[2024] UGHC 627

The Republic of Uganda

In the High Court of Uganda at Soroti

Civil Appeal No. 0050 of 2023

# (Arising from Civil Suit No. 0016 of 2019)

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1. Malinga Nathan

2. Okello Gabriel 10

$5$

#### Versus

Aguti Perepetua ::::::::::::::::::::::::::::::::::::

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

### Judgement

#### 1. Introduction. 15

This appeal arises from the judgment and orders of the Chief Magistrates Court of Katakwi at Katakwi delivered on the 28^th of April 2023 by His Worship Justine Olal Gumtwero, Chief Magistrate.

## 2. Background.

- The respondent filed Civil Suit No. 0016 of 2019 against the appellants jointly and 20 severally for recovery of land measuring approximately 11 gardens situated at Olupe village, Ongema parish, Usuk sub-county in Katakwi district, eviction of the appellants therefrom, a permanent injunction, general damages for trespass and costs of the suit. - Her claim by amended plaint dated 26^th April 2021 was that she is the 25 administrator of the estate of her late husband Morulem John Fabian vide

Administration Cause no. 38/2018 and the estate comprises customary land $5$ measuring approximately 100 acres.

ŝ.

That this land belongs to the Isorei Clan which the respondent's husband also inherited from Abarimo Etwani Ekolo.

That Ocailap Zephania, a kinsman of the appellants and who was a parish chief was given some land by the father of the respondent's husband Abarimo Etwani 10 Ekolo.

That the appellants are of the Atekok Imagoro clan which is separate and distinct from the respondent's husband's clan and the land given to Ocailap is distinct from the respondent's land by a cattle path which has now been upgraded to a road from Usuk sub county to Aojabule Primary School.

That the father of the 1^st appellant stayed on the land given by Ocailap where there is no dispute and when he died that is where he was buried.

She further claimed that the father of the 2^nd appellant called Akileng Nasanari stayed on the suit land as a herdsman for Ekolo and Ocailap whose cattle were

herded together but left when his services were no longer required and settled 20 in Ongongoja.

Akileng's brother Ariko Jackson stayed on part of the suit land after misunderstandings with his kinsmen and he died on the suit land as a refugee leaving his son Akileng Peter on the land.

That in 2019 the respondent filed a suit against Akileng Peter and Malinga Nathan 25 and Akileng accepted to surrender part of the suit land as a result he was dropped from the case.

That in spite of the clear boundary between the land given to Ocailap, the 2^nd appellant who hails from Angodingod village, Angodingod parish, Angodingod

$\mathbf{2}$

sub county, Toroma County in Katakwi district on learning of the settlement $5$ between the respondent and Akileng Peter on or about 16/9/2020 entered upon and started erecting a home on the land vacated by Akileng Peter measuring 6 gardens and the 1^st appellant has persisted in an on and off cultivation of 5 gardens of the suit land knowing the same does not belong to Ocailap their 10 kinsman.

The appellants in their Joint written statement of defence denied the above allegations contending that they are the rightful owners of the suit land having obtained the same by way of inheritance from their late fathers (the 1^st appellant inherited from his father Ojulun George William upon his death in 1999 and the 2^nd appellant from the late Akileng Eugenio upon his demise in 2000) who also inherited the same from the defendants grandparents Ocailap Zephania, Akabwai Alias Erakac and Akileng Nasanairi.

That the appellants have been in possession of the suit land since they inherited the same from their late parents and the same is for the Atekok Alungar clan.

20 They further contended that the suit land was given to their late grandfather Zephania Ocailap as a gift inter vivos by the late Mzee Ekolo in 1916 which he immediately took possession of and the two parties became neighbours.

That Akileng Peter had no authority to give the respondent 6 gardens as the same belongs to the 2^nd appellant.

25 The appellants further filed a counter claim against the respondent wherein they sought a declaration that all the land granted to their grandfather Zephania by Mzee Ekolo in 1916 is a gift inter vivos this title and interest to such land passed to Zephania Ocailap when he took possession of the same in 1947, his

descendants inherited the suit land. They also sought an order of a permanent $\mathsf{S}$ injunction as against the respondent.

The facts constituting their counter claim are that they are the occupants of the suit land measuring approximately 100 acres and they were born on and have utilised the suit land all their lives having inherited the same from their fathers who inherited from their grandfathers Ocailap and Akabwai.

That the appellants have lived peacefully in the suit land and are the third generation to have possession of the same and have coexisted with the family and clan of Mzee Ekolo including the respondent. That they were not aware or involved in the dealings and agreements between Akileng Peter and the respondent.

The respondent in reply to the appellants' written statement of defence and counter claim denied the contents of the WSD save for admitting that she made a mistake on the name of the $2^{nd}$ appellant.

She maintained the averments in her plaint, adding that Akileng Peter admitted his and his late father's presence on the land was through encroachments and 20 entered a settlement with the respondent.

She further stated that the family members of Akileng Peter are the only one buried on the suit land and the said Akileng Peter has since relinquished his claim on the suit land.

She added that the counter claim is uncalled for as the appellants are laying claim 25 to land which was not given to Ocailap and it is not true that the suit land is 100 acres or that the $2^{\ensuremath{\mathrm{nd}}}$ appellant ever occupied any area in the land but was a resident of Angodingod about 20kms away and it was his recent intrusion onto the suit land which prompted his inclusion to the suit.

She maintained that there is no dispute over the land gifted to the said Ocailap $\mathsf{S}$ whose boundary is marked by the cattle path and now upgraded road which the appellants have refused to honour.

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

- a) A declaration that the suit land measuring about 11 gardens belongs to the 10 plaintiff. - b) A declaration that the defendant(s) and all those claiming through them are trespassers on the suit land. - c) An order for vacant possession/recovery of the suit land. - d) A permanent injunction against the defendant(s). - e) Plaintiff is awarded general damages of Ugx 5,500,000/=. - f) Costs of the suit is awarded to the plaintiff.

The appellants dissatisfied with this judgement and orders appealed to this court on the following grounds;

- 1. The Learned Trial Magistrate erred in law and fact when he failed to 20 properly evaluate the evidence on record as a whole in regards to ownership of the suit land and came to a wrong conclusion that the respondent is the rightful owner of the suit land whereas not. - 2. The Learned Trial Magistrate erred in law and fact when he ignored the contradictions and inconsistencies in the Respondent's case but nonetheless found the respondent as the lawful owner of the suit land thereby prejudicing the Appellants. - 3. The Learned Trial Magistrate erred in law and fact when he failed to find that the respondent's suit against the Appellants was barred by limitation. - 30

4. The decision of the trial Magistrate occasioned a miscarriage of justice.

## 3. Duty of the 1^st appellate court.


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

The duty of the first appellate court was well stated by the Supreme Court of Uganda in its landmark decision of *Kifamunte Henry Vs Uganda, Supreme Court Criminal Appeal No. 10 of 2007* where it held that;

"...the first appellate court has a duty to review the evidence of the case and 15 to reconsider the materials before the trial judge. The appellate Court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it"

In rehearing afresh, a case which was before a lower trial court, this appellate court is required to make due allowance for the fact that it has neither seen nor 20 heard the witnesses and where it finds conflicting evidence, then it must weigh such evidence accordingly, draw its inferences and make its own conclusions. See: Lovinsa Nakya vs. Nsibambi [1980] HCB 81.

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

4. Representation. 25

> The Appellants were represented by Cumberland Advocates while the respondent was represented by Opio & Co. Advocates.

- 5. Determination. - a) Grounds 1 & 2. - The Learned Trial Magistrate erred in law and fact when he failed to properly evaluate the evidence on record as a whole in regards to ownership of the suit land and came to a wrong conclusion that the respondent is the rightful owner of the suit land whereas not. - The Learned Trial Magistrate erred in law and fact when he ignored the contradictions and inconsistencies in the Respondent's case but nonetheless found the respondent as the lawful owner of the suit land *thereby prejudicing the Appellants.* - Counsel for the appellants submitted that there were contradictions in the 15 evidence of the respondent and PW2 Akileng Peter regarding the size of the suit land, these contradictions extended to the respondent's pleadings. Counsel submitted that in her original plaint pleaded that the suit land was 30 acres, her amended plaint indicated 11 gardens and in paragraph 5 of the amended plaint she stated that she is the administrator of the estate of the late Morulem John 20 - Fabian which comprises of 100 acres.

However, in her testimony she stated that the land in issue measures 12 gardens which she later confirmed was 11 gardens in cross-examination.

Counsel for the appellants in his submissions focuses on the testimony of PW2 whose evidence he claims the trial magistrate gave a lot of weight yet the 25 evidence of the appellants was generally unrebutted or challenged in crossexamination.

Counsel added that the respondent in her pleadings pleaded that the suit land belongs to the Isorei Clan but she never invited the clan leaders or LC1 members to testify on her behalf. That instead the respondent tactfully chose to use

$5$

witnesses whom she knew very well would support her to take away the $\mathsf{S}$ appellants' land.

Counsel for the respondent in reply basically adopted the judgment of the trial magistrate in his submissions and I will not reproduce the same here, but the essence of his submissions is that the trial magistrate rightly evaluated the evidence on record and found for the respondent.

b) Evidence on record.

PW1 Aguti Perepetua testified that she inherited the suit land from her late husband Morulem Fabian and he also inherited it from Abarimo Itwani Ekolo.

She sued Malinga Nathan and Akileng Peter whom she entered a settlement with and he was struck off, Okello Gabriel came later.

Okello was in Angodingod when she drafted a settlement with Akileng Peter and he was her witness in the matter she filed in court against Malinga Nathan and Akileng Peter but after she settled the matter with Akileng Peter, Okello entered the land in 2021.

- The suit land is 11 gardens with Okello occupying 6 gardens while Malinga 20 occupies 5 gardens which he entered in 2017, there are no houses on the suit land, the 1^st appellant stays in Olupe village about 200 meters from the suit land. She further stated that the grandfather of the appellants Ocailap Zephonia was a parish chief and was given land approximately 70 acres by Ekolo but this land does not extend to the suit land, these 70 acres are separated from the suit land 25 - by a road which come Usuk Sub-county to Awojagule Primary school, which road she has seen for 50 years.

When she got married to Morulem in 1968, the appellants' relatives were living on the western part of the road to Olupe which is where the father of the 1^st

 appellant is buried and their relatives never used the land on the eastern side of $\mathsf{S}$ the road

That it was Akileng's father who stayed on the eastern side of the road and he was given land approximately 22 gardens by Abarimo Itwani Ekolo but when Akileng's father died he was buried in the western part of the road.

During cross-examination he stated that the dispute between her late husband 10 and the appellants began in 2008, the appellants have not been on the suit land for over 20 years. She further stated that the 2^nd Appellant has one house on the suit land which he built which during re-examination she stated he built in 2021.

PW2 Akileng Peter testified that the PW1 inherited the suit land from her late husband Morulem and when she sued him he understood properly that the said 15 suit land was not his or his father or the father of Okello Gabriel.

That he surrendered the said land to the respondent, they entered a consent where they divided the land, the respondent recovered six gardens and when she did so the 2^nd appellant was not utilising the land he was in Angodingod, he only started utilising the suit land in 2021.

He testified that his father Ariko Jackson was given the land by Ekolo because he had taken refuge there. He added that when Ocailap came from Magoro as a parish chief, Ekolo who was his friend gave him land across the road and he later went back to Magoro.

During cross-examination he stated that he realised growing up that the suit land 25 belongs to the respondent, but his father was alive and he could not interfere with the said land.

He was only using the land because the respondent had not sued him, Morulem asked for his land in 1993 but his father was still around.

He comes from the Atekok clan same as the appellants but Morulem was from $5$ Isore Imalera. He further stated that from 1986 to 2003 the 1^st appellant was not on the suit land.

He knows Akileng Eugenio and he has never stayed on the suit land, the 1st appellant came on the land after the death of Morulem while the 2^nd appellant

entered the land in 2021 and entered the six gardens he had surrendered to the 10 respondent.

PW3 Akileng Matthew stated that the only thing he knew about the land was the road in-between.

PW4 Manio Mary Magdalene testified that the respondent is her sister in law who married her brother Morulem. 15

That the suit land belongs to the respondent who inherited from her husband in 2017 when the clan sat and asked her to take charge of her late husband's land. Morulem inherited the land from their father Itwani Ekolo in 1987.

That the homes of the appellants are on the west and respondent in the east and there is a road in-between coming from Usuk towards Aujabule and this road has

been there from when she started to work to date.

She further stated that when she was 6 years, her grandmother told her that the appellants occupied the western side.

That their grandfather Ocailap was a parish chief from Magoro and he became Ekolo's friend and was given land by Ekolo which land was demarcated by a road 25 which stretches from Usuk sub county to Aujabule.

That she has known the existence of this road since she was 5 years old and in 1958 she got so familiar with it because it was on the way to Usuk Girls School.

During cross-examination she stated that she left for Serere in 1974 and by this $\mathsf{S}$ time the appellants' family were not cultivating the land.

That the fathers of the appellants Ojulun George and Akileng Eugenio have never been on the suit land.

DW1 Malinga Nathan testified that the 5 gardens he was sued over are his having inherited them from his father Ojuluna George in 1999 and his father inherited 10 the land from Akileng Nathaneri.

That he has been in possession of the suit land for over 30 years since he was born and even the respondent's late husband knew of his interest in the suit land and never claimed it.

That the first time the respondent claimed the land was in 2018 when she tried 15 to mediate with them, Akileng their brother secretly agreed with her and gave her land which did not belong to him.

That the land Akileng gave the respondent was an old homestead belonging to the 2^nd appellant comprising 6 gardens. He claimed that there were 4 homesteads

and families utilising the suit land, that is Malinga Nathan, Ojuru Pampas, Okello 20 Gabriel and Akileng Peter however, Ojuru was not sued.

He stated that he knows the respondent's husband is Morulem, he does not know how he got the land but he was told the father to Morulem is the one who gave their grandfather Ocailap land, Ocailap then gave the land to Akileng Nathaneri

who later produced his father. 25

> During cross-examination he stated that in 2019 the 2^nd appellant was brought as a witness to the suit the respondent filed against him and at that time he was resident in Angodingod.

He confirmed that the 2^nd appellant is now staying on the 6 gardens that Akileng $5$ surrendered to the respondent.

That it is not true that all the descendants of Ocailap are on the western side of the road, there is Ariko Jackson.

He admitted to not knowing the history of the land his kinsmen are occupying to the west because he was not born by then. 10

DW2 Okello Gabriel testified that he is the owner of 4 gardens out of the 11 and he got his four gardens from his father Akileng Eugenio in 2000 when he passed on. He does not know how much land he owns as a person because the land has not been divided between him and Akileng Peter his cousin so they use the land

communally. 15

> That he was present in the mediation and they agreed that everyone goes back where they were staying before so he was surprised when he heard that the matter is still in court and that Akileng gave out land.

> That he was on the suit land from birth till 2003 when he fled the insurgency and

returned in 2018, he denied being added to the suit land upon commencing 20 construction on the suit land.

He claimed to be in possession of the suit land by the time Akileng gave it to the respondent.

DW3 Ojakol George William testified that the suit land belongs to the appellants having inherited the same from their parents. 25

That when he was the LCIII in 1986 he found that the father of the 1^st appellant was in possession of the suit land and the respondent was in possession of her current homestead.

He confirmed that the portion of land that Akileng handed over to the respondent $\mathsf{S}$ is the one the $2^nd$ appellant is now claiming.

During cross-examination he stated that he does know the size of the suit land or the size of land each of the appellants is claiming and he did not know how the appellants' parents acquired the suit land.

He claimed by the time Akileng gave land to the respondent the home of the 2^nd 10 appellant was already thereon.

He admitted that there is a road from Usuk to Ongongoja and the suit land is to the east of the road and Awojabule is a school along this road, he added that this road existed when he was the RCIII.

However, in his testimony he claimed the suit land is Aryamareng village, 15 Okoritok Parish, Usuk Sub county in Katakwi district which is different from the actual location of the suit land that is situate in Olupe village, Ongema parish, Usuk sub-county in Katakwi district.

Furthermore, as noted by the trial magistrate DW3 claimed to the LCIII in 1986 in a period where local leaders were RCs.

His testimony was therefore riddled with lies that cannot be accepted by this court in the determination of this appeal.

DW4 Ocailap John Robert testified that the suit land belongs to the appellants who inherited it from their parents, he added that it belongs to them because

their old homesteads are on the same. 25

He stated that the part of the suit land occupied by the 2^nd appellant is the same that was surrendered to the respondent by Akileng.

That none of the respondent's family have ever used the suit land in their lifetime $5$ and none of their relatives are buried thereon.

When the trial court sought clarification on this point he stated that the suit land is separated from the side of the appellants by Usuk-Ongongoja road and the said road has been in existence since 1979 when the camps were created and people used to use it to access the camps.

$10$

That the old homesteads testified about by this witness were never seen by court at locus and even the 1^st appellant who claimed to have been born on the suit land failed to prove this at *locus in quo* which showed Malinga's home on the west of the suit land.

**Court visited locus in quo** and found that indeed Usuk-Ujabule road separates the 15 suit land from the side of the appellants who are on the west.

The 1^st appellant's home together with that of his other relatives were to the west and they admitted their relatives were buried on the west, the respondent and her relatives including the suit land are to the east of this road.

The appellants were found to be using the suit land. There was no proof that the 20 appellants' fathers ever lived on or used the suit land.

The respondent's claim to the suit land is through her late husband Morulem who inherited the same who got the same from Abarami Etwani Ekolo and when she married Morulem in 1968 he was in use and occupation of the suit land.

The appellants' claim is through their parents Ojuluna George William and Akileng 25 Eugenio who also inherited the same from their grandparents Ocailap and Akileng Nasanairi.

Both the appellants and the respondent admit that Ekolo gave Ocailap land when $\mathsf{S}$ he came to their village as parish chief and it is this land that the appellants claim their parents inherited and later passed on to them.

It should be noted that the respondent does not claim this land and it is not the subject of dispute, the only contention is that the appellants claim the suit land is part of the land given to their grandfather Ocailap.

The respondent who was 75 years at the time of the hearing stated that when Ocailap came as a parish chief he was a friend to Ekolo who gave him approximately 70 acres of land which was separated from his own land by the road from Usuk to Awojagule Primary School.

She maintained that the land given to Ocailap and his descendants was to the 15 west of this road and the same was corroborated by PW4 the sister of the late Morulem who stated that the homes of the appellants are to the west of the road and her grandmother told her how Ocailap was given land by Ekolo.

From the testimonies of witnesses and the finding of the trial court while at locus, I find that this road from Usuk to Aujabule is key to the determination of this 20 matter, despite the appellants' claim that it was recently created the evidence on record including that of DW3 and DW4 shows that this road has been in existence for over 50 years.

The fact that the suit land is on the east of this road is not in dispute and was confirmed at the *locus in quo* visit. 25

Also the fact that the appellants' family and relatives are on the west of this road is not in dispute and the presence of Ariko Jackson on the east of this road was sufficiently explained and proved by the respondent and PW2 his son.

These facts being so proves the respondent's claim that the land given by Ekolo $5$ to Ocailap is distinguishable from the suit land which Ariko was occupying and the appellants had no claim to the land Ariko occupied because it was never part of the 70 acres donated to Ocailap.

PW2 Akileng Peter clearly stated in his testimony that his father was given land by the late Ekolo as Ariko had taken refuge there.

PW2 further in his testimony admitted that growing up he realised the suit land was not for his father but for the respondent and that is why when he was sued he surrendered the same to her. He even stated that the late Morulem tried to recover the suit land in 1993 but his father Ariko was still alive and the attempt

was unsuccessful. 15

He also disproved the 2^nd appellant's claims that his father Akileng Eugenio was ever on the suit land as well as the presence of the 2^nd appellant on the suit land from 1986 to 2003.

The appellants on the other hand did not know the history of the suit land and 20 admitted as much.

They only claimed the same because they contend it was part of the land given to Ocailap.

The 2^nd appellant clearly only came to the suit land in 2021 after PW2 entered a consent with the respondent and so I find that his claims to have been on the suit

land prior to the insurgency were not proved and as confirmed to by the 25 respondent and PW2. Actually he was in Angodingod.

His claims that he was in possession of the suit land at the time PW2 gave the same to the respondent were also not proved and the same were not logical as noted by the trial magistrate for if indeed the $2^{nd}$ appellant was on the suit land at the time PW2 entered a consent with respondent and the area authorities $\mathsf{S}$ convened to plant the boundaries he would have raised a complaint or even filed a suit against the respondent and PW2 but he did not.

I further note that the 2^nd appellant claimed that he took the respondent and PW2 to police over the consent, however, his claim of not having any police SD reference in that regard points to more lies on his part.

It should be noted that the 2^nd appellant in his testimony stated that the suit land was communally owned and he did not know how much he individually owned which DW4 contradicted when he stated that the land was subdivided in 2018.

I agree with the trial magistrate that the 2^nd appellant claimed the land was owned communally because he had no evidence putting his father on the same. 15

I agree with the trial Magistrate's finding that the suit land was never given to the respective families of Akileng Nasaneri and Akileng Eugenio but to the late Ariko Jackson.

As noted above this is the only portion of land that was given to Ocailap's relative on the east of Usuk-Aujabule road and it is the subject of this dispute.

This portion having been given to only Ariko Jackson could not be claimed by the appellants and that is why the PW2 willingly entered a consent with the respondent the moment he was sued because he had grown up on the land and knew it did not belong to Ariko Jackson's family.

It was also very clear from the evidence on record that the land given to Ocailap 25 was distinct from the suit land that was given to Ariko Jackson and the terms of each agreement were also distinct with that of Ocailap's being a donation and Ariko Jackson's being a temporary holding.

The appellants on the other hand were just encroachers with no knowledge on $\overline{5}$ the history of the suit land or the land to the west with no dispute, who tried to deprive the respondent of her rights.

I am of the firm opinion that the appellants took advantage of the Morulem's death in 2017 to encroach on his estate as confirmed by PW1 who stated that

the 1^st appellant entered the suit land in 2017 shortly after Morulem's death and 10 the 2^nd appellant in 2021 after she settled with PW2, his cousin.

I further agree with the trial magistrate's finding that the claim and evidence of the appellants were mere concoctions intended to deprive the respondent of her inheritance and that their claims are unfounded both in custom or inheritance and they could not inherit what did not belong to their fathers.

The only land the appellants can lay claim from Ekolo is the one he gave to Ocailap who is a brother to Nasanairi which land as proved by the respondent is to the west of the Usuk-Aujabule road as was even confirmed at locus that their relatives were staying in and their deceased family members including their fathers were buried in.

Counsel for the appellant faulted the trial magistrate for placing too much weight on the testimony of PW2 but I find that the trial magistrate correctly and rightfully evaluated all the evidence on record and the only reason the appellants are finding fault with PW2's testimony is because he disproved their claim to the suit

land. 25

In point of fact is that PW2, the son of Ariko Jackson, through whom the appellants tried to encroach on the suit land, entered a settlement with the respondent on the 16^th of September 2020 after mediation by court appointed mediator which mediation even happened in presence of the appellants, severed


the appellants link to the land and his testimony was essential in corroborating $\mathsf{S}$ that of the respondent and PW4 her sister-in-law that neither the appellants nor their parents were ever on the suit land or entitled to the same.

Counsel further submitted that the respondent's case was riddled with contradictions on the size of the suit land, however, upon perusal of the record I find that counsel failed to appreciate the pleadings as filed.

The truth of the matter is that the original plaint had a subject matter of 30 acres, however, upon settlement with Akileng Peter in 2020, the respondent's claim was reduced to 11 gardens/acres which was the subject of the amended plaint. The mention of 100 acres was just the respondent giving a history of the land as

15 she stated under paragraph 5 of the plaint that she is the administrator of the estate of the late Morulem Fabian whose estate constitutes 100 acres and the 11 she claimed in the suit were part of the 100 acres.

There is therefore no contradiction in the respondent's pleadings or evidence regarding the size of the suit land.

- The respondent's evidence together with that of her witnesses was clear 20 throughout the trial and proved on a balance of probabilities that the suit land was hers and not for the appellants whose land was to the west of the Usuk-Aujabule road, unlike the appellants' evidence that was riddled with contradictions and lies aimed at grabbing the land of the respondent. - Consequently, I find that the trial magistrate justifiably evaluated the evidence 25 on record and found that the respondent is the rightful owner of the suit land. Grounds 1 and 2 accordingly fail.

c) Ground 3.

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- The Learned Trial Magistrate erred in law and fact when he failed to find that the respondent's suit against the Appellants was barred by limitation.

Counsel for the appellant submitted that the trial magistrate in considering a preliminary objection raised by the appellant regarding limitation rightfully stated the law the governs limitation and cited case law to that effect including Madhvani International SA v Attorney General Civil Appeal No. 48 of 2004 where court found that when considering whether a suit is time barred by any law, the court looks only at the pleadings and no evidence is required.

Counsel further submitted that when the appellant raised a preliminary objection the trial court ought to have looked at the amended pleadings filed in 2021 and 15 not those filed previously and it was therefore an error for him to find that he had looked at the original plaint of 2019.

Counsel further submitted that the respondent in her plaint was in agreement that the suit land was statute barred when she stated that it was given as a gift

inter vivos in 1916 and subsequent generations of the donor and done have lived 20 peacefully with each other with no claim of recovery.

He further disagreed with the timelines the trial court used in determining the issue of limitation.

He argued that the land on the east and west of the Usuk-Aujabule road was donated to the appellants' forefathers at the same time and various inheritances 25 happened therefore it was an error of fact and law for the trial magistrate to hold one side statute barred and another not.

Counsel for the respondent reproduced the trial court's judgement in his submissions and I will not include the same here.

Given the evidence and discussion in grounds 1 and 2 above I do not see the need $\mathsf{S}$ to dwell much on this ground.

The respondent clearly stated in her plaint and testimony that the land given to Ocailap through whom they claim is not in dispute and as proved by the evidence on record this land is on the west of the Usuk-Aujabule road.

The trial magistrate was therefore right to find that any claim for recovery of the 10 same would be time barred.

However, regarding the land to the east, specifically the one that was occupied by Ariko Jackson father to PW2, the same was not barred by limitation because it was sufficiently proved that it was not part of the land donated to Ocailap and

neither the appellants nor their parents were ever resident or occupants of the 15 same.

The occupation of the appellants was proved to be recent, that is in 2017 and 2021 respectively, and the respondent's claim against them was therefore not time barred.

- I further find that the reliance of the trial magistrate on the original pleadings 20 occasioned no miscarriage of justice to the appellants because even if he relied on the amended pleadings he would still find that the suit was not time barred because the amended plaint clearly showed that the land given to Ocailap was distinct from the suit land. This being so then this ground would also accordingly fail. 25 - d) Ground 4. - $\overline{a}$ The decision of the trial Magistrate occasioned a miscarriage of justice.

No submissions were made in this regard by either party and I will thus construe that as abandonment of this ground.


## 6. Conclusion.

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Since all the argued grounds of this appeal have been resolved in the negative, I do find and conclude that this appeal is lacks merit and is thus dismissed accordingly.

7. Orders.

- a) This appeal is dismissed for lack of merit. - b) The judgment and orders of the lower court the judgment and orders of the Chief Magistrates Court of Katakwi at Katakwi in Katakwi Civil Suit No. 0016 of 2019 delivered on the 28^th of April 2023 by His Worship Justine Olal Gumtwero, Chief Magistrate are accordingly upheld. - c) The costs of this Appeal and that in the lower court are awarded to the Respondent in any event.

I do so order.

Hon. Justice Dr Henry Peter Adonyo

Judge

20^th June 2024

22