[2025] UGHC 40

### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT MBALE

# CIVIL APPEAL NO. 148 OF 2022

# (ARISING FROM KAPCHORWA CHIEF MAGISTRATE'S COURT CIVIL SUIT NO. 005 OF 2015)

#### 1. AKISON JOHN

2. **KATUNDU ERIEZA** (Joint administrators of the estate of the late MUSA TAKWENY) ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

#### 1. DANIEL SOYEKWO

2. **CHEROP STEPHEN** (Administrator of the estate *of the late ERIFASI CHEPTAI] ::::::::::::::::::::::::::::::::::::*

#### BEFORE HON. JUSTICE LUBEGA FAROUQ

## **JUDGMENT**

## 1. Introduction:

$\mathbf{1}$

- 2. The Plaintiffs/Respondents sued the Appellants/Defendant for trespass and recovery of unregistered customary piece of land situate in Tuyobei village Kapkwot Parish Ngenge Sub county Kween District. - 3. The matter in the lower court vide Kapchorwa Chief Magistrate's Court Civil Suit No. 05 of 2015 proceeded between Sowyekwo Christopher Daniel & Eifasi Cheptai V. Musa Takweny. - 4. The Defendant in the Civil Suit No. 05 of 2015, that is; Musa Takweny passed on during the pendency of the judgment in the lower court. Subsequently, the Appellants herein obtained letters of Administration to administer his estate, and in that capacity they filed the instant appeal as joint administrators of Musa Takweny's estate. - 5. Before the hearing of this appeal, the initial 2^nd Respondent Erifasi Cheptai (then 2^nd Plaintiff) also passed on and was substituted by Cherop Stephen as sole Administrator of his estate.

# 6. Background:

- 7. The Respondents alleged in the lower court that in 1961, the Appellants' grandfather the late Takweny left Kaptikey village very sick and requested for where to stay whereupon the late Erifasi Cheptai (then 2^nd Plaintiff) and father to the 2^nd Respondent, in consultation with 1^st Respondent's father (then 1^st Plaintiff) allowed him to temporally stay on the suit land. - 8. That the Appellants' grandfather shortly died and was buried on the suit land due to lack of transport to take his body to Kaptikey village where he had come from. That the Respondents continued occupying the suit land undisturbed until 1982 when they were displaced by the Karamonjogos and when peace regained in 2000, they resumed occupation of the suit land until the Appellant came up claiming ownership of the same. - 9. On the other hand, the Appellants denied all the allegations of the Respondents and claimed that their late father Musa Takweny (then Defendant) was the rightful owner of the suit land having inherited the same from their grandfather the late Takwenyi Malinga who died in 1961 and that they lived on the suit land until 1979, when he left due to the Karamajogo insurgency and returned in the year 2000 and stayed in Ngenge camp but was cultivating the suit land until it was encroached on by then $2^{nd}$ Plaintiff.

# 10. Issues for determination before the trial court

- 11. The parties in the trial court agreed on the following issues - a. *Who is the rightful owner of the suit land?* - b. Whether the Defendant is a trespasser on the suit land? - c. What are the remedies available to the parties?

#### 12. The trial court's decision

$\mathcal{L}$

- 13. After hearing the evidence of both parties and visiting locus in quo, the trial court found that the plaintiffs/Respondents had adduced sufficient evidence to prove their case on the balance of probabilities that they are therefore, the the suit land and $\overline{of}$ the rightful owners Defendant/Appellant were trespassers. - 14. The trial court went ahead and granted a permanent injunction, general damages and costs of the suit against the Appellant.

- 15. The estate of the Appellant was dissatisfied with the trial court's decision hence this appeal. - 16. Grounds of appeal - a. That the trial chief magistrate erred in law and fact when she failed to evaluate evidence before her and arrived at a wrong decision hence occasioning a miscarriage of justice. - b. That the trial chief magistrate erred in law and fact when she exhibited biasness in this matter hence occasioning a miscarriage of justice. - c. That the trial chief magistrate erred in law and fact when she believed the un corroborate evidence of the respondent and rejected the appellant's evidence hence arriving at a wrong decision. - d. That the trial chief magistrate erred in law and fact when she didn't conduct the proceeding at the locus in a proper manner hence occasioning a miscarriage of justice. - e. That the trial chief magistrate erred in law and fact when she allowed *execution against a deceased person without legal representatives.* - 17. The Appellants pray that this appeal is allowed, the judgment and orders of the lower court be set aside and costs of this appeal and the lower court be awarded to the Appellants.

### 18. Legal representation

- 19. Counsel Wetete Ronald appeared for the Appellants while Counsel Wasige Sefu appeared for the Respondents. - 20. At the hearing of this appeal, counsel for both parties were given schedules to file their respective submissions. They both complied and the same have been considered in the determination of this appeal.

#### 21. Duty of the first appellate court

22. Am steered by the duty of this court as the 1^st appellate court, to reevaluate all the evidence on record. (See. Fredrick Zaabwe V. Orient Bank SCCA No. 04/2006.)

# 23. Analysis of court

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24. I will handle grounds no. 1 and 2 first, and the other grounds will follow in their chronological order.

- 25. Ground No.1: That the trial chief magistrate erred in law and fact when she failed to evaluate evidence before her and arrived at a wrong decision hence occasioning a miscarriage of justice. - 26. Ground No.2: That the trial chief magistrate erred in law and fact when she exhibited biasness in this matter hence occasioning $a$ *miscarriage of justice.* - 27. At the glance of the above grounds, it is clear that the two grounds are not specific to the exact points of grievance that the Appellant is challenging. - 28. Order 43 rule 2 of the Civil Procedure Rules SI.71 provides that-

"The memorandum shall set forth, concisely and under" distinct heads, the grounds of objection to the decree appealed from without any argument or narrative; and the *grounds shall be numbered consecutively."*

- 29. In National Insurance Corporation V. Pelican Air services, Civil **Appeal No. 15 of 2003** the Court of Appeal while citing rule 86 of the rules of that court relied on the Supreme Court decision in *Sietico V. Noble* Bulibers (U) Ltd SCCA No. 31 of 1995 and held that-"a ground of appeal must challenge a holding, a ratio decidendi and must specify the points which were wrongly decided." - 30. In the case of Arim Felix Clive V. Stanbic Bank (U) Ltd, CACA No. 101 **of 2013,** the Court of Appeal struck out a ground of appeal which was framed as follows- "That the learned trial judge erred in law and in fact when he did not properly evaluate the evidence on record and thereby came to a wrong conclusion and occasioned a miscarriage of justice to the *appellant.*" The court stated that the ground was too general and allows the Appellant to go on a fishing expedition to the prejudice of the Respondent. - 31. In this case, the first ground as quoted is similar to the ground which was struck out by the Court of Appeal in the case of Arim Felix Clive V. Stanbic Bank (U) Ltd (Supra) for being too general. I am bound by that holding. - 32. Ground two refers to bias but does specify the kind of bias the Appellant is referring to.

- 33. The position in National Insurance Corporation V. Pelican Air services (Supra) is that the grounds of appeal must relate to the ratio decidendi and specify the issues which were wrongly decided. However contrary to that provision, in the instant case, grounds No. 1 and 2 of this appeal do not relate to the *ratio decidendi* nor specify the issues which were wrongly decided. - 34. In the circumstance, Grounds 1 and 2 are struck off the court record for offending the provision of the law. - 35. Ground No.3: That the trial chief magistrate erred in law and fact when she believed in the un corroborated evidence of the respondent and rejected the appellant's evidence hence arriving at a wrong decision. - 36. While determining this ground of appeal, I will refer to the relevant parts of the Respondent in the lower court to establish whether his evidence was uncorroborated or not. - The $1^{st}$ Respondent while testifying as **PW1** at page 6 of the lower court 37. record stated-

"The defendant has encroached on my land.... The land is about 20-25 acres. Erifasis's land is not part of my land. The land is customary land. I acquired the land upon the death of my father Soyekwo Daniel. The land was passed to me after the death of my father in 1961. That is the time $l$ started owning the land in 1961 up to 2005 when the defendants entered the suit land... The defendant's father one time requested for houses on the suit land to live. This was in 1960."

He added at page 7 of the lower court record that-38.

$\mathsf{S}$

"....my father was killed by Karamojog rustlers still the defendants' father was residing on the suit land. Later on the defendant's father died while still on the land. The defendant's father was abandoned on the same land but there was no dispute or issue raised as to why he was buried there. There was no transport to take the defendants father

to his original place or imagination that someone would come and claim the land. The defendants' father came from Kaptokwoi Bulambuli district."

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39. In cross examination at page 8, he testified that-

"The defendant was given some house to reside only by my father in 1960. I was not present but my brother was present. I was at home when all this happened. Just at home when the defendants' father came to ask for where to stay.... the defendants' father was given a house on the land but not the land...... I didn't take action immediately after the defendants trespassed due to the insecurity that chased us from the suit land."

40. In re-examination at page 9 of the lower court record, he testified that-

"from 1961 to 1979 I resided on the land. I was at Seretyo camp during the insurgency. Enfasi was in Ngenge Camp. I was in the land since 2005."

41. While answering for the clarification to court at the same page of the record he testified that-

> "Only the defendant's father is buried on the land. The defendant's father died in 1960 about the same time as my father."

42. The late Erifasi Cheptai (then $2^{nd}$ Plaintiff) testified as **PW2** at pages 9 and 10 of the record and stated-

> "I am born in 1934 from Tyobey village, Kapkwot parish, Ngenge sub-county.... I know the defendant is my uncle..... I took over the land upon the death of my father he is called Chemonges James. He died in 1965, he was killed by Karamonjong. He was buried in Kaptulei village, we fled the land due to the insecurity..... He was buried on the suit land due to the transport issues in those days. The body couldn't be transported to Kaptere village.... <u>He occupied empty</u> houses.... He requested the said houses. He was given and he started occupying them..... The land is 40 acres.... The

defendant's father was not buried on the 40 acres. He was buried on Daniel's land."

43. PW2 further testified in cross examination at page 11 of the record that-

"I don't recall when the defendant came to this land. That was after the death of my father...... The land was abandoned during the insurgency, we returned in 2008."

44. PW3 Cheptegei John, aged 70 years, resident of Tyobei, Kapkwot parish, Ngenge sub county, Kween district at page 11 of the record testifies that-

> "The land is over 30 acres, 20-Erifasi and about 20 acres for Soyekwo.... The $1^{st}$ plaintiff got the land from his father Soyekwo Daniel. I heard he was occupying his father's land but I don't know when he started occupying the land.... I was young then and I only saw him on the land." $\mathbf{F}$

45. PW4 Cherop Steven, aged 69 years, resident of Tuyobei village, Kapkwot parish, Ngenge Sub County, Kween District at pages 12 and 13 of the record testifies that-

> "I estimate the land to be between $40 - 50$ acres..... Soyekwo has about 30 acres and complain is about 40 acres.... Soyekwo got the land from his father Daniel Soyekwo. I don't know the year.... I was still young to talk about the defendant's claim. His father was called Takwenyi. I don't know how he came to the land. In 2008 is when the defendant started claiming for the land."

46. PW5 Mutyangana Sadik, aged 58 years, resident of Woryo village, Kapkwot Sub County, Ngenge Sub County, Kween District testifies at Page 14 of the record that-

> "In 2000 when the defendant encroached, the land, he claimed for that land..... I left during the time of insurgency. This was around 1977-78. The land was abandoned I returned in 1980 and started using the land.... I have not seen any grave on the disputed land." 47. The late Musa Takweny (then Defendant) testified as DW1 at pages 16 and an 사용한 관계 전력 및 역관력 ⁴⁰⁰⁰ 및 11.5000 17 of the record that-

್ ಸ್ಟ್ರೀ ^ಅಕ್ಕಾ ಕ್ಷಾನ್ಫೆ ಪ್ರಕ

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"I obtained the land from my parents, my father Takwenyi. I have been utilizing the suit land myself since 1954. The plaintiffs have never utilized the land.... My father is buried on the suit land. My father didn't request to settle temporarily on the suit land.... There are just trees as boundaries. Mowet trees act as boundaries. My father was only final owner of the land. He did not get the land from any one. There was no real owner of the land... That was in 1954..... my father died in 1961. At the time he acquired the land, no one was there on the land. My brothers died in Kapteret after being chased by the karamojong..... My father constructed a house in 1954."

48. **DW2** Kokop Samuel testified at page 17 to page 19 of the record that-

"We are neighbors to the suit land. I am a neighbor on the East.... Before Musa, his father was using the land. His father is Takwenyi. I don't know the size of the suit land. In 1957, there was a case between Musa and Kapsolome and it was resolved. It was over land encroachment. I have produced all my children on the land next to Musa's. Musa Takwenyi was buried on the same land."

49. DW3 Ndiwa Chelogoi, testified at page 19 and 20 of the record that-

"I am 99 years old.... we are from the same parish.... Musa had a case with another woman called mother of Tikili. Musa was sued by the mother of Tikilo.... It's one the same land in question. This was in 1957..... so the issue was about the boundary. Erifasi had no land there..... I don't know Christopher Daniel Chemonges Kamuchoin in the Ngenge area... Takwenyi Musa was buried on the said land. He was the owner of the place. I don't know where he came from. At the time of settlement, the insurgency had not started."

50. **DW4** Karenget Steven, at pages 21 and 22 of the record testifies that-

$\mathbf{Q}$

"I am 77 years old.... Erifasi Cheptai as a neighbor..... Musa Takwenyi is a neighbor...... I don't know the size of the land... The land belonged to Musa's father. He is called Takwenyi.... I have been to the suit land when there were mainly the boundary issue between Musa and Kapkulukui. This was in 1957.... It's not true Musa came to the land after Soyekwo left because he was never on that land. Soyekwo never built on the land. He died in 1961. Musa Takwenyi lived in that land and I saw him construct on the land..... Only Musa Takwenyi died on the suit land. Musa was buried on that land..... When Takwenyi settled on the land there was no one."

- 51. Evaluation of the above evidence - 52. From the evidence on record, the size of the suit land is unknown because it is not measured though its location is not in contention. - 53. In general, none of the parties adduced any documentation to prove ownership and therefore this court has to resort to evidence of possession to determine the rightful owner. - 54. PW1 denied at page 8 of the record that he was not around when the defendant's father requested for a house to stay in and at the same time turned around and stated he was at home when the defendant's father came and requested for a house to stay in. - 55. That inconsistence is material since it creates doubt as to whether the defendant's father entered the land after permission or that he found no one on the land and he took possession. - 56. PW1 also stated at page 8 of the record, that due to the insecurity he fled the suit land and could not take immediate action against the defendant after the alleged trespass. - 57. I find that evidence fictitious for reasons that PW1 stated at pages 5 and 8 that the defendant encroached on the land in 2005 and that he was on the land since 2005, which means the said encroachment if any, took place under his watch.

- 58. That said, it was also PW1's evidence at page 9 of the record that he was at Seretyo camp and Enfasi was in Ngenge camp during the insurgency and that he was in the land since $2005$ . - 59. This clearly means that the insurgency had stopped by 2005 and therefore could not have been the reason PW1 did not take action against the alleged trespass. - 60. PW1 further controverted himself when he stated at pages 6 and 7 that his father died in 1961 and that after his death, the defendant's father continued residing in the house on the suit-land yet he stated at page 9 that the defendant's father died around 1960. - 61. It is not natural that defendant's father who is corroboratively proved to have died in 1960 could occupy the house on the land in 1961 and thereafter. - 62. PW2 contradicted PW1 when he stated at pages 11 and 9 of the record that the defendant's father came after the death of his father which took place in 1965, yet PW1 stated at page 6 of the record that the defendant's father came on the suit land in 1960. - 63. PW3 stated at page 11 of the record that the land is over 30 acres where each of the plaintiffs claimed 20 acres. This is first of all, mathematically wrong because the total will be 40 acres. That testimony also clashes with the testimony of PW1 and PW2 who stated at pages 6 and 11 that their shares are 20-25 acres and 30 acres for PW1 and PW2 respectively. - 64. Largely, the evidence of PW3 is hearsay since he stated at page 11 of the record that he just heard that the defendant's father was occupying the suit but didn't see him because he was still young. - 65. PW4 at page 13 of the record contradicted PW1 when he testified that the defendants encroached on the suit land in 2008, yet PW1 at page 6 of the record stated that the defendants entered on the land in 2005. - 66. Just like PW4, PW5 at page 14 of the record contradicted PW1 where he stated that the defendants encroached on the suit land in 2000, yet PW1 testified that the defendants encroached on the land in 2005. - 67. PW5 at the same page of the record again contradicted PW1 and PW2 when he stated that there is no grave on the suit land yet it was testimony

$10$

of PW1 and PW2 at pages 9 and 10 that the defendant's father died and was buried on the suit land. This was also confirmed by DW1, DW3 and DW4.

- 68. On the other hand, defense witnesses testified that they don't know the size of the land because it is not measured. - 69. The evidence of DW2 at pages 18 and 19 corroborated with DW1 when he testified that land belonged to DW1's father, who later died and was buried on the suit land. He adds at the same page of the record that in 1957, the defendant's father had a case in respect of the same land with a one Kapsolome. - 70. DW3 collaborates DW1 and DW2 when he testified at page 19 of the record that the defendant's father in 1957 had a case with another woman called mother of Tikili. - 71. This visibly shows that he was the one in possession by 1957 and that is the reason why in that year, he was sued twice by different persons in respect of the same land. That fact was not rebutted by the Respondents. - 72. DW4 corroborated DW1 when he stated at page 22 that he saw the defendant's father construct his house on the suit land. - 73. In view of the several and serious inconsistences in the Respondents' evidence visa vie the well corroborated evidence of the Appellants, I am inclined to find that the trial magistrate wrongly believed in the uncorroborated evidence of the Respondent and ignored the Appellant's evidence. - 74. Ground No.3 is answered in the affirmative - 75. Ground 4: That the trial chief magistrate erred in law and fact when she didn't conduct the proceeding at the locus in a proper manner hence occasioning a miscarriage of justice. - 76. Order 18 rule 14 of the Civil Procedure Rules SI 71-1 provides-

"The court may at any stage of a suit inspect any property or thing" *concerning which any question may arise.*"

77. By virtue of the above Order, court has discretion to visit locus or not. This means where court feels like the evidence adduced in court is so clear to illustrate what is on the ground, it can go ahead and deliver its

$11$

judgment even without visiting locus. Though I must state that best judicial practice requires court to visit locus to ascertain facts on the ground in relation to the witness testimonies made in court.

- 78. The procedures to be followed by court's visit to a locus in quo have further been outlined in paragraph 3 of the Practice Direction No.1 of 2007, which are as follows - a. Ensure that all the parties, their witnesses, and advocates (if any) are present; - b. Allow the parties and their witnesses to adduce evidence at the locus in quo; - c. Allow cross-examination by either party, or his/her counsel; - d. Record all the proceedings at the locus in quo; - e. Record any observation, view, opinion or conclusion of the court, including drawing a sketch plan, if necessary. - 79. My learned brother Justice Stephen Mubiru, while dealing with a similar issue in Alule V. Agwe (Civil Appeal No 0032 of 2014) 2017 UGHCLD 17 (23 February 2017) stated that-

".... the principle has been restated over and over again that 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. When* the court deems it necessary to visit the locus-in-quo then both parties, their witnesses must be told to be there. When they are at the locus-in-quo, it is not a public meeting where public opinion is sought.... It is a court sitting at the locus-in-quo. In fact, the purpose *of the locus-in-quo is for the witnesses to clarify what they stated* in court...."

- 80. The trial court visited locus in quo in presence counsel for either side together with the parties and their witnesses who all signed the attendance list, the parties took the trial magistrate around the suit land. - 81. Either side was given chance to clearly explain their understanding of the ground, sketch map was drawn and parties did not request to adduce any

$12$

evidence on oath but just made unembellished explanations to the trial magistrate.

- 82. This in my view was sufficient in the circumstances because the evidence that had been given in court was in itself clear to enable the trial court form a reasoned judgment but the trial magistrate only wanted to acquaint herself of the actual size, location, neighborhood and activities on the suit land which she sufficiently observed and recorded. - 83. Ground 4 is answered in the negative. - 84. Ground No.5: That the trial chief magistrate erred in law and fact when she allowed execution against a deceased person without legal representatives. - 85. Ground No.5 was abandoned by counsel for the Appellant. For that reason, I will not delve into it. - 86. In a nutshell, this appeal partially succeeds in the following terms - a. The judgment, decision and orders of the lower court are hereby set aside. - b. It is hereby declared that the Appellants are the rightful owner of the suit land. $\mathcal{L}_{\mathcal{A}}(x)$ - c. Costs in this court and the lower court are awarded to the Appellants.

I so order.

LUBEGA FAROUO

Ag. JUDGE

Judgment delivered via the email of the Advocates of the parties on $10^{th}$ day of February, 2025.