[2023] UGCA 384

# ⁵ THE REPUBLIC OF UGANDA

## IN TFIE COURT OF APPEAL OF UGANDA AT KAMPALA

I Coram: R. Buteera, DCJ, C, Bamugemereire, JA, C, Gashirabake, JA.]

## CNIL APPEAL NO 164 OF 2016

### BETWEEN

10 OBONGOI DENIS........... . APPELLANT

### AND

### 1. ODIYE YUVENTINE

- 2. OBEA CHARLES - 3. ETUU JOSHUA RESPONDENTS - (Appealfrom the decision of H. Wolayo J. dated l4'h March 2016 vide Civil Appeal No.29 of 2013, Arisingfrom Kaberamaido Civil Suil No. 05 of 2009) 15

### Introduction

This appeal arises from the judgment and Decree of the High Court at Soroti before H. Wolayo, J. delivered on the l4th day of March 2016 whereby she upheld the decision of the Trial Magistrate of Kaberamaido Magistrate's Court.

### Background

The claim in the Magistrate's Court was that the respondents grabbed the suit land without any colour of right. The suit land is located at Opiyai village, Ogerai Parish,

Kobulubulu Sub county, Kaberamaido District. 25

> It is alleged that the Appellant and his brothers inherited the suit land from their late father, Obongoi Yoweri. He is in possession of Powers of Attorney donated to him

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⁵ by his elder brother (Mr. Obongoi John Michael Elesu). They got letters to administer the father's estate.

The trial Magistrate made orders for both parties to align the boundary. The appellant being dissatisfied with the decision of the magistrate's court appealed to Soroti High Court, which upheld the lower court's decision. Land measuring Ya an acre was decreed to the respondents. The appellant was dissatisfied with the High Court decision hence this second appeal on grounds that;

- 1. The learned appellate Judge erred in law when she erroneously upheld o decision of the trial Court by awarding the respondents land which was not the subject of the suit at trial. - 2. T'he learned appellate Judge erred in law when she failed in her duty as the I't Appellate Court to re-evaluate evidence as a whole thus aruivtng ot an erroneous decision. - 3. T'he learned Appellate Judge erued tn law when she upheld ^a dectsion of the Trial Court that a hearing had been conducted at the locus thus aruiving ot an erroneous decision. - 4. The learned appellate Judge erued in law when she ignored clear inconsistencies and contradictions thus arriving at on erroneous decision. - 5. T'he learned appellate Judge erred in law andfact when she upheld lhe Trial Court's decision on boundaries without any evidence thus arriving at an erroneous decision. - 6. The learned Appellate Judge erued in law when she manifested bias and declined to allow the appeal regardless of its merits thus arriving at an eruoneous decision. - 7. The learned Appellate Judge erued in law when she upheld the Trial Court's decision to allow an oral/ verbal counterclaim without a formal amendment thus aruiving at an erroneous decision.

⁵ 8. The learned appellate Judge erued in law when she upheld the decision of the lower court on the boundaries without aby tota of evidence being led at the locus, thus arriving at an erroneous decision.

While making submissions, the Appellant raised issues for this court to determine. These issues will resolve the above grounds. These are;

- l. Whether the learned Appellate Judge erued in law when she foiled in her duty as the I't Appellate Court to re-evaluate evidence os o whole thus arriving at an eruoneous decision. - 2. Whether the learned oppellate Judge erued in law when she upheld decision of the trial court that a hearing had been conducted at the locus thus arriving at an eruoneous decision? - 3. Whether the learned Appellate Judge erred tn law when she ignored clear inconsistencies and contradictions thus aruiving at an erroneous decision.

### Representation 20

At the hearing of this appeal, Mr. Odokel Opolot represented the appellant. The respondent was represented by Mr. David Kassada.

### Analysis.

### Duty of the court

This is a second appeal, and as such is governed by section 72 of the Civil Procedure Act, Cap 7l which provides; 25

### Section 72.

"Except where otherwise expressly provided in this act or by any other law for the time being in force, an Appeal shall lie to the Court of Appeal from every decree passed in Appeal by the High Court, on any of the following grounds, namely;

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5 a) The decision is contrary to law or to some usage having the force of law.

b) The decision has failed to determine some material issue of law or usage having the force of law.

c) A substantial error or defect in the procedure provided by this Act or by any other law for the time being in force has occurred which may possibly have produced error of defect in the decision of the case upon the merits."

The effect of SectionT2 is to bar second appeals from being filed on matters of fact or matters of mixed fact and law. This section is also entrenched by SectionT4 which provides that no Second Appeal shall lie except on the grounds mentioned in section 72.

As a second Appellate court, we are required to consider erors of law made by the Iower court only. Rule 32(2) of the Judicature (Court of Appeal Rules) Directions SI l3-10, allows this court in exercise of its jurisdiction as a second Appellate court to appraise the inferences of fact drawn by the trial court. 15

Rule 32(2) of the Rules of this court provides that:

"On any second appeal from the decision of the lligh Court acting in the exercise of its appellate jurisdiction, the court shall have the power to appraise the inferences offact drawnfrom the trial court, but shall not have discretion to hear additional evidence...."

In the case of Kifamunte Henry v Uganda, Criminal Appeal No. 10 of 1997, which is instructive in civil cases Court stated that; 25

> "we agree that on afirst appeal,from a conviction by a judge the appellant is entitled to have the oppellate Courl's own consideration and views of the evidence as awhole and its own consideration andviews of evidence as awhole and its own decision thereon. The first appellate court has a duty to review the evidence of the case and to reconsider the materials before the trial judge. The appellate Court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. l{hen the question

arises as to which witness should be believed rather lhat another and that question turns on manner and demeanor, the appellate Court must be guided by the impressions made on the judge who sau, lhe wilnesses. However, lhere may be other circumslances quite apart from the manner and demeanor, which may show whether a slatement is credible or not, which may warrant a court in differingfrom the judge even on a question of fact turning on credibility of witness which the appellate Court has not seen. See Pandya v. R, [ 19571 E. A 336, Okeno v. Republic U9721 E. A 32 and Charles Bitwire v. Uganda, Supreme Court Criminal Appeal No. 23 of 1985 at page 5.

Furthermore, even where a trial court has erred, lhe appellate Court will interfere where the eruor has occasioned a miscaruiage ofjustice; see s. 33(l) of the Criminal Procedure Act. It does not seem to us that except in the clearest of cases, we are is required to re-evaluate the evidence like is afirst appellate Court sqve in Constitulional cases. On second appeal it is sufficient to decide whether the first appellate Court on approaching its task, applied or failed to apply such principles: See P. R. Pandya v. R(supra), Kairu v. Uganda, 1978 HCB 123."

The duty of this Court as a second appellate Court includes, among others, the duty to examine whether the principles which a first appellate court should have applied were properly applied and if it did not, for it to proceed and apply the said principles.

## 2s Issues for determination

Issue 1: Whether the learned Appellate Judge erred in law when she failed in her duty as the l't Appellate Court to re-evaluate evidence as a whole thus arriving at an erroneous decision. (According to the appellant, this issue resolves grounds 2,5 and 6)

30 It was submitted for the appellant that this appeal is heavily hinged on the failure by the I't Appellate Court to properly re-evaluate the evidence.

⁵ It was further submiued for the appellant that the appellate Judge failed to properly conceive the claim of the appellants, for 2 Yq acres and not Yq acre as held by the learned appellate Judge.

It was submitted that the appellate Judge erred when she granted land which was never proved to belong to the respondents during trial. The trial court failed to resolve the actual issues before it. It was submitted that despite the fact that the appellate court acknowledged the fact that the trial court misdirected itself, the appellate Judge declined to set aside the judgment. That the leamed appellate Judge acted contrary to her findings when she concluded that the respondents were entitled to Yq acre of land.

Counsel for the appellant further submitted that the appellant's suit was unopposed by the respondents and they had no audience in court in the first place. 15

Counsel for the appellant submitted that the appellant led overwhelming evidence in formal proof, with three witnesses in Court. That the appellant led his evidence to prove his case on the trespass by the respondents on the 2 t/q acres of land belonging to his fathers' estate at Opiyai village, Ogeria Parish, Kobulubulu Sub County, Kaberamaido. That the said land measured approximately 250 acres.

It was submitted that PWI stated that in 2007, the respondents extended their gardens in the estate land and he complained to the LC l. He was approached by the respondents individually to allow them use some metres which he declined, they made surprising claims that they wanted where their father was buried, 11 acres inside.

This prompted him to file a suit at Kaberamaido Magistrate's Court. He went further and stated that the respondents opened fresh gardens in his land in the pendency of

s the suit. It is one of the reasons the claim was amended to claim for 2 Yt acres because the trespass was progressive.

### Submissions by counsel for the respondent.

It was the submission for counsel for the respondents that the appellate Judge properly evaluated the evidence before she concurred with the Trial Magistrate and 10 put the entire evidence to scrutiny which was well within her duty and powers as ^a I't appellate court. Counsel cited the case of Kifamunte Henry v. Uganda (supra) and Uganda Breweries Ltd vs. Uganda Railways Corporation, SCCA No.06 of 2001, where court held that;

"there's noformat to which evaluation of evidence of the first appellate court 15 should conform and the manner in which the evaluation should be done depends on the circumstances of each case........... while the length of the analysis may be indicative of a comprehensive evoluation of evidence, nevertheless the test of adequacy remains a question of substance"

²⁰ Counsel for the respondent submitted that the first appellate court exercised its duty appropriately. For instance, DW4, Yakobo Obogonyingi stated that the claimants father and the respondent's father did not have any conflict. Furthermore, that the appellate court rightly found that the appellants did not prove their claim.

### Resolution

²⁵ The subject matter of this suit was first adjudicated upon by the Grade One Magistrate Court of Kaberamaido. The appellant sued the respondents and sought that the respondents are evicted from the suit land, perrnanent injunction is granted against the respondents and their agents and any other persons that may act in their names. The respondents did not file any written statement of defence even after ³⁰ being summoned to file a defence. The respondents however appeared and adduced

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- ⁵ evidence in court. The learned Magistrate formulated two issues to be resolved as follows; - l. Whether there was a boundary separating this land of the claimant and respondent, - 2. Whether there were any possible remedies. - On the first ground the learned magistrate found that both parties failed to show a clear boundary of the land. There were no marks for the court to base its decision. On the second issue, the court recommended that the parties re- demarcate the land. 10

The appellant was dissatisfied with the finding ofthe Magistrate Grade One and filed an appeal to the High Court on grounds that;

- l. T'he learned trial magistrate ewed in law and fact when he failed to properly evaluate the evidence on record thus arriving al a wrong decision. - 2. The learned trial magistrate erued in law andfact when he failed to aruive al a conclusive decision on the dispute and proceeded to demarcate the boundary ofthe suit land in the absence ofthe Appellant and record the proceeding at the locus in quo. - 3. The learned trial Magistrate ewed in low and fact when he failed to properly conduct and record the proceedings al locus in quo. - 4. The learned trial Magistrate erued in law and fact when he planted boundary marks not supported by the evidence at locus in quo.

The learned appellate Judge found that the appellant had failed to prove the case to the required standard. It was also found that the learned Magistrate failed to record the proceedings at locus, however the learned Judge upheld the Magistrate's findings irrespective of the errors. The court further held that despite the merits in the appeal, it declined to set aside the Judgment and the Orders.

s As the first appellate court, the High Court had a duty to re-evaluate the evidence on record. In the case of Father Narsensio Begumisa and 3 others vs. Eric Tibebaga, Supreme Court Civil Appeal No. 17 of 2002, court held as follows; -

> "it is a well - settled principle that on afirst appeal, the parties are entitled to obtainfrom the appeal court its own decision on issues offact as well as of law. Although in case of conflicting evidence the appeal court has to make due allowances of the fact that il has neither seen nor heard the witnesses, it musl weigh the conflict evidence and draw its own inference and conclusions. "

## In the case of Coghlan vs. Cumberland (1848) I Ch. 704,the Court of Appeal of England stated thus,

"even where, as in this case, the appeal turns on a question offact, the Court of Appeal has to bear in mind that ils duty is to rehear the case, and the courl must reconsider the materials before lhe judge with such other materials as il may have decided to admit. The courl must then make up its own mind, nol disregarding the judgment appealed from, but carefully weighing and considering it; and not shrinkingfrom overuuling it donfull consideration the court comes to the conclusion that the judgment is wrong.... llthen the question arises which witness is to be believed rather lhan another and that question turns on manner and demeanor, lhe Court of Appeal always is, and must be, guided by the impression made on the judge who ssw the wilness. Bul there may obviously be other circumstances, quite apart from manner and demeanor, which may show whether a statement is credible or not; and these circumstances may waruont the court in dffiringfrom the judge, even on a question offact turning on the credibility ofwitnesses whom the Court has not seen. "

30 From the record, it is clear that the first appellate court failed to discharge its duty thus occasioning a miscarriage ofjustice. Being the first appellate court, it had a duty to re-evaluate and re-appraise the evidence on record and come to its own conclusion.

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- ⁵ Re-evaluation of evidence must be approached as a whole. A court ought not to consider the plaintiffs story in isolation of the defendant's story and finally decide which of the two to believe. The evidence must be considered on each contentious point in the trial on the balance of probabilities for the correct decision to be arrived at. - In re-evaluation of evidence the first appellate court is guided by the important rules on evidential standard and burden of proof. 10

According to the amended claim, the appellant claimed 2 % acres, but he never led any evidence to prove the claim of 2 % acres as alleged. All evidence led proved the existence of a conflict over Yt acre as found by the appellate Judge.

The appellate Judge rightly noted that both parties agreed that there was a dispute between the ancestors which was resolved in 1973. According to the appellant who was PW 1, he testified that this was resolved by bringing a tractor which made the demarcation. This demarcation was agreed upon by the parties. Mr. A M Olobo Stephen (PW2), testified that the boundary can be seen even up to now. However according to PW2 there was a land dispute that erupted between the appellants and the respondents. This was resolved by the community and it was found that the respondents had trespassed on the appellant's land. The boundaries were agreed upon but the respondents asked that they are granted Yo an acre which was granted by the community. It was testified by PW2 and PW 3 that the respondent brought Ejumula trees (boundary marks) and planted but they were later removed by the respondents. PW2 and PW3 also testified that the appellant did not agree to this grant of t/q acre to the respondents. All this evidence was not disputed by the respondents. This was corroborated by DWI No.33568 Cpl. Ejuu Joshua, who testified that there was a community meeting but there was no agreement. 15 20 25 s This being a second appellate court, this court has no duty to re-evaluate the evidence, unless the first appellate court had failed in its duty to do so. (Begumisa, Supra)

The role of this court is to establish whether the first appellate court properly reevaluated the evidence adduced at the trial court. I find that the first appellate court failed in this duty. Had the appellate court properly evaluated the evidence it would have found that there was no agreement on the grant of % acre of land between the parties. Having found that the respondents had trespassed on the appellant's land there was no basis for the community to grant the % acre to the respondents if the appellant had not agreed to it. However, the appellant failed to prove the claim of 2 t/q acres alleged in the amended claim.

Evidence adduced by the witnesses PWl, 2, DWI ,2,4, and 7, was to the effect that there was a demarcation of a boundary of the land. Considering the evidence on record, it was therefore inappropriate for the appellate court to award the respondents the % acre since there was no agreement from the appellant.

zo Issue no I succeeds

Issue 2: Whether the learned appellate Judge erred in law when she upheld the decision of the trial court that a hearing had been conducted at the locus thus arriving at an erroneous decision? (Grounds 3 and 8)

## Submissions by counsel for the appellant

²⁵ It was submitted for the appellant that failure to record proceedings at locus is a fundamental mistake which goes to the root of a fair hearing enshrined in articles 28 and 44(l) of the Constitution. Counsel cited the case of J. W Ononge v Okallang (1977) HCCA No. 34, where court held that;

11 lPage

⁵ "at the visit to the locus in quo, the plaintdf/ appellant was never sworn and his evidence at the locus in quo never recorded. The purpose of visiting the locus in quo is for each party to indicate what he is claiming. Each party must testifu on oath and be cross examined by the opposite party "...... the purpose is for the witnesses who have already testified in court to clarify what they were stating in court and indicate features ond boundary marks, if any, to the court. Any observations made or noted by the Magistrate at the locus in quo must be recorded and noted and mustform part ofthe record"

# And in the case of Yeseri Waibi v Edisa Lusi Byandala (1982) HCB 28, where court held that;

" L The usual practice of visiling the locus in quo is to check on the evidence given by witnesses and not to fill gaps for then the Trial Magistrate may run the risk of moking himself a witness in the case. Such a situation must be ovoided.

2. The trial magistrate should make note of what takes place at the Locus in quo and if awitness should be recalled by the Court and give evidence ofwhat occurred"

It was submitted by counsel for the appellant that the failure by the learned appellate Judge to grant the appeal despite admitting that it had no merits, exhibited that the learned appellate Judge was biased against the appellant.

# 2s Submissions by counsel for the respondent.

It was submitted for the respondent that the learned appellate Judge arrived at a just decision upon re-evaluation of all the evidence on record. The learned appellate Judge did not base her decision on the visit on locus in quo.

30 Counsel noted that in the case of J. W Ononge v Okallang (supra) cited by the appellant was not binding on this court. It was submitted that the failure to record evidence at the locus in quo did not at all occasion a miscarriage ofjustice nor did it prejudice the appellant.

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^s' It was counsel's argument that the effect of not recording proceedings at locus in quo counsel cited was not detrimental to the case and the case of William Mukasa v Uganda r(1964) EA 698 Sir Udo Udoma CJ (as he then was), where court stated that the purpose of locus in quo is to check the evidence already given in court.

### Resolution

Locus in quo visits are regulated by Practice Direction No I of 2007. It is ^a requirement under Guideline 3 (d) and (e) that while on locus, the Judicial officer should record the proceedings as to form part of the record. The guideline provides that: 10

"(d). record all the proceedings al the locus in quo.

(e). record any observation, view opinion or conclusion of the court including drawing a sketch plan if necessary"

In William Mukasa v. Uganda (Supra) it was held as that;

"a view of a locus ought to be, I think, to check on the evidence already given and where necessory and possible, lo have such evidence accurately demonstrated in the same way a courl examines a plan or map or somefixed object already exhibited or spoken ofin the proceedings. It is essential that after a view a jud4e or magistate should exercise great care nol to constitute himself a witnesses in the case. Neither a view nor personal observation should be a substitutefor evidence"

²⁵ The trial court stated at page 62 of the proceedings that;

"lhe court visited the locus two limes and on both occasions, both parties foiled to show a clear boundary of the land and this court found no marl<s, where it could base its decision... "

The first appellate court stated that;

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'there was a failure by the trial magistrate to record the proceedings at the locus, however, ot a closer examination of his judgment, he indicates that he visited lhe locus twice and each time there wos no agreement on the boundary

This is because the magistrate considered that this was a boundary dispute and not a land dispute

l{hile these are fundamental eruors, I have re-evaluated the evidence and arrived at conclusions of"fact ond lqw"

It is clear that the first appellate court took note of the fact that the proceedings at locus were not recorded. Court agreed that this was an error. Court however relied and considered the evidence on record to come to its own conclusion.

1s However, it suffices to note that all legal proceedings inclusive of locus in quo proceedings ought to be recorded not only as a legal requirement but also as a rule of natural justice. If not recorded, the judicial officer runs the risk of basing his/ her judgment on either presumptions, unfounded opinions or views. The purpose for recording proceedings at the locus is for completeness of the record. A court record 20 is the basis of a fair trial. Any determination of a court is founded on the information in the record and such decision preserved on the face of the record. The competence of court is questionable if it does not take record of its proceedings. The proceedings are helpful also on appeal on two folds. One, an appeal can only be adequately and reasonably prepared when one has a complete record of proceedings. Secondly, it 2s also enables the appellate court to appropriately re-evaluate and reappraise the evidence of record in order to come to a just decision.

On whether failure to record locus in quo proceedings is fatal, this can be addressed on a case by case basis. This will vary on the weight of the case resting on the clarity sought from this locus visit. Otherwise where in the view of court such visit or record 30 could be dispensed with, without occasioning a miscarriage of justice, court can proceed and determine the matter basing on the evidence on record. This is because

^s" the evidence adduced at locus is meant to clariff what has already been adduced in court.

I have reviewed the evidence and find that this was a boundary issue. I can safely conclude that the appellate Judge erred by not going far enough to see the relation of boundaries to this conflict. There was need to clarifu the boundaries andthe 2 % acres of land claim made by the appellant. It was important to record the proceedings at locus in quo.

This issue succeeds.

Issue 3: Whether the learned Appellate judge erred in law when she ignored clear inconsistencies and contradictions thus arriving at an erroneous decision?

## ¹⁵ Submissions by counsel for the Appellant.

It was submitted by counsel for the appellant that there are glaring inconsistencies and contradictions in the respondents' case. Counsel submitted that DW2 contradicted himself when he alleged that the claimants were not on the suit land. Yet later he acknowledged their presence on the suit land. Counsel also submitted that the respondents contradicted themselves as to the existence of a dispute between the ancestors of the appellants and respondents. Counsel cited the case of Alfred Tajar v. Uganda, (EACA) No. 16711967 as cited in the case Zakaria Onno Vs. Olando Difasi HCT-4-CV-0025-2013,

> "court noted that major inconsistencies will lead to the evidence ofwitnesses being rejected. minor inconsistencies will not have the same result unless they point to deliberate falsehood. T'he inconsistencies in the respondent's case as pointed out by appellant were major"

Counsel submitted that they reacted to the root of the dispute which was the possession of the suit land.

a

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### ⁵ Submissions by counsel for the respondents.

It was submitted that it is not true that the appellate Judge ignored the contradictions and inconsistencies in the respondents' case. It was submitted that DWI ,2, and 4 corroborated each other's evidence as they testified to court that there was no dispute between the parties until 2009. It was further submitted that the inconsistencies pointed out by the appellant did not point to the fundamental root of the dispute nor were they deliberate falsehoods so as to lead to evidence being rejected.

a

The law on inconsistency and contradiction is well-settled. Grave inconsistencies and contradictions unless satisfactorily explained, will usually but not necessarily result in the evidence of a witness being rejected. Minor inconsistences and contradictions unless they point to deliberate untruthfulness will be ignored as was held in the case of Alfred Tajar vs. Uganda, E. A. C. A Cr. Appeal No. 167 of 1969. The gravity of the contradiction will depend on the centrality of the matter it relates to in the determination of the key issues in the case. What amounts to major contradiction will vary from case to case. The question always is whether or not the contradictory elements are material. In this case, the contradiction did not get to the root of the dispute. They are minor inconsistencies that could be over looked. Moreover, there were consistencies from the witnesses. This ground lacks merit. 15 20

This issue fails.

# Decision

- 25 - l. The lower Court's decision is set aside. - 2. The t/q acre of land is restored to the appellant. - 3. The boundaries should be determined according to the tractor demarcations that were determined by the decision of Grade Two Magistrate. - 4. The respondents shall bear the costs in this court and the lower courts.

I so order.

$28^{\text{K}}$ Day of September 2023 Dated at Kampala this......

. . . . . .

C. GASHIRABAKE JUSTICE OF APPEAL

$10$

$\mathbf{5}$

### THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

#### CIVIL APPEAL NO. 164 OF 2016

(Coram: R. Buteera DCJ, C. Bamugemereire & C. Gashirabake, JJA)

**OBONGOI DENIS** $\cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cd$ **APPELLANT**

#### **VERSUS**

| 3. ETUU JOSHUA | $\cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cd$<br>$\cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cd$ | RESPONDENTS | |--------------------|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|-------------| | 2. OBEA CHARLES | | | | 1. ODIYE YUVENTINE | | |

(An Appeal from the decision of Henrietta Wolayo J, dated 14^th March 2016) in High Court of Soroti Civil Appeal No. 29 of 2013) (Arising from Chief Magistrate's Court of Kaberamaido Civil Suit No. 05 of 2009)

#### JUDGMENT OF BUTEERA, DCJ

I have had the benefit of reading in draft the Judgment of C. Gashirabake, JA in respect of this appeal. I do agree with his reasoning and conclusions.

Since C. Bamugemereire, JA also agrees, it is ordered that the appeal succeeds with costs to be borne by the Respondents both in this Court and the Courts below.

DEPUTY CHIEF JUSTICE

$28.05.2022$

# THE REPUBLIC OF UGANDA COURT OF APPEAL OF UGANDA AT KAMPALA CIVIL APPEAL NO. 164 OF 2016

CORAM: [Buteera, DCJ, Bamugemereire, Gashirake JJA]

Obongoi Denis ::::::::::::::::::::::::::::::::::::

# **Versus**

- 1. Odive Yuventine - 2. Obea Charles :::::::::::::::::::::::::::::::::::: - 3. Etuu Joshua

(An Appeal from the decision of Henrietta Wolayo J, dated 14^th March) (2016 in High Court Civil Appeal No. 29 of 2013) (Arising from Chief Magistrate's Court Kaberamaido) (Civil Suit No. 05 of 2009)

# JUDGMENT OF CATHERINE BAMUGEMEREIRE JA

I have had the privilege to read, in draft, the Judgment of my learned brother Christopher Gashirabake, JA. This is a second appeal whose facts are well-articulated in the lead Judgment, and I need not recapitulate them here.

I agree with the orders and decision of my learned brother and I would set aside the decision of the lower court and allow this appeal with costs to be borne by the respondents both in this court and in the courts below.

$28.09.2023$

**Catherine Bamugemereire Justice of Apeal**