Opio v Abong (Civil Appeal 38 of 2017) [2023] UGHC 427 (22 November 2023)

Full Case Text

# THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT LIRA

# LAND APPEAL NO. 038 OF 2017

## (Arising from Land Claim No. 009 of 2016)

OPIO BONIFACE ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

ABONG JAMES ::::::::::::::::::::::::::::::::::::

# **BEFORE: HON. JUSTICE ALEX MACKAY AJIJI**

#### JUDGMENT

#### **Background**

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The Plaintiff (herein referred to as the Appellant) instituted Land Claim No.009 of 2016 against the Defendant (herein referred to as the Respondent) for a declaration that the Plaintiff is the owner of the suit land, eviction order, a permanent injunction against the defendant, his agents and successors in title, general damages for trespass, mesne profits for deprivation of the use of the suit land, interests from the date of judgment till payment in full and costs of the suit.

### Plaintiff/ Appellant's facts

The Appellants facts were that the suit land forms part of the customary land that the Appellant acquired from his late father, the late Okello Simon Peter who also inherited the same from the late Onyala Girason in the 1970s, Onyala Girason acquired the suit land in 1942. That the Appellant was born and grew up on the suit land with his late father but fled as a result of the Lakwena insurgency in 1993 and sought refuge in Kenya and left the Appellant's uncle one Ocen John as caretaker. That in 1998 the Respondent's father trespassed on the suit land which prompted Ocen John to report the matter to LCIII who ruled in favour of Ocen John. That in 2000 the Respondent requested Ocen John to give him the suit land in exchange for another portion of land which Ocen John objected to. In 2003 Ocen John left the suit land because of the numerous arrests and harassment instigated by the Respondent.

That in 2010 the Appellant returned on the suit land and found the Respondent claiming that the late Okello Simon Peter sold to him the land and forged the sale agreement in that respect.

# **Defendant/Respondent's facts**

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The Respondent in his written statement of defence denied all the allegations made by the Appellant in his plaint and stated that the suit land originally belonged to one Garison Onyala, the Appellant's grandfather and the 2nd Respondent acquired it by way of exchange with his land located at Awio Village. That the Appellant's grandfather also cleared an adjacent land to that of the 2nd Respondent where both the Appellant's grandfather and the 2nd Respondent settled on, each of them settled on their respective portions of land without any interference.

He contended that the 2nd Respondent had a different portion of land about half Kilometer from the land in dispute, the Appellant's grandfather proposed to the 2nd Respondent in 1964 to give him the said land in exchange for his portion of land that bordered that of the 2nd Respondent, now in dispute.

That the 2nd Respondent welcomed the proposal because he had a large number of domestic animals that would be properly reared on his land and the portion that was owned by the Appellant's grandfather, thus accepted the exchange

That upon the exchange of the said land, the Appellant's grandfather vacated the land in dispute and relocated to the land he acquired from the 2nd Respondent with all his families including the Appellant's father, the 2nd Respondent too took full possession of the suit land and there had been no any complaint whatsoever

That the 2nd Respondent donated a portion of the suit land to the 1st Respondent who constructed a permanent residential house therein in 1984 and lived peacefully without any interference

### **Counter-claim**

The Respondents also filed a counter claim from where they claim a declaratory order that they are the rightful owners of the disputed land, measuring approximately 6 acres located at Aino Village, Aunga Parish, Iceme Sub-County in Oyam District, Permanent Injunction restraining the

Appellant from interfering with the counter claimants use and possession of the disputed land, general damages and costs of the suit.

The agreed issues as per the scheduling memorandum were that;

- $\mathbf{i}.$ Who is the rightful owner of the suit land - Whether the Respondents trespassed on the suit land ii. - What remedies are available to the parties iii.

The trial magistrate resolved the above issues in favour of the Respondents hence this Appeal.

### **Grounds of Appeal**

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- 1. The Appeal is based on the following ground; - i. That the learned trial magistrate erred in law and fact when he failed to properly evaluate evidence regarding the Appellant's ownership status on the suit land and engaging in fanciful theories and thereby occasioning a miscarriage of justice. - That the learned trial magistrate erred in law and fact when he misdirected himself ii. on the law of trespass hence declaring the Appellant a trespasser on the suit land thereby occasioning a miscarriage of justice - That the learned trial magistrate erred in law and fact when he compelled the iii. Appellant to close his case and denied him the right to call more witnesses thereby occasioning a miscarriage of justice. - That the learned trial magistrate erred in law and fact when he mishandled locus iv. proceedings thereby occasioning a miscarriage of justice - That the learned trial magistrate erred in law and fact when he struck off the 2nd $V$ . defendant (Abong Stephen) who had died without formal application thereby arriving at a wrong decision

### **Legal Representation**

M/s Jadar & Co. Advocates represented the Appellant whereas M/s Okwi & Co. Advocates represented the Respondent.

This appeal proceeded by way of written submissions and both parties complied.

I will however not reproduce them here but will consider them in the resolution of this appeal.

### **Duty of the first Appellate Court**

This is court is aware of its mandate as a first appellate court which is to re-evaluate the evidence on the court record not forgetting that it did not get a chance to see the demeanor of witnesses. See a case of Fr. Narsensio Begumisa and 3 ors Vs. Eric Kibenaga SSCA NO. 17 of 2002

This court will be guided by the above principle in the resolution of this appeal.

### **Analysis of court.**

This court will resolve the grounds of appeal as argued by counsel for both parties. That is ground one to ground 4. Both counsel decided to ignore the last ground.

### Ground No.1:

That the learned trial magistrate erred in law and fact when he failed to properly evaluate evidence regarding the Appellant's ownership status on the suit land and engaging in fanciful theories and thereby occasioning a miscarriage of justice.

From the Court record, PW1who was the Appellant's main witness told court that the suit land is for his grandfather Onyala Garison who died in 1989 and his father (Okello Simon) inherited the same from him in 1960's. This piece of evidence is not consistent. The fact that the Appellant's grandfather died in 1989, the Appellant's father ought to have inherited the alleged land in 1989 or after 1989 but not in 1960's like PW1 alleged.

It is trite law that one can only inherit the property of the deceased after his or her death.

PW1 further in cross-examination told court that; "it is not within my knowledge that the Defendant's grandfather hosted my grandfather. I am not aware that my grandfather exchanged land with the grandfather of the defendant." This is understandable considering the age of PW1. The transaction being talked about happened in 1964 before the birth of PW1. So, it is not surprising that he does not know the history of the suit land.

It is apparent from the court record that the Appellant's grandfather and the Respondent's grandfather were close neighbors when the grandfather of the Appellant exchanged 1 acre of land with the father of the Respondent in 1964 and he indeed shifted to the exchanged land. This fact was not challenged by the Appellant.

This court however also notes that the Appellant sued for the recovery of 6 acres and yet the exchange was only in respect of 1 acre and the rest of the acres originally belonged to the Respondent's grandfather and therefore not in contention. All this only bring this court to a conclusion that the Appellant does not know the history of the suit land.

The evidence of PW2 buttressed that of the Respondent when he said that the suit land belonged to his father who started settling on it in 1942. He however did not give a clear reason why his father did not stay on the suit land if it indeed belonged to him. This was proved when court visited locus and only found the house of the Respondent constructed in 1984 and the grave yards for the Respondent's relatives on the suit land.

It is obvious that when one settles on the land, he or she either cultivates the land, plants trees and constructs on the land. Contrary to that norm, in the current situation, the Appellant had nothing to show to court that the suit land has ever belonged to their family.

The Appellant/Plaintiff was therefore under a duty to prove his case on the balance of probabilities which he failed to do. See section 101 (1) of the Evidence Act Cap 6

In light of the above analysis, it is the finding of this court that the trial magistrate properly evaluated the evidence on the court record when he found that the suit land belongs to the Respondent.

Ground No.1 is answered on the negative.

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### Ground No. 3:

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That the learned trial magistrate erred in law and fact when he compelled the Appellant to close his case and denied him the right to call more witnesses thereby occasioning a miscarriage of justice.

According to the court record, the Appellant called a total of 6 witnesses. It is however trite that at the commencement of the suit, parties are allowed to file their trial bundles from where they indicate the witnesses they wish to call for their case and the Appellant indeed indicated 6 witnesses which he called.

However, the power to grant the application for leave to call other witnesses is at the discretion of court. Therefore, the trial magistrate's exercise of his discretion cannot be questioned unless if it was not exercised judiciously.

It is worth noting that a matter before court is not determined basing on the number of witnesses. Even one witness can be enough depending on the circumstances of a particular case.

Accordingly, the refusal by the trial magistrate to grant leave to the Appellant to call more witnesses in my view did not occasion any miscarriage of justice to the Appellant.

Ground No. 3 is answered in the negative.

#### Ground No.4:

That the learned trial magistrate erred in law and fact when he mishandled locus proceedings thereby occasioning a miscarriage of justice

It is trite that the purpose of locus visit is to verify what was testified in court. See a case Deo Matsanga Vs. Uganda 1998 KALR 57. Therefore, while at locus if the lawyers are not present, a witness is under a duty to inform court that there is something that he or she wants to show court, or else the court may only be interested in only verifying what was testified about in court.

And where parties are represented, a locus visit is normally reduced into court where both witnesses testify in chief and are cross-examined.

Be the above as it may, the evidence on the court record was enough to help court in the resolution of the suit even in the absence of the evidence from locus.

In the circumstance, the fact the Appellant's witnesses were not afforded a chance to testify at locus, did not occasion any miscarriage of justice to the Appellant.

Ground No. 4 is answered in the negative

In the case of Mbogo & Another vs Shah, [1968] EA, it was stated that: -

"An appellate court will not interfere with the exercise of the trial court's discretion unless it is satisfied that the court in exercising of its discretion misdirected itself in some matters and as a result arrived at a decision that was erroneous, or unless it is manifest from the case as a whole that the court has been clearly wrong in the exercise of judicial discretion and that as a result there has been miscarriage of justice."

In the instant case, I have not found any misdirection in the decision of the trial magistrate court to require interference by this Court.

In the final result, this appeal fails in the following terms;

- 1. The trial court's decision and orders are upheld - 2. Cost of this Appeal are awarded to the Respondent.

I so order

Dated and delivered in Lira this $22^{n}$ day of November 2023

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grosse

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ALEX MACKAY AJIJI $\boldsymbol{JU D G E}$