Tino v Morobe (Civil Appeal 98 of 2023) [2024] UGHC 537 (18 June 2024)

Full Case Text

The Republic of Uganda

In the High Court of Uganda Holden at Soroti

Civil Appeal No. 98 of 2023

(Arising from Civil Appeal No. 43 of 2010 of the Chief Magistrate's Court of Soroti at Soroti)

(Arising from the decision of the LCIII Court of Kumi Town Council)

Tino Dinah *(Administratrix of the Estate of the Late Ijala Margaret)* ::::::::::::::::::::::::::::::::::::

Versus

Morobe Khadija ::::::::::::::::::::::::::::::::::::

## Before: Hon. Justice Dr Henry Peter Adonyo

## Judgement

(An appeal against the judgment and orders in Civil Appeal No. 43 of 2010 of the Chief Magistrate's Court of Soroti at Soroti delivered by HW Baker Rwatoro - Chief Magistrate, on 25th August 2015)

1. Introduction: 20

> This is a second appeal from the decision of the Chief Magistrate's Court in exercising its powers of appeal from a decision of an LCIII court.

## 2. Background:

$\mathsf{S}$

Tino Dinah, the Appellant is Administratrix of the Estate of the Late Ijala Margret as well as a beneficiary thereof.

Around 2001, Morobe Khadija, the Respondent instituted a claim of ownership for a piece of land situated in the then Kumi Municipality, Angopet Cell against Eridadi Ocen, Ijala Margaret, Ijala Margaret Ocen and their family on the basis that she was a granddaughter of a one late Morobe who owned the suit land up to the time of war which dislodged the then government of President Amin in 1979.

That the said war made herself together with her family to go into exile in Sudan, and they only returned to Uganda in 1986.

That further upon returning to Uganda she discovered the late Ocen Eridadi had 15 taken occupation of the said land and was claiming ownership of the same which was not true forcing her to take the matter before the LC II and later LC III courts.

That the LC II court, which first adjudicated on the matter did so ex parte upon Eridadi Ocen, Ijala Margaret, Ijala Margaret Ocen and their family failing to appear before it and so it decided that the land belonged to her. That decision was confirmed by LC111 court.

Subsequently, the Ijala Margaret (now deceased) wife of Ocen Eridadi and mother to the Appellant took over the matter since her husband Ocen Eridadi had since passed on by appealing to the Chief Magistrate's Court of Kumi challenging the proceedings and decisions of the LC II and III courts.

- In her appeal, Ijala Margaret contended that the proceedings and decision of the $\mathsf{S}$ said two LC Courts were marred with a lot of irregularities, inter alia, denying the Defendant/Ocen Eridadi the right to a fair hearing and failure to consider the matter on its merits. The appeal was heard by the Chief magistrate and the decisions of the LC courts were upheld. - The appellant's mother, Ijala Margaret (deceased), filed Civil Suit No. 30 of 2001 in 10 the Chief Magistrate's Court of Kumi, which was dismissed on a preliminary objection of the suit being res-judicata as the trial principal magistrate Grade One then was satisfied that the parties to the suit No. 30 of 2001 before him were the same parties in the LCII court and that the same subject matter was also dealt with. - The appellant's mother, Ijala Margaret (now deceased), and wife of Ocen Eridadi, 15 appealed against the judgement and orders of the Kumi Town Council Local Council III court dated 09/08/2011 vide Case No. 01/2009 in the Chief Magistrate's Court vide Civil Appeal No. 43 of 2010. The appellant (Ijala Margaret Ocen) based her appeal on the following grounds. - a) That the Appellate L. CIII court erred in law and fact when it held that the suit 20 property belonged to the respondent. - b) That the Appellate L. CIII court erred in law and fact when it failed to evaluate the evidence as a whole. - c) That the Appellate L. CIII court erred in law and fact when it failed to consider the defence of limitation. - d) That the appellate L. CIII court erred in law and fact when it failed to keep proper records.

- e) The appellate L. CIII court erred in law and fact when it held that the respondent had locus standi. - f) The Appellate court erred in law and fact when it entertained a matter that had not been properly instituted before the court. - g) The Appellate court erred in law and fact when it manifested bias in favour of the respondent. - h) The Appellate L. CIII court erred when it failed to uphold the principles of natural justice and fair hearing.

The appellant prayed for the appeal to be allowed, the judgement and orders of the lower court to be set aside, and the costs in the lower courts and appellate court to

be awarded to her. 15

> The trial magistrate, on appeal, vide Civil Appeal No. 43 of 2010, did not find merit in the appeal, and he consequently upheld the findings, judgement and orders of the lower local council courts to the effect that they held that the land belonged to Khadija Morobe, the respondent.

The appellant (Tino Dinah), the daughter of the late Ijala Margaret, filed Civil 20 Revision No. 0009 of 2015 in this court against the decision of the Chief Magistrate's Court. Hon. Justice N. D. A. Batema, on 13/11/2017, struck out the matter for the use of a wrong procedure.

The Hon. Judge noted that I have perused the revision file and found that it was not filed at the direction of the Judge and was contrary to the law (section 83 of the Civil 25 Procedure Act).

$\mathsf{S}$

The applicant was then advised to use the procedure for appeals or review available $\mathsf{S}$ to her but not revision as revision can only be filed at the discretion of the judge.

On 28th November 2023, upon proper request the appellant was granted leave by this Honourable Court to lodge an appeal and serve a memorandum of appeal out of time.

- In her appeal which was filed on 10th November 2023 vide Civil Appeal No. 98 of 10 2023 the appellant raised four grounds of appeal as follows: - a) The Learned Chief Magistrate erred in law and fact when he upheld the decision of the LCIII Court without properly and critically evaluating the evidence on the court record. - b) The Learned Chief Magistrate erred in law and fact when he upheld the decisions of LCI and LCIII's courts, which were passed without the required quorum. - c) The Learned Chief Magistrate erred in law and fact when he upheld the decision of the LCIII Court that did not have the jurisdiction to entertain the matter. - d) The learned Chief Magistrate erred in law and fact when he upheld the decisions of the LCII and LCIII courts that were arrived at without, according to the appellant, a fair hearing.

The appellant prayed also for orders that;

- i) The appeal be allowed. 25 - ii) The decisions of the lower courts be set aside. - iii) Judgment be given in favour of the Appellant.

- iv) The costs of this appeal and the lower courts be awarded to the Appellant. - 3. Duty of the second appellate court:

This honourable Court is the second appellate court. In Uganda, the duty of the second appellate court includes:

- Hearing, considering, and judging cases quickly and fairly according to the law.

- Interpreting and applying the Constitution and other laws of Uganda. 10

- Protecting individual rights and providing remedies for infringements1.

On second appeal, the court is primarily concerned with matters of law rather than matters of fact or mixed law and fact. See: Muwanga Estates & Anor v NPART (Civil Appeal No. 13/2003) [2005] UGCA 6 and Betuco (U) Ltd & Anor v Barclays Bank of Uganda Ltd & 3 Ors 2018/39.

Also in the Supreme Court in Kifamunte Henry Versus Uganda Sc Cri. App. No. 10 of 1997 it was pointed out that;

"Once it is established that there was some competent evidence to support a finding of fact, it is not open, on a second appeal to go into the sufficiency of that evidence or the reasonableness of the finding. Even if a court of first instance has wrongly directed itself on a point and the court of first appellate Court has wrongly held that the trial Court correctly directed itself, yet, if the Court of first appeal has correctly directed itself on the point, the second appellate Court cannot take a different view R. Mohammed All Hasham vs. R, (1941) 8 E. A. C. A.93.

$\overline{5}$ On second appeal the Court of Appeal is precluded from questioning the findings of fact of the trial Court, provided that there was evidence to support those findings, though it may think it possible, or even probably, that it would not have itself come to the same conclusion; it can only interfere where it considers that there was no evidence to support the finding of fact, this being a question of law."

Thus the duty of a second appellate court is to examine whether the principles a first appellate court should have applied were properly applied and, if it did not, then it should proceed and apply the said principles.

In resolving this instant appeal, I am mindful of the duty of this Honourable Court as on second appellate court.

## 4. Representation:

Danrich Advocates represented the appellant, while M/s Mbale Law Chamber & Co. Advocates represented the respondent. The parties filed their submissions, for which the court is grateful. The submissions have been incorporated into the resolution of this appeal.

As this is a civil suit/appeal, the appellant has the burden of proof to prove her case on a balance of probabilities. See: Sections 101 and 102 of the Evidence Act, Cap 6), Nsubuga vs Kawuma [1978] HCB 307.

5. Determination:

I have carefully perused the proceedings from the LCIII court vide Case No. 01/2009, 25 through to the appeal in the Chief Magistrate's Court vide Civil Appeal No. 43 of 2010 till the revision application No. 09 of 2015 which was before this court.

$\mathsf{S}$

- My observation and findings is that while it is indeed true that the LCII court $5$ conducted this case ex parte without the involvement of the appellant with the LCII Court's observing that it went to that process due to the appellant's father-Eridadi Ocen upon being summoned failed to answer to the claim of the suit land originally lodged by the respondent, no such evidence of such summons is on record. - The only thing I find on record is a letter dated 18th February 2001 written by the 10 Local Council 1 Kumi Town Council, Angopet Cell, Bazaar Ward while writing to the Chairman LC11 Bazaar Ward Kumi Town Council observing that Mr Eridadi Ocen was summoned to appear before it in a letter dated 13th February 2001 at 10:00 am, and he did not show up. - Also I find that the LC11 court in Case No. 02 of 27th March 2001 also indicates that 15 the appellant's father, Ocen Eridadi, was requested to appear to that court with his witnesses and all supportive documents on 16th March 2001 at 10:00 am but he deliberately refused to do with his wife Ijala Margaret vowing never to release the supportive documents to the Local Council Court unless it was required in a bigger courts of law. Because Ocen Eridadi failed to appear before the LC11 court with his - 20 witnesses, the LC11 proceeded then to declare Khadija Morobe as the owner of the land.

This position is repeated with a little bit of modification by the LCIII Court of Kumi Town Council in Case No. 1 of 2001 between Morobe Hadija vs Eridadi Ocen which upheld the decision of the LCII court.

In its proceedings in the LCIII court state that the appellant's father, Eridadi Ocen appeared before it and cross-examined the respondent's witnesses. He had three

witnesses, Okello Erenesti, Abednego Oben and Osekeny Mikaya but only Oben $5$ testified and was cross-examined. No explanation is shown by the proceedings to show as to why only one witness testified for Ocen Eridadi and not even himself.

As for the respondent, she had Apuru John, Omutia Francis c/o Owodoi, Oumo Kerespo, Ogwapit, Apedel, Ochom Abisinia, Sulaiman Musa and Medina Doka. Herself, Apedel Joram, Ocom Eripasi, Ogwapit Romano, Medina Doka testified and were cross examined.

It should be recalled that from the record of proceedings in the LCII court, the matter was decided *ex parte* and evidently the appellant's father did not take part.

In the LCIII court the appellant's late father cross-examined all the respondent's witnesses but led one witness. But he himself did not testify and no explanation 15 given as to why he did not do so yet the LCIII court decided to uphold the decision of the LCII court and declared the respondent as the owner of the land.

The above procedural gaps are further compounded by the trial Chief Magistrate's observation in his judgement when he noted that;

"The L. CIII Court only confirmed the judgment of the L. CII Court. I had the 20 opportunity to peruse through the Lower court record of the proceedings; I find that there was a full hearing on a day to day basis where the appellant fully participated and cross examined the respondent's witness. It's also clearly evident that the appellant was given the opportunity to testify before the R. C11 Court but that he refused to testify. The R. CII Court decided the case against him 25 having considered all the evidence available then referred the case to the

R. C111 Court which court confirmed the R. C11 Court judgment hence this appeal."

The Chief Magistrate as the 1st appellate court in the ordinary legal system goes on to make summations that the appellant's father was given an opportunity to participate in the proceedings in the LC11 whose decision was confirmed by LC111.

That conclusion is not factually correct and is not borne by any evidence on record. 10 While the decision of the LC11 show that the appellant's father was summoned to appear before it, I have found no evidence of that sort on the record.

While it is easy to fault the LC courts for not particularly keeping proper records of their proceedings and the occurrences within their courts, it would behave the Chief Magistrate court as the first appellate court to have exercised its duties judiciously 15 as was spelt out in the case of Kifamunte Henry vs Uganda SCCA No. 10/1997 where it was held that the first appellate court has a duty to review all the evidence of the case and must reconsider all the material before the lower trial court and thereafter make up its own mind after carefully weighing and considering it and where it is not satisfied then it should retry the case afresh. 20

In this matter, the Chief Magistrate Court had before it the information that the LC11 decided the matter between the parties before it ex parte. The other information it had was that in the LCIII the appellant's father had the opportunity to crossexamined all the respondent's witnesses but the evidence of only one witness. He himself did not testify and no reason on record show as to why he did not do so.

$\overline{5}$

Given such scenario, the Chief magistrate should have found that the materials before him were not conclusive enough for him to merely confirm the decision of

the LC111 court without rehearing the matter afresh as there were indeed serious $\mathsf{S}$ procedural gaps in the presentation of evidence before the lower courts.

The Chief Magistrate Court had the duty to subject the evidence presented in the courts below to fresh and exhaustive scrutiny and to re-appraise the same before coming to the conclusion which it did which was by merely upholding the decision of the LC111 court. See: Father Nanensio Begumisa and three Others v. Eric Tiberaga,

SCCA 17of 2000; [2004] KALR 236.

$\tilde{\phantom{a}}$

The underlying principle here is that the Chief Magistrate Court should have been mindful of the fact that the appellant's father did not have the opportunity to defend himself both in the LC11 court, in which the decision was first made and in the LC111 court where the LC11 court's decision was upheld upon which the appeal to the Chief Magistrate's court was premised.

On that basis alone, I would find and conclude that this suit was not decided on its merits. This because in the administration of justice, the substance of disputes must be investigated exhaustively and decided on their merits especially when it concerns

land matters which most times is a matter of life and death as was pointed out in 20 the case of Re Christine Namatovu Tebajjukira (1992-1993) HCB 85.

Accordingly, the Chief Magistrate ought to have exercised caution and patience by subjecting the whole matter to a fresh hearing by giving each party the opportunity to present own witnesses who then would be subjected to cross examination so as to arrive to a just conclusion.

Since the Chief magistrate did not do as was required, I would by virtue of by Section 80(1)(e) of the Civil Procedure Act, Cap 71, find that since this land dispute has never

- been decided on its own merit, then this suit would in the interest of justice be $\mathsf{S}$ returned to the Chief Magistrate's court Kumi for a full retrial before a different magistrate with each and all parties are given ample opportunities, within the ambit of the law, to present their case so that the justice of this matter is not only done but seen to be done. - I will thus not consider any further grounds in this matter given my order above that 10 this suit must be subjected to a retrial. - 6. Conclusions:

Bearing in mind that this matter is a serious backlog as it has been so protracted since 2001, I would allow this appeal but order a retrial of this suit with the order that this suit be given priority and be heard and completed within a period of Six (6)

months or sooner from this my decision by the Chief Magistrate's court.

As for the costs of this appeal and in the lower courts, I would order that each party must bear own cost in the interest of justice with the cost of the retrial to be determined by the trial court in the Chief Magistrate's Court of Kumi.

I so order. 20

Hon. Justice Dr Henry Peter Adonyo

Judge

18th June 2024