Ourum v Olupot (Civil Appeal 67 of 2023) [2024] UGHC 685 (16 July 2024)

The Republic of Uganda

In the High Court of Uganda at Soroti

Civil Appeal No. 0067 of 2023

(Arising from Soroti Chief Magistrates Court Civil Suit No. 012/2015)

Ourum Emmanuel :::::::::::::::::::::::::::::::::::: 10

Versus

Olupot Ahmza ::::::::::::::::::::::::::::::::::::

(This appeal arises from the judgement and orders of the Soroti Chief Magistrates Court at Soroti delivered on the 13<sup>th</sup> of July 2023 by Her Worship Tumuhimbise Nause, Magistrate Grade 15 One)

Before: Hon. Justice Dr Henry Peter Adonyo

Judgement on appeal

## 1. Background. 20

The appellant filed Civil Suit No. 12 of 2015 against the respondent for recovery of customary land measuring approximately one and a half acres/gardens situate at Ocorai village, Abuket Parish, Kyere Sub-county, Serere District, a declaration that the respondent is a trespasser, a declaration that the appellant is the rightful

25 owner of the suit land, a permanent injunction, general damages, eviction order, vacant possession, interest and costs of the suit.


$5$

His claim per the amended plaint filed on 8/01/2020 was that on or about 1988, $\mathsf{S}$ he acquired the suit land from his father late Ogolu James as a gift inter vivos before he met his death in 2006.

That his father had also acquired the same by way of purchase wherein he paid one cow to the respondent's father, late Otukei Sadulaka, in 1965 who needed

the same urgently for his marriage, and it was executed in the presence of late 10 Eyokalama, Odumunai and Dauda Odonga from whose kraal the one cow was picked.

That the appellant has since then developed the same uninterrupted by way of cultivation from 1988 till 2012 for a period of 24 years under the watchful eyes of the respondent and his late father.

That in 2012, the respondent's father the late Otukei, shamelessly and illegally without any legitimate claim of right, trespassed on the suit land when the appellant had cultivated millet thereon.

That the respondent's late father then rushed to sue the appellant before the LC

Il Court of Kamurojo and the said court illegally and highhandedly, without 20 jurisdiction, issued an injunction order prohibiting the appellant from weeding the said millet.

That the said LC court also went ahead to order the late Otukei to refund the appellant the purchase price which his father had paid to acquire the suit land in 1965.

That these orders were all nullified on appeal to the Chief Magistrates Court Soroti, which court further ordered a retrial hence this suit.

However, the late Otukei gave out the suit land to his son the respondent who is illegally developing the same.

The respondent in his amended written statement of defence denied the $\overline{5}$ appellants allegations contending that the appellant's father could not give out what did not belong to him both in title and in rem, the land in issue have been passed on from generation to generation within the family.

That the late Otukei Sadulaka had a different relation with the late Ogalu James, Eyokalama, Odumunai and Odonga in the 1960s as residents of the same region 10 and the respondent's father the late Otukei, was the herdsman for almost all the cattle kept in the village, upon which the same people together with the clan members agreed that the late Otukei give security in exchange for a bride price of one cow which was required at the time.

- That in the same spirit the respondent's family tolerated the appellant's father 15 utilisation of the suit land because of their past life as a community and that the late Otukei merely rushed to the local council courts to protect his interest in the property after seeing the changing character of the appellant. - The Trial Magistrate having heard the matter found that the plaintiff's/ appellant's evidence falls below the standard required in civil proceedings. She 20 found that he failed to discharge his burden and was not entitled to the remedies sought.

The Trial court found for the defendant/respondent and dismissed the plaintiff's, now appellant's suit with costs.

- The appellant dissatisfied with the dismissal of his suit appealed to this court on 25 the falling grounds; - a) That the Learned Trial Magistrate erred in law and fact when she failed to appraise and evaluate the evidence on record as a whole and came to a wrong conclusion when she dismissed the appellant's suit.

- b) That the decision of the Learned Trial Magistrate erred in law and fact when she held that there was no sale between the Appellant's father and the Respondent's father. - c) That the Learned Trial Magistrate erred in law and fact when she held that the mortgage over the suit land to the Appellant's father could not have conferred ownership rights to the Appellant. - d) That the decision of the Learned Trial Magistrate occasioned a miscarriage of justice. - 2. 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 15 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.

The duty of the first appellate court was well stated by the Supreme Court of 20 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

$\overline{5}$

such evidence accordingly, draw its inferences and make its own conclusions. $\mathsf{S}$ See: Lovinsa Nakya vs. Nsibambi [1980] HCB 81.

In considering this appeal, the above legal provisions are taken into account.

3. Representation.

The Appellant was represented by M/s Engwau & Co. Advocates while the respondent was represented by Opio & Co. Advocates. 10

This matter proceeded by way of written submissions and the same have been considered in its determination.

- 4. Determination. - a) Grounds $1 \& 2$ . - That the Learned Trial Magistrate erred in law and fact when she failed to 15 appraise and evaluate the evidence on record as a whole and came to a wrong conclusion when she dismissed the appellant's suit. - That the decision of the Learned Trial Magistrate erred in law and fact when she held that there was no sale between the Appellant's father and the

*Respondent's father.* 20

> Counsel for the appellant in his submissions outlined the evidence given in the trial court stating that the Appellant's evidence was well corroborated by PW 2, PW 3, DW 2 & DW 3 who re-affirmed the same and his testimony remained unchallenged while on the hand the defendant failed to show that the transaction

between his late father Otukei Sadulaka and the Appellant's father Ogoru James 25 was a mortgage.

To this point the Appellant had succeeded in proving the purchase of the suit land by his father Ogoru James which evidence the Learned Trial Magistrate ignored.

Counsel for the respondent in reply submitted that the trial magistrate rightly $\mathsf{S}$ evaluated the evidence on record and found that there was no sale. Further that the appellant relied on hearsay evidence which is not admissible under sections 58 and 59 Evidence Act. That the appellants evidence required corroboration by an independent witness which was not done and all the appellant's evidence fell short of the standard and did not prove his case in the lower court. 10

b) Evidence on record.

PW1 Ourum Emmanuel testified that his father Ogoru James gave him the suit land in 1988 in the presence of Ayiru Stephen, David Odonga and Odonga Richard.

That his father used to tell him how he acquired the suit land, the father of the 15 respondent came and picked one cow from his father for marriage and gave his father the suit land in exchange in 1965.

That the respondent trespassed on the land in 2012 and started using it for cultivation and construction.

PW2 Dauda Odonga testified that the appellant is his nephew and the suit land 20 belongs to the appellant. That the appellant's father used to stay on the suit land and later gave the same to the appellant in 1988 and he was present though no document was executed.

That the appellant's father bought the suit land from Otukei for one cow, this cow was from Dauda's kraal.

That when Ogoru bought the suit land for one cow, the late Eyokolamu and Levi Elau were present.

PW3 Odonga Richard testified that the suit land was given to the appellant in 1985 by Ogoru his father.

That Ogoru bought the suit land from Otukei, the father of the respondent for $\mathsf{S}$ one cow in 1965 and after the purchase Ogoru started farming on the land up to 1988 when he gave it to his son who also started using it for cultivation.

DW1 Olupot Ahmza testified that the suit land belongs to his father Otukei Sadulaka and upon his death in 2017 he became the owner of the suit land.

That the clan sat and as they were re-dividing the land, they found out that the 10 suit land had already been given to him and he was appointed to take care of the people his father had left behind.

That his father gave him the land in 1985 but there were no documents executed. That he began utilising the suit land in 2010 when he had grown up, he never utilised the suit land before 2010 because his father had given the same to his

brother Ogoru James in exchange for a cow.

That the cow was exchanged because he still had a debt having married and this cow was supposed to be given back to Ogoru and the clan sat and held a meeting in 2010 so that the appellant is given back his cow however the appellant refused

- saying they had bought the land but the clan decided that the land was not sold. 20 During cross-examination he stated that his father and clan elders told him that the transaction between Ogoru and Otukei was a mortgage, it was agreed that Ogoru would use the suit land until the cow was got and he used the land over 30 years. - DW2 Eskou James Peter testified that the suit land was customarily owned by the $25$ late Otukei but he hired it out to the father of the appellant in exchange for a cow in 1965.

That when it came to time for Otukei to refund the cow and get the garden back the appellant rejected saying his father had purchased it. That this resulted in the


clan gathered and brought witnesses, that is Dauda Odonga, Elau, Odumunai $\mathsf{S}$ Eyokoramu who said the cow was given for marriage, that it was given on condition of hiring the garden.

During cross-examination he stated that he was not present during the hiring of land transaction, he also confirmed that Ogoru utilised the land from 1965 to 2012 when the clan sat.

DW3 Okurut Charles testified that the suit land belonged to the respondent having inherited it from his father Otukei.

That Otukei had earlier hired the garden to the appellant's father for one cow. During cross-examination he stated that he was not present when the Otukei hired out the garden to Ogoru.

c) Assessment of Evidence and conclusions:

It is not in contention that the suit land was previously owned by the Respondent's father the late Otukei Sadulaka, what is in contention is whether Otukei Sadulaka sold or hired the same to the appellant's father Ogoru James.

DEX1 are clan minutes for a meeting held on the 11<sup>th</sup> of September 2010 by the 20 Ikomolo-Akile-Idwara-Mugi clan. The purpose of this meeting was the hearing of a case between Otukei Sadulaka and Odongo Dauda.

Therein, Mzee Otukei Sadulaka states that he had a problem completing his marriage to his second wife and he approached Odonga Dauda to borrow a cow

in exchange for hire of his garden. 25

That they agreed that Odonga remains with the garden until Otukei got the cow and he would then recover the land. When questioned by Odonga he insisted that he hired out and the garden to Odonga not Ogolu in 1965 Otukei as he had a shortage of dowry for the marriage of his second wife. Odonga told court that Otukei came to him and asked if his brother Ogolu could $\overline{5}$ help him with one cow as the late Ogolu had just received cows from his daughter's marriage.

That he escorted Otukei to the home of the late Ogolu where Otukei's problem was explained and the late Ogolu and his wife accepted to assist Otukei with a cow on condition that he sells the garden to him.

In this meeting Otukei first stated that it was only him and Odonga that participated in the transaction with no witnesses, however, Odonga managed to prove that there were other witnesses to the transaction.

Otukei also first agreed to have moved around the boundaries of the suit land with Ogolu and others but later denied it. 15

The witnesses to the transaction between Ogolu and Otukei were called with one Odumunai Yokolamu stating that on the day of the transaction he and Elau were left outside the Kraal while Odongo, Ogolu and Otukei went inside the kraal where they had a discussion, after which discussion they called Elau to get the

cow out of the kraal. He later claimed that the cow was given as a hire as did Elau Levi but given that they admitted to not being part of the discussion, I find these claims questionable and more of hearsay. However, they all agree the transaction was between Ogolu and Otukei not Odonga as claimed by Otukei.

This meeting further established, as did the testimonies in the trial court, that neither Otukei nor his son ever claimed the suit land from the late Ogolu in his 25 lifetime that is from 1965 to 2006, and that even after his death, the 1<sup>st</sup> attempt at claiming the land was in 2010.

It was further established that Otukei was not concerned with who was in possession of the suit land and did not know that it had been the late Ogolu

utilising the same. The end result of this clan meeting was that Otukei give $\mathsf{S}$ Ogolu's family Shs. 1,750,000 for the suit land if he is interested in the same.

From the above, I find it there is no clear evidence of a sale or hire between the late Ogolu and Otukei. Neither transaction was recorded and I find that this court cannot rely on DEX1 to find that there was a hire because just like in the lower

court, the minutes in DEX1 indicate that Otukei claimed a hire while Odonga 10 claimed a sale and no probable evidence as to either was given. Further the respondent did not bring any witness to the hire.

I further find the respondent's claim that the hire of the land was till Otukei returned the cow improbable as the transaction between Otukei and Ogolu happened in 1965 and the first claim to the land was in 2010, which is a period

of 45 years, in which period the respondent wants this court to believe Otukei failed to get a mere one cow in order to reclaim his land.

$20$

This contention is unacceptable as it goes against all logic for why would someone abandon his land for 45 years yet all he needs to reclaim it was a mere single cow?

I find that the evidence on record shows that after 1965 Otukei lost interest in the suit land and only later started claiming for the same as an afterthought after the death of Ogolu.

What is clear to me is that the late Ogolu acquired the suit land from Otukei in 1965 and utilised the same till he handed it over to the appellant in 1988, the 25 period after which the appellant continued to utilised the suit land till 2012 when the respondent trespassed the same.

The fact of occupation by the late Ogolu and his family from 1965 to 2012, a period of 47 years was not disputed by the respondent or his witnesses.

It is also clear from the evidence that during this period of 47 years $5$ neither Otukei nor his relatives made any claim for this land yet they were aware of Ogolu's occupation.

The only first attempt as per the evidence on record is that such a claim was made in 2010 when the Ikomolo-Akile-Idwara-Mugi clan sat and yet by this time the

late Ogolu had passed on in 2006 and any form of possession done by the 10 respondent on the suit land was after the matter was already in court as established at locus.

While I agree with the trial Magistrate that there was no proof of a sale between Ogolu and Otukei, I further find that there was no proof of a hire as well and given

this, the trial magistrate should have considered the evidence on record that 15 indicated that while the transaction in 1965 was not clearly proved, the undisturbed possession by the late Ogolu and the appellant from 1965 to 2012 was undisputed by both parties and their witnesses.

I note that indeed the trial magistrate considered this type of occupation but found that it was not sufficient to proof ownership as the appellant did not 20 adduce proof of statutory law or custom under which he came to occupy and use the land for that lengthy period.

The appellant in his plaint claimed ownership of the suit land which he classified as customary land, however, in the particulars of his claim, he focused his averments on how his father came to own the suit land and how he gave it to him as a gift inter vivos.

The handover of the land from the late Ogolu to the appellant in 1988 was witnessed by PW2 Odonga Dauda and PW3 Odonga Richard and the same was

not disputed by the respondent or his witnesses, the only issue was how Ogolu $5$ acquired the land.

I find that the fact of this possession by the late Ogolu and later his son the appellant cannot be ignored by any court since it establishes ownership by adverse possession on part of the late Ogolu and his son the appellant.

The term "adverse possession" refers to a legal principle that grants title to $10$ someone who resides on or is in possession of another person's land.

The property's title is granted to the possessor as long as certain conditions are met including whether they infringe on the rights of the actual owner and whether they are in continuous possession of the property.

Adverse possession which is sometimes called squatter's rights, although 15 squatter's rights also known as homesteading, which in law, may also be applied to other properties such as intellectual or digital/virtual property.

The key takeaways in relations to adverse possession is that this is the legal process whereby a non-owner occupant of a piece of land gains title and ownership of that land after a certain period of time.

The claimant, or disseisor, must demonstrate that several criteria have been met before the court will allow their claim. The requirements may include continuous use, a takeover of the land, and exclusive use.

As mentioned above, adverse possession is a legal situation that occurs when one party is granted title to another person's property by taking possession of it. This 25 can happen intentionally or unintentionally with or without the property owner's knowledge.


To successfully claim land under adverse possession, the claimant must $\mathsf{S}$ demonstrate that his or her occupation of the land meets the following requirements:

Continuous use: Under this condition, the adverse possessor must show i. they've been in continuous and uninterrupted possession of the property in question.

- Hostile and adverse occupation of the property: Although this doesn't ii. mean that the disseisor uses force to take the land, they must show there is no existing agreement or license from the landowner such as a written easement, lease, or rent agreement. - Open and notorious possession: The person seeking adverse possession iii. 15 must occupy a property in a manner that is open, notorious, and obvious. The true owner is not required, however, to be aware of the occupation. - Actual possession: The possessor must actively possess the property for iv. the state's predetermined statutory period. - Exclusive use: The property is used solely by the disseisor, excluding any 20 V. others from using it as well.

Using the above legal requirements, I am able to conclude that in the instant case, while the evidence of customary right to the suit land and that of the sale of the suit land is scanty, it is evident clear to me that by the time Otukei attempted to reclaim the suit land the appellant's father and his relatives had been in continuous open occupation of the same for over 45 years, with the knowledge of the Otukei.

Thus Otukei having the knowledge of this occupation did not attempt at any point to have the appellant and his father removed from the suit land till 2010 way after Ogolu had passed on. There is also no proof that the late Ogolu was in

occupation of this land conditional to the return of a cow by Otukei upon which $\mathsf{S}$ return the land would be reclaimed by Otukei.

This occupation rendered the appellant and his family bonafide lawful occupants of the suit land which occupation is clearly protected by the 1995 Constitution which defines a bonafide occupant as a person who, before the Ugandan Constitution came into force in 1995, occupied, utilized, or developed land without being challenged by the registered owner or their agent for at least twelve years. See: Serwadda v Kasozi & Anor (Civil Suit No. 252 of 2009) [2016] UGHCLD 75.

I am satisfied, therefore, that the appellant by continued occupation of the suit 15 land, beginning with his late father, has proved ownership of the suit land, the same having been acquired by adverse possession.

The trial magistrate should thus have taken into account the unchallenged period of occupation of over 45 years with any subsequent occupation by the respondent of the suit land amounting to trespass. Accordingly, Grounds 1 and 2 of this appeal succeeds.

Having found so as above in respect of Grounds 1 and 2 of this appeal. I will not make any findings on 3 and 4 as I find that the same have been sufficiently determined by the resolution of grounds 1 and 2.

5. Conclusion.

25 This appeal thus has been found to have merit by virtue of the finding above that the appellant and his father had an undisputed occupation of the suit land and thus acquired it by way of adverse possession.

Accordingly, the following orders do issue.

1. This appeal succeeds.

- 2. The judgment and orders of the trial magistrate are set aside. - 3. The appellant is hereby declared the rightful owner of the suit land measuring approximately one and a half acres/gardens situate at Ocorai village, Abuket Parish, Kyere Sub-county, Serere District. - 4. The respondent is declared a trespasser on the suit land. - 5. An order of a permanent injunction is hereby issued as against the respondent and any one that claims any right through him, restraining him/them from interfering with quite possession of the suit land by the appellant. - 6. An eviction order is also hereby issued against the respondent to vacate the suit land. - 7. The costs of this appeal and in the court below are awarded to the appellant. - I so order.

Hon. Justice Dr Henry Peter Adonyo

Judge

16<sup>th</sup> July 2024

$\mathsf{S}$

20