In the matter between
Civil Appeal No. 012 of 2016
Civil Procedure — a memorandum of appeal to 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.
Land Law — Visit to the locus in quo — at the locus in quo, the court should look at the physical evidence and attempt to determine how it fits into the overall scenario as presented in the contending versions.
[1 ] By way of Civil Suit No. 90 of 2012, the respondent sued the appellant jointly with four other persons seeking recovery of approximately five acres of land situate at Paibwor West village, Paibwor Parish, Labongo Layamo sub-county in Kitgum
ALITA LUCIRA APPELLANT
OBOL HANNINGTON RESPONDENT
District, mesne profits, general damages for trespass to land, a permanent injunction restraining them from further acts of trespass to that land, interest and the costs of the suit. The respondent's case was that during or around the year 1972, he was given two acres of land by his late uncle, Eresaneri Otika. He later purchased an additional three acres to make a total of five acres. The respondent enjoyed peaceful and quiet possession of that land until the year 2003 when he was forced by insurgency to migrate to an IDP Camp at Labuje Layamo. He returned to his land during the year 2007 but during the same year the appellant and his co-defendants encroached onto the land, cut down trees, opened gardens and burn clay bricks.
- It is not clear as to what happened in those proceedings but apparently the respondent chose not to pursue them. The respondent appears to have abandoned that suit although the three copies of the summons and plaint form part of the court record. Two years later, on 31st March, 2014 he filed another suit in the same court, this time against the respondent alone. This time round his claim was for recovery of land measuring approximately 85 meters by 150 meters situate at Paibwor West village, Paibwor Parish, Labongo Layamo subcounty in Kitgum District, mesne profits, general damages for trespass to land, a permanent injunction restraining them from further acts of trespass to that land, interest and the costs of the suit. His claim was that during or around the year 1972, he was given this land by his late uncle, Eresaneri Otika, in the presence of his father Yusuf Onying, his mother Akumu Malam, Obol Erofusi a brother to his uncle Eresaneri Otika, the respondent's wife Aol Josephine and the appellant. The respondent enjoyed peaceful and quiet possession of that land until the year 2003 when he was forced to vacate by insurgency. He returned to his land during the year 2010. Following the death of Eresaneri Otika, the appellant and his codefendants encroached onto the land, cut down trees, opened gardens and burn clay bricks. The respondent initiated litigation in the L.C. Courts to no avail, hence the suit that led to this appeal.
- In her written statement of defence, the appellant denied the respondent's claim. She averred that she had lived on the land in dispute since her marriage to the late Eresaneri Otika in 1942, until the respondent began his trespass onto the land during the year 1998. The respondent was given land adjacent to that of the appellant for temporary use only, by the late Aya Sarah mother of the late Eresaneri Otika, but has since claimed land that is occupied by the appellant, as his.
The respondent’s evidence in the court below:
- The respondent Obol Hanington testified as P.W.1 and stated that his uncle gave him the land in dispute by his late maternal uncle Eresaneri Otika in 1972. It measures approximately 80 metres by 155 metres. He planted over twenty mango trees and six palm trees on the land. He constructed his home and a latrine on the land. During the year 2004, the appellant began laying bricks on the land and to cut down some of the trees. The appellant eventually wrongfully evicted him from the land. P.W.2 Odong Tito, the then Rwot Kweri testified that at the material time testified that the land was given to the respondent, the appellant was resident in Kampala. It is the respondent's late maternal uncle Eresaneri Otika who in 1972 gave him the land in dispute. P.W.3 Aol Regina testified that she was present when the land was given to the respondent, and witnessed its demarcation. He planted mango trees and palm trees on the land. He constructed two grass thatched houses on the land. The appellant only returned from Kampala in 1980 and sought to evict the respondent.
The appellant’s evidence in the court below:
- D.W.1 Okech Eugene testified that the land in dispute, measuring approximately one acre, belonged to his late grandfather Eresaneri Otika, but is now occupied by his mother, the appellant. D.W.2 Raheb Lalibo testified that the land in dispute, measuring approximately one acre, belonged to the late Eresaneri Otika, adjacent to the approximately four acres which he gave to the respondent in 1972 to settle on. It was vacant land which the appellant used to cultivate until the year 2008 when insurgency forced her to vacate it.
- D.W.3 Onayi Oluyo testified that it was the appellant, the wife of Eresaneri Otika, who was cultivating on the one care in dispute before the insurgency. Later he saw the respondent cultivating the same land. The appellant reported the matter to the Rwot Kweri who directed the respondent to restrict his activities to the area that was given to him, but he ignored the directive. D.W.4 Ochan Robinson testified that the approximately one acre in dispute belonged to the appellant who is the wife of Eresaneri Otika. The appellant was cultivating on the one acre in dispute before the insurgency but after the insurgency the respondent constructed a hut on it. D.W.5 Jerolina Ajok testified that the respondent owned land across Wat Ogali River. The one in dispute belongs to the appellant. D.W.6 Olanya Vincent testified that the land in dispute belongs to the appellant and her late husband Eresaneri Otika.
The court’s visit to the locus in quo',
- The court then visited the locus in quo on 13th October, 2015 where it found that the land in dispute abuts the road to Mucwini to the South. The court observed debris of a demolished hut on the land, a borehole and a garden of sorghum. It prepared a sketch map illustrating those observations. In his judgment, the trial Magistrate found that the evidence established the fact that it is the appellant's late husband Eresaneri Otika who in 1972 gave the acre of land in dispute to the respondent. The respondent was declared the rightful customary owner of the land in dispute.
The ground of appeal:
1. The trial Magistrate erred in law and fact when he failed to properly evaluate the evidence on record thereby arriving at a wrong decision.
The respondent’s final submissions:
- The appellant did not file any submissions. In their submissions, counsel for the respondent argued that the respondent and his witnesses were all truthful, credible and believable. On the other hand, the appellant and her witnesses confirmed the fact that the respondent occupies land he was given by his late uncle. The trial Magistrate came to the correct conclusion and therefore the appeal should be dismissed.
Duties of the 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, S.C. C A No. 17 of 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 exercise of 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 decision on appeal:
- I find the sole ground of appeal to be too general that it offends 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 621; Attorney General v. Florence Baliraine, CA. Civil Appeal No. 79 of 2003). The ground is accordingly struck out.
- However, under the general duty of this court to re-evaluate the evidence, I find that the despite the respondent's inconsistence regarding the size of land given to him (in the suit he filed in 2012 he claimed it was two acres, in the current suit he claimed it measured approximately 85 meters by 150 meters, while in his testimony he stated it measures approximately 80 metres by 155 metres), the evidence as a whole established his claim to the land so described.
- The appellant's only contention is that the respondent exceeded the boundaries of the land given to him and encroached onto that of the appellant. The respondent' explanation contained in the plaint he filed in 2012 that he acquired an additional three acres, as justification for the encroachment, is not supported by any evidence. In addition, none of the over twenty mango trees and six palm trees that the respondent claimed existed on the land, were found by the court to exist on the specific area in dispute. Instead the sketch map drawn at the locus in quo shows only debris of hut, consistent with the appellant's version that it is only after the insurgency that the respondent constructed a hut on that part of the land.
- At the locus in quo, the court should look at the physical evidence and attempt to determine how it fits into the overall scenario as presented in the contending versions. Had the trial court properly considered the physical evidence at the locus in quo and applied it to the two sides of the case, it would have found that the evidence was supportive of the appellant's rather than the respondent's version. The respondent ought to have restricted his activities to the part that was given to him by the late Eresaneri Otika. He should cease all activities beyond the two or so acres of land, and vacate the area occupied beyond that acreage.
- In the final result, the appeal succeeds. The judgment of the court below is set aside. Instead the suit is dismissed and the costs of the appeal and of the trial are awarded to the appellant.
Resident Judge, Gulu
For the appellant
For the respondent : M/s Otto Harriet and Co. Advocates.