Court name
HC: Land Division (Uganda)
Judgment date
3 April 2017

Owor & Anor v Ochwo & Anor (HCT-04-CV-CA-2015/173) [2017] UGHCLD 61 (03 April 2017);

Cite this case
[2017] UGHCLD 61
Coram
Kawesa, J

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA

HOLDEN AT MBALE

 

HCT-04-CV- CA- 173 OF 2015

(ARISING FROM LAND SUIT NO. 162/2012)

 

  1. EDWARD  OWOR
  2. AWOR BUDESTA :::::::::::::::::::::::::::::             APPELLANTS

                             

VERSUS

  1. OCHWO MELLO
  2. OKELLO BOLE     ::::::::::::::::::::::::::::::::          RESPONDENTS

          

 

BEFORE: HON. MR. JUSTICE HENRY I. KAWESA

 

JUDGMENT

In this appeal, the appellant was dissatisfied with the judgment of the Chief Magistrate Tororo under (suit LD 162 of 2012 dated 19th November 2015, on 7 grounds of appeal.

However grounds 3, 5 and 7  were abandoned by appellant’s counsel, who chose to argue grounds 1 and 4 together, and grounds 2 and 6  separately.

 I will follow the same order of resolution of the grounds of appeal.

As a first appellate court,  I have the duty to reappraise  the evidence and arrive at my own conclusions, following the principles that I have/ did not have chance to observe the witnesses as advised in Banco Espanal V Bank of Uganda SCA 8/1998 (unreported).

Grounds 1 & 4 (irregularity).

Under  ground 1, it was complained that the learned trial Magistrate erred when she failed  to take cognizance of the procedural  irregularity of the respondent’s suit and under ground 4- the complaint is that the learned trial Magistrate erred  when she found that the plaint disclosed a cause of action against appellants/defendants.

The appellants’ argument was that the irregularity was in respect to the failure to conduct the locus and or to record the proceedings at locus. Respondents stated that no procedural irregularity occurred in conducting the locus visit.

I have examined the record of proceedings and all being said the record speaks for itself.

As pointed out by appellants’ counsel, the provisions of Practice Direction No.1 of 2007, it is emphasized that proceedings at the locus must be recorded. It provides that court should record any observations view, opinion or conclusions of the court including drawing a sketch plan if necessary.

This is in line with the case of David Acar V Alfred  Acar Aliro (1982) HCB 60 which  held interalia that:

The  purpose of the locus in quo is for the witnesses to clarify what  they stated in court so when a witness is called to show or clarify  what  they stated  in court  he or she  must do  so on oath. The other party must be given opportunity to cross-examine him. The opportunity mustr be extended to the other party. Any observation by the trial Magistrate must form part of the proceedings.”

I noted from the proceedings that court conducted a hearing of their case at the locus. The proceedings of the main trial in open court and that at locus are mixed up. I did not see on record any indication that the court observed, moved around, was shown the land  etc. All that is on record is just a recording of evidence as it normally is in open court (see page 12 of typed  proceeding to page 15). It is shown at page 12 that: “Both counsel and parties have agreed to hearing the case further at locus with this 4 witnesses.

  1. Yokoyasi Opoyo
  2.  Filista Akello
  3. Ofumbi Hazana
  4.  Onyango Yombo

The above procedure was flawed. The usual practice of visiting the locus in quo is to check on the evidence given by witnesses and not to fill in gaps as per Waibi v Byandala (1982) HCB 28.

Clearly in this case court just shifted the hearing at locus for no clarifications. New evidence was given at locus by new witnesses. At situation akin in Paineto Omwero V Saulo s/o Zebuloni HCCS 31/ 2010 (unreported) where  court found that:

the  standard  procedure must be adhered to when the court  decides to visit  the locus in quo, the record of proceedings does not  bear the evidence of  steps taken  at the locus in  quo. Also 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 to state 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 decision above is on all fours with the present case. The four witnesses who testified at the locus had not testified in open court before, neither had summons been issued to them earlier on as witnesses for either party. Their evidence at locus was therefore in error, and it vitiated the trial. I do not see even the record of what transpired after their testimony at locus. No record, or sketch plan  etc is on record.  For the above observations, I find that the conduct of the locus was done irregularly and the entire proceedings thereat were a nullity.

This ground succeeds, and  on it  alone the matter  having involved a claim  for land  between  the parties , there is  no way  the findings of court can  stand if locus  was not  proper. The pleadings by the defendants clearly denied the fact that the land plaintiff sued for was part of the Estate of late Simon Osinde.

Accordingly locus would  have enabled the learned trial Magistrate to go around  the land and see the land the parties claimed . The failure was fatal and was a gross misdirection.

The question of cause of action was not argued by appellants though they simply allude to the fact that it must be specifically pleaded not inferred.

They argued that particulars of trespass should have been clearly set out.

In reply respondents’ counsel argued that the respondents properly brought the suit and relied on Steven Semakula V Samuel Serungogi C/S 187/ 2012 for their argument that the plaint discloses a cause of action against 1st & 2nd appellants.

The law on cause of action is provided for under O 7 r 11(a) of the Civil Procedure Rules that:

a plaint may be rejected if it discloses no cause of action. The law is further that in determining whether a plaint discloses a cause of action  the court must look only  at the plaint  and its annextures if any  and nowhere else.”

(See: Kapeka Coffee Works Ltd Vs  NPART CACA N03/ 2000).

 I have looked at the plaint in this matter. Under paragraph 4 it states that:

the plaintiff brings this suit jointly as administrators  ... against defendants jointly and severally for declarations, a permanent injunction and other reliefs set out here in

e) On  diverse days the 1st defendant unlawfully and without any right whatsoever entered upon the suit land and trespassed upon the said land and has continued to do so to date and has

i) Occupied the homestead of the late Osinde Simon….

According to Uganda Aluminium Ltd V Restuta Twinomugisha CACA N0 22/ 2000. A cause of  action means every fact which is  material to be proved to enable  the plaintiff succeed  or every fact  which  if denied the plaintiff must  prove in order to obtain Judgment.

The plaint specifically mentions 1st defendant.

I am satisfied that the facts pleaded by plaintiffs in paragraph 4 of the plaint disclose a cause of action only as against 1st Defendant. Not the 2nd Defendant.

This ground succeeds only in part.

 

Ground 2 & 3: (Limitation Period)

Counsel for appellant argues that the suit was brought as a suit for recovery of land and hence was subject to the law of limitation.

The respondent objected to the above on grounds that respondent held letters of Administration to enable institute a suit against the appellants who had trespassed on the estate.

I have to point out that the plaint under paragraph 4 does not specify that the cause of action is in trespass. It only specifies that the suit is for declarations, permanent injunction and other reliefs.”

It only mentions trespass as an effect under paragraph 4 (e)..

The time against the plaintiff therefore  is traced from the date of the occurrence of the mischief  which  brought him to court, which  according to paragraph 4(c)  began in  1964 as against  1st  defendant/appellant.

The whole episode cannot be traced from date of the letters of Administration. The statement under paragraph 4(e) “on diverse days 1st defendant unlawfully entered” does not specify the time. The only time mentioned is in 1964. Therefore the law of limitation which governs time frames for litigation would come into play here. As argued rightly by appellant’s counsel Section 5 of the Limitation Act would come into play. I do not agree that section 180 of the Succession Act would give coverage to the respondents. This suit was clearly time barred and ought to have been rejected by the learned trial Magistrate.

This is on the strength of the law of Limitations under sect 5 of the Limitation Act which provides that no action shall be brought by any person to recover any years from the date on which the cause of action arose. Further  on the case law authority of Departed Asian Property Custodian Board V DR J. M. Musambis (CACA No. 04/ 2004 which  noted

this court and the Supreme Court have held  in many cases that enforcement of provision of a statute is Mandatory.”

This ground for reasons above succeeds.

 

Ground Three:

Having found that the visit to the locus was not done properly it falls that it was not possible to correctly determine who owned the disputed land.

This ground therefore succeeds.

All in law for reasons above this appeal succeeds on grounds above.

The lower court Judgment is set aside, and replaced with a finding for the appellants. Costs to appellants here and below.

I so order.       

 

Henry I. Kawesa

JUDGE

03.04.2017