Otim and Another v Odele (Civil Appeal 4 of 2023) [2024] UGHC 527 (30 April 2024)

Full Case Text

The Republic of Uganda

In the High Court of Uganda at Soroti

Civil Appeal No. 0004 of 2023

(Arising from Kumi Civil Suit 0006 of 2016)

10 1. Otim James Peter 2. Obwor Sam

**Appellants**

Versus

Odele Richard (Administrator of the Estate of the late Muron Erisaniya) ::::::::::::::::::::::::::::::::::::

$5$

Before: Hon. Justice Dr Henry Peter Adonyo

Judgement on Appeal

(An appeal from the judgement and orders of the Chief Magistrates Court of Kumi at Kumi delivered on the 19th day 20 of December 2022 by His Worship Maloba Ivan, Magistrate Grade 1)

## 1) Background:

and costs of the suit.

The respondent filed Civil Suit No. 006 of 2016 against the appellants jointly and severally for a declaration that the suit land forms part of the estate of the late Muron Erisaniya, a declaration that the appellants are trespassers on the suit land, an order of vacant possession, a permanent injunction, general damages

The land in dispute is 6 gardens, 5 of which are next to the swampy area locally $\mathsf{S}$ known as "apuuton" and one on the up land known as "oitela" situate in Kodike village, Kodike parish, Nyero Sub-county in Kumi District.

The respondent's claim as per the amended plaint filed on 21/10/2019 was that at all material time the suit land belonged to Muron Erisaniya who had obtained

as follows; 1 garden was his own, 2 gardens were given by Emmanuel Odele, 1 10 garden was given by Dargligy Iroja and 2 gardens were given by Anderia Orada and that from 1982 it had been in utilisation of the respondent with authority of the late Muron Erisaniya.

That the utilisation of the suit land remained undisturbed until the year 2015 when the 1st appellant started asserting claims over the suit land.

That in 1979 the late Muron Erisaniya purchased some land Nyero village, Nyero sub county and in 1982 he relocated to the said land leaving the respondent in occupation and utilisation of the suit land.

That he was however surprised in 2015 when the 1st appellant wrote to him ordering that he stop utilising the suit land claiming that the same belongs to his late father Odele Dominic who passed on in 1988.

The 1st appellant is said to, irrespective of the respondent's response, to have forcefully started utilising the suit land with a lot of threats to the respondent with the 2nd appellant trespassing and even removing boundary marks on one garden out of the six in August 2015.

The appellants in their amended joint written statement of defence denied the above claims, contending that $1^{st}$ appellant and his siblings are the rightful owners/beneficiaries of the suit land arguing the suit land devolved to them upon

the death/disappearance of his father Odele Dominic during the insurgency in $\mathsf{S}$ about 1989.

That the 1st appellant has at all material times been in peaceful enjoyment and occupation of the suit land with no disturbance from any person, whosoever, except from the respondent. That the $2nd$ appellant is not in occupation of the suit land.

The $1st$ appellant further counter claimed that he was the lawful owner of approximately 11 gardens of land located at Kodike village, Kodike parish, Nyero sub-county in Kumi District and the same devolved to him upon the death/disappearance of his father Odele Dominic.

That upon filing the instant suit the respondent trespassed on a portion of the 1st 15 appellant's land.

The respondent in reply to the counterclaim denied every allegation therein. Reiterating that he is the rightful owner of the suit land having acquired the same by inheritance from his father the late Muron Erisaniya.

- The trial Magistrate having heard the matter entered judgment in favour of the 20 plaintiff now respondent and issued the following orders and declarations; - a) A Declaration that the land situate in Kodike Village, Kodike Parish, Nyero sub county, Kumi District measuring approximately six gardens forms part of the estate of the late Muron Erisaniya. - b) A declaration that the Defendants are trespassers on the suit land. - *c)* An order of vacant possession is hereby issued against the Defendants. - d) An order of Permanent Injunction restraining the Defendants, their agents or any person deriving interest from them from trespassing on the suit land is hereby issued.

- e) An order of General Damages of Ugx. 2,000,000/= (Two Million Uganda shillings) against the 1st Defendant and Ugx. 500,000/= (Five Hundred *Thousand shillings) against the 2nd Defendant for the inconvenience caused* by the Defendants to the Plaintiff. - f) I will not award the costs of the suit. This being dispute between close relatives and I have also done so to promote unity in the family.

The appellants being dissatisfied with the trial court's judgement appealed to this court

- 2) Grounds of Appeal: - a) That the Learned Trial Magistrate Grade 1 erred in law and fact when he - failed to properly evaluate the evidence of ownership of the suit land and came to a wrong conclusion that the respondent is the rightful owner of the suit land. - b) That the Learned Trial Magistrate Grade 1 erred in law and fact when he rejected the evidence adduced by the appellants and their witnesses and declared the respondent as the rightful owner of the suit land. - c) That the decision of the Learned Trial Magistrate Grade 1 has occasioned a miscarriage of justice to the appellants. - 3) Duty of the $1^{st}$ 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 25 the lower trial court by subjecting the evidence presented to the trial court to a 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.

$\mathsf{S}$

The duty of the first appellate court was well stated by the Supreme Court of $\mathsf{S}$ Uganda in its landmark decision of *Kifamunte Henry Vs Uganda, SC, (Cr) Appeal* 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. 15 See: Lovinsa Nakya vs. Nsibambi [1980] HCB 81.

Accordingly, while considering this appeal, I have taken into account the above legal requirements.

## 4) Representation:

The appellants were represented by M/s Ewatu & Co. Advocates while the 20 respondent was represented by M/s Legal Aid Project of the ULS.

This matter proceeded by way of written submissions for which I thank counsels for the hard work put in drafting them and I have considered the same together with the pleadings, records of proceedings of the lower trial court, the evidence

and the judgment therefrom in the determination of this appeal. 25

5) Determination:

a) Ground 1.

$\mathsf{S}$

- That the Learned Trial Magistrate Grade 1 erred in law and fact when he failed to properly evaluate the evidence of ownership of the suit land and came to a wrong conclusion that the respondent is the rightful owner of the suit land. - Counsel for the appellants submitted that the respondent failed to present his 10 case on the balance of probability for which the appellants version was more believable.

That the position by the trial magistrate that the 1st appellant's witnesses contradicted his testimony is not true.

That there was no major contradiction in the testimony of the 1st appellant and 15 his witnesses that goes to the root of the case that warranted rejection of their testimonies.

Counsel then reproduced the evidence in the lower court, concluding that had the trial magistrate properly evaluated the same he would have found that the suit land belongs to the appellants.

Counsel for the respondent in reply also reproduced the evidence in the lower court submitting that the trial court cannot be faulted for its analysis of the evidence and subsequent findings as it had the opportunity to hear the testimonies and observe the witness's demeanour.

- 25 That the trial court properly evaluated the evidence and came to a just and rightful decision that the respondent was the owner. - b) Analysis and Conclusion:

The evidence on record is as summarised from the testimonies of witnesses thus;

PW1 Odele Richard (plaintiff) now the respondent herein testified that he $\mathsf{S}$ inherited the suit land (6 gardens) from Muron Erisaniya who passed on in 2019. He told the lower trial court that his father also inherited the said gardens with one from his own father called Obwor Barinaba, two from one Anderea Oreta who was a brother to Obwor Barinaba and all these are in a place called "Apuuton". 10

The brother to Obwor Barinaba called Emmanuel Odele also gave Muron Erisaniya two gardens and the sixth garden was given to Muron Erisaniya after the death of his brother called Daligy Roger.

That Muron Erisaniya stayed on the six gardens for a long time even before he 15 the plaintiff (respondent) was born and that the $1st$ appellant's father was also around and never raised a complaint about the suit land.

That he the respondent (plaintiff) used the suit land from 1982 until 2006 when Otim James Peter (the 1st appellant) filed a suit against him before the clan and when the hearing of the matter failed, the 1st appellant was left cultivating his own gardens and the respondent remained on the suit land.

That around 2015 the appellants started to trespass on the suit land by cultivation and he reported the matter to clan leadership but it failed and the matter was reported to Action Aid which tried to intervene but the appellants only wanted to fight and so they were referred to court.

That when he came to court and filed a suit he was advised to go to Iteso Cultural 25 Union (ICU) on the claim that court had many cases. The ICU heard the matter and handed back the land to him in early 2019 but the defendants still went back to the land and continued cultivating it.

During cross-examination he told court that the 1st appellant's father was even $\mathsf{S}$ around in 1982 when he got the land.

PW2 Ogwang John Robert testified that he was the chairperson ICU (Iteso Cultural Union) when he first heard the issue relating the suit land.

That in a meeting held around 30th November 2016 they heard that four old men had given Muron Erisaniya gardens as follows; Iroga Darli one garden, Odelle 10 Emmanuel two gardens and another man called Andrew Oreta two gardens and an old man called Obwor Baranabas, who is the respondent's direct grandfather, had also gave Muron Erisaniya one garden making a total of six (6) gardens.

That during the said meeting and in the presence of Opio James Peter (the 1st

appellant), Odelle Emmanuel confirmed that he gave Muron Erisaniya his two (2) 15 gardens).

That Opio James Peter (the 1st appellant) upon hearing that sought adjournment on the claim that his aunties were not present who would give dissimilar evidence and so the meeting was adjourned to 28th April 2017 but on that date the aunties of the 1st appellant's failed to turn up and so ICU decided on the basis of the

evidence before them to give the land back to Muron Erisaniya.

PW3 Okoboi E. John testified that he is the area committee chairperson of Nyero sub-county who received a letter from ICU requesting he attend a meeting on the 30/11/2016 and that during that meeting he came to know that the land in

question had been donated to Muron Erisaniya by Roja Livingstone (2 gardens), 25 Odele Emmanuel (2 gardens) and Obwor Barinaba (1 garden).

PW4 Emuron Sam testified that he grew up with the 1st appellant and they used to cultivate the gardens together. That at that time, they were helping Muron Erisaniya and Odele Richard but when the 1st appellant came of age he was also

given his own share by Muron Erisaniya with each cultivating what belonged to $\mathsf{S}$ them.

That after some time, the 1st appellant left what belonged to him and encroached on what belonged to Muron Erisaniya.

During cross-examination this witness confirmed to court that the land Muron Erisaniya gave the $1^{st}$ appellant was the $1^{st}$ appellant's share which he Muron 10 Erisaniya was caretaking after the passing on of the father of the $1$ st appellant.

DW1 Otim James Peter (the 1st appellant) testified that the suit land was initially 11 gardens but he sold 3 and had remained with 8 gardens. That he inherited these 11 gardens from his father Odelle Dominic who was abducted in 1989

during insurgency and in 2006 after he had finished his S.6, the clan gathered to 15 show him the boundaries of his father's land and that is when he started cultivating the land fully and also giving some people to cultivate by mortgaging including the respondent.

That in 2015, when he was in Soroti, the respondent crossed the boundary of the land he had given him to another person's called Itiakorit Paul but he settled this 20 by re-instating the boundary.

That this is the time when he wrote a letter to the respondent asking him to stop cultivating the land he had given him.

During cross-examination he stated that the clan settled the land matter by showing him his boundary and they followed what his uncles and other aunties 25 had told them according to how his grandfather distributed the land.

That the resolving meeting was held on advise by the Uganda Human Rights Commission to which he had gone after his uncles Muron Erisaniya and Pumpilio failed to agree on the land that belonged to him.

DW2 Obwor Sam testified that his father Paul Itiakorit used to send him to $\mathsf{S}$ cultivate the suit land and that he cultivated half of a garden claimed by the respondent. That the suit land was his father's land.

DW3 Oluka Basil testified that when he grew up, the 1st appellant's father was cultivating the disputed land.

During cross-examination he stated that the 1st appellant has never sold any 10 gardens and he was not there when the clan sat. He also did not know how the $1st$ appellant's father inherited the suit land.

DW4 Asinge Peter testified that the 1st appellant's father Odele Dominic trusted him a lot and used to take him to plough the suit land and the 1st appellant

inherited 6 gardens from his father. He did not know how the $1^{\rm st}$ appellant's 15 father acquired the suit land but added that there were other gardens owned by the 1st appellant's father totalling about 12 in number and this is where he had constructed.

During cross-examination he told court that though he attended the clan meeting in 2006 when the 1st appellant was shown his land the document was shown in 20 court forged and that is why his name was not reflected yet he had been. This witness did not confirm or know how many gardens each of children of Barinabas Obwor got.

DW5 Itiakorit Paul (father to the 2nd appellant) testified that the respondent had trespassed on the 1st appellant's land which was about 6 gardens and that this $25$ had been for about eight years.

That the respondent sued the 2nd appellant instead of him yet its him who showed the 2nd appellant where to cultivate. That the suit land is his and he is the one who instructed the $2^{nd}$ appellant to cultivate. This witness, however, later changes his testimony and stated the land was for $\mathsf{S}$ the 1st appellant who inherited it after his father passed on.

During cross-examination he confirmed that he did not know how the late Barinabas Obwor distributed the land to his children though he stated that the 1st appellant's father was given six gardens and the respondent's father was not

given gardens because he was stubborn and he was there when Barinabas Obwor 10 was distributing land to his children.

During cross-examination he stated that he was not aware that the clan sat in 2006 and he did not attend any meeting yet his name is on the attendance list. He told court that the 1st appellant had sold two gardens out of the eight he inherited.

On the 9/9/2022, a locus in quo visit was conducted by the trial court. The locus *in quo* report showed that the suit land was being cultivated by the appellants with the $1^{st}$ appellant even having set up fish ponds thereon.

The report of the ICU dated 28th April 2017 which was tendered in court and exhibited as PEX1 indicates that the respondent raised a similar complaint as in 20 the current matter against the $1st$ appellant of his taking over his six (6) gardens that he got from his father Muron with the 1st appellant in that meeting claiming that he was allocated those six (6) gardens by the clan upon his request for his late father's portion of the clan land.

Erisaniya Muron told ICU of how he got the six gardens as equally testified to by 25 the respondent in the lower court and this was confirmed by Emmanuel Odele.

The $1^{st}$ appellant at ICU told it that he was allocated the 11 gardens by the clan members whom he claimed who were present during ICU meeting and so he requested to take them to ICU on another date which request was granted. The

- ICU report indicates that on the date of 18th March 2017 when ICU again $\mathsf{S}$ reconvened, the 1st appellant and his witnesses failed to turn up and upon inquiry it was discovered that the 1st appellant had deliberately refused to attend the meeting. - The ICU committee proceeded to deal with the matter and in its findings, amongst others, noted that the said clan of the parties had on the 10/05/2006 10 forcefully allocated the 1st appellant eleven (11) gardens which included the six (6) suit land and that these six gardens have been in contention for since 2006 because the respondent did not authenticate the exercise. It also noted that while the respondent explained clearly how he got the six (6) gardens neither the clan nor the $1^{st}$ appellant explained how he got the eleven (11) gardens. 15

This report finding aligns with the testimonies given in the lower court as to how the respondent got the suit land with his testimony maintained throughout that he inherited the suit land from his father Muron who had been given the same by his father and other elders. The same report corroborated testimonies of witnesses in court as to the $1^{st}$ appellant's unproven claim to the suit land.

In dealing with the matter, the trial magistrate in his judgement noted the following;

"It is trite that any chain of ownership of land or title to property must have a first link. The rule is that possession lies at the root of title. According to Section 110 of The Evidence Act, when the question is whether any person is the owner of anything of which he or she is shown to be in possession, the burden of proving that he or she is not the owner is on the person who affirms that he or she is not the owner.

It was clear in the evidence adduced in court by both parties that at the time of filing the suit, the 1st Defendant was in possession of the land in dispute. (See Kaggwa Micheal versus Apire John Civil Appeal No. 0126 of 2019)"

The trial magistrate further noted that;

$5$

"The legal position is that the Plaintiff in a suit for declaration of title and possession can succeed only on the strength of his or her own title. The Plaintiff has to succeed only on the strength of his case and not on the weakness of the case set up by the Defendant in a suit for declaration of title and possession. That can only be done by adducing sufficient evidence to discharge the onus, irrespective of the question whether the Defendants have proved their case or not. The burden in the suit was on the Plaintiff to prove that the Defendants were not the rightful owners of the suit land and that they are trespassers despite the Defendants being in possession of the suit land."

I find the above reasoning balanced and coherent and I would agree with it. This is based on the fact that the evidence adduced in court by respondent show that 20 at the time of filing the head suit he had been dispossessed of the same by the 1st appellant and he had the burden of proofing that he had a better claim to the suit land that overtook the actual possession by the 1st appellant.

In order to prove his case, the respondent led evidence of a number of witnesses who confirmed that the suit land originally belonged to his father Muron 25 Erisaniya. These witnesses, without being contradicted, told court of Muron Erisaniya came to possess the total numbers of the gardens he had and from whom he got those total numbers of gardens.

Indeed, the said witnesses confirmed that Muron Erisaniya got the gardens in the $\mathsf{S}$ following manner. One garden he got from his father Obwor Barinaba, two gardens from Anderea Oreta (a brother to Obwor Barinaba), another brother to Obwor called Emmanuel Odele also gave Muron Erisaniya two gardens and the sixth garden was given to Muron Erisaniya after the death of his brother called Daligy Roger. The factualness of this testimony was maintained by PW1 and all 10

his witnesses throughout and was not controverted. Similarly, PEX1, the ICU minutes prove that when Muron Erisaniya was still alive and he told ICU of how he got the suit land from the named persons by the plaintiff and his witnesses. This document was similarly not controverted by the

appellants with PW2 who was the ICU Chairperson confirming the decision of ICU 15 as was contained in PEx1.

Likewise, PW3 who was the area land committee chairperson at the time, similarly confirmed that he was present during the ICU meeting and learnt heard how the suit land had been given to Muron Erisaniya by his named relatives therein. All these pieces of evidence were not disproved by the appellants.

On the other hand, the 1st appellant's only proof to his claim of the suit land was an alleged clan meeting which he said was held on the 10/05/2006 and in which he was allocated the eleven (11) gardens said to have belonged to his late father.

While it is apparent that indeed the said clan meeting could have taken place, no evidence was adduced as to what transpired in the said meeting on the fateful 25 day.

This is so because Exhibit DEX1, which the 1st appellant relied upon is a contentious document. A closer scrutiny of these minutes show that they are not conclusive as proof of the $1^{st}$ appellant's claim to the suit land.

This is so because while the 1st appellant confirmed that indeed the clan meeting $5$ took place and insisted that it was a meeting, the respondent told court that no boundary resolving meeting took place but a land dispute.

The 1st appellant further testified that the said meeting happened after he first went to the Uganda Human Rights Commission where he took his complaint but was advised to first have a clan meeting where minutes would have been written 10 and resulting his having documentary proof. Thus that DEX1 which was the result of the meeting of the clan. DEX1 is a photocopy of a document not signed nor certified and Its translation DEx2 is not similarly not certified nor signed by whoever translated it.

- The other gaps which I see relates to DEx1 is while the 1st appellant state that the 15 clan members moved around 11 gardens with the people who were present signing it and that meeting happened in the presence of the LCI, LCII and the clan chairperson Irarak Aliarak, the document itself in its last statement state that Mzee Erisaniya Muron and his son Odele Richard refused to sign the attendance - sheet, raising suspicion as to whether the alleged meeting of the clan took place 20 or this was a forged document brought in court to pervert the cause of justice as a closure look at the document itself show similarity in the written names and even the alleged signatures.

The document, at least from its translation does not indicate that it was minutes of a meeting. It actually only makes reference to a clan visit and confirmation of 25 gardens to those of Otim James and it further mentions that the clan moved around the gardens of those of Otim James and counted the same.

Secondly, is appears to be a walk around exercise by some named people on the document to count gardens belonging to Otim James Peter rather than establishing ownership of the same.

Thus then if this was the case, then why would the $1st$ appellant need a letter $\mathsf{S}$ from the UHRC to his clan if indeed he was entitled to the suit land and it was his clan which was opening the boundaries so as to show him his father's land. if indeed, there was no dispute over the suit land with Mzee Muron Erisaniya?

$\mathcal{C}^{\mathcal{A}}\mathcal{A}$

This doubt as to the 1st appellant's claim to the suit land is further reinforced by the denial even by some of his witnesses who straightforwardly told court of 10 having never attended such a boundary opening exercise. For example, while DW4 Asinge Peter corroborates the 1st appellant's claim that UHRC gave him a letter to deliver to the clan so that the 1st appellant be shown his land, though he claimed that actually attended that meeting of the clan, he denied DEx1 stating 15 that it was forged as it did not have his names indicated thereon. He also testified

to being the LC1 chairperson of the area then to date and yet his name was not indicated on the document.

Another defence witness Itiakorit Paul (DW5) was not in the know as to whether his clan sat in 2006 and clearly stated that he did not attend the purported meeting though his names were listed on DEx1 at No. 12 and it is claimed that he thumb-printed against the same.

I cannot ignore these irregularities as they strengthen my opinion that while the clan meeting in 2006 could have happened, the details of the meeting and what transpired therein have not been adequately and truthfully relayed to this court.

I resolutely believe that the clan meeting in 2006 resulted from a dispute over 25 the suit land and the same was not resolved and somehow the 1st appellant found a creative way to present DEx1 as the document suggesting how he had been given the suit land yet if indeed he had been given the suit land in 2006, then it beats anyone's thinking as to why the next dispute between him and the

respondent only arise in 2015-2016 yet in this period the respondent was on the $\mathsf{S}$ suit land.

It is also worth noting that while the 1st appellant claimed the suit land through his father Odele Dominic, he failed to prove how his father came to own the suit land.

It is an unrebutted fact that the 1st appellant's father disappeared during the 10 insurgency around 1988-89, there is no evidence on record that prior to this disappearance he had been given land by his father or the location and size of the said land.

The 1st appellant himself stated that he was only 9 years old when he last saw his father and I find it hard to believe that at this age the 1st appellant was well aware 15 of the boundaries of his father's land.

More so, neither the 1st appellant nor his witnesses could tell court the portions of land Obwor Barinabas gave his sons Odele Dominic and Muron Erisaniya. It is only the respondent who was aware of the portion given to his father by Obwor Barinabas.

This knowledge further proves that the clan and the 1st appellant had no knowledge on the extent of Odele Dominic's land and therefore their claims to the suit land were unjustified.

Consequently, arising from the above analysis I find that the respondent clearly proved on a balance of probability that the suit land was for the late Erisania 25 Muron who was given the same by his father and uncles.

The $1^{st}$ appellant on the other hand failed to prove the fact that his possession was grounded in an earlier ownership of the suit land by his father as he did not prove that fact.

Regarding the 2nd appellant, his claim to the suit land was through PW5 his father $\mathsf{S}$ and in his testimony kept alternating between ownership of the suit land being his and that of the 1st appellant. He therefore had no clear stand on who the land belonged to, thus failed to prove the 2nd appellant's claim to the suit land.

The position of the law in circumstances similar to the instant one which is anchored on possession is that which was well stated in the case of **Kaggwa** 10 Micheal versus Apire John Civil Appeal No. 0126 of 2019 that;

> "It is trite that any chain of ownership of land or title to property must have a first link. The rule is that possession lies at the root of title. According to Section 110 of The Evidence Act, when the question is whether any person is the owner of anything of which he or she is shown to be in possession, the burden of proving that he or she is not the owner is on the person who affirms that he or she is not the owner.

> It was clear in the evidence adduced in court by both parties that at the time of filing the suit, the 1st Defendant was in possession of the land in dispute."

Having re-evaluated all the evidence on record, I would agree with the holding in Kagawa's case (supra) and would find that the trial magistrate was right to find that the suit land forms part of the estate of the late Muron Erisaniya and thus the respondent has a better claim to it than the appellants who have shown no iota of evidence to the contrary and thus were found trespassers thereon as indeed was the lower trial court finding when it stated that;

> "The legal position is that the Plaintiff in a suit for declaration of title and possession can succeed only on the strength of his or her own title. The Plaintiff has to succeed only on the strength of his case and not

on the weakness of the case set up by the Defendant in a suit for declaration of title and possession. That can only be done by adducing sufficient evidence to discharge the onus, irrespective of the question whether the Defendants have proved their case or not. The burden in the suit was on the Plaintiff to prove that the Defendants were not the rightful owners of the suit land and that they are trespassers despite the Defendants being in possession of the suit land."

Accordingly, this ground thus fails.

c) Grounds 2 and 3: $\frac{1}{2}$

That the Learned Trial Magistrate Grade 1 erred in law and fact when he rejected the evidence adduced by the appellants and their witnesses and declared the respondent as the rightful owner of the suit land.

That the decision of the Learned Trial Magistrate Grade 1 has occasioned a miscarriage of justice to the appellants.

Having determined the first ground in the negative, grounds 2 and 3 subsequently would fail 20

6) Conclusion and Orders:

This appeal fails on all grounds. Accordingly, the following orders are issued;

- a) This appeal lacks merits and it is dismissed accordingly. - b) The judgment and orders of the lower court are accordingly upheld. - c) I will similarly not award the costs of the suit as it is clear to me that this being dispute between close relatives who must reconcile as to their proper heritage and promote family unity.

I so order.

$\mathsf{S}$

Hon. Justice Dr Henry Peter Adonyo

........

Judge

30th April 2024

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$\frac{1}{2}$

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