[2024] UGHC 363

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT GULU CIVIL SUIT NO. 3 OF 2019**

**NOKRACH CHURCHILL**

**(Legal representative of OLWENY GEORGE WILLIAM) ============PLAINTIFF -VERSUS-**

**ANGELINA LAMUNU LANGOYA===========================DEFENDANT**

# **BEFORE: HON. JUSTICE PHILLIP ODOKI JUDGMENT**

### **Introduction:**

[1] This suit was instituted by Olweny George William (hereinafter referred to as 'the Plaintiff') against Angelina Lamunu Langoya (hereinafter referred to as 'the Defendant') seeking for, a declaration that land located at Pama Village, Okol Parish, Madi Opei Sub County, Lamwo District measuring approximately 2,224 acres (hereinafter referred to as 'the suit land'), belongs to the estate of the late Enoci Oweka and costs of the suit.

[2] During the course of the trial, the Plaintiff died (after he had already testified). This court gave a limited grant of letters of administration to Nokrach Churchill for the purpose of representing the Plaintiff in this suit under Section 222 of the Succession Act, Cap 162.

## **The Plaintiff's case:**

[3] The Plaintiff pleaded that in 1970, he resigned from his work as a Tax Clerk with Acholi District Administration and returned to their home at Dog - Gwenyu Village, Okol Parish, Madi Opei Sub – County, Lamwo District in order to help his father, Enoci Oweka, who had become elderly and weak. In 1972, because the home of Enoci Oweka at Dog Gwenyu village had become too small to keep the cattle of Enoci Oweka, he (the Plaintiff) and Enoci Oweka went to Pama village in search for a bigger piece of land to keep the cattle. While at Pama, they first settled at the home of Ocen Befina. In the same year (1972) they moved to the suit land, put up grass thatched huts and started using the land for keeping animals and for cultivation. In the same year (1972), a group called "Nen Ki Wangi" applied for a lease of a piece of land, including the suit land, from Kitgum District. Subsequently, the group put boundary demarcation marks made of poles which was separating the suit land and the land which they wanted to lease. He (the Plaintiff) and Enoci Oweka put barbed wires on the poles already planted by the group. In 1975, Enoci Oweka died leaving him (the Plaintiff) in charge and in full control of the home and the properties he left behind. He (the Plaintiff) continued to use the suit land for rearing cattle, cultivation and settlement. In 2009, his brother, Timothy Langoya, died. The widow of Timothy Langoya (the Defendant) applied for and was granted letters of administration to the estate of the late Timothy Langoya vide Gulu High Court Administration Cause No. 0129/2009. The suit land was not listed among the properties of Timothy Langoya since it did not form part of his estate.

[4] In 2010, the Defendant started claiming that the suit land belongs to her, alleging that it was acquired by her late husband, Timothy Langoya. According to her, he (the Plaintiff) was only a worker in the farm of his brother, Timothy Langoya, which farm was on the suit land. The Defendant went ahead and applied to have the suit land registered in her name without the consent of any member of the family of Enoci Oweka. She chased away his (the Plaintiff's) relatives from the suit land and encouraged trespass onto the suit by many people. He (the Plaintiff) contended that the suit land belongs to the estate of the late Enoci Oweka.

#### **The Defendant's case:**

[5] The Defendant denied all the allegations against her by the Plaintiff. She pleaded that her late husband (Timothy Langoya) acquired the suit land in the 1960's when it was vacant land. In 1974, her Husband (Timothy Langoya) registered Ametmet Enterprises and vested the ownership of the suit land on it. The family of Timothy Langoya have been in occupation of the suit land from the 1970's up to the time she filed her defense in this suit. It was only during the period of insurgency in northern Uganda when the family of Timothy Langoya left occupation of the suit land, but have since returned on it. After the death of Timothy Langoya, his family resolved that the suit land be registered in the name of Ametmet Enterprises and that is the reason why it was not listed among the properties of the late Timothy Langoya when she applied for letters of administration for his estate. She contended that the Plaintiff has never lived or utilized the suit land, except for the time he was asked by the late Timothy Langoya to oversee his (Timothy Langoya's) activities on the suit land. It was in 2015 when the Plaintiff started claiming that the suit land belongs to the estate of the late Enoci Oweka and started chasing people away from it. She further contended that the land of Enoci Oweka is located at Dokgwenyu Village, Okol Parish, Madi Opei Sub County, Lamwo District 3 miles away from the suit land. She prayed that the suit be dismissed with costs.

#### **Issues:**

[6] The following issues were agreed upon by the parties for the determination of the court.

- i. Whether the suit land belongs to the estate of the late Enoci Oweka. - ii. What remedies are available to the parties.

#### **Legal representation:**

[7] At the hearing, the Plaintiff was represented by Mr. Luis Odongo of M/S Odongo & Co Advocates and Mr. Kenneth Engoru of M/s Lex Uganda Advocates & Solicitors. The Defendant was represented by Ms Rosemary Kunihira of M/S Kunihira &Co. Advocates.

#### **Evidence presented:**

[8] At the hearing, the Plaintiff testified as P. W.1. He called 8 witnesses. The Plaintiff's cousin sister called Doloka Lakot testified as P. W.2; A neighbor of the suit land called Layini Sirina testified as P. W.3; a wife to the Plaintiff called Atoo Josephine testified as P. W.4; Oryem Noe, an alleged eye witness when the suit land was acquired, testified as P. W.5; Oryem Daniel, a village chief (Rwot Kweri) of Dog – Gwenyu village testified as P. W.6; Amic Tom Otim, a resident of Karuma village, which neighbors the suit land, testified as P. W.7; The Plaintiff's son, Otema Richard, testified as P. W.8; and the Plaintiff's son, Nokrach Churchill, testified as P. W.9. In addition, the Plaintiff adduced 23 documents which were admitted in evidence and marked as PX1 – PX 23.

[9] The Defendant testified as D. W.1. She adduced 2 witnesses. Valentino Otunu, the alleged village chief (Rwot Kweri) of Pama Village from 1969 to 1986 testified as D. W.2. Lonyera Phillip, an alleged neighbor of the suit land, testified as D. W.3. In addition, the Defendant adduced 12 documents which were admitted in evidence and marked as DX1 – DX12.

[10] The Plaintiff (**P. W.1**) testified that in 1970 his father, Enoci Oweka, had become weak. His father requested him (PW1) to resign from his government job to go and live with him at his father's home at Dog – Gwenyu village. He accepted, left his government job and started living with his father. At the time, his father's land at Dog – Gwenyu village had become small, his father's cows had become many. His father needed more land for grazing his livestock and for cultivation. In 1972, his father took his cattle to Arenya, in Pama village where there was better pasture. His father requested for land from his son in law Kasiano Oloya alias Odota to allow him keep his cattle at Arenya. Kasiano showed his father where to construct a kraal. His father collected his cattle from Dog – Gwenyu village and took them to Arenya where Kasiano showed him. Later, Kasiano advised his father to go to Bafieno Ocen Abe for more land. Bafieno Ocen Abe showed Enoci Oweka where to put his kraal and not for settlement. They kept the cattle there for some time. The cattle would be taken to Arenya steam for water. The place had good pasture that could not dry up during the dry season and could accommodate large number of livestock. The place was originally the homestead of the people of Paloga. When the people of Paloga left, the place became vacant land, with no settlement. His father built a house on the land which had been left by the people of Paloga. They later shifted to a place near Arenya and Okoa streams at a place called Cwarut, within the suit land. The brother of his father called Galdino Nyok placed an egg under a tree called "Cumu" as per the Acholi culture, to establish if the place was suitable for settlement. When the egg was not eaten by any wild creature, they concluded that it was safe for settlement. They built 4 grass thatched houses at that point within the suit land.

[11] The Plaintiff further testified that in 1972, there was a group called Nen – Ki – Wangi Livestock Farmers. He (P. W.1) was the secretary of finance of the group. The group applied for a lease from the Government. He (P. W.1) was signatory to their application. However, when the group started to demarcate the land, they wanted to include the suit land inside. He (P. W.1) and other members of the group objected to the inclusion of the suit land into the land of the group. Some members of the group from Madi Opei mobilized people and planted fencing poles from Arenya to Okoa streams. It is at that point that he (PW1) wrote a letter to his brother Timothy Langoya requesting him to send fencing wires to enable them fence the suit land to avoid the group enclosing them within their fence. Timothy Langoya sent the barbed wires and also went to the office of Obol Ochola who wrote to the group a demand notice. He (P. W.1) fenced the suit land by placing the barbed wires on the poles which had already been planted by the group from Arenya to Okoa at a place called Larom.

[12] The Plaintiff further testified that at the first place where they settled and built 4 grass thatched houses, water would flow into their compound. They then relocated to the upper home (Gang ma Malo) where they built a semi-permanent house. His brother Timothy Langoya showed him a plan of a permanent house. They built the house of his brother Timothy Langoya and completed it in 1983. Timothy Langoya had workers on the suit land who were building his house and he also hired people to fence the suit land. Timothy Langoya would give him (P. W.1) money to pay his workers and he (Timothy Langoya) bought a tractor to help the family and for the construction of his house. All the support he gave was because he was a son of Enoci Oweka and not for his personal benefit. They settled and lived there as brothers without any dispute for over 40 years. They were living together with the Defendant. The dispute only started in 2015 after the death of Timothy Langoya. He stated that his father died leaving behind livestock and land that was never divided. After his death, no meeting was convened to distribute his property.

[13] The Plaintiff further testified that Timothy Langoya did not have cattle or carry out any cultivation on the suit land because he was staying in Kampala with his wife, the Defendant. The cattle which was on the suit land belonged to his father (Enoci Oweka) and they were over 400 in number. He (P. W.1) took care of the cattle after the death of his father in 1975 up to the time when the cattle were rustled by the Karamojong. He denied that he was looking after the cows of Timothy Langoya.

[14] In addition, the Plaintiff testified that the Defendant would only come to the suit land during holidays and festive seasons because she used to live with her husband in Kampala. She started going to the suit land for holidays and festive seasons in 1983 when the construction of the house of her husband (Timothy Langoya) was completed. Meanwhile, for him (the Plaintiff) together with his mother, his two wives, children and the people looking after the animals lived on the suit land. He stated that Enoci Oweka did not settle on the suit land. He was sick and weak. He sent him to look after his cattle.

[15] **P. W.2** (Doloka Lakot), a cousin sister of the Plaintiff and wife to Kasiano Oloya Odota, testified that the suit land belongs to Enoci Oweka having acquired it when it was vacant land, for the purpose grazing livestock. According to her, Enoci Oweka went with Galdino Nyok and Kasiano Oloya (her husband) to acquire the suit land. She testified that Enoci Oweka first acquired land from Abe then acquired the suit land. According to her, Enoci Oweka never settled on the suit land but his wives, including the mother of the Plaintiff, lived on the suit land. She stated that the Plaintiff left his job and began looking after the livestock of Enoci Oweka. The Plaintiff lived on the suit land together with his 2 wives. He built 3 grass thatched houses and a semi-permanent house on the suit land but the houses collapsed in the mid 1980s. She testified that the Plaintiff was also keeping the cattle of his father till they were rustled by the Karamojong sometime after 1986. According to her, the Defendant built a house on the suit land although she was working in Kampala. She started cultivating the suit land after the death of her husband.

[16] **P. W.3** (Layini Sirina), a neighbor of the suit land, testified that he used to go to the suit land from time to time to help the Plaintiff with work since the Plaintiff was a friend to her husband. She testified that the Plaintiff first built 4 huts for herdsmen and later built a semipermanent structure on the suit land. Later on, Timothy Langoya came and built a big house on the suit land. According to P. W.3, Dina Anyomorach, the mother of the Plaintiff and Timothy Langoya were living in Dog – Gwenyu. They only came to the suit land after the death of Enoci Oweka when the Karamojong were raiding the cattle. The Plaintiff built for Dina Anyomorach a house on the suit land. She testified that the cattle which were on the suit land belonged to Enoci Oweka.

[17] **P. W.4** (Atoo Josephine), the wife of the Plaintiff, testified that she got married to the Plaintiff in 1972 and she first stayed in the house of her mother in law (Dina Anyomorach) at Dog – Gwenyu. According to her, at that time, the cows of Enoci Oweka were no longer at Dog – Gwenyu. She testified that in 1973, when she first reached at the suit land, they got an egg placed near a big tree called 'Cumo' still there. At that time, she was pregnant with her first child Nokrach Churchill. They cut grass to build their first hut at the suit land because the suit land did not have any house except the one used by herdsmen. She mobilized women from her own village, Pocodo, to help her with the work while her co – wife (Ayaa Rose) mobilized women from Dog – gwenyu. Between 1973 – 1974 four huts were built on the suit land where they first settled. One for herself, one for her co – wife, one for her mother in law and one for children. The place where they first settled was a sloppy ground affected by running water. They then moved to their second settlement where they lived until 1996 when rebels came and abducted her family members including the Plaintiff and they had to abandon the suit land. When people returned from the camps, she started digging the suit land while staying from Kitgum. According to P. W.4, she was the first woman to settle on the suit land with her new born baby Nokrach Churhill and Okot Livingstone before she was joined by her co – wife and mother in law. She witnessed most of the things that took place at the suit land including the fencing and the building of houses which happened in the absence of the Defendant and her husband. She further testified that Enoci Oweka did not have a house on the suit land. He was weak, although at times he would go and visit his cattle. She stated that Timothy Langoya did not have cows on the suit land.

[18] **P. W.5** (Oryem Noe), a son of Kasiano Oloya alais Odota, testified that when the cows of Enaci Oweka were brought to their home by Enoci Oweka and the Plaintiff, he was there. His father went with Enaci Oweka to Abe to request for more land since the cows of Enoci Oweka were too many and needed a larger space. He stated that the cows were first moved to Lonyeru forest and later transferred to the suit land which was vacant. He stated that Enoci Oweka was present when the cattle were taken to the suit land. Enoci Oweka inquired about the suit land from Abe who was the immediate neighbor of the suit land. He testified that he participated in taking the cows to the suit land. He mentioned the people who were at the kraal of Enoci Oweka as Lowala, Kujakileng (Enoci Oweka's uncle), Rapheal alias Arapa. He testified that the Plaintiff built 4 huts in the first homestead near Cumu tree. According to him, the fencing started when the Plaintiff had already settled in the first homestead. He testified that he started seeing the Defendant in 1974 when they started constructing the first home. He further testified that he took part in many activities in the suit land including fencing, uprooting trees when the tractor was brought, laying bricks for the permanent house of Timothy Langoya which was constructed in the second homestead and he was the turn boy of the tractor until he was able to drive.

[19] **P. W.6** (Oryem Daniel), a village chief (Rwot Kweri) of Dog – Gwenyu, village which neighbors the suit land, testified that in the 1950's his father Celsius Arum and Enoci Oweka were friends and they used to stay together. Around 1972, when he was 11 years old, Enoci Oweka shifted his cows from Dog – Gwenyu village to the suit land. He (P. W.6) used to be sent to bring milk and would help in looking after cows. He stated that his father was a member of the group Nen – ki- Wangi who wanted to fence off the suit land but because it belonged to Enoci Oweka's family, they abandoned the idea and the wires which were brought for the project were left at their home in Dog – Gwenyu where it got rotten. He further testified that the Plaintiff used to mobilize them to go and dig on the suit land. Enoci Oweka would only go to the suit land to check for the cattle and go back to Dog – Gwenyu village. According to P. W.6, when Timothy Langoya went to the suit land and started constructing on the upper part of the suit land, Enoci Oweka was already on the suit land. He testified that Timothy Langoya did not have cows nor was he cultivating on the suit land. The cows on the suit land belonged to Enoci Oweka.

[20] **P. W.7**(Amic Tom Otim), a resident of Karuma village, which neighbors the suit land, testified that the suit land belongs to Enoci Oweka. According to him, the Plaintiff was occupying, cultivating and rearing of animals on the suit land before they were rustled. After the death of Enoci Oweka, his family did not have any dispute over the suit land. It was in February 2017 that he was invited to attend a land inspection meeting for the Defendant at the suit land. During the inspection meeting, the Plaintiff protested the inspection. The chairperson Local Council III and the chairperson Area Land Committee of Madi Opei informed them that it was not a meeting to settle land dispute but rather to show his (P. W.7's) boundary ends. They moved on the boundary amidst protest from the Plaintiff. He testified that he signed on the Demarcation Form (DX7) because there is no dispute between the people of Karuma and Enoci Oweka.

[21] **P. W.8** (Otema Richard), a son of the Plaintiff, testified that the suit land belongs to Enoci Oweka. According to him, in 1972 when the cattle of Enoci Oweka were transferred from Dog – Gwenyu to Doloka Lakots's place in Pama Village, he was present. He stated that Enoci Oweka picked him and his brothers Toorach Wison and Onekalit Kennedy and they accompanied the people who were taking the cows to Lakot Doloka's place in Pama Village. He named the people who took the cows as Rapheal Nono, Akeke, Luwala Logut Anthony. According to him, it appears his father and Enoci Oweka had already gone ahead when they were taking the cows. The cows did not take long at Lakot Doloka's place, they were moved to Lonyeru forest where there was a kraal next to Befiano Abe's home. The people who lived at the kraal included Rapheal Nono alias Arapapa, Kujakileng, Akeke, Lowala, Oryem Venanciyo and Logut Anthony. The cattle were later moved from Lonyeru forest and taken to the suit land under a tamarin tree where a temporary structure (Okelu) was built and Kujakileng died from there.

[22] P. W.8 further testified that around 1974, the Plaintiff constructed huts on the suit land, put barbed wire fence, which was sent by Timothy Langoya, on the poles planted by a group called Nen – ki- Wangi. In 1978 Timothy Langoya started constructing a big house which was completed around 1982 – 1983. Around 1976 – 1977 Timothy Lagoya built 2 huts, one for the wife of the Plaintiff, Atoo Josephine, and another for the Defendant but because the Defendant went to Kampala shortly, the house was occupied by the mother of the Plaintiff. He testified that his father also built some huts and a semi-permanent house on the suit land. Timothy Langoya built another hut in 1985. Timothy Langoya brought a tractor to the suit land to support work. He further testified that he and Gideon built 2 huts on the second settlement and he planted mango trees on the suit land. When he lost his second born, they buried the child on the suit land. He stated that his father has been utilizing the suit land from the time they settled on the suit land with the exception of the period of insurgency when they moved to the camps. According to him, Enoci Oweka would go to the suit land but go back to Dog – Gwennyu.

[23] **P. W.9** (Nokrach Churchill), a son of Olweny George William, testified that that his mother moved to the suit land when he was still a toddler. He learnt how to walk and talk from the suit land. They had 4 grass thatched huts in the compound near a big tree called Cumu. They later shifted to the current homestead where they had a large compound with 8 huts and 1 semipermanent house for his father. They used to look after the family cattle with a herdsman called Lokuda until when the cattle were rustled by the Karamojong in 1987. According to P. W.9, Timothy Langoya did not own a single cow. He stated that he started staying with Timothy Langoya in 1992 and at no time did he mention that the suit land belongs to him alone. P. W.9 testified that in 2007, at a family meeting, he asked his father and Timothy Langoya about how the suit land was acquired and if there were any document for it. That the two informed him that they acquired the suit land for taking care of their cattle and they praised each other for the contribution in acquiring the suit land and maintaining the land. They stated that the only document available is a letter to Nen – Ki – Wangi Livestock Group which was written by Obol Ochola & Co. Advocates.

[24] The Defendant **(D. W.1)** testified that the suit land is personal property of Timothy Langoya having acquired it in the early 1970s when it was vacant. It was bordering the cattle keeping communities of Pama, Lamogi – Pobudi and Kila clans. It was hunting ground for the whole of the people of Madi – Opei, called Ajabo. According to her, in those days, a person would ask for a vacant piece of land. The suit land was given to Timothy Langoya by the elders who neighbor of the suit land. She mentioned the neighbors of the suit land who gave the suit to her husband as being, father of Valentino Otunu, from Lopulingi clan, who neighbor the suit land from the east; father of Opige George Caa - moi, from Kila clan, who neighbor the suit land from the western side; and father of Lonyera Phillip, from Lamogi – Pamuda clan, who neighbor the suit land from the north. According to the Defendant, it was Valentino Otunu, who was the village chief of the area and the relatives of the wife of Enoci Oweka called Merica Apoka who went with Timothy Langoya to request for the suit land from the elders who neighbor of the suit land. She testified that the suit land was not given to her husband by any clans but by the three elders.

[25] The Defendant further testified that she remained at Dog – gwenyu village and was not present when Timothy Langoya requested the elders to give him the suit land. She was only told of what was discussed by Timothy Langoya. After acquiring the suit land, Timothy Langoya took possession of it. He asked Owech and Gidion to first settle on the suit land and built 4 grass thatched houses for his workers who numbered 20. In 1972, Timothy Langoya fenced off the suit land with barbed wires. In 1974, he established a mixed farm business on the suit land and registered it as Ametmet enterprises. According to the Defendant, by the time Timothy Langoya acquired the suit land, the Plaintiff was working as a clerk to the Parish Chief of Palabek. He (the Plaintiff) was staying with his mother at the home of his uncle Benjamin Pido at Lawiye -adul in Madi – Opei a distance of 10 kms. Since Timothy Langoya was working in Kampala, he asked the Plaintiff to be in charge of the farm and Timothy Langoya began to send to him money to pay of worker.

[26] The Defendant further testified that the Plaintiff was living on the suit land as a farm manager. He lived together with his two wives and mother with the permission of Timothy Langoya. In 2017, the wife of the Plaintiff called Rose Ayaa who was staying in Dog – Gwenyu requested her (the Defendant) to allow her on the suit land and she agreed because of the good relationship she had with her. She stated that the Plaintiff stayed in the house of his mother and he did not build his own house on the suit land. The Defendant further testified that Timothy Langoya brought his cattle, which were local breed and those of his father to keep on the suit land. According to her, in the 1970s no herdsman built on the suit land. It was Timothy Langoya who constructed 3 grass thatched houses on the suit land. One of the people who was keeping the cattle was called Raphael. She testified that by 1972, they were already in possession of the suit land. According to her, Enoci Oweka was too old and she did not see him on the suit land. Enoci Oweka had chased away the mother of the Plaintiff that is why she was staying on the suit land. She testified that she does not know Kujakileng. She only heard about him as a clan brother to Enci Oweka and he did not stay on the suit land. She further testified that in 2010 she applied, through Acholi War debt Claimants Association, for compensation for the cattle of Timothy Langoya which were raided by the NRA soldiers and it was confirmed by the Local Council II and other local leaders including Too – rach Wilson, a biological son of the Plaintiff who was a Parish Chief of Okol Parish at the time. She testified that in 2010, after the death of Timothy Langoya, rituals were done by hundreds of community members from the neighboring villages to appease the spirits to get a good harvest from the suit land but the Plaintiff did not raise any claim in respect of the suit land. Furthermore, she testified that during the inspection of the suit land by the Area Land Committee, although the Plaintiff issued a lot of threats, the Area Land Committee went ahead to approve her application. She testified that when she applied for letters of administration for the estate of the late Timothy Langoya, she was advised not to include the suit land since it was owned by Ametmet enterprises.

[27] **D. W.2** (Valentino Otunu), testified that he was a village chief of Pama village between 1969 and 1986. Around 1970, Timothy Langoya went to him and Abe requesting for land because he needed to shift from his village to Pama village to establish a modern farm. Timothy Langoya promised that if he was given land, he was going to fence it off so that cattle would not move freely. Timothy Langoya also promised that the farm would be of benefit to the community since they would also be allowed to keep their cows on the land. As the village chief of the village, he (D. W.2) together with Abe, who was the community leader of Pama, they called a meeting of elders and the community of Pama village, which comprises of different clans. In that meeting, Timothy Langoya requested for land to start up a modern farm. He testified that the people who were present in the meeting were himself (D. W.1), Ocen Bepino Abe, Julio Goro, Orwech Jibidayo, Ongwen Erico, Oryem Albert, Opira Quinto who was the village chief (rwot kweri) of the area and others. The community accepted the request of Timothy Langoya. According to him, the different clans living in Pama village gave the suit land to Timothy Langoya. He testified that before the suit land was given to Timothy Langoya, the people of Pama were the one using the suit land for digging and keeping cattle. He testified that the people of Lamogi – Pamudi clan who neighbor the suit land from the northern side and the people of Kila clan who neighbor the suit land from the southern side all gave a piece of their land to Timothy Langoya.

[28] D. W.2 further testified that after acquiring the suit land, Timothy Langoya informed his father and the Plaintiff. He took them to show them the suit land. He constructed 3 huts, one for his wife and two for his brothers. In 1973 Timothy Langoya delegated the Plaintiff to erect a fence around the suit land with barbed wires. According to D. W.3, when the Plaintiff was putting the fence on the suit land, he called him (D. W.2) and the chairman of Pama community to show him the boundaries of the land. The Plaintiff employed 20 people to work in Timothy Langoya's farm. The workers erected the fence and built a permanent house. Timothy Langoya introduced cattle in the suit land and a tractor. He put his brother the Plaintiff in charge of the workers. DW1 testified that kujakileng did not stay in the house of herdsmen on the suit land. He further testified that Enoci Oweka neither reached the suit land nor had any kraal on the suit land. According to him it is Timothy Langoya who brought the cows of Enoci Oweka on the suit land. D. W.2 further testified that in 2010, he participated in the ritual performed on the suit land in the presence of Olweny George William who did not object to it.

[29] **D. W.3** (Lonyera Phillip), testified that he is a neighbor to the suit land which belongs to Timothy Langoya having been given to him by the clans of Lamogi Pamuda and Kila clan to establish a farm. At the time the suit land was given to Timothy Langoya, the suit land was vacant. After acquiring the suit land, Timothy Langoya erected a fence around it and constructed cattle deep. D. W.3 testified that he started seeing the Plaintiff on the suit land in the mid 1970s when he was the farm manager and was responsible for paying workers. He testified that he never saw Enoci Oweka on the suit land. According to him, After Timothy Langoya was given the suit land, he informed his father and the Plaintiff. He took them to show them the suit land. Enoci Oweka was already very old and could not relocate. He testified that in 2012 Nyok Galdino sued him vide Civil Suit No 14 of 2012 in the Chief Magistrates Court of Kitgum and one of the sons of the Plaintiff testified that the suit land, in that case, neighbors the land of Timothy Langoya. He further testified that Nyok Galdino is an in-law in the home of Enoci Oweka. Nyok Galdino was given part of the land of Enoci Oweka and that was the land he sued him (D. W.3) over.

## **Submissions of counsel:**

[30] At the close of the hearing, Court directed counsel to file written submissions, which directives were duly complied with. Counsel for the Plaintiff submitted that the Plaintiff adduced evidence to the required standard to prove that Enoci Oweka acquired the suit land in accordance with the Acholi custom. According to counsel, the evidence of the Plaintiff's witnesses was not challenged by the Defendant's witnesses. Counsel submitted that the Defendant on the other hand failed to explain how Timothy Langoya acquired the suit land. Counsel further submitted that even when the Defendant applied for letters of administration to the estate of the late Timothy Langoya, she did not include the suit land as part of his estate. Counsel further submitted that during the hearing at the locus in quo, the Defendant contradicted the evidence which she had given in the court.

[31] Counsel for the Defendant on the other hand submitted that land in Uganda is held under 4 different land tenure systems as provided for in Article 237 of the Constitution of the Republic of Ugnada,1995. That is, Freehold; Mailo; Leasehold; and customary. Counsel submitted that the plaint did not disclose what interest the late Enoci Oweka acquired in the suit land. According to counsel for the Defendant, the introduction of evidence of acquisition of the suit land under the Acholi custom which was not pleaded amounts to a departure by the Plaintiff from his pleaded case. Counsel further submitted that given that the plaint did not disclose the land tenure under which the late Enoci Oweka acquired in the suit land, the plaint did not disclose any cause of action against the Defendant.

[32] Counsel further submitted that there were several contradictions in the evidence of the Plaintiff's witnesses regarding, the year when the cattle of Enoci Oweka were taken to the suit land; who moved the cows to the suit land; how the land was acquired by Enoci Oweka; and whether Enoci Oweka had a homestead on the suit land. Counsel pointed out that in the plaint, the Plaintiff pleaded that in 1976 together with his father they fenced the suit land and yet Enoci Oweka died in 1975. Counsel further pointed out that some of the Plaintiff's witnesses told court that the Enoci Oweka neither lived on the suit land nor had a homestead on the suit land while other witnesses testified that he lived on the suit land. Counsel pointed out that P. W.8 (Otema Richard) testified that he participated in moving the cattle to the suit land while Enoci Oweka remained at his home in Dog – gwenyu as he had become very weak and old. However, P. W.5 (Oryem Noel) testified that he moved together with Enoci Oweka and the Plaintiff. According to counsel for the Defendant, the contradictions go to the root of the case.

[33] Counsel further submitted that in Civil Suit No. 14 of 2009 before the Chief Magistrates Court of Kitgum, the Plaintiff's eldest son Otema Richard (P. W.8) was one of the witnesses of Galdino Nyok who was the plaintiff. He testified that he used to cultivate the farm of Timothy Langoya and Nyok Galdino used to cultivate next to the fence of that farm.

[34] Counsel further submitted that in 1974 Timothy Langoya registered a business name Ametmet for ranching and farming wherein he was a sole proprietor. P. W.4 (Atoo Josephine) also testified that the suit land was named Ametmet in 1974. According to counsel, it was not a coincidence that the suit land was named Ametmet in the same year when the business name was registered.

[35] In addition, counsel submitted that when the Defendant applied to Acholi War Debt Claimants for compensation for the cattle of Timothy Langoya, the son of the Plaintiff called Too -rach Wilson approved the application as a Parish Chief together with other leaders. Counsel wondered why the son of the Plaintiff would approve the application for compensation well knowing that Timothy Langoya never owned any cattle.

[36] Furthermore, counsel submitted that when the Defendant applied to convert the suit land from customary land into freehold, P. W.7 (Amic Tom) singed the demarcation form and did not raise any objections towards the inspection of the suit land by the Defendant. Counsel wondered why P. W.7 (Amic Tom) who told the Court that the suit land belongs to Enoci Oweka could have signed the land demarcation form confirming that the suit land belongs to Timothy Langoya's family.

[37] In rejoinder, counsel for the Plaintiff submitted that in the plaint, it was clearly stated that the suit land belongs to the estate of the late Enoci Oweka. Counsel submitted that all land in Acholi sub region is customary land with the exception of those which are applied for. According to counsel, it was not necessary to plead that the land was customary land. On the year 1976 which was mentioned in the plaint as the year when the Plaintiff and his father fenced the suit land, counsel submitted that it was a drafting problem. Counsel submitted that the plaint and the evidence clearly show that Enoci Oweka died in 1974. On the alleged contradiction in the evidence of P. W.8 (Otema Richard) and P. W.8 (Otema Richard) counsel submitted that if at all there was any contradiction, it was minor and it should be ignored. On the evidence in Civil Suit No. 14 of 2009 before the chief Magistrates Court of Kitgum, counsel submitted that the evidence is not relevant to this suit. Furthermore, counsel submitted that Otema Richard testified that the land in that suit is different from the suit land. On the registration of Ametmet, counsel for the Plaintiff submitted that it does not show that Timothy Langoya owned the suit land. On the application for compensation for cattle, counsel submitted that it does not prove that Timothy Langoya owned the suit land. On the application for conversion of the suit land from customary tenure into freehold, counsel submitted that P. W.7 (Amic Tom) testified that he signed the demarcation form thinking that is was confirmation of the boundary between Pama village and Karuma village.

## **Burden and standard of proof:**

[38] The burden of proof in civil matters lies upon the person who asserts or alleges. Any person who, wishes the court to believe the existence of any particular fact or desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he or she asserts, must prove that those facts exist. (*See section 101, 102 and 103 of the Evidence Act Cap 6 of the laws of Uganda*). The opposite part can only be called to dispute or rebut what has been proved by the other party (*See Sebuliba versus Co-operative Bank (1982) HCB 129).* The standard of proof required is on the balance of probabilities. In *Miller versus Minister of Pensions (1947)2 ALL ER 372* Lord Denning stated;

*"That the degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: 'we think it is more probable than not,' the burden of proof is discharged, if the probabilities are equal, it is not."*

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

[39] Before I proceed to determine the agreed issues in this matter, I have noted that counsel for the plaintiff raised 2 points of law which I consider it prudent to first determine them. The 1st point of law was that the plaint does not disclose a cause of action against the Defendant. Order 7 rule 11(a) of the Civil Procedure Rules enjoins this court to reject a plaint if it does not disclose a cause of action. A cause of action was defined by the Supreme Court in *Attorney*

*General versus Major General David Tinyefunza, Constitutional Appeal No. 1 of 1997* to mean;

> *"…every fact, which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court. In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to*

*relief against the defendant. ... It is, in other words, a bundle of facts, which it is necessary for the plaintiff to prove in order to succeed in the suit. But it has no relation whatever to the defence which may be set up by the defendant, nor does it depend upon the character of the relief prayed for by the plaintiff. It is a media upon which the plaintiff asks the court to arrive at a conclusion in his favour. The cause of action must be antecedent to the institution of the suit."*

## [40] In *Auto Garage -vs- Motokov (No. 3) (1971) EA. 514* at page 519, Spry V. P, held that;

*"I would summarise the position as I see it by saying that if a plaint shows that the plaintiff enjoyed a right, that right has been violated and that the defendant is liable, then, in my opinion, a cause of action has been disclosed and any omission or defect may be put right by amendment."*

[41] A determination as to whether a plaint discloses a cause of action or not has to be made only upon perusal of the Plaint and its annexures if any. This was the view expressed in the East African Court of Appeal case of *Jeraj Shriff & Co Versus Chotai Fancy Stores [1960] 1 EA 374* where Windham J. A. at page 375 held that:

*"The question whether a plaint discloses a cause of action must be determined upon a perusal of the plaint alone, together with anything attached so as to form part of it and upon the presumption that any express or implied allegations of fact in it are true."*

[42] In the instant case, a reading of the plaint clearly shows that the suit land was acquired by Enoci Oweka who is the father of the Plaintiff. After the death of Enoci Oweka, in 2007 the Defendant started claiming ownership of the suit land and went ahead to apply to have the suit land registered in her names without the authority and consent from the Plaintiff or any other member of the family of the late Enoci Oweka. The Plaint therefore shows the Plaintiff, as a beneficiary of the estate of the late Enoci Oweka who enjoys a right over the suit land as a beneficiary. It also shows that his right as a beneficiary was violated by the Defendant who is claiming ownership of the suit land and has gone ahead to apply to register it in her name. I do not find any merit in the submission of counsel for the Defendant that because the Plaintiff did not disclose the land tenure system under which the late Enoci Oweka acquired the suit land, the plaint did not disclose any cause of action against the Defendant. It was enough for the Plaintiff to state in the plaint that the suit land belongs to the estate of the late Enoci Oweka, the tenure under which Enoci Oweka held the suit land is a matter of evidence.

[43] The 2nd point of law which was raised by counsel for the Defendant was that because the Plaintiff introduced evidence of acquisition of the suit land under Acholi custom in his evidence, it amounts to departure from his pleadings. The rule against departure of pleadings is found in Order 6 rule 7 of the Civil Procedure Rules S. I.71-1 which provides that:

*"No pleading shall, not being a petition or application, except by way of amendment, raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading that pleading."* Underlined for emphasis.

[44] In *Interfreight Forwarders (U) Limited versus East African Development Bank (1990 – 1994) EA 117.* At page 125, Oder J. S. C stated that:

*"The system of pleadings is necessary in litigation. It operates to define and deliver it with clarity and precision the real matters in controversy between the parties upon which they can prepare and present their respective cases and upon which the court will be called upon to adjudicate between them. It thus serves the double purposes of informing each party what is the case of the opposite party which will govern the interlocutory proceedings before the trial and which the court will have to determine at the trial. See Bullen & Leake and Jacob's Precedents of pleading 12th Edition, page 3. Thus, issues are formed on the case of the parties so disclosed in the pleadings* *and evidence is directed at the trial to the proof of the case so set and covered by the issues framed therein. A party is expected and is bound to prove the case as alleged by him and as covered in the issues framed. He will not be allowed to succeed on a case not so set up by him and be allowed at the trial to change his case or set up a case inconsistent with what he alleged in his pleadings except by way of amendment of the pleadings."*

[45] In the instant case, the Plaintiff pleaded that the suit land belongs to the estate of the late Enoci Oweka. An issue was framed as to whether the suit land belongs to the estate of Enoci Oweka. The evidence which was adduced regarding acquisition of the suit land by Enoci Oweka was not introducing a new ground of claim or containing any allegation of fact inconsistent with the pleadings of the Plaintiff. It was evidence to prove how Enoci Oweka became the owner of the suit land. Therefore, the submission of counsel for the Defendant that the Plaintiff departed from his pleaded case when he introduced evidence of acquisition of the suit land by Enoci Oweka under the Acholi custom is misconceived. It is accordingly rejected. I shall now proceed to determine the issues which were framed by the parties.

## **Issue 1:** Whether the suit land belongs to the estate of the late Enoci Oweka.

[46] The Plaintiff pleaded and testified that Enoci Oweka acquired the suit land in 1972. His evidence regarding when the suit land was acquired by Enoci Oweka was corroborated by the evidence P. W.4 (Atoo Josephine), P. W.6 (Oryem Daniel) and P. W.8 (Otema Richard) who testified that Enoci Oweka acquired the suit land in 1972. The Defendant on the other hand pleaded that Timothy Langoya acquired the suit land in the 1960s. She later departed from her pleaded case and testified that Timothy Langoya acquired the suit land in the 1970s. Her witness, **D. W.2** (Valentino Otunu), testified that Timothy acquired the suit land around 1970., Counsel for the Plaintiff argued that all land in Acholi sub region is customary land with the exception of those which are applied for. Counsel for the Defendant on the other hand argued that the Plaintiff failed to disclose the land tenure systems provided for in the Constitution under which his suit is premised. In order to determine who between Enoci Oweka and Timothy Langoya acquired the suit land, I consider it prudent to examine the relevant law regarding land acquisition and ownership in Uganda, with particular emphasis on land outside Buganda, in order to put this case into proper context.

[47] When Uganda was declared a British protectorate, the traditional/customary system of land ownership and management which had been in place since time immemorial was changed. The evolution of land law outside Buganda can be traced from *The Uganda Order in Council, 1902.* The Order in Council created what was termed Crown land, which was vested in the Governor in trust for His Majesty the King. Crown land was defined in the Order in Council to mean:

*"…all public lands in Uganda which are subject to the control of His Majesty by virtue of any treaty, convention or agreement of His Majesty's protectorate and all lands which shall have been acquired by His Majesty for the public service or otherwise howsoever."*

[48] The Order in Council was followed by *The Crown Lands Ordinance, 1903* which provided for the manner in which Crown land would be allocated by the Governor. Thereafter, there was the *Crown Lands (Declaration) Ordinance, 1922*. Section 2 thereof provided that:

*"All lands and any rights therein in the Protectorate shall be presumed to be the property of the Crown unless they have been or are hereafter recognized by the Governor by document to be the property of a person or until the contrary thereof be proved as hereinafter provided."*

[49] Any persons claiming any right, title or interest as against the Crown in any particular area of land was given 12 months from the commencement of the Ordinance to lodge a claim with the Land Officer. The effect of the Ordinance was that all land in Uganda Protectorate, which was not held under a title was deemed Crown land.

[50] What was Crown land was largely renamed public land under *The Public Land Act, 1962*. The Act defined "Crown land" and "Crown Lands" to mean:

"…*all lands in Uganda (not being lands of which any person other than Her Majesty or the Governor is registered under the provisions of the Registration of Titles Act as the proprietor of an estate or freehold or of which any person is so registered as the proprietor of an estate in respect of which a final mailo certificate has been given) which immediately prior to the commencement of this Act were -*

- *a) subject to the control or in possession of Her Majesty by virtue of any treaty, convention or agreement, or of Her Majesty's protectorate; or* - *b) subject to the control or in the possession of Her Majesty having been acquired for the public service or otherwise howsoever."*

[51] The Act vested crown land in 4 different bodies. First, under Section 11, all Crown land which immediately prior to the enactment of the Act had not yet been granted to anybody as a lease under the Crown Lands Ordinance and which was occupied by Government for public purposes was vested in Uganda Land Commission in freehold. Second, under Section 14 of the Act, all Crown lands which had already been leased out to any public body under the Crown Lands Ordinance and occupied by any public body with the consent of the governor was vested in the public body in freehold. Third, under Section 12 of the Act, all Crown lands in Buganda, other than those mentioned in Section 11 and 14 of the Act was vested in Buganda Land Commission in freehold. Fourth, under Section 13, all Crown Lands outside Buganda which was in designated towns or which was not vested by other provisions of the Act, was vested in freehold in the land board of a Federal State (other than Buganda) or a land board of a District exercising jurisdiction over the area in which the land was situate. The land which was vested in those established bodies mentioned above was defined as public land under section 2 thereof.

[52] Customary tenure was first recognized by the law under Section 22 of *The Public Land Act, 1962*. The law provided that a person occupying land under customary tenure was permitted, as of right, to continue to occupy the land and to cultivate such land without a grant of lease or license from the controlling authority. However, a controlling authority was not prevented from making a grant in freehold or leasehold on the land.

[53] Thereafter the *Constitution of the Republic of Uganda, 1967* centralized land management. Under Article 108, all land which was formerly vested in Uganda Land Commission, including all land which was vested in the land boards of the kingdoms and districts were all vested in Uganda Land Commission.

[54] Subsequently, there was *The Public Lands Act, 1969* which declared that all land previously vested in Uganda Land Commission by Article 108 of The Constitution of the Republic of Uganda, 1967 would continue to be so vested for the same estate or interest and to the same extent as they were previously vested. The Act created District Land Committees to assist Uganda Land Commission in advisory capacity relating to land referred to it. Persons occupying public land under customary tenure were to continue to occupy public land without a grant, lease or licence from the controlling authority. The only exception was that, the land must have not been alienated by Uganda Land Commission; the land must have not been in an urban area; and no tenancy must have been created in respect of it. The controlling authority could not make a grant of public land occupied under customary tenure without the consent of customary occupants.

[55] Then came *The Land Reform Decree, 1975*. Under Section 1 thereof, all land in Uganda became public land which was to be administered by Uganda Land Commission in accordance with *The Public Lands Act, 1969* subject to such modifications as to bring it into conformity with the Decree. Under Section 2 of the Decree all interest in land, other than land held by the Commission, greater that leasehold, that is, freehold and mailo, were converted into leasehold. Under Section 3 thereof, the system of occupying land under customary tenure was allowed to continue but such occupant was only at sufferance and a lease on such land could be granted by Uganda Land Commission to any person without any consent of the holder of the customary tenure. The same position remained in force until the coming in of the *Constitution of the Republic of Uganda, 1995*.

[56] Article 237 of the Constitution provides that land belongs to the citizens of Uganda and vest in them in accordance with the 4 land tenure systems, that is, customary, freehold, mailo and leasehold. Needless to mention that Ugandans whos freehold interest or mailo interest in land had been converted into leasehold by the Land Reform Decree, 1975, their mailo or freehold interest in land was restored back to freehold or mailo interest respectively upon the coming into force of the Constitution. Persons who were merely occupying land under customary tenure, prior to the coming into force of the Constitution became owners of the land under customary tenure.

[57] From the above analysis of the law, it is very clear that at the time the suit land was allegedly acquired, the only persons who owned land or interest in land, outside Buganda, were those who acquired the land or interest in the land from the government or from other persons who had themselves acquired the land or interest in land from the government out of Crown land/public land. The other category were persons who were merely occupying land under customary tenure on crown land/public land.

[58] In the instant case, no evidence was adduced to prove that either Enoci Oweka or Timothy Langoya acquired the suit land from the government out of crown land/public land. It therefore means that Enoci Oweka or Timothy Langoya could have only acquired the right of occupancy on crown land/public under customary tenure. Customary tenure was defined in *The Public Land Act, 1962* and in *The Public Lands Act, 1969* the as:

"*…a system of land tenure regulated by laws or customs which are limited in their operation to a particular description or class of persons."*

[59] A person relying on any customary ownership of land has the onus to prove the custom, unless the court takes judicial notice of the custom under Section 55 of the *Evidence Act, Cap 6* in which case there would be no need to be proved the custom. In *Atunya Valiryano versus Okeny Delphino High Court Civil Appeal No. 0051 of* 2017 my brother Judge Mubiru J. held that:

*"…a person seeking to establish customary ownership of land has the onus of proving that he or she belongs to a specific description or class of persons to whom customary rules limited in their operation, regulating ownership, use, management and occupation of land, apply in respect of a specific area of land or that he or she is a person who acquired a part of that specific land to which such rules apply and that he or she acquired the land in accordance with those rules. The onus of proving customary ownership begins with establishing the nature and scope of the applicable customary rules and their binding and authoritative character and thereafter evidence of acquisition in accordance with those rules, of a part of that specific land to which such rules apply."*

[60] Where the customary law is well known nor documented the opinion of experts on the custom is a relevant fact in establishing the existence of a custom or customary law. See Section

Section 46 of the *Evidence Act, Cap 6.* In *Kampala District Land Board and another versus Venansio Babweyaka and 4 others SCCA No. 2 of 2007* Odoki C. J held that:

*"It is well established that where African customary law is neither well known nor documented, it must be established for the Court's guidance by the party intending to rely on it. It is also trite law that as a matter of practice and convenience in civil cases relevant customary law if it is incapable of being judicially noticed, should be proved by evidence of expert opinion adduced by the parties. In Ernest Kinyanjui Kimani v. Muira Gikanga [1965] E. A. 735, Duffus J. A. sai at page 789:*

*"As a matter of necessity, customary law must be accurately and definitely established. The Court has the wide discretion as to how this should be done but the onus to do so must be on the party who puts forward the customary law. This might be done by reference to a book or document of reference and would include a judicial decision but in my view, especially, of the present apparent lack in Kenya of authoritative text books on the subject or of any relevant case law, this would in practice, usually mean that the party propounding the customary law would have to call evidence to prove the customary law as he would prove relevant facts of his case."*

[61] Proof of mere occupancy and user of unregistered land, however long that occupancy and user may be, without more, is not proof of customary tenure. That occupancy should be proved to have been in accordance with a customary rule accepted as binding and authoritative. See: *Bwetegeine Kiiza and Another versus Kadooba Kiiza C. A. Civil Appeal No. 59 of 2009; Lwanga v. Kabagambe, C. A. Civil Application No. 125 of 2009; and Musisi v. Edco and Another, H. C. Civil Appeal No. 52 of 2010.*

[62] In the instant case, the Plaintiff gave an account of how his father occupied the suit land for the first time. He testified that his father found when the suit land was vacant, without any settlement. The brother of his father called Galdino Nyok placed an egg under a tree called "Cumu" as per the Acholi culture, to establish if the place was suitable for settlement. When the egg was not eaten by any wild creature, they concluded that it was safe for settlement. The evidence of the Plaintiff was corroborated by that of P. W.4 (Atoo Josephine) who testified that in 1973, when she first reached at the suit land, they got an egg placed near a big tree called 'Cumo' still there. When the court visited the locus in quo, P. W.9 **(Nokrach Churchill)** showed to the court the point where the egg was placed.

[63] In addition the evidence of the Plaintiff and his witnesses regarding the Acholi custom under which Enoci Oweka acquired the right of occupancy on the suit land, this Court takes judicial notice of the custom among the Acholi people of acquiring vacant land by placing an egg in the wilderness. If the egg is not eaten by any wild creature, they conclude that it was safe for settlement. In *Arim Felix Clive versus Stanbi Bank (U) Ltd, SCCA No. 3 of 2015* Prof. Lilian Tibatemwa -Ekirikubinza JSC stated that:

*"I note that Judicial Notice is a doctrine and/or the process by which courts take cognizance of a matter which is so notorious or clearly established that there is no need for a party seeking for its recognition by court, to adduce formal evidence for its proof."*

[64] The learned J. S. C adopted the definition in *Black's Law Dictionary, 9th Edition, page 670* of a matter or practice is said to be notorious if it is,

*"generally known and talked of, well or widely known, forming a part of common knowledge, universally recognized".*

[65] In this case, the custom among the Acholi people of acquiring vacant land by placing an egg in the wilderness and if the egg is not eaten by any wild creature, it is conclude that it is safe for settlement, is a fact which is so notoriously and widely known by any ordinary person among the Acholi people and they may be reasonably presumed to be aware of. It is therefore a fact that this Court takes judicial notice of.

[66] The Defendant, on the other hand, testified that in those days, a person would ask for a vacant piece of land. According to her, Timothy Langoya requested for the suit land and it was given to him by the elders who neighbor of the suit land. She denied that the suit land was given to Timothy Langoya by any clans. She named the elders who gave the suit land to Timothy Langoya, that is, the father of Otunu on the northern part of the suit land, the father of Opige on the western side of the suit land and the father of Lonyero Phillip on the southern side of the suit land.

[67] The evidence of the Defendant regarding the persons who gave the suit land to Timothy Langoya was sharply contradicted by her witnesses. D. W.2 (**Valentino Otunu**) and D. W.3 (**Lonyera Phillip**) testified that Timothy Langoya was given the suit land by the clans of Lamogi Pamuda and Kila. They did not testify that the suit land was given to Timothy Langoya by the father of, Otunu; Opige; and Lonyero Phillip as was alleged by the Plaintiff.

[68] The law on contradictions and inconsistencies is well settled. Major contradictions and inconsistencies will usually result in the evidence of the witnesses being rejected unless they are satisfactorily explained away. Minor ones, on the other hand, will only lead to rejection of the evidence if they point to deliberate untruthfulness on the part of the witness. See: *Sarapio Tinkamalirwe versus Uganda, Supreme Court Criminal Appeal No. 27 of 1989* and *Twinomugisha Alex and 2 others versus Uganda, Supreme Court Criminal Appeal No. 35 of 2002.*

[69] In the instant case, the contradiction in the evidence of the Deefendant and her witness is major. It concerns a matter which is essential and at the very core of this case, regarding how Timothy Lagoya allegedly acquired the suit land. The contradiction was not satisfactorily explained away. Therefore, the evidence of the Defendant, the evidence of D. W.2 (**Valentino Otunu**) and the evidence D. W.3 (**Lonyera Phillip**) regarding the person or people who gave the suit land to Timothy Langoya is accordingly rejected on that account.

[70] In addition, the Defendant and all her witnesses did not adduce any evidence whatsoever of the custom under which the right to occupy the suit land was given to Timothy Langoya. The Defendant did not adduce any evidence of the custom of the people or the clans who allegedly gave the suit land to Timothy Langoya, whether they gave the suit land in accordance with their custom and whether the custom is binding and authoritative. The Defendant did not also adduce any evidence to prove that the said elders or the clans had any right over the suit land in order for them to be able to give to Timothy Langoya.

[71] I note that when the suit land was allegedly given to Timothy Langoya, the Defendant was not there. The Defendant testified that on the day Timothy Langoya requested the elders to give him the suit land, she was not present, she had remained at Dog – gwenyu village. She was only told of what was discussed by Timothy Langoya. Therefore, her evidence as to who and how the suit land was given to Timothy Langoya is hearsay.

[72] I have examined the minutes of the clan meeting which was held at the suit land on the 5th March, 2016 (PX7). In that meeting, the Defendant adduced one witness Ayoo, the son of Bafiano Ocen, who stated that the Plaintiff, Timothy Langoya and Enoci Oweka went to his father while looking for land and they were given where to put their cattle. He further stated that the cattle were for Enoci Oweka. Another witness of the Defendant, Opoka Agelo Goro stated that Timothy Langoya first went to Kasiyano Odota, thereafter the cows were moved to Lonyero, then Langoya met Abe and Atabi for the land. In the same meeting Valentino Otunu

(D. W.2) stated that the same year when Kujakileng died, it is when Enoci Oweka made the kraal on the suit land. He agreed that Kujakileng lived in the shelter used for herdsmen (okelu).

[73] In my view, the statement of Ayoo in the meeting of 5th March, 2016 that Enoci Oweka participated in the looking for the suit land and the statement of Valentino Otunu (D. W.2) that Enoci Oweka made a kraal on the suit land, gives credence to the Plaintiff's case that it is Enoci Oweka who acquired the customary interest on the suit land.

[74] Although the Defendant in her testimony tried to distance herself from the statements made by Ayoo in the meeting of 5th March, 2016 by claiming that she does not know him and that it is Valentino Otunu (D. W.2) who knew him, I find it strange that she would have allowed him to testify in that meeting on her behalf. I also note that the Defendant and Valentino Otunu (D. W.2) in their evidence tried to distance themselves from the minutes of the clan meeting of 5th March, 2016 by stating that they were not given the minutes of the meeting. From the evidence on the court record, they both attended the meeting. The minutes of that meeting was confirmed in another clan meeting held on the 15th May 2017 where 31 people attended (PX15). Both PX7 and PX15 were admitted by consent of both parties. It is therefore very unlikely that the minutes were not a true reflection of what was stated in those meetings.

[75] I have found the evidence of D. W.2 (Valentino Otunu) that Kujakileng did not stay in the house of herdsmen on the suit land and that Enoci Oweka did not reach the suit land nor did he have any kraal on the suit land unbelievable. During the clan meeting of 5th March, 2016, D. W.2 (Valentino Otunu) stated that in the same year when Kujakileng died, it is when Enoci Oweka constructed a kraal on the suit land. He agreed that Kujakileng lived in the shelter used for herdsmen (okelu).

[76] In addition, i have also examined the evidence adduced by the Plaintiff and that of the Defendant regarding the settlement on the suit land by the family of Enoci Oweka. The Plaintiff testified that upon Enoci Oweka acquiring the suit land, he lived on the suit land with his mother, his two wives, children and the people looking after the animals. They settled and lived there with Timothy Langoaya as brothers without any dispute for over 40 years. The dispute only started in 2015 after the death of Timothy Langoya. His evidence was corroborated by that of PW2, PW3, PW4, PW5 PW6, PW8 and PW9. The Defendant also gave evidence that she settled on the suit land with Timothy Langoya. She admitted, at least, that the Defendant was living on the suit land together with his two wives and mother. In my view, the settlement on the suit land by the entire family gives credence to the Plaintiff's case that the suit land was for Enoci oweka and not personal property of Timothy Langoya. Although the Defendant and her witnesses alleged that the Defendant settled on the suit land as a worker of Timothy Langoya, I have found that evidence unbelievable. First, no evidence was adduced to prove that there was any employer - employee relationship between Timothy Langoya and the Plaintiff by way of payment of salary and other benefits that accrue to an employee. Secondly, if indeed the Plaintiff was a mere employee, I do not believe that Timothy Langoya would have allowed him to settle on the suit land together with all his wives and children for over 40 years until his death.

[77] I have considered the fact that if indeed the suit land was personal property of Timothy Langoya, he would have applied to be registered as the proprietor. He was an educated person and had the means, as a person who was working in Bank of Uganda, to apply to be registered as the proprietor, if indeed the suit land was his personal property. He however settled on the suit land for over 40 years without even a single step being made himself towards registering the land into his name. I note that according to the minutes of he meeting of 7th February 2016 (PX6) the Defendant stated that her husband wanted to process the land title for the suit land but because of the war he did not. I find this explanation not convincing since from early 1970s when the suit land was allegedly acquired by him there were several years without war that he could have utilized to register the land in his name. In addition, how could he be able to register his personal business in 1974, and yet fail to register the suit land into his name if indeed it personal property.

[78] It is common ground that by the 1970s when the suit land was acquired, Enoci Oweka was weak and sick and did not live on the suit land. That, in my view, could not stop him from acquiring the suit land and going to the suit land to check for his cattle which DW1 agrees was on the suit land. I am convinced by the evidence adduced by the Plaintiff which shows that even though Enoci Oweka was not physically living on the suit land, he was in constructive possession and would occasionally visit the suit land right from the time the suit land was acquired.

[79] I have also considered the evidence of the Plaintiff that when the Defendant applied for letters of administration to administer the of Timothy Langoya, she did not mention the suit land as part of the estate of Timothy Langoya. The Defendant pleaded that after the death of Timothy Langoya, his family resolved that the suit land be registered in the name of Ametmet Enterprises. According to her, it was the reason why when she applied for letters of administration to the estate of the late Timothy Langoya, she did not list the suit land among the properties of the late Timothy Langoya. In her testimony in court she stated that she was advised not to include the suit land since it was owned by Ametmet enterprises. I have looked at the application for letters administration dated 7th July, 2009 (PX3) which was accompanied by a statutory declaration on oath. The Defendant listed all the properties which to the best of her knowledge belonged to Timothy Langoya.

[80] I am not persuaded by the reason advanced by Defendant why she did not include the suit land among the properties of Timothy Langoya. First, her evidence is a departure from her pleadings. She pleaded that it is the family which resolved that the suit land should be registered in the name of Ametmet Enterprises and that is the reason why it was not listed among the properties of the late Timothy Langoya. In evidence she stated that she was advised not to include the suit land since it was owned by Ametmet enterprises. There is a stark difference between the two. Secondly, there was completely nothing to prove that the suit land was owned by Ametmet Enterprises. Thirdly, looking at the email correspondences which were tendered in court as PX23, it is clear that by 2009 when the Defendant applied for letters of administration, the family of the Plaintiff and that of the Defendant were exchanging ideas on how to develop the suit land together as a family, including incorporating Ametmet Investments Ltd with the shareholders being Okello Walter Oweka, Lamunu Agelina, Nokrach Churhill and Odoch Charles. There was no indication at that time that the suit land belonged to Timothy Langoya. It was much later in 2015 when the allegation that Timothy Lagoya owned the suit land came up for the first time, thereby causing this dispute. In my view, the reason why the suit land was not included among the properties of Timothy Langoya is a mere afterthought which was concocted after the dispute arose.

[81] In a bid to prove that suit land was personal property of Timothy Langoya, the Defendant relied on her application to Acholi War Debts Claimants Association for compensation for the cattle of Timothy Langoya which were allegedly looted by the NRA soldiers and verified by, among others, Too – rach Wilson, a biological son of the Plaintiff (DX10). In my view, the entire evidence that Timothy Langoya had cattle on the suit land does not in any way prove that the suit land was his personal property. I have already found above, that the entire family, including Timothy Langoya, settled on the suit land. The Defendant herself testified that Timothy Langoya brought his cattle, which were local breed and also brought the cattle of his father Enoci Oweka to the suit land. She explained how Timothy Langoya acquired his cattle, that he used to give money to Enoci Oweka to buy cattle to put in his kraal. Therefore, going by her own evidence, the cattle of Enoci Oweka was also on the suit land. Nowhere is it mentioned in DX10 that the cattle of Timothy Langoya were on his private land.

[82] Then there was the evidence regarding the registration of Ametmet Enterprises as a business name by Timothy Langoya. According to the application for registration of Ametmet Enterprises as a business name (DX2), principle place of business was stated to be Dogwenyu village. It was not stated in the application that another place of the business of Ametmet Enterprises was in Pama village where the suit land is situated. The business was stated to have started on the 1st December 1968 and not 1974 as was the testimony of the Defendant. It is obvious that the Certificate of Registration of the business name (DX1) and the application for registration of the business name (DX2) do not prove that Timothy Langoya owned the suit land. To the contrary, it shows that that the business was started before the suit land was acquired and the principle place of business was in a different place from the suit land. The fact that the business name was Ametmet has no legal connection with ownership of the suit land.

[83] In further bid to prove that the suit land belongs to Timothy Langoya, the Defendant testified that in 2010, after the death of Timothy Langoya, rituals were done by hundreds of community members from the neighboring villages to appease the spirits to get a good harvest from the suit land but the Defendant did not raise any claim in respect of the suit land. I have evaluated that evidence. In my view, the fact that the ritual was conducted on the suit land does not in any way prove that Timothy Langoya is the owner of the suit land. The Defendant failed to create any nexus between the ritual and ownership of the suit land.

[84] The Defendant also relied on the record of proceedings in Civil Suit No 14 of 2012 which was before the Chief Magistrates Court of Kitgum between Galdino Nyok and Lukwo Phillip (DX11) as proof that the suit land belongs to Timothy Langoya and not Enoci Oweka. I have examined the record of proceedings of that case. I note that at page 4 of the record of proceedings, Galdino Nyok testified that he sued Lukwo Phillip for trespassing on his land located at Dog – gwenyu. He testified, at page 6 of the record of proceedings, that Timothy Langoya was west of that land which was in dispute. At page 7 of the record of proceedings, P. W.8 (Otema Richard) testified that in 1976 he used to cultivate the farm of his uncle Timothy Langoya and Galdino Nyok used to cultivate next to the fence of that farm. At page 10 of the record of proceedings D. W.3(Lukwo Phillip) testified that the land which was in dispute was found in Pagudi village. At page 11 of the record of proceedings, Olum Terensio Kenya testified that the land which was in dispute in that case was situated in Kampala village, Pabong Parish. At page 12 of the record of proceedings, Yakobo Awuna testified that the land in dispute in that case was located at Pabudi Village, Kal Parish. At page 14 of the record of proceedings, P. W.8 (Otema Richard) testified that Galdino Nyok was his neighbor. He stated that his land is on the northern side the land which was in dispute between Galdino Nyok and Lukwo Phillip. There is a stream which separates them.

[85] In this Court, in cross-examination D. W.3(Lukwo Phillip) testified that Galdino Nyok was an in law in the home of Enoci Oweka. Galdino Nyok was given part of the land of Enoci Oweka and that was the land Galdino Nyok sued him in Civil Suit No 14 of 2012. He testified that Galdino Nyok, in Civil Suit No 14 of 2012, testified that the land which was in dispute in that case was situated in Dog – gwenyu and that it belongs to Enoci Oweka. In reexamination, Lukwo Phillip confirmed that the land he litigated with Galdino Nyok is situated in Dog – gwenyu and that his land is situated in Pobudi village. He also confirmed that the suit land, in this case is situated in Pama village. He further testified that between the land of Enoci Oweka and the suit land there is the land of the people of Pajoba.

[86] In my view, the evidence in Civil Suit No 14 of 2012 has no bearing with the suit land in any way. First, no one, in the entire record of proceedings in Civil Suit No 14 of 2012, mentioned that the land which was in dispute between Galdino Nyok and Lukwo Phillip was in Pama village where the suit land is situated or that the land which was in dispute in that case neighbor the suit land which is in Pama village. Secondly, D. W.3 (Lukwo Phillip) confirmed before this Court that the land he litigated with Galdino Nyok in Civil Suit No 14 of 2012 is situated in Dog – gwenyu village and yet the suit land is situated in Pama village. The Defendant testified that Dog – gwenyu is 4 miles away from the suit land. Thirdly, when P. W.8 (Otema Richard) testified before this Court, he was not examined to explain whether the land which he mentioned in Civil Suit No 14 of 2012 to belong to Timothy Langoya is actually the suit land and not any other land. He was not also examined to explain which land he referred to at the locus in quo in Civil Suit No 14 of 2012 to belong to him (Otema Richard).

[87] The Defendant also relied on her application to convert the suit land into customary land (DX6) and the demarcation form, which was signed by among others P. W.7 (Amic Tom), as proof that the elders and neighbors of the suit land confirm that the suit land belongs to Timothy Langoya. P. W.7 (Amic Tom) testified that when the Defendant sent inspectors, he was called to show the boundaries. He stated that he signed the demarcation form since there was no dispute between the people of Karuma and the family of Enoci Oweka. He stated that he did not read the demarcation form but signed it after they had returned from inspecting the land.

[88] I have examined the Application form by the Defendant, Charles Odoch Langoya, Dr. Peter Akera and Stella Amony (DX6). The application was not approved by the Area Land Committee. The part of the form providing for whether the application was approved or not

was left blank. The form does not provide any evidence that the applicants were customary owners of the suit land and how they acquired customary interest on the suit land to enable them to the apply for conversion of the suit land into freehold. Although P. W.7 (Amic Tom) signed the demarcation form (7), it is not indicated in the form that he confirmed that the suit land was customary land of the applicants. In any case, P. W.7 (Amic Tom) stated that he did not read the demarcation form. I have no reason to doubt P. W.7 (Amic Tom) that he signed because there was no dispute between the people of Karuma and the family of Enoci Oweka. The document is written in English. P. W.7 (Amic Tom) testified in Acholi and his evidence was translated to English. There is a real possibility that he did not understand the document he was signing. No evidence was adduced to prove that the document was translated to him before he signed it.

[89] On the submission of counsel for the Defendant that there were several contradictions in the evidence of the Plaintiff's witnesses regarding the year when the cattle of Enoci Oweka was taken to the suit land, she did give any details of the contradiction. In any case, this court is alive to the fact that the incidence took place in the 1970s, it cannot be expected that witnesses, due to passage of time, could have been very accurate on time. On the submission that there was a contradiction between the evidence of P. W.8 (Otema Richard) and P. W.5 (Oryem Noel) on who moved the cows to the suit land, I have not found any contradiction. P. W.8 (Otema Richard) testified of the movement of the cattle from Dog – gewnyu to the home of Lakot Doloka. It is that movement that he stated that it appears Enoci Oweka had moved ahead. P. W.5 (Oryem Noel) on the other hand gave evidence of the movement of cattle from his father's place to the suit land.

[90] In the end, I find that the Plaintiff adduced evidence to the required standard to prove that it is Enoci Oweka who first acquired customary interest in the suit land. The suit land was used as family land until his death. The Defendant did not adduce any evidence to prove any acquisition of the suit land either from the government or through any known customary law. The suit land is therefore customary land belonging to the estate of the late Enoci Oweka and not personal property of the late Timothy Langoya.

## **Issue 2:** What remedies are available to the parties.

[90] Having found that the suit land is customary land belonging to Enoci Oweka, it is hereby declared that the suit land belongs to the estate of the late Enoci Oweka. On the costs of this suit, the general rule is that costs should follow the events and a successful party should not be deprived of costs except for good cause. Section 27 of the Civil Procedure Act. I have not found any good cause in this case why I should deny the Plaintiff the costs in this matter. The Defendant is hereby ordered to pay the Plaintiff the costs of this suit.

I so order.

Dated and delivered by email this 23rd day of May, 2024.

**Phillip Odoki JUDGE.**