IN THE HIGH COURT OF UGANDA AT SOROTI
CIVIL APPEAL NO. 38 OF 2014
ARISING FROM SOROTI CHIEF MAGISTRATE’S COURT CIVIL SUIT NO. 30 OF 2012
BEFORE HON. LADY JUSTICE H. WOLAYO
The appellant through his advocates, Legal Aid Clinic, appealed the judgment of HW Faishal Ngamije Grade one magistrate dated 19th December 2014 sitting at Soroti on four grounds of appeal that I will revert to later in the judgment.
It is trite law that the duty of the first appellate court is to re-evaluate the evidence adduced in the lower court and arrive at its own conclusions on points of law and fact.
Both counsel for the appellant and counsel for the respondent Isodo & Co. Advocates filed written submissions that I have carefully considered.
The respondent sued the appellant in the tort of conversion of property.
His case was that during Obote 1 regime, he acquired the suit land. In 1979, during the Liberation war, he ran to exile leaving his wife Nura and one child on the suit land. He returned to Soroti in 2011 and found the appellant on the land located in Kichinjaji.
The respondent who testified as PW1 was informed that the appellant who lived as husband and wife with Nura and after her death, took over the suit land.
It transpired in cross examination that a third party had acquired an interest in the land when the appellant sold part of it in 1996 apparently with knowledge of the respondent who received proceeds of sale from one Zainab Dawa. This said Dawa was simply an emissary sent by the appellant to deliver the proceeds of sale.
The cross examination of Okukuma Stephen PW2 also confirmed that other third parties acquired legal interests in the land including late Imaro who got plot 18 .
The respondent’s case further was that he was given a lease offer for the suit land which is the same as plot 14-16 Olabora road by the District Land Board on 20.10.2011.
An analysis of the respondent’s case is that he bases his claim to the suit land on possession and ownership before 1979 .
The respondent further pleads disability to regain possession on account of going to exile in Congo in 1979 until 2011 when he returned and found that the defendant had not only lived on the suit property with Nura, respondent’s late wife but he had also taken over the property.
The appellant’s case on the other hand is that he acquired a legal interest in the land in 1990 when he was given a lease offer by the department of Lands Soroti over the suit land for an initial period of two years. He got an extension from Soroti district Land Board in 2007 for five years.
The key issue on appeal is whether the respondent’s earlier interest in the suit land was extinguished by the later interest of the appellant
This requires me to first determine the nature of the respondent’s interest in 1979 in relation to the land law that obtained at the time.
The 1969 Public Lands Act granted authority to Urban authorities to acquire land in urban areas for development. This means when the department of lands Soroti offered a lease to the appellant in 1990, it was doing so because the land was deemed to be in an urban area and therefore under the control of the district authority .
The absence of the respondent at the time must have been a factor that influenced the department to offer the suit land to the appellant .
Of course, the respondent’s successors in title were entitled to compensation from the urban authority at the time. What is material is that the appellant secured a lease offer thereby acquiring an equitable interest in the land.
This means that the earlier appellant’s equitable interest was overtaken by the superior interest acquired by the appellant from the urban authority.
The time lag between the lease offer of 1990 and the respondent’s lease offer of 2011 is 21 years.
For the respondent to attempt to validate his long extinguished equitable interest in the land by a 2011 lease offer was futile as he lost his interest first by long absence and secondly by the adverse superior interest of the appellant .
The trial magistrate erred in basing his decision in favour of the respondent on the 2011 lease offer . The trial magistrate applied a wrong principle when he found that the latter lease offer conferred a better title to the land than previous lease offers.
I now turn to the grounds of appeal.
The trial magistrate erred when he adjudicated on a matter that is statute barred.
While I agree with counsel for the appellant that adverse ownership by the appellant commenced in 1989 with an allocation letter from district authorities, and time began to run, the pleadings were silent on when the appellant entered possession . It was therefore impossible for the magistrate to make a pronouncement on limitation without going into the evidence.
The trial magistrate erred in law and fact when he evaluated the respondent’s case in isolation of the appellant’s case.
I find no merit in this ground because the trial magistrate evaluated the evidence as a whole but arrived at a wrong conclusion.
The trial magistrate misdirected himself in fact and in law when he relied on an invalid allocation letter and an invalid lease offer granted to the respondent by Soroti Land Board .
There is merit in this ground because in equity, the lease offer of 2011 to the respondent could not confer a better title than the 1990 offer to the appellant that was extended in 2007. The 1990 offer conferred a title superior to the existing interest of the respondent because at the time occupants of land in urban areas held land at the will of the urban authority which had powers to lease land to developers as long as the dispossessed person was compensated.
Secondly, the appellant’s lease offer was first in time and therefore first in equity. This ground succeeds.
The learned trial magistrate erred in law and in fact when he failed to properly evaluate the evidence on record and apply the appropriate law as a result of which he came to a wrong conclusion.
I have found that while the trial magistrate evaluated the evidence, he arrived at a wrong conclusion .
As grounds 3 and 4 succeed, I allow the appeal , and make the following orders:
The judgment and orders of the trial magistrate are set aside.
The appellant is declared to have legally acquired an interest in the suit land.
The appellant is entitled to perfect his title to the land by processing a certificate of title.
A permanent injunction shall issue restraining the respondent from laying claim to the land and from interfering in the appellant’s quiet possession.
As the appeal succeeded on two grounds, the appellant will have one half of the taxed costs of the appeal and the lower court .
DATED AT SOROTI THIS 4TH DAY OF NOVEMBER 2015.
HON. LADY JUSTICE H. WOLAYO