[2024] UGHC 807

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT ARUA CIVIL APPEAL NO. 020 OF 2020

## (ARISING FROM CIVIL SUIT NO. 045 OF 2016)

## IDRI FRED.................................... **VERSUS**

INZAMAKU D. MICHEAL::::::::::::::::::::::::::::::::::::

## BEFORE HON. JUSTICE COLLINS ACELLAM

(Appeal from the judgement and orders of Her Worship Nantaawo Agnes Shelagh, Magistrate Grade 1 at Adjumani dated 20^th August 2020 in Civil Suit No. 045/2016)

## **JUDGEMENT OF THE COURT:**

### **Brief introduction**

This appeal is lodged by a Notice of Appeal and Memorandum of Appeal for orders that; a) The judgement and orders of Her Worship Nantaawo Agnes Shelagh, the Magistrate Grade 1 at Adjumani Court delivered on 20/08/2020 be set aside and substituted with the following orders;

- i. A declaration that the suit land belongs to the Appellant. - Judgement entered against the Respondent and be declared a trespasser on the suit land. ii. - General damages awarded to the Appellant for trespass to the suit land. iii. - An eviction order issues against the Respondent and his Agents in respect of the suit land. iv. - A permanent injunction issues against the Respondent and his Agents in respect of the suit $\boldsymbol{\varPsi}.$ land. - vi. Costs of the appeal and in the trial Court be awarded to the Appellant and interest thereof at 8% from the date of judgement until payment in full.

#### **Grounds of Appeal**

The grounds of Appeal as seen in the Memorandum of Appeal state;

- 1. The Learned Trial Magistrate erred in both law and fact when she failed to properly evaluate the evidence of DW1 (the Appellant) and erroneously rejected his evidence that the suit land was a gift intervivos to him in 1965 which he accepted by occupying and using the land. - $2.$ The Learned Trial Magistrate erred both in law and fact when she failed to properly evaluate the evidence of DW1 (the Appellant) corroborated by other witnesses such as DW2 and DW3 that the Appellant as owner was in continuous possession and use of the suit land since 1965 to the time of trespass by the Respondent. - The Learned Trial Magistrate erred in law and fact when she failed to properly $3.$ evaluate the evidence of PW1 during cross examination which shows that the Respondent refused or neglected to carry out due diligence before he bought the

suit land from PW4 Mawadri Charles which would have confirmed to him that the suit land belongs to the Appellant.

#### Grounds in Opposition

In opposition to the Appeal, the Respondent filed written submissions wherein he states that the Learned Trial Magistrate considered all the evidence on record in her judgement and properly evaluated it, therefore rightly found that the Appellant had failed to adduce sufficient evidence to prove that he is the rightful owner of the suit land, and making the Respondent liable for trespass on the suit land.

That the Learned Trial Magistrate in her judgement made specific reference to all the evidence adduced by the Appellant and evaluated it accordingly thus reaching the correct conclusion that the Appellant is not the rightful owner of the suit land and is liable for trespass as he utilized land belonging to the Respondent without his consent while denying the rightful owner access by erecting a fence on it. The Respondent concludes that the appeal lacks merit and ought to be dismissed with costs.

#### Representation

During the trial, the Appellant was represented by M/S Manzi & Co. Advocates whereas the Respondent was represented by M/S Matovu N. J & Co. Advocates.

I have had the opportunity to peruse through the file inclusive of all pleadings and their Annextures. Both Counsel for the Appellant and Respondent filed their submissions which I have duly put into consideration to come up with this decision. I shall now proceed to enlist the grounds of appeal in contention.

I shall handle Grounds 1 and 2 jointly as done by the parties under their submissions.

#### Ground 1

The Learned Trial Magistrate erred in both law and fact when she failed to properly evaluate the evidence of DW1 (the Appellant) and erroneously rejected his evidence that the suit land was a gift intervivos to him in 1965 which he accepted by occupying and using the land.

#### Ground₂

The Learned Trial Magistrate erred both in law and fact when she failed to properly evaluate the evidence of DW1 (the Appellant) corroborated by other witnesses such as DW2 and DW3 that the Appellant as owner was in continuous possession and use of the suit land since 1965 to the time of trespass by the Respondent.

In his submission, the Appellant submits that the suit land was given to him as a gift intervivos in 1965 by his Late Uncle Kassiano Ambayo and he entered onto the land in possession since then till the date of filing the suit. That had the Respondent carried out due diligence, he would have discovered all this.

He further asserts that, the evidence of DW2 at page 37 line 17 of the Record of Appeal that the Appellant has been in possession of the suit land since 1980 and DW3 at page 39 line 22 of the Record of Appeal that the suit land was used by the Appellant while they were studying in 1968, all corroborated the evidence of DW1 (the Appellant) but the Learned Trial Magistrate failed to properly evaluate all this evidence.

In response, the Respondent states that the Appellant did not adduce any documentary evidence to show that he was indeed gifted the suit land as a gift intervivos by Kassiano Ambayo in 1965 and there was no evidence adduced to show that the said gift was witnessed by anyone. PW7 (Marasi Joseph) testified on behalf of the Respondent at trial and on page 7 line 35 of the Record of Appeal states that he was present when the Late Kassiano Ambayo permitted the Appellant to cultivate on his land but not to take the land in perpetuity.

That the Learned Trial Magistrate therefore rightly held that the Appellant failed to prove that he was gifted the suit land as gift intervivos in 1965. He further states that, the Learned Trial Magistrate properly evaluated and considered all the evidence of the Appellant and his witnesses and found the same to be contradictory and insufficient to support the Appellant's claim.

#### **Consideration of Court**

#### Duty of the first Appellate Court.

The first appellate Court has a duty to review the evidence of the case and to reconsider the materials before the trial judge. Then it must make up its own mind not disregarding the judgement appealed from but carefully weighing and considering it, see the decision in Kifamunte Henry vs Uganda SCCA No. 10 of 1997.

#### Gift intervivos

Hon. Lady Justice Eva K. Luswata in the case of Wotali Erina & Mukisa Issa vs Namulondo Monica HCC Appeal No. 02 of 2015, relying on the case of Noah Nassozi & Anor vs George William Kalule HCCS No. 5 of 2012 stated that; "Ordinarily, deeds of gift of land must be by deed as followed in Namugambe Balopela & Ors vs Fredrick Njuki & Anor HCCS No. 341 of 2013, our laws don't recognize a verbal gift of land."

In the instant case, the Appellant as DW1 testified that he is the owner of the suit land as it was given to him by his Late Uncle Kassiano Ambayo who died in 1967 and he took possession of the suit land up to date, using it for cultivation. The Appellant's claim is supported by the evidence of DW2 and DW3.

The Respondent states that since the Appellant doesn't adduce any documentary evidence to confirm that he received the suit land as a gift intervivos and has no witnesses to confirm the same, he failed to prove his allegation that he is the rightful owner of the suit land.

In light of the case above, and the authorities referenced, I am inclined to decide that a gift intervivos of land must be by deed. The Learned Trial Magistrate therefore rightly

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held that the Appellant failed to adduce sufficient evidence to prove his claim that the suit land was given to him as a gift intervivos.

# Corroboration of the evidence of DW1 by DW2 and DW3.

In the case of Candiga Swadick vs Uganda Crm. Appeal No. 23 of 2012, the Court of Appeal stated that; "Major contradictions and inconsistencies will usually result in the evidence of the witnesses being rejected unless they are satisfactorily explained away..."

In the instant case, the Appellant's evidence was corroborated by the testimonies of DW2 and DW3. However, on page 9 line 37 of the Record of Appeal, Court notes that DW2 testified on oath that the Appellant was utilizing the suit land from the 1980's to date uninterrupted, yet later contradicted himself when he stated that he litigated with Mawadri Charles over boundaries of land in 2003 who was cultivating on the suit land then. DW3 also testified on oath and informed Court that in 1968 while he was 3 years old, he saw the Appellant on the suit land, then later contradicted the Appellant's evidence when he stated that the suit land belongs to Lajopi clan and he does not know who actually owns it and how the Appellant is connected or related to Lajopi clan, page 10 lines $3,4$ and $10-13$ .

I am therefore inclined not to fault the Learned Trial Magistrate's decision and orders that the contradictions and inconsistencies in the evidence of DW2 and DW3 are major and result in the evidence of these witnesses being rejected, since they are not satisfactorily explained. This position is affirmed by Section 10 of the Evidence Act Cap 6 and the cases of Candiga Swadick vs Uganda Crm. Appeal No. 23 of 2012 and Uganda vs Baluku Joseph HC Crm. No. 0015 of 2012.

In conclusion, I find that Grounds 1 & 2 fail.

## Ground 3

A

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The Learned Trial Magistrate erred in law and fact when she failed to properly evaluate the evidence of PW1 during cross examination which shows that he (the Respondent) refused or neglected to carry out due diligence before he bought the suit land from PW4 Mawadri Charles which would have confirmed to him that the suit land belongs to the Appellant.

In his submissions, the Appellant states that, had the Plaintiff carried out due diligence he would have discovered that the Appellant was in possession of the suit land as the rightful owner. That PW1 (the Respondent) testified that he didn't inquire from his neighbors about ownership of the land and also DW2 stated that he started staying in Mgbere in 1980 next to the suit land, and ever since then the suit land has always been used by the Appellant.

In response, the Respondent states that he carried out proper due diligence before purchasing the suit land and found out that the suit land belonged to Mawadri Charles. That the said purchase was witnessed by persons in the community who had knowledge of the ownership of the suit land, including elders in the village and the area LC1.

A AWA

#### **Consideration of Court**

Under the resolution of ground 1 & 2, I affirmed the decision of the Learned Trial Magistrate that the contradictions and inconsistencies of DW2 and DW3 are major and result into the evidence of these witnesses being rejected, since they are not satisfactorily explained.

In light of this fact, the reliance of the Appellant on the evidence of DW2 to argue Ground 3 stating that the Appellant did not carry out due diligence before purchasing the suit land cannot stand since DW2's evidence is already stained by contradictions and inconsistencies that the Appellant was the one occupying the suit land since the 1980's when he acquired the land, then again stating that he litigated with Mawadri Charles who sold the land to the Respondent in 2003 regarding boundaries of his land and that of DW2.

PW1 (the Respondent), page 11 lines 13-15 states that he never knew of the Defendant's (Appellant herein) interest in the suit land until 2016 when the land was fenced off by the Appellant and he reported police charges of criminal trespass. That before he acquired the suit land, he conducted proper due diligence and consulted the village elders and the LC1 of the area, that's how they later agreed to witness for him the land purchase agreement.

I therefore find that Ground 3 also fails.

This Appeal is dismissed with costs to the Respondent, the Judgement and all Orders of the Trial Court are hereby upheld.

I so order.

Dated at Arua this....................................

Collins Acellam **JUDGE**