Court name
HC: Land Division (Uganda)
Judgment date
7 July 2017

Ongom v Otodo & Anor (HCT-04-CV-CA-2015/9) [2017] UGHCLD 12 (07 July 2017);

Cite this case
[2017] UGHCLD 12
Coram
Kawesa, J

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA

HOLDEN AT MBALE

 

HCT-04-CV-CA -009- OF 2015

(ARISING FROM PALLISA CIVIL SUIT NO. 01 OF 2014)

 

ONGOM STEPHEN            ::::::::::::::::::::::::::::::                       APPELLANT

VERSUS

  1. OTODO CLEMENT
  2. OSAURO JOHN       ::::::::::::::::::::::::::::             RESPONDENTS

 

BEFORE: HON. JUSTICE  HENRY. I. KAWESA

 

JUDGMENT

 

The appellant appeals the decision of the Grade I of Pallisa of the 19th January 2015 under Civil Suit No. 01 of 2014.

 

He raised 6 grounds of appeal.

The duty of this court as a first appellate court was stated in Begumisa V. Tibebaga SCCA 17/ 2002 and includes the duty to reevaluate the evidence, make its own conclusions and findings. The court must caution itself that it neither had the opportunity to see or hear  the witnesses.

 

The facts of this case as presented in the pleadings briefly were as here below:

 

The plaintiff / appellant  sued the defendants/ respondents  vide plaint  dated  6th  January  2014 for land situated in Kamuge Olinga measuring  3 acres. In paragraph 5, he states  that in 1994 his late father  Ongom  John  divided  land  among  all his children  and the  plaintiff began  using  this  land, then later  gave  it to the defendant to caretake for him.

 In  2000, D1 encroached  thereon and  when plaintiff  demanded it  from  him in 2012 he  declined  to give  him  vacant possession.

He  therefore  sued him  in  court  for vacant  possession , permanent  injunction  and  damages.

 

By written statement of defence dated 24 of January 2013, both defendants denied the suit.

 

The evidence in court was as follows:

 

PW1 Ongom Stephen who said he inherited the land from his father John Ongom in 1994 land3 acres at Kamuge  Olinga Pallisa . D1 Otodo Clement was a caretaker and has refused to vacate. He relied on a copy of Will annexed “A” and exhibited as PE1 and clan minutes annex ‘B’ and exhibited as PE2.

 

PW2- Apoloto Mary said the land was for her late husband John Ongom acquired through inheritance from Osauro. She cultivated from 1968 to 2011 when defendant encroached and   hired it to D2 who also hired to Okiria. She informed PW1 who went to the clan. The clan solved the matter but defendants refused to vacate.

 

PW3- Adupa Joseph said  the land  is for  Ongom Stephen ( PW1). He got it on 12.11.1994. The  witness wasn’t  present  but  knew of this fact  as a County  Chief  of  Ikorom Ikanoko clan to which  the  parties belong. When Ongom died, on 24.11. 94, he attended the burial together with defendants. A will was read out where all lands were mentioned and the suit land was given to the plaintiff.

 

PW4- Adakuni Cosma  said  land is  for John  Ongom  and he  inherited it  through   a Will. He was the one who wrote the Will on 12.11.94.

He identified PEX1 as the said Will.

 

PW5 said   that he knows the suit land, he had ever  assisted  in a previous  land dispute  at  family level  and the land  is for plaintiff who  inherited from  his late father  John Ongom  in 1994. He grew up seeing plaintiff’s mother using land and hence confirmed plaintiff retained it through his father’s will. The will is genuine.

 

In defence Court heard evidence of DW.I Otodo Clement who said the land is his by inheritance  from his father in 1945 land is at Kasana village about 3 acres and land is customary.

 

DW.2 Osauro John, said land is for his grandfather Osauro owned jointly with Akite.

 

DW.3 Okurut Andrew said land is for first defendant; who got it from his father Auchati and it is about 6 acres.

 

DW.4 Okoi James said the land is for D.1 it is about 7 acres at Odukano village and is customary land.

DW.5 Galyete Gorret; said the land is for D.1 who got it from his father Ewudote.

 

Court visited locus, made observations and then made judgment in favour of the defendants/respondents.

With that evidence, and bearing in mind the grounds of appeal and submissions by counsel, I now resolve the appeal as herebelow:

 

Ground 1: Misdirections and Non-directions and failing to evaluate evidence

The main complaint is that the learned trial Magistrate ignored evidence by the plaintiff. The appellant alleges that plaintiff led evidence of PW1, PW2, PW4, PW5, PEX1 and PEX2 to prove that he inherited the land from his late father. However learned trial Magistrate did not consider this evidence but only relied on defence case. The alleged contradictions in view of appellant’s counsel were minor and ought to have been ignored. 

 

In Response Respondent’s counsel argues that the plaintiff failed to prove the case on balance of probabilities.

Counsel Kyabakaya argued that the learned trial Magistrate failed to properly assess the plaintiff’s evidence which Counsel Wamimbi opposed.

 

I have gone through the evidence. The burden of proof in civil matters is heavy on the plaintiff to prove his allegations on the balance of probabilities.

(Section 101,102,103 Evidence Act)

 

In Court plaintiff relied on PW1, PW2, PW3, PW4, PW5, PE1 and PE2. Defence relied on DW1, DW2, DW3, DW4, and DW5. The  court  however  visited  locus, and  in its  Judgment  relied heavily  on the  findings  by court  at locus.

 

The learned trial Magistrate at pages 5-6- Court noted findings at locus greatly influenced its decision. At page 5 the learned trial Magistrate noted:

At the close of the defence court conducted locus where it established that …. in view of the above facts and testimonies,  I shall  analyze and  resolve  the issues as follows…

 

The  above  shows that court  in reaching its  conclusions  made  reference  to other  “facts and testimonies” at  locus which were not  part of the evidence in open court. It was as a result of those findings at locus that the learned  trial Magistrate  at page  6 of his  Judgment  concludes;

Whereas plaintiff tendered  a will and clan minutes, those 2  documents were note denied by defendant but rather were reflecting  to other  properties and   not  the suit land (sic!), but even  if the  will was talking  of land in that village, would  it have  been the  suit land?”

Possibly no because the first defendant has been staying on the suit land for more than 50 years therefore it is unlikely that the plaintiff was referring to the suit land…

 That  discourse  shows that the learned trial Magistrate  did  not  believe the fact that the will  is  referring to the suit land,  he  did not however  refer to any  other   evidence  which was to the contrary  opinion  save  his  findings at locus.   It is therefore crucial to examine if this conclusion is tenable in view of the appellant’s allegations in the grounds of this appeal.

 

The law that governs Courts as they hear land matters has been articulated in numerous cases. However in cases of this nature where court finds it necessary to visit locus in order to ascertain  conflicts related to  boundaries, descriptions of  locations, neighbors etc, then  court must  strictly  follow the provisions  of  Practice  Directive  1/2007 under  Rule 3 thereof  the  Directive provides that  while at locus  in quo court should; 

  1. Ensure that all the parties, their witnesses and  Advocates  if any  are present.
  2.  Allow the parties  and  their  witnesses adduce  evidence  at  the  locus in quo.
  3.  Allow cross-examination  by  either  party or  his counsel.
  4.  Record all proceedings at  locus in quo.
  5.  Record any observations, view opinions or conclusions of the court   including a drawing a sketch plan if necessary.

 

This procedure has been further articulated by courts in a number of decided cases.  For example: In David Acar V Alfred Aliro (1982) HCB 60 said;

the purpose of the visit  is for  the witnesses to clarify  what  they  stated  in court, they  do so  on oath, they  must  be allowed to be  cross-examined… the  observation by the learned  trial Magistrate  must  form   part of the  proceedings…

 

In Paineto  Omwero  V Saulo  Zebuloni  HCCS No. 3 of 2010 (unreported)the  court held that  the  four witnesses indicated  as  having  given  evidence  at  the locus in quo had not  attended the earlier trial court  and  had not  been  summoned as  witnesses for either  side and  were  not  called to testify  on what they had stated  in court before such  evidence  was procured in error. This error vitiated the trial rendering the decision of the lower court null and void.

 

The above  statement  of the law emphasizes  that the purpose  of visiting  locus in quo  is to check on the evidence  given  by the witnesses and not  to fill gaps for them  at   the trial, lest  the Magistrate  becomes a witness in the case.