Olum & Others v Akongo & Others (Civil Appeal No. 21 of 2015) [2020] UGHC 121 (14 August 2020)


**3. BONGOZANA ALEX APPELLANTS**

Reportable

Civil Appeal No. 0021 of 2015

**And**

# **1. AKONGO MARATINA**

In the matter between

**1. OLUM TREMARS**

**2. OLUM THOMAS J. J**

**2. ORACH SAM RESPONDENTS**

# **Heard: 23 June 2020. Delivered: 14 August, 2020.**

*Civil Procedure — Missing record of proceedings —Where reconstruction of the missing record is impossible by reason of neither of the parties being in possession of the missing record, but the court forms the opinion that all the available material on record is sufficient to take the proceedings to its logical end, the court may proceed with the partial record. — Grounds of Appeal — Order 43 rule 1 (2) of The Civil Procedure Rules —grounds of appeal must not be argumentative. They should be stated concisely without any argument or narrative. They should be limited to specifying, in the case of a first appeal, the points of law or fact or mixed law and fact and, in the case of a second appeal, the points of law, and in a third appeal the matters of law of great public or general importance, which are considered to have been wrongly decided — Order 43 r (1) and (2) of The Civil Procedure Rules — Every memorandum of appeal is required to set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative, and the grounds should be numbered consecutively. — Limitation — sections 5 and 16 of The Limitation Act — actions for recovery of land must be commenced within a period of twelve years from the date of*


**IN THE HIGH COURT OF UGANDA SITTING AT GULU**

*adverse possession. Limitation begins to run from the date of the cause of action to the date of filing the suit*

*Evidence — section 56 (2) and (3) of The Evidence Act — courts are empowered to take judicial notice of practices that have attained such notoriety that court would be justified in taking judicial notice of.*

*Family Law — under the rules of Acholi customary intestacy law, upon the death of the owner the property, where there are multiple beneficiaries, the property vests undivided to all beneficiaries, the "heir" being only its titular guardian — before actual distribution, none of the beneficiaries has a private exclusive right to any part of the estate. The beneficiaries only have an interest "vested in possession" — They have the immediate and automatic right to receive the income arising from the estate property as it arises, or have the use and enjoyment of it, such as by living in the property forming part of the estate, but have no power of alienation — individual share of the property becomes alienable privately by the beneficiary, only after a distribution.*

## **JUDGMENT** \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

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## **STEPHEN MUBIRU, J.**

### Introduction:

[1] The respondents jointly and severally sued the appellants jointly and severally for recovery of land measuring approximately 30 meters x 25 meters situated at Apollo Ground, Town Parish, Kitgum Town Council in Kitgum District, a declaration that the land belongs to the respondents, general damages for trespass to land, punitive damages, a permanent injunction, interest and costs. Their claim was that the land in dispute originally belonged to the 1st respondent's late mother, Jilda Alur. Upon her death during the ear 1992, the 1st respondent inherited the land and sola s apart of it, measuring approximately 26 meters x 19 meters to the 2nd respondent. The 2nd respondent bought an additional part measuring 12 meters x 19 meters from a one Alum Susan. To their surprise, the respondents on or about 6th June, 2011 received notification from the 3rd appellant, a court bailiff, requiring them to vacate the land immediately, on grounds that it was an order arising out of litigation between the second appellant and a one Othieno Alfred. Subsequently, the appellants together forcefully evicted the respondents from the land, causing destruction of their houses and an assortment of their chattels in the process. As a result the respondents were rendered homeless and destitute. They later found out that the said Othieno Alfred was a tenant to one of their neighbours, Norah Acomo. The respondents were not party to the litigation leading to their eviction, hence the suit.

[2] In their written joint statement of defence, written statement of defence, the 1st and 2nd respondents averred that the 2nd appellant bought the land in dispute from a one Apio Santa on 6th June, 1998. The respondents took possession immediately and caused a survey of the land. They later erected structures on the land; one semi-permanent and two grass-thatched houses, and began paying municipal rates to the Town Council.

### The respondent's evidence in the court below:

- [3] P. W.1 Martina Akongo testified that the land in dispute originally belonged to her late mother Alur Jilder. She died while the witness was only aged three years. Before her death, Alur Jilder used to grow seasonal food crops and some perennial crops on the land. Part of the land was used as pasture for livestock. She sold part of it to the 2nd respondent. The appellants have since taken possession and constructed a permanent house and temporary ones on the land. - [4] P. W.2 Orach Sam testified that he bought part of the land in dispute from the 1st respondent during the year 2009. He paid in two instalments; 1st June, 2009 and the second instalment in September, 2009 (exhibit P. Ex.1). He bought an additional piece from Alum Sarah after part of her land became a road reserve (exhibit P. Ex.2). He presented an agreement of purchase which is dated 14th January, 2010. He took possession of the land during the year 2010. He had constructed thereon a commercial building up to the ring beam level when he together with the 1st respondent were arrested at the instigation of the 2nd

appellant and taken to the police station. The appellants demolished his building based on a document that cited a one Otieno Alfred. At the time he purchased the land he saw about five graves of the 1st respondent's deceased relatives on the land.

- [5] P. W.3 Okwera Geoffrey testified that the 1 st respondent had been his neighbour since the year 1966. He found her in occupation of the land in dispute by the time he settled in that area. The dispute over the land began only around 1998 when the 2nd appellant began claiming the land. The 1st respondent sold the land to the 2 nd respondent. In 1983 the 1st respondent's mother had sold the land to a one Omara Charles, who died later. The purchase price was refunded. The 2nd respondent began construction of a building on the land. The 2nd appellant demolished it. The 1st respondent's sister, Apio Santa, is deceased. The land belongs to the 1st respondent, not the 2nd appellant. - [6] P. W.4 Okello Vincent testified that he has lived in the neighbourhood of the land in dispute since the year 1968. He shares a common boundary with the land in dispute. It originally measured approximately two acres but what is left of it now is a small plot. The 2nd appellant married a sister to the 1st respondent. The dispute over the land began around 1996. The building that had been constructed on the land was demolished. The 1st respondent's mother died while resident on that land around the year 1996 and it is the 1st respondent who thereafter inherited the land. At the time of her mother's death, the 1st respondent was an adult and had a child of her own. - [7] P. W.5 Komakech Sam, the L. C.1 Chairman of the area, testified that the land in dispute belongs to the 1st respondent. It is on 25th May, 2005 that the 1st respondent complained to him that the 2nd appellant was constructing a building on her land. He proceeded to the land where he directed the 2nd appellant to cease his construction. Around 1980, a one Akera requested the 1st respondent's mother for a place to construct a house, for temporary stay. He was given

permission to construct a house on that land. He was later during the year 1996 joined by the 2nd appellant and they lived together in that house. In 1996 Akera vacated the house and left it to the 2nd appellant who built two additional huts during the year 2005 and a semi-permanent house in the year 2012. When the 1 st respondent's mother subsequently died she was buried on that land. The 1st respondent had six grass thatched houses, a mango tree and acacia tree on the land. There are two other graves of her deceased relatives on the land. The 1st respondent's sister, Santa too used to live on that land.

- [8] P. W.6 Obol David testified that he had since the year 1995lived in the neighbourhood of the land in dispute which belongs to the 1st respondent. He shares a common boundary with it on the Western side. The 2nd respondent had during the 1990s built a house on that land. The 2nd appellant took possession of the land and constructed thereon a building of his own. The 1st respondent used to live on the land together with her sister, but by the year 2000 she was no longer living on the land. From what he heard, the land belonged to their mother and upon her death they inherited it. Apart from their mother's grave, there are other graves of their deceased relatives on the land. The appellant resided near the land and might have thought that it belonged to no one. He demolished all the houses that were on the land. He built thereon two semi-permanent houses, using bricks from the demolished houses. He also cut down the trees on the land. The appellant must have negotiated with Akongo to construct on the land since he built during her presence on the land and she never raised a finger. - [9] P. W.7 Ocan Binancio testified that the respondents were his neighbours from 1992. He came to know the appellant when he was resident with his friend Akera, who vacated the land in 1995 leaving the 2nd appellant behind. The land belonged to Akongo, daughter of Alur Jilder but the 2nd respondent is attempting to obtain it forcefully. Alur Jilder died around 1992. By that time the 2nd appellant was living in a grass thatched hut on the land. Akongo inherited the land from Alur Jilder. The 2nd appellant built a house on that land during the time Akongo

was in the village. She reported the matter to the L. C.1 which decided in her favour. Later people claiming to be lawyers of the 2nd appellant came and demolished Akongo's house. Santa Apio died around 1995. She lived on her mother's land with her permission; she had no land of her own. The 2nd appellant bought part of the land from the 1st appellant.

#### The appellant's evidence in the court below:

- [10] D. W.1 Olum Thomas J. J. testified that he bought the land in dispute from Santa Apio on 9th June, 1998 (exhibit D. Ex.1). At the time there were two houses on the land which belonged to Apio Santa. On 18th March, 1999 he engaged a surveyor and caused a survey of the plot, which is triangular in shape. He erected a building on the land during the year 2003. He has been paying ground rent for the land to the Town Council (exhibits D. Ex.2 and D. Ex.3). The dispute over the land began in the year 2003 when the 1st appellant brought his son-inlaw. He had erected a wall fence around the plot but the appellants destroyed it and he report a case to the police. There were no graves at the time he bought the land. The graves were on neighbouring land. The dimensions of the land he bought were not specified. The agreement of purchase was not witnessed by any of the neighbours. - [11] D. W.2 Apoto Esterina testified that as a member of the L. C.1 Committee at the time, she witnessed the agreement of sale between the 2nd appellant and Apio Santa. At the time the Apio Santa was very sick. Her mother's grave was located on that land and that is where she too was buried when she eventually died. The dimensions of the land were not established during that transaction. The trial court then indicated it would be visiting the locus in quo on 10th November, 2014 but the record of proceedings thereat is missing from the record of appeal.

#### Judgment of the court below:

- [12] In his judgment delivered on 18th May, 2015, the trial Magistrate found that it was the 1st respondent's case that she inherited the land in dispute in 1992 upon the death of her mother, Alur Jilder. The 2nd respondent bought a part of it. The 2 nd appellant claimed to be a bona fide purchaser of the same land from a third party, Apio Santa on 9th June, 1998. The court found that the land originally belonged to Alur Jilder before her death which occurred in 1992. Apio Santa, one of the daughters of Alur Jilder, had in 1998 sold the land to the 2nd appellant, yet the 1st respondent too sold part of the same land to the 2nd respondent in the year 2010. The 1st respondent had remained in occupation of the land following the death of their mother. Both the 1st respondent and Apio Santa had jointly inherited the land as beneficiaries. The 2nd appellant bought the land from Apio Santa in 1998 yet the 2nd respondent bought part of the same land from the 1st respondent during the year 2010. - [13] The court held further that it is a cardinal requirement in transactions related to the sale of land that the purchaser must make reasonable inquiries concerning existing interests in the land. It is the law that a purchaser who desists from making reasonable inquiries for fear of finding out the truth is not a bona fide purchaser. The 2nd appellant undertook purchase of the land without making such inquiries. Fraud is therefore imputed to the 2nd appellant. Consequently, the 2 nd appellant is a trespasser on the land. Judgement was entered in favour of the respondents with a declaration that they are the lawful owners of the land in dispute, a permanent injunction was issued restraining the appellants from trespassing onto the land and the costs of the suit were awarded to the respondents.

## The grounds of appeal:

- [14] The appellants were dissatisfied with the decision and appealed to this court on the following grounds namely; - 1. The trial Magistrate erred in law and in fact to support the open lies of the respondents and their witnesses which are so contradictory and they misled court. - 2. The trial Magistrate erred in law and in fact when he failed to evaluate the evidence thereby arriving at a very wrong decision. - 3. The trial Magistrate erred in law and in fact in holding that the sale agreement of the respondents was valid, ignoring the appellants' yet there is open forgery in the sale agreement of the respondents thereby occasioning a total miscarriage of justice. - 4. The suit is irregular and premature as the proper procedure was not followed and is bad in law and the appellants are challenging the same in the High court at Gulu with a high likelihood of success. - 5. The trial Magistrate erred in law and in fact in refusing the request of counsel for the appellants that proceedings in civil suit No. 51 of 2012 be stayed to conclude criminal matters; the respondents are being prosecuted for criminal trespass, malicious damage to property, uttering false documents and assault before his court where our clients are the complainants. - 6. The trial Magistrate erred in law and in fact in not respecting the limitation rule. - 7. The learned trial Magistrate erred in law and in fact in basing his judgment on the *nemo dat* rule yet the rule applies only to moveable goods not to the purchase of land.

#### Arguments of Counsel for the appellant:

[15] In their submissions, counsel for the appellant argued that the appellants adduced documentary evidence explaining the circumstances in which they purchased the land in dispute. Had there been anything wrong with that transaction, then the Town Council would not have approved their survey or payment of municipal rates. There was no evidence to show that the respondents were occupying the land at the time the 2nd appellant purchased it. The court should not have relied on the oral evidence of the respondents, without documentary proof, of their claimed inheritance of the land upon the death of their mother. There was no evidence of fraud regarding the process through which the appellants acquired ownership of the land. The principle of *nemo dat quo non habet* is found in section 22 of *The Sale of Goods Act* which relates to the sale of goods, not land. The appellants had begun the process of acquisition of a registered title to the land. The transfer of town plots is effected at the Town Council and not at the Lands Registry. Had there been fraud in the transaction, then the Town Council would have notified the appellants. The appellants adduced evidence to show that the transaction of purchase took place on 9th June, 1998. The appellants took possession of the land from that date and constructed three structures thereon, yet the suit was filed in the year 2012 which was about 24 years from the date the cause of action arose. The suit was time barred. The respondents had never occupied nor used the land. At the time of the trial, there was a pending criminal prosecution against the respondents. It was erroneous of the court not to have stayed the suit pending the disposal of that criminal case. They prayed that the appeal be allowed.

#### Arguments of Counsel for the respondents:

[16] The respondents never replied. # Duties of a first appellate court:

- [17] It is the duty of this court as a first appellate court to re-hear the case by subjecting the evidence presented to the trial court to a fresh and exhaustive scrutiny and re-appraisal before coming to its own conclusion (see *Father Nanensio Begumisa and three Others v. Eric Tiberaga SCCA 17of 2000*; *[2004] KALR 236*). In a case of conflicting evidence the appeal court has to make due allowance for the fact that it has neither seen nor heard the witnesses, it must weigh the conflicting evidence and draw its own inference and conclusions (see *Lovinsa Nankya v. Nsibambi [1980] HCB 81*). - [18] In exercise of its appellate jurisdiction, this court may interfere with a finding of fact if the trial court is shown to have overlooked any material feature in the evidence of a witness or if the balance of probabilities as to the credibility of the witness is inclined against the opinion of the trial court. In particular, this court is not bound necessarily to follow the trial magistrate's findings of fact if it appears either that he or she has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on demeanour of a witness is inconsistent with the evidence in the case generally.

# Missing part of the record of Proceedings.

[19] Before consideration of the merits of the appeal, it is noted that the record of proceedings relating to what transpired when the court visited the *locus in quo* on 10th November, 2014 is missing from the record of appeal. The law on missing record of proceedings has long been established. Where reconstruction of the missing record is impossible by reason of neither of the parties being in possession of the missing record, but the court forms the opinion that all the available material on record is sufficient to take the proceedings to its logical end, the court may proceed with the partial record (see *Mrs. Sudhanshu Pratap Singh* *v. Sh. Praveen (Son), RCA No.32/14 & RCA No. 33/14, 21 May, 2015* and *Jacob Mutabazi v. The Seventh Day Adventist Church, C. A. Civil Appeal No. 088 of 2011*). I find that the dispute in the case is about ownership of the specified land rather than its boundaries. I find that the available material on record is sufficient to take the proceedings to its logical end, and as such the missing part of the record is inconsequential.

## Ground two struck out for being too general.

[20] The court finds the second ground of appeal is too general that it offends the provisions of Order 43 r (1) and (2) of *The Civil Procedure Rules* which require a memorandum of appeal to set forth concisely the grounds of the objection to the decision appealed against. Every memorandum of appeal is required to set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative, and the grounds should be numbered consecutively. Properly framed grounds of appeal should specifically point out errors observed in the course of the trial, including the decision, which the appellant believes occasioned, a miscarriage of justice. Appellate courts frown upon the practice of advocates setting out general grounds of appeal that allow them to go on a general fishing expedition at the hearing of the appeal hoping to get something they themselves do not know. Such grounds have been struck out numerous times (see for example *Katumba Byaruhanga v. Edward Kyewalabye Musoke, C. A. Civil Appeal No. 2 of 1998; (1999) KALR 621*; *Attorney General v. Florence Baliraine, CA. Civil Appeal No. 79 of 2003*). The second ground of appeal is accordingly struck out.

## Grounds three, five and seven struck out for being argumentative.

[21] Furthermore, grounds 3, 5, and 7 are argumentative. According to Order 43 rule 1 (2) of *The Civil Procedure Rules*, grounds of appeal must not be argumentative. They should be stated concisely without any argument or

narrative. They should be limited to specifying, in the case of a first appeal, the points of law or fact or mixed law and fact and, in the case of a second appeal, the points of law, and in a third appeal the matters of law of great public or general importance, which are considered to have been wrongly decided. A ground contains narrative when apart from specifying the points considered to have been wrongly decided, it also contains averments that seek to illustrate or contextualise the point. An argument is merely a set of statements positing premises ending with one which is designated as the conclusion. A ground of appeal is considered argumentative when it contains evaluative averments suggesting a desired conclusion, or includes inferences and characterisations of facts. Grounds 3, 5, and 7 all fell foul to this requirement and are accordingly struck out.

#### Ground six; Limitation.

- [22] In ground 6, it was argued that the trial court overlooked the issue of limitation. According to sections 5 and 16 of *The Limitation Act*, actions for recovery of land must be commenced within a period of twelve years from the date of adverse possession. According to section 16 of *The Limitation Act*, time begins to run from the date of the adverse possession. Limitation begins to run from the date of the cause of action to the date of filing the suit (See *Miramago F. X. S. v. Attorney General [1979] HCB 24*). According to Order 7 rule 11 (d) of *The Civil Procedure Rules*, a plaint should be rejected where the suit appears from the statement in the plaint to be barred by any law. The implication is that whether or not a suit is time barred is determined by examining the contents of the plaint. - [23] In paragraph 7 (c) and (d) of the plaint, the respondents pleaded that the appellants' acts complained of began on 6th June, 2011 when the respondents received a letter demanding their immediate eviction from the land. This was followed shortly by an eviction. In his testimony as P. W.2, the 2nd respondent P. W.2 Orach Sam stated that it was during the year 2010 that he constructed a

commercial building up to the ring beam level when the appellants later demolished his building based on a document that cited a one Otieno Alfred. It is clear therefore that the appellants' acts complained of occurred sometime during the year 2011. Since it was alleged that the adverse possession began in 2011, a suit filed in the year 2015 would clearly not be time barred. This ground of appeal fails.

## Grounds one and four; courts' disregard of contradictions in respondents' evidence.

- [24] I find grounds 1 and 4 to be vague. Doing the best I can, I have understood them to be a critique of the trial court's disregard of contradictions in the respondent's case or that too much weight was attached to that evidence and that the decision was marred by procedural irregularities. It was common ground between the parties that the land in dispute originally belonged to the late Alur Jilder, mother of two sisters; Martina Akongo and Apio Santa. Both sisters lived with their mother on the land until her death which, according to P. W.4 Okello Vincent, occurred around the year 1996 while P. W.7 Ocan Binancio testified that it occurred around 1992. It appears that thereafter Apio Santa lived on that land until her death which according to P. W.7 Ocan Binancio occurred in 1995. Since it is a fact from all the respondent's witnesses that Apio Santa died after her mother, I am therefore inclined to believe P. W.7 Ocan Binancio and thus find that Alur Jilder died around 1992 rather than 1996. - [25] Although Apio Santa lived on that land thereafter until her death during the year 1995 and was buried thereon, according to P. W.6 Obol David, by the year 2000 the 1st respondent, Martina Akongo, was no longer living on the land. This is corroborated by the testimony of P. W.7 Ocan Binancio to the effect that by the time the 2nd appellant began construction of a building on the land, Martina Akongo was living in the village. The implication is that for some time between 1995 and the year 2010, the land had remained vacant save for the presence of the 2nd appellant who was occupying a house that formerly belonged to his friend

Akera, whom Alur Jilder had during her lifetime, permitted to temporarily occupy a part of her land.

- [26] The 2nd appellant's claim to the land is based on a purchase from Apio Santa that was executed on 9th June, 1998 (exhibit D. Ex.1). He erected a building on the land during the year 2003 and has been paying ground rent for the land to the Town Council; he paid an application fee for a Town Plot on 25th January, 1999 (exhibit D. Ex.3) and ground rent on 20th April, 2012 (exhibit D. Ex.2) respectively. - [27] On the other hand, the 1st appellant's claim to the land is by virtue of inheritance from her deceased mother, Alur Jilder, upon her death during the year 1992. The 2 nd respondent's claim is that of a purchaser from the 1st appellant of part of the land, by a transaction evinced by an agreement dated 14th January, 2010. The question for determination by the trial court then was which of the claims was superior to the other. - [28] Since the land originally belonged to Alur Jilder and there is no evidence that she left behind a valid will or any will at all, upon her death it passed into her estate, to be managed according to the statutory or customary laws of intestacy. Either statutory or customary or both laws will govern distribution of the property of an intestate. The succession to and the disposition and distribution of personal and immovable property, are governed by the general statutory law or the customary law the owner or intestate at the time of death, unless a statute provides otherwise. Statutory and customary law generally confer rights of inheritance only on blood relatives, adopted children, adoptive parents, dependants and the surviving spouse. It is evident from the facts that none of the only two known surviving blood relatives of the late Alur Jilder, her two children Martina Akongo and Apio Santa, ever took out letters of administration. The assumption is that they opted to deal with the estate, of which the land in dispute is part, under the Acholi customary law of intestacy.

- [29] Inheritance ordinarily means whatever one receives upon the death of a relative due to the laws of descent and distribution, which apply when there is no will. Under section 56 (2) and (3) of *The Evidence Act,* courts are empowered to take judicial notice *of* practices that have attained such notoriety that court would be justified in taking judicial notice of (see *Geoffrey Mugambi and two others v. David K. M'mugambi and three others, C. A. No. 153 of 1989 (K)*. In Acholi traditional custom, death of a propertied member of the family results not in inheritance but rather in a rearrangement of duties and of rights of participation in the produce of the land or rights of usage of the land itself. The land is re-allotted according to the rules of customary intestacy law. The rules of Acholi customary intestacy law settles the estate upon the eldest son (typically where the deceased is male) or to the eldest daughter (typically where the deceased is female) or sole surviving child, in such a way that it devolves to him or her undivided but subject to provisions of user for the widow, the daughters, younger sons, and other close dependant relatives. - [30] Under the rules of Acholi customary intestacy law, upon the death of the owner the property, where there are multiple beneficiaries, the property vests undivided to all beneficiaries, the "heir" being only its titular guardian. In the instant case, upon the death of Alur Jilder, the land devolved, undivided, unto her two children Martina Akongo and Apio Santa. Before actual distribution, none of the beneficiaries has a private exclusive right to any part of the estate. The beneficiaries only have an interest "vested in possession." They have the immediate and automatic right to receive the income arising from the estate property as it arises, or have the use and enjoyment of it, such as by living in the property forming part of the estate, but have no power of alienation. They have an immediate right to use or enjoy the estate property, or to receive any income from it, but not to dispose it off, which authority is collective. - [31] Individual shares in the estate property are only "vested in interest," which is present right to a future possession and use of, or interest in, the property. That

interest crystallises and that share of the property becomes alienable privately by the beneficiary, only after a distribution. There are two modes of distribution of property of an intestate. In a *per stirpes* distribution (section 28 (2) of *The Succession Act*), if a beneficiary is deceased at the time of distribution but is survived by any descendants, that beneficiary's descendants would take what their deceased parent would have taken "by representation." On the other hand, in a distribution *per capita* (section 28 (1) of *The Succession Act*), a share is not created for the deceased member and all of the shares of the other members will be increased accordingly if a member of the identified group is deceased at the time of distribution such that if there is only one surviving beneficiary, the entire estate will vest in him or her.

- [32] By the time of Apio Santa's death, there had not been a distribution and since there is no evidence showing that she was survived by any descendant, there could not have been a *per stirpes* distribution. The entire land vested in the sole surviving beneficiary, the 1st respondent, Martina Akongo, under a *per capita* distribution. - [33] The implication of the above analysis is that by the time Apio Santa purported to sell the land to the 2nd appellant, she did not have the capacity to do so. That transaction was null and void. When the 1st respondent, Martina Akongo sold to the 2nd respondent during the year 2010, she was the sole surviving beneficiary entitled to the entire estate of the late her late mother, Alur Jilder. The respondents' entitlement to the land was not disproved. The trial court therefore came to the right conclusion.

## Order:

[34] In the final result, there is no merit in the appeal, and it is accordingly dismissed with costs to the respondents.

Delivered electronically this 14 th day of August, 2020 ……Stephen Mubiru………….. Stephen Mubiru Resident Judge, Gulu

# Appearances

For the appellant : M/s Alliance Advocates.

For the respondent :