Court name
HC: Civil Division (Uganda)
Judgment date
17 October 2014

Obwangpus v Okol (Civil Appeal-2012/6) [2014] UGHCCD 121 (17 October 2014);

Cite this case
[2014] UGHCCD 121

IN THE HIGH COURT OF UGANDA AT SOROTI

CIVIL APPEAL NO.  6 OF 2012

ARISING FROM KUMI CIVIL SUIT NO. 15 OF 2009

OBWANGPUS HENRY  ................                                                                                                                                                                                           APPELLANT

V

AKOL YOWANI   ........................                                                                                                                                                                                               RESPONDENT.

JUDGMENT        

The appellant Obwapus  Henry appealed the judgment of HW  Belmos Ogwang  Grade one Magistrate Grade one dated 7th  February 2012 sitting at Kumi  on three grounds of appeal  that i shall revert to later in the judgment.

Mr. Echipu  appeared for the appellant while the respondent appeared in person.

The duty of the appellate court is to re-evaluate the evidence adduced in the lower court and arrive at its own conclusion bearing in mind that the trial court had an opportunity to observe the demeanour of the witnesses.

The   appellant sued the respondent for recovery of three gardens of  land which claim is denied by the respondent in his written statement of defence.

At the trial two  issues were framed for determination.

  1. Who is the owner of the three gardens
  2. Remedies.

The main issue for determination before the trial court was ownership of the three gardens. 

The appellant’s case was that the three gardens in dispute belong to him having inherited them from his late grandfather Obwapus  Eriasa who according to  PW2   Ocen John, died in 1972.  According to PW2, the  appellant inherited the land in 1995 after a clan meeting . The appellant states   in his evidence that the respondent encroached on the land in 2004.

From the appellant’s case, it is apparent that he states two grounds to prove that he has an interest in the land. The first ground is that he bought the land ( page 6 of typed proceedings) fro m Eriasa. The second ground is that the  land was given to him after a clan meeting in 1995 ( page 9) . 

The respondent’s case on the other hand is that he inherited the suit land from his late father Opit in  1966  and that he has lived on this land since childhood. The 84 year old respondent  stated that he has   three grass thatched houses  and a semi permanent house on the suit land. According to the respondent, the appellant lives in Ngora while the suit land is located in Kees where the respondent lives. According to DW2   Omute Henry, he shares a boundary with the respondent who has lived on the land since the witness was six years old. DW2 was 62 years when he testified. 

DW2  Omute  confirms that although Eriasa  Obwapus from whom the appellant derives title lived in Kees at one point in time, on his death,   Esau Kedi, his son inherited the land . Therefore, Esau Kedi is a neighbour to the respondent . Dw2  further testified that Kedi Esau has a dispute with the appellant over the land he occupies.  The respondent confirms in his evidence that Esau  Kedi is his neighbour in Kees.

What emerges from the foregoing narrative is that the  respondent’s  claim to the land is based on long possession. The respondent was aged 84 at the time he testified and he had lived on the land all his life, from as far back as 1966  when  his father died.

It is evident that    while Eriasa Obwapus from whom the appellant claims title lived in Kees , on his death, the land in Kees was inherited by his son Kedi Esau  who the respondent acknowledges as a neighbour  What ever land Obwapus Eriasa owned in Kees was inherited by his own son Kedi Esau  .

  That Kedi Esau was not  involved in the dispute between the appellant and the respondent means that the appellant  made false claims to the  suit land  which  has always been under control and possession of the respondent.

In any case,  the appellant’s claim that he bough the land in dispute from Eriasa his grandfather and in the same breath claims to have inherited the suit land  brings in an element of uncertainty in his case. This coupled with the respondent’s strong case of long possession  lead to the conclusion that the appellant made false claims to the suit land. I find that the trial magistrate properly evaluated the evidence and arrived at a correct conclusion.

Turning to the grounds of appeal, the first ground is that  the trial magistrate erred in fact and in law when he   failed to correctly record and evaluate the evidence adduced before it.

I have found that the trial magistrate properly evaluated the evidence and arrived at a correct conclusion. As for the record, counsel had an opportunity to correct   any errors in the record prior to hearing the appeal. He did not have to make it a ground of appeal . in any case, i read the proceedings and i found them coherent.  Ground one fails.

Ground two is that  trial magistrate perfunctorily conducted the locus visit. I  did not find the proceedings of the locus  visit  on record although the visit is referred to in the judgment.

The  trial  magistrate was duty bound to record the locus proceedings , therefore, he erred in not  recording what transpired at the locus.   The trial magistrate was duty bound to  record presence of parties and witnesses who testified in court,   record their confirmation of  features mentioned in court,  draw a sketch map of the disputed land   and name owners of adjacent land.  That  there is no record of this was  highly irregular.

Nevertheless, as the location and size of the disputed land was clear from  the proceedings  in court , the locus visit was not critical to  the determination of the dispute.

Therefore while i agree with counsel for the appellant that the visit was conducted in a perfunctory manner, even if the visit had been done properly , the trial magistrate would have arrived at the same decision.

The third ground is that the judgment  occasioned a miscarriage of justice. I find no merit in this ground.

In the premises, i dismiss the appeal, confirm the judgment and orders of lower court  with costs of this appeal and lower court to the respondent.

DATED AT SOROTI THIS 17TH DAY OF  OCTOBER 2014.

 

HON. LADY JUSTICE H. WOLAYO