[2025] UGHC 44

# **THE REPUBLIC OF UGANDA**

# **IN THE HIGH COURT OF UGANDA HOLDEN AT KITGUM**

### **CIVIL APPEAL No. 064/2022**

# **(Formerly HIGH COURT GULU - CIVIL APPEAL No. 103/2022) (ARISING FROM CIVIL SUIT No. 013/2022: THE CHIEF MAGISTRATE'S COURT OF PADER HOLDEN AT KALONGO).**

# **LATOM PHILIPS APPELLANT**

**Versus**

#### **ANYANG PAUL RESPONDENT**

# **BEFORE: HON. MR. JUSTICE PHILIP W. MWAKA.**

## **JUDGEMENT.**

#### **Introduction and Background.**

[1]. This Appeal was instituted *vide* Memorandum of Appeal filed in this Court on the 21st day of December, 2022. The Appeal is in respect of the Judgment of His Worship Ogwal Smith, Magistrate Grade One, Kalongo, the Chief Magistrate's Court of Pader holden at Kalongo delivered on the 7th day of December, 2022. The cause of action was founded in claims of ownership and trespass to the suit land. The Judgment of the Lower Court was delivered in favour of the Defendant now the Respondent herein and against the Plaintiff now the Appellant herein. The Trial Court determined that the Defendant is the rightful owner of the suit land described as customary land situate at Orunya Village, Ogole Parish, Lapono Sub County in Agago District said to measure approximately thirty (30) Acres with the principal matter in contention between the parties, as observed by the Learned Trial Magistrate, having been the size of the land.

- [2]. In his Judgment, firstly the Learned Trial Magistrate on the basis of **Section 3, 10(1)(e) and 11 of the Local Council Courts Act, 2006 (now cited as Ss. 2, 9(1)(e) and 10 of the Local Council Courts Act vide Cap. 18)** and obscurely **Section 76A(1) of the Land Act, Cap. 227 (now revised as Cap. 236)** incorporated by **Section 30 of the Land (Amendment) Act, 2004** - apparently a dead letter of the Law - (**See: Section 50 of the Local Council Courts Act, 2006 – Repeal and Saving)**; in considering the issue of ownership of the suit land had observed that a Local Council Two (LC2) Court/Parish Court as a Court of first instance had already by virtue of its mandate on the 22nd March, 2022 determined that the Defendant (now the Respondent) was the rightful owner of the suit land and the decision of the LC2 Court had not been challenged or Appealed to the Local Council Three (LC3)/Sub County Court which had Appellate Jurisdiction in respect of the LC2/Parish Court's decision by virtue of **Section 32(2)(b) of the Local Council Courts Act, 2006 (now S. 31(2)(b) of the Local Council Courts Act vide Cap. 18)** and therefore the Trial Court could neither confirm nor invalidate the decision of the Local Council Court – for want of Jurisdiction - which powers properly rested with the Chief Magistrate's Courts. **See: Section 39 of the Local Council Courts Act, Cap. 18.** Secondly, in considering the Plaintiff's allegations of trespass against the Defendant, the Learned Trial Magistrate determined that the Defendant could not be found to be in trespass based on his resolution of the first issue to the effect that the LC2 Court had found the Defendant to be the rightful owner of the suit land and the decision had not been Appealed. Thirdly, in regard to remedies sought, the Learned Trial Magistrate dismissed the suit with costs. - [3]. The Plaintiff Appealed the decision of the Lower (Trial) Court and in his Memorandum of Appeal raised five (5) grounds of Appeal –

- i. **The Learned Trial Magistrate erred in Law and in fact when he failed to properly evaluate and scrutinize the evidence on Record thereby reaching a wrong decision that the suit land belongs to the Respondent thereby occasioning a miscarriage of Justice.** - **ii. The Learned Trial Magistrate erred in Law and in fact when he based his decision solely on an illegal, untenable and unclear decision of the LC 2 and held that the suit land belongs to the Respondent because the Appellant did not challenge the LC 2 Court Judgment in favour of the Respondent thereby occasioning a miscarriage of Justice.** - **iii. The Learned Trial Magistrate erred in Law and in fact by ignoring the Appellant's relevant evidence both in Court and during the Locus in Quo visit including developments and features confirming the Appellant's evidence and failing to properly conduct the Locus in Quo visit thereby reaching a wrong decision and Judgment.** - **iv. The Learned Trial Magistrate erred in Law and fact by totally disregarding all the relevant Laws including the Law on Limitation thereby reaching an erroneous decision/Judgment thus occasioning a miscarriage of Justice.** - v. **The Learned Trial Magistrate erred in Law and in fact when he ignored the relevant evidence on trespass and failed to find that the Respondent had trespassed on the suit land based on the evidence adduced in Court thereby occasioning a miscarriage of Justice.**

[4]. The certified Judgment and Proceedings of the Lower (Trial) Court were duly provided together with the original file and the entire Trial Record.

# **Pleadings and Proceedings in the Lower (Trial) Court.**

- [5]. The cause of action in the suit in the Trial Court as evidenced by the pleadings the Plaint filed on the 6th May, 2021 on the Record of the Court was founded in claims of ownership of and trespass to the suit land said to measure approximately thirty (30) Acres. The Plaintiff averred on the one hand that he acquired the suit land in 1979 from his late Father, Asuka Aldo; and on the other hand in an apparent contradiction that **"he"** (supposedly his father) acquired the suit land from a Okello Sivirino in 1969 - being a brother in law. He also averred that his late father, Asuka Aldo, lived on the suit land - given to him by his in laws - with his family peacefully until he died leaving him in possession of the suit land and in fact both their parents had lived together on the suit land without interference until their demise leaving both parties on the land they were each in possession of. It was his case that the Defendant later claimed the entire land as his and attempted to chase him off the land by encroaching on it. - [6]. The Plaintiff further averred that the matter was reported to the Chairperson Local Council Three (LC3)/ Sub County Court for Mediation which was held and upon considering the matter it was determined that the Defendant vacates the Plaintiff's land leaving him vacant possession and quiet enjoyment of the land. Notwithstanding the decision, the Defendant has insisted on forcefully utilizing his land including cultivating it and cutting down trees. Curiously, he names a 2nd Defendant who is not cited in the Plaint. The Plaintiff lists his neighbours stating that the Defendants encroached in the middle of the land. He seeks declarations of ownership, trespass and associated remedies.

[7]. The Defendant filed a Written Statement of Defence on the 27th May, 2021 contesting the Plaintiff's claims and averred that he is the rightful owner of the suit land which was part of a large chunk which originally belonged to his grandfather, Ocen Luyongo, who had opened it as vacant and virgin land for settlement and cultivation and had used the land peacefully without any claims until his death. After the death of his grandfather, his father Okello Sivirino assumed ownership and possession of the suit land without interference and upon his demise in 2008 he inherited the land. In 2021 the Plaintiff began to interfere with his quiet possession. It is his case that in 1983 the Plaintiff's father requested his father for land on which to settle temporarily and he was given 3 gardens of approximately 4 ½ acres temporarily. After the death of the Plaintiff's father in 1987 their family moved to Labwor. Later the Plaintiff and his mother returned in 1999. In 2003 their families were all displaced to Internally Displaced Persons (IDP) camps during the insurgency in Northern Uganda. In 2007, prior to displaced persons returning to their homes at the end of the insurgency his father wrote to the Plaintiff's mother prohibiting her from returning to the suit land. He references letter dated **23rd September, 2007**. However, upon the death of his father his elder brother, **Ocaya John**, permitted the Plaintiff's mother to temporarily settle on the land. This he claims is evidenced by an agreement dated **7 th February, 2009**. The Plaintiff's mother died whilst in occupation of the land leaving her children on it with the Plaintiff and his brother failing to honour the agreement and insisting on using the land. As a result, the Defendant sued the Plaintiff in their Local Council Two (LC2) Court/Parish Court which heard and determined the case in his favour and ordered the Plaintiff off the suit land. The Plaintiff, however, failed to leave as a result of which he reported him to Lapono Sub County Court Committee with the matter pending. It is then that the Plaintiff filed suit in the Trial Court. There is no Counter-Claim filed.

#### **The Appellant's Case and Submissions.**

- [8]. The Appellant filed Submissions on the 14th August, 2024 and addressed the grounds of Appeal consecutively, as follows: - - [9]. In respect of the 1st ground of Appeal, he submitted that the main dispute referenced in the Judgment was in regard to the size of the land given to his father which was on the Eastern side, acknowledged by the Respondent. On the Southern side was a grass thatched house he had constructed. It is his case that the Learned Trial Magistrate did not take into account the testimony of his witnesses including PW3 Akello Severino a widow of the Respondent's late Father Okello Sivirino, who had given the land to Asuka Aldo in 1969. He averred that the Respondent's witnesses acknowledged that his father was given land by Okello Sivirino. Further, the Respondent's witnesses admitted that the graves of his father, mother and a miscarried child are on the suit land. It is his case that the Learned Trial Magistrate ignored this testimony thus leading him to a wrong conclusion and in so doing occasioning a miscarriage of Justice. - [10]. In respect of the 2nd ground of Appeal, the Appellant submitted that the **Local Council Courts Act, 2006 (now Cap. 18)** recognizes LC 2 Courts as being Courts of first instance in handling land matters in dispute. He submits that the Trial Court should have acknowledged that before the Respondent could report the dispute to the LC 2 Court, there was already a decision against him in the LC 3 Court in his favour. Thus, the Respondent should have first made an Application to have the LC 3 Court Judgment set aside – since it preceded the LC 2 Court Judgment. It is the Appellant's case that he did not know about the LC 2 Judgment and, or proceedings. Therefore, the Learned Trial Magistrate erred in solely relying on the LC 2 Judgment in favour of the Respondent and should have dismissed the suit from the onset instead of declaring the Respondent owner of the land thus occasioning a miscarriage of Justice.

- [11]. In respect of the 3rd ground of Appeal, the Appellant submitted that during the *Locus in Quo* visit the Court in its Judgment observed that he was across the road on the Eastern side and the Respondent as well as his brothers all own land surrounding him. The Court also observed that commercial structures across the road belong to him while the Respondent does not own any structure on the land. The Court further observed on the Southern part of the land a grass thatched house constructed by him to house one of his wives. It is the Appellant's case that this established his possession of the suit land and yet the Learned Trial Magistrate determined that the belongs to the Respondent thereby ignoring the vivid evidence at the *Locus in Quo* and in so doing occasioning a miscarriage of Justice. - [12]. In respect of the 4th ground of Appeal, the Appellant curiously submitted that **Section 5 of the Limitation Act** bars by way of Statute of limitation any action for the recovery of land after the expiration of twelve (12) years from the date on which the right accrued and **Section 16 of the Act** provides that at the expiration of the period prescribed by the Act for any person to bring an action for recovery of land, the title of that person is extinguished. It is the Appellant's case that his witnesses testified that the suit land belongs to him having inherited it in 1969 from his father and in examination by the Court he had testified that the Respondent had not used the land from 1969 to 2021 when he began to dispute his ownership. In turn, the Respondent admitted in his testimony that the dispute began in 2021 and by 2022 he was utilizing the land. The Respondent does not deny that his father gave the Appellant's father land but only claims it was three (3) gardens (4 ½ acres) given in 1983. Otherwise, he has constantly utilized the land without interference for more than thirty-eight (38) years and thus the Learned Trial Magistrate should have considered the period he stayed on the suit land before concluding that it belongs to the Respondent.

- [13]. In respect of the 5th ground of Appeal, the Appellant submitted citing **Supreme Court Civil Appeal No. 11/2002: J. E. M. N. Lutaya Vs. Sterling Civil Engineering Co. Ltd** that trespass to land occurs when a person makes an unauthorized entry upon land thereby interfering with or portending to interfere with another person's Lawful possession of that land. It is the Appellant's case that he was always in possession of the suit land including when the wrangles began in 2021 and even by 2022 he was utilizing the suit land. The Appellant reiterates that the Learned Trial Magistrate observed his commercial structures across the road and that the Respondent does not own any structure there as well as also observing his grass thatched house on the Southern side evidencing his possession of the suit land and that the Respondent was the trespasser – which he contends the Learned Trial Magistrate chose to ignore. - [14]. In conclusion, it is the Appellant's prayer that the Appeal is allowed, the Judgment of the Lower (Trial) Court is set aside, he is declared the customary owner of the suit land and the Respondent is evicted from the suit land with a permanent injunction issued restraining the Respondent from further trespassing on the suit land and costs.

# **The Respondent's Case and Submissions.**

[15]. The Respondent did not file Submissions on the Record of the Court.

# **Representation.**

- [16]. Counsel, Mr. Kafeero Alexander, held brief for Counsel, Mr. Egaru Emmanuel, representing the Appellant. The Appellant was present in Court. - [17]. The Respondent neither attended the Court's proceedings nor was he represented.

#### **Considerations and Determination of the Court.**

- [18]. This Appeal, as a matter of fact, has its origins in contestations before the Local Council (LC) Courts prior to coming before the Lower (Trial) Court and ending up in this Court. Any jurisdictional matters arising must be considered by this Court at a preliminary stage to *inter alia* determine the propriety of the Appeal. The Appellant as the Plaintiff in the Trial Court had on the one hand averred in his Plaint that the dispute over the land had previously been reported to the Chairperson, Local Council Three (LC3)/Sub County for *"Mediation"* he claims was held and the Respondent *"ordered"* to vacate the suit land. The Respondent as the Defendant in the Trial Court on the other hand averred in his Written Statement of Defence that he sued the Appellant in the Local Council Two (LC2) Court over the land dispute which heard and determined the matter in his favour as owner of the suit land and ordered the Appellant to vacate the suit land and when the Appellant still declined to leave he reported the matter to the Sub County Court Committee of Lapono Sub County where it is still pending. - [19]. As far as can be discerned from the Record of Proceedings of the Trial Court, the Learned Trial Magistrate admitted in evidence at the Trial in respect of prior adjudication a decision *"Ruling"* from Lapono LC 3/Sub County **"Executive Committee"** dated 28th August, 2017 cited as Exhibit **"P. I. D.1"** and a decision *"Judgement"* from Ogole LC 2/Parish Court dated 22nd March, 2021 not cited as an exhibit – which in any event a Court would be obliged to take Judicial Notice of. At the Scheduling Conference, the Appellant admitted that the land dispute before the LC 3 /Sub County Court over the suit land was in August, 2017 - in which he claims he emerged victorious - was with the Respondent's son, Ocen Eric; while the Respondent did not address the Trial Court regarding any matter before a Local Council Court. The question of the Trial Court's Jurisdiction was not framed as an issue by either of the parties or by the Court itself *Sua Sponte*. ## **Duty of the Court as a First Appellate Court.**

[20]. **Section 80 of the Civil Procedure Act, Cap. 282** provides for the powers of this Court in considering and determining Appeals and the scope of its mandate. In a matter raised as a first Appeal, the Court is conscious of its duty to review, reconsider and re-evaluate afresh the evidence in the case as well as the materials adduced before the Learned Trial Magistrate thus effectively rehearing the case and making up its own mind without disregarding the Judgment Appealed from but carefully weighing and considering it. In considering which witness should be believed over the other, where the question turns on manner and demeanour the Appellate Court should be generally guided by the impressions made on the Trial Court which saw the Witnesses. Notwithstanding, other factors and evidence affecting the credibility of witness testimony may be re-appraised and considered by the Appellate Court warranting a divergent view even on a question of fact where it has not seen the witness. The Appellate Court will only interfere with errors of the Trial Court where the error has occasioned a miscarriage of Justice – including where the Trial Court did not take into account particular material circumstances or where the conclusions are inconsistent with the evidence on the Trial Court's Record observing that the burden of proof to be discharged to the required standard at the Trial rested with the Plaintiff. **See: Kifamunte Henry Vs. Uganda: SCCA No. 10/1997 citing with approval Pandya Vs. R (1957) EA 336, Okeno Vs. Republic (1972) EA 32, Charles B. Bitwire Vs. Uganda SCCA No. 23/1985 and SCCA No. 4/2016: Fredrick Zaabwe Vs. Orient Bank Ltd, Father Begumisa Nanensio & 3 Others Vs. Eric Tiberaga: SCCA No. 17/2000. [2004] KALR 236, Lovinsa Nankya Vs. Nsibambi: [1980] HCB 81, Manigaruha Gashumba Vs. Sam Nkundiye: CA (Court of Appeal) No. 23/2005 & High Court Civil Appeal (Gulu) No. 053/2015: Acaa Bilentina Vs. Okello Michael.**

- [21]. In considering and re-evaluating the testimony and evidence on the Record of the Trial Court, this Court observes that while the Learned Trial Magistrate observed that the major contention was in respect of the size of the suit land, there was no survey report or coordinates provided in any of the proceedings prior to this Appeal on the dimensions of the land in contest. The Plaintiff simply approximated the suit land as measuring thirty (30) acres. The Court has also observed that whilst the Appellant as the Plaintiff averred in his Plaint and at the Scheduling Conference that the suit land in contest is thirty (30) acres; the Respondent in contrast as the Defendant averred in his Written Statement of Defence that the Appellant's father had been permitted temporary use of three (3) gardens or approximately 4 ½ acres and at the Scheduling Conference stated that the Appellant had exceeded the three (3) gardens his father had been allowed to temporarily settle on. The Trial Court visited the *Locus in Quo* at Orunya Village, Ogole Parish, Lapono Sub County in Agago District and its findings will be duly considered. - [22]. In its Appellate role, this Court in re-evaluating and scrutinizing the testimony and evidence adduced at the Trial afresh has considered the Trial Court's Record and observes as follows. The Plaintiff presented the evidence of the following witnesses – - [23]. PW1, Latom Philips 58, testified that he is the Defendant's brother in law and brother of PW3 – Akello Severino. He claims ownership of the land measuring thirty (30) gardens as customary land he inherited from his father upon his death in 1979 and he has used since. In 2021 the Defendants claimed ownership and cultivated on it – of which he had previously used three (3) gardens but now claims thirty (30) gardens. He testified that his father acquired the land in 1969 from the Defendant's father who was his brother in law. There are eight (8) family graves including his mother. He is resident on the land and cultivating it.

- [24]. He tendered in evidence a *"Mediation"* document of 28th August, 2017 between himself and the Defendant's son Ocen Eric - he insisted he did not sign it. The Trial Court admitted the document as **P. I. D.1**. The Trial Court also admitted in evidence as Exhibit **P.1.** a Minute extract of 26th August, 2017 appointing him Administrator of his father's Estate. In cross examination, he denied knowledge of the case in the LC2 Court or its Judgment. In apparent contradiction, he claimed that his father gave him the land in 1969. - [25]. PW2, Ogal Joel 56, is related to both parties and a neighbour. He testified that the Plaintiff inherited about 27 - 30 acres (30 gardens) from his father which he has owned since 1969. He claims that his own grandfather, Okidi Korensio, who died in 1977 gave the land to the Defendant's father. He has a Court decision of 1973 and Letters of Administration. These were not produced. He later claims that the 1973 Court decision was in favour of his grandfather and against the Defendant's father – Okello Sivirino. This is not consistent with his earlier testimony that the Plaintiff inherited the land from his father Acuka Aldo in 1969. The Court observes that the land area of that case was not altogether clear since he did not tender any document in evidence. It is his evidence that the Plaintiff's parents and others were buried on the land. In cross examination, he did not know about any case before the LC 2 or LC 3. PW2's evidence was generally confused, contradictory, unsubstantiated and therefore not credible. - [26]. PW3, Akello Severino 67, is the Plaintiff's biological sister and the Defendant's step mother – his mother being Akot Paulina. She testified that the land measures thirty (30) gardens and belongs to the Plaintiff who acquired it from his father in 1969. The land was given to the Plaintiff's father by the Defendant's father who was her husband. The Plaintiff used the land from 1969 to 2021 while the Defendant never used it. She did not know how the Defendant's father acquired the land. In cross examination, she insisted she was present at the land give away.

- [27]. PW4, Ogwal Yasinto 60, testified that the land is customary land measuring thirty (30) acres and belongs to the Plaintiff. It was given to the Plaintiff's father by the Defendant's father. He however admits that he did not witness the land give away. He claims the Defendant did not use the land and the Plaintiff has been using the land since 1969 living and cultivating on it and with graves including the Plaintiff's mother's and others. The Plaintiff's father was buried in 1970. The Defendant's father was not buried on the land. The dispute began in 2021. In cross examination, he claimed that he knew the land area and the Plaintiff's father arrived in the area from Kenya and did not have any land but the Defendant's father welcomed him. The Plaintiff closed his case. - [28]. The Defence presented their witnesses and their testimony and evidence was as follows – - [29]. DW1, Ayang Paul 59, testified that he is the Plaintiff's nephew. It is his case that the land dispute is not thirty (30) acres but only one garden. He claims the suit land belongs to him as customary land he acquired when his father died in 2008 who had inherited it from his father. The dispute started in 2021 and he had previously been using the land without contestation – from as early as the 1980's. In 2021 the Court stopped the parties from using the land. However, in 2022 the Plaintiff began cultivating on it. He clarified that the LC2 Court of Ogole Parish in Lapono Sub County stopped the parties from using the land. He avers that there are no graves on the land and the Plaintiff is using the one garden in dispute. He avers that in 1983 the Plaintiff's father had requested his father to use a portion of land and his father allowed him to use three (3) gardens temporarily. When the Plaintiff's father died in 1985 his family left the land but returned in 1999. In 2003 the population was in IDP camps until 2007 when they returned. His father prohibited the Plaintiff's mother and her family from returning to the land which matter was before Clan elders and others.

- [30]. The Defendant presented to the Court document dated 27th September, 2007 and 7th February, 2009 later admitted on Record and marked **D. I. D.1.** and **D. I. D.2**. Later, after his father had died, his elder brother allowed the Plaintiff's mother to use a small piece of the land with her children. The Plaintiff had sold his portion of land to a certain Opot in 2021 but following a mediation the LC3 Chairperson ordered the Plaintiff to refund the purchaser which he did. Later, the Plaintiff settled on another portion of his land. He reported the matter to the LC3 Court which proceeded. While it was pending the Plaintiff filed the suit in the Trial Court. The Plaintiff also attempted to sell other portions of his land but was stopped by the Sub County Court Committee and he settled on his land. - [31]. In concluding his evidence, the Defendant reiterates that the land area in dispute is not thirty (30) acres but three (3) gardens. In cross examination, the Defendant insisted that the Plaintiff's father arrived in the area in 1983 and not 1969. Also, the *"Mediation"* was between the Plaintiff and his son, Ocen Eric – not himself as a party. He was present when the land was given to the Plaintiff's father. The Defendant conceded that he did not dispute the land area donated by his father to the Plaintiff's father measuring three (3) acres/gardens. - [32]. DW 2, Ochaya John 62, is the Defendant's elder brother. His testimony was similar to the Defendant's that the Plaintiff's father requested a portion of land in 1983 and was given three (3) gardens until he could buy his own. He died leaving the Plaintiffs mother on the land who left and later returned in 1999. After his father died in 2008, the Plaintiff's mother requested him to sell her a small portion of land but she died before the land purchase was executed. In 2021 the Plaintiff began encroaching on the Defendant's land including selling portions. The sale was stopped by Lapono Sub County (Committee) and money paid refunded by the Plaintiff. He referenced Exhibits **D. I. D.1** and **D. I. D.2**.

- [33]. DW2 insisted that the land area in dispute occupied by the Plaintiff was three (3) gardens. His father's land is for himself and his siblings. His father did not give the Plaintiff's father thirty (30) acres as a gift. During cross examination he presented in evidence translated letters in respect of the land dated 23rd September, 2007 and 7th February, 2009 which were accepted as exhibits by the Court and marked **"D. I. D.1"** and **"D. I. D.2"**. He insisted that the Plaintiff's father and later mother were allowed only temporary use of the three (3) gardens. He acknowledged there were graves including the Plaintiff's father and mother but disputed that there were eight (8) others. He averred that a matter was before an LC2 Court which the Plaintiff lost and he refunded one Opot. Lastly, he reiterates that the Plaintiff's father came to the area in 1983 and not 1969. - [34]. DW3, Acen Rose, a neighbour testified that the land belongs to the Defendant. She named the neighbours. It was her testimony that the Plaintiff's father came to the area in Acholiland from Turkana in Kenya entering Ogole Village, Ogole Parish, Lapono Sub County in Agago District and the land in that area belonged to the Agoro Clan. He was allowed to temporarily use land measuring three (3) gardens by the Defendant's father as his in law. Later they went to Labwor but returned. The Plaintiff's father and mother died and were buried on the land. In cross examination, she insisted that she had seen the Plaintiff's family when they settled in the area and she also insisted that the Turkana do not have land in Acholiland. The Defendants closed their case. - [35]. The Trial Court visited the *Locus in Quo* on the 7th November, 2022, recorded the persons present and allowed both the Plaintiff and Defendant to explain the features on the land. The Court observed the features explained by the parties with the Plaintiff showing the Court two (2) houses in the trading centre, his home opposite a commercial building, shea nut and other trees and his neighbours on the land.

- [36]. The Court also observed the features explained by the Defendant who showed the Court an area of land over which he had a dispute with Ogal Joel - PW2 in an LC2 Court and with persons the Plaintiff sold land to. He told the Court he has two (2) houses which have been on the land for a long time and showed the Court a large house he had given to a Otim Daniel. - [37]. The Court will now consider the grounds of Appeal commencing with consideration of the finding of the Trial Court in relation to the stated Adjudication by the Local Council Courts. - [38]. **Ground 2 - The Learned Trial Magistrate erred in Law and in fact when he based his decision solely on an illegal, untenable and unclear decision of the LC 2 and held that the suit land belongs to the Respondent because the Appellant did not challenge the LC 2 Court Judgment in favour of the Respondent thereby occasioning a miscarriage of Justice.** - [39]. The Appellant correctly observed that in his Judgment the Learned Trial Magistrate in considering the matter of ownership of the suit land entirely relied on and adopted the decision in the adjudication by the Ogole Parish/Local Council Two (LC2) Court dated 22nd March, 2021 (not 2022) - which a Court would be obliged to take Judicial Notice of. The Learned Trial Magistrate also noted the decision of Lapono Sub County/Local Council Three (LC3) "Executive Committee" dated 28th August, 2017 **P. I. D.1.** involving the Plaintiff and the Defendant's son and the Defendant himself admittedly was not a party. - [40]. In the LC3 decision the Plaintiff had emerged successful against the Defendant's son on the basis that since the Defendant's father Okello Sivirino had given the land in the matter to the Complainant's (Plaintiff's) mother - in accordance with Acholi custom in regard to land once it is donated it cannot be retracted; while on the other hand, the LC2 Court determined that the Defendant owns the land.

- [41]. The core of the Learned Trial Magistrate's decision was that the Trial Court did not have Jurisdiction to confirm or invalidate (set aside) the decision of Ogole LC2 Court which had adjudicated the matter – **"as a Court of first instance"**. Therefore, the LC2 Court's determination that the Defendant (Respondent) was the rightful owner stood un-assailed. Moreso, since no Appeal contesting the LC2 Court's decision was instituted before an LC3/Sub County Court in its Appellate mandate. This was the extent of the entire Judgment. - [42]. The Learned Trial Magistrate in his Judgment did not address or give any reason why he considered the LC2 decision over the LC3 decision - which LC3 decision in any event preceded the LC2 decision and was similarly uncontested on the basis of Jurisdiction, or any other ground. It may, however, be deduced that the rationale was because the provisions he cited outlined earlier stipulated the LC2 Court as the **"Court of first instance"** and the role of the LC3 Court was more obscure – much as it directly affected the Defendant's land rights, even though he was not a party. It is not disputed that the land subject of the decisions of the LC2 and LC3 Court was the same land in dispute before the Trial Court. - [43]. A review of the Statutes applicable as well as the Legislative history concerning Local Council Courts indicates that initially Jurisdiction to entertain land disputes stipulated in the Schedules was conferred on Executive Committee Courts (initiated in the lowest competent grade) by virtue of the **Executive Committees (Judicial Powers) Act, then cited Cap. 8** - which commenced in 1988. Later, the **Land (Amendment) Act, 2004 incorporated Section 76A (1)** curiously providing that the Parish and Ward Executive Committees would be Courts of first instance in land disputes. Much as it was not a direct amendment of the specific Statute providing for Local Council Courts, it introduced the notion that both the LC1/Village Courts and LC2/Parish Courts had concurrent first instance Jurisdiction in land matters. Albeit seemingly by infection.

- [44]. The **Executive Committees (Judicial Powers) Act** was repealed and replaced by the **Local Council Courts Act, 2006**. **See: Section 50**. - [45]. **Section 11(1) of the Local Council Courts Act, 2006** provided that every suit shall be instituted in the first instance in a LC1/Village Council Court with Jurisdiction. This position established in 2006 still subsists todate. **See: Section 10(1) of the revised Local Council Courts Act, now cited as Cap. 18**. - [46]. In **Civil Revision No. 7/2011 (Mbale): Mutonyi Margret Wakyala & Others Vs. Tito Wakyala & Others**, this Court concurs with, the Hon. Justice Stephen Musota on the apparent concurrent first instance Jurisdiction of LC1 and LC2 Courts determined that since the **Local Council Courts Act, 2006** was the latter Statute an application of statutory interpretation would cure the absurdity and the latter Statute being the **Local Council Courts Act, 2006** - which did not incorporate such a provision in regard to LC2 Courts being of first instance would prevail over the earlier Statute being the **Land (Amendment) Act, 2004**. - [47]. More recently, it is noteworthy that the provision in regard to Parish/Local Council Two (LC2) Courts being of first instance is neither retained nor incorporated in either the **Local Council Courts Act, Cap. 18** or the **Land Act, Cap. 236** by virtue of the **Law Revision Act, Cap. 3** and **Statutory Instrument No. 049/2024: The Law Revision (Commencement of the 7th Revised Edition) (Principal Laws) Instrument, 2024**. It is a dead letter of the Law. - [48]. That said, this Court finds that at the time of instituting the adjudication before the Ogole Parish/LC2 Court in 2021 and the Lupono Sub County/LC3 Court in 2017 neither Court had the Jurisdiction to entertain the dispute over the suit land as a Local Council Court of first instance. It is trite that a purported exercise of Jurisdiction not conferred on a Court by Statute is an illegality. In the circumstances, the *"Ruling"* of Ogole Parish Court and *"Judgement"* of Lupono Sub County Court are a nullity *ab initio* for want of Jurisdiction. - [49]. In so determining, this Court is conscious of **Section 39 of the Local Council Courts Act, Cap. 18** (formerly **Section 40 of the Act, 2006**) which accords Chief Magistrate's Courts supervisory powers over Local Council Courts on behalf of the High Court under authority conferred by the **Judicature Act**. Being a delegated power of the High Court, this Court would in its own right be mandated to exercise the same power. - [50]. Similarly, this Court is also conscious of its duty under **Order 43 Rules 20, 26 and 27 of the Civil Procedure Rules, SI 71 – 1** to resolve all matters having sufficient evidence on Record with completeness and finality in the spirit of bringing litigation to a conclusion and in the interests of ensuring Judicial economy. **See: CACA No. 212/2020: Ellis R. Kasolo Vs. Security Group (U) Ltd, Peters Vs. Sunday Post Ltd [1958] EA 424, Selle & Anor Vs. Associated Motor Boat Co. & Others [1968] EA 123 and King Vs. Thomas [1914] 2 KB 99.** This would serve to needlessly order a Re-Trial. - [51]. In the circumstances, the Court will therefore proceed to resolve the remaining grounds of Appeal raised in the Memorandum of Appeal relating to the claims of ownership and trespass on the basis of the evidence on the Record of the Trial Court which has already been extensively outlined herein-above.

**Ground 1: The Learned Trial Magistrate erred in Law and in fact when he failed to properly evaluate and scrutinize the evidence on Record thereby reaching a wrong decision that the suit land belongs to the Respondent thereby occasioning a miscarriage of Justice.**

**Ground 3: The Learned Trial Magistrate erred in Law and in fact by ignoring the Appellant's relevant evidence both in Court and during the Locus in Quo visit including developments and features confirming the Appellant's evidence and failing to properly conduct the Locus in Quo visit thereby reaching a wrong decision and Judgment.**

**Ground 4: The Learned Trial Magistrate erred in Law and fact by totally disregarding all the relevant Laws including the Law on Limitation thereby reaching an erroneous decision/Judgment thus occasioning a miscarriage of Justice.**

**Ground 5: The Learned Trial Magistrate erred in Law and in fact when he ignored the relevant evidence on trespass and failed to find that the Respondent had trespassed on the suit land based on the evidence adduced in Court thereby occasioning a miscarriage of Justice.**

- [52]. This Court has duly scrutinized the Trial testimony, evidence and exhibits as well as the pleadings and other documents admitted on the Record of the Lower (Trial) Court and finds that it is sufficient to dispose of the Appeal on its merits. - [53]. Firstly, a major contention at the Trial as correctly observed by the Learned Trial Magistrate was in respect of the size and acreage of the suit land with the Appellant claiming thirty (30) acres and the Respondent after initially denying any entitlement by the Appellant eventually conceded to him three (3) gardens or 4 ½ acres of land on which he is resident together with his family and has the graves of his father, mother and other relatives. This Court has previously held that the burden of precisely establishing the dimensions and acreage of any land for purposes of litigation moreso in respect of customary land which is often unsurveyed and unregistered lies on the party intending to establish a claim over the land and any ambiguity arising including guess work is resolved in favour of the adverse party by virtue of rendering the claim incompetent. It is therefore expected that a vigilant litigant will exhaust every measure to clearly define the land subject of their claim or they risk the peril of their claim failing and being subject of *Res Judicata*. At the outset, therefore, this Court has no difficultly in finding that the Appellant as the Plaintiff failed to establish an entitlement to thirty (30) acres of land as claimed in his Plaint and stated in his testimony.

- [54]. Secondly, the Court scrutinized the modes of acquisition of the suit land as claimed and testified to by each of the respective parties. The Court observed in respect of the Appellant as the Plaintiff, on whom the burden of proof at the Trial lay, that he asserts two (2) main conflicting claims as to how he acquired the suit land - on the one hand claiming that his late father Acuka Aldo gave him the land in 1969 which he has since cultivated; and, on the other hand claiming that he acquired the suit land upon the death of his father in 1979. The latter version of his claim is undermined by his third claim yet - to have inherited the land from his late father upon his demise in 1969. A fourth version of his claim is that his father acquired the land in 1969 having been given the land by the Defendant's father Okello Sivirino which he later inherited. In 1969 the Plaintiff would have been five (5) years old. The Court observes that in his testimony on oath at the Trial he initially maintained the fourth version of his claim that his father was given the land in 1969 by the Defendant's father and he inherited it in 1979 upon the demise of his father but later in cross examination he contradicted that position claiming his father gave him the land in 1969. - [55]. PW2's testimony as already observed by the Court is not credible. PW3 is the Plaintiff's biological sister and the Defendant's step mother. She testified that the Plaintiff acquired the land in 1969 from their father. The land was given to their father by the Defendant's father. She averred that the Plaintiff had used the land since 1969. She claims to have been present when the land was given away. She would have been fourteen (14) years old at the time. PW4 admitted that he did not have any direct knowledge of how the Plaintiff acquired the land much as he insisted that the Plaintiff acquired the land in 1969 from his father - who had arrived in the area from Kenya and was welcomed by the Defendant's father. Interestingly, it was his evidence that the Plaintiff's father was buried in 1970.

- [56]. It is apparent that the Plaintiff's evidence was in itself contradictory and unreliable and in fact pointed to deliberate untruthfulness. He could not make up his mind on how he came to acquire the land. Considering that the testimony of PW2 and PW4 was of limited value for the reasons given, the only other testimony of some value was that of PW3. Her stature as the Plaintiff's sister and the Defendant's stepmother would *prima facie* lend credibility to her testimony. This is however not supported by the Plaintiff's vacillating testimony and evidence. Her testimony will therefore need to be examined in context. - [57]. The Defendant's claim to the land is by acquisition through inheritance upon the demise of his father in 2008. This was corroborated by his elder brother PW2. The Defence testimony and evidence was consistent and credible. - [58]. The Court observes it is generally not disputed that the Defendant's father gave land to the Plaintiff's father. The contentions are in regards to its size in acreage and whether it was given temporarily or permanently. A core element arising from the testimony is when and this can be ascertained by considering the timelines when the Plaintiff's father arrived in the area and the year of his demise. The Plaintiff cites the year of his father's death sometimes as 1969 (in claiming inheritance then or alternately gift) and at other times as 1979 in his testimony on oath and pleadings. PW3 did not cite the year. PW4 testified that the Plaintiff's father was buried in 1970. The Defendant testified that the Plaintiff's father died in 1985 while DW2 indicates that it was in the 1980's shortly after he arrived in the area in 1983. In cross examination by the Plaintiff of the Defendant's witnesses he did not controvert their testimony that his father arrived in the area in about the 1980's which was when he was given the land to use by the Defendant's father and died shortly after in the 1980's. In any event, clearly the Plaintiff's claims of inheritance in 1969 and alternately being gifted the land in 1969 are similarly patently false. His father was not on the land at the time.

- [59]. Further, the Court has given due consideration to the Defendant's exhibits D. I. D.1. and D. I. D.2. D. I. D.1. of the 23rd September, 2007 corroborates the Defendant's testimony that his father Okello Sivirino permitted the Plaintiff's family temporary use of the land. D. I. D.2. of the 7th February, 2009 in turn corroborates DW2's testimony that after the death of their father in 2008 the Plaintiff's family requested and was permitted to temporarily use the land. - [60]. In regard to the *Locus in Quo* visit, the Court duly observed the developments on the land of the parties who had an opportunity to address the Court at the *Locus*. The Appellant was clearly in possession of some of the areas observed by the Court. The Learned Trial Magistrate observed from the *Locus in Quo* visit that the Defendant and his brother's land surround the area the Plaintiff occupies – not otherwise, as claimed. At the *Locus* the Defendant again conceded that he would not assert any claim over the land his father had given the Plaintiff's father said to measure three (3) gardens or 4 ½ acres on the Eastern side of the road. - [61]. In sum, upon duly considering the testimony and evidence on the Record of the Trial Court, this Court finds that the Plaintiff has entirely failed to prove ownership of the suit land. Instead, the testimony and evidence establishes that the Defendant's family allowed the Plaintiff's parents temporary use of a portion of land on which the Plaintiff continues to reside todate and on which his parents and other relatives were buried. The Plaintiff's claims of inheritance from his late father or alternately that he was gifted the land by his late father are false. As such, the claim of trespass against the Defendant has no merit and is hereby dismissed. In regard to the claim of limitation by the Plaintiff in respect of claims of ownership under the Limitation Act, the Court finds the argument misconceived. On the one hand no Counter-Claim was lodged by the Defendant and in respect of his own case the Court has already dismissed his claims of acquisition by inheritance or alternately by gift as patently false.

- [62]. In conclusion, in respect of the land measuring three (3) gardens or approximated at 4 ½ acres which the Respondent averred that he would not assert any claim over and on which the Appellant's father, mother and other relatives were buried on, the Appellant will retain possession of the said land only - as conceded to by the Respondent. - [63]. Having considered the Memorandum of Appeal, the Judgment and Proceedings of the Trial Court, the testimony and evidence of the respective witnesses, the Pleadings of the respective parties in the Trial Court and the Submissions filed on the Record of the Court; this Court finds that the Appeal substantially fails for the reasons outlined under the respective grounds. Noting that the Respondent did not attend these proceedings on Appeal and the matters of public interest arising in regards to Jurisdiction of the Local Council Courts, each party shall bear their own Costs in this Court and in the Lower (Trial) Court.

## **Orders of the Court.**

- [64]. Accordingly, the Court makes the following Orders: - 1. The Appeal substantially fails and is hereby dismissed. - 2. The Appellant failed to establish ownership of the suit land. - 3. The Appellant failed to establish trespass by the Respondent. - 4. The Appellant shall retain possession of the three (3) gardens approximated as 4 ½ acres - as conceded to by the Respondent. - 5. The respective parties shall bear their own Costs in this Court and in the Lower (Trial) Court.

It is so Ordered.

**Signed and Dated on the 17 th day of February, 2025. (High Court, Kitgum).**

**Philip W. Mwaka**

**Acting Judge of the High Court.**

## **Delivery and Attendance.**

This signed and dated Judgement, upon the instructions of the presiding Judge, shall be delivered to the parties electronically by the Deputy Registrar, High Court Kitgum Circuit on **Monday, the 17th day of February, 2025 at 10:00am**. Certified copies of the Judgement shall be retained on the Record of this Court for the benefit of and to be availed to the respective Parties.

| 1. | Counsel for the Appellant | - | Counsel, | Mr. Kafeero Alexander | |----|-----------------------------|---|---------------------------------|-----------------------| | | | | Holding<br>Brief<br>For | | | | | | Counsel,<br>Mr. Egaru Emmanuel. | | | 2. | The Appellant | | - | Mr. Latom Philips. | | 3. | Counsel for the Respondents | | - | NIL | | 4. | The Respondent | | - | Mr. Anyang Paul | | 5. | Court Clerk, present | | - | Mr. Atube Michael. | | | | | | |

**Philip W. Mwaka**

**Acting Judge of the High Court.**

**17th day of February, 2025**