Court name
HC: Civil Division (Uganda)
Judgment date
4 November 2015

Odewo & Anor v Ofwono (HCT-04-CV-CA-2014/177) [2015] UGHCCD 129 (04 November 2015);

Cite this case
[2015] UGHCCD 129
Coram
Kawesa, J

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA

HOLDEN AT MBALE

 

HCT-04-CV-CA-177 OF 2014

(ARISING FROM CIVIL SUIT NO. TOR-00-LD-CS-0092-2014)

 

  1. ALFRED ODEWO                                ::::::::::                     APPELLANTS
  2. OLOKA ODEWO

VERSUS

OFWONO PADDE DESEDRIO                           ::::::::::                     RESPONDENT

 

BEFORE: HON.  MR. JUSTICE HENRY I. KAWESA

 

JUDGMENT

 

Appellant in the amended memorandum of appeal raised three grounds of appeal namely;

  1.  That the  learned  trial  Magistrate  grossly erred making misdirections and non directions of law and fact when  he failed to properly and exhaustively evaluate , scrutinize and appraise the  evidence on record reaching  a wrong  decision that occasioned a miscarriage of justice to the  appellants.
  2.  That the learned trial Magistrate erred in law and fact when he failed to compare the testimonies of the witnesses and the fact at locus occasioning a miscarriage of justice.
  3. That the learned trial Magistrate erred in law and fact when he entered  Judgment for the plaintiff on false evidence and decreed him the suit land, issued an order of vacant possession  awarded him damages, interest  and costs occasioning a miscarriage of justice.

 

Appellant prayed for orders that:

  1. The appeal be allowed with costs of the appeal and those of the lower court.
  2. The trial Magistrate orders be set aside.
  3. The appellant be adjudged the owner of the suit property not sold to the plaintiff.
  4. In the alternative and without prejudice an order directing the respondent to curve out his land be issued.

 

The duties of a first appellate court include a review of the evidence with scrutiny to enable the appellate court reach its own conclusions.

 

The facts that gave raise to this cause were articulated in the plaint as follows; under paragraph 3 thereof:

The plaintiff sues the defendants jointly and severally for recovery of three pieces of land (approximately 33) acres situated at Maguria ‘B’ village general damages for trespass and costs. The facts were enumerated under paragraph 4 thereof, but in summary are that plaintiff in 1982 bought a piece of land measuring 25 acres from the 1st defendant by agreement annexed as “A” to the plaint. He bought a second piece of land measuring 4 acres in 1987 vide annex ‘B’ from the 1st defendant.  He obtained a third piece of land by a deed of conveyance (annex ‘C’) drawn in his favor by his late grandfather Okello Ofuka in 1989.”

The 1st defendant in 1999 was reported by plaintiff to police for threatening him with violence regarding the said lands vide SD/39/16/9/99. The defendant  made an  apology which is annexed as ‘D’ to the pleadings. Later defendant reported  plaintiff over the same issue of land to the RDC’s office vide annex E’

Later all D1, D2, D3 jointly prohibited the plaintiff from further utilization of the same lands hence this suit.

By defence in their Written Statement of Defence, jointly  under paragraph 3 thereof averred that, the 1st defendant admitted to selling  to the plaintiff only  one piece of land  approximately 15 acres in 1982which land was bounded by a footpath separating  the 1st defendant’s land and that which was sold to the plaintiff. They further contended that they have never sold any additional land to the plaintiff and that the plaintiff was fraudulently laying claim to the same.

They prayed for dismissal of the suit.

During the trial of the Civil Suit, the evidence before court was as follows; PW1: Ofwono Padde Desderio said in 1982 1st defendant informed him that he was selling land.  The land was about 25 acres. He then bought the land at 80,000/= Uganda shilling.

A sale agreement was made before an advocate Ochieng Welbrod. It was in presence of Tadeo Okello, 2nd defendant, Ofwono George and late Pius Wanyonyi.  Agreement was tendered as annex ‘A’.  He bought another 4 acres in 1987 and tendered Annex ‘B’ as exhibit 2. Defendants then shifted to Bugishu and came back around 1998-1999 and 1st defendant threatened plaintiff with a knife and cases ended up before police and RCs. The defendant made an apology in writing annex ‘D’ received as PEX N0.3. When D1 sold plaintiff the first portion of land (25) acres he realized it had other 3 people’s portions (Bulatina Alowo who sold him her portion at 20,000/=) about 2 acres. This was 1988-89 the agreement was received as PEX.4.

The second piece of land was for Vicent Okecho who requested for 4 heads of cattle and shs 150,000/=. His land was 5 acres.  This was exhibited by agreement tendered as P.Exh.5.

The third piece   was for Tororo Municipal Council for which he applied for a lease tendered as PExh.6.

Another land which plaintiff bought was formerly for the uncle of 1st defendant Nicholas Okello Opuku. This was around 6 acres. He paid 5 heads of cattle and shs 13,000/= in 1989. The respective sale agreement was tendered as PEX.7.  The witness then concluded that the defendants are claiming all the pieces of land he had referred to above. They constructed thereon grass thatched houses and cultivated cassava.

During cross-examination he clarified that when he bought the land, the foot path is on the upper part, on the Northern part and it was bordering D1- Alfred Odewo. He also clarified that no boundary marks were drawn at time of purchase of the lands.

PW2- Emmanuel Oketch Okello witnessed the sale and mentioned some of the neighbors to the land bought in 1987, which was 4 acres and bordered by a foot path in the south.

PW3- Bulandina Alowo- stated he sold land to plaintiff in 1989; which was approximately one acre at shs 30,000/= witnessed by among others Okello Zakaria( deceased ) and Owoko.  An agreement was written and he confirmed that the suit land belongs to the plaintiff.

PW4- Okoth Benedict, testified that Alfred Odewo (D1) with another approached him as Parish Chief that they wanted to sell land to Etyang Emodo at 620,000/=.  It was 4 acres. He wrote the agreement. Later the land changed hands through a court case and a one Nicholas Ipuko was owner before plaintiff took over. Later in 1999, he witnessed D1 apologizing to the plaintiff at police. He wrote the agreement (apology) letter. In the letter he conceded that he does not own the land; but went ahead to construct on the land.

DW1- Alfred Odewo a paternal uncle to plaintiff stated that in 1982 he sold 15 acres of land at 80,000/= and planted boundaries for the plaintiff. An agreement was executed by Wellborne Ochieng but that PW2 was not among those who witnessed. He disputed the agreement accepting some contents but alleging that there were forgeries inside. He claimed that the plaintiff encroached on his land as a result of which he reported matters to the LC court. He was referred to the RDC, and later was arrested by police. He denied writing the apology. He claimed that plaintiff chased his wife from the land and took it over.  

DW2 Tadeo Oloka said he witnessed the land transaction of 18/4/1982. He signed on EXP1.  It was for 15 acres; but they only used eyes for measurement. They later migrated and on return the plaintiff had taken over the land.

DW3- Oketcho Vicent, said the land was sold in 1982 plaintiff bought it from D1 and the extent of acreage was not known to him. He also sold land to plaintiff in 1990 plaintiff was one side, D1 in the middle and witness on the other side.

However he said there was a litigation regarding the middle land occupied by D1 but he didn’t know if there was any transaction between the two.

DW4 Owoko Gabriel who claimed the land was for defendant, basing on what he told the Maguria LC Committee. He however said he was not party to the land sale transaction between the defendant and plaintiff and did not participate in the planting of boundary marks. He said he did not know the size of the disputed land.

At the locus both PW1 and defendant showed court the land in dispute and court noted their evidence down.

Having considered all the evidence above, the facts and law the learned trial Magistrate found in favor of the plaintiff.

I have dully perused the submissions by Counsel for each party and now do determine the grounds as here below;

Issue 1(Ground one)

The learned trial Magistrate grossly erred making misdirections and non directions of law and fact when he failed to properly and exhaustively evaluate, scrutinize and appraise the evidence on record reaching a wrong decision that occasioned s miscarriage of justice.”

Issue 2(Ground two)

The learned trial Magistrate erred in law and fact when he failed to compare the testimonies of the witnesses and the facts at locus occasioned a miscarriage of Justice.”

Issue 3(Ground three)

The learned trial Magistrate erred in law and fact when he entered Judgment for the plaintiff on false evidence and decreed him the suit land , issued an order of vacant possession, awarded him damages, interest and costs occasioning a miscarriage of justice.”

The above grounds can all be argued together since all relate to evaluation of evidence.

I will therefore consider all grounds under the one broad issue whether the learned trial Magistrate properly evaluated the evidence.

Having gone through the arguments, the main complaint by appellant’s Counsel under ground 1 was that the learned trial Magistrate never evaluated the evidence on record. He attacked the reliance on the exhibited agreement by the learned trial Magistrate, without proof from a handwriting expert. He argued that reliance on sections  91 and 92 of the Evidence Act was faulty; and a gross misdirection which caused a traversity of justice. He instead proposed reliance on Sections 100-103 of the Evidence Act; and the case of Christopher Sebuliba  vs. Attorney General Scc N0. 13/1991.

Counsel further referred to contradiction in the respondent’s evidence especially regarding the purchase of Vincent Oketch’s land and the neighbors to his land. He also attacked P.Exh.2  and pointed out further contradictions regarding the evidence related to the said purchase . He pointed out that while respondent put the acreage at 2 acres sold at 20,000/= a witness Bulantina Alowo said it was one acre sold at 30,000/=.

Respondent’s Counsel however rebutted the above argument s pointing out that Section 60-64 of the Evidence Act provide for various modes of proof of documents in courts, and there was no need for expert evidence.

I have noted from the evidence on record that PEX.1 was a document upon which the plaintiff sued defendants for the 25 acres purchased in 1982. It was annexed to the plaint as annex ‘A’.  It was listed in the list of documents as item 1 ‘sale agreement dated 18th April 1982’. In evidence it was tendered in and accepted as PEX1.

In his Written Statement of Defence paragraph 3 the defendant admitted selling to the plaintiff 15 acres.

It was argued for appellants that since during hearing the appellants had raised the fact that the said exhibit had been altered then the court was wrong to rely on it.

I do not agree. The law is that parties are bound by their pleadings. The Written Statement of Defence did not anywhere raise the issue that Anex ‘A’  was altered and hence a false document. The paragraph 3 of Written Statement of Defence only mentioned that the acreage was 15 acres not 25 acres.

In law once a party relies on documentary evidence, that document can be proved in any of the ways provided for under Section 60-64 of the Evidence Act. Exh PE1 was proved and tendered. Witnesses testified as to its authenticity. Appellant did not deny the transaction but claimed that his signature was forged. It was at this stage that Counsel for plaintiff provided court with specimen signature. It is now argued on appeal that at this stage court ought to have relied on the expert evidence of a handwriting expert before relaying on this exhibit.

The above proposition in my opinion is false because firstly Section 103 of the Evidence Act:

places the burden of proof in a suit or proceeding as to any particular fact on that person who wishes the court to believe in its existence…

This means that whereas the burden of proving the fact of the sale transaction was upon the plaintiff under Section 101 of the Evidence Act, that burden was discharged when he tendered EXPE1 and called witnesses who confirmed the same. However defendant who wanted court to believe that the document they signed was not EXPE1 but another and that the signature on EXPE1 was not his signature, then assumed the burden to prove those facts under Section 103 of the Evidence Act. It would have been him (appellant) to bring evidence of the expert to anull the facts presented by EXPE1. He ought to have produced evidence of the forgery he alleged. By appellants’ Counsel inferring that it was the burden of the plaintiff (respondent) to call this witness, his imputing that plaintiff bears a burden to prove allegations of fact raised by the defendant. This is faulty and unsustainable.

That notwithstanding, the law governing expert opinions was long laid down in common law practices that such opinion is not binding on the court. The duty to assess that evidence is on the Judge / Magistrate. It was thus held in  Davie vs. Edinburgh Magistrates (1953) SC 34 at 40.

The duty of expert witness is to furnish the Judge with necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the Judge or Jury to form their own independent Judgment by application of these criteria to the facts proved in the evidence”.

The import of this common law position is that even if such expert evidence was sought for, it would still be in the discretion of the learned trial Magistrate to weigh its evidential value.

From the learned trial Magistrate‘s Judgment at page 3, he noted that:

I am satisfied in my findings from evidence on record and my observations at locus in quo, on the balance of probabilities in absence of any forgery or any other document stating otherwise, I find voluntarily entered a sale agreement PEX 1 measuring 25 acres of land..

The learned trial Magistrate considered all the evidence. He considered the law as applicable to such transactions under Sections 91 and 92 of the Evidence Act, and concluded that plaintiff and defendant voluntarily entered into the sale transaction evidenced by PE1 measuring 25 acres of land. From my reasoning above, I have reached a similar conclusion.

Regarding the alleged contradictions in the various pieces of evidence as argued by the appellant Counsel in submissions, a close scrutiny of the entire evidence before court, tends to show that contrary to the minor contradictions pointed out by appellants, the plaintiff/ respondent produced cogent evidence before court through both documentary evidence and witnesses to prove his case on a balance of probability. I note from this evidence as further also explained that;

  • There is documentary evidence through PE2 showing record of the second purchase. PW2 E. Okello testified as a witness to the sale.
  • Regarding the fact that there is a contradiction over who boarders the disputed land of the two named persons i.e. Gabriel Owoko and Vincent Oketch. The court  agrees with the observation by respondent Counsel that going by the testimonies of PW1, PW2, PW3 and PW4 alongside PEXH1,PEXH2,PEXH3, PEX4, PEX5 and DW1, DW2, DW3 and DW4, it is clear that all parties are agreed that these land  transactions were involving and had occurred over a long period of time. There was therefore room for error (forgetting) some details given the ages of the witnesses. Secondly there are observations made by the trial Magistrate who visited the locus, indicating that the defendant’s evidence was not cogent regarding some of the facts alleged for example court noted at page 37 of the proceedings first paragraph  it is recorded:

 “Defendant: The evidence of Alifusi Othieno being a neighbor to the suit land is correct. The plaintiff uprooted the boundary mark at the 15 acres I sold to him. I distributed the land using the poles in 1987 with my children.”

 He further stated: “The poles have never been replaced since 1987.”

Court noted:    “The poles are in very good condition and could not have been erected in 1987.”

Also at page 39 court notes: “The issue of Opuko, the defendants are contradicting themselves.

The sum total of these findings is found summed up at page 4 of the learned trial Magistrate’s Judgment from the third paragraph where he states:

There is documentary evidence to show that on 5th February 1989 Bulantina Alowo sold to the plaintiff…… there is a document dated 15th March 1989 which plaintiff’s grandfather Okello Opuko handed him his land...” (See PEX7).

This evidence is challenged by defendants:

I find these arguments without merit in light of the evidence on record and my observations at locus in quo…”.

With due respect to arguments raised on appeal by appellant’s Counsel, I find that the learned trial Magistrate considered the evidence and evaluated it and made observations which in total informed his conclusions.

My personal evaluation of that evidence is in agreement with the learned trial Magistrate findings. There is a lot of speculative statements attributed to the evidence that the witnesses for defendant provided.  For example many of them did not witness the land transactions, they did not know the boundaries and mentioned neighbors who were on lands outside the conflict area .  See page 26, 29 evidence  of  DW2.  Also Dw3-Oketcho Vincent, page 31 last paragraph, also page 32 (cross-examination). Both these witnesses on cross-examination could not clearly articulate the land in dispute in size, acreage or actual neighbors.

Also DW4 at page 34, line one states that:

             “He never participated in the land sale or planting of boundary marks.”

 He testifies in line 19 that:  

the land in dispute belongs to D1; he inherited it from his father Daudi Ongaria.”

Also in cross-examination he then stated that:

               “I don’t know whether Blantina sold land to the plaintiff.

                “It is D1 who is using the land of Blantina.”

              “Before D1 started using Blantina’s land it was the plaintiff using it.”                        (Last paragraph page 34).

              “I do not know the size of the disputed land.” (page 35)

I do not know if any borders were planted after 1982 sale but I did not see any boundaries…..” (Page 35 line 14).

 

It is my opinion that given the type of evidence on record by both parties, the plaintiff’s evidence was more reliable than that of the defence. The defence was more of a denial of facts, without evidential proof while the plaintiff was reliable and more cogent. I am therefore in agreement with observations made by Counsel for respondent regarding this evidence in her submissions explaining away the issues raised by appellants’ Counsel. I find that all that appellant seeks this court to find as contradictory in this evidence is not fatal and does not go to the root of the case.

The learned trial Magistrate’s award of general damages was also faulted. However I did not find any reason to disturb this award because it is not excessive. An award of general damages is in the discretion of the court; as rightly argued by the learned trial Magistrate. The case law cited is of good guidance in this matter. I reiterate the said cases and the law as discussed in cases like Uganda Commercial Bank Vs. Kigozi (2002) 1 EA 305.

Having gone through the above issues, it is therefore my finding that this appeal has not been proved on all the grounds raised. It accordingly fails. The appeal is dismissed with costs to the respondent.

 

 

 Henry I. Kawesa

JUDGE

04.11.2015

 

Right of appeal explained.