Otim v Oder & Another (Civil Appeal 12 of 2016) [2023] UGHC 356 (21 February 2023)

Full Case Text

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA **HOLDEN AT LIRA** LAND APPEAL NO. 012 OF 2016

(Arising from Land Claim No. 006 of 2015)

#### OTIM CHARLES ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

#### 1. ODER WILLIAM

2. OKELLO BOSCO :::::::::::::::::::::::::::::::::::

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

#### **JUDGMENT**

This Appeal arises out of the Judgment of the Magistrate Grade 1 of Apac Chief Magistrates Court, His Worship OKUMU JUDE MUWONE in Land claim No. 006 of 2013 delivered on the 10/6/2016.

The background of this Appeal is as follows;

The respondents/plaintiffs in Land Claim No. 006 of 2013 sued the appellant/defendant for the following reliefs;

- a) A declaration that the plaintiffs are the customary owners of the suit land measuring 120 acres located at Igulu cell, Kungu parish, Akokoro subcounty, Apac District. - b) An eviction order doth issue against the defendant. - c) A permanent injunction restraining the defendant from trespassing on the suit land. - d) General damages - e) Special damages - f) Costs of the suit. - g) Any other or alternative relief.

The plaintiffs claimed that they are the customary owners of the Suitland having inherited the same from their late father Otim Alibakosadi in 1970 who had also inherited the same from father called Oder Akec. The plaintiffs had homesteads and graveyards of both Otim Alibakosadi and Oder Akec on the suit land which they alleged were destroyed by the defendant. The defendant in 1976 conflicted with his brother and sought solace with the plaintiffs. Having been granted

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access/temporary stay on the suit land, the plaintiff in 1992 started grabbing the plaintiffs land and attempts to stop him proved futile as he became violent.

The defendant filed a written statement of defence wherein he averred that he is the customary owner of the suit land having inherited the same from his late father Abongo Tomateo who had inherited the same from his father Okao. He claimed that the issue of the land was settled by Awitong of the clan of Arak Oyakori and further contended that the plaintiffs have no cause of action against him and he prayed that the suit be dismissed with costs.

Since the parties were unrepresented, court came up with the following issues for determination.

- 1) Who is the rightful owner of the suit land? - 2) Whether the defendant trespassed on the suit land? - 3) What remedies are available to the parties if any?

The trial Magistrate delivered judgment in favor of the Plaintiffs (Respondents) on 10th June 2016 by making the following orders: -

- a) That the plaintiffs are declared the customary owners of the suit land 120 acres located at Igulu cell, Kungu parish, Akokoro subcounty, Apac District. - b) The defendant, his servants, sons, workmen and employees do vacate or be evicted from the suitland and they are to remove their illegal structures/buildings or the same be demolished therefrom. They are given 30 days to vacate. - c) General damages in the amount of shs $5,000,000/$ = against the defendant for trespass to the plaintiff's land. - d) The defendant and his sons are hereby permanently restrained from entering, occupying, cultivating or erecting structures/buildings on the plaintiff's land. - e) The defendant is also ordered to pay shs $1,000,000/$ = for reconstructing of Otim Alibaka sadi's grave which he broke. - f) The plaintiffs are awarded costs of the suit.

The Appellants being dissatisfied with the judgment of His Worship OKUMU JUDE MUWONE filed this Appeal.

At the hearing of the Appeal, the Appellants were represented by M/s Abwang Otim, Opok & Co Advocatés while the Respondents were represented by M/s Justice Centres Uganda.

On the 14th June 2019, Counsel for the Appellants filed a Memorandum of Appeal with one ground: $\overline{\phantom{a}}$

# 1. The Learned Trial Magistrate erred in Law and fact by failing to properly evaluate the evidence on record and apply the law thereby coming to wrong conclusions.

However, on the 12/3/2018, the appellant further filed an amended memorandum of appeal with three grounds to wit;

- 1. The Learned Trial Magistrate erred in Law and fact when he went ahead to try and determine a suit which on the face of the pleadings was barred by section 5 of the Limitation Act, Cap 80 Laws of Uganda. - 2. The Learned Trial Magistrate erred in Law and fact when he failed to properly evaluate the evidence on record and apply the law thereby coming to wrong conclusions. - 3. The Learned Trial Magistrate erred in Law and fact when he allowed the respondents to totally depart from their pleadings and granted remedies thereon thus occasioning a miscarriage of justice.

It is important to note that before addressing the grounds of the Appeal, I have to address my mind to the role of the 1st Appellate Court. The role of the 1st appellate court has to be addressed since this is a 1st appeal from the decision of the Magistrate Grade one to the High Court. The role was properly articulated in the case of Selle and Another versus Assosiated Motor- Boat Ltd and Ors (1968) EA 123 at Page 126 Justice Clement De Lestang stated the role of the first appellate court as follows;

"An appeal ... is by way of retrial ... the court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect".

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In re-evaluating the evidence and subjecting it to fresh scrutiny, I will keep in mind the evidence adduced by both parties at Trial in order to resolve the grounds presented in the memorandum of Appeal.

Both Counsel filed written submissions which I have duly considered. Both counsel argued grounds 1 and 2 concurrently, and ground 3 was addressed last.

Before arguing the grounds of appeal, counsel for the respondents raised a preliminary objection on the point of law that the Appeal is based on a fatally defective Amended Memorandum of Appeal.

Counsel for the Respondents submitted that the memorandum of appeal was illegally amended without obtaining the necessary leave from court. It was counsel's submission that Order 43 Rule 2(1) of the Civil Procedure Rules provides that the Appellant shall not except by leave of court of argue, or be heard in support of any ground of objection not set forth in the memorandum of appeal. Counsel submitted that on 12 March, 2018, the Appellants filed an amended Memorandum of Appeal without obtaining leave of court and he never knew of the application for leave. Counsel further submitted that order 43 r 2 of the civil procedure rules requires one to seek leave of court in order to amend a memorandum of appeal and order 52 r 1 and 2 provides for the procedure. In the absence of a formal application, it was counsel's submission that the appellant did not with the mandatory requirements which regulate appeals thus causing a grave irregularity and illegality which court cannot treat lightly. He referred to the case of Makula International v Cardinal Emmanuel Nsubuga & Others, Civil Appeal No 4 of 1981.

Counsel for the appellant submitted on page 2 of his written submissions that counsel Mike Abwang Otim orally prayed for leave to amend the memorandum of Appeal which court granted.

In the instant appeal, the first Memorandum of Appeal was filed on 14th June 2019 with one ground of appeal. On 12/3/2018, an amended Memorandum of Appeal was filed allegedly with leave of court on an oral application. I have perused the record of proceedings of this honorable court and I failed to trace counsel for the appellant's submission on the same. It therefore follows that counsel never made any application for leave to amend and as an afterthought, thought that he would sneak it in by way of submissions. This conduct cannot be condoned by this court.

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It is imperative to note that order 43 r 2 of the civil procedure rules requires one to seek leave of court in order to amend a memorandum of appeal and order 52 r 1 and 2 provides for the procedure of the said application. Much as Order 6 Rule 19 of the Civil Procedure Rules allows amendments to pleadings at any stage of the proceedings, the rule shows that it is court to allow the amendments. Where pleadings have been closed, parties have to seek permission from court to amend the pleadings.

In this case where an amended Memorandum of Appeal was filed without leave of court renders the amended Memorandum of Appeal 'incompetent.' As such the preliminary objection raised by counsel for the respondents succeeds and the amended Memorandum of Appeal filed on 12/3/2018 is incompetent and consequently struck off the record.

Having determined the preliminary objection and the amended memorandum struck off, this leaves court with only one ground of appeal for determination, that is;

1. The Learned Trial Magistrate erred in Law and fact by failing to properly evaluate the evidence on record and apply the law thereby coming to wrong conclusions.

A close study of the record of proceedings reveals that the respondent produced five witnesses while the appellant produced four witnesses.

PW1 states that he inherited the suit land from his father in 1970 when his father passed on. His father was buried on the same land. The suit land had been inherited by his father from his grandfather Oder Akec who passed on in 1973 and was also buried on the suit land. He further stated that he has been cultivating this land until 2012 when he was chased by the appellant whom he brought on the land.

PW11 stated that he also inherited the suit land from his father and was using it until 2012 when he was chased by the appellant whom they had brought onto the land and given 40 acres. The appellant/ defendant brought a surveyor and began surveying the land, he was wild and chased him away. He reported the matter to the Land and Equity Movement and clan leaders who failed to resolve the matter.

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PW111 states that he knows the parties very well because they are his brothers in law. He states that the suit land belonged to the plaintiffs' father Otim and it reverted to his elder son Oder William when he passed. The said Oder William herein the 1st respondent brought the appellant onto the land and gave him 40 acres. That he was called in 2012 to handle their case and that's when he knew that the appellant had encroached. The appellant further surveyed the land without anyone knowing.

PW IV stated that he knew the parties and the appellant who had many children was grabbing the respondents' land.

DW1 stated that he is the owner of the suit land is over 40 acres and that he inherited the same from his father Abongo Tomateo who died in 1981 and was buried on the suit land. He further stated that he shares a boundary with the plaintiffs and he also surveyed the land.

DW 11 a clan chief states he knows the parties and the land and he distributed the land. However he does not know the size of the land. During cross examination, he stated that the defendant's mother was buried on the suit land but he does not know the exact place.

When he was further cross examined by PW11, he states that he just gave away land where the plaintiffs' father was buried to the defendant because he feared the plaintiffs would die and it is close to the home of the defendant.

At locus, the trial magistrate noted that the defendant's son (appellant) had constructed new structures on the suit land one on the former homestead of the 1st plaintiff and the former homestead of the plaintiff's parents.

The plaintiff identified and showed where the grave of his father was but it was recently destroyed.

I have had the benefit of perusing the record and the testimonies of the witnesses, I find that indeed the trial magistrate was right in holding that the suit land belongs to the respondents. DW 1 & DW11's testimonies seemed elusive as he was not even sure where his father was buried. Dw11 testified that it was DW1's mother that was buried on the suit land and yet DW1 alleges it was his father. He also states that he distributed the land but he didn't know its acreage.

I therefore agree with the trial magistrate's findings that he properly evaluated the evidence when he found in favor of the respondent and held that the appellants trespassed on the respondents land. This ground thus fails.

In the final result, there is no merit in the appeal. It is consequently dismissed. The costs of the appeal and of the court below are awarded to the respondent.

Dated and Delivered at Lira this ....................................

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**ALEX MACKAY AJIJI JUDGE**

2186/or/23

Karonio absseno Porryane for Paronio Borryane for Overse de

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