Olum v Eselu and Another (Civil Appeal 3 of 2022) [2024] UGHC 798 (28 August 2024)

The Republic of Uganda

In the High Court of Uganda Holden at Soroti

Civil Appeal No. 003 of 2022

(Arising from Kaberamaido Magistrate's Court Civil Suit No. 0024 of 2017)

Olum Omua Selestine ::::::::::::::::::::: 10 **Appellant**

Versus 1. Eselu Peter 2. Ewayu John Sharif <table>

....................................

(An Appeal from the judgement of the learned Magistrate Grade One, His Worship Emmanuel Pirimba of the Chief Magistrate's Court of Kaberamaido, delivered on 18<sup>th</sup> January 2022)

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

Judgement on Appeal

### 1. Background:

The appellant brought Civil Suit No. 0024 of 2014 against Egwau Isaac and the respondents jointly and severally for a declaration that he is the owner of approximately ten gardens of land situated at Asana Village, Okile Parish, Kobulubulu Sub-County, Kaberamaido District (suit land), a Permanent injunction to issue restraining the respondents and their agents from the suit land, general damages, and costs of the suit.

$\mathsf{S}$

#### 2. The Appellant's claim: $\mathsf{S}$

The appellant pleaded that he purchased the suit land from the late Mzee Misaki Byesekere in 2001 and another piece of land from the late Mzee Egwau Silver in 2004. He averred that the land was free from encumbrances and that he immediately utilised the suit land by cultivating it, grazing animals, and setting up a kraal on it because it formed a big block of land. He enjoyed quiet possession of the same until 2016, when Egwau Isaac started trespassing on the appellant's land by cutting down trees and cultivating and trespassing on the part of the land that he had purchased from Mzee Engwau Silver.

At a hearing on 21/08/2019, the appellant dropped the case against Egwau Isaac.

The appellant averred that the 1<sup>st</sup> and 2<sup>nd</sup> respondent started laying claims on the 15 appellant's land in June 2017, trespassed upon it, cleared the land by cutting down trees, including big etekwa trees, for purposes of cultivation, and dragged the appellant to the LCs courts over the disputed land.

## 3. The Respondents' denial:

- The respondents, in their Joint Written Statement of Defence, denied each 20 allegation in the plaint, contending that they had never trespassed on any portion of the plaintiff's land. The respondents contended that they are the rightful owners of the suit land, having inherited the same from their father, the late Ewayu Joseph, upon his death in 1988. - 25 They contended that their father's sister, Asamo Teresa, took care of the land until the respondents came of age, at which point they took rightful ownership of it. The respondents have never cut down trees and cultivated on the appellant's portion of land.


Instead, the appellant erected a kraal and a house for his herdsman on the first $\mathsf{S}$ respondents' land, but when the respondents approached him, the appellant abandoned the same.

Having heard the matter, the trial Magistrate found that the plaintiff/appellant failed to discharge the burden of proving his case on the balance of probability and was not entitled to the remedies sought.

The trial court found for the defendants/respondents and dismissed the plaintiff's, now appellant's suit with costs.

4. Grounds of Appeal:

The appellant, dissatisfied with the dismissal of his suit, appealed to this court on the following grounds. 15

- a) That the learned Trial Magistrate erred in law and, in fact, when he ruled that the suit land is the property of the respondents. - b) That the learned Trial Magistrate erred in Law and Fact when he failed to properly evaluate the evidence on record, thereby arriving at a wrong conclusion. - c) That the learned Trial Magistrate erred in Law and, in fact, when he failed to properly record the appellant's evidence on Court record, thereby arriving at a wrong conclusion. - d) That the learned Trial Magistrate erred in Law and Fact when he ruled that the respondents were not trespassers on the suit land, thereby dismissing the appellant's suit.

5. Duty of the first appellate court:

This Honourable Court is the first appellate court in respect of the dispute between the parties herein and is obligated to re-hear the case which was before

the lower trial court by subjecting the evidence presented to the trial court to a $\mathsf{S}$ fresh and exhaustive scrutiny and to re-appraise the same before coming to its own conclusion as was held in Father Nanensio Begumisa and Three Others v. Eric Tiberaga SCCA 17 of 2000; [2004] KALR 236.

The duty of the first appellate court was well stated by the Supreme Court of Uganda in its landmark decision of Kifamunte Henry Vs Uganda, SC, (Cr) Appeal 10 No. 10 of 2007 where it held that.

> "...the first appellate court has a duty to review the evidence of the case and to reconsider the materials before the trial judge. The appellate Court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it"

In rehearing afresh, a case which was before a lower trial court, this appellate court is required to make due allowance for the fact that it has neither seen nor heard the witnesses and where it finds conflicting evidence, then it must weigh such evidence accordingly, draw its inferences and make its own conclusions. See:

- Lovinsa Nakya vs. Nsibambi [1980] HCB 81. In considering this appeal, the above 20 legal provisions are considered. - 6. Representation:

The Appellant was represented by M/s Obore & Co. Advocates while the Respondents were represented by M/s Ewatu & Co. Advocates.

This matter proceeded by way of written submissions, which have been 25 considered in its determination.

### 7. Determination:

Counsel for the appellant argued grounds 1,2 and 4 jointly and ground 3 separately. while counsel for the respondents argued grounds 1 and 2 jointly then

- 3 and 4 separately. The court will determine grounds 1,2 and 4 jointly and then $\mathsf{S}$ resolve 3 separately. - a) Grounds 1,2 and 4. $\frac{1}{2}$

- That the learned Trial Magistrate erred in Law and in Fact when he ruled that the suit land is the property of the respondents. - That the learned Trial Magistrate erred in Law and Fact when he failed to properly evaluate the evidence on record thereby arriving at a wrong conclusion. - That the learned Trial Magistrate erred in Law and Fact when he ruled that the respondents were not trespassers on the suit land thereby dismissing the appellant's suit.

Counsel for the appellant contended that the appellant bought the suit land from Mr. and Mrs. Bisekere and that the sales agreement was tendered in by the appellant. However, the proceedings do not capture whether the said agreement was identified or exhibited in the trial court.

- Counsel also stated that the said agreement of purchase was not disputed by the 20 respondents while on the other hand, the 1<sup>st</sup> respondent besides claiming to have inherited the suit land only tendered in clan minutes appointing him heir, exhibited as "P1D1" at Page 11 of the proceedings. - Counsel submitted that the appellant's agreement of purchase is primary evidence as per Section 61 of the Evidence Act and outweighs the claims of the 25 respondents, which are solely premised on inheritance through customary tenure. That it is a conceded fact that the appellant bought the suit land from one Bisekere as at Page 15 of the proceedings DW1 (ESELU PETER) averred as follows during cross-examination; "You went and settled on Bisekere's land and do not bother us". 30

To counsel, the appellant had proved purchase of the suit land that the learned $\mathsf{S}$ trial magistrate came to a wrong conclusion that the suit land is the property of the respondents.

Conversely, counsel for the respondents in reply submitted that the learned trial magistrate rightly found the respondents' evidence more believable that the land

- in dispute originally belonged to their late grandfather Eselu Petro which land was 10 inherited by their late father Ewayu John which they inherited upon his death and that the land the appellant bought from Bisekere was a totally different piece of land. - That the appellant failed to tender in court the original or duplicate agreement of purchase to clarify the boundaries and location of the land he bought. The 15 appellant in his testimony could not clarify to court on the boundaries and or location of the land bought since he had no land purchase agreement. None of the appellant's witnesses were present when the alleged purchase took place. Counsel relied on the case of Edward Gatsinzi & Mukasanga Ritah v Lwanga - Steven, Civil Suit No. 690 of 2004 for the assertion that since the appellant had no 20 land sale agreement, he has no foundation for acquisition of the suit land *ab initio*.

b) Evidence on the record of the court:

PW1 Olum Omuo Selestino testified that he purchased the suit land from Mr. and Mrs. Bisekere at UGX. 800,000/= in 2021. Started staying on the land in 1986 till when the defendants encroached.

During cross-examination, he stated that he did not visit the land. That the land bought was not measured and that the map for it was drawn in Kayunga. That before 2001, he was on the land. That he had the document, but it got destroyed.

- PW2 Okumu Edmond testified that the 2<sup>nd</sup> and 3<sup>rd</sup> defendants are known to him $\mathsf{S}$ as neighbours. That the plaintiff is his brother. That the plaintiff stays on the suit land. That the disputed land is for the plaintiff. That the land is approximately 3 gardens. That the plaintiff bought the land around 2002 from Misaki Bisekere. That he was present during the purchase. That he does not know the acreage the - plaintiff bought. During cross-examination he stated that the land bought was not 10 measured. That he does not know if the plaintiff has the original sales agreement but that there were many people present at the time the land was sold.

PW3 Ejuku Nicholas testified that the plaintiff in 2016 against Emiyu before the L. C.1 about the same land in dispute. That the plaintiff produced the agreement showing that he bought land from Bisekere. That the neighbours are Emiyu, Ongen and Engwau.

During cross-examination he stated that he was not present when the plaintiff bought the land. That he only knew about 3 acres that was shown by the plaintiff. That the land between Emiyo and Olum is different from the land in dispute. That they were given a photocopy of the sale agreement.

DW1 Eselu Peter testified that in 1988 his father passed on and left the said land measuring about 7 acres on one side and 5 acres on another in Asana village. That he was elected heir in 2004 and granted letters of administration in 2017.

He presented original copies of the clan minutes and letters of administration. That the plaintiff signed on the minutes as No.23. That in 2003 he found the 25 plaintiff putting a kraal encroaching on his land together with a house. Upon informing him and LC1, they removed all the cattle, but the house remained. The plaintiff was living on Bisekere's land which neighbours his.

That in 2017 Epuku Joshua surveyed his land, and he was called as a witness, but $\mathsf{S}$ the plaintiff was not. Presented the map in original copy.

He clarified that the land in dispute is 3 acres out of the 7 acres. During crossexamination he testified that he was not present when the plaintiff bought land from Engwau and has not heard of the same. That the plaintiff settled on Bisekere's land. That currently no one is on the suit land.

DW2 Ewayu John Sharif testified that the land in dispute measures about 7 acres. That the land is not currently in use by anyone. That the plaintiff has never used the land apart from putting the kraal when DW1 stopped him.

During cross-examination he stated that the plaintiff was stopped by DW1 who 15 summoned a clan meeting to stop him.

DW3 Olobo Stanley testified that the land was for a one Petero a grandfather to the defendants, and that they inherited in 1985. That the plaintiff bought a neighbouring land belonging to Bisekere Misaki who was given it by the late defendants' grandfather. That he was present when the land was being sold and he knew the boundaries of the land as showed by Bisekere. That the land is currently occupied by none of the parties, that it was being used by the defendants. That the land has this boundary; from Asio tree to Dodoi tree, Anthill with *Elam* tree, then to *ateka* tree, the land between Olum and the land in dispute was Egara tree, Ejoro tree and went to Engwau.

25 During cross-examination he stated that he was present when the defendants inherited the land in 1988. That his name is on the land agreement between the plaintiff and Bisekere.

DW4 Ekemu Charles testified that he was present during the sale of land by Bisekere, he sold half and half remained for the land and the sale took place in

 - 2001. That the defendants did not enter the plaintiff's land. During cross- $\mathsf{S}$ examination he stated that the 3<sup>rd</sup> defendant has no home in the area in dispute. That the sale agreement was executed, and the plaintiff has a copy. That the distance between Ewayu and the land dispute is about 1km. - DW6 Byesisira John Stephen testified that he knew the plaintiff and that at one time they were staying together in the village of Asana. That he left the plaintiff 10 on the land (suit land) as a caretaker. That his father Misaki Bisekere sold the land to the plaintiff. That he started getting reports from the plaintiff that the defendants are entering the land. That he was invited when the matter was before the L. C III. That he came and told the court the boundaries in presence of the LC1 and LCIII and the land was not trespassed by Petero but instead the plaintiff 15 trespassed on the land, and we corrected the boundaries. That there was big tress that show the boundary mark. That he does not know what the plaintiff wants from the defendants' land. That no one has trespassed the area he sold to the plaintiff, and he found the plaintiff encroaching on the defendants' portion 20 claiming to be his own. During cross-examination that there were clear boundaries on all the neighbouring land.

c) Assessment of Evidence and Conclusions:

It is not in dispute from the evidence on record that the appellant in or about 2001 purchased a piece of land measuring about 3 acres from the late Mzee Misaki Bisekere. The contention that was before the lower court was as to whether the suit land is the same as the land that the plaintiff bought.

From the reading of the proceedings of the lower trial court, it appears to me that the matter before the lower court was substantially one for ownership over the suit land.

The trial magistrate appears to have been confused by the testimony of the $\mathsf{S}$ appellant who testified as PW1 when he referred to in his testimony in court at page 4 of the typed proceedings that;

> "I know all the defendants. We are not related to them. I have sued the defendants for trespass..."

However, from the record as seen from the plaint, the contention between the 10 plaintiff/ appellant and the defendant/ respondents was based on the purchased the suit land in 2001 from one Mr. Bisekere for the valuable consideration of UGX. 800,000/=. This confirmed by his plaint wherein he refers to annexures' "A" and "B" which are photocopies of purchase agreements and in cross-examination where he conceded that though he had the original documents, they had got 15 destroyed.

In the case of Hussein Juma v. Raphael Bwami, H. C. C. A N. DR. MFP6 of 1990 cited with authority in Edward Gatsinzi & Mukasanga Ritah V Lwanga Steven, Civil Suit 690 of 2004, court stated that;

"where sale of land is involved the purchase cannot be by mere presumption. There must be actual purchase with a written memorandum or note duly signed by the parties and the failure to prove the same would render the said claim baseless."

The laws of evidence are clear on how documentary evidence should be proved as well defined under the Sections 61 and 63 of the Evidence Act Cap which are 25 clear on the requirement that the document itself be presented before court for its inspection and further that the documents must be proved by primary evidence except in the instances under Section 64. These exceptional circumstances were not present in this case.


Nonetheless the respondents in their joint written statement of defence admitted $\mathsf{S}$ that the appellant did in fact purchase land from the Late Mzee Misaki Bisekere. Similarly, DW1, DW3, DW4 and DW6 all testified that there was a sale of land between the appellant and Bisekere.

Thus, the fundamental issue in question is whether the suit land is part of the land sold to the appellant or rather part of the land that remained in the hands 10 of the late Oselo Peter, which passed to Ewayu John and later to the two respondents.

At trial, the first respondent presented original copies of clan meeting minutes and Letters of Administration granted to him over the estate of the late Ewayu John. I find this sufficient evidence that the first respondent was entitled to manage land belonging to the late Ewayu John.

In the absence of the original copy of the agreement stipulating the boundaries of the land purchased by the appellant from the late Misaki Bisekere, it is proper for this, as it was for the trial court, to rely on the evidence of each party's witnesses and the findings of the locus visit to determine the boundaries of the said land and, therefore, to whom it belongs.

The appellant, in his cross-examination at trial, listed the people who were present during the purchase of the land as Ekale Robert, Etwau Peter, Obun, and Emut.

However, at trial, none of these were called as witnesses for the plaintiff's case, 25 and he only presented two witnesses who purport to have been present: himself as PW1 and his brother Okumu Edmond as PW2. These witnesses could not give the exact acreage or even point out any of the boundaries of the suit land and how it was demarcated. There were inconsistencies between the testimony of

PW1 and PW2. PW1 stated that the respondent's aunt stayed on the disputed $\mathsf{S}$ land for some years, whereas PW2 stated that the respondent's aunt lived on Ogwang's land.

There were also inconsistencies in PW3's testimony. In his examination in chief, he stated that the land in dispute was the same as that in the case between the appellant and Emiyo before the LC1 in 2016.

Later, in cross-examination, he stated that the land between Emiyo and Olum was different from the land in dispute. PW3 conceded that he was not present at the time of purchase.

The respondents, on the other hand, at trial presented several witnesses who were present at the time of purchase and were able to accurately provide the 15 court with the boundaries and demarcations of the suit land.

DW3 Olobo Stanley, aged 75 years, testified that he was present when the land was being sold by Bisekere to the appellant and even signed the agreement. He was able to explain the boundary of the land as follows: "from Asio tree to Dodoi

tree, Anthill with Elam tree, then to Ateka tree, the land between Olum and the land 20 in dispute was Egara tree, Ejoro tree and went to Engwau."

DW4 Ekemu Charles, also 75, was able to paint a clear picture of how the land the appellant bought came into his possession. He outlined that the land was given to the late Misaki Bisekere by the clan of Atengor, which allowed Misaki to stay.

Finally, at trial, the respondents were also able to present the son to the late Misaki Bisekere, DW6 Byesisira John Stephen, aged 62, who testified that he was present at the sale between his father and the appellant.

Furthermore, he had also once already clarified the boundaries of the land in a matter between the appellant and the late Ewayu John before the LCIII court.


He testified that he told the courts of the boundaries and found that the appellant $\mathsf{S}$ had encroached. He testified that a boundary opening was conducted, showing that the appellant was encroaching on the respondents' portion of land.

At the locus visit conducted on 23/12/2021, the LC1 confirmed it was at the boundary opening.

Considering the foregoing, it is clear to this court that the appellant did not prove 10 on the balance of probabilities that he is the rightful owner of the suit land.

All the witnesses he presented at trial could not ably identify any of the boundaries of the said land, despite the LC1 stating that he was present at the boundary opening.

Considering the evidence on record, I am more persuaded that the respondents 15 presented more convincing evidence to show that the suit land is not the same as the land sold by Misaki Bisekere to the appellant but rather formed part of the land that the respondents inherited from the late Ewayu John.

I am more inclined to find, as the trial magistrate did, that the appellant did not ably discharge his burden of proof. S.102 of the Evidence Act states, "The burden 20 of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.".

Thus that being the case, the appellant cannot be said to be the owner of the suit land in subject before the trial court. Grounds 1 and 2 of this appeal fail and naturally, so does ground four on the alleged trespass by the respondents as held in Adrabo Stanley v Madira Jimmy HCCS No. 0024 of 2013 by my Learned brother Stephen Mubiru that:

"Trespass to land occurs when a person directly upon another's land without permission and remains upon the land, places or projects any object upon

## the land (see Salmond and Houston on the Law of Torts, 19<sup>th</sup> edition (London: Sweet & Maxwell, (1987) 46)."

Having found that the suit land belongs to the respondents, it cannot be said that they were trespassers on their land.

- d) Ground 3. - 10

$\mathsf{S}$

- That the learned Trial Magistrate erred in Law and in fact, when he failed to properly record the appellant's evidence on Court record, thereby arriving at a wrong conclusion.

Counsel for the appellant contended that the learned trial magistrate failed to record the appellant's evidence when he left out the agreement to purchase the suit land.

I find no merit in this assertion because the appellant and, indeed, PW3 all stated that they did not have the original copy of the agreement. PW1, the appellant stated that the document got destroyed, and PW3 testified that even before the LC2 court, they were given a photocopy of the agreement and not the original. While the appellant said that it was destroyed, he did not provide any evidence

of and the circumstances of how the document was destroyed.

Similarly, I fail to see how the learned trial magistrate erred in recording evidence that the appellant and his witness both conceded to not being in possession of the original documents and merely went ahead to believe so without any proof presented thereto.

Furthermore, counsel for the appellant contended that the record of proceedings did not capture the testimony of PW2, and that page 6 was missing in the record of proceedings. I have perused the record of proceedings and the testimony of PW2 Okumu Edmond is recorded on pages 6-7.


I therefore find that ground 3 of this appeal fails too. $\mathsf{S}$

## 8. Conclusion.

This appeal has no merit by virtue of the finding above that the appellant was unable to prove on the balance of probabilities that the suit land was indeed the land which he bought from the late Mzee Misaki Bisekere. Therefore, in effect, the appeal fails on all grounds.

9. Orders:

- a) This appeal is dismissed for lack of merit on all grounds. - b) The appellant has failed to prove on all grounds that the land in dispute was indeed the one he bought afro the late Mzee Misaki Bisekere. - c) The judgement and orders of the trial magistrate vide Civil Suit No. 024 of 2017 of the Chief Magistrate's Court of Kaberamaido at Kaberamaido, delivered on 18<sup>th</sup> January 2022 by His Worship Emmanuel Pirimba, are hereby upheld.

d) The costs of this appeal and in the court below are awarded to the respondent.

I so Order.

28<sup>th</sup> August 2024

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