[2024] UGHC 755

The Republic of Uganda

In the High Court of Uganda at Soroti

Civil Appeal No. 0042 of 2022

(Arising from Kaberamaido Civil Suit No. 019 of 2014)

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Epeku Michael ::::::::::::::::::::::::::::::::::::

Versus

Apollo Lakeri ::::::::::::::::::::::::::::::::::::

(An appeal arising from the judgment and orders of the Chief Magistrates Court of Kaberamaido at Kaberamaido delivered on the 16^th day of September 2022 by His Worship Kayuki Edward Magistrate Grade 1)

## Before: <u>Hon. Justice Dr Henry Peter Adonyo</u>

Judgment on appeal

1. Background.

Apollo Lakeri, the respondent herein filed civil suit no. 0019 of 2014 in the Chief Magistrates Court of Kaberamaido at Kaberamaido against Epeku Michael, Emwaku Richard Ewilu and Ajame Josephine for recovery of customary land measuring approximately twenty (20) gardens/acres situate at Abirabira village, Abirabira parish, Aperikira Sub-county in Kaberamaido District.

Apollo Lakeri claim was that at all material times she is the rightful owner of the $5$ suit land after she acquired the same by inheritance from her late father Ojimam Albereto who met his death in 1986 and she acquired letters of administration. That the late Engulu Robert was left as the care-taker of the suit land had at some point given Epeku's woman friend temporal settlement on the suit land after she had a disagreement with the Epeku in his home. 10

That Epeku later followed her to the suit land and when she ran away during the Kony insurgency, the appellant took advantage of this insecurity to move his entire family to occupy the houses left by his woman friend without the consent of Engulu who had also take refuge in Mukono.

- That Emwaku and Ajame who prior to the insurgency of 1987 were occupying 15 their own pieces of land in a bushy area near the lake moved upland close to Abirabira Primary School to the disputed land as refugees for fear of being caught in a cross-fire between the insurgents and the government soldiers. - That late Engulu in 2005, after the insurgents had been flashed out, approached the appellant, Emwaku and Ajame directing them to vacate the suit land but they 20 requested for time to harvest their crops and rehabilitate their original homes. Emwaku and Ajame later alleged that they had purchased the disputed land from Enimu of Namasale in Amolatar District but this did not deter the late Engulu from protecting the respondent's rights through letters and seeking redress before the - Local Council II Court of Abirabira Parish and secured judgment against the 25 appellant and his family on the 28^th of March 2012 but unfortunately died later in 2013 before he executed the said judgment.

The appellant together with Emwaku and Ajame in their joint written statement of defence denied the above allegations by the respondent contending that the appellant and Emwaku live with their mother Ajame on a piece of land measuring

about ten (10) gardens which gardens previously belonged to Eminu Charles. $\mathsf{S}$ That Eminu Charles had previously given the 10 gardens to Epuru Silverio father of the appellant to care take, however, on the 20^th of November 2013 Enimu sold the land to the appellant.

They further contended that the land owned by the late Aliberito Ojiman the late father of the respondent shared a common boundary with the said Enimu and 10 Aliberito migrated to Bugerere in Busoga where he died and after his death the respondent sold part of his land to Edonu Albino and the rest to Okitoi.

The lower court record indicates that after the respondent gave her testimony on the 17^th of November 2018, on the 12^th of December 2018 when the matter

proceeded for further hearing of her evidence, it was brought to the trial court's 15 attention that Emwaku Richard Ewilu, the 2^nd defendant had left the suit land an was no longer interested in the case, accordingly his name was struck off the suit. Similarly, on the 21^st of August 2019, it was brought to the trial court's attention that Ajame Josephine, the 3rd defendant had handed over 21/2 acres to the respondent and requested her name be struck off the suit. This was done. 20

The record further indicates that the respondent entered agreements with Emwaku and Ajame dated 14/2/2019 and 4/8/2019 to that effect and the suit therefore only proceeded against Epeku Michael.

The trial magistrate having heard the matter entered judgment in favour of the 25 plaintiff now respondent with the following orders;

- (a) The suit land belongs to the plaintiff. - (b) The $1^{st}$ defendant to give vacant possession of the land in dispute to the plaintiff.

- (c) A permanent injunction doth issue restraining the 1^st defendant and agents from interfering with the quiet enjoyment and use of the plaintiff's land. - (d) The 1^st defendant (Epeku Michael) shall pay the plaintiff Ugx. 6,000,000/= (Uganda shillings six million only) as general damages. - (e) Costs of the suit awarded to the plaintiff against the 1^st defendant (Epeku Michael).

The appellant/1^st defendant was dissatisfied with the trial court's judgment and resultant orders appealed to this court raising the following grounds:

- a) The trial magistrate erred in law and fact when he failed to properly evaluate the evidence as a whole thus arrived at a totally erroneous decision by declaring the respondent the owner of the suit land. - b) The trial magistrate erred in law and fact when she failed to conduct locus in quo in accordance with the recognised principles and laws and hereby arriving at a wrong decision. - c) That the trial magistrate erred in law and fact when he forced us to write submissions without legal representation. - d) That the decision of the Learned trial magistrate has occasioned a miscarriage of justice. - 2. Duty of the $1^{st}$ appellate court.

This Honourable Court is the first appellate court in respect of the dispute between the parties herein and is obligated to re-hear the case which was before 25 the lower trial court by subjecting the evidence presented to the trial court to a fresh and exhaustive scrutiny and to re-appraise the same before coming to its own conclusion as was held in Father Nanensio Begumisa and Three Others v. Eric Tiberaga scca 17 of 2000; [2004] KALR 236.

$\mathsf{S}$

$\mathsf{S}$ The duty of the first appellate court was well stated by the Supreme Court of Uganda in its landmark decision of Kifamunte Henry Vs Uganda, SC, (Cr) Appeal No. 10 of 2007 where it held that;

> "...the first appellate court has a duty to review the evidence of the case and to reconsider the materials before the trial judge. The appellate Court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it"

In rehearing afresh, a case which was before a lower trial court, this appellate court is required to make due allowance for the fact that it has neither seen nor heard the witnesses and where it finds conflicting evidence, then it must weigh such evidence accordingly, draw its inferences and make its own conclusions.

See: Lovinsa Nakya vs. Nsibambi [1980] HCB 81.

In considering this appeal, the above legal provisions are taken into account.

3. Representation.

The appellant was represented by M/s Legal Aid Project of the ULS while the 20 respondent was represented by M/s Ewatu & Co. Advocates. This matter proceeded by way of written submissions which have been duly considered.

4. Determination.

a) Ground 1.

Counsel for the appellant having highlighted the evidence given in the trial court, submitted that the appellant's evidence is more coherent compared to that of 25 the respondent that he bought the suit land from Eminu Charles and Waigendo whereas the respondents evidence was too scattered and shaky in that she sued for 10 acres of land but however, in her evidence, she testified that the suit land is 20 acres and that the appellant entered the suit land in the year 1991 but in

her evidence in chief, she states that the appellant entered the suit land in the $\mathsf{S}$ year 1999 during insurgency whereas PW2 Ocen Noah Robert in his evidence in chief testified that the suit land is three and a half acres, appellant entered on the suit land in 1986. PW3 also testified that the suit land is three and a half gardens unlike the evidence of the respondent which was tainted with lies and did not know the size of the suit land being either 10 or 20 acres though her 10 witnesses say that the suit land is three and a half acres whereas the appellant states that the suit land is 5 acres.

Counsel submitted that the trial magistrate interestingly ignored the contradictions and inconsistencies in the respondent's case and decreed that the suit land belongs to the respondent.

Counsel for the respondent in reply submitted that the learned trial Magistrate properly evaluated the entire evidence on record thus coming to a correct conclusion that the suit land belonged to the Respondent. That the trial Magistrate evaluated the appellant's evidence as to whether he bought the land in dispute and found that he did not prove the same.

Counsel further submitted that in the instant case since the appellant/defendant had no land sale agreement, he had no foundation for acquisition of the suit land ab initio. Further that Eminu Charles (PW2) from whom the Appellant claimed to have purchased the suit land didn't own the suit land in the first place so there is no way he would sell what he didn't own. That the defendant and his witness contradicted a lot on the issue of the sale.

Counsel further submitted that in the instant case, PW I testified that she inherited the suit land from her father the late Ajimon who also inherited from his father Edesu. That the said Alberto died in 1986 from Bugerere during insurgency and not buried on the suit land, she stated that due to Insurgency, the

- land was left to a caretaker Engulu Robert and the defendants entered the land $\mathsf{S}$ when he had run away which evidence was confirmed by PW3. Therefore, the rights of the late Ojimon Albert's family as owners of the disputed land could not be taken away as a result of the land being abandoned during insurgency. Counsel relied on Oyet Bosco & Anor Vs Abwola Vincent (suing through Attorney Too- - Ochanya Francis, Civil Appeal No. 0068 of 2016 and John Busuulwa Vs John Kityo 10 and others Civil Appeal No. 112 of 2003.

Counsel finally submitted that upon thorough evaluation of evidence by the learned trial Magistrate on record, he correctly found the respondent's evidence cogent and more believable that the land in dispute belonged to the respondent's father the late Alberto Ojimon and the respondent being a daughter to the

deceased is therefore a beneficiary to the estate of the late Alberto Ojimon.

i. The evidence on record.

a. <u>Witness Testimonies:</u>

The respondent testifying as PW1 stated that the suit land was about 20 acres and she acquired it form her late father Alberto Ojiman who died in 1985 in 20 Kayunga district.

That her father inherited the suit land from his father Edesu Mikairi who is buried on the suit land and the suit land also has graves of Abinyo her aunt, Akello her grandmother, and Eswilo her cousin.

She stated that in 1999 she found when the appellant had already entered her 25 land but before that he was in Acorombo next to the lake about 1km from the suit land.

That she knew Enimu Charles who comes from Namasale as her clan mate but $\mathsf{S}$ that he had never owned land in Abirabira village, explaining that some of her clan mates are in Soroti, Ogweltong and Namasale.

That during the insurgency they left the suit land in to a care taker called Engulu Robert and when the appellant entered the land with his father Engulu had already ran away to Soroti, however, he came back first and tried to get the appellant off the suit land all in vain.

That in 2013 he handed the land back to her with the LC II Judgment but she failed to execute the same.

During cross-examination she maintained that she inherited the suit land from Ojiman, stating that the appellant and his family are using 10 acres and that is 15 what she was claiming.

PW2 Ochen Noah Robert testified that the size of the suit land was about 3% gardens and it was for Allberito Ojiman who also got the same from his father Edesu Mikairi who was buried on the suit land.

That the appellant together with his brother and father entered the suit land 20 during the insurgency in 1986, that the other people have allowed to leave the land for the respondent save for the appellant.

He corroborated the respondent's evidence that the Engulu was left to care take the suit land and tried to evict the appellant but all in vain. He further stated that

he knows Enimu and there was a day when the appellant brought Enimu to him, 25 Emwaku was ploughing land elsewhere and they called him to witness but he did not see the land because they said it would be shown upon completion of the sale. He added that Enimu had no land in the area and comes from Namasale. $\mathsf{S}$ PW3 Opiny Michael testified that the respondent inherited the suit land from her father Ojiman who also inherited from his father Mikairi and they left Engulu to care take the land.

That the appellant came to the suit land during the insurgency from Acorombo which was rebel infested.

On the other hand, the appellant testifying as DW1 stated that the suit land is 10 5% acres, and that Engulu Robert is his paternal uncle.

That he was in possession of the suit land and built thereon in 1999. He further stated that he bought the land from Waligendo and Enimu Charles, 2 acres at $150,000/=$ each.

He then stated that Enimu gave him each acre for two million shillings in 2000 15 and he did not write anything down with Waligendo.

That Enimu sold him 3 acres and gave him half an acre for free. He further stated that the 2 acres he bought from Waligendo, the respondent arrested him because he had no agreement and he left them for the respondent and he is now

living on the land he bought from Ebinu which he bought at 2 million per garden 20 totalling 6 million which he paid in bits, 1^st instalment on the 17^th of January 2012 where he paid 650,000/=, $2^{nd}$ instalment 650,000/= on the 24^th of January 2012, on the 1^st of March 2013 300,000/=, on the $20^{th}$ of November 2013 he paid 1.2 million amongst others which were sent on phone leaving a balance of $1,350,000/=$ . 25

During cross-examination he admitted that he was in 3½ acres not 10 as pleaded in his WSD. He further stated that the size of the land bought was not indicated in the agreement and they were going to do so after he finalised payment.

He admitted that he did not sign on the document dated 17/1/2013 and the seller $\mathsf{S}$ also did not sign.

He further stated that he did not sign on all the documents of payment as alleged and Enimu who was receiving the money also did not sign and Waligendo did not appear in any of his documents.

DW2 Eminu Charles testified that he sold the appellant his land in 2008 but he 10 has forgotten the name of the village where the land is situate.

That he had 10 acres of land and sold 4 to the appellant at 2 million each acre and then he left for Namasale, they signed three agreements and the appellant paid in instalments.

That the appellant was also occupying the 6 acres that belong to him. During 15 cross-examination he stated that he was the son of Elayo Silvilio who was from Namasale and he shared a clan with the respondent.

That he remembered the late Engulu Robert and heard that he was care taking the estate of the respondent's father and that Alberito had about 2 acres of land

in the area. 20

> That the neighbours were there when he was selling the suit land and signed the agreement. He maintained that he sold the land in 2008 at eight million.

> He claimed he forgot that he sold 3½ acres of land and that he gave the appellant one acre for caretaking, that maybe he was the one who made an error and gave

25 the appellant $\frac{1}{2}$ acre.

> That the appellant first paid 1 million, then 400,000/= and finally 700,000/= and there is now a balance of 12 million.


He further stated that he received cash only and the only mobile money he $\mathsf{S}$ received was to come to court recently and so the appellant was lying when he stated that he paid by other means other than cash.

The trial court noted at some point that DW2 refused to answer questions and in clarification by court he changed the year of the sale to 2003 and the consideration to twenty million.

He then further stated that his father was buried on the suit land only to change and state that he was buried in Namasale.

b. Locus Visit:

During the locus visit conducted on the 11^th of July 2022 the trial court observed the following; 15

- a. The land is being cultivated by the defendants. - b. The land is measuring about 5 acres. - c. The immediate neighbours to the suit land are, the plaintiff, Emwaku Richard, Edonu Albino, Abirabira primary school, Serida and Emagu Joseph. - d. The defendant has his homestead on the suit land. 20 - e. There is a grave on the suit land the plaintiff states it's that of Abinyo, her aunt and the defendant also claims the grave is for his uncle's wife.

The respondent also admitted to giving Emwaku land in 2021 and to Abirabira primary school though the appellant claimed he was the first to give land to the school.

The respondent's claim was that she inherited the suit land from Ojiman Alberito her father in 1985 but left the same in the hands of Engulu Robert when she fled during the insurgency. These facts were corroborated by PW2,3 and DW2 who stated that Engulu was caretaking the estate of Ojiman. This claim was

maintained by the respondent throughout her testimony. The appellant on the $5$ other hand claimed the suit land formerly belonged to Enimu Charles who sold it to him.

However, the evidence given by the appellant and Enimu regarding this sale was full of inconsistencies and contradictions that cannot be ignored and once considered lead to the single conclusion that no transaction took place between them.

First, the appellant in his WSD stated that the land was 10 gardens and it was sold to him in 2013, in his evidence in chief he stated that the suit land was 5½ acres and his possession of the same started in 1999.

He then changed and stated that Enimu gave him 3 acres each at two million 15 shillings in 2000 and half an acre for free.

Enimu testifying as DW2 claimed he sold 4 acres of land in 2008 at 2 million per acre He claimed he forgot that he sold 3½ acres of land and that he gave the appellant one acre for caretaking, that maybe he was the one who made an error and gave the appellant $\frac{1}{2}$ acre.

During clarification by court he changed the year of the sale to 2003 and the consideration to twenty million.

If the appellant was already on the land in 1999 what then was he buying in 2000 or 2003, 2008 or 2013, these kinds of inconsistencies only point to falsehood on the part of the appellant.

Secondly, regarding payment, he stated that he paid for the suit land in instalments thus; 1^st instalment on the 17^th of January 2012 where he paid 650,000/=, 2^nd instalment 650,000/= on the 24^th of January 2012, on the 1^st of


March 2013 300,000/=, on the 20^th of November 2013 he paid 1.2 million, $5$ medical bills of $400,000/=$ .

That he also sent the vendor some money on the phone, the 1^st amount being 380,000/=. $2^{nd}$ 190,000/= and $3^{rd}$ 100,000/=.

That he also sent a cow of 400,000 and 700,000 for beans leaving a balance of $450,000/=$ .

DW2 the seller on the other hand stated that the appellant first paid 1 million, then 400,000/= and finally 700,000/= and there was now a balance of 12 million. He further stated that he received cash only and the only mobile money he received was to come to court recently and so the appellant was lying when he stated that he paid by other means other than cash.

Thirdly, DW2 Enimu claimed that they entered three agreements which they both signed however the appellant admitted in cross-examination that none of the transactions were signed by either him or Enimu and indeed the agreements that were only marked for identification indicate this.

Further as admitted by the appellant his agreement with Enimu made no mention 20 of the size of the suit land and the appellant's claim that the size was going to be included after the final payment is implausible. How can one pay full consideration for an unknown size of land?

Basing on these contradictions and inconsistencies alone, I would agree with the trial magistrate that it is hard to believe that the appellant bought any land at all. 25 Furthermore, the evidence on the record does not prove that Enimu Charles or Waligendo owned any land in Abirabira village.

DW2, Enimu, tried to lie to court that his father and Alberito Ojiman were brothers who left the suit land at the same time with Ojiman going to Bugerere

and his father to Namasale but during cross-examination he admitted that they $\mathsf{S}$ were not brothers. There is therefore no proof that Enimu had land to sale in Abirabira or that he sold any land to the appellant much less the suit land. Furthermore, I find that I cannot ignore the fact the 2^nd and 3^rd defendants who are the brother and mother to the appellant entered consents with the respondent and voluntarily left the land during and after the respondent's 10 testimony.

This just showed that as a family they had no interest in the suit land and it was only the appellant trying to create an interest through forged sales which he even failed to prove.

- Having evaluated the evidence on record, I find that the late father of the 15 respondent was the owner of the suit land and the respondent being his daughter and the holder of letters of administration to his estate, is entitled to the same. This ground thus fails. - b) Ground 2. - Counsel for the appellant cited various authorities on locus in quo claiming that 20 in the instant case both parties each claiming that they were the rightful owners of the land in question, the respondent gave evidence showing that she inherited the suit land from her father Alberto and the appellant was found to be in possession of the suit land but however, the failure to allow the appellant to cross examine the respondent and her witnesses was a fatal omission. 25

As noted above the trial magistrate conducted locus in quo on the 11^th of July 2022 and both parties were present. I note that it was in accordance with the law relating to the conduct of locus in quo.

- The subsequent failure by the appellant to cross-examine the respondent should $\mathsf{S}$ not put on the trial court as he had opportunity to do so. This ground accordingly fails. - c) Ground 3. $\frac{3}{2}$

The essence of the appellant's submissions on this ground is that appellant was not given ample time to get another lawyer when his lawyer passed on and this 10 affected the appellants case.

That fairness requires a trial magistrate to treat self-represented litigants fairly and attempt to accommodate unfamiliarity with the process so as to permit them to present their case, hence the notion of substantive impartiality where identical

treatment is not necessarily appropriate or conducive to equality. 15

For purposes of enforcing the right to a fair hearing, it may be necessary for the court to intervene so as to give self-represented litigants additional latitude, assistance and information.

This is because to treat people the same without regard to their needs and circumstances can undermine, rather advance the cause for a fair hearing.

The appellant was for most of the hearing of the civil suit represented by Counsel Oyoit and on 11/12/2019 the appellant is on record stating that he can proceed on his own.

On the 24/3/2021 the appellant stated that his lawyer was Oyoit but since he was not there and he did not have any other then he will proceed on his own. 25 Furthermore, it is clearly indicated in the judgment and record that none of the parties filed submissions so this ground is moot. This ground accordingly fails.

## d) Ground 4. $\mathsf{S}$

Having determined grounds 1 to 3 in the negative this ground subsequently fails.

## 5. <u>Conclusion</u>.

This appeal is found to lack merit and the same is dismissed with costs to the respondent.

The judgment and orders of the lower court are accordingly upheld. 10

I so order.

Hon. Justice Dr Henry Peter Adonyo

Judge

15^th August 2024

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