere fact that Alepu and Otuco were buried on the suit land could not confer any ownership rights as to the suit land, more cogent evidence had to be brought in court to prove ownership given that the burial of the two deceased persons on the suit land was sufficient proof.

Even the testimony of Ilaborot Peter (DW2) that his father showed him the suit land when he was young cannot be believed for such evidence is not corroborated. Arising from the summation of evidence above as to the ownership of the land, I am convinced that the learned trial magistrate arrived at a correct decision when he found that the respondent/ plaintiff had better customary rights over the suit land than the appellants/defendants for the respondent had proved on a balance of probabilities that the suit land belonged to him. In the premises ground one and two are found without merit and are hereby dismissed.

## b. Ground $3$ :

That the trial magistrate perfunctorily conducted the visit to the locus in quo and *hence arrived at the wrong decision*

It was the submission of counsel for the appellants that the trial court did not follow the procedure laid out for conducting the locus in quo under Practice Direction No. 1 of 2007 which includes the ensuring that the parties and their advocates were present during the locus in quo, parties and their witnesses allowed to adduce the evidence at the *locus in quo*, the allowing of cross examination by either party by either party or his/ her counsel and recording all the proceedings at the *locus in quo*. To that effect, it was argued that PW2, PW3 and PW4 were not cross- examined by the appellants, while Ojakol Silver was also denied the opportunity to testify and that the respondent himself was even absent, his witnesses were not allowed to be cross-examined, while the sole witness of the appellant was denied the opportunity to testify and lastly that there was no record of proceedings for under Direction 3 (d) of the Practice Directions 2007.

For the respondent, on the issue raised in regard to locus in quo proceedings, it was submitted that the trial magistrate adopted the correct procedure for he noted all that had transpired, allowed cross examination by counsel and parties and even recorded all proceedings at the *locus in quo*. Furthermore, it was affirmed that the attendance sheet showed that the parties and their witnesses were all present and that if the appellants chose not to cross examine the witnesses, that non action was a choice which cannot be attributed to the trial magistrate. That, therefore it is not true that the locus proceedings were skewed in favour of the respondent. That, the practice direction on the issue of orders relating to registered land only affects tenants by occupancy and that the appellants were not tenants by occupancy.

In this third ground of appeal, the Appellants argument is that the trial court did not follow the procedure laid out for conducting the locus in quo as provided for under Practice Direction No. 1 of 2007, including ensuring that the parties and their advocates were present and the allowing of the parties and their witnesses to adduce the evidence. In this regard, I would refer to the decision in the case of Mukasa v. *Uganda (1964) EA 698 at page 700* where it was held thus:

"A view of a locus in-quo ought to be, I think, to check on the evidence already given and, where necessary, and possible, to have such evidence ocularly demonstrated in the same way a court examines a plan or map or some fixed object already exhibited or spoken of in the proceedings. It is essential that after a view a Judge or Magistrate should exercise great care not to constitute himself a witness in the case. Neither a view nor personal observation should *be substituted for evidence.*"

Having carefully perused the locus in quo proceedings, my conclusion is that contrary to what has been submitted by counsel for the appellants, the plaintiff / respondent (the administrator Otela Otelamong Pius estate) was present during the locus in quo proceedings as is clearly noted in the attendance sheet on record. Furthermore, at locus in quo proceedings, Ilaborot Peter (DW2) and Opala Steven (DW3) were in attendance, while only Okwangan William (DW) was absent and the reason for his absence being that he was away serving a sentence in prison.

In further contrast to the submissions of the appellant, I also observe from the proceedings at the locus in quo that the appellants' witness, one Ojakol Silver also testified at the locus and was even cross-examined. Given this position, I am satisfied that the appellants' right to a fair hearing as provided under Article 28 (1) of the Constitution was upheld by the lower trial court.

In addition, I am satisfied that that the proceedings, including the testimonies of the witnesses, those present and the drawing of maps at the locus in quo were carefully carried out and recorded by the lower trial court which summarised its opinion and

conclusion on what transpired at the *locus in quo* in its judgment and then went on to make its final decision that indeed the respondent had proved his case on a balance of probabilities.

Therefore, as pointed out in the case of **Bale & Another vs Okumu** that an appellate court will not merely interfere with a lower court's exercise of discretion, simply because it could have exercised its discretion differently, I would find as an appellate court that there is no need for me to interfere with the lower court's exercise of its discretion for it adopted such procedure as is provided for by the law. In the premises, Ground Three of this appeal is found to be without merit and is hereby dismissed.

c. Ground $4$ :

That the decision of the trial magistrate occasioned a miscarriage of justice on the appellants.

The appellants argued that the decision of the trial magistrate occasioned a miscarriage of justice on the appellants. The respondent on the other hand submitted that the trial magistrate properly evaluated the evidence on record and arrived at a just decision and therefore there was no miscarriage of justice.

Under the law, a miscarriage of justice occurs when it is reasonably probable that a result more favorable to the party appealing would have been reached in the absence of the error with the appellate court required to examine the entire record, including the evidence, of the lower court before setting aside the judgement or directing a new trial on that account as was held in Obita vs Kilama & 4 Others Civil Appeal No. 64 of 2017.

In respect of this appeal, I have had the opportunity to examine the entire record and the evidence of the parties and as earlier found above, I am satisfied that the trial court's decision and its findings were based on sound legal principles arising from a proper assessment of the evidence on record. That being the case I would conclude that the decision of the trial magistrate did not occasion a miscarriage of justice on the appellants and as such the fourth grounds of appeal fails.

## 5. Conclusion:

In the final result, this is found to have no merit on all grounds and thus it is dismissed with costs to the respondent.

I so order.

Hon. Justice Dr. Henry Peter Adonyo

Judge

12<sup>th</sup> January, 2022