[2024] UGHC 1074

#### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA HOLDEN AT MBALE

## CIVIL APPEAL NO. 073 OF 2023

(Arising from Civil Suit No. 0028 of 2015 Chief Magistrate Court of Kapchorwa at Kapchorwa)

MITYANGANA SADIK ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

#### 1. MUSANI STEPHEN

# 2. MUTULEI STEPHEN :::::::::::::::::::::::::::::::::::: BEFORE: HON. JUSTICE LUBEGA FAROUQ

### **JUDGMENT**

### 1. Introduction

2. The Appellant/Plaintiff in the trial court instituted Civil Suit No. 00028 of 2015 against the Respondents/Defendants for the declaration that the Appellant is rightful owner of the suit land, an order of vacant possession be issued to the Respondents, a permanent injunction be issued against the Respondents, their agents and servants from further encroaching on the suit land, general damages and costs of the suit.

#### 3. Background

4. The Appellant's facts in the trial court were that the suit land is located in Tuyobei village, Kapkwot Parish, Ngenge Sub-County measuring approximately one hundred (100 acres) was property of the Plaintiffs father Zakaria Solimo who inherited the same from his late father. He was born and raised on the suit land until 1978 when he left due to Karamojong insurgence. He returned on the suit land in 2005 and began utilizing the same in 2006. In 2006 the 2^nd Respondent attempted to sell the suit land and the Plaintiff informed the elders of the area who cautioned him against selling the land. In 2007 the 2^nd Respondent made a second attempt to sell the suit land to Augustine Solimo but the 1^st Respondent as then the person in charge of land matters stopped him from selling and boundaries of the suit land were opened in the presence of the community members and neighbors.

- 5. The Respondents in their written statement of defence denied the Appellant's allegations and averred that the suit land is their land which they inherited from their fathers who also got it from their grandfather the late Chemengei Kurus Mangusho who was a brother in law to Wos Solimo Zakaria the father of the Plaintiff and brother to Kolip Chemutugan the wife to the said Chemengeli Kurus Mangusho. In 2008 the Appellant encroached on the suit land and a settlement was reached between him and the Respondents where the boundary between the suit land and the Appellant's land was established by Mr. Cheptegei Sadik Chairperson LC.1 Kaptulei whom both sides appointed as mediator and that the Respondents have not violated the common boundary. - 6. Issues for the trial court's determination - 7. At the scheduling conference, the parties agreed upon the following issues- - (a) Who is the rightful owner of the suit land? - (b) What remedies are available to the parties? - 8. The above stated issues were resolved in favour of the Respondents hence, this appeal.

#### 9. Grounds of Appeal

- (a) That the trial magistrate erred in law and fact when he failed to judiciously apply the laws and principles governing ownership of land under customary tenure thereby reaching a wrong decision hence occasioning a miscarriage of justice - (b) That the trial magistrate erred in law and fact when he failed to properly evaluate the evidence on court record thereby reaching a wrong decision hence occasioning a miscarriage of justice

$\mathcal{L}$

- (c) That the trial magistrate erred in law and fact when he failed to judiciously apply the laws governing locus visit thereby reaching a wrong decision hence occasioning a miscarriage of justice - (d) That the trial magistrate erred in law and fact when he held that the respondents are the owners of the suit land thereby reaching a wrong decision hence occasioning a miscarriage of justice. - (e) That the trial magistrate erred in law and fact when he exhibited bias thereby reaching a wrong decision hence causing a miscarriage of justice - (f) That the findings of the trial magistrate are tainted with misdirection and none direction to law and fact thereby reaching a wrong decision hence causing a miscarriage of justice. - 10. He prayed that the appeal be allowed, an order setting aside the judgment and order of the trial court be issued on the 14^th of July, 2023, judgment be entered in favour of the appellant and the plaintiff be declared the lawful owner of the suit land, costs of this court and of the lower court be awarded to the appellant and any other order court may deem fit.

#### $11.$ Legal representation

- Counsel Wasige Safe represented the Appellant whereas Counsel 12. Watete Ronald represented the Respondents. - 13. When this matter came up for hearing, the parties requested court to proceed by way of written submissions. Court gave them schedules and they indeed all complied.

#### Duty of the first appellate court 14.

This court takes note that as the first appellate court, it is under a 15. duty to examine the evidence on the court record and come to its own decision putting into account that it is did not see the demeanor of the witnesses.

#### 16. Analysis of court

- Counsel for the Appellant argued grounds No.1, 2 and 4 together. 17. Grounds No. 3, 5 and 6 were argued separately. I will argue them in the same format. - Ground No 1: That the trial magistrate erred in law and fact **18.** when he failed to judiciously apply the laws and principles governing ownership of land under customary tenure thereby reaching a wrong decision hence occasioning a miscarriage of justice - Ground No.2: That the trial magistrate erred in law and fact **19.** when he failed to properly evaluate the evidence on court record thereby reaching a wrong decision hence occasioning a miscarriage of justice - Ground No.4: That the trial magistrate erred in law and fact 20. when he held that the respondents are the owners of the suit land thereby reaching a wrong decision hence occasioning a *miscarriage of justice.* - From the evidence on the court record, it is certain that the land in 21. dispute is customary land. It is therefore pertinent for us to understand what is meant by this type of tenure and how it operates. Section 2 of the Land Act Cap... defines customary tenure to mean "a system of land tenure regulated by customary rules which are limited in their operation to a particular description or class of persons.... " - Section 3 of the Land Act Cap 227 provides that-22.

"Customary tenure is a form of tenure—

(a) Applicable to a specific area of land and a specific description or class of persons;

(b) Subject to section 27, governed by rules generally accepted as binding and authoritative by the class of persons to which it applies;

(c) Applicable to any persons acquiring land in that area in *accordance with those rules;*

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(d) Subject to section 27, characterized by local customary regulation;

(e) Applying local customary regulation and management to individual and household ownership, use and occupation of, and transactions in, land;

(f) Providing for communal ownership and use of land; $(g)$ In which parcels of land may be recognized as subdivisions belonging to a person, a family or a traditional institution; and (h) Which is owned in perpetuity.

- 23. In the instant case, PW1 told court that the suit land belonged to Zakaria Solimo (his father). That Zakaria Solimo inherited the suit land from his father (the appellant's grandfather). He said that the defendants' grandfather Kurus Mungusho came on the suit land of recent. That the 1^st defendant stays on his father's land different from the suit land and the 2^nd defendant stays at Ngenge centre but they just sent their children to stay on the suit land. In cross-examination PW1 said that the defendants' grandfather married his paternal Auntie and had his land in Makengeret but he was buried on the suit land because there was still insecurity at his place. This piece of evidence was not disputed by the Respondents. He added that he reported to LC. II Chairperson when the defendants trespassed on his land in 2008 and boundaries were opened. This was confirmed by DW1 when he said that as the LC. II, "I settled a boundary dispute between the plaintiff and another person in 2008. I did this in my capacity as a Chairperson LC. II." Although DW1 did not mention the name of the other persons, PW1 said they were the defendants. - 24. PW2 a son of the neighbor to the suit land Chemonges Kamulwo corroborated PW1's evidence when he said that during the time Zakaria Solimo was on the land, his father was a neighbor to the suit land. He further said that Kurus (the grandfather of the defendants) came from Teso but his place had insurgency so he resided at the Appellant's

place. That he came and fell sick and died from the Appellant's place. He was buried on the same land. That at the time, any person who died, was just buried where he or she died from because of the insurgency. It did not matter whose land you were buried on. PW2 further said that when Zakaria died, his children continued to use the land.

- PW3 who was given the suit land by the family of the Appellant said 25. that due to insurgency at his home, he went to the Appellant's father who gave him the suit land and he used it for 20 years but when insecurity ended, he went back to his place. He said that both defendants migrated on the suit land at the same time. They came from Kabagiria village. That the defendants didn't construct any house on the suit land by then, they just constructed of recent. - PW5 a neighbor to the suit land from the East said that the land 26. belonged to Solimo Zakaria. That PW3 some time back requested for permission to stay on the land from the father of the Appellant. He constructed a house on the land and cultivated it as well. That when he left the suit land, the defendants came and entered the house which he had constructed and started claiming ownership. - In cross-examination PW5 said that Cheptegei Erifasi is in the West. 27. Daniel Soyekwo is in the North. West Takwenyi up to Ngenge River. On the South is Solimo Zakaria. There is also a big rock called Kapkwot. Daniel Soyekwo extend to the north and there is a River called Kabagiria. - The Appellant's evidence was buttressed by PEX.1 which is a report 28. which was made by paralegal officers who went on the ground in 2014 and interviewed the neighbors to the suit land. The neighbors included; Cheptegei Petero Kapyeya who boarders the suit land in the north, Ndiwa Kapchesholei who boarders the suit land in the south, Chemonges David Chebang, Andyema Karandini and Labu Paul who was young at the time but used to travel from Cheborom to Ngenge Primary School via the home of late Solimo Zakaria and Erifasi Chaptai

the immediate neighbor to the suit land. All those neighbors told the paralegal officers including PW4 that the suit land belonged to the Appellant's father.

- DW1 on the other hand said that the suit land belonged to his late 29. grandfather Kurus. That they were using the land but due to insurgency, they were displaced. His grandfather died and was buried on the suit land in 1984. This buttressed the Appellant's evidence. He added that the suit land was divided in 2008. This further buttressed the Appellant's evidence when he said that the Respondents came on the suit land of recent. DW1 added that- "I never saw the plaintiff's father in his life time. The insurgency started before we were born in 1978. I was displaced because of the insurgency in 1978 and I went to Teso region." This piece evidence indicates that DW1 did not have the required knowledge about the history of the land. Secondly, this court was left in wonder how a person who was not yet born during the insurgency could be displaced by the insurgency. - To go forward, DW2's evidence largely corroborated the evidence of 30. DW1 but differently acknowledged the presence of the Appellant's father in Ngenge. He said he knew Zakaria Solimo who lived across Ngenge and the neighbors to the suit land are; "Musani Stephen, Simon Sindet, Petero Mashandich, Barteka Kulule." Petero whom DW2 also acknowledge to be a neighbor to the suit land said the suit land belonged to Zakaria Solimo father of the Appellant.

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DW3 and DW4 who testified as sons of late Kurus, contradicted 31. themselves as to the number of children late Korus left. Whereas DW3 said that he left three sons, DW4 said he left six sons. This created doubted in the mind of court if these two were telling court the truth. DW4 went ahead to say that their late father lived on the suit land since 1910 till his death. This is however unbelievable how a person who had lived on the land for all that long could not be known by the neighbors to the suit land. Secondly, how he could not even possess a house or anything historical on the land to prove that he had indeed stayed there for a long period of time.

- The Appellant and his witnesses in their evidence said that the 32. Respondents' grandfather a one Kurus came on the suit land in 1984 when there was insurgency at his place in Makengarete. However, he did not spend much time and he died. Because of the insurgency, he was buried on the suit land. This piece of evidence was not disputed by the Respondents. - 33. The Appellant and his witnesses further said that during insurgency, people were buried from where they died from. They added that so many people were buried on the suit land during the insurgency. This piece of evidence was also not disputed by the Respondents. Hence, it disqualified the norm that grave yards can be used as proof of ownership. - In the presence of such evidence, the Respondents were under a 34. duty to adduce tenable evidence to prove that indeed their grandfather (Kurus Mungosho) owned the suit land but they did not. - 35. The evidence of PW3 aged 82 years who was given the suit to use by the father of the Appellant indicates that the Defendants/Respondents just migrated to the suit land from Kabagiria village and settled in the house which he had constructed. This piece of evidence was also not disputed. - It should be noted that the fact that Zakaria Solimo was not buried 36. on the suit land, does not mean that he did not own the suit land. Ordinarily, a person can own more than one piece of land and decide where to be buried. Therefore, the fact he was not buried on the suit land, does not disqualify him to be the owner of the land in the presence of the evidence of the Appellant and his witnesses. - Secondly, if we were to take it that those with grave yards on the 37. suit land are the owners, the Appellant would also be considered because his brother was buried on the suit-land.

- As already indicated, unlike communal rights where the community 38. is allowed to cultivate and graze on the suit land, the land in the present case is individually owned and the custodian of it was Zakaria Solimo. - The position of the law is that in customary tenure, possession of 39. the land however long it may be without additional proof of ownership, does not suffice. Therefore, the fact the Respondents are in possession, it does not ordinarily mean that they own the suit land. - Grounds No. 1, 2 and 4 are answered in the affirmative. 40. - Ground No.3: That the trial magistrate erred in law and fact $41.$ when he failed to judiciously apply the laws governing locus visit thereby reaching a wrong decision hence occasioning a *miscarriage of justice* - From the evidence on the court record, what the trial court was 42. under a duty to establish at locus visit was the right size of the land, neighbors to the land, any history features to prove previous ownership, and whether the houses on the suit land are recent or old among others. - 43. I have looked at the locus proceedings at page 41 of the record of proceedings but none of the above listed were established by court. All that the trial court observed was that there is a hill, most of the land is vacant, and that the land is occupied by other three parties, the appellant's undisputed land and the grave yards. To this court that was not sufficient. - Since the contention during trial was about who owned the land and $44.$ who did not, court ought to have established the historical features on the land which ought to have helped each party to prove that the suit land belonged to him or her in order to verify what was said in court. (See: Banan Alex V. Kapsandui Ndiwa Chepkwulei HCCA No. 54 of $2009)$ - Be the above as it may, as indicated in my analysis under Grounds 45. No.1, 2 and 4, there was enough evidence on the court record which

the trial magistrate would have used to come to a proper decision even in absence of a locus visit. Hence, the error at locus did not cause any miscarriage of justice.

- Ground No.3 is answered in the negative. 46. - Ground No.5: That the trial magistrate erred in law and fact 47. when he exhibited bias thereby reaching a wrong decision hence **causing a miscarriage of justice** - Ground No.6: That the findings of the trial magistrate are 48. tainted with misdirection and none direction to law and fact thereby reaching a wrong decision hence causing a miscarriage of justice. - Following my findings in grounds 1, 2 and 4, it is apparent that the 49. decision of the trial magistrate caused a miscarriage of justice to the Appellant. - This Appeal accordingly succeeds in the terms below-50. - (a) The judgment, decision and orders of the lower court are set aside. - (b) The costs of this court and those of the lower court are awarded to the Appellant. - I so order.

LUBEGA FAROUO Ag. JUDGE Judgment delivered via the emails of the Advocates of the parties on $25$ ^th day of **November**, 2024