Olanya and Another v Ladur and Another (Miscellaneous Application 134 of 2024) [2024] UGHC 1201 (20 February 2024)

## **THE REPUBLIC OF UGANDA**

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

# **(MISC. APPLICATION NO. 134 OF 2024)**

## **(ARISING FROM CIVIL APPEAL NO. 030 OF 2023)**

## **(ARISING FROM CIVIL SUIT NO. 06 OF 2020)**

## **1. OLANYA CHARLES**

**2. MUKASA S/O OLANYA CHARLES======================= APPLICANTS**

**VERSUS**

# **1. LADUR JUSPINAH**

**2. ABAK SANTINO======================================= APPLICANTS**

## **BEFORE HON. JUSTICE PHILLIP ODOKI**

## **RULING**

## **Introduction:**

[1] The Applicants filed this application, by Notice of Motion, seeking to be allowed to adduce additional evidence in Civil Appeal No. 030 of 2022 and that the costs of this application be provided for. The application was brought under Articles 126 of the Constitution of the Republic of Uganda, 1995; Section 80 of the Civil Procedure Act, Cap 282; and Order 43 rule 22(1) (b) and Order 52 Rules 1 & 3 of the Civil Procedure Rules S. I. 71-1.

## **Background:**

[2] In 2020, the Respondents instituted Civil Suit No. 06 of 2020 against the Applicants in the Chief Magistrate Court of Gulu. They alleged that they are the widows of the late Labongo Thomas. According to them, in 1889 during the tribal conflict between the Acholi and Langi, the father of Labongo Thomas, the late Andrea Mwodo, acquired unregistered land measuring approximately 100 acres situate at Oluba Village, Kal Parish, Ongako Sub – county, Omoro District (hereinafter referred to as 'the suit land') as a gift inter vivos from Agonyo. Andrea Mwodo lived on the suit land with his wife Auma Lucia, cultivated, reared animals and produced his children from the suit land, including Labongo Thomas.

[3] After sometime, a one Kamilo moved from across Olabo stream and settled on part of the land Agonyo had given to Andrea Mwodo. Kamilo and Andrea Mwodo settled on the land peacefully since it was a big land. Andrea Mwodo erected a perimeter fence with barbed wires along *Lucuro* and *oywelo* trees which ran from the North to the South up to Olabo stream to prevent his animals from crossing onto Kamilo's land on the East of the perimeter boundary. Kamilo and Andrea Mwodo co – existed and respected the boundary of the barbed wires which Mwodo planted during their lifetime and had no dispute. Andrea Mwodo died and was buried on the suit land within his homestead.

[4] After the death of Andrea Mwodo, the suit land was inherited by his eldest son, Labongo Thomas. Labongo Thomas and his family also had quiet possession and use of the suit land for cultivation and rearing of animals without any dispute with Kamilo until his death in 2003. Labongo Thomas was buried on the suit land near where his father was buried.

[5] Upon the death of Labongo Thomas, the suit land was left under the authority of the Respondents and their children. They were in quiet possession of the suit land. The Applicants' father (Okumu Tadeo) has land which is separated with the suit land by the barbed wires plated on the *Lucuro* and *oywelo* trees. In 2006 the Applicants, without any claim of right, trespassed on the suit land, destroyed the trees which was the boundary of the suit land, burnt 6 acres of sorghum, 6 acres of cassava, poisoned 4 cattle and continued to trespass on the suit land.

[6] The Respondents sought for a declaration that they are the lawful owners of the suit land; a declaration that the Applicants are trespassers on the suit land, a permanent injunction to restrain the Applicants from further trespassing the suit land and interfering with the Respondents quiet possession of the suit land; an eviction order against the Applicant; general and exemplary damages; interest and the costs of the suit.

[7] In their Written Statement of Defense, the Applicants alleged that their grandfather Agonyo gave the Respondents' father in law (Andrea Mwodo) land since he was married to the sister of the Applicants grandfather (Auma Lucia). According to the Applicants, the land which was given to Andrea Mwodo is different from the suit land. The Applicants denied the allegations that the suit land was fenced with barbed wires. They also denied that the land which was given to Andrea Mwodo was left under the authority of the Respondents upon the demise of Labongo Thomas. According to the Applicants, it was instead the Respondents who trespassed on the suit land. The Applicants prayed that the suit should be dismissed with costs.

[8] The hearing proceeded interparty. The Respondents adduced 4 witness. That is, Ladur Juspinah who was P. W.1, Obonyo Denis who was P. W.2, Lobongnyinge Augustine who was P. W.3 and Okot Micheal who was P. W.4. The Applicants adduced 3 witnesses. That is Olanya Charles as D. W.1, Okello Cosmas as D. W.2 and Yusuf Adwani as D. W.3. The Court visited the locus where P. W.3, P. W.5 and D. W.2 testified.

[9] On the 24th March 2023 the trial magistrate gave her judgment. She found that there was glaring evidence that the suit land was gifted to Andrea Mwodo. She declared that the Respondents are the owners of the suit land, found that the Applicants are trespassers on the suit land, gave a permanent injunction to restrain the Applicants from trespassing on the suit land, awarded the Respondents general damages of Ugx 5,000,000/=, issued an eviction order against the Applicants and awarded the Respondents the costs of the suit.

[10] The Applicants were dissatisfied with the decision of the trial Magistrate. They filed Civil Appeal No. 030 of 2023. The grounds of the appeal are;

- 1. That the learned trial magistrate erred in law and fact when she held that the suit land forms part of the land which was gifted to the late Adrea Mwodo by the late Agonyo whereas not hence occasioning a miscarriage of justice. - 2. That the learned trial magistrate erred in law and fact when she declared the Respondents as the lawful owners of the suit land contrary to the evidence on the record thereby occasioning a miscarriage of justice. - 3. That the learned trial magistrate erred in law and fact when she ignored the Applicants' evidence at the locus in quo contrary to the law thereby arriving at a wrong conclusion.

[11] Before the appeal could be heard and determined, the Applicants filed this application to adduce additional evidence.

#### **The Applicants' case:**

[12] The grounds of the application are contained in the Notice of Motion, supported by the affidavit of the Applicants (in support of the application and in rejoinder). Briefly, the Applicants contend that they are the occupants of the suit land having acquired it from their grandfather Agonyo. On the 2nd December 2019 the Applicants, together with a one Oryema John, applied for conversion of the suit land from customary land into freehold. On the same day (2nd December 2019) the Area Land Committee issued out a notice of inspection of the suit land scheduled for the 16th December 2019. On the 16th December 2019 the suit land was inspected by the Area Land Committee. On the 21st November 2021 they were issued with a freehold certificate of title.

[13] According to the Applicants, the additional evidence they intend to adduce is the certificate of title. The Applicants contend that the certificate of title for the suit land was not availed to the trial magistrate by their counsel in the lower court. In their view, the trial magistrate lost jurisdiction over the matter when the certificate of title was issued to the Applicants. They contend the judgment directly and indirectly cancelled their certificate of title. For that matter, they contend that the judgment is null, void, illegal and unenforceable as against the registered proprietor. The Applicants further contend that since the suit land was registered with other proprietors who were not parties to the suit, the judgment disentitles those other persons of their property interest without affording them the right to be heard. According to the Applicants, the additional evidence is credible, material, relevant to the issue in Civil Suit No 06 of 2020 and will enable the court to arrive at a just and fair decision and will avoid multiplicity of suits.

#### **The Respondents' case:**

[14] The Respondents opposed that application. The 1st Respondent swore an affidavit in reply in which he deponed that the Respondents filed Civil Suit No. 06 of 2020 unaware that the Applicants had commenced the process of securing a certificate of title for the suit land consequently converting the suit land from customary land to freehold. According to the Respondents, throughout the court proceedings, the Applicants deliberately concealed the information regarding he registration process of the suit land which was within their knowledge. The Respondents contend that the Applicants cannot use their own deliberate concealment of the information known to them to question the jurisdiction of the trial court. The Respondent further contend that the allegation that the trial magistrate lost jurisdiction after the applicants secured a certificate of title over the suit land is unfounded. In addition, the Respondents contend that they instituted Civil Suit No. 06 of 2020 for trespass of unregistered customary land and judgment was given on that basis. They contend that registered proprietors in the certificate of title have their new cause of action which can only be entertained by a separate suit.

#### **Legal representation:**

[15] At the hearing of this application, the Applicants were unrepresented. The Respondents were represented by Mr. Patrick Abore of M/s Abore Advocates and Legal Consultants.

#### **Legal Submissions:**

[16] Counsel for the Applicant submitted that the additional evidence that the Applicants seek to introduce was within the knowledge and possession of the Applicants during the hearing in the lower court. In addition, counsel submitted that the intended additional evidence introduces a new cause of action since the case which was in the lower court was in respect of customary land. Counsel relied on the case of *Nanyonjo Aisha versus Kato Edward Ssalongo HCMA No. 542 of 2022* where the court emphasized that appellate courts may exercise its discretion to admit evidence only in exceptional cases.

#### **Analysis and determination of the Court:**

[17] This Court, as an appellate court, has the power under section 80(1)(d) of the Civil Procedure Act, Cap 71 to take additional evidence or to require such evidence to be taken, subject to such conditions and limitations as may be prescribed. The conditions and limitations are prescribed in Order 43 Rules 22(1) of the Civil Procedure Rules S.1.71 -1 which provides that:

#### *"22. Production of additional evidence in High Court.*

*(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the High Court; but if—*

*(a) the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted; or*

*(b) the High Court requires any document to be produced of any witness to be examined to enable it to pronounce judgment, or for any other substantial cause,*

*the High Court may allow the evidence or document to be produced, or witness to be examined."*

[18] The principles upon which an appellate can admit fresh evidence has been expounded by case law. In *Karmali Tarmohamed and Another Versus I. H. Lakhani and Co. [1958] EA 567,* Sir Kenneth O'Connor P., at page 574 stated that:

"*The principles upon which an appellate court should admit fresh evidence where the application is not made on the grounds of fraud or surprise are not, I think, in doubt. I take the following passage from the judgment of Denning, L. J., in Ladd v. Marshall (1), [1954] 1 W. L. R. 1489, at p. 1491:*

*"To justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible."*

# [19] In *Michael Mabikke versus Law Development Centre Supreme Court Misc. Application No. 16 of 2015* the Supreme Court held that:

*"…an appellate Court may exercise its discretion to admit additional evidence only in exceptional circumstances which include;*

- I. *Discovery of new and important matters of evidence which, after the exercise of due diligence, were not within the knowledge of, or could not have been produced at the time of the suit or petition by, the party seeking to adduce the additional evidence;* - II. *It must be evidence relevant to the issues;* - III. *It must be evidence which is credible in the sense that it is capable of belief;* - IV. *The evidence must be such that, if given, it would probably have influence on the result of the case, although it need not be decisive;* - V. *The affidavit in support of an application to admit additional evidence should have attached to it, proof of evidence sought to be given;* - VI. *The application to admit additional evidence must be brought without undue delay."*

[20] The Supreme Court explained that the need for the exceptional circumstances is because there would be no end to litigation unless a court can expect a party to put its full case before the court. In *Aluma Michael Bayo and others versus Said Nasur Okuti High Court Misc. Application No. 0012 of 2016* my learned brother Judge Mubiru stated that:

*"In general, it would undermine the whole system of justice and respect for the law if it were open to a party to be able to re – run a trial simply because potentially persuasive or relevant evidence had not been put before the court. An obligation rests on the parties to adduce any material evidence before the court, and if they fail to do so they cannotrequire a second hearing to put the matter right. Exceptionally, however, justice conflict with the principle of finality. Evidence sometimes emerges which suggests that the court may have reached the wrong decision in circumstances where* *it might be unjust not to reopen the judgment. Hence the courts have developed principles for determining when justice requires a case to be re- opened and a new trial ordered…"*

[21] In the instant application, the lower court did not refuse to admit the certificate of title. To the contrary, the Applicants who were well aware of the existence of the certificate of title, chose to not to plead it and also chose to hide the information from the court. The allegation that it was their lawyer who did not avail the certificate to the trial court is unfounded since it is not the role of their lawyer to adduce evidence. More importantly, this court does not need the certificate of title to pronounce its judgment on appeal. The dispute which was in the lower court concerned unregistered land and not registered land. The grounds of appeal are very clear. The Appellants are faulting the trial magistrate for, holding that the suit land forms part of the land which was gifted to the late Adrea Mwodo by the late Agonyo; declaring the Respondents as the lawful owners of the suit land contrary to the evidence on the record; and ignoring the Appellants evidence at the locus. The certificate of title cannot therefore have any influence on the determination of those grounds of appeal or the entire dispute which was before the lower court. The allegation by the Applicants that the trial magistrate lost jurisdiction over the matter when the certificate of title was issued to the Applicants or that the judgment directly and indirectly cancelled their certificate of title has no legal basis. The certificate of title introduces a completely different cause of action which was not before the trial court and can only be a subject a different suit. The claim of the Applicants that the judgment disentitles the property interest of other persons included in the certificate of title as proprietors without affording them the right to be heard is without any merit. Such a claim, if at all is supported by any evidence can only be a ground for review of the judgement by the trial court and not this court.

[22] In the end, I find that this application has no merit. It is accordingly dismissed with costs to the Respondents.

I so order.

Dated and delivered this 20th day of February, 2024.

Phillip Odoki

**Judge.**