[2025] UGHC 81

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT GULU CIVIL APPEAL NO. 40 OF 2022**

**(Arising from Nwoya Chief Magistrates Court Civil Suit No. 020 of 2021) LAPYEM JAMES OCHOLA=================================APPELLANT VERSUS AROMORACH CATHERINE============================== RESPONDENT BEFORE HON. JUSTICE PHILLIP ODOKI JUDGEMENT**

#### **Introduction:**

[1] This appeal arises from the judgment of the Chief Magistrate of Nwoya (His Worship Adoko Joe Fay) dated 30th March 2023, in Civil Suit No. 020 of 2021. The Appellant, being dissatisfied with the judgement, appealed to this Court. He prayed that the appeal be allowed; the decision of the trial Magistrate be set aside; judgment be entered in his favor; and he be awarded the costs of this appeal and those of the lower court.

## **Background:**

[2] In 2021, the Respondent instituted Civil Suit No. 020 of 2021 in the Chief Magistrates Court of Nwoya against the Appellant. She pleaded that in the 1960s, her biological father (Peter Oryema) settled on vacant land measuring approximately 1000 hectares situate at Goro Village, Orum Parish, Koch Lii Sub – County, Nwoya District. He lived on the land, cultivated it and commenced the process of acquiring a leasehold Certificate of Title. In 2013, her father had a boundary dispute with Sam Okot and Okech Ochola. That boundary dispute was however successfully mediated by the traditional/cultural leaders of Koch. In the same year (2013), her father divided his land among his children. She was given approximately 20 acres thereof (hereinafter referred to as 'the suit land'). She thereafter utilized the suit land without any disturbance from anyone. In 2018, her father died. In 2020, owing to the COVID -19 pandemic, she could not access the suit land since she had to abide by the COVID -19 guidelines. In month

of July 2020, the Appellant trespassed on the suit land, chased away her caretaker, destroyed her hut, cut down her coffee trees, started cultivating the suit land, rented out a portion of the of the suit land to unknown persons for cultivation and claimed that the suit land belongs to him. The Respondent prayed for, a declaration that she is the lawful owner of the suit land; a declaration that the Appellant is a trespasser on the suit land; an order of eviction of the Appellant from the suit land; a permanent injunction to restrain the Appellant from trespassing on the suit land; general damages; and costs of the suit.

[3] In his written Statement of Defense, the Appellant denied all the allegations of the Respondent. He contended that the suit land was acquired by his grandfather called Okello Nelson Abamu in 1969 when it was still vacant land. His father called Nesanori and his grandfather used the suit land. His father died in 1979 and his grandfather died in 1983. After the death of his grandfather, the authority over the suit land was left with a one Okech Ochola who exercised authority over the suit land until his death in 2018. According to the Appellant, the dispute over the suit land started when Okech Ochola was still alive. Okech Ochola filed a complaint against the father of the Respondent to the traditional/cultural institution Koch. He prayed that the suit should be dismissed with costs and a declaration should be made that he is the lawful owner of the suit land.

[4] The case was heard inter parties. The Respondent testified as P. W.1. She called Ojok Simon who testified as P. W.2, Okello Walter who testified as P. W.3 and Ayela Denis who testified as P. W.4. The Appellant testified as D. W.1. He called Eveline Ochora who testified as D. W.2, Acoka Oloco who testified as D. W.3 and Ladai Paska who testified as D. W.4. After the hearing, the court visited the locus in quo.

[5] On the 30th March, 2023, the trial Magistrate gave his judgment. He held that the Appellant is the rightful owner of the suit land, and that the Defendant is a trespasser on the suit land. He issued an eviction order against the Appellant, and a permanent injunction to restrain the Appellant from interfering or dealing with the suit land. He awarded the Respondent general damages of Ugx 5,000,000/=, interest on the general damages at 8% from the date of judgment until payment in full and the costs of the suit. The Appellant was dissatisfied with the judgment. He filed the instant appeal.

### **Grounds of appeal:**

[6] The Appellant formulated 7 grounds of appeal. They are that;

- 1. The learned trial Magistrate erred in law and fact when he failed to properly evaluate the evidence on the court record thereby arriving at a wrong conclusion that the Plaintiff is the rightful owner of the suit land thus occasioning a miscarriage of justice. - 2. The learned trial Magistrate erred in law and fact when he misapplied the law on contradictions and inconsistencies thus arriving at a wrong conclusion. - 3. The learned trial Magistrate erred in law and fact when he ignored evidence of long possession of the suit by the Appellant. - 4. The learned trial Magistrate erred in law and fact when he failed to identify the boundaries and location of the suit land thus arriving at a wrong conclusion. - 5. The learned trial Magistrate erred in law and fact when he misapplied the law on gifts inter vivos thus arriving at a wrong conclusion. - 6. The learned trial Magistrate erred in law and facts by not recording the proceedings at the locus in quo thereby occasioning a miscarriage of justice. - 7. That the learned trial Magistrate erred in law and fact when he declared the Respondent as the lawful owner of the suit land.

## **Legal representation:**

[7] The Appellants were represented by Mr. Michael Ojok of M/s Oroma & Co. Advocates. The Respondents were represented by Mr. Stephen Komakech of M/s Francis Owiny & Company Advocates.

## **Legal submissions:**

[8] When this appeal came up for hearing, Counsel for the Appellant informed the Court that the Appellant had abandoned grounds 1 and 7 of the Appeal. Counsel thus only argued grounds 2 – 6 of the appeal.

[9] With regard to ground 2 of the Appeal, Counsel for the Appellant submitted that the evidence of the Respondent and those of her witnesses were contradictory. Counsel pointed out that the Respondent testified that when she was given the suit land as a gift, there were no neighbors present. However, P. W.3 testified that when the Respondent was given the suit land there were some neighbors. Counsel also pointed out that the Respondent testified that she planted coffee on the suit land. However, she later contradicted herself when she testified that the coffee was planted by her father. Counsel further pointed out that P. W.2 testified that he was given 3 days, by the Appellant, to leave the suit land. He however later contradicted himself when he testified that he was given 2 days to leave the suit land. In addition, counsel pointed out that P. W.2 testified that he was employed to work in the suit land in 2019. He later contradicted himself when he testified that he was employed in 2020. Counsel argued that had the trial Magistrate considered those contradictions, he would have come to the conclusion that the Respondent is not the owner of the suit land.

[10] On ground 3 of the appeal, Counsel for the Appellant argued the trial Magistrate ignored the evidence of long possession of the suit land by the Appellant. Counsel pointed out that the Appellant testified that he started using the suit land in the1970s as opposed to the Respondent who testified that she was given the suit land in 2017. Counsel further pointed out that when the Court visited the locus in quo, the Court found mango and avocado trees which were 2 – 4 years old. The Court also found the grass thatched hut of the Appellant on the suit land. According to Counsel for the Appellant, the trees and the hut of the Appellant which were found on the suit land show that he was the one in long possession of the suit land.

[11] On ground 4 of the appeal, Counsel for the Appellant submitted that the Respondent testified that the suit land is located at Goro Village. Her witness P. W.2 testified that the suit land is situated at Orum village. When the Court visited the locus in quo, the Appellant protested the location and boundaries of the suit land. The Appellant testified that the suit land is situated in Kal village. In his judgment, the trial Magistrate stated that the suit land is situated at Busia Village. According to Counsel for the Appellant, this showed that the trial Magistrate failed to identify the location of the suit land, hence arriving at the wrong conclusion.

[12] On ground 5 of the appeal, Counsel for the Appellant submitted that the trial Magistrate misapplied the law on gift inter vivos. According to Counsel for the Appellant, in law a gift inter vivos must be in writing. In support of his submission counsel relied on the case of *Idri Fred versus Inzamaku Micheal HCCS No. 20/2020* and the case of *Norah Nassozi versus George William Kalule HCCS No. 5 of 2012.* Counsel pointed out that in the instant case, the Respondent did not adduce documentary evidence to prove the gift inter vivos.

[13] On ground 6 of the appeal, Counsel for the Appellant submitted that the trial Magistrate failed to record the proceedings at the locus in quo.

[14] In reply, counsel for the Respondent submitted, on ground 2 of the appeal, that nowhere in the judgment did the trial Magistrate apply the law on contradictions and inconsistencies. It was therefore wrong for the Appellant to fault the trial Magistrate for misapplying the law on contradictions and inconsistencies when he did not apply it or make any reference to it. On the alleged contradictions and inconsistencies which were pointed out by Counsel for the Appellant, Counsel for the Respondent submitted that the Appellant, through the submission by his Counsel, was introducing a new ground of appeal which was not part of the grounds of appeal stated in the Memorandum of Appeal. Counsel for the Respondent submitted that the Appellant is not permitted, in law, to argue a ground of appeal which was not framed in the Memorandum of appeal.

[15] On ground 3 of the appeal, Counsel for the Respondent submitted that the trial Magistrate did not ignore the evidence of possession of the suit land by the Appellant as alleged by the Appellant. When the Court visited the locus in quo, it observed that the grass thatched house of the Appellant on the suit land had been recently constructed and the trees (mango and avocado) were estimated to have been 2 -3 years old. In Counsel's view, that was not evidence of long possession of the suit land. To the contrary, the evidence of the trees and the grass thatched hut corroborates the evidence of the Respondent that the Appellant dispossessed her of the suit land during the COVID 19 lockdown in 2020. In addition, counsel submitted that while at the locus in quo, the Court observed the remains of the hut of the Respondent. The Appellant could not explain how remains of the house of the Respondent came to be on the suit land. Furthermore, Counsel for the Respondent submitted that the Appellant failed to explain

who planted the coffee on the suit land. In Counsel's view, if indeed the Appellant had always been in possession of the suit land as he claimed, he would have known the person who planted the coffee on the suit land. Counsel argued that the only logical conclusion that can be drawn from the evidence regarding the coffee, is that the Appellant was not in possession of the suit land at the time the coffee was planted.

[16] On ground 4 of the appeal, Counsel for the Respondent submitted that none of the parties disputed that the land which was visited by the Court was not the suit land. According to Counsel for the Respondent, the Respondent described the boundaries of the suit land.

[17] On ground 5 of the appeal, Counsel for the Respondent submitted that the trial Magistrate correctly applied the law on gift inter vivos. Counsel submitted in the case of *Narah Nassozi versus Inzamaku Micheal*, which was relied upon by counsel for the Appellant, the trial Judge relied on the decision in the case of *Idri Fred indri versus George William Kalule*. Counsel pointed out that in the *Idri Fred indri versus George William Kalule* case, the Court was dealing with registered land and yet in the instant case, the Court is dealing with unregistered land. In Counsel's view, the decision of the Court in the case of *Narah Nassozi versus Inzamaku Micheal* is not applicable to the instant case. According to Counsel for the Respondent, once a gift has been accepted and perfected, as was done in the instant case, where the Respondent accepted and took possession of the suit land, there is no legal requirement that the gift must be in writing.

[18] On ground 6 of the appeal, Counsel for the Respondent submitted that the trial Magistrate recorded the evidence of all the witnesses who testified at the locus in quo.

#### **Analysis and determination of the Court:**

[19] This being a first appeal, this Court has a duty to reconsider all material evidence that was before the trial Court and to come to its own conclusion on the evidence. This settled position of the law was stated by the Supreme Court in *Father Nanensio Begumisa and three Others v. Eric Tiberaga SCCA 17 of 2000*. At page 7, Mulenga J. S. C stated that:

*"It is trite law that the duty of a first appellate court is to reconsider all material evidence that was before the trial court, and while making allowance for the fact that it has neither seen nor heard the witnesses, to come to its own conclusion on the evidence. In so doing, the first appellate court must consider the evidence on any issue in its totality and not any piece thereof in isolation. It is only through such re – evaluation that it can reach its own conclusion, as distinct from merely endorsing the conclusion of the trial court."*

#### **Ground 2:**

[20] In this ground of the appeal, the Appellant faults the learned trial Magistrate for misapplying the law on contradictions and inconsistencies, thereby arriving at a wrong conclusion. I have read the judgement. Nowhere did the trial Magistrate make reference to or apply the law on contradictions and inconsistencies. I therefore agree with Counsel for the Respondents that it was wrong for the Appellant to fault the trial Magistrate for misapplying the law on contradictions and inconsistencies when he neither applied it nor made reference to it in the first place.

[21] Be that as it may, the trial Magistrate made a finding that the evidence of the Respondent was consistent. He also made a finding that the witnesses of the Respondent were truthful and reliable. In light of the contradictions and inconsistencies which were highlighted by Counsel

for the Appellant, this Court is duty bound to re -evaluate the evidence to establish whether the trial Magistrate came to the right conclusion.

[22] In the Nigerian case of *David Ojeabuo versus Federal Republic of Nigeria (2014) LPELR22555(CA),* the Court stated that:

*"Now, contradiction means a lack of agreement between two related facts. The evidence contradicts another piece of evidence when it says the opposite of what the other piece of evidence has stated and not where there are mere discrepancies in details between them. Two pieces of evidence contradict one another when they are inconsistent on material facts while a discrepancy occurs where a piece of evidence stops short of or contains a little more than what the other piece of evidence says or contains."*

[23] The settled position of the law is that grave inconsistencies and contradictions unless satisfactorily explained, will usually but not necessarily result in the evidence of a witness being rejected. Minor ones unless they point to deliberate untruthfulness will be ignored. See: *Alfred Taiar v Uganda, Criminal Appeal No. 67 of 1969 (EACA).*

[24] In *Kalyesubula Andrew and 3 others versus Uganda CACA No. 103 of 2018* the Court of Appeal held that what constitutes a major contradiction or inconsistency varies from case to case. But the question always is whether or not the contradictory/ inconsistent elements are material/ essential to the determination of the case.

[25] I have examined the evidence of the Respondent vis – a vis that of P. W.3 on whether there were any neighbors of the suit land who witnessed the Respondent being given the suit land by her father. The Respondent testified that it was only her brothers and sisters (Alice Aparo, Acan Joyce Oryema, Lakop Janet and Akot Josephine), who are her neighbors to the suit land, who were present. However, P. W.3 (Okello Walter) testified that in addition to the siblings of the Respondent who neighbor the suit land who were present, there was also a neighbor called Opiyo Walter who was present. The contradiction is therefore only with regard to neighbors who are not siblings of the Respondent. In my view, that contradiction is minor in nature. It does not point to any deliberate untruthfulness on the part of the Respondent and her witnesses. The contradictory element is not material/essential to the determination of the issue as to whether the Respondent was given the suit land as a gift by her father. The Appellant testified that she was given the suit land by her father. Her evidence was corroborated by that of P. W.2 and P. W.4. The presence or no presence of other neighbors to witness the giving of the gift is irrelevant. I have therefore ignored that contradiction.

[26] The other contradiction which was highlighted by Counsel for the Appellant was that the Respondent testified that she planted coffee on the suit land. However, she later contradicted herself when she testified that the coffee was planted by her father. The Respondent testified in chief that her father planted coffee on 2 acres of the suit land. In cross-examination she testified that she planted coffee, millet and groundnuts on the suit land. When her attention was drawn to her witness statement, where she stated that it was her father who planted the coffee, she quickly clarified that it was her father who planted the coffee. Her evidence was corroborated by the evidence of P. W.3(Okello Walter) and P. W.4(Ayella Denis) who testified that the coffee trees on the suit land, which were cut by Appellant, were planted by the father of the Respondent. I find that contradiction to be minor in nature and not pointing to any deliberate untruthfulness on the part of the Respondent. The contradictory element is not material/essential to the determination of the issue as to whether coffee was planted on the suit land and if so by who. This is because, it is not in doubt that there was coffee which was planted on the suit land. P. W.2 (Ojok Simon) testified that before he was chased from the suit land by the Appellant, he used to take care of the coffee plantation on the suit land. The Appellant also

confirmed that there were coffee trees on the suit land. According to the Appellant, the coffee trees were planted on the suit land by someone he did not know after the dispute arose in 2013. D. W.2 (Olocho Acoka) testified that he did not know when the coffee was planted on the suit land. According to him the coffee was planted by force. I have accordingly ignored the contradiction.

[27] There was also the contradiction by P. W.2 on the number of days he was given by the Appellant to leave the suit land. P. W.2 testified that he was given 2 days, by the Appellant, to leave the suit land. He later contradicted himself when he testified that he was given 3 days to leave the suit land. In my view, this is also a minor contradiction which does point to any deliberate untruthfulness on the part of the P. W.2. The number of days P. W.2 was given vacate the suit land is immaterial in determining ownership of the suit land.

[28] Then there was the contradiction on when P. W.2 was employed by the Respondent. P. W.2 testified that he was employed to work in the suit land in 2019. He later contradicted himself when he testified that he was employed in 2020. P. W.2 however explained that he mentioned the year 2019 in error. I consider this to be a minor inconsistency which is immaterial in determining the issue of ownership of the suit land. In conclusion, I find that this ground of appeal has no merit.

## **Ground 3:**

[29] In this ground of the appeal, the Appellant faults the trial Magistrate for ignoring the evidence of long possession of the suit land by the Appellant. In law, possession confers possessory title upon a holder of land, good and enforceable against any other persons who cannot show a better title*.* In *Boiti Bonny versus Imalingat Lawrence Court of Appeal Civil Appeal No. 239 of 2016* Gashirabaki J. A, held that:

*"Possession confers a possessory title upon a holder of land and a recognizable enforceable right to exclude all others but persons with a better title. Possession of land is itself a good title against anyone who cannot show a prior and therefore better right to possession (see Asher v. Whitlock(1865) LR 1 QB1)."*

[30] The right to possession of land can be inherited, devised or conveyed. In *Asher versus Whitlock* cited above, Cockburn CJ stated that;

*"But authorities are conclusive to shew that a person in peaceable possession of land has, as against everyone but the true owner, an interest capable of being inherited, devised or conveyed."*

[31] In order to determine whether a person was in peaceful possession of land before the opposite party trespassed on it, oral testimony of witnesses may be relied upon. However, the evidence in the form of physical features found at the locus in quo adds credence to the oral testimony. In *Komakech Walter Verses Dr. Okot Christopher, HCCA No. 114 of 2018*, Mubiru J., underscored the importance of physical features found at the locus in quo in determining the credibility of oral testimony. He stated that;

*"The credibility of the Appellant's version could then be determined by assessing how it did or did not fit in with the available physical evidence. Unless fabricated or staged, physical evidence is not subject to the limitations of lies, impeachment, intimidation, forgetfulness or pursuit of self-interest that oral evidence is prone to. Physical evidence only has to be detected, preserved, evaluated, and explained. Once the possibility of its being fabricated or staged is ruled out, it should then be examined and compared with the witnesses' testimony. The Court may then determine the reliability of their respective accounts. The Court looks at the physical evidence and attempts to determine how it fits into the overall scenario as presented in the contending versions."*

[32] In the instant case, P. W.3 testified that the father of the Respondent acquired the suit land around 1966. P. W.1, P. W.3 and P. W.3 all testified that their father planted coffee on the suit land. In 2017 their father gave the suit land to the Respondent. P. W.1 testified that from 2019 – 2020 she used the suit land for farming and constructed thereon a grass thatched hut without any complaint or adverse claims from the Appellant. She did not leave the suit land except during the lockdown. When the lockdown was lifted, she went to the suit land, found when the Respondent had demolished her grass thatched hut, built his own hut on the suit land, chased away her caretaker from the suit land and cut down her coffee trees. When the Court visited the locus in quo, the Respondent showed to the court the remains of her grass thatched hut on the suit land. The court was able to observe the foundation, bricks and poles of the demolished house.

[33] P. W.2 testified that he was a worker of the Respondent on the suit land. He was taking care of the coffee plantation of the Respondent. In 2020 during the lockdown, the Appellant came to the suit land, chased him away from the suit land and cut the coffee plantation of the Respondent. P. W.3 testified that prior to 2020 the Appellant never lived on the suit land. P. W.4 corroborated the evidence of the Respondent that after the lockdown, he went and confirmed that the Appellant was on the suit land, he had built a hut thereon and was digging the suit land.

[34] The Appellant testified that his grandfather acquired the suit land in 1967 – 1969 when it was free land and he settled thereon. His grandfather died in 1971 leaving the suit land in the care of his daughter Akot Josephine and his doubters in law, that is, Hellen Ochora and Susana Ayiko (the Appellant's mother). The Appellant further testified that his mother built on the suit land in 1985 and they lived on the suit land up to 1988. In 1988 he bought iron sheets for his mother to roof her house which she was building. However, because of the LRA insurgency, they buried the iron sheets on the ground, ran away from the suit land and took refuge in the IDP camp. Around 2003 people returned from the IDP camp. The Appellant testified that he

inherited the suit land after the death of his mother. In 2013 the father of the Respondent started cutting trees on the suit land. He reported the father of the Respondent to the traditional/ cultural leadership of Koch. The LCIII Chairperson and the traditional/ cultural leaders of Koch visited the suit land and found his iron sheets which were hidden, beds, pots, granaries and trees which existed before they went to the IDP camp. P. W.3 stated that when he was growing up, he saw the grandfather of the Appellant cultivating the suit land and he lived on it.

[35] I note that although the Respondent testified that his grandfather settled on the suit land from 1967 up to 1971 and that his mother settled on the suit land from 1971 up to 1988, when the Court visited the locus in quo, he failed to show any remains of old settlement of his grandparent and those of his mother on the suit land. The only physical features which the Appellant showed to the Court at the locus in quo were his hut, 1mango tree and 1 avocado tree. The Court made an observation that the hut was newly built and that the mango and avocado trees were 2 – 3 years old. The Appellant did not show to the Court the alleged iron sheets which he claimed was hidden, beds, pots, granaries and trees which he alleged existed before they went to the IDP camp. The Respondent, on the other hand, showed to the Court the remains of her grass thatched hut which she built in 2019. The Appellant testified that it was his first time to see the remains of the grass thatched hut which was shown by the Respondent. It is a clear indication that when the said hut was constructed, Appellant was not in occupation of the suit land.

[36] The Appellant thus failed to prove long and peaceful possession of the suit land as alleged. It was instead the Respondent who proved that she was in possession of the suit land as far back as 2019 before the Appellant came to the suit land in 2020 during the lockdown and occupied it. This ground of appeal therefore fails.

## **Ground 4:**

[37] In this ground of appeal, the Appellant faults the trial Magistrate for failing to identify the boundaries and location of the suit land thus arriving at a wrong conclusion.

[38] On the boundaries of the suit land, the Respondent and P. W.3 mentioned all the neighbors of the suit land. That is, Fr. Larok Obwona on the East, Opio Walter on the West, a stream and the family of K. K Nyeko on the South, Ayella Denis and a community road on the North. Beyond the community road, there is the land of the Appellant's siblings and that of her step mother. On the other hand, the Appellant described the neighbors of the suit land to be, Oloco Acoka on the North, Maraka Oola on the East, Ladai Paska on the South and a swamp called Wang Omiya steam on the West. He testified that beyond the swamp is the land of Ladiya Paska. On further cross-examination, the Appellant confirmed that the people who were mentioned by the Respondent and P. W.3 as the true neighbors of the suit land. Indeed, when the Court visited the locus in quo, the persons who the Appellant had earlier mentioned as neighbors of the suit land, were not found to be the neighbors of the suit land. Instead the neighbors were those mentioned by the Respondent and P. W.3. It is therefore wrong for the Appellant to claim that the trial Magistrate failed to identify the boundaries of the suit land.

[39] On the location of the suit land, The Respondent testified that the suit land is situated in Goro Village. P. W.3 testified that the suit land is situated at Goro Village and Kal village but mostly in Goro Village. The Appellant testified that the suit land is situated in Busia Village. D. W.2 testified that the suit land is situated in Kal A village. Much as the witnesses mentioned different villages where the suit land is situated, there is no evidence to show that the land which was visited by the Court was not the suit land. The moment the parties identified the land in dispute, the question as to whether it is located at Goro Village or Orum Village or Busia Village ceased to be relevant. This ground of appeal therefore has no merit.

## **Ground 5:**

[40] In this ground of appeal, the Appellant faults the trial Magistrate for misapplying the law on gifts inter vivos thus arriving at a wrong conclusion. According to counsel for the Appellant a gift inter vivos of land must be in writing.

[41] The term gift inter vivos is defined in *Halsbury's Laws of England Vol. 18 pp 364 para 692* to mean;

*"The transfer of any property from one person gratuitously while the donor is alive and not in expectation of death. It is an act whereby something is voluntarily transferred from the true possessor to another person with full intention that the thing shall not return to the donor and with full intention on the part of the receiver to retain the thing as his own without restoring it to the giver."*

[42] It is a settled position of the law that for a gift of personal property to be complete and irrevocable, the following conditions must exist. That is, the donor must intend to give the gift, the donor must deliver the property, and the donee must accept the gift. See the case of *George William Kalule Versus Norah Nassozi & Anor Court of Appeal Civil Appeal No. 29 of 2014).*

[43] A gift inter vivios of land may be established by evidence of exclusive occupation and user thereof by the donee during the lifetime of the donor. A gift is perfected and becomes operative upon its acceptance by the donee and such exclusive occupation and use may suffice as evidence of the gift (see *Oyet & Anor Vs Abwola H. C. CA No. 0068 of 2016* and *Ovoya Poli v. Wakunga Charles, H. C. C. A No. 0013 of 2014).*

[44] A gift of unregistered land need not be in writing. In *Ocen Andrew Atudu Versus Obol John HCCA No. 019 of 2014* the Court held that customary law requires no writing for the transfer of land, whether by way of sale or by way of gift. I agree with submissions of counsel for the Respondent that the decision in the case of *Idri Fred indri versus George William Kalule* is not applicable to the present case. In that case, the Court was dealing with a gift inter vivos of registered land. In the present case, it is common ground that the suit land is unregistered.

[45] On the elements that must exist to constitute a gift inter vivos, the Respondent testified that the suit land was given to her as a gift inter vivos by her father in 2017 when he was still alive. From 2017 – 2020 she used the suit land for farming and she built a grass thatched house on it. Her evidence was corroborated by that of P. W.4. in my view, there is clear evidence that her father (the donor) intended to give the gift, her father delivered the land to the Respondent and the Respondent (the donee) accept the gift. I therefore find this ground of appeal without any merit.

## **Ground 6:**

[46] In this ground of appeal, the Appellant faults the trial Magistrate for not recording the proceedings at the locus in quo. According to *Practice Direction No. 1 of 2007,* during hearing of land disputes, the Court is supposed to take interest in visiting the locus in quo. While there, the Court has to, ensure that all the parties, their witnesses, and advocates (if any) are present; allow the parties and their witnesses to adduce evidence at the locus in quo; allow crossexamination by either party, or his/her counsel; and record any observations, view, opinion or conclusions of the Court including drawing a sketch plan if any.

[47] Counsel for the Appellant submitted that the trial Magistrate failed to take the record of proceedings at the locus in quo. I have perused the record of proceedings. It clearly shows that on the date of the hearing at the locus in quo, both parties were present together with their counsel. P. W.1 and D. W.1 testified at the locus. They were cross-examined by counsel for the opposite party. The trial Magistrate recorded the entire proceedings and his observations. He even drew a sketch map of the locus in quo. In my view, the locus in quo was properly conducted by the trial Magistrate and the records of the proceedings was properly recorded. This ground of appeal also fails.

[48] In the end, I find that this appeal has no merit. It is accordingly dismissed with costs to the Respondent.

I so order.

Dated and delivered by email this 6th day of March, 2025

**Phillip Odoki**

Judge