[2024] UGHC 767

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT ARUA CIVIL APPEAL NO. 003 OF 2022

### (ARISING FROM CIVIL SUIT NO. 0006 & 007 OF 2016)

# 10

$\mathsf{S}$

# 1. KHALID TABAN

2. MUZAMIL OBALIGO:::::::::::::::::::::::::::::::::::: **VERSUS**

OBUOIA ACHINI EMMANUEL DOUGLAS::::::::::::::::::::::::::::::::::::

$\cdot 15$

#### BEFORE HON. JUSTICE COLLINS ACELLAM

(Appeal from the judgement and orders of Her Worship Nantaawo Agnes Shelagh, Magistrate Grade 1 at the Chief Magistrates Court of Moyo at Adjumani dated 13^th December 2021 in Civil Suit No. 0006 & 007/2016)

#### **JUDGEMENT OF THE COURT**

### **Brief introduction**

This appeal is lodged by a Notice of Appeal and Memorandum of Appeal for orders that; a) The Appeal be allowed.

b) The Judgement and orders of the Chief Magistrates Court of Moyo at Adjumani, Magistrate Grade One be set aside and dismissed.

c) The Appellant be awarded costs herein and in lower Court.

d) Court grants any other relief it deems fit.

### Grounds of Appeal

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

- The Learned Trial Magistrate erred in both law and fact when she held that the Plaintiff is the lawful owner of the suit land whereas not. - The Learned Trial Magistrate erred in both law and fact when she held that the $2.$ Defendants were trespassers on the suit land without considering the evidence that they have lived on the suit land uninterrupted for over a period of 23 years and they are the ones in possession of the suit land.

The Learned Trial Magistrate erred in both law and fact when she misdirected herself $\cdot$ 40 3. that PW2, PW3, PW5 and PW6 had all given evidence that the 1^st and 2^nd Defendants are licensees on the suit land whereas not hence erroneously arriving at wrong decision occasioning miscarriage of justice to the 1^st and 2^nd Defendants.

The Learned Trial Magistrate erred in both law and fact when she held that PW3 $4.$ sold the suit land to the Plaintiff whereas the land sale agreement was executed between the Plaintiff and Drapaga Brown who never testified in Court as a witness.

The Learned Trial Magistrate erred in both law and fact when she disregarded the 5. evidence of purchase of the suit land by the 1^st and 2^nd Defendants, hence arriving at a wrong decision occasioning miscarriage of justice to the 1^st and 2^nd Defendants.

The Learned Trial Magistrate erred in both law and fact when she relied on the 6. 50 hearsay evidence of PW2, that the 1^st and 2^nd Defendants never owned any interest in the suit land.


- The Learned Trial Magistrate erred in both law and fact when she erroneously $\mathsf{S}$ $7.$ allowed Mariam Shaban who was never a witness at trial to testify at locus hence occasioning a miscarriage of justice to the 1^st and 2^nd Defendants. - The Learned Trial Magistrate erred in both law and fact when she wrongly relied on 8. nonexistent customary practice that is repugnant to the Constitution of Uganda as amended in remedying/curing a defective sale agreement between Drapaga Brown and the Plaintiff hence occassioning a miscarriage of justice to the 1^st and 2^nd Defendants. - The Learned Trial Magistrate erred in both law and fact when she failed to properly 9. frame issues for determination by Court hence misdirecting herself on the real contention in the suit. - 10. The Learned Trial Magistrate erred in both law and fact when she failed to properly evaluate the evidence on record and thereby arriving at erroneously wrong decision hence occassioning a miscarriage of justice.

#### Grounds in Opposition $20$

In opposition to the Appeal, the Respondent filed written submissions wherein he states that the Learned Trial Magistrate never erred in any way of resolution of the issues framed by the parties and prays that this Honourable Court be pleased to dismiss the grounds raised. That the Respondent maintained a credible evidence through the witnesses who 25 attributed the ownership of the suit land to PW3, who then sold to the Respondent herein and that they were licensees on the suit land just like the Appellants herein. PW3 told Court without any contradiction from the Appellants that she gave the suit land to the Appellants to be used on temporary basis. This means that on the day the Respondent purchased the suit land from the said PW3, the license granted to the Appellants

30 collapsed and they then became trespassers on the suit land. Trespass is a continuous tort, and it does not have a life span.

The Learned Trial Magistrate did not err to uphold that PW3 was the lawful owner of the suit land, whereas they concede that it was an error for the Learned Trial Magistrate 35 to take evidence of Mariam Shabban at locus, the Trial Magistrate did not rely on the same in her decision to the prejudice of the Appellants. This Honourable Court has the discretion to expunge her evidence from being considered in arriving at its decision and analyze the available evidence to arrive at its own decision. The Respondent concludes that the appeal has no merit and should be dismissed with costs to the Respondent. 40

### Representation

During the trial, the Appellant was represented by *M/S Solace Advocates* whereas the Respondent was represented by *M/S Ederu & Gama Advocates & Solicitors*.

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 must note

that the Appellants in their submissions added two grounds of Appeal which I shall 50 not consider because they are presented contrary to the Rules governing Appeals in the High Court and are not stated in the Memorandum of Appeal for the Respondent


to ably prepare and respond to them. I shall now proceed to enlist the grounds of $\mathsf{S}$ appeal in contention.

The Appellants in their written submissions decided to abandon grounds 3 and 9, which state that;

3. The Learned Trial Magistrate erred in both law and fact when she misdirected herself that PW2, PW3, PW5 and PW6 had all given evidence that the $I^{st}$ and $2^{nd}$ Defendants are licensees on the suit land whereas not hence erroneously arriving at wrong decision occassioning miscarriage of justice to the $1^{st}$ and $2^{nd}$ Defendants.

4. The Learned Trial Magistrate erred in both law and fact when she failed to properly frame issues for determination by Court hence misdirecting herself on the real contention in the suit.

I shall according not consider these grounds in this decision.

Grounds 1, 2, 5 & 6 were handled jointly by both parties, grounds 4, 7 & 8 were also handled jointly and then ground 10 handled separately by both parties so I shall also handle these grounds jointly in this decision.

Grounds 1, 2, 5 & 6.

1. The Learned Trial Magistrate erred in both law and fact when she held that the Plaintiff is the lawful owner of the suit land whereas not.

2. The Learned Trial Magistrate erred in both law and fact when she held that the Defendants were trespassers on the suit land without considering the evidence that they have lived on the suit land uninterrupted for over a period of 23 years and they are the ones in possession of the suit land.

3. The Learned Trial Magistrate erred in both law and fact when she disregarded the evidence of purchase of the suit land by the $1^st$ and $2^nd$ Defendants, hence arriving at a wrong decision occassioning miscarriage of justice to the $1^{st}$ and $2^{nd}$ Defendants.

4. The Learned Trial Magistrate erred in both law and fact when she relied on the hearsay evidence of PW2, that the $I^{st}$ and $2^{nd}$ Defendants never owned any interest in the suit land.

In their submissions, the Appellants submit that it is well settled common law principles that a contract can either be oral or written. That the 2^nd Appellant testified at trial that in 1993, his friend Asiku Weda directed him to Shaban Hassan, a brother to PW3 who he purchased from the suit land at a consideration of ugx 20,000/ $=$ and he immediately took possession and settled on the suit land with his family to date. The 1^st Appellant testified that he went to Hassan Shaban's place whom he didn't find there but found PW3 his sister who told them that there was available land for sell at ugx 30,000 which

$\Delta$

$25$

he paid. No one has ever approached him in respect of buying the suit land ever since $\mathsf{S}$ 1994 when he bought it from PW3. In January 2016, he brought a trip of stones to build a permanent house that is when the Plaintiff brought Court documents. The Appellants had settled on the suit land uninterrupted for over 23 years until 2016 when the Respondent sued them in Court.

Oral agreements have existed as far back as mankind has existed and they have always been honored or recognized by our laws and Courts. It is the Appellants' submission that the suit land belongs to them as the rightful and lawful owners, by way of purchase in 1993 and 1994 respectively and by way of adverse possession since then to date save for interruption of the Respondent by way of civil suit.

$20$

The Respondent has never been in possession of the suit land in any way either by actual or constructive possession and he thus had no locus standi to bring an action of trespass against those in actual possession of the suit land. The Learned Trial Magistrate misdirected herself on what amounts to trespass on land and thus erroneously held that the Appellants are not the lawful owners of the suit land.

In response, the Respondent states that he testified as PW1 that he bought the suit land from Drapaga, before he purchased it he undertook due diligence with the local authorities who told he that PW3 owned the suit land. He entered into compensation negotiations with the Appellants, but it wasn't completed due to his work schedules but 25 when he returned the Appellants had changed their mind and claimed ownership of the suit land. Ibrahim Taban Moses who testified as PW5 told Court that he also settled on the suit land in the year 1997 with the blessing of PW3 on temporary basis and he just like the other licensees paid an appreciation to her. 30

That the burden in the lower court lay on the Respondent to prove that he is the lawful owner of the suit land by purchase from PW3 and that the Appellants were mere licensees on the suit land, which he did. The said Shaban who the Appellants claim to have owned the suit land whom they purchased from was never produced in Court to clarify the

- allegations of his transactions with the Appellants. The Appellants maintained credible 35 evidence through witnesses who attributed the ownership of the suit land to PW3, who then sold to the Respondent herein and that they were also licensees on the suit land just like the Appellant herein. PW3 also told Court without any contradiction from the - Appellants that she gave the suit land to the Appellants to be used on temporary basis. 40 That save for permission of the landowner, the licensee would be a perfect trespasser, and, on the day the Respondent purchased the suit land from PW3, the license granted to the Appellants collapsed.

#### **Consideration of Court** 45

# 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

50 in Kifamunte Henry vs Uganda SCCA No. 10 of 1997.


In the case of Katakuwange Mukoba Fred vs Mulwanyi Michael HC Civil Appeal No. $\mathsf{S}$ 0041 of 2008, Court stated that,

"In the often-cited case of John Katarikawe v. William Katwiremu & Onesiziforo Zikampata [1977] HCB 210, it was held that a buyer on an oral contract for the sale of land is in the same position as a buyer on a written contract and both are entitled to sue for damages and specific performance, in case of a breach."

In light of the determination of Court in the above case, I opine that in the instant case, the major issue is not that the agreement was oral, but the fact the alleged vendor (Shaban)

- did not testify in Court to affirm the assertions of the Appellants that they indeed paid 15 the consideration in agreement to purchase the suit land and become its lawful owners. The vendor would have also cleared the issue of how he came to be the owner of the suit land to effect a lawful purchase of the same. Without evidence of how the vendor who sold to the Appellants the suit land attained his title to the same, I would agree with the Respondent that the Appellants failed to prove at trial during the lower court how they 20 - attained title to the suit land thus I do not fault the Learned Trial Magistrate for deciding that the Respondent is the lawful owner of the suit land. The Appellants according to the evidence at trial in the Record of Appeal failed to prove that the alleged ugx 20,000 and 30,000 paid were for consideration to purchase the suit land and not as an appreciation to the owner PW3 as alleged by the Respondent. On the other hand, the $25$ Respondent provided uncontradicted evidence that PW3 owned the suit land, sold it to the Respondent and land sale agreements were made as filed on record which clearly showed the consideration, vendor and purchaser as alleged. - The Respondent acknowledges that there were people on the suit land at the time of 30 purchase, as he had been informed by PW3 and they agreed to make arrangements to compensate them with materials as they relocate to another place. Some occupants on the land were compensated and they left the suit land as according to the evidence on record, including the third Plaintiff who was part of the suit originally but then the two Appellants later claimed ownership of the suit land and declined to leave the suit land. - 35 Without evidence of the Appellants' purchase of the suit land uncontradicted, I am inclined to agree with the Respondent that the Appellants were simply licensees on the suit land who had attained permission from PW3 as owner of the suit land to stay on the land on a temporary basis. According to the evidence of the Respondent at trial, she - declines to have even granted the 2^nd Appellant permission to stay on the suit land. Also, 40 the fact that the Appellants seem to have first accepted that the suit land belonged to PW3 who had allowed them to be on the suit land in 2005 when the Respondent purchased the suit land and even started on compensation negotiations, then changed their minds later in 2015, because now some time had passed, and the Respondent hadn't been in the possession dos not support a clear narrative of the Appellants having 45 - attained a good title to the suit land.

I do not therefore fault the Trial Magistrate in her decision, and I decide grounds 1, 2, 5 $&$ 6 in the negative.


#### Grounds 4, 7, & 8. $\mathsf{S}$

The Learned Trial Magistrate erred in both law and fact when she held $4.$ that PW3 sold the suit land to the Plaintiff whereas the land sale agreement was executed between the Plaintiff and Drapaga Brown who never testified in Court as a witness.

- 7. The Learned Trial Magistrate erred in both law and fact when she erroneously allowed Mariam Shaban who was never a witness at trial to testify at locus hence occassioning a miscarriage of justice to the $1^st$ and $2^nd$ Defendants. - The Learned Trial Magistrate erred in both law and fact when she wrongly 8. relied on nonexistent customary practice that is repugnant to the Constitution of Uganda as amended in remedying/curing a defective sale agreement between Drapaga Brown and the Plaintiff hence occassioning a miscarriage of justice to the $1^{st}$ and $2^{nd}$ Defendants.

In their submissions, the Appellants state that the purpose of visiting the locus in quo is to check on the evidence by the witnesses and not to fill in gaps in their evidence for them or lest court may run the risk of turning itself into a witness. "Although the general rule is that court is not allowed to accept testimonies of witnesses that did not testify in court at locus, if there are witnesses who did not testify at court either due to old age, physical inability or being out of the country by the time of the hearing in court, then they can testify at the locus and they subjected to cross examination like other witnesses who testified in court." See: Uzia Bweya vs Bagheizi Zimonia Civil Appeal No. 65 of 2017, Justice Wilson Masulu Musene.

In the instant case, the Trial Magistrate while at locus allowed Mariam Shaban to testify at the locus without any leave of court, she was never called as a witness during the trial of the case and court did not explain why she was allowed to testify at locus, yet she does not fall within the exceptions to the general rule in this case and she did not even take oath before testifying.

Article 2(2) of the Constitution of the Republic of Uganda, 1995, clearly states that if any law or custom is inconsistent with any of the provisions of this Constitution, the Constitution shall prevail, and that other law or custom shall, to the extent of the 40 inconsistency, be void. Under the evidence of PW3, she makes reference to nonexistent customary practices that a woman in Madi does not own land in her own right. The Trial Magistrate relied on PW3's explanation that Drapaga Brown her brother executed the sale agreement as a vendor and PW3 was a witness because in Madi culture, a woman does not own land. This is a total breach of the well laid down constitutional principles 45 which is the supreme law of the land. The purported sale agreement was still admitted by the Trial Magistrate as an exhibit, yet it was PW3's testimony that the suit land belonged to her by inheritance from their late father.

In response, Counsel for the Respondent states that, it is PW3's evidence that she is the 50 lawful owner of the suit land and that said Drapaga Brown is her Uncle who was taking care of the suit land and in the culture of the Madi, women are not allowed to sell land.

This is based on the customary practices among the Madi that PW3 believes in, and there $\mathsf{S}$ was no contrary evidence from the Appellants about existence of the custom. The Appellants do not dispute the fact that the suit land belongs to PW3 and PW3 ratified the agreement between the Respondent and Drapaga Brown as she even signed as a witness thereon.

The case of *Okello Johnson vs Lallan Angella HCCA No. 013 of 2019* is very instructive on evidence at locus. It denotes that testimony at locus is for witnesses who testified in the court room. In the event that evidence is only collected at locus, on appeal, the appellate court can disregard the erroneous evidence and proceed to analyze the rest of the relevant evidence to arrive at its decision. Counsel for the Respondent concedes that it was an error for the Trial Magistrate to take the evidence of Mariam Shaban at locus, but also submits that the Trial Magistrate did not rely on the same in her decision to the prejudice of the Appellants.

Consideration of Court. 20

> Article 2 (2) of the Constitution of the Republic of Uganda, 1995 states that, "If any other law or any custom is inconsistent with any of the provisions of this Constitution, the Constitution shall prevail, and that other law or custom shall, to the extent of the

inconsistency, be void." 25

> The Appellants state that the Learned Trial Magistrate erred in law and fact when she wrongly relied on a nonexistent customary practice as alleged by PW3 that Madi women do not own /sell land, which custom is repugnant to the Constitution, to remedy or cure a defective sale agreement between Drapaga Brown and the Respondent which occasioned a miscarriage of justice to the Appellants. The Appellants do not present any evidence at the trial, or on appeal in their submissions regarding how the sale agreement between Drapaga Brown and the Respondent is defective, all they allege is fraud which was never pleaded or proven at trial.

I shall agree with Counsel for the Appellants that indeed Article 2 (2) of the Constitution of the Republic of Uganda, 1995 states that any custom inconsistent with any of the provisions of this Constitution, the Constitution shall prevail and that law or custom to the extent of the inconsistency shall be void. Article 26 of the same Constitution provides for a right to own property by any person in Uganda, either individually or in association with others.

PW3 therefore obtained a right from the Constitution as early as 1995 to own land individually or in association with others. Messia Mahmood (PW3), in any case testified on oath during the trial that Drapaga Brown is her uncle who was taking care of the suit land, and she okayed the transaction, she says she gave Drapaga Brown the authority to execute the sale agreement with the Respondent on her behalf. As a first appellate court, I cannot go any further to assess how PW3 attained the title to the land or if she indeed inherited it from her father as these are grounds that the Appellants should have presented evidence on and deliberated on at the trial of the case. While on appeal, the Appellate court in the instant case is tasked with analysis of the evidence already on record.


- I therefore conclude that whereas I agree with Counsel for the Appellants that this $\mathsf{S}$ particular aspect of the Madi customary practice was inconsistent with the Constitution, $\overline{a}$ the Trial Magistrate rightly held that Messia Mahmood (PW3) was the lawful owner of the suit land as according to all the other uncontradicted evidence on record. - Further, with due respect to Counsel for the Appellants, Court cannot be seen to be on 10 a fishing expedition for issues in contention between parties, then resolve them even when the parties have identified for themselves the issues in contention and requested Court to give a determination on the same. Judicial officers are not required to involve themselves in cases of the parties to the level of identifying for them issues and resolving - them. 15

Before the trial court, both parties presented evidence before court and identified issues before court. Parties filed submissions from which court resolved the issues and gave a decision. I therefore do not fault the Learned Trial Magistrate for not having formed new issues in her judgement for court to resolve in the circumstances of this court, she was not required to deal with a ground on fraud which had not been pleaded or proven.

Locus visit evidence from Mariam Shaban.

In the case of The Registered Trustees Of The Archdiocese Of Tororo vs Wesonga Reuben Malaba HCT-04-CV-CA-0096 OF 2009, Hon. Justice Henry I. Kawesa stated 25 that,

"The general rule in land practice today is that courts, before finalizing the trial of land matters, should visit the locus. The purpose of this visit was well articulated in the case of Deo Matsanga Vs. Uganda 1998 KALR 57, that: "The purpose of visiting the locus in quo is to cross check on the evidence adduced during the trial. The proceedings at the locus should form part of the court record. The trial Magistrate should record everything that a witness states in the locus in quo and recall him to give evidence of what occurred on oath and opposite party is afforded an opportunity to cross examine him"... The gist of all those cases is that once court visits the locus, evidence at the locus is conducted as part of the trial. There is no adding to or closing gaps at the locus. The evidence only clarifies what has already been testified in court."

- From the above extract, the purpose of the locus is clearly stated as to check on the evidence adduced during the trial, the proceedings at locus in quo form part of the court 40 record and witnesses are recalled giving evidence of what occurred on oath and the opposite party afforded an opportunity to cross examine. The evidence at locus clarifies that has already been testified in Court. - 45

In the instant case, Mariam Shaban was called as a witness at locus for the first time, she had not testified as a witness during the trial of the case at court, her evidence was therefore fresh and brought in to fill gaps do not clarify what she already testified on in court since there was not any, and worse yet, the record does not show that she took oath before testifying while at the locus. Leave of court was not sought to call Mariam Shaban

as a witness during the locus visit and court did not explain why she was allowed to testify 50 at locus, yet she does not fall within the exceptions to the general rule of witnesses

testifying at locus who did not appear as witness during the trial of the suit, and she did $\mathsf{S}$ not even take oath before testifying.

It is therefore the decision of this court that all the evidence given by Mariam Shaban is to be disregarded as it was received erroneously, the Trial Magistrate erred in letting her testify and receiving her evidence while at the locus visit and it should all therefore be disregarded. I also opine and agree with Counsel for the Respondent that this Court as a first appellate court shall analyse the rest of the evidence on record and come up with its decision.

In finality, grounds 4 and 8 fail and ground 7 succeeds. 15

Ground 10

The Learned Trial Magistrate erred in both law and fact when she failed to properly evaluate the evidence on record and thereby arriving at erroneously wrong decision 20 hence occassioning a miscarriage of justice.

On perusal of the arguments of the Appellants on this ground, the main focus seems to be on the issue of fraud as having been alleged by the Appellants in the trial court and that the Learned Trial Magistrate failed to properly evaluate the evidence on record and misdirected herself that there was no fraud on the part of the Plaintiff or any of the sellers of the suit land.

As already resolved above, the Learned Trial Magistrate was not required under the law to go on a fishing expedition to identify throughout the pleadings all the allegations on 30 fraud made, weigh evidence for both parties and resolve an issue in that regard. The case of Olok Francis vs Rev. William Pashi Civil Appeal No. 42 of 2010 Relied on by the Appellants can be clearly distinguished from the instant case.

#### I therefore decide ground 10 in the negative. 35

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

I so order. 40

Dated at Arua this 19^th day of August, 2024

**Collins Acellam** Judge