Owaraga Muhamed v Ochede Stephen and Others (HCT-04-CV-CA-0010-2010) [2012] UGHC 444 (3 May 2012)

# THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT MBALE

### HCT-04-CV-CA-0010-2010 (Arising from Pallisa Civil Suit No. 27/2005)

OWARAGA MUHAMED........... ......................................

#### **VERSUS**

OCHEDE STEPHEN

2. MWANIKA MUSA

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OKANYA JAMES.................................... ...................... RESPONDENTS

#### BEFORE: THE HON. MR. JUSTICE STEPHEN MUSOTA

#### JUDGMENT

This appeal was filed by Owaraga Muhamed represented by M/s Mutembuli & Co. Advocates against three respondents to wit: 1. Ochede Stephen, 2. Mwanika Musa and 3. Okanya James represented by M/s Wesamoyo & Co. Advocates.

The grounds of appeal against the judgment and orders of the Magistrate $\sim l$ Grade I Pallisa are that:-

- 1. The learned Trial Magistrate Grade I Pallisa erred in law and fact when he failed to properly evaluate the evidence on record and thereby reached an erroneous decision. - 2. The learned trial Magistrate Grade I Pallisa erred in law and fact $-2t$ when he held that the appellant had failed to prove his case on a balance of probabilities.



- 3. The learned trial Magistrate erred in law and fact when he relied on documents that were tendered in court by the respondents for identification purposes only and thereby reached an erroneous decision. - 4. The trial Magistrate erred in law and fact when he held that the appellant did not know his land during the locus in quo visit yet he properly showed court the land in dispute and its boundaries. - **- /o** 5. The trial erred in law and fact when he held that the respondent's grandfather Zephania Ochede had purchased from the appellant's father Abdallah Nalapa. -— —- - a 6. The decision of the learned trial Magistrate has occasioned miscarriage of justice.

The background to this appeal is that, the appellant sued the respondents that they encroached on his piece of land situate at Owakodani village, Akadoto Parish in Pallisa sub-county. That he inherited the suit land from —-4S his late father Nalapa Abdallah who died in 1991. The land he inherited is estimated to be 6/4 acres but the respondents encroached on 4 acres only. But earlier on the respondent's brother Okodo encroached on 2!4 acres which the appellant successfully sued for and recovered in 2004.

On the other hand, the respondents' case in the lower court was that they inherited the suit land from their late father Elume Ntalo who also inherited the same from their grand father Ochede Zephania who is said to have bought the land from the appellant's father Nalapa Abdallah.

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The plaintiff's (Appellant's) claim was dismissed on the ground that he failed to prove his case on a balance of probabilities hence this appeal. Both respective counsel were allowed written submissions which <sup>I</sup> have meticulously studied in relation to the evidence adduced in the lower court. As a first appellate court <sup>I</sup> have re-evaluated the lower court's evidence and — <sup>I</sup> am now able to reach my own conclusions whether or not the learned trial Magistrate reached the correct decision.

<sup>I</sup> will deal with the grounds of appeal as argued by learned counsel starting with grounds 1,2,3 and 4 together then grounds <sup>5</sup> and 6.

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According to learned counsel for the respondents, the learned trial *— <sup>1</sup>0* Magistrate properly evaluated the evidence and reached the correct decision. That according to the record the appellant's father shifted to Buganda in 1951 and Asanasi Okwalang and David took care of their land in their absence. That one Ochede Zephania grandfather to the respondents' father Ntalo Elume bought the land from the appellant's —/S father Nalapa Buddaka. That the appellant's counsel should not complain against the Magistrate because he was represented throughout the trial. That since the appellant left with his father at a tender age, he did not know the boundaries of the land in dispute. Further that the appellant's testimony had inconsistencies and therefore the trial Magistrate was right to disregard the testimonies.

Learned defence counsel also submitted that the appellant failed to show court the boundaries during the visit to the *locus in quo* and remained confused. That the fact that the grandfather to the respondents bought the land measuring 3 !4 acres from the appellant's father who after sale migrated to Buganda was not disproved by the appellant's lawyers.

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Mr. Mutembuli learned counsel for the appellant submitted to the contrary.

*IV* From the evidence on record the appellant told court that he inherited the suit land from his late father Abdallah Nalapa in 1991 comprising 6 fo acres. However out of this the respondents encroached on about 4 acres. Earlier on one Okodo a brother to the respondents had encroached on part of the estate land. He took him to the tribunal and the case was decided in his favour as shown in Exhibit PE. I. He had tenants on the land in the names of Okwalinga Francis, Asanasi and Daudi. These people testified and corroborated what the appellant told court. They confirmed that they were tenants of the appellant. In addition PW.2 Okwalinga Henry Francis told court that he bought a neighbouring piece of land to the appellant's land in 1982. The land was sold to him by the respondents' father. In the agreement, the land bought was neighbouring that of the appellant'<sup>s</sup> father — *I*<sup>S</sup> in the north. This agreement was Exhibit PE.3. PW.2 took possession immediately and used to see the appellant's father using the land until 1984 when the appellant took over the collection of rent from the tenants although he used to stay in Kasawo. That the respondents were using a separate land from the suit and never disturbed the appellant at all. This *- 2-D* evidence was not challenged in cross-examination implying that it was admitted as true.

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The ownership of the suit was further clarified by PW.3 Omasuke Michael who told court that the suit land belonged to the late Abdallah Nalapa and

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the appellant used to hire it out to him from 2001-2004 and during that time no one disturbed him until 2005 when the defendants/respondents encroached on the suit land. Some of the other tenants on the land were Francis Okwalinga, Asanasi, Asio Mary and others. He also confirmed that one brother to the respondents was sued for encroachment on part of $-\sqrt{5}$ the appellant's land was evicted therefrom. The land was handed to PW.3 on behalf of the appellant who in turn handed over to the appellant. A year after, the respondents encroached on another part of the land. By the time PW.3 was using the land hired to him there existed a boundary mark made of elephant grass which divided the suit land from that of the $-10$ respondents.

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PW.3's evidence was corroborated by that of PW.4 Asanasi Arata. This evidence appeared consistent about the ownership of the suit land. On the other hand respondent Ochede Stephen told court that he acquired the suit land from his grandfather Ochede Zephania but later changed and $-15$ said he got it from his father Ntalo Elume in 1992 after the father's death and that there was a Will to that effect. He conceded that the appellant was his uncle and his father Nalapa Budala sold the land to his grandfather Zephania Ochede thereafter and he shifted to Busoga. An agreement which was not proved was tendered in court for identification. $-2\mathcal{L}$ He said that the said agreement was made on 18<sup>th</sup> September 1967 and therefore the appellant had no land in the area.

As submitted by learned counsel for the appellant this was a lie. The agreement does not describe the neighbours to the land which was purportedly sold. DW.1 told court that he inherited the suit land upon the - 2.5

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death of his father however DW.2 told court that he was given the suit land by his father before his death in 1992. These witnesses were referring to the same land. There was however no evidence to suggest that they owned the land jointly. They allegedly acquired the land in separate transactions. This contradiction waters down the respondent's claim and is unbelieveable.

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It is surprising that DW.4 Okiror John testified that he did not know the appellant and first saw him in court.

DW.2 confirmed that the land belonged to Abdallah before he left for Buganda and that the appellant had a dispute with Okodo over land near — /D the suit land and the same was removed from Okodo. This shows that DW.4 lied when he said he did not know the appellant yet he litigated over the land he is claiming.

<sup>I</sup> agree with learned counsel for the appellant that the description of the appellant while at the *locus in quo* is not backed by any record saying that the appellant appeared ignorant about the location of land came up when the learned trial magistrate was writing judgment. However he drew the sketch map of the suit land but does not indicate who guided him to do this. The map does not indicate any boundary marks. There is no evidence to show that the appellant left with his father in 1951. He stated that he left in 1951 but he did not say that he left with his father. On the other hand the evidence of DW.1, DW.2, DW.4 and DW.5 shows that the late Nalapa left the suit land after 1967. However the appellant left and joined his mother m Buganda al the age of 9. When he became of age he started managing

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the suit land in 1984 by collecting rent therefrom. He also collected rent from PW.2 from 1984. The appellant acquired ownership after the death of his father in 1992. To prove that the suit land was hired out was the evidence of PW.2, PW.3 and PW.4 stated that they were appellant's tenants on the suit which assertion was not challenged. It is not true therefore that there was no tangible evidence to show that the suit land was hired out. Evidence on a balance of probabilities existed.

Stating that the encroachment on the suit land was in 1995 instead of 2005 could have been a slip because the appellant clarified the year as 2005 $\int D$ during re examination. It was not a contradiction.

In his judgment the learned trial magistrate rejected Exhibit PE.1 as irrelevant but he included this fact on the sketch map drawn during the visit to the *locus-in-quo* and described it as land litigated upon between the appellant and Okodo and that the land is neighbouring the suit land. The same applies to exhibits PE.2 and PE.3. These exhibits were relevant to $-15$ the trial because in PE.2 Nalapa Abdallah is described as a neighbour to the North of the land bought by PW.2 Ntalo Elume in 1982. Therefore if at all Nalapa had sold his land to Ochede Zephania in 1967 as alleged by the respondents, then it was not necessary or **Nalapa** would not have been described as a neighbour in 1982.

The respondents told court that the land was sold in 1967 but they did not tell court if they used the land before 1967. There is no evidence as to when Abdallah Nalapa left his land. Some defendants' witnesses said he left immediately after the sale in 1967 but DW.2 said he heard that he left in

1978. However PW.2 clearly told court that by 1982 it was Abdallah Nalapa using the suit land and in 1984 PW.2 started using the land until 2004 when he left. That the respondents encroached on the land in 2005. <sup>I</sup> will allow grounds 1, 2, 3 and 4.

#### Ground 5: '—

There was no evidence to prove that Zephania Ochede had purchased the land from the appellant's father Abdallah Nalapa. The purported agreement of sale was not proved. It was tendered for identification only and it was between Zephania Ochede and Galagale Wadala and not Abdallah Nalapa. The agreement did not describe the boundaries and the *—['0* purported seller did not sign the agreement. It is not true that the appellant's father had sold all his land in the area because the appellant sued Okodo for a neighbouring piece of land and recovered it in court as part of his father's land. <sup>I</sup> will uphold this ground of appeal as well.

# Ground 6: *'*

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Given the wrong conclusions by the learned trial Magistrate which denied the appellant his right to own and use the suit land and failure by the trial Magistrate to properly evaluate the evidence on record a miscarriage of justice was occassioned.

In conclusion and for the reasons <sup>I</sup> have enumerated in this judgment, <sup>I</sup> will allow this appeal. The judgment and orders of the learned trial Magistrate are set aside.

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Judgment is hereby entered for the appellant. The suit land should be handed over to the appellant. The appellant shall get the costs of this appeal and those of the court below.

Dundhur

Stephen Musota **JUDGE** 3.5.2012

I CERTIFY THAT THIS IS<br>A TRUE COPY OF THE ORIGINAL $\cdot$ liz. DEPUTY REGISTRAR

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#### **THE REPUBLIC OF UGANDA**

### IN THE HIGH COURT OF UGANDA AT MBALE

#### **HCT-04-CV-CA-0010-2010 (Arising from Pallisa Civil Suit No. 27/2005)**

**OWARAGA MUHAMED** APPELLANT

#### VERSUS

1. OCHEDE STEPHEN

- 2. MWANIKA MUSA - RESPONDENTS 3. OKANYA JAMES....

# ORDER

This appeal coming up for final disposal this 3rd day of May, 2012 before **His Lordship Hon. Justice Stephen Musota** in the presence of **Mr. Yusuf Mutembuli,** learned counsel for the appellant and in the absence counsel for the Respondent and both parties.

#### **IT IS HEREBY ORDERED THAT:**

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- 1. The appeal is allowed and judgment and orders of the learned trial Magistrate are set aside. - 2. The suit land should be handed over to the appellant. - 3. The appellant shall get the costs ofthis appeal and those ofthe court below.

**day of Given under my hand and the Seal of the Court this** ... JU^...2012.

**II DEPUTY EGISTRAR**

Extracted by: M/s Nzalambi & Co. Advocates Mbale Branch, Plot 1, Nkokonjeru Terrace P. O. Box 1228 MBALE

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