In the matter between
Civil Appeal No. 0126 of 2019
KAGGWA MICHEAL APPELLANT
Land Law — Proof of ownership — Possession confers a possessory title upon a holder of land and a recognisable enforceable right to exclude all others but persons with a better title. Possession of land is in itself a good title against anyone who cannot show a prior and therefore better right to possession. Possessory title is not based on a documentary title but on the exclusive occupation of the land — Generally, expressions of names of locations in documents should be construed objectively to ascertain what a reasonable person with all of the background knowledge that would reasonably have been available to the author, would attribute the location of the land in issue. —The test is whether or not a reasonable person reading the document, in all the circumstances of the case, and looking at it as a whole, may say to himself or herself, “of course it must mean the land located at place so and so, but they have got the name of the location wrong. ”
Evidence— Burden of Proof —When a party who has the burden of proof relies, not upon direct evidence, but upon circumstantial evidence, such evidence, together with all inferences reasonably deducible therefrom, must, in order to prevail, be adequate to establish the conclusion sought and must so preponderate in favour of that conclusion as to outweigh any other reasonable or possible inference or deduction inconsistent therewith.—The difference between the criminal standard of proof in its application to circumstantial evidence and the civil one is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence, while in the latter one needs only circumstances raising a more probable inference in favour of what is alleged.
- The appellant sued the respondent for a declaration that he is the rightful owner of a plot of land measuring approximately 50 feet x 100 feet located at Kai East, Kai Parish, Atiak sub-county, in Amuru District, an order of vacant possession, a permanent injunction, general damages for trespass to land, interest and costs. His case was that the land originally belonged to his father who acquired it during the year 1958 when it was allocated to him by the colonial government. With the permission of his late father, Okumu Lazaro, the appellant during the year 1983 occupied and operated thereon a shop and venue for hosting local disco dances until the breakout of insurgency when he was forced to vacate the land. Upon the demise of his father, the appellant inherited the land during the year 1996. During the year 2014, without the appellant’s consent or any claim of right, the respondent forcefully took possession of the land and has since denied the appellant access thereto, hence the suit.
- In his written statement of defence, the respondent refuted the appellant’s claim. The respondent contended that he purchased the land from a one Betty Ocaya Atim daughter of the late Celestino Okello. Before that, that part of the land constituted an access road leading to the home of the late Celestino Okello while the other part was used by the family for gardening. He prayed that the suit be dismissed.
The appellant's evidence in the court below:
- P.W.1 Kaggwa Michael testified that the respondent is an in-law on his maternal side. The appellant’s father Okumu Lazaro acquired the land in dispute in 1958 from the British Colonial Government by verbal allocation. It was allocated for commercial purposes. When Okumu Lazaro died in 1996, the appellant inherited the land and obtained a grant of letters of administration to his estate on 30th January, 2012 (exhibit P. Ex.7). His father operated a shop on that land from 1958 up to 1982 where after the appellant took over in 1983. He operated restaurant business and a disco venue on the premises until the breakout of insurgency. After the war, he placed building material on the land. He obtained a building occupation permit from Atiak sub-county Chief on 6th February, 2006 (exhibit P. Ex.1). On 12th March, 2009 he was granted permission by the Atiak sub-county Chief to construct on the land (exhibit P. Ex.2). On 5th June, 2010 he obtained a construction permit from Amuru Local Government (exhibit P. Ex.4). On 1st December, 2011 he received a valuation notice from UNRA regarding part of the plot that was compulsorily acquired for road construction (exhibit P. Ex.5). On 10th October, 2014 the L.C.III stopped him from construction before securing a building plan (exhibit P. Ex.8).
- On 2nd December, 2015 he applied for a lease in respect of the plot, now known as plot No.4 (exhibits P. Ex.9 and P. Ex. 10). He had mobilised construction material and placed it on the site but was imprisoned 13th October, 2013 to 1st August, 2014. It is during his incarceration that a one Komakech and Ayoni destroyed the grass thatched houses he had on the land whereupon the respondent took advantage and occupied the plot. The respondent used the construction material the appellant had mobilised, to put up a structure, which he now occupies. The L.C.III Chairperson on 30th April, 2015 wrote stopping the respondent from constructing a building on the plot (exhibit P. Ex. 12) and he too wrote on 4th December, 2015 to similar effect (exhibit P. Ex. 11) but the respondent did not heed either notification, hence the suit. The late Celestino Okello owned adjoining land to the East of the one in dispute. When applying for the grant of letters of administration on 20th November, 2011 (exhibit D. Ex.1) he did not specifically list the plot in dispute. He applied for a lease over the plot on 2nd December, 2015 but by that time the dispute with the respondent had erupted. It is the only plot that he has in the area. The L.C.1 Chairperson of the area at the time was Celestino Kitara alias Tiga. The land is located in Kai Ward not Palabel, which is a neighbouring village. The 8 acres of land he stated in the application for a grant of letters of administration as property of his deceased father included the land now in dispute.
- P.W.2 Kyanjo Olivia alias Nalongo testified that he is the appellant’s wife. They have been married since 1980. The respondent grabbed the land in dispute which previously belonged to them. She and the appellant occupied the land in dispute during the year 1983 where the appellant’s father had a shop but they vacated the land in 1986 due to insurgency. She used to operate s restaurant business on that plot and “Bakamah Disco.” During the years 1985 and 2014 they had deposited construction material on the plot in preparation for construction but it was all taken during the year 2015. The respondent demolished their grass thatched house they had built on the land.
The respondent's evidence in the court below:
- D.W.1 Apire John testified that he operates a grocery shop on the plot in dispute. He purchased the plot from Betty Ocaya Atim alias Elica. The agreement of purchase is dated 15th January, 2014 and was witnessed by the L.C.1 Chairman and multiple other persons (exhibit D. Ex.2). On 10th April, 2015 he secured permission from the Atiak sub-county officials (exhibit D. Ex.3) and then constructed a permanent building thereon during the year 2015. Betty Ocaya Atim told him the land belonged to her late father Celestino Okello but his grave was not on the land in dispute but rather the neighbouring land.
- D.W.2 Betty Ocaya Atim testified that she came to know the appellant when he dug a foundation on her land now on dispute. She later sold the land to the respondent. The plot used to be traversed by a road leading to the grinding mill and house of Celestino Okello. They used to grow sweet potatoes as well on that part of the land. The respondent has since constructed a building on the land. Neither the appellant nor any of his relatives has ever occupied the land. D.W.3 Okiya Thomas testified that D.W.2 Betty Ocaya Atim inherited the land in dispute from her late father Celestino Okello. A road leading to Celestino Okello’s grinding mill used to traverse the land in dispute. The respondent has since constructed a building on the plot. Celestino Okello used to grow sweet potatoes as well on that part of the land. Neither the appellant nor any of his relatives has ever occupied the land. At one time the appellant had delivered building material on his land and he was ordered to remove them.
Proceedings at the locus in quo:
- The trial court visited the locus in quo on 13th November, 2019 whereupon the appellant showed court the land in dispute. The court observed that D.W.3 Okiya Thomas, son of Venansio Obol is an immediate neighbour to the land in dispute. Celestino Okello was buried on the immediate neighbouring land. The respondent has his soak pit on lane belonging to Celestino Okello, whose homestead is to the East of the land in dispute. The appellant showed court the boundary between the plot in dispute and that belonging to Celestino Okello. The appellant has two grass thatched huts on the Northern part of the pot. The respondent showed court the same plot in dispute and claimed it is his. He constructed a permanent building on the land during the year 2015. It has two main doors at the front operating as a shop and nine rooms at the back operating as a lodge. He constructed a pit latrine thereon during the year 2016.
- During the same proceedings, D.W.2 Betty Ocaya Atim showed court the same plot of land as the one she sold to the respondent. She testified that it was one of five other plots that belonged to her late father. It used to constitute the road leading to her father’s home. There are mango trees on her father’s land. The late Celestino Okello was buried under one of them. She did not sell the other plot because it is the one where her father was buried. The land is now under the control of Atiak sub-county. Her father used to pay ground rent to the Town Board. The appellant had dug a foundation on the land in 2014 while D.W.2 was in Gulu but she filled it up on her return. Before her father’s death the land in dispute used to be used as a garden. It is after the sale that the respondent constructed a building on the land. She had never seen P.W.2 on the land. D.W3 Okita Thomas stated that the appellant had placed bricks on his land and later removed them. He only had bricks on the land but never constructed on the plot.
- The court prepared a sketch map showing that the late Celestino Okello’s land is to the East, the Juba-Gulu highway is to the West, Binasio Obol s/o Venasio Ongom to the South and Labongo Aluji to the North of the land in dispute. On the land itself is the permanent building of the respondent, a pit latrine, a mango tree and the appellant’s grass thatched house.
Judgment of the court below:
- In his judgment delivered on 18th December, 2019 the trial Magistrate found that the appellant did not furnish documentary proof of the alleged allocation of the land to his late father by the colonial government. Although the appellant had claimed to have had structures on the land from which he operated his business, when the court visited the locus in quo it did not find any of the appellant’s structures on the land. The court only found a pit latrine and a permanent structure belonging to the respondent, from which he operates his business. The appellant conceded that both structures belonged to the respondent. There was no evidence of occupancy by the appellant or any member of his family. The respondent relied on a sales agreement dated 15th January, 2014 showing that he purchased the land from Betty Ocaya Atim at the price of shs. 11,000,000/= When applying for a grant of letters of administration to the estate of the late Okumu Lazaro, the appellant did not list the land in dispute as forming part of the estate of the deceased. The appellant failed to discharge the burden of proof of ownership of the land. The suit was thus dismissed with costs to the respondent.
The grounds of appeal:
- The appellant was dissatisfied with that decision and appealed to this court on the following grounds, namely;
- The learned trial Magistrate erred in law and fact by being biased against the appellant by not allowing the appellant’s two key witnesses; Omaya John and Kitara Celestino, to testify.
- The learned trial Magistrate erred in law and fact when he failed to resolve that the suit land is public land and a commercial plot allocated to the appellant’s late father in 1958 by the former British Colonial Government for commercial purposes.
- The learned trial Magistrate erred in law and fact when he failed to resolve that the building occupation permit, construction permit, compensation documents, application for lease documents tendered in evidence by the appellant and the fact of occupancy of the land by members of the appellant’s family from 1958 until the year 2014 is proof of the appellant’s ownership of the land.
- The learned trial Magistrate erred in law and fact when he declared that the grant of letters of administration to the appellant in respect of the estate of the late Okumu Lazaro did not include the land in dispute.
- The learned trial Magistrate erred in law and fact when he failed to resolve that the respondent is a trespasser on the land.
- The learned trial Magistrate erred in law and fact when he resolved that there is a genuine sale agreement of the suit land between the respondent and the seller.
- The learned trial Magistrate erred in law and fact when he failed to resolve how the father of the land seller acquired the suit land.
- The learned trial Magistrate erred in law and fact by relying on contradicting and inconsistent evidence of the respondent and his witnesses that the suit land is customary and not public and a commercial plot controlled by Atiak sub-county.
- The learned trial Magistrate erred in law and fact by relying on contradicting and inconsistent evidence of the respondent and D.W.2 about the amount of money D.W.2 received from the respondent for the purchase of the suit land in the year 2014
- The learned trial Magistrate erred in law and fact by stating that the grave of the father of D.W.2 Betty Ocaya Atim is near the suit land.
- The learned trial Magistrate erred in law and fact by stating that the appellant had nothing to show on the suit land at the locus yet the appellant during proceedings at the locus in quo showed court one grass- thatched house which is still on the suit land.
Arguments of the appellant:
- Submitting Pro se, the appellant argued that prior to the respondent’s trespass, the land in dispute had been in possession of the appellant’s family for over 56 years, since 1958. During the trial, the appellant indicated to the court that he would call a total of 14 witnesses, the appellant inclusive. The trial Magistrate only allowed the appellant one witness and prevented the appellant from calling the rest of the witnesses, including a one Omaya John who was the sub-county Chief at the material time responsible for allocation of the land to the appellant’s late father. At the locus in quo, the trial Magistrate did not permit Omaya John to show court the land that he allocated to the appellant’s father in 1958. He also prevented Kitara Celestino and the rest of the witnesses from testifying. The land which the respondent purchased from D.W.2 Betty Ocaya Atim is to the East of the one in dispute. D.W.2 Betty Ocaya Atim did not adduce evidence to show how her father acquired the land and she had no capacity to sell land that belonged to the government. The trial Magistrate departed from the issue framed in the scheduling memorandum and instead framed his own. The land in dispute forms part of public land under the management and control of Atiak sub-county.
- The appellant submitted further that his father was never issued with a document of allocation of the land. He applied verbally and the land was allocated to him. The appellant adduced documentary evidence in proof of his occupancy of the land for over 56 years which the trial Magistrate disregarded. It is one of the sons and nephew of D.W.2 Betty Ocaya Atim who destroyed the appellant’s two huts that had hitherto existed on the land in dispute, while the appellant was incarcerated. D.W.2 Betty Ocaya Atim claimed to have sold the land to the respondent on 15th January, 2014 yet months later before the L.C.III of Atiak she was still claiming the land as belonging to her. While claiming the land to be held under customary tenure she at the same time stated that she was paying ground rent for the land to Atiak sub-county, which is contradictory. While the respondent claimed to have purchased the land at the price of shs. 11,000,000/= D.W.2 Betty Ocaya Atim testified that she sold it at the price of shs. 18,500,000/=
Arguments of Counsel for the respondent:
- In response, counsel for the respondent submitted that the allegation of bias is not supported by the evidence on record. The record shows that the appellant on 29th October, 2019 intimated to court that he was calling only one witness and then closed his case. It is only during the court’s visit to the locus in quo on 13th November, 2019 that the appellant first indicated interest in calling two additional witnesses. The court rightly rejected that prayer since the two had not testified in court. When applying for a grant of letters of administration to the estate of the late Lazaro Okumu, the appellant did not list the land in dispute as forming art of that estate yet it is prime property. The testimony of D.W.2 Betty Ocaya Atim was corroborated by that of D.W.3 Okiya Thomas in proving that the land sold to the
respondent formed part of five adjoining plots comprised in the estate of the late Okello Celestino. During the visit to the locus in quo, the court observed that there were no clear boundaries between the five adjoining plots. The transaction was duly witnessed and the court came to the correct conclusion as to its validity. They prayed that the appeal be dismissed.
Duties of a first appellate court:
- 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 2000',  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  HCB 81).
- 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.
- By the first ground of appeal, the trial magistrate is faulted for having rejected several witnesses that had been called by the appellant to testify on his behalf.
At page 2 of the record of appeal, it was recorded that on 23rd November, 2017 the appellant intimated to court while applying for an adjournment that his witness Omaya John was sickly and should testify at the next date fixed for hearing. Further hearing of the suit was then adjourned to 18th January, 2018. The next time the suit came up on 1st March, 2018 the trial Magistrate recused himself on account of the appellant’s complaint to the IGG accusing him of corruption. The subsequent trial magistrate too recued himself on 11th April, 2019 for a similar reason. The appellant had not by then renewed his application for that witness to testify. No evidence had been taken yet.
- The matter then came up next for hearing on 29th October, 2019 and at page 10 of the record of appeal the appellant stated, “This matter is for hearing. I have the witness in court. I don’t intend to call any other witness. I will close the case. I also pray to proceed orally. I don’t want to use witness statements.” P.W.2 Kyanju Olivia alias Nalongo testified on the same day but at page 26 of the record after responding to questions put to her by court, the matter was adjourned for defence. There was no formal closure of the appellant’s case. The defence case opened on 30th October, 2019 without the appellant seeking to present any more witnesses, first. Although after closure of the defence case when the court visited the locus in quo on 13th November, 2019 the list of persons in attendance shows a number of persons whom the appellant in his submissions claims to have been his witness, the appellant did not make an application for any of those witnesses to testify. I therefore find that by his conduct and by express utterance, the appellant never brought it to the attention of the court that he had more than one witness to call. The trial magistrate cannot defaulted in that regard d and accordingly this ground of appeal fails.
Grounds two, three, four and eleven.
- In grounds two, three, four and eleven of the appeal, the trial magistrate is faulted for having found in favour of the respondent, based only on the respondent’s current possession of the land without scrutinising his claimed root of title. It is trite that any chain of ownership of or title to property must have a first link. The rule is that possession lies at the root of title. According to section 110 of The Evidence Act, when the question is whether any person is owner of anything of which he or she is shown to be in possession, the burden of proving that he or she is not the owner is on the person who affirms that he or she is not the owner. At the time of filing the suit, the respondent was in possession of the land in dispute.
- The legal position is that the plaintiff in a suit for declaration of title and possession can succeed only on the strength of his or her own title. The plaintiff has to succeed only on the strength of his case and not on the weakness of the case set up by the defendant in a suit for declaration of title and possession. That can only be done by adducing sufficient evidence to discharge the onus, irrespective of the question whether the defendants have proved their case or not. The burden in the suit was on the appellant to prove that the respondent was not the rightful owner, despite his being in possession.
- Possession confers a possessory title upon a holder of land and a recognisable enforceable right to exclude all others but persons with a better title. Possession of land is in itself a good title against anyone who cannot show a prior and therefore better right to possession (see Asher v. Whitlock (1865) LR 1 QB 1). Possessory title is not based on a documentary title but on the exclusive occupation of the land (or receipt of rent from the land) for a period of time.
- In his submissions, the appellant made reference to a number of witness statements and documents that are not part of the trial record. The trial record is a very important part of an appeal. An appellate court is restricted to this official record of what happened in the trial court to see if the trial court made a legal mistake. The record of appeal comprises; (i) all the documents filed and those adduced in the trial court, and (ii) the record of the oral proceedings in the trial court. The record of appeal can contain only those pleadings, filings, transcripts, orders, motions, and minutes that were part of the trial court proceedings. The contents of the record limit the issues and information that the parties can use in their arguments and that the appellate court will consider as it reviews the case. Accordingly, all those witness statements, documents and arguments based thereon, which were not presented to the trial court but were submitted by the appellant for the first time only on appeal, are hereby disregarded.
- To rebut the presumption on favour of the respondent’s being in possession of the land, the appellant’s case was that from 1983 until sometime during the year 2014, save of the period of insurgency, he was in exclusive continuous possession of the land in dispute. He inherited the land from his late father Okumu Lazaro who acquired it during the year 1958 from the British Colonial Government by verbal allocation. He backed up his claim by adducing in evidence a number of documents relating to activities of planned construction of a permanent building on the land and actual compensation for part of the land that was acquired compulsorily during his period of possession. He contended that he was only forcefully dispossessed of the land during the period of his incarceration on account of some criminal charges.
- In assessing the credibility of viva voce evidence, it may be compared to available documentary evidence in order to determine whether there are discrepancies, contradictions or inconsistencies. To support his post insurgency possession of the land, the appellant relied on; (i) a letter dated 12th March, 2009 from the Atiak sub-county Chief granting him permission to construct on the land (exhibit P. Ex.2); (ii) a construction permit from Amuru Local Government dated 5th June, 2010 (exhibit P. Ex.4); (iii) a building occupation permit from Atiak subcounty Chief dated 6th February, 2006 (exhibit P. Ex.1); and (iv) a valuation notice dated 1st December, 2011 from UNRA regarding part of the plot that was compulsorily acquired for road construction (exhibit P. Ex.5). Counsel for the respondent refuted all these documents on grounds that; (i) when applying for a grant of letters of administration to the estate of the late Lazaro Okumu, the appellant did not list the land in dispute as forming part of that estate yet it is prime property, and (ii) they were witnessed by the L.C.1 Chairman Kai West, Oweka Jenaro rather than Mr. Kitara the then Chairperson of Kai East SubParish. By that argument counsel insinuated that they did not relate to the land in dispute but some other land belonging to the appellant. The appellant retorted that the land in dispute was the only piece of land he owned in that area and that the documentation is a reflection of his having been in possession of the land up to the year 2014 before he was unlawfully dispossessed of it.
- Scrutiny of the documents reveals that in exhibit P. Ex.4 the land was described as “Atiak Trading Centre Plot No.4.” In exhibit P. Ex.5 the area for which compensation was paid was stated to be located at Palabel, Kai East SubParish, Kai Parish, Atiak sub-county but the document was witnessed by the L.C.1 Chairman Kai West, Oweka Jenaro. Despite the anomalies the insinuation that they should be construed as relating to some other land owned by the appellant was never substantiated. It was never demonstrated that the appellant had ever owned any land situated in Palabel, Kai West Sub-Parish. That exhibit P. Ex.5 relating to compensation for part of the land compulsorily acquired by the Uganda National Roads Authority (UNRA) was witnessed by Mr. Oweka Jenaro the then Chairperson of Palabel, Kai West Sub-Parish rather than Mr. Kitara the then Chairperson of Kai East Sub-Parish then becomes inconsequential.
- This is because generally, expressions of names of locations in documents should be construed objectively to ascertain what a reasonable person with all of the background knowledge that would reasonably have been available to the author, would attribute the location of the land in issue. The relevant question is; to which location would a reasonable person attribute the name? That attribution must generally be construed by reference to the known background facts. The test is whether or not a reasonable person reading the document, in all the circumstances of the case, and looking at it as a whole, may say to himself or herself, “of course it must mean the land located at place so and so, but they have got the name of the location wrong.” The known background facts in the instant case are that the appellant had no land located in Palabel, Kai West SubParish abutting on the Gulu-Juba highway, yet he had received compensation from UNRA for land it acquired compulsorily while he was in possession.
- This was a case of misnomer of the area where the land is located rather than a misidentification of the land. The former arises when the author merely misnames the correct location as opposed to not being able to identify the correct location. Cases of a misnomer are such that the location of the land physically is known, it is one whose name is intended to be written; only that the name is written incorrectly or an entirely wrong name is written. Misidentification arises when two or more separate parcels of land actually exist at different locations and an author mistakenly writes a name of the parcel whose name was never intended to be written.
- The other limb of counsel for the appellant’s arguments is that had the land in dispute formed part of the estate of his late father Okumu Lazaro, then he ought to have listed it when filing his application for a grant of letters of administration to that estate. He sought the court to construe that omission as circumstantial proof of the fact that it was never comprised in that estate. All facts in issue must be proved. There is no room for a finding that a fact in issue “might have happened.” The balance of probability standard is achieved when the court is satisfied that an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. If the court finds it more likely than not that something did take place, then it is treated as having taken place. If the court finds it more likely than not that it did not take place, then it is treated as not having taken place. If the court is left in doubt, the doubt is resolved against the party who carries the burden of proof.
- When a party who has the burden of proof relies, not upon direct evidence, but upon circumstantial evidence, such evidence, together with all inferences reasonably deducible therefrom, must, in order to prevail, be adequate to establish the conclusion sought and must so preponderate in favour of that conclusion as to outweigh any other reasonable or possible inference or deduction inconsistent therewith (see Wagner v. Somerset County Memorial Park, 372 Pa. 338; Polk v. Steel Workers Organizing Committee, 360 Pa. 631, 62 A.2d 850 and De Reeder v. Travelers Insurance Co., 329 Pa. 328, 198 A. 45). Such inferences in order to prevail must not only be reasonably deducible from that evidence, but must be so conclusive as to exclude any other reasonable inference or deduction inconsistent therewith.
- The difference between the criminal standard of proof in its application to circumstantial evidence and the civil one is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence, while in the latter one needs only circumstances raising a more probable inference in favour of what is alleged. Where circumstantial evidence is relied on by plaintiff in a civil case, the evidence and the inferences logically deducible therefrom must so preponderate in favour of the basic proposition the party is seeking to establish as to exclude any equally well supported belief in any inconsistent proposition. In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference. When a party has the burden of proving certain facts, his or her evidence cannot prevail if it is so uncertain, or inadequate, or equivocal or ambiguous, or contradictory as to make findings or legitimate inferences therefrom a mere conjecture. The inferences logically deducible therefrom, must so preponderate in favour of the basic proposition the party seeks to establish as to exclude any equally well supported belief in any inconsistent proposition.
- That this was an inadvertent omission was never disproved. There were no facts or circumstances from which the court could infer legitimately to the exclusion of other inferences equally plausible that the omission is exclusively attributable to the land in dispute not forming part of the estate of his late father Okumu Lazaro. The finding of the court below based on this omission is pure conjecture as to invoke the often used phrase, "one guess is as good as another."
- Consequently, I find that the documents relied upon by the appellant relate to the land in dispute and no other. The said documents pre-dated the current dispute by three to five years at most. Pre-dispute documentation, unless it is backdated, is less likely to be manufactured, created or arranged by the party presenting it in support of its case. It is less likely to be evidence that was created or fabricated for the purpose of the hearing, to bolster the case of the party presenting it.
- Documentary evidence of this type may be preferred to the testimony of the parties, on the basis that as a source it is reputable, independent, could not have been made with foresight of the dispute and originate from persons who had no interest in the outcome of this particular claim. All the said documents pre-date the respondent’s transaction of 15th January, 2014 (exhibit D. Ex.2). They show that up to sometime during the year 2014, the appellant was in possession of the land in dispute. This is corroborated by the testimony of D.W.3 Okiya Thomas who stated that the appellant had at one time delivered building material on his land and he was ordered him to remove them and that of D.W.2 Betty Ocaya Atim that the appellant had dug a foundation on the land during the year 2014 which she filled it up on her return from Gulu. Further evidence of the appellant’s physical possession of the land sometime before the 1st appellant’s purchase is seen on the sketch map drawn at the locus in quo which indicated the presence of the appellant’s hut on the extreme part of the land. All this corroborates the appellant’s testimony that it is during his incarceration that a one Komakech and Ayoni destroyed the grass thatched houses he had on the land whereupon the respondent took advantage and occupied the plot.
- To counteract the appellant’s version D.W.3 Okiya Thomas and D.W.2 Betty Ocaya Atim testified that the plot used to be traversed by a road leading to the grinding mill and house of her father Celestino Okello and further that they used to grow sweet potatoes as well on that part of the land. At the locus in quo, she testified that it was one of five other plots that belonged to her late father. However, the court was unable to see any distinctive features of the alleged five plots. If this evidence is to be believed, it would imply that Celestino Okello’s land extended up to the Gulu-Juba highway yet when UNRA compulsorily took part of the plot now in dispute, it was the appellant rather than D.W.2 Betty Ocaya Atim that was compensated. The implication is that by 2011 when the assessment and compensation was done, it was the appellant and not the D.W.2 in possession of the land in dispute. That possession continued until just before she sold it to the respondent. The trial court therefore misdirected itself when it failed to construe the available evidence in its proper perspective. These grounds of appeal consequently succeed.
Grounds five, six, seven, eight, nine and ten.
- In grounds five, six, seven, eight, nine and ten of the appeal, the trial court is criticised for its failure to find that the appellant had proved that the respondent is a trespasser on the land. D.W.2 Betty Ocaya Atim claimed to have been owner of the land in dispute under customary tenure by virtue of inheritance, before she sold it to the respondent. The onus of proving ownership of land under customary tenure begins with establishing the nature and scope of the applicable customary rules and their binding and authoritative character and thereafter evidence of acquisition of the property in accordance with those rules.
- In this case, apart from asserting that he inherited the land in dispute from her late father Celestino Okello, D.W.2 did not adduce any evidence regarding the custom under which that inheritance occurred, the rules and practices of inheritance which determine the settling of estates of intestate deceased persons under that custom or how the estates should devolve, compliance with those established rules and practices of inheritance in her specific instance, and that those rules and practices are not incompatible with the provisions of the constitution, any written law and are not repugnant to natural justice, equity and good conscience. The respondent’s entire claim depended on proof by D.W.2 of her claimed root of title in customary inheritance which she failed to establish. Having failed to establish customary inheritance on the part of D.W.2, the respondent had the alternative of proving that D.W.2 was in lawful possession of the land at the time the transaction. The dispute between the parties therefore is as regards a prior possessory title and factual, current possessory title.
- The concept of possession relates to the idea of being in control of something. Possession arranges various potential claimants for ownership along a temporal axis in which prior legal possession receives priority over subsequent factual possession (see Perry v. Clissold  AC 73). Possession is a good title against all (but the owner) who cannot show a prior and, therefore, better right to possession. Subsequent physical dispossession could not displace the validity of prior possessory title. Ownership is awarded to the first person who performs those acts deemed to demonstrate the degree of control over the land to qualify as “possession.” The acts that demonstrate the required degree of control vary according to context. "If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess" (see Powell v. McFarlane (1979) 38 P & CR 452). It is the appellant who had since 1983 enjoyed factual possession of the land until his forceful dispossession by D.W.2 shortly before she sold it to the respondent.
- In the instant case, the appellant’s documentary evidence showed that he had exclusive control of the land. The respondent was not able to prove, by way of similar or any documentary evidence that his predecessor in title was in actual possession of the land in dispute, much less continuous possession before the sale, save after her forceful dispossession of the appellant. Neither did the respondent prove that he was a bona fide purchaser for value of the land in dispute. Had the court properly directed itself, it would not have come to the conclusion that it did. The respondent is a trespasser on the appellant’s land. The appellant claimed for an award of general damages for that trespass.
- In the determination of the quantum of damages to be awarded, the defendant’s conduct is key. If the trespass was accidental or inadvertent, damages are lower. If the trespass was wilful, damages are greater. And if the trespass was inbetween, i.e. the result of the defendant’s negligence or indifference, then the damages are in-between as well (see Halsbury’s Laws of England, 4th edition, vol. 45, at para 1403). Thus an honest but mistaken belief in the location of a boundary will be looked upon more favourably than a cavalier disregard of the proprietary rights of another. Generally, the amount in general damages the plaintiff deserves should reflect the repulsion with which the law countenances the defendant's indifference and more or less cynical disregard of the appellant’s property rights. It should take into account the fall in the value of money since the trespass began, but at the same time take into account the plaintiff’s duty to mitigate his loss. Bearing all the above factors in mind and the fact that the trespass has continued for six years now, I consider an award of shs. 24,000,000/= as general damages for trespass to land to be adequate compensation to the plaintiff in this case against the first defendant.
- In the final result, the judgment of the court below is set aside. Instead, judgment is entered for the appellant against the respondent in the following terms;
- A declaration that the appellant is the rightful owner of the plot in dispute measuring approximately 50 feet x 100 feet located at Kai East, Kai Parish, Atiak sub-county, in Amuru District,
- An order of vacant possession.
- A permanent injunction restraining the respondent, his relatives, agents, servants, assignees and persons claiming under him from trespassing or in any other way interfering with the appellant’s possession and user of the land.
- Shs. 24,000,000/= as general damages for trespass to land,
- Interest on the sum in (d) above at the rate of 8% per annum from the day of this judgment until payment in full.
- The costs of the appeal and of the court below.
Delivered electronically this 30th day of October, 2020 ........ Stephen Mubiru.........
Stephen Mubiru Resident Judge, Gulu
For the appellant : The Appellant in person.
For the respondent : M/s Oyet and Co. Advocates.