THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT MBALE HCT-04-CV-CA- 0006 OF 2012 (ARISING FROM PALLISA CIVIL SUIT NO. 0004/2004) ICULET OKURUT ASAJA GIRIFASIO OGARUKA GERESEM OPADDE OKURUT :::::::::::::::::::::::::::::: APPELLANTS VERSUS ECAAT ZAKAYO ::::::::::::::::::::::::::::::: RESPONDENT BEFORE: HON. JUSTICE HENRY I. KAWESA JUDGMENT This is an appeal from the decision of the Chief Magistrate’s Court of Pallisa presided over by His Worship Haji Ismail Zinsanze, Principal Magistrate Grade I, wherein the appellants were sued by the Respondent for trespass and recovery of land measuring 4 acres situate in Kadumire village in Apopong Sub-county and judgment was given in favour of the plaintiff/respondent. The facts giving raise to this appeal are that the Respondent/Plaintiff sued the appellants/defendants in the Chief Magistrate’s Court of Pallisa in civil suit No. 004/2004 seeking orders for recovery of a piece of land measuring 4 acres situate at Kadumire village in Apopong sub-county. The Plaintiff/Respondent stated that he acquired the suit land from his father a one Aryongo Mesulamu in 1995 as his share. That his father had acquired that land through purchase from one Samson Okirya and he provided an agreement of sale to prove his case. On their said the defendant/1st Appellant told court that the suit land belonged to her late father a one Andereya Osako and after his death, a friend to the late father took care of the land which he later handed over to her in 2004. At the hearing of the case, the plaintiff/respondent led evidence of 3 witnesses to prove his case and the respondents on the other hand led evidence of 7 witnesses in proof of their case. At the end of the trial, the trial Magistrate found that the plaintiff had proved his case against the defendants/Appellants hence judgment was pronounced in his favour, and the defendants being dissatisfied with the judgment appealed to this Honourable Court on three grounds namely:- That the trial Magistrate erred in law and fact when he didn’t evaluate the evidence on record properly. That the trial Magistrate erred in law and fact when he didn’t visit the locus in quo. That the decision complained of has occasioned substantial miscarriage of justice. Ground 1: As a first appellate court, following Kifamunte Henry v. Uganda SCCA 10/1997. This Court has the duty to re-evaluate the evidence and reach its own conclusion; being cautious that I did not observe the witnesses. While arguing ground one, (That the learned trial Magistrate erred in law and in fact when he did not evaluate the evidence on record properly). Counsel for appellants concluded that appellant’s evidence put so many loopholes in the respondent’s evidence which could not be explained and as such the respondent failed to prove his case to the required standard which is on a balance of probability. A review of the evidence on record briefly is as follows: PW.1 Ecaat Zakaayo (plaintiff) said the disputed land is located at Kadumire, Apopong, measuring about 4 acres neighboured by Okwaja in the north, Okiria Faiso in the South, Kapero in the West, and Okotole in the East. He claimed he obtained the land from her father Aryongo Mesulamu as her share in 1995. Her father also acquired the land by purchase from Samson Kirya. She tendered both sale (purchase) agreements as Exp.1 and Exp.2. She started utilizing the land until 2004 when defendants encroached on it, and took occupation. In cross examination, she informed court that she wondered why the same Okiria who had sold the land to her father, again purported to hand it to D.1. PW.2 informed court that he was present as a witness when Aryongo Mesulamu bought land from Samson Okiria. The land was about 4 acres and an agreement to that effect was made. He witnessed the agreement and identified it as Exp.1. PW.3 Mesulamu Aryongo told court he purchased the land in issue from Samson Okiria in 1983. He identified the agreement given to him by Okiria Samson (PE.2) from the previous transaction. He confirmed that he gave the land to Plaintiff Zakayo as a gift. In defence DW.1 claimed the land belonged to his late father Andereya Osako. After his death his friend care took the land. Later Okiria handed over the land to her in presence of her clan. She handed in the photocopy of the document given to her in ownership. She named her neighbours as per her document. DW.2 simply stated that land belongs to DW.1 for whom he went to cultivate. DW.3 Opade Okurut Robert, claimed Okiria was on the suit land until 2003 when he handed it to DW.1 in his presence. DW.4 Otim Musa- was present when land was handed over to D.1 in 19982 even before her father died. In 2004 the land was handed to D.1 since she had been staying on the land. In cross-examination he claimed Okiria left the land in 1984 to D.1. Later he said the land was handed over in 2003 not in 1984. DW.5 Adukiru Bruno said that land was given to D.1 as a heir who left it to Okiria (friend of her father) when she married. In 2003 the land was handed back to her by Okiria in presence of the clan. DW.5 Geresem Okia said Samson Okiria gave the suit land to D.1. The land was 4 acres. That while Omadel was handing over the land to Iculet he told her that Omadel sold the same to Ecaat (plaintiff) but she said nothing. That even the clan made an inquiry into the alleged sale. In cross-examination he confirmed that the plaintiff’s father used the suit land in the 1980’s and also plaintiff ever used the suit land. DW.7 Samson Okiria, said Andereya Osako gave him land to keep for his daughter in 1971 in presence of Okiring. The land was 8 acres. Osako died in 1982 and he appointed his daughter Iculet to be heir. The land was entrusted to him and he handed it over in 2003. He denied ever having sold land to Aryongo (father of plaintiff). DW.8 Okodosi John Michael confirmed that Okiria handed the land to D.1 in 2003. In cross-examination he said he did not know the history of that land. Given the above review, the complaint by counsel for appellant is that the learned trial Magistrate did not evaluate that evidence properly. He states that PE.1 and PE.2 did not describe the land they dealt with; that the neighbours are not included and its authors were not called to testify. He concluded that both PE.1 and PE.3 and all witnesses for the plaintiff did not prove that plaintiff owns the land. In his judgment the learned trial Magistrate noted at page 4 of his judgment that: “The defence did not challenge those two documents which indicated to court that (documents) were credible.” It is my finding that the evidence led on ownership by the plaintiff through PW.1-PW.3 was very consistent. The purpose of cross-examination is to enable the other party to test the credibility of the evidence. As observed by the learned trial Magistrate, plaintiff came to court with documentary evidence (PE.1 and PE.2). The defence never raised any objections to this evidence, neither did they challenge it. However evidence led by defence witnesses D.6-Okia, in cross-examination shows that the witness and others warned Defendant that the land had been sold by DW.7 to plaintiff and even an inquiry was made on it by the clan. I am therefore in agreement with observations by learned trial Magistrate that the documents as presented were good evidence in favour of the plaintiff. I also notice that from the defendant’s statement of defence paragraphs 6, 7 and 8 seems to indicate the land had been sold. Under paragraph 7 the Written Statement of Defence states: “The father passed away then the female respondent came back from her martial home talked to the clan and gave back the cows for the return of the pieces of land.” Then paragraph 8: “That there was no problem in any way with the buyer.” It is trite law that parties are bound by their pleadings. Defendants in the written statement of Defence show that the land had been sold, but in their evidence did not address the element of sale, and redemption by refund of cows. Instead they denied any transactions of sale or purchase but insisted D.1 was a heir to her father’s land. The above is not tenable in view of their pleadings above. This compared with the plaintiff’s claim under paragraph 3 that land was given her by her father and evidence she led on record. I am in agreement with the observations by the learned trial Magistrate, that in comparison plaintiff’s evidence was cogent while defence is full of contradictions as herebelow. The defendants contradicted themselves on the way that D.1 obtained the land. DW.1 did not know the neighbours without reference to her document. DW.4 claimed Okiria left the land to D.1 in 1984, then when pressed said its 2003, D.5 claimed it is D.1 who entrusted the land to Okiria to keep for her when she went for marriage. This contradicted the statements by D.1 and others that it is her father who left the land to Okiria as a friend. DW.6 said the land had ever been used by plaintiff and Plaintiff’s father. Other defence witnesses denied so. DW.7 is named as the seller of the land to plaintiff’s father. He denied so inspite of PE.1, PE.2 and PW.3 who personally testified to this transaction. The record shows that PW.3’s evidence was accepted and no amount of cross-examination could falter it. The agreement which D.7 made for D.1 was shown wanting by D.7 himself when he conceded that he did not thumbprint as it as was his practice. The document therefore remained doubtable for authenticity. From the above analysis of evidence am unable to agree with appellants that plaintiff’s evidence was discredited by the defence. Instead the reverse is the truth. In Abdu Ngobi v. Uganda SCCA 10/1991 court noted that in evaluating evidence the proper approach is to consider the strength not the weakness of each side. Weigh the evidence as a whole. Also in Alfred Tajar v. Uganda (EACA) CA No. 167/1967, the court noted that in assessing the evidence of a witness his consistency and inconsistency unless sufficiently explained will usually but not necessarily result into the evidence of a witness being rejected. Minor inconsistencies will not usually have the same effect unless they point to deliberate falsehood. In this case, there are major inconsistencies in the defence case as shown above. The evidence is at variance with their pleadings. It is contradicted in cross-examination. The learned trial Magistrate was therefore right in his conclusions on the final assessments; that the plaintiff’s evidence on a balance of probability shows that she owns the suit land. This ground is therefore not proved. It fails. Ground 2: Failure to visit locus: The learned trial Magistrate did not visit the locus. At page 3 of his judgment he held that the visit was not necessary because boundaries were agreeable to the parties. Counsel argues that the fact that appellants referred to 4 acres while defendants referred to 8 acres ought to have led court to locus. He argues locus would have enabled court to check on evidence adduced as per Yaseri Waibi v. Edisa Lusi Byandale (1982) HCB 28. This court has held in various cases that visiting locus is not mandatory: See cases of: Ahamed Dauda Ziwa Ssalongo Nakakawa Harriet vrs Dr. Kafumbe Anthony Luyinka CA. 33/2012 (Land Division Kampala). The visit is aimed at clarifying to court the evidence adduced. If the court deems the visit unnecessary the test to apply is whether the evidence in court depends on physical features that are on the ground and need a visual view so that court can have an opportunity to see and observe them. These could be boundary marks, markstones, physical (geographical features) which evidence brings out. Each case therefore is taken on its own merit. In this case the evidence in court focused on who was rightfully on the described land. Parties in court did not refer to any physical features over this land which court needed to check. The reference to 4 acres by plaintiffs was approximated. I do not therefore find any harm in court’s failure to visit the locus as it was sufficiently explained by the learned trial Magistrate. This ground fails as well. Ground 3: The decision occasioned a miscarriage of justice. Appellants argued that basing on the authority of Crane Insurance Co. V. Shelter (U) Ltd 1999 KALR 612, the decision of the learned trial Magistrate occasioned a miscarriage of justice. The above decision held that miscarriage of justice included misdirection and non direction by the trial Court on matters of fact relating to the evidence, court forming an unbalanced view of the evidence and reaching a decision unsupportable by evidence. I have already found no such misdirection by the learned trial Magistrate. I have found that the decision by learned trial Magistrate was based on a proper evaluation of the evidence on record. There is therefore no miscarriage of justice that was occasioned by the learned trial Magistrate. This ground therefore also fails. In the result, this appeal fails and is accordingly dismissed with costs to the respondent. I so order. Henry I. Kawesa JUDGE 04.12.2015 Right of appeal explained. THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT MBALE HCT-04-CV-CA- 0006 OF 2012 (ARISING FROM PALLISA CIVIL SUIT NO. 0004/2004) ICULET OKURUT ASAJA GIRIFASIO OGARUKA GERESEM OPADDE OKURUT :::::::::::::::::::::::::::::: APPELLANTS VERSUS ECAAT ZAKAYO ::::::::::::::::::::::::::::::: RESPONDENT BEFORE: HON. JUSTICE HENRY I. KAWESA JUDGMENT This is an appeal from the decision of the Chief Magistrate’s Court of Pallisa presided over by His Worship Haji Ismail Zinsanze, Principal Magistrate Grade I, wherein the appellants were sued by the Respondent for trespass and recovery of land measuring 4 acres situate in Kadumire village in Apopong Sub-county and judgment was given in favour of the plaintiff/respondent. The facts giving raise to this appeal are that the Respondent/Plaintiff sued the appellants/defendants in the Chief Magistrate’s Court of Pallisa in civil suit No. 004/2004 seeking orders for recovery of a piece of land measuring 4 acres situate at Kadumire village in Apopong sub-county. The Plaintiff/Respondent stated that he acquired the suit land from his father a one Aryongo Mesulamu in 1995 as his share. That his father had acquired that land through purchase from one Samson Okirya and he provided an agreement of sale to prove his case. On their said the defendant/1st Appellant told court that the suit land belonged to her late father a one Andereya Osako and after his death, a friend to the late father took care of the land which he later handed over to her in 2004. At the hearing of the case, the plaintiff/respondent led evidence of 3 witnesses to prove his case and the respondents on the other hand led evidence of 7 witnesses in proof of their case. At the end of the trial, the trial Magistrate found that the plaintiff had proved his case against the defendants/Appellants hence judgment was pronounced in his favour, and the defendants being dissatisfied with the judgment appealed to this Honourable Court on three grounds namely:- That the trial Magistrate erred in law and fact when he didn’t evaluate the evidence on record properly. That the trial Magistrate erred in law and fact when he didn’t visit the locus in quo. That the decision complained of has occasioned substantial miscarriage of justice. Ground 1: As a first appellate court, following Kifamunte Henry v. Uganda SCCA 10/1997. This Court has the duty to re-evaluate the evidence and reach its own conclusion; being cautious that I did not observe the witnesses. While arguing ground one, (That the learned trial Magistrate erred in law and in fact when he did not evaluate the evidence on record properly). Counsel for appellants concluded that appellant’s evidence put so many loopholes in the respondent’s evidence which could not be explained and as such the respondent failed to prove his case to the required standard which is on a balance of probability. A review of the evidence on record briefly is as follows: PW.1 Ecaat Zakaayo (plaintiff) said the disputed land is located at Kadumire, Apopong, measuring about 4 acres neighboured by Okwaja in the north, Okiria Faiso in the South, Kapero in the West, and Okotole in the East. He claimed he obtained the land from her father Aryongo Mesulamu as her share in 1995. Her father also acquired the land by purchase from Samson Kirya. She tendered both sale (purchase) agreements as Exp.1 and Exp.2. She started utilizing the land until 2004 when defendants encroached on it, and took occupation. In cross examination, she informed court that she wondered why the same Okiria who had sold the land to her father, again purported to hand it to D.1. PW.2 informed court that he was present as a witness when Aryongo Mesulamu bought land from Samson Okiria. The land was about 4 acres and an agreement to that effect was made. He witnessed the agreement and identified it as Exp.1. PW.3 Mesulamu Aryongo told court he purchased the land in issue from Samson Okiria in 1983. He identified the agreement given to him by Okiria Samson (PE.2) from the previous transaction. He confirmed that he gave the land to Plaintiff Zakayo as a gift. In defence DW.1 claimed the land belonged to his late father Andereya Osako. After his death his friend care took the land. Later Okiria handed over the land to her in presence of her clan. She handed in the photocopy of the document given to her in ownership. She named her neighbours as per her document. DW.2 simply stated that land belongs to DW.1 for whom he went to cultivate. DW.3 Opade Okurut Robert, claimed Okiria was on the suit land until 2003 when he handed it to DW.1 in his presence. DW.4 Otim Musa- was present when land was handed over to D.1 in 19982 even before her father died. In 2004 the land was handed to D.1 since she had been staying on the land. In cross-examination he claimed Okiria left the land in 1984 to D.1. Later he said the land was handed over in 2003 not in 1984. DW.5 Adukiru Bruno said that land was given to D.1 as a heir who left it to Okiria (friend of her father) when she married. In 2003 the land was handed back to her by Okiria in presence of the clan. DW.5 Geresem Okia said Samson Okiria gave the suit land to D.1. The land was 4 acres. That while Omadel was handing over the land to Iculet he told her that Omadel sold the same to Ecaat (plaintiff) but she said nothing. That even the clan made an inquiry into the alleged sale. In cross-examination he confirmed that the plaintiff’s father used the suit land in the 1980’s and also plaintiff ever used the suit land. DW.7 Samson Okiria, said Andereya Osako gave him land to keep for his daughter in 1971 in presence of Okiring. The land was 8 acres. Osako died in 1982 and he appointed his daughter Iculet to be heir. The land was entrusted to him and he handed it over in 2003. He denied ever having sold land to Aryongo (father of plaintiff). DW.8 Okodosi John Michael confirmed that Okiria handed the land to D.1 in 2003. In cross-examination he said he did not know the history of that land. Given the above review, the complaint by counsel for appellant is that the learned trial Magistrate did not evaluate that evidence properly. He states that PE.1 and PE.2 did not describe the land they dealt with; that the neighbours are not included and its authors were not called to testify. He concluded that both PE.1 and PE.3 and all witnesses for the plaintiff did not prove that plaintiff owns the land. In his judgment the learned trial Magistrate noted at page 4 of his judgment that: “The defence did not challenge those two documents which indicated to court that (documents) were credible.” It is my finding that the evidence led on ownership by the plaintiff through PW.1-PW.3 was very consistent. The purpose of cross-examination is to enable the other party to test the credibility of the evidence. As observed by the learned trial Magistrate, plaintiff came to court with documentary evidence (PE.1 and PE.2). The defence never raised any objections to this evidence, neither did they challenge it. However evidence led by defence witnesses D.6-Okia, in cross-examination shows that the witness and others warned Defendant that the land had been sold by DW.7 to plaintiff and even an inquiry was made on it by the clan. I am therefore in agreement with observations by learned trial Magistrate that the documents as presented were good evidence in favour of the plaintiff. I also notice that from the defendant’s statement of defence paragraphs 6, 7 and 8 seems to indicate the land had been sold. Under paragraph 7 the Written Statement of Defence states: “The father passed away then the female respondent came back from her martial home talked to the clan and gave back the cows for the return of the pieces of land.” Then paragraph 8: “That there was no problem in any way with the buyer.” It is trite law that parties are bound by their pleadings. Defendants in the written statement of Defence show that the land had been sold, but in their evidence did not address the element of sale, and redemption by refund of cows. Instead they denied any transactions of sale or purchase but insisted D.1 was a heir to her father’s land. The above is not tenable in view of their pleadings above. This compared with the plaintiff’s claim under paragraph 3 that land was given her by her father and evidence she led on record. I am in agreement with the observations by the learned trial Magistrate, that in comparison plaintiff’s evidence was cogent while defence is full of contradictions as herebelow. The defendants contradicted themselves on the way that D.1 obtained the land. DW.1 did not know the neighbours without reference to her document. DW.4 claimed Okiria left the land to D.1 in 1984, then when pressed said its 2003, D.5 claimed it is D.1 who entrusted the land to Okiria to keep for her when she went for marriage. This contradicted the statements by D.1 and others that it is her father who left the land to Okiria as a friend. DW.6 said the land had ever been used by plaintiff and Plaintiff’s father. Other defence witnesses denied so. DW.7 is named as the seller of the land to plaintiff’s father. He denied so inspite of PE.1, PE.2 and PW.3 who personally testified to this transaction. The record shows that PW.3’s evidence was accepted and no amount of cross-examination could falter it. The agreement which D.7 made for D.1 was shown wanting by D.7 himself when he conceded that he did not thumbprint as it as was his practice. The document therefore remained doubtable for authenticity. From the above analysis of evidence am unable to agree with appellants that plaintiff’s evidence was discredited by the defence. Instead the reverse is the truth. In Abdu Ngobi v. Uganda SCCA 10/1991 court noted that in evaluating evidence the proper approach is to consider the strength not the weakness of each side. Weigh the evidence as a whole. Also in Alfred Tajar v. Uganda (EACA) CA No. 167/1967, the court noted that in assessing the evidence of a witness his consistency and inconsistency unless sufficiently explained will usually but not necessarily result into the evidence of a witness being rejected. Minor inconsistencies will not usually have the same effect unless they point to deliberate falsehood. In this case, there are major inconsistencies in the defence case as shown above. The evidence is at variance with their pleadings. It is contradicted in cross-examination. The learned trial Magistrate was therefore right in his conclusions on the final assessments; that the plaintiff’s evidence on a balance of probability shows that she owns the suit land. This ground is therefore not proved. It fails. Ground 2: Failure to visit locus: The learned trial Magistrate did not visit the locus. At page 3 of his judgment he held that the visit was not necessary because boundaries were agreeable to the parties. Counsel argues that the fact that appellants referred to 4 acres while defendants referred to 8 acres ought to have led court to locus. He argues locus would have enabled court to check on evidence adduced as per Yaseri Waibi v. Edisa Lusi Byandale (1982) HCB 28. This court has held in various cases that visiting locus is not mandatory: See cases of: Ahamed Dauda Ziwa Ssalongo Nakakawa Harriet vrs Dr. Kafumbe Anthony Luyinka CA. 33/2012 (Land Division Kampala). The visit is aimed at clarifying to court the evidence adduced. If the court deems the visit unnecessary the test to apply is whether the evidence in court depends on physical features that are on the ground and need a visual view so that court can have an opportunity to see and observe them. These could be boundary marks, markstones, physical (geographical features) which evidence brings out. Each case therefore is taken on its own merit. In this case the evidence in court focused on who was rightfully on the described land. Parties in court did not refer to any physical features over this land which court needed to check. The reference to 4 acres by plaintiffs was approximated. I do not therefore find any harm in court’s failure to visit the locus as it was sufficiently explained by the learned trial Magistrate. This ground fails as well. Ground 3: The decision occasioned a miscarriage of justice. Appellants argued that basing on the authority of Crane Insurance Co. V. Shelter (U) Ltd 1999 KALR 612, the decision of the learned trial Magistrate occasioned a miscarriage of justice. The above decision held that miscarriage of justice included misdirection and non direction by the trial Court on matters of fact relating to the evidence, court forming an unbalanced view of the evidence and reaching a decision unsupportable by evidence. I have already found no such misdirection by the learned trial Magistrate. I have found that the decision by learned trial Magistrate was based on a proper evaluation of the evidence on record. There is therefore no miscarriage of justice that was occasioned by the learned trial Magistrate. This ground therefore also fails. In the result, this appeal fails and is accordingly dismissed with costs to the respondent. I so order. Henry I. Kawesa JUDGE 04.12.2015 Right of appeal explained.
