Owonda v Nyirach (Civil Appeal 34 of 2022) [2024] UGHC 964 (3 October 2024)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT ARUA CIVIL APPEAL NO. 0034 OF 2022

#### (ARISING FROM CIVIL SUIT NO. 007 OF 2017)

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OWONDA INYASIO:::::::::::::::::::::::::::::::::::: **VERSUS** NYIRACH THORACH::::::::::::::::::::::::::::::::::::

#### 15 BEFORE HON. JUSTICE COLLINS ACELLAM

(Appeal from the judgement and orders of His Worship Kintu Isaac Imoran, Magistrate Grade 1 at the Chief Magistrates Court of Nebbi at Nebbi dated 14<sup>th</sup> April 2022 in Civil Suit No. 007/2017)

JUDGEMENT OF THE COURT:

#### **Brief introduction**

25 This appeal is lodged by a Notice of Appeal and Memorandum of Appeal for orders that;

a) The appeal be allowed, and the judgement of the Learned Trial Magistrate be quashed and set aside and substituted with an order dismissing the suit.

30 b) The appellant be declared the customary owner of the suit.

c) A permanent injunction be issued restraining the respondent from further trespassing and interfering with the defendant's rights to quite use and peaceful enjoyment of the land.

d) The appellant be awarded costs of the appeal and in the trial court.

#### Grounds of Appeal

- The grounds of Appeal as seen in the Memorandum of Appeal state: 40 - 1. The Learned Trial Magistrate erred in law and facts by holding that the respondent is the customary owner of the suit land. - 45 2. The Learned Trial Magistrate erred in law and facts when he failed to properly evaluate the evidence on record and came to a wrong conclusion that the respondent is the customary owner of the suit land thereby occasioning the appellant a miscarriage of justice.

- $\mathsf{S}$ $3.$ The Learned Trial Magistrate erred in law and facts when he held that the appellant's case was tainted with lies and falsehoods thereby occasioning a miscarriage of justice. - The Learned Trial Magistrate erred in law and facts when he failed to properly $4.$ conduct the locus in quo yet he relied on the findings thereat to hold that the respondent is the customary owner of the suit land thereby occasioning the appellant a miscarriage of justice.

### Grounds in Opposition

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In opposition to the Appeal, the Respondent filed written submissions wherein she states that there were grave contradictions in the appellant/defendant's evidence especially that of DW1, DW2 and DW3 both at court and during locus, and any inconsistency in the respondent's evidence were minor and do not go to the root of the case. All the inconsistencies in the appellant's evidence were challenged by the respondent during cross examination. The Learned Trial Magistrate properly evaluated all the evidence on record and considered them in his judgement as per the leading case of Fr. Narsensio Begumisa & Ors vs Eric Kamondo SCCA No. 17 of 2002. The Learned Trial Magistrate followed all the procedures at locus in quo and properly confirmed common features on the suit land and the boundary line during the locus visit dated the 30<sup>th</sup> of January 2020 and there is no miscarriage of justice caused to the appellant.

### Representation

During the trial, the Appellant was represented by *M/S Donge & Co. Advocates* whereas 30 the Respondent was represented by the Legal Aid Project of the Uganda Law Society.

I have had the opportunity to peruse through the file inclusive of all pleadings and their Annextures. Both Counsel for the Appellant and Respondent filed their submissions which I have duly put into consideration to come up with this decision. There is no Rejoinder on record. I shall now proceed to enlist the grounds of appeal in contention.

#### Ground 1

The Learned Trial Magistrate erred in law and facts by holding that the respondent is 40 the customary owner of the suit land.

In his submission, the Appellant submits that Article 237 of the Constitution of the Republic of Uganda, 1995 as amended vests citizens with ownership of land in accordance with the land tenure systems outlined which include customary tenure. The respondent claimed she is the customary owner of the suit land but failed to prove the same, the appellant is cultivating part of the suit land and is cultivating on it. The respondent admitted in cross examination that Otwiya & Kasiano whose children now use their land neighboring the suit land are the defendant's paternal uncles, she does not have houses on the suit land, the appellant's wife has been using the suit land and that

the defendant has now utilized the land for more than 20 years, she first reported him to 50 the elders in 2016.


That the evidence on record by both parties clearly shows that the disputed land belongs $\mathsf{S}$ to the respondent and that it is the respondent who has been cultivating it to date. The plaintiff admitted that the defendant is the one using and cultivating the disputed land. It is the appellant's submission that he is the rightful owner of the suit land as sufficiently proved that he has been using the suit land for more than 20 years.

In response, the Respondent states that she led three witnesses to prove her case before the Trial Magistrate where he found PW1, PW2 and PW3 to be consistent and concluded that the respondent/plaintiff is the customary owner of the suit land. It is the respondent's submission that there were grave inconsistencies in appellant/defendant's evidence both at court and during locus, that if there are any inconsistencies in the respondent's testimony and her witnesses on record, the said inconsistencies were minor and does not go to the root of the case.

## **Consideration of Court**

Duty of the first Appellate Court.

In Father Nasensio Begumisa & 3 Ors vs Eric Tibebaga SCCA No. 17 of 2002, Court held that,

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"The duty of a first appellate court is to subject the evidence on record to an exhaustive scrutiny, re-evaluate it and come to its own conclusion. The Court must then make up its own mind not disregarding the judgement of the trial court but carefully weighing it in full consideration."

- 30 The first appellate Court has a duty to review the evidence of the case and to reconsider the materials before the trial judge. Then it must make up its own mind not disregarding the judgement appealed from but carefully weighing and considering it, see the decision in Kifamunte Henry vs Uganda SCCA No. 10 of 1997. - 35 In the instant case, both the appellant and respondent presented evidence at trial to prove their case. This court opines that both parties had inconsistencies in their evidence regarding the previous relationship between the appellant and the respondent, how each of the parties acquired the suit land or part of it, who has been or is in current occupation/utilization of the suit land and the measurements of the suit land itself as - the parties keep making different estimations and so do the witnesses. None of the parties 40 presented documentary evidence to prove their case. The Appellant in his submissions also makes reference to the respondent when the text he mentions seems to reflect that he is arguing his case, for instance on page 5, the last paragraph line 5... the respondent added that when he inherited the land in 1964.... This makes it harder for this court to determine what his real point is. 45

PW1 states that she was given the land by her father-in-law, then that the land was given to both her and her husband Vudi Stero (deceased) and they started utilizing the land since then during the Obote regime. When her husband died, she continued using the suit land and starting cohabiting with the appellant with whom the produced twins, one child died and the other is married in Hoima. That her and the appellant separated 5


affirmed by PW2 who also stated that the appellant resides about $1/2$ kilometer from the $\mathsf{S}$ suit land. PW3 also affirms the testimony of PW1 and further states that the disputed land measures approximately 1 and $1/2$ acres that belongs to the respondent who inherited it after the death of her husband and both the respondent, and her late husband resided on the suit land.

DW1 states that the land belongs to him, he inherited it from his father Olyera Justino in 1964 and the land in dispute is measuring approximately 3 acres. He started cultivating on it in 1964 and has been planting crops like cassava, maize, sweet potatoes and groundnuts on the land, he has a cassava garden, mango tree, uber tree, nino, tamarind tree and the cassava covers the rest of the land. He added that Elia (respondent's fatherin-law from whom she alleges to have inherited the land) did not own the land but the land belongs to the family of Ndheka. That even if he cohabited with the respondent, she did not use the land. He has been using this land since 1975 (he had earlier stated 1964 *emphasis mine*) without the plaintiff and her relatives complaining but only started complaining in 2016 after approaching him and requesting him for a piece of land. The plaintiff then reported him to the elders who decided the land belongs to him and she later sued him before the LC Courts who also decided the cases in his favor. DW2 affirmed that the defendant's father gave him the land in 1964, Elia did not own the land in dispute and the defendant has now used and cultivated the land for 54 years. Stero Vudi the plaintiff's late husband did not use the land in dispute up to the time of

25 his death. The witnesses also showed Court the boundaries of the suit land during locus.

Whereas Counsel cited authorities of *Marko Matovu & Ors vs Mohammed Sseviri* [1979] HCB 174 cited with approval in Kampala District Land Board & George Mitala

vs Venansio Babweyaka & Ors SCCA No. 2/2007, Magbwi Erikulano vs MTN (U) Ltd 30 & Anor HC CA No. 02/2012, and Afrad Nebbi & Anor vs Alex Manano Ajoba HC *CA No. 003 of 2005* which are to the effect that customary ownership can be established by cultivation of seasonal crops or grazing, in this case, both parties acknowledged that they once had a relationship /cohabited together and lived on the suit land together and cultivated it. The ownership of the suit land therefore remains unproved on a balance of 35 probabilities as both parties have cultivated on it before.

I am therefore unable to make a clear decision on who owns or is the customary owner of the suit land as the evidence of both parties is marred with inconsistencies and this court is unable to re-evaluate the evidence on record to come up with its own conclusion. 40 None of the parties proved their case fully to the trial court to warrant a conclusion on who owns the land.

Ground 1 therefore partially succeeds, as the Learned Trial Magistrate erred in fact that the respondent is the customary owner of the suit land, but also partially fails as this 45 court is unable to declare the appellant as the rightful owner of the suit land.

### Ground 2

The Learned Trial Magistrate erred in law and facts when he failed to properly evaluate the evidence on record and thus came to a wrong conclusion that the respondent is 50 the customary owner of the suit land thereby occasioning the appellant a miscarriage of justice.

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In his submission, the Appellant submits that the Learned Trial Magistrate merely restated the parties' respective cases but did not subject the evidence on record to adequate and exhaustive scrutiny before coming to the conclusion that the respondent is the rightful owner of the suit land.

10 In response, the respondent submits that the Trial Magistrate properly evaluated the evidence on record and considered it in his judgement. She further states that in the case of Mwaka Benjamin V Mukirania HC CA No. 0026 of 2015, in regard to a similar ground, Court held that it was too broad, in concise and in contravention with the 15 provisions of Order 43 rule $1(2)$ of the CPR.

On perusal of the judgement of the trial court, whereas he stated that the defendant was not honest especially when it came to the aspect of cohabiting with the respondent who is a widow, he did not only refer to the fact of "marriage" and separation of the parties, but also analyzed all the evidence he had available on record. He did not simply restate

the parties' cases. Regarding the evidence adduced at the locus in quo, the Learned Trial Magistrate summarized court's findings, and the facts established and noted the same in his judgement.

- I therefore do not fault the Learned Trial Magistrate for rendering his conclusion from 25 the evidence as he did. However, as resolved in issue 1, this Court opines that the evidence available on record to re-evaluate the evidence does not enable it to come up with a clear conclusion on who owns the land. - Ground 2 therefore fails and is resolved in the negative. 30

### Ground 3

The Learned Trial Magistrate erred in law and facts when he held that the appellant's case was tainted with lies and falsehoods thereby occasioning a miscarriage of justice.

In his submission, the Appellant relies on the case of Amama Mbabazi & Anor vs Musinguzi Garuga James CA EP No. 12 of 2002 where Court states that; "It is trite law that grave inconsistencies and contradictions unless satisfactorily explained will lead to the evidence being rejected. Minor inconsistency does not have the same effect unless

the trial judge thinks it was a deliberate falsehood aimed at misleading the court. And 40 the case of Fr. Nasensio Begumisa & Ors vs Eric Tibabega SC CA No. 17 of 2002. That the respondent's evidence adduced on record was marred by grave inconsistencies and contradictions which cannot be ignored, whereas on the other hand the appellant gave consistent and coherent evidence that he is the owner of the suit land.

In response, the respondent presents the evidence of DW1, DW2 and DW3 and the alleged inconsistencies therein, and relies on the case of Amama Mbabazi & Anor vs Musinguzi Garuga James CA EP No. 12 of 2002 where court stated that; 'inconsistence is relevant and grave inconsistency unless satisfactory explained usually results in the evidence being rejected.' That there are grave inconsistencies in the evidence of the

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50 appellant, and they were all challenged by the respondent during cross examination.

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$\mathsf{S}$ In the above resolution of Ground 1 by this Court, it was already decided on that both parties' evidence was marred with inconsistencies and contradictions. While resolving ground 1, I even presented a break down on many of these inconsistencies. I shall therefore resolve this ground similarly that this matter had a lot of inconsistencies and contradictions in the evidence of both parties and this court is unable to make a proper 10 conclusion on who owns the suit land as both parties present inconclusive evidence.

Ground 3 therefore fails and is resolved in the negative.

### Ground 4

- 15 The Learned Trial Magistrate erred in law and facts when he failed to properly conduct the locus in quo, yet he relied on the findings thereat to hold that the respondent is the customary owner of the suit land thereby occasioning the appellant a miscarriage of justice. - 20 In his submission, the Appellant states that the law relating to the locus in quo is well settled under Order 18 rule 14 of the Civil Procedure Rules, and the case of *Olum Peter* vs Modikayo Obina HCCA No. 0004 of 2020 reiterated the procedure for conducting locus in quo visits as laid down in the case of *Nsibambi vs Nankya [1980] HCB 81*. It is his submission that the Learned Trial Magistrate failed to follow that procedure, the procedure was not properly taken, parties in attendance at the locus were not noted and 25 - whether or not the parties testified and/or were subjected to cross examination.

In response, the Respondent acknowledges and agrees with the provision under Order 18 rule 14 of the Civil Procedure Rules, and the procedure laid down under the case of

- 30 Nsibambi vs Nankya [1980] HCB 81. She then concludes that the Learned Trial Magistrate followed all the procedures at locus in quo, properly confirmed common features on the suit land and the boundary lines on the suit land and there is no miscarriage of justice caused to the appellant. - On analysis of the record of the lower court file, I note that there is a Locus visit report 35 that was made by the trial court, however it does not fully detail all that happened at the locus, it is handwritten, and some facts cannot be easily made out, there are many crossings which make the document unreliable. It seems to focus more on the relationship that existed in the past between the appellant and the respondent, and there is no record of any of the parties that attended and how the process of the plaintiff and 40 - respondent testifying was conducted.

I therefore opine that the procedure adopted at the locus in quo has gaps and cannot be relied upon fully to make a decision.

Ground 4 thus succeeds.

I accordingly allow this appeal, with orders that a fresh trial before a different Magistrate is conducted to determine the rightful owner of the suit land. The judgement and orders of the trial court are set aside. Each party shall bear its own costs.

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I so order.

$\mathcal{F}^{\mathcal{L}}$ day of Detabler 2024 Dated at Arua this.................................... $\mathsf{S}$

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Collins Acellam

$10 \\$ JUDGE