Court name
High Court of Uganda
Case number
Civil Appeal-2018/50
Judgment date
30 October 2020

Nyero v Olweny and Ors (Civil Appeal-2018/50) [2020] UGHC 161 (30 October 2020);

Cite this case
[2020] UGHC 161
Short summary:

Civil Procedure —Order 43 r (1) and (2) of The Civil Procedure Rules

Land Law —Locus in quo

Headnote and holding:

Civil Procedure —Order 43 r (1) and (2) of The Civil Procedure Rules—A memorandum of appeal should set forth concisely the grounds of the objection to the decision appealed against. —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—Setting aside a judgment—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.

Land Law —Locus in quo— visiting the locus in quo is intended to enable court check on the evidence given by the witnesses in court, and not to fill gaps in their evidence for them — Trespass to land—A suit for trespass to land is premised on the possessor's right to exclude. It requires proof of the fact that the defendant did or caused something tangible to cross the boundary line onto the plaintiff's land, without consent or lawful authority.—. A boundary line must have certain physical properties such as visibility, permanence, stability and definite location. Regardless of the nature of the boundary, evidence relating to the location of the boundary position should be sufficient to allow the boundary to be relocated should it somehow be destroyed

 
Coram
Mubiru, J

IN THE HIGH COURT OF UGANDA SITTING AT GULU

Reportable

Civil Appeal No. 0050 of 2018

 

In the matter between

NYERO JEMA                                                                           Appellant

 

And

  1. OLWENY JACOB                                                      Respondents
  2. ANJELLAOBINA
  3. ORACH WILLIAM
  4. OCITI S/o AMUKA
  5. ONAWA S/o AMUKA

Heard: 23 June, 2020

Delivered: 30 October, 2020.

JUDGMENT

Introduction:

  1. The appellant sued the respondents jointly and severally for a declaration that she is the rightful owner of land measuring approximately 500 acres of land located at Languilo Tai-Ocot village, Koch Parish, Labongo Amida sub-county, in Kitgum District, a permanent injunction, general damages for trespass to land, mesne profits, interest and costs. Her claim was that she acquired the land in dispute on 30th January, 1993 when she applied for and was issued with a certificate of customary ownership. On 24th November, 2011 she applied for a leasehold title over that land. She was accordingly offered a 49-year lease over the land. The respondents have since trespassed onto the land without any claim of right or lawful excuse.
  2. The respondents refuted the appellant’s claim. The 1st respondent contended that he is only a neighbour to the East of the land in dispute while the 2nd respondent is a neighbour to its West. The 2nd respondent inherited the land she occupies from her deceased husband who acquired it in 1968. The 3rd respondent is a neighbour to the North. He acquired the land in 1968 as vacant, unclaimed land and has occupied it since then. The 4th respondent is occupying land that was given to his late father Yasoni Amuka by his brother, the late Oto Leboni. The appellant wrongfully applied to lease 500 acres of land, part of which includes that occupied by the respondents. They prayed that the suit be dismissed.

The appellant's evidence in the court below:

  1. P.W.1 Jema Nyero testified that the land in dispute was previously occupied by his late father. During the year 1972 the District Commissioner directed all persons occupying land to apply for leases. She applied for the land and received an offer. The land was subsequently surveyed and survey mark stones were planted. Her father’s grave and house is located on this land. She vacated the land following the death of her son. It is during the year 2013 that she discovered the respondents, who are her neighbours, had trespassed onto the land. Attempts by the family heads to mediate the resulting dispute were futile.
  2. P.W.2 Aboda Fabiano testified that he was a member of the District Land Committee. In 1972 the committee received an application from the appellant for a lease. Her application was allowed. There was no dispute over the land and a surveyor planted the mark stones. P.W.3 Olanya Michael testified that the appellant is his sister and they allowed her to apply for the land since as her brothers they were in fear of their lives at the time. The land was inspected by the District Land Board in the presence of a multitude of people. The appellant was subsequently issued with a title deed. The respondents have now trespassed onto the land. P.W.4 Donasiano Olanya testified that he served as caretaker of the land on behalf of the appellant and on her return he ceded the land back to her. There are survey mark stones marking the boundaries of the land. The 1st respondent and 4th respondents are immediate neighbours who have trespassed onto the land.

The respondent's evidence in the court below:

  1. D.W.1 Onama Wod P’Amuka testified that he was born and raised on the land he is occupying. It is only recently that the appellant began to claim it is her land. The land belongs to his parents, although his father is dead, his mother is still alive. The appellant has never sued any of them. He did not witness the planting of the survey mark stones. D.W.2 Olweny David testified that he acquired the land he is occupying during the year 1978. He shared a common boundary with the appellant whose land is to the West of his land. The appellant never challenged his father’s possession of the land while he lived.
  2. D.W.3 Anjelo Obina testified that she was offered the land she is occupying by her mother in law in 1968 upon her marriage. It is only recently that the appellant began to claim the land as hers. She has never seen the mark stones alleged to mark the boundaries of the appellant’s land. She has had all her children and grandchildren while resident of that land. She has never seen anyone survey the land. D.W.4 Benard Ocitti testified that the land belonged to his father. He was born and has lived on the land since 1972. There had never been a dispute over the land and the appellant had never sued his father.
  3. D.W.5 Olum Caroll testified that the respondents have occupied the land since the year 1968. The appellant is their paternal auntie. The appellant is a neighbour to the respondents. He was present during the inspection by the District Land Board. D.W.6 Otim Luka testified that the parties have a dispute over approximately ten acres of land. The 1st respondent has occupied the land together with his father, Okumu Jiffinia, since 1968. There was no dispute over the land until the 1st respondent constructed his house thereon. D.W.7 Molly Oroma testified that the land in dispute originally belonged to the Koc Clan. During 1968 it was distributed by the then traditional chief, Constantino Odwong, among several people. The appellant was given approximately two acres on which she established a garden. The 2nd respondent married a member of the Koch Clan during the year 1968. There was no dispute over the land during the life time of Okumu Jiffinia. D.W.8 Adong Rose testified that the land in dispute belongs to the 4th and 5th respondents. They inherited the land from their late father Yekosani Onek who in turn inherited it from his own father Obali of the Palakono Clan.

Proceedings at the locus in auo\

  1. The trial court noted in the judgment and the minutes of the trial that the locus in quo was visited on 11th December, 2017. The court while thereat observed that all the respondents, except the 4th and 5th are immediate neighbours. The dispute between them and the appellant is over the true location of the common boundary. A line of very old natural trees was evident. The 4th respondent has a house on the land. Mango trees too were seen located in the area in dispute.

Judgment of the court below:

  1. In his judgement, delivered on 19th March, 2018, the trial court held that during the visit to the locus in quo the appellant was unable to demonstrate the boundaries of the land she is claiming to be hers. Although she claimed to have caused a survey of the land and marked the boundaries with survey marks stones, during the visit to the locus in quo she was unable to locate a single survey mark stone. The location where she claimed the respondents had trespassed had a grave of the grandfather of the 4th and 5th respondents and that of a daughter of the 4th respondent. The 4th respondent has a house on the land with evidence of long occupancy. There was no evidence to show that the appellant had any level of control over the land occupied by the 4th and 5th respondents. On the other hand, the respondents have homesteads, graves of their deceased relatives and old mango trees on the land. None of them had crossed the boundary marked by a line of natural trees. The appellant placed on record, without exhibiting, a photocopy of the lease offer which was inadmissible in that form. The appellant was unable to prove her claim and hence the suit was dismissed with costs to the respondents.

The grounds of appeal:

  1. The appellant was dissatisfied with that decision and appealed to this court on the following grounds, namely;
  1. The trial Magistrate erred in law and fact when he failed to properly evaluate the documentary evidence before him, hence reaching a wrong judgment.
  2. The trial Court erred in law and fact when it failed to properly evaluate the evidence before it, thereby reaching a wrong judgment

Arguments of Counsel for the appellant and Counsel for the Respondents:

  1. Counsel for the appellant did not file any submission. Conseguently, none were filed by the respondents.

Duties of a first appellate court:

  1. Nevertheless it is the duty of this court as a first appellate 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 200Cr, [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] HOB 81).
  2. In its appellate jurisdiction, this 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.

The two Grounds of appeal.

  1. I find both grounds of appeal to be too general that they offend the provisions of Order 43 r (1) and (2) of The Civil Procedure Rules which require a memorandum of appeal to set forth concisely the grounds of the 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 62T, Attorney General v. Florence Baliraine, CA. Civil Appeal No. 79 of 2003). Both grounds of appeal are accordingly struck out.
  2. That should have been the end of the appeal but I consider the general 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 to override shortcomings of this nature in pleadings. The law relating to pleadings has been undergoing changes in a bid to do substantial justice rather than uphold mere technicalities. By virtue of article 126 (2) (e) of The Constitution of the Republic of Uganda, 1995) courts are to administer substantive justice without undue regard to technicalities. It is thus not desirable to place undue emphasis on form, rather than the substance of the pleadings. Courts are not expected to construe pleadings with such meticulous care or in such a hyper-technical manner so as to result in genuine claims being defeated on trivial grounds. Courts have always been liberal and generous in interpreting pleadings.
  3. Although the trial court noted in the judgment and the minutes of the trial that the locus in quo was visited on 11th December, 2017, the actual record of the proceedings thereat is mission from the record of appeal. Where reconstruction of the missing record is impossible by reason of neither of the parties being in possession of the missing record, but the court forms the opinion that all the available material on record is sufficient to take the proceedings to its logical end, the court may proceed with the partial record (see Mrs. Sudhanshu Pratap Singh v. Sh. Praveen (Son), RCA No.32/14 & RCA No. 33/14, 21 May, 2015 and Jacob Mutabazi v. The Seventh Day Adventist Church, C.A. Civil Appeal No. 088 of 2011).
  4. That aside, visiting the locus in quo is intended to enable court check on the evidence given by the witnesses in court, and not to fill gaps in their evidence for them (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). Since no new evidence would be expected to be obtained for that visit, I find that even without an illustration of the oral testimony by a transcript of what transpired at the locus in quo, all the available material on record is sufficient to take the proceedings to its logical conclusion. In any event section 70 of The Civil Procedure Act, provides that 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.
  5. Before this court can set aside the judgment on account of the abovementioned irregularities, it must therefore be demonstrated that the irregularity occasioned a miscarriage of justice. 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. I find that considering the nature of the dispute at hand, these irregularities are not fatal since the available material on record is sufficient to take the proceedings to its logical end. According to Order 43 rule 20 of The Civil Procedure Rules, where the evidence upon the record is sufficient the High Court may pronounce judgment, after resettling the issues, if necessary, that finally determines the suit, notwithstanding that the judgment of the court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the High Court proceeds.
  6. The substance of the dispute in this case is that while the appellant claimed as a bona fide purchaser for value of the land, the respondents claimed as beneficiaries of the estate of the deceased former owner of the land. Both were claimants of unregistered interests in the land. Unregistered interests in land are usually equitable interests, and they are good against the whole world except a bona fide purchaser of a legal interest for value without notice (see Latec Investments Ltd v. Hotel Terrigal Pty Ltd (1965) 113 CLR 265).
  7. A suit for trespass to land is premised on the possessor's right to exclude. It requires proof of the fact that the defendant did or caused something tangible to cross the boundary line onto the plaintiff's land, without consent or lawful authority. An intentional trespass occurs when the defendant knowingly or deliberately crosses the boundary lines of another's land, either personally or with an object large enough to displace the owner of possession. An encroachment is a permanent or quasi-permanent intrusion into land owned or lawfully possessed by another person without his or her consent. Therefore, a claim for trespass to land seeking an order of eviction from land presupposes the existence of a pre-determined boundary. Where the claim for trespass and eviction is based on a boundary that had not been ascertained and fixed, the suit must fail.
  8. Each parcel of land must be delimited by a boundary. From a legal perspective, a boundary is an invisible line on the surface that differentiates one set of real property rights from another. Whereas the physical demarcation of boundaries includes any activity for identifying a parcel of land and delineating its boundaries, performed by any of the parties related to the parcel, legal demarcation consists of reaching a social consensus on physical demarcation, such that it will be enforced in rem. A boundary line must have certain physical properties such as visibility, permanence, stability and definite location. Regardless of the nature of the boundary, evidence relating to the location of the boundary position should be sufficient to allow the boundary to be relocated should it somehow be destroyed.
  9. The appellant’s case was premised on the respondents having crossed a boundary line fixed by survey. Topographical features of the land at the time of sub-division are often determinative of the position of the boundary, in which case the court construes what a reasonable person, standing in the position of the parties with the relevant objective factual background knowledge, would have understood the boundary to be. The appellant never adduced in evidence any typographical drawing illustrating the location of the boundaries of her land. The actual physical location of a boundary line is normally demarcated in one of two ways: by point features such as natural obstacles including river-banks, lake­shores, trees, rocks and hills (existing in the absence of all delineating or conceptualising activities of humans, i.e. independently of all human cognitive acts and demarcations), the straight or ambulatory line between which marks the divide between two properties, or by monuments or linear features such as walls, hedges and fences (demarcations effected cognitively and behaviourally by human beings). At the locus in quo, she was unable to demonstrate the location of any boundary to her land. To the contrary, the court observed the existence of a line of natural trees that separated the respondent’s occupancy from that of the appellant.
  10. At the locus in quo the court observed a line of very old natural trees which formed a natural obstacle between the land they occupied and that occupied by the appellant. It is a rule long since established that, if adjoining property owners occupy their respective holdings to a certain line for a long period of time, they are precluded from claiming that the line is not the true one, the theory being that the recognition and acquiescence affords a conclusive presumption that the used line is the true boundary. That becomes a boundary by recognition and acquiescence. The time required to elapse before such a line is established as the common boundary, is the time necessary to secure property by adverse possession. The evidence before court was to the effect that the respondents had occupied, undisturbed, the land up to that line of trees since 1968. The line of trees that forms the boundary between the appellant’s and the respondent’s land. None of the respondents’ activities were demonstrated to have exceeded that boundary.
  11. The trial Magistrate therefore properly directed himself when he found that there was neither evidence of delimitation nor demarcation of a specific monument as a boundary marker. The appellant failed to establish the true location of the boundary to his land, hence his case of trespass against the respondents had to fail.

Order:

  1. In the final result, there is no merit in the appeal. It is consequently dismissed. The costs of the appeal and of the court below were awarded to the respondent.

Delivered electronically this 30th day of October, 2020            Stephen Mubiru..........

Stephen Mubiru

Resident Judge, Gulu

Appearances

For the appellant : M/s Katutsi and Lamunu Advocates.

For the respondent :