Court name
HC: Land Division (Uganda)
Judgment date
28 February 2019

Omona v Amito (Civil Appeal-2015/5) [2019] UGHCLD 3 (28 February 2019);

Cite this case
[2019] UGHCLD 3
Short summary:

Land

Headnote and holding:

Concerning ground one, the court rejected it because it was too general and did not specifically point out errors in the course of the trail.

 

On the issue of locus, the court disregarded the additional evidence of witnesses who never testified in court, since there was sufficient evidence to guide court in its decision.

 

The court found that the evidence as a whole showed was in favor of the respondent and therefore the trail court had come to a correct conclusion.

 

 

The appeal was thereby dismissed and costs awarded to the respondent.

Coram
Mubiru, J

1
IN THE HIGH COURT OF UGANDA SITTING AT GULU
Reportable
Civil Appeal No. 05 of 2015
In the matter between
OMONA DENISH APPELLANT
And
AMITO LUDIA RESPONDENT
Heard: 12 February 2019
Delivered: 28 February 2019
Summary: dispute over customary ownership of land.
______________________________________________________________________
JUDGMENT
______________________________________________________________________
STEPHEN MUBIRU, J.
Introduction:
[1] The appellant sued the respondent for a declaration that he is the rightful owner of land measuring approximately one acre located at, Kal A2 sub ward, Koch- Goma sub-county, Nwoya District, general damages for trespass to land, an order of vacant possession, a permanent injunction, interest and costs. His case was that he inherited the land from his late father, Ocaya Rufino, following his death in 1987. He lived on the land peacefully until the insurgency when the respondent, who was a neighbour to the South of the land, took refuge on the land. When Knock Secondary School was constructed on the part the respondent used to occupy, she in turn encroached onto the appellant's land The respondent has since then refused to vacate the appellant's land.
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[2] In her written statement of defence, the respondent denied the claim in toto. She
averred that the land belonged to her late husband Jikiria Bar, who in turn
inherited it from his parents, the late Okello Lukamani and Auma Abwar. She
has lived on the land since the 1950s when she married her late husband Jikiria
Bar. On basis of those facts, she counterclaimed for a declaration that she is the
rightful owner of the land, general damages for trespass, interest and costs.
The appellant's evidence in the court below:
[3] The appellant, Omona Denis testified as P.W.1 and stated that the respondent
has been his neighbour since 1984. His father's ancestral land is at Obul in Koch-
Goma sub-county, Nwoya. The appellant inherited the land from his late father
Ocaya Rufino who died in 1997 and was buried at Karuma. His father acquired
the land as a gift inter vivos from a one Omar upon his migration to Minakulu.
The appellant was born on the land in dispute. The respondent has since
occupied half of it. A school was in 1992 constructed on the part the respondent
used to occupy as a result of which she encroached onto the appellant's land in
1996. There was an IDP camp on the land during the insurgency. The appellant's
family vacated the land in 1984 but returned in 2006.
[4] P.W.2 Okello Amos, a neighbour, testified that he grew up and has lived in the
area since 1970. The appellant's father Ocaya Abawo used to occupy the land in
dispute. The land in dispute is behind his plot. The appellant began living on the
land in 1984. During the insurgency the entire area was deserted as people went
into the IDP Camp at Onna Dam. The camp covered the appellant's and the
witness' land. The respondent occupied a part of what was the appellant's land.
The land that belongs to the respondent has been taken over by Koch-Goma
Senior Secondary School. In 1984 the respondent lived in the camp but the
appellant did not since he had fled to Karuma. The appellant came to the land
after the war. The appellant was born on that land.
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The respondent's evidence in the court below:
[5] In her defence as D.W.1 the respondent Amito Ludita, testified that she has lived
on the land in dispute since his marriage to her late husband Zachariah Obbah.
Her husband and several of her children were buried on that land. Koch-Goma
Senior Secondary School occupies the neighbouring land which was part of her
land that was given to the school by an elder of their family Odur P'Lakor. The
appellant came to settle on the land from the IDP Camp. She did not know where
he lived before that. The appellant took over a house that had been occupied by
a one Avend who returned to his home when the IDP Camp was disbanded. She
sued the appellant before Rwot Kweri and the L.C.I -III Courts all of which
decided in her favour. The appellant has since refused to vacate the land.
[6] D.W.2 Akello Katalina testified that the respondent is her neighbour and she
came to know the appellant only when he came to live in the IDP Camp that was
situated on the respondent's land. When the camp was disbanded, the appellant
took over some of the houses that had been vacated. The respondent occupied
the land from the time she married her late husband Jigiria. Koch-Goma Senior
Secondary School occupies land that was formerly occupied by Amito.
[7] D.W.3 Odur Jeffifino testified that the land in dispute and his are separated by a
road. He came to know the appellant as a resident of the IDP Camp. The
respondent's husband lived on the land before he married her and she came to
live on the land when he married her. They lived together thereon until his death.
The respondent still lives on the land. The appellant came onto the land during
the time people were leaving the IDP Camp to return to their homes. The
appellant took over houses that Akello had vacated. Before the camp, no relative
of the appellant had ever lived on the land. Koch-Goma Senior Secondary
School did not take over any part of the respondent's land.
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Proceedings at the locus in quo:
[8] The trial court visited the locus in quo where it observed a banana plantation
belonging to the respondent. An anthill pointed out by the appellant as the
boundary established in 1984 between his land and that of the respondent. Took
evidence from several people who had not testified in court.
Judgment of the court below:
[9] In his judgment, the trial Magistrate found that none of the neighbours to the land
had seen the appellant and his father on the land before establishment of the IDP
Camp. The anthill, that was pointed to by the appellant as the boundary had not
existed in 1984. The evidence before court is to the effect that the respondent
and her late husband had occupied the land before the insurgence. Therefore the
land belongs to the respondent. The appellant took advantage of returnees
vacating the IDP Camp to occupy part of the respondent's land without her
consent. He therefore is a trespasser on the land. The suit was dismissed with
costs to the respondent and judgment entered for the respondent against the
appellant on the counterclaim declaring the respondent to be the rightful owner of
the land in dispute, with an order of vacant possession, a permanent injunction,
an ward of shs. 1,000,000/= in general damages and half the taxed costs of the
suit since she was represented by the Legal Aid Project of the Uganda Law
Society.
The grounds of appeal:
[10] The appellant was dissatisfied with the decision and appealed to this court on the
following grounds, namely;
1. The trial Magistrate erred in law and fact in failing to properly evaluate the
evidence on record thereby arriving at the wrong conclusion.
2. The trial Magistrate erred in law and fact in failing to consider the evidence
at locus to the prejudice of the appellant thereby reaching the wrong
decision.
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Arguments of Counsel for the appellant:
[11] In their submissions, counsel for the appellant M/s Abore, Adongo and Ogalo
Company Advocates argued that the evidence showed that the respondent used
to occupy land that is now occupied by Koch-Goma Senior Secondary School.
This caused her to encroach onto the appellant's land. Although the respondent
admitted having given the school that part of her land, in re-examination she
stated that it was an elder of their family Odur P'Lakor who gave the land to the
school. Then D.W2 testified that the land taken over by the school was previously
owned by a one Yakobo Onyugi. These contradictions were not evaluated by the
trial magistrate. The respondent could not tell the size of the land yet the
appellant was able to approximate it to one acre. The witnesses called by the
respondent denied knowledge of the appellant's father but the appellant
acknowledged that she knew him. The family of the appellant and that of the
respondent shared a common boundary. The proceedings at the locus in quo
failed to focus on the existence or otherwise of graves on the land, the
boundaries of the land in dispute, identification of the neighbours, and
establishing the size of the land in dispute. Apart from P.W.2, all people whose
evidence was recorded at the locus in quo had not appeared in court to testify,
yet the observations made thereat substantially influenced the decision. The
decision should therefore be set aside and the appeal be allowed with costs to
the appellant.
Arguments of Counsel for the respondent:
[12] In response, counsel for the respondent M/s Kunihira and Company Advocates
submitted that the appellant claimed to have inherited the land in 1984 yet that is
the same year he said his father acquired it was rightly found to be unbelievable.
The contradictions and inconsistencies relating to who gave land to Koch-Goma
Senior Secondary School were minor and can be attributed to lapse of memory,
especially due to the old age of the respondent. Being unable to testify as to the
size of the land should not be adversely construed against the respondent for
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she is an illiterate. None of the respondent's witnesses had ever heard of the one
Amar that the appellant claimed his father had obtained the land from. Whereas
the respondent could name all her neighbours to the disputed land, the appellant
could only name the respondent. Evidence obtained at the locus in quo did not
materially affect the decision of the court, it only confirmed the testimony of the
respondent and her witnesses. The trial magistrate properly evaluated all the
evidence and came to the correct decision. The appeal should therefore be
dismissed with costs to the respondent.
Duties of a first appellate court:
[13] This being a first appeal, it is the duty of this court to re-hear the case by
subjecting the evidence presented to the trial court to a fresh and exhaustive
scrutiny and re-appraisal before coming to its own conclusion (see Father
Nanensio Begumisa and three Others v. Eric Tiberaga SCCA 17of 2000; [2004]
KALR 236). In a case of conflicting evidence the appeal court has to make due
allowance for the fact that it has neither seen nor heard the witnesses, it must
weigh the conflicting evidence and draw its own inference and conclusions (see
Lovinsa Nankya v. Nsibambi [1980] HCB 81). The appellate court may interfere
with a finding of fact if the trial court is shown to have overlooked any material
feature in the evidence of a witness or if the balance of probabilities as to the
credibility of the witness is inclined against the opinion of the trial court. In
particular this court is not bound necessarily to follow the trial magistrate’s
findings of fact if it appears either that he or she has clearly failed on some point
to take account of particular circumstances or probabilities materially to estimate
the evidence or if the impression based on demeanour of a witness is
inconsistent with the evidence in the case generally.
Ground one struck out for being too general:
[14] The first ground of appeal presented in this appeal is too general and offends the
provisions of Order 43 rules (1) and (2) of The Civil Procedure Rules which
require a memorandum of appeal to set forth concisely the grounds of the
7
objection to the decision appealed against. Every memorandum of appeal is
required to set forth, concisely and under distinct heads, the grounds of objection
to the decree appealed from without any argument or narrative, and the grounds
should be numbered consecutively. Properly framed grounds of appeal should
specifically point out errors observed in the course of the trial, including the
decision, which the appellant believes occasioned a miscarriage of justice.
Appellate courts frown upon the practice of advocates setting out general
grounds of appeal that allow them to go on a general fishing expedition at the
hearing of the appeal hoping to get something they themselves do not know.
Such grounds have been struck out numerous times (see for example Katumba
Byaruhanga v. Edward Kyewalabye Musoke, C.A. Civil Appeal No. 2 of 1998;
(1999) KALR 621; Attorney General v. Florence Baliraine, CA. Civil Appeal No.
79 of 2003). The ground is struck out.
Errors in conducting proceedings at the locus in quo:
[15] Visiting the locus in quo is essentially for purposes of enabling the trial court
understand the evidence better. It is intended to harness the physical aspects of
the evidence in conveying and enhancing the meaning of the oral testimony and
therefore must be limited to an inspection of the specific aspects of the case as
canvassed during the oral testimony in court and to testing the evidence on those
points only. The practice of visiting the locus in quo is to check on the evidence
by the witnesses, and not to fill gaps in their evidence for them or lest Court may
run the risk of turning itself a witness in the case (see Fernandes v. Noroniha
[1969] EA 506, De Souza v. Uganda [1967] EA 784, Yeseri Waibi v. Edisa
Byandala [1982] HCB 28 and Nsibambi v. Nankya [1980] HCB 81). I have
perused the record and have found that the trial magistrate recorded evidence
from several people who had not testified in court. This was an error.
[16] That notwithstanding, according to section 166 of The Evidence Act, the
improper admission or rejection of evidence is not to be ground of itself for a new
trial, or reversal of any decision in any case, if it appears to the court before
8
which the objection is raised that, independently of the evidence objected to and
admitted, there was sufficient evidence to justify the decision, or that, if the
rejected evidence had been received, it ought not to have varied the decision.
Furthermore, according to section 70 of The Civil Procedure Act, no decree may
be reversed or modified for error, defect or irregularity in the proceedings, not
affecting of the case or the jurisdiction of the court. Before this court can set
aside the judgment on that account, it must therefore be demonstrated that the
irregularity occasioned a miscarriage of justice.
[17] A court will set aside a judgment, or order a new trial, on the ground of a
misdirection, or of the improper admission or rejection of evidence, or for any
error as to any matter of pleading, or for any error as to any matter of procedure,
only if the court is of the opinion that the error complained of has resulted in a
miscarriage of justice. A miscarriage of justice occurs when it is reasonably
probable that a result more favourable to the party appealing would have been
reached in the absence of the error. The court must examine the entire record,
including the evidence, before setting aside the judgment or directing a new trial.
Having done so, I have decided to disregard the evidence of the additional
witnesses, since I am of the opinion that there was sufficient evidence to guide
the proper decision of this case, independently of the evidence of those
witnesses.
Evaluation of contradictions and inconsistencies in evidence:
[18] Counsel for the appellant argued that the respondent contradicted D.W.2
regarding whether or not it was Odur P'Lakor who gave the land to the school or
instead the school took over land previously owned by a one Yakobo Onyugi, yet
these contradictions were not evaluated by the trial magistrate. It is settled law
that grave inconsistencies and contradictions unless satisfactorily explained, will
usually but not necessarily result in the evidence of a witness being rejected.
Minor ones unless they point to deliberate untruthfulness will be ignored (see
Alfred Tajar v. Uganda, EACA Cr. Appeal No.167 of 1969, Uganda v. F.
9
Ssembatya and another [1974] HCB 278, Sarapio Tinkamalirwe v. Uganda, S.C.
Criminal Appeal No. 27 of 1989, Twinomugisha Alex and two others v. Uganda,
S. C. Criminal Appeal No. 35 of 2002 and Uganda v. Abdallah Nassur [1982]
HCB). The gravity of the contradiction will depend on the centrality of the matter it
relates to in the determination of the key issues in the case.
[19] What constitutes a major contradiction will vary from case to case. The question
always is whether or not the contradictory elements are material, i.e. “essential”
to the determination of the case. Material aspects of evidence vary from crime to
crime but, generally in a criminal trial, materiality is determined on basis of the
relative importance between the point being offered by the contradictory
evidence and its consequence to the determination of any of the elements
necessary to be proved. It will be considered minor where it relates only on a
factual issue that is not central, or that is only collateral to the outcome of the
case.
[20] In the instant case, since there is no evidence to show that Odur P'Lakor and
Yakobo Onyugi did not belong to the same family of the respondent, I find that
this did not materially contradict the respondent's evidence that the land now
occupied by Koch-Goma Senior Secondary School formerly belonged to a the
family of the respondent. It was a minor contradiction that could be explained by
lapse of memory due to passage of time. Since it did not point to deliberate
untruthfulness, the trial court was justified in disregarding it.
Oral evidence when corroborated by physical evidence carries more weight:
[21] In his own admission, the appellant stated that the respondent has been his
neighbour since 1984. He had no explanation for where the respondent lived or
came from before that. This is consistent with the respondent's evidence that the
appellant came to settle on the land from the IDP Camp and took over a house
that had been occupied by a one Avend who returned to his home when the IDP
10
Camp was disbanded. D.W.2 Akello Katalina too came to know the appellant
only when he came to live in the IDP Camp that was situated on the respondent's
land. D.W.3 Odur Jeffifino too testified that he came to know the appellant as a
resident of the IDP Camp. The appellant came onto the land during the time
people were leaving the IDP Camp to return to their homes. The appellant took
over houses that Akello had vacated. Before the camp, no relative of the
appellant had ever lived on the land.
[22] The respondent's version that her husband lived on the land before he married
her, she came to live on the land when he married her, that both lived together
thereon until his death and that she still lives on the land, was verified at the visit
to the locus in quo by the presence of a banana plantation belonging to the
respondent. There was nothing to show that the appellant nor his father Ocaya
Rufino or Omar before his alleged migration to Minakulu, ever lived on or
undertook any activities on the land. The evidence as a whole shows a significant
imbalance that tilts the scale in favour of the respondent and therefore the trial
court came to the correct conclusion.
Order :
[23] In the final result, there is no merit in the appeal and it is hereby dismissed. The
costs of the appeal and of the trial court are awarded to the respondent.
_____________________________
Stephen Mubiru
Resident Judge, Gulu
Appearances
For the appellant : Mr. Simon Ogen .
For the respondent : Ms. Kunihira Roselyn.