[2025] UGHC 37

# **THE REPUBLIC OF UGANDA**

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

# **HIGH COURT CIVIL APPEAL No. 272/2024**

# **(Formerly HIGH COURT GULU - CIVIL APPEAL No. 072/2019)**

# **(ARISING FROM CIVIL SUIT No. 054/2012: THE CHIEF MAGISTRATE'S COURT OF KITGUM HOLDEN AT PATONGO).**

- **1. MORO LAMSON** - **2. OKIDI SAMUEL BAKER** - **3. OKECH DANIEL** - **4. NYEKO KAMILO GEORGE APPELLANTS**

## **Versus**

- **1. NYEKO SISTO** - **2. LOKWIYAKARE OJOK JUSTO** - **3. ONGOM CHARLES** - **4. OTTO KILAMA RESPONDENTS**

## **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 1 st day of August, 2019. The Appeal is in respect of the decision of His Worship Oji Phillips, Magistrate Grade One, Patongo, then Chief Magistrate's Court of Kitgum holden at Patongo delivered on the 5th day of July, 2019. The Judgment of the Lower (Trial) Court was delivered in favour of the Plaintiffs now the Respondents and against the Defendants now the Appellants.

- [2]. The Trial Court determined that the Plaintiffs are the rightful customary owners of the suit land and the Defendants are trespassers to the land described as situate at Labima Ward, Tenge Parish, Omot Sub County in Agago District said to measure approximately eight (8) Hectares or twenty (20) Acres. No coordinates or survey report was provided. The Court awarded the Plaintiffs general damages in the sum of Ushs. 4,000,000/- (Uganda Shillings Four Million) for disturbance and mental anguish and costs with interest on both at 8% (per annum) from the date of filing the suit until payment in full. A permanent injunction was issued against the Defendants as trespassers to the suit land to restrain them and theirs deriving any interest by them from further trespassing on the Plaintiffs' land. - [3]. The Defendants Appealed the decision of the Lower (Trial) Court and raised three (3) grounds of Appeal set out hereunder – - **i. The Learned Trial Magistrate erred in Law and in fact when he relied on hearsay and contradictory evidence of the Respondents thus came to a wrong conclusion which caused a miscarriage of Justice.** - **ii. The Learned Trial Magistrate erred in Law and in fact when he visited the Locus in Quo but refused to see the graves of the family members of the Appellants and their homestead as such arriving at an erroneous decision which caused a miscarriage of Justice.** - iii. **The Learned Trial Magistrate erred in Law and in fact when he failed to properly evaluate all the evidence on Record thus came to a wrong conclusion which occasioned a miscarriage of Justice.** - [4]. The certified Judgment and Proceedings of the Lower (Trial) Court were duly provided together with the original file of its 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 of 13th June, 2012 and the Amended Plaint of 4 th March, 2013 - on the Record of the Court is founded in claims of ownership of and trespass to the suit land already described said to measure approximately eight (8) Hectares out of one hundred sixty (160) Hectares of land described as **"local community land"** with each of the 1st – 4 th Plaintiffs claiming distinct ownership of different parts of the suit land and with each averring that they acquired their respective portions through inheritance from their respective late fathers said to be buried thereon and that they themselves were born on the land for which they seek declarations of ownership and related remedies. It is their case that the Defendants begun trespassing on the suit land between 2009 and 2011 by cultivating on it. The Plaintiffs claim the land disputes were reported to the Police and the Chairperson LC 2 of Tenge Parish - though the outcome of any enquiry is not altogether clear from their pleadings nor was a decision provided. - [6]. The Defendants in their joint Written Statement of Defence of the 26th November, 2012 in which they mention a Counter-Claim - much as it was not duly pleaded - put the Plaintiffs to strict proof and contested the Plaintiffs' averments and themselves aver that they are Lawful owners of the **"suit land"** measuring approximately two hundred (200) Acres they curiously describe as situate at Olupe Opong Ward, Tenge Parish, Omot Sub County in Agago District (including Olupe P. 7 School situate on the land) and **"not as claimed by the Plaintiffs"**, insisting that the Plaintiffs' father was not buried on the land which they describe. The Defendants contend in relation to the land they describe that the 1st Defendant being the true Administrator inherited it from his father Okello Bicali who first settled on the land in the 1930's and their father and grandfather upon their demise left behind homes, trees and Olupe P. 7 School.

- [7]. It would appear from the pleadings that the Defendants assert their claim over a different parcel of land from the suit land stipulated by the Plaintiffs in the Plaint constituting the subject matter. The parties appear to be at cross purposes. - [8]. Notwithstanding, they deny having a forged letter from a Land Board and obscurely mention a deceased Magistrate Grade 1 of Kitgum further denying that the 1st Defendant gave out the suit land to other people and asserting that he has a letter from the Land Board authorizing him to utilize the land. The Defendants deny that any case regarding the suit land was determined by an LC 2 Court of Tenge Parish instead referring to a Notice from Kitgum Chief Magistrate's Court and also deny being verbally warned against using the suit land since it belongs to them. In their prayers they seek orders for recovery of the **"land"** and injunctions against the Plaintiff's prohibiting them from interrupting their use and enjoyment of the **"suit land"**. - [9]. The Court observes that the pleadings were prepared by the parties themselves *Pro Se* and are not altogether concise and, or precise. There is much confusion regarding the description of the suit land.

## **The Appellants' Case and Submissions.**

- [10]. In their Submissions filed on the 31st October, 2022, the Appellants argued grounds 1 and 3 (not 2) of the Memorandum of Appeal concurrently which both focused on evaluation of the evidence in the Trial Court and contended that the Respondents as Plaintiffs contradicted each other and the Trial Court relied on hearsay evidence. - [11]. It is the Appellants' case in the first place that the Respondents in their testimony contradicted each other in as far as identifying the year(s) their father(s) acquired the land which was variously stated as 1946, 1947 and 1948 and in any case was prior to some of them being born hence constituting hearsay evidence.

- [12]. The other contradictions included the modes of acquisition of the land claimed by the Respondents with some testifying that it was given to them during their father's lifetime while others claimed acquisition through inheritance; the Respondents gave varied descriptions of the neighbours to the land which they failed to accurately or consistently describe; the Respondents and their witnesses gave different descriptions of the sizes of portions of land individually claimed and the general area of the land stated as two hundred (200) Acres being trespassed upon contradicted the other Respondents' claim of eight (8) Hectares. - [13]. The Appellant's contend that the Learned Trial Magistrate failed to properly evaluate the evidence on Record and instead believed the Respondents who live in Geregere three (3) kilometres away from the suit land and did not adduce any evidence in proof of their ownership and he ignored their evidence on the suit land including homesteads with their family graves thus coming to a wrong conclusion. - [14]. The 2 nd, 3rd and 4th Appellants also aver that the 1st Appellant - being their father - sued the 1st Respondent and others not in this case *vide* **Civil Suit No. 24/2015** for trespass to the **"same land"** and the same Magistrate evaluated the evidence properly and declared the 1st Appellant the Lawful owner of the suit land while declaring the 1st Respondent and other trespassers. A copy of the Judgment in **Civil Suit No. 24/2015** is attached to the Submissions. The Court observes that upon review of the decision it is apparent that the suit land in that case was in small portions ranging from one (1) Acre to nine (9) Acres claimed by seven (7) Defendants therein said to measure approximately two hundred (200) acres in total is situate in Olupe Central Village – and not Labima Village – being different subject matter from this litigation. Significantly, besides the Plaintiff all the other parties are different. Therefore, *Res Judicata* is not established.

- [15]. In Submitting on the *Locus in Quo* visit in issue 2 (not 3), the Appellants contend that the purpose of the *Locus* visit is to clarify on the evidence given in Court and complain that much as there is reference to evidence from the *Locus in Quo* it was not Recorded with the Trial Magistrate only indicating that he visited the *Locus* and establishing that the Appellants as Defendants encroached on eight (8) acres. - [16]. The Appellants submit that the Trial Magistrate ignored and, or refused to Record their homestead and family graveyard yet they were born and raised on and have been in occupation of the suit land which has the trees they planted and in his Judgment the Trial Magistrate did not mention any features on the suit land cited by them. It is their contention that failure to conduct a *Locus in Quo* visit properly renders the evidence to be procured in error and violates the Trial rendering the decision of the Lower Court null and void. - [17]. In conclusion, the Appellants reiterate that the Learned Trial Magistrate failed to properly evaluate the evidence and pray that this Court allows the Appeal, sets aside the Judgment of the Lower (Trial) Court and awards the Appellants costs in the Lower Court and in this Court or in the alternative orders a re-trial.

## **The Respondents' Case and Submissions.**

[18]. The Respondents filed Submissions on the 17th January, 2023. Addressing the 1 st and 3 rd grounds of Appeal on the evaluation of evidence at Trial, they Submit that they adduced evidence before the Lower (Trial) Court that their respective fathers acquired various portions of the suit land between 1946 and 1947 which they have been using todate. It is their case that the 1st Appellant - father of the 2 nd, 3rd and 4th Appellants - who claimed inheritance from his father Bicali Okello in 2002 and had left during the insurgency in Northern Uganda until 2015 had in an un-concluded earlier suit tendered a lease offer from 1984 and Letters of Administration but admitted that a certificate of title was not granted.

- [19]. The Respondents submit that the Appellants' testimony and evidence in the Trial Court was plagued with deliberate lies – especially by the 3rd Appellant - in regard to their ages, claims of inheritance vis-à-vis purchase of the suit land from an unidentified person whose name could not be remembered and falsehoods regarding whether the 1st Appellant was in fact the father of the 3rd Appellant. It is their case that the Appellants' evidence in the Lower (Trial) Court was inconsistent and contradictory and is not to be believed. - [20]. The Respondents contend that the Appellants' case in the Trial Court was based mainly on a Lease Offer obtained by the 1st Appellant's father in the 1970's under **Regulation 10 of the Public Lands Regulations 201-1** then in force providing that occupation and use by a grantee or lessee of a lease on land the Controlling Authority had agreed to alienate would until registration of the grant or lease be at sufferance only and at the sole risk of the grantee or lessee. It is their case that the offeree on public land was simply a tenant at sufferance and could not acquire an interest until due registration citing *inter alia* **Civil Appeal No. 39/2015: Odoki Mariano Vs. Komakech Walter and 3 Others** and **Civil Appeal No. 38/2015: Oketa P'Alal and 3 Others Vs. Lakony David Livingstone** - for the proposition that a tenant at sufferance acquires no interest in land he or she occupies and that it is generally recognized that interests in land whether legal or equitable are valid and enforceable in *Rem* since they are of a propriety nature capable of binding third parties who acquire the land - but at common Law a tenancy at sufferance may be terminated at any time and recovery of possession effected and is not a right in *Rem*. It is not a proprietary interest capable of binding third parties who acquire the land and it is not an interest in land. Therefore, considering that the Lease Offer was for five (5) years with the initial term ending in 1989, there was no evidence to show that the conditions were complied with or that the term was extended.

- [21]. It is further their case that their families have been in possession since the 1940's - with a suit between the 1st Appellant's father and the 1st Respondent in 1985 and their possession of the land creates an interest which can only be defeated by one with a better title and the Appellants do not have a better title than them. - [22]. In respect of their own evidence, they contend it was consistent, uncontroverted and could not be faulted. Citing **Civil Appeal No. 34/2018: Odur David Vs. Ocaya and 3 Others** they submit that while grave inconsistencies may result in evidence of a witness being rejected; minor inconsistencies may be ignored unless they point toward deliberate untruthfulness with the gravity of the contradiction depending on the centrality of the matter it relates to in determining key issues in the case – and whether it is material. Therefore, contradictions in the year of acquisition of the land is due to lapse in time and memory and does not go to the root of the matter with the fact that they acquired their land through their fathers being paramount. They deny that the 1st Respondent stated that they acquired the land through inheritance and insist that he simply testified that he got the land through his father and did not specify whether it was by gift or inheritance – hence there was no contradiction. Concerning contradictions in the description of the suit land, they submit referencing the Judgment in **Civil Suit No. 24/2015: Moro Lamson Vs. Odong Day and Others** that the land is in pieces and with different portions in different locations and as such scattered through a larger portion of land as compared to the suit land. As such, the neighbours of the different Respondents are not the same. - [23]. In response to claims of hearsay evidence, the Respondents rely on statements by their fathers citing **Section 30(h) of the Evidence Act, Cap. 8** that oral or written statements of relevant facts including of a deceased person are relevant in circumstances when the statement was made by a number of persons and expressed feelings or impressions on their part relevant to the matter in question.

- [24]. In regard to the *Locus in Quo* visit in ground 2 of the Memorandum of Appeal, the Respondents submit that the ground is not based on the Record and nowhere at the Trial did the Appellants state that they have graves on the suit land and therefore there were no graves for the Trial Magistrate to see. Accordingly, the claims that the Trial Magistrate refused to see the Appellants' family graves is evidence from the bar smuggled into the Appeal and no miscarriage of Justice was occasioned. - [25]. In conclusion, it is the Respondents' case that after re-evaluation of the evidence and Law by the Court including consideration of the Lease Offer vis-à-vis their possession and occupation of suit land which had been Admitted by the Appellant the Court should find that the Appeal ought to be dismissed with costs. - [26]. In respect of the mentioned Judgment in **Civil Suit No. 24/2015** determined in favour of the 1st Appellant which the Respondents describe as extraneous material - but which this Court must take Judicial Notice of – they submit that it was filed parallel to **Civil Suit No. 54/2012** which is the subject of this Appeal and involves the Appellants' siblings who claim to derive their interests in the suit land therein from their parents - with the Court observing that the suit involved the 1st Respondents son - and is presently the subject of **Civil Appeal No. 60/2022** also before this Court. The Respondents raise the prospect of *Res Judicata* – which this Court has already dispelled on the basis that the subject matter and parties are different with the subject matter here being land at Labima Village while the subject matter in **Civil Suit No. 24/2015** is land at Olupe Central Village. - [27]. It is their prayer that this Appeal is dismissed with costs. [28]. In his Judgment, the Learned Trial Magistrate specified the suit land as measuring approximately eight (8) Hectares at Labima Ward, Tenge Parish, Omot Sub County in Agago District and considered the testimony and evidence of both the Respondents (as Plaintiffs) and the Appellants (as Defendants) and of their witnesses in the Trial Court PW1 – PW9 and DW1 – DW4 including their respective claims of inheritance from their fathers in the years specified. The Learned Trial Magistrate considered the Plaintiffs' claims that their fathers were buried on the respective parcels of land in Labima Ward on which the Defendants trespassed upon and cultivated on. The Trial Court found that the Defendants did not challenge or dispute the evidence and as such facts admitted do not require further proof under **Order 8 Rule 3 of the Civil Procedure Rules, SI 71-1** citing **Civil Appeal No. 44/2004: Pamela Sabina Mbabazi Vs. Henry Mugisha Bazira**. The Learned Trial Magistrate went on to consider the Defendants' claims of trespass against the Plaintiffs and found their claims inconsistent and contradictory observing that they were not confident in their claims. On a balance of probabilities, he found the Plaintiffs' claims more credible with each demonstrating how they acquired their land. In regard to the *Locus in Quo* visit on the 25th July, 2018 he found that the claims of encroachment against the Defendant on the eight (8) Hectares at Labima Ward - being the subject matter of the suit - was confirmed and was part of one hundred sixty (160) Hectares belonging to the **"local community"** at Labima Ward. The Court observed that the Defendants had applied for a Lease and obtained a Lease Offer over the Labima Ward community land for an initial period of five (5) years which expired and the Defendants did not renew it – hence no rights were conveyed on any of them. The Court further observed that the suit land is situate at the border of Labima Ward and Olupe Central Village with the Plaintiffs resident in Labima Ward and the Defendants resident in Olupe Opong Ward.

- [29]. The Trial Court further determined that since the Defendants did not present a Counter-Claim, there was no reason to fault the Plaintiffs' claim of ownership of the suit land. - [30]. In sum, the Trial Court in addressing the issue of **"Who is the owner of the suit land"** and **"Whether the Defendants had trespassed on the suit land"** declared the Plaintiffs Lawful customary owners of the eight (8) Hectares of suit land at Labima Ward and the Defendants trespassers.

## **Representation.**

- [31]. Counsel, Ms. Harriet Otto, represented the Appellants who were absent. - [32]. Counsel, Mr. Komakech, represented the Respondents. The Respondents were absent.

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

[33]. As a preliminary consideration, this Court has reviewed the Judgment giving rise to this Appeal in **Civil Suit No. 54/2013** and the Judgment in **Civil Suit No. 24/2015** said to be subject of **Civil Appeal No. 60/2022** in the context of allegedly overlapping claims and the Respondents' assertion that the claims now arising from the Trial Court here in **Civil Suit No. 54/2013** determined on the 5 th July, 2019 were already adjudicated upon in **Civil Suit No. 24/2015** certified on the 25th May, 2021 - and apparently before the same Trial Magistrate. The distinctions have already been highlighted with firstly the subject matter in this suit being eight (8) Hectares at Labima Ward and the subject matter in the other suit being two hundred (200) Acres at Olupe Central Village with both in the same Parish and Sub County in Agago District both of which the Trial Magistrate visited the *Locus in Quo* and secondly the parties differ, except the 1st Appellant.

- [34]. At the Trial in **Civil Suit No. 24/2015** the 1st Appellant emerged successful and in the Judgment was declared the rightful owner of the suit land at Olupe Central Village estimated at two hundred (200) Acres - in which Olupe Primary School was cited and he was awarded remedies including general damages of Ushs. 16,000,000/- (Uganda Shillings Sixteen Million) and related remedies. This is the case the Appellants alluded to in their Joint Written Statement of Defence. - [35]. The Court upon considering the distinctions finds that *Res Judicata* did not arise.

## **Duty of the Court as a First Appellate Court.**

[36]. **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 so doing. As a first Appellate Court, the Court is conscious of its duties to review, reconsider and re-evaluate afresh the evidence of 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 of the Trial Court's Record observing that the burden of proof to be discharged to the required standard rests 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.**

- [37]. In considering and re-evaluating the testimony and evidence on the Record of the Trial Court, this Court observes that the suit land pleaded in the Plaints and comprising the subject matter of the litigation is specified as eight (8) Hectares at Labima Ward, Tenge Parish, Omot Sub County in Agago District. The individual land claimed by the respective Plaintiffs at Trial constitutes relatively small parcels of land of between one (1) and at most nine (9) Acres of land according to their testimony - though the pleadings are not altogether specific shared by them which they admit is un-surveyed and unregistered Labima Ward community land with the entire area being one hundred sixty (160) Hectares. The alleged mode of trespass by the Respondents was by cultivation on their respective allotments of the Labima Ward community land depriving them of their use of the allotted land. This was the basis of their cause of action. - [38]. In his Judgment, the Learned Trial Magistrate observed that the Appellants in their joint Written Statement of Defence did not deny the allegations in the Plaint. This is only partially correct. The Defendants did in fact deny the contents of paragraphs 4(a) –(f) of the Plaint which upon review by this Court constitutes an adequate denial of the basic substance of the claim against them and would not trigger **Order 8 Rule 3 of the Civil Procedure Rules** to the effect that they are deemed to have admitted the claims in the Plaint without further proof.

- [39]. It is correct that the other responses to the Plaint in the joint Written Statement of Defence were, as already observed by this Court, diversionary and did not reference the suit land in contest in this litigation but were in respect of land at Olupe Opong Ward which was the subject matter of other litigation elsewhere. The Appellants also did not file a response to the Amended Plaint. There is, however, nowhere in the record indicating that the Plaintiffs sought and were granted leave by the Trial Court to amend the Plaint. - [40]. Notwithstanding the foregoing contentions with the Pleadings, the Court finds that there was no miscarriage of Justice with no prejudice occasioned since despite the finding that the claims are deemed in Law to be admitted without any need for further proof required, the Learned Trial Magistrate still went ahead with the full Trial and heard the testimony of the witnesses on both side which he considered at length in rendering his Judgment. - [41]. In further re-evaluating and reviewing the evidence afresh, the Court duly considered the Trial Court's Record. PW1, Nyeko Sisto, 1 st Respondent stated he is related to some of the Defendants. They are all from the same Clan. He testified that he inherited the land in Labima Ward from his father Oryem. As early as 1970 he cultivated it and his father had acquired in 1947. He mentions the neighbours. He complains that all the Defendants trespassed by cultivating on it between 2009 and 2011. They all have land in Olupe Opong Ward some of which they gave for establishment of a School. It is about a mile away. His land area comprises two (2) Acres on which he planted mango trees. He mentioned a Judgment in his favour before an LC2 Court. PW2, Lukwiya Kare Ojok Justo, 2 nd Respondent is also related to the Defendants. His land is in Labima Central measuring two (2) Acres. Nyeko Kamilo George trespassed by cultivated in 2009. Moro Lamson claimed ownership and had a Lease Offer. He mentions his neighbours. The matter was reported to the LC2 and he won.

- [42]. PW3, Ongom Charles, the 3rd Respondent is an in-law. His land is in Labima Central measuring two (2) Acres. It was encroached on by Moro Lamson in 2010 by cultivating on it. He claimed he had a Lease Offer. The matter was reported to the LC3 for mediation. He was given the land in 1970 by his father Laban Okello who acquired it in 1946. PW4, Otto Kilama Godfrey, the 4th Respondent is not related to the Defendants. His land is in Labima Village measuring two (2) Acres. Okidi Samuel Baker's family encroached on his land in July, 2020 by cultivating it. He acquired the land from Ogal Baptist who acquired from Otto Kizikiya who was on it from 1948. He mentions the neighbours. - [43]. Witness evidence presented included PW5, Ayoo Severina 70, knows the parties. She testified that Okidi Samuel Baker trespassed on Otto's land by cultivating on it. PW6, Akulu Catherina - 67, knows the parties. She is related to the Plaintiffs but not the Defendants. Okidi Samuel trespassed on Kilama's land in Labima by cultivating on it in 2010. She mentions the neighbours. PW7, Okidi Raymond - 57, knows the parties. Nyero Sisto's land was trespassed on in 2012. He mentions the neighbours. PW8, Angwech Janet - 44, is the wife of the 2nd Plaintiff since 1991. Her father in law gave her husband and herself their land in Labima Village to use, but she does not know how he acquired it. She mentions the neighbours. PW9, Ongia Meracilliano - 75, know the parties and is related to the Defendants. He knows the dispute between Nyeko Kamilo and Otto Kilama over land at Labima Village. Otto Kilama inherited the land from his father Ogal Baptist. He mentions the neighbours. A Nyeko encroached by ploughing the land. The matter was reported to the LC's and mediators but failed. In a reversal he claims he never saw Nyeko Kamilo using the land. His father had had a dispute over the land with Nyeko Kamilo's father. The Plaintiffs closed their case after the 9th Witness.

[44]. The Defendants presented the testimony of – DW1, Moro Lamson, the 1st Appellant states the 2nd, 3rd and 4th Defendants are his sons. He denies being related to the Plaintiffs though later claims Nyeko Kamilo's father is his brother. He mentions the neighbours. He testified that he owns the suit land having acquired it following the death of his father Bicali Okello in 2002 and has been on it since his birth. He started cultivation and settled on it until forced by the insurgency into IDP camps returning in 2016. The Plaintiff had never used the suit land before 2015. His father had a suit in Kitgum Court in 1981 which was not concluded. He has a Lease Offer from 1984 granted to his father Okello Bicali, holds his father's Letters of Administration dated 12th March, 2012 and a letter dated 17th November, 2015. He admits that no mark stones were planted – thus admitting the land was never surveyed nor was a certificate of title obtained. He denies using the land claiming the Plaintiffs are using all two hundred (200) Acres. DW2, Okidi Samuel Baker, the 2nd Appellant testified that the Plaintiffs are their relatives and had sued over land at Olupe Central Village. The suit land is two hundred (200) Acres and belongs to his father Moro Lamson who inherited it from his father Okello parts of which they built on and use for cultivation. The Plaintiffs live three (3) kilometres away in Geregere Trading Centre. He mentions the neighbours. He is aware of the Lease Offer to his late grandfather. DW3, Okech Daniel, the 3rd Appellant testified he knows the Plaintiffs who sued over land at Olupe Central Village. The land belongs to his father Moro Lamson who has used it since 1978. He was born on the land and cultivated his part undisturbed. He testified – contradicting other Defendants as has been repeatedly highlighted by the Plaintiffs – that his "father" Moro Lamson bought the suit land measuring two hundred (200) Acres from an unknown individual. Later, he claimed his father inherited the land from his grandfather who acquired it in 1981. He mentions the Lease Offer to his grandfather.

- [45]. DW4, Nyeko Kamilo George, the 4th Appellants was the Defendants last witness he testified that the Plaintiff sued them over land in Olupe Central Village. He acquired his "customary land" from Moro Lamson in 2011 who owns the land. He was born on the land. The land was not in use as Court had issued an injunction. He mentions that the matter went to the LC2 Court. He is aware of the Lease Offer. The Defendants closed their case. - [46]. The Court shall now proceed to consider and address the Grounds of Appeal in the order in which they are raised –

**Ground 1 - The Learned Trial Magistrate erred in Law and in fact when he relied on hearsay and contradictory evidence of the Respondents and thus came to a wrong conclusion which cause a miscarriage of Justice.**

**Ground 3 – The Learned Trial Magistrate erred in Law and in fact when he failed to properly evaluate all the evidence on Record and thus came to a wrong conclusion which caused a miscarriage of Justice.**

[47]. This Court has re-evaluated and reviewed the testimony and evidence on Record at the Trial in accordance with its Appellate Jurisdiction. The cause of action at Trial was founded in ownership and trespass. The Defendants did not Counter-Claim but instead in their pleadings referred to the suit land as being in Olupe Opong Ward and measuring two hundred (200) Acres. Their claim over the two hundred (200) Acres appears to arise from the Judgment which this Court has taken Judicial Notice of in **Civil Suit No. 24/2025: Moro Lamson Vs. Odong Clay, Otto Joseph, Okidi Raymond, Ojok Simon Peter, Okidi Nelson, Kidega Lamony, Opoka Charles and Ocaka S/O Nyeko Sisto**. Indeed, that Court in considering the dispute in the litigation found in favour of Moro Lamson who was the Plaintiff therein and is the 1st Appellant herein and declared him the rightful owner of the suit land measuring two hundred (200) Acres at Olupe Central Village, Tenge Parish, Omot Sub County in Agago District.

- [48]. The 1st Appellant, father of the 2nd & 4th Appellants related to the 3 rd , who claim and derive their interests in land from him purportedly transposes his success in that litigation over the land at Olupe Central Village in **Civil Suit No. 24/2015** into this litigation insisting that it is in fact the suit land – and not as claimed by the Respondents. This forms the entire basis of their case. As a matter of pleadings any deviation in their testimony without amendment would amount to a departure from pleadings and is barred in Law. In their testimony at Trial they maintained that the suit land is two hundred (200) Acres referencing the land at Olupe Central Village. The Appellants entirely disregarded and gave no consideration to the Respondents pleadings in the Plaint(s) establishing the suit land as being at Labima Ward. This may be partly explained by the fact that they represented themselves in the Lower (Trial) Court and did not have the benefit of Counsel there. However, they have had the benefit of Counsel in this Appeal. - [49]. In reviewing the testimony and evidence of both the Appellants and Respondents for consistency and corroboration, the Court on the one hand finds that the evidence of the Respondents as the Plaintiffs at Trial consistently mentioned that the suit land is at Labima Ward. The respective Plaintiffs testified as to their respective portions measuring between one (1) and nine (9) Acres measuring eight (8) Hectares in total. The Plaintiffs each testified as to how they acquired their respective portions from their late fathers whom they named. They named their neighbours. Their addresses are all given as Labima Village. The Plaintiffs also identified the specific Defendants whom had encroached on their portions of land at Labima Village. In cross-examination the Plaintiffs remained consistent and this Court did not observe any significant departures from their pleaded claims. The Court observes that each Plaintiff had an individual claim which arose from their specific circumstances of acquisition pleaded. Their testimony and evidence was not controverted by the Defendants. - [50]. The Appellants as Defendants at the Trial on the other hand did not once acknowledge the subject matter as being the suit land pleaded in the Plaint at Labima Ward measuring eight (8) Acres. Instead, they each testified insisting the suit land measures two hundred (200) Acres. The 1st Appellant, Moro Lamson, father of the 2nd & 4th Appellants insisted he knew the suit land as being at Olupe Central Village measuring two hundred (200) Acres which he accused the Plaintiffs of trespassing on. He claims they are **"cultivating all the 200 Acres"**. It was their case that they had lived on the land since birth. The Court observes the description the 1st Appellant and all the Appellants gave as their residences in their testimony in the Trial Court is Olupe Central Village. In as far as this testimony is concerned, it is consistent only in as far as it is misconceived and does not deal with the actual suit land at Labima Village. It is instead given in the context of their land at Olupe Village. To that extent, the Defendants did not controvert the Plaintiffs' testimony establishing their claims over land at Labima Village subject of the Trial. Inevitably, as a consequence it stands unopposed. - [51]. In terms of acquisition, the Trial Court rightly observed that while the 1st, 2nd and 4 th Appellants consistently testified that the 1st Appellant's claim was by inheritance from his father – Bicali Okello; in a significant departure the 3rd Appellant, Okech Daniel, testified that his "father" bought the land from a person whom he could not name. The 3rd Appellant however later changed his testimony to the effect that the 1st Appellant inherited the land from his father. The Trial Court also rightly observed that while the 1st Appellant who stated his age as sixty-two (62) claims that the 2nd, 3rd and 4th Appellants are his sons, curiously the 3rd Appellant indicates his age as sixty-three (63) – suggesting that he is older than his purported father. The 3rd Appellant also incredulously testified that the 1st Appellant is his father. Clearly, the 3rd Appellant is not the 1st Appellant's son. This was not explained in the Trial Court.

- [52]. A significant issue which emerged in the Defendants' testimony at the Trial was the admission in evidence of *inter alia* Exhibit P1P2 in copy which is specifically a Lease Offer form from the Department of Lands and Survey in favour of the 1 st Appellant's father Bicali Okello dated in April, 1984 tendered by the 1st Appellant at the Trial. It became clear that the 1st Appellants' land claim to what he describes as the suit land of two hundred (200) Acres was founded in large part on the Lease Offer. As far as he was concerned it was still of value. The document comprises the Lease Offer granted in 1984. He admitted that there were no mark stones placed to establish its boundaries. No certificate of title was granted. The other Appellants also all referenced the Lease Offer in describing the suit land as two hundred (200) Acres. This would only be consistent with the claim for the land at Olupe Central Village which at the Trial in **Civil Suit No. 24/2015** the Court had declared the 1st Appellant the rightful owner of. - [53]. This Court has had occasion to examine the Lease Offer Exhibit D1D2 in copy on the Court's Record. It was granted to the 1st Appellants father on the 9th April, 1984. The term is for an initial period of five (5) years - interestingly to take effect from the date of survey - and subject to extension up to (49) forty-nine years upon development. The practical effect would seem to potentially be a Lease Offer in perpetuity, given no survey was done! Other terms included – the offer was subject to the land being available and free from disputes at the time of survey, developments, payments of premium and ground rent, acceptance, consent to transfer upon fulfilment of covenants as well as other common Lease Offer terms. There is no letter of acceptance tendered in evidence or evidence in proof of payments of dues. There was also no evidence tendered of extension or of renewal, or any steps taken to secure extension or renewal. Moreover, Okello Bicali died in 2002 as testified by the 1st Appellant. The 1st Appellant made reference to holding Letters of Administration in respect of his Estate.

[54]. The Court has given due consideration to the Lease Offer form. The Court observes that it was an offer from Government through the Department of Lands and Survey to the 1st Appellants father, Okello Bicali – and not to the 1 st Appellant himself as has been suggested. It is apparent that there was no privity of contract between the Offeror and the 1st Appellant. The Offeree Okello Bicali died in 2002 at which time there was no indication of any affirmative steps or compliance having been taken by him. No evidence is adduced to show that the 1 st Appellant himself sought to apply for the area. At the demise of the 1st Appellant's father, Okello Bicali, any equitable interest arising from the Lease Offer to him extinguished. Contrary to the testimony of the 1st Appellant the Lease Offer is not still of value. An extinguished Lease Offer reverts to the Controlling Authority. It is not transferable. It could however be applied for afresh. The equitable interests and, or rights under the Lease Offer were first subject of breach upon non-compliance with its terms and in any case became irretrievably extinguished upon the demise of the 1st Appellant's father. The 1 st Appellant himself has not adduced evidence of himself pursuing a Lease over the land. A fresh offer similar to a renewal would have created a new relationship as Lessor and Lessee. The Court therefore finds that the Lease Offer extinguished in 2002 with the demise of the Offeree Okello Bicali and any equitable rights arising thereunder were immediately extinguished. One cannot claim a benefit one is not privy to. In that regard, the Court finds that any assertion over any land made by the 1st Appellant on the basis of the extinguished Lease Offer is misconceived and without legal effect. Even if it were deemed to be in respect of the suit land at Labima Ward - which he in any case does not acknowledge, grant of a Lease would be subject to any other pertaining claims to the land by the Respondents. This, however, is without prejudice to his rights to acquire title to the lands he legitimately holds and owns unencumbered.

**See: Civil Appeal No. 3/2007: Dr. Adonia Kekitiimwa Vs. Edward Haudo Wakida, Civil Appeal No. 27/2012: James Magode Ikuya Vs. Londa Mbarak Abdallah, HCCS No. 395/1992: Gabriel Rugambwa Vs. Ezirioni Bwambale, Broach Vs. Ahmed (1965) 2 GB 02 & Papka Hirji case..**

[55]. In concluding on the grounds being considered, this Court finds that the Lower Court duly considered the Respondents claims to the suit land at Labima Ward as the Plaintiffs in the Trial Court credible with the evidence consistent and corroborated; as opposed to the Appellants' confused, inconsistent and uncorroborated evidence as the Defendants in the Trial Court. The Trial Court observed in its Judgement – that the Defendants **"gave contradictory stories of their alleged acquisition and ownership of 200 acres which they were not even sued for by the Plaintiffs"**. The Lower (Trial) Court cannot be faulted since this Court has similarly reached the same conclusion. The Plaintiffs at the Trial established their claims consistent with their pleadings in respect of the respective portions of land they filed suit over at Labima Ward all within the eight (8) Hectares pleaded by the Plaintiffs. As already observed, their testimony and evidence was un-controverted. The Trial Court therefore correctly reached the conclusion that they own the suit land at Labima Ward. The Court, however, observes that the Respondents as Plaintiffs at the Trial did not adduce any expert testimony of custom or tradition to establish that their ownership of the suit land was by virtue of customary tenure. As has been held in numerous authorities, customary tenure must be specifically established otherwise the mode of ownership is simply on the basis of possession and, or occupation. While it was asserted in the pleadings that the suit land at Labima Ward constituted "community land", there was no such evidence adduced before the Court and therefore such a finding cannot be sustained. **See: High Court Civil Appeal (Kitgum) No. 135/2021: Okello Thomas Vs. Akello Rose & Another.**

**Ground 2 – The Learned Trial Magistrate erred in Law and in fact when he visited the Locus in Quo but refused to see the graves of the family members of the Appellant and their homestead as such arriving at an erroneous decision which caused a miscarriage of Justice.**

[56]. Finally, on the *Locus in Quo* visit, this Court reviewed the Trial Court proceedings and original file and observes that the Record of proceedings do not include any content on the *Locus in Quo* visit simply stating on the 28th May, 2018 that **"the matter is coming up for Locus in Quo visit"**. There are also inconclusive efforts on file to draw a sketch map. The Trial Court did not follow the procedures and protocols established for a *Locus in Quo* visit. It is, however, not contested that the Learned Trial Magistrate did in fact visit the *Locus in Quo*. In his Judgment, the Learned Trial Magistrate observed that – he visited the *Locus in Quo* on the 25th July, 2018 and confirmed the encroachment by the Defendants on the eight (8) Hectares being the subject matter of the Trial which formed part of one hundred sixty (160) Hectares of land of the local community at Labima Ward – over which the Defendants had applied for a Lease and obtained a Lease Offer for an initial term of five (5) years which had expired and they had not sought renewal or renewed. The Court also observed that the eight (8) Hectare suit land was situate at the border of Labima Village and Olupe Central Village with the Plaintiffs resident in Labima Ward and the Respondents resident in Olupe Opong Ward. This Court finds that inspite of deficiencies in the *Locus in Quo* visit conducted, there was no miscarriage of Justice occasioned since the Trial Court was only bound to visit the suit land constituting the subject matter of the Trial. There was no requirement for the Trial Court to embark on a fact finding mission outside of the suit land at Labima Ward on the Appellants misconceived claim in the context of the land at Olupe Central Village – which in any case the same Trial Magistrate visited in **Civil Suit No. 24/2015**.

**See: Fernandes Vs. Noroniha [1969] EA 506, De Souza Vs. Uganda [1967] EA 784, Yeseri Waibi Vs. Edisa Byandala [1982] HCB 28, Nsibambi Vs. Nankya [1980] HCB 81, HCCA (Masaka) No. 59/2019: Ddamulira Aloysius Vs. Nakijoba Josephine, Bongole Geoffrey Vs. Agnes Nakiwala: CACA No. 076/2015.**

[57]. Having considered the Memorandum of Appeal, the Judgement and Proceedings of the Trial Court, the Pleadings of the respective parties in the Trial Court and the Submissions of the respective parties - this Court finds that this Appeal is without merits and fails. It is dismissed with costs. The Court, however, substitutes the Order that the Respondents are customary owners of the suit land with an Order that the Respondents are the owners of the suit land.

## **Orders of the Court.**

- [58]. The Orders of this Court are therefore as follows: - i. The Appeal fails on all grounds and is hereby dismissed with costs. - ii. The Respondents, Plaintiffs in the Trial Court, are owners of the suit land. - iii. The Appellants, Defendants in the Trial Court, are trespassers on the suit land. - iv. The Awards in favour of the Respondents at the Trial Court are upheld. - v. The Appellants shall bear the costs in this Court and in the Trial Court.

It is so Ordered.

**Signed and Dated on the 31st day of January, 2025. (High Court, Kitgum Circuit).**

**Philip W. Mwaka**

**Acting Judge of the High Court.**

## **Delivery and Attendance.**

This signed and dated Ruling shall upon the directions of the Presiding Judge be delivered to the parties electronically on **Friday, the 31st day of January, 2025 at 10:00am** by the Deputy Registrar, High Court, Kitgum Circuit and the parties present are to be recorded.

- 1. Counsel for the Appellant Ms. Otto Harriet. - 3. Counsel for the Respondents Mr. Komakech.

- 2. The Appellants Mr. Moro Lamson & 3 Others. - 4. The Respondents Mr. Nyeko Sisto & 3 Others. - 5. Court Clerk, present Mr. Atube Michael.


**Philip W. Mwaka**

**Acting Judge of the High Court.**

**31st day of January, 2025**