[2020] UGHC 416

**THE REPUBLIC OF UGANDA**

**IN THE HIGH COURT OF UGANDA**

**HOLDEN AT MBALE**

**(CIVIL APPEAL NO/ 230 OF 2014)**

**(ARISING FROM CIVIL SUIT NO/ 17 OF 2015)**

1. **OCHULLU CHARLES** 2. **OWINO GABUDIERI ::::::::::::::::::::::::::::::::::::::::::::::::::::APPELLANTS**

**VERSUS**

**TEREZA ALOWO :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

**BEFORE: HON. JUSTICE SUSAN OKALANY**

**RULING**

**INTRODUCTION**

1. The appellants filed Civil Appeal No. 230 of 2014 against the decision of Her Worship Cherotich Kaibei Magistrate Grade One Tororo, delivered on 15th December 2014, seeking for the following orders: 2. That the appeal be allowed; 3. That this Honorable Court sets aside the orders of the lower court; 4. That this Honorable Court decrees that the 1st appellant is entitled to the suit land; and 5. That this Honorable Court awards costs here and in the lower court to the appellants. 6. The Grounds of the appeal are that: 7. The learned trial magistrate erred in law and occasioned a serious miscarriage of justice in failing to subject the whole of the evidence on record to an exhaustive scrutiny and appraisal expected of her; 8. The learned trial magistrate erred in law and occasioned a serious miscarriage of justice in evaluating and considering the respondent’s case in isolation of that of the first appellant; 9. The learned trial magistrate erred in law and occasioned a serious miscarriage of justice in failing to take into account the inconsistences and contradictions existing in the respondent’s case; 10. The learned trial magistrate erred in law and occasioned a serious miscarriage of justice in holding that the suit land was exclusively part of the estate of the late Valiriano Okumu Ochulu with the respondent as its sole beneficiary; 11. The learned trial magistrate erred in law and occasioned a serious miscarriage of justice in holding that the 1st appellant was not entitled to ownership of the suit land; 12. The learned trial magistrate erred in law and occasioned a serious miscarriage of justice in holding that the 1st appellant had by his evidence departed from his pleadings; 13. The learned trial magistrate erred in law and occasioned a serious miscarriage of justice in failing to appreciate that in the Dhopadhola language of the parties “ a son” also means “a nephew” used interchangeably without any derogation; 14. The learned trial magistrate erred in law and occasioned a serious miscarriage of justice in conducting the visit to the locus in quo perfunctorily; 15. The learned trial magistrate erred in law and occasioned a serious miscarriage of justice in awarding to the respondent a manifestly high sum in general damages without any sound base for the same; and 16. The learned trial magistrate erred in law and occasioned a serious miscarriage of justice in denying the 2nd appellant costs of the suit for no good cause when he was a successful party in the suit.

**BACKGROUND**

***The Appellants’ Case***

1. The 1st appellant’s case in the lower court was that he is the rightful heir of the late Salmon Owere Ochulu, the brother of the late Valiriano Okumu Ochullu. He stated that his late father Salmon Owere Ochullu and the late Valiriano Okumu Ochullu were fathered by the late Ochullu Obona (his grandfather) and the late Valiriano Okumu Ochullu was his heir. He further stated that his late grandfather died before he distributed his land amongst his sons. According to him, it is the custom amongst the Jopadhola that the heir distributes the land in case the owner of the land (in this case the grandfather) died before distributing it. He averred that it was unfortunate that their step mother Tereza Alowo, knowing very well that the grandchildren of the late Ochullu Obona were supposed to get their share within the same piece of land as stated in the will of the late Valiriano Okumu Ochullu, intended to deny some members of the family of their share. It was stated that upon the death of Salmon Owere Ochullu, the appellants attempted to distribute the land amongst the children of the deceased brothers in vain. That as a result, the matter was forwarded to the LC3 Chairperson Mulanda Sub- County who referred it to the clan head of Amor Mugulu Kayoro a one, Gabriel Owino (the 2nd appellant) to resolve. That the clan head (2nd appellant) then distributed the land and it was effected before neighbors, L. Cs and clan leaders. The appellants stated that customary land had to be divided amongst the family members, which was rightfully and lawfully done. Therefore, it was their contention that the case before the court was baseless.

***The Respondent’s Case.***

1. The respondent/ plaintiff sued the defendants DW1- Charles Ochullu and DW2- Gabriel Owino. Her claim against the defendants was for unlawful encroachment and trespass upon the plaintiff’s customary land situated at Chawolo Village, Mulanda Sub County. That the plaintiff and the late Valiriano Okumu Ochullu were married and stayed on the suit land. She testified that the land belonged to her late husband and she subsequently obtained letters of administration upon his death. That after a clan meeting held on 6/12/2008, the 2nd appellant apportioned land to family members and the 1st appellant encroached on the land in 2008 after the death of Valiriano Okumu Ochullu. 2. When the matter came up for hearing, three issues were framed as follows: 3. Whether the plaintiff has a claim of right on the disputed land? 4. Whether defendants have trespassed/encroached on the plaintiff’s land? 5. What remedies are available? 6. Regarding issue one, the learned trial magistrate held that the suit land belongs to the respondent/plaintiff after establishing that she rightfully inherited it from her late husband, who had also inherited it from his late father. In arriving at her decision, she relied on the testimonies of the witnesses of both parties who all agreed that the plaintiff was indeed the wife of the late Valiriano Okumu and therefore had an interest in the land. She further relied on Justine Othieno’s testimony (PW2) where he stated that boundary marks were marked between his home and that of the late Valiriano Okumu Ochullu and the court verified the same during its locus visit. The learned trial magistrate dismissed DW5’s James Oketcho’s evidence (DW5) regarding the suit land having being divided between Valiriano Okumu Ochullu and Salmon Owere Ochullu, because the boundary marks said to differentiate their land from the suit land, where not there upon the court’s visit to the locus in quo. She also considered the fact that although James Oketcho (DW5) testified that the marks were removed by a one Omalla, there was no proof of any criminal proceedings having been instituted against the said Omalla for removing the boundary marks. 7. Regarding issue 2, the learned trial magistrate held that Charles Ochullu (1st appellant) trespassed on the suit land since issue 1 was held in the affirmative. She dismissed the plaintiff’s case against the 2nd appellant because it was proved that the Charles Ochullu (1st appellant) had trespassed on the said land in 2006, before the distribution of land, in a meeting held on 6/12/2008. That therefore, the plaintiff did not get the land as a result of the said meeting. 8. Regarding issue 3, Tereza Alowo (the plaintiff) was granted vacant possession and general damages. The trial magistrate further criticized the defendants for departing from their pleadings when they stated that the 1st appellant was a nephew of the late Valiriano Okumu Ochullu and not his son as pleaded in their written statement of defence. He cited the case of ***Bakaluba Peter Mukama and Namboze Betty Bakireka*** ***Electoral Petition 4/2009,*** where it was stressed that a party is bound by his pleadings and that a party cannot benefit from pleadings that have not been pleaded, except by way of amendment of the pleadings.

**REPRESENTATION**

1. Ms. Robinah Aketch represented the appellants while Mr. Yafesi Ochieng represented the respondent.

**SUBMISSIONS BY COUNSEL**

**Arguments for the applicant.**

1. Ms. Aketch stated that grounds 4,6,7,8 and 9 of the appeal are abandoned and that she would argue grounds 1,2,3,5 and 10 jointly. 2. She submitted that the Charles Ochullu (1st appellant) lived on the suit land long before 2002, since that was when his first house collapsed. She referred this court to page 52 of the record of proceedings regarding the locus in quo visit, where Tereza Alowo (the plaintiff) showed the court the land in dispute. She stated that the 1st appellant did not dispute being in possession of the said land. Counsel stated that the Charles Ochullu (1st appellant) showed the court his current homestead that was constructed in 2006 and testified that the first house had collapsed in 2002 and the 2nd house collapsed in 2006. She further stated that during the court’s locus in quo visit, the trial magistrate observed the remnant of the collapsed homes and the graves for the twins he buried in 2005, which are in the same spot that the 2nd house collapsed. 3. It was also counsel’s submission that the above evidence in itself was enough to defeat the respondent’s claim that the appellants trespassed on the suit land in 2008, when the 2nd appellant acting in his capacity as clan leader of the Amor Mugulu Kayoro Clan, trespassed and distributed her land to the Charles Ochullu (1st appellant). 4. Ms. Aketch further referred this court to the testimonies of DW1 Charles Ochullu, DW2 Gabudieri Owino, DW3 John Chandi, DW4 Jackson Okoth Osalla DW5 James Oketcho DW6 Sebufa Elisa, DW7 Asana Beza, which were to the effect that Gabudieri Owino (the 2nd appellant) indeed called a meeting of the family of the late Valiriano Okumu Ochullu for purposes of resolving the land wrangles amongst the family members in 2008. That the suit land was measured and it was ascertained to be 6 ¼ acres. Ms. Aketch referred this court to exhibit DEXH2, Page IV under Minute VIII where the said 6 ¼ acres were subsequently divided amongst the family members as follows:

* 2 acres left to pay Okumu Valeriano’s debt * Omalla Tito – 1 acre * Alowo Tereza ¼ acre * Okello Okumu 1 acre * Odongo Okumu 1 acre * Opio Okumu 1 acre

1. Counsel argued that since it was ascertained that the suit land was 6 ¼ acres of which, the respondent received only ¼ of an acre, it was wrong for the plaintiff/ respondent and her witnesses testify that the land was 90 acres. That there was no evidence produced by the plaintiff showing that there was any other land apart from the 6 ¼ acres of the land that was shown to the court at locus. It was counsel’s submission that the respondent took advantage of the said meeting to grab Charles Ochullu’s land (the 1st appellant) that he had inherited from his father and lawfully owned and possessed. 2. She further submitted that the plaintiff/respondent fell short of discharging the required standard of proof and that had the trial magistrate properly evaluated the evidence, she would have decided in favor of the 1st appellant. Counsel quoted section 101(1) of the evidence act Cap 6, which provides that whoever 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. To buttress her argument, she cited the decision in ***Abwongo Zirubaberi and Another Vs Elungat James Ignatius HCCA No. 003 of 2002***. She also referred this court to the case of ***Wycliff Ntende Vs Sulaiman Kitimbo HCCA No. 115 of 1975 (unreported)*** where the Hon. Justice Ssekandi held:

***“It is clear from the evidence that the defendant was in possession of the disputed land at the time of trial. Possession raised a presumption of ownership in law and the party challenging the title of the person in possession must prove better title”. The question is whether the plaintiff succeeded to discharge the burden on her to defeat the presumed ownership by the defendant.”***

1. It was further submitted for the appellants that since the plaintiff/ respondent’s claim was that the Charles Ochullu ( the 1st appellant) trespassed upon her land only after the death of her husband in 2005 and was aided in so doing by the 2nd appellant, that claim is defeated by the evidence of the appellants’ witnesses and had the trial magistrate exhaustively scrutinized the evidence, she would have arrived at a different conclusion, because Gabudieri Owino (the 2nd appellant) acted in respect of that land only after receiving a request from DW3 Asana Beza, vide DEXH1. That thereafter a deed of distribution was executed vide DEXHZ, which is purely the land distribution between the respondent and her sons. 2. Furthermore, counsel submitted that it was the respondent’s testimony that Charles Ochullu (the 1st appellant) accessed the land after the meeting held on 6/12/2008 with the help of the Gabudieri Owino (the 2nd appellant), however, during the Court’s locus in quo visit, Tereza Alowo (the plaintiff) accepted that the Gabudieri Owino (2nd appellant) did not give land to Charles Ochullu (the 1st appellant). It was argued for the appellants that the respondent had failed to prove that Gabudieri Owino (the 2nd appellant) had trespassed upon her land after the death of her husband Valiriano Okumu Ochullu in 2005 since her claims were disapproved by the evidence presented by the appellant’s witnesses who stated that Gabudieri Owino (the 2nd appellant) only distributed the land amongst the late Valiriano Okumu’s beneficiaries. 3. Concerning pleadings, Counsel admitted that the appellants had departed from their pleadings but stated that pleadings by themselves are not evidence, and so the court’s hands are tied. She argued that the court is bound to administer justice based on evidence. To buttress her point, she cited the case of ***Feibe L Talituka vs Abudi Nakenda HCCS No 676 of 1997*** where it was held:

***“… the erstwhile East Africa Court of Appeal has dealt with this particular point in the following words, it is a statutory and necessary rule that a party is bound by his pleadings, but if particulars are given undue detail and what is proved varies from that in ways which are immaterial, it remains the duty of the court to see that justice is done…”***

1. She further cited section 98 of the Civil Procedure Act, which gives this court inherent powers to make such orders as may be necessary for the ends of justice. 2. Ms. Aketch noted that the plaintiff had also departed from her pleadings when she testified during the locus to quo visit that Gabudieri Owino (the 2nd appellant) did not give land to Charles Ochullu (the 1st appellant). She wondered why the appellants were being punished for departing from their pleadings while Tereza Alowo (the respondent) was not. 3. Ms. Aketch also contended that the trial magistrate wrongfully based her decision on only Justine Othieno Osalla’s testimony (PW2) that when he bought his land in 1993, he neighbored the plaintiff. She argued that the trial magistrate did not consider the testimony of Okoth Jackson Osalla (DW4) the area LC1 and James Oketcho (DW3) who testified that the suit land belonged to the 1st appellant’s father. That James Oketcho (DW3) further testified on pg.44 of the record of proceedings that when the land was divided in 1990, he planted boundary marks that were uprooted by Omalla. 4. Finally, Ms. Aketch submitted that the court should have awarded costs to Gabudieri Owino (the 2nd appellant) having found in his favor. That no justifiable reason was given by the learned trial magistrate for denying him costs.

**The Respondent’s Arguments.**

1. Counsel argued grounds 1 and 2 together and grounds 3, 5, and 10 separately. 2. Regarding grounds 1 and 2, counsel submitted that the learned trial magistrate had evaluated the evidence of all the parties considering the fact that she dismissed James Oketcho’s evidence (DW5) about the boundary marks alleged to have been planted between the land inherited by Valiriano Okumu Ochullu and his brother Salmon Owere Ochullu’s land, having failed to verify his claims when she visited the locus in quo. He further submitted that the learned trial magistrate also rebuked Charles Ochullu (DW1) for departing from his pleadings when he stated that he was the son to the late Valiriano Okumu Ochullu in the defendants’ written statement of defence, but subsequently testified that he was Valiriano Okumu Ochullu’s nephew. It was therefore counsel’s conclusion that the grounds 1 and 2 are too weak and should thus fail. 3. Regarding ground 3, counsel stated that the appellants claimed that the respondent’s case had contradictions but did not point out any contradictions. He cited the case of ***Alfred Tajar versus Uganda (1969) EA 1977,*** where it was held that inconsistences, which do not go to the root of the matter can be ignored, if they do not affect the substance of the case. He submitted that if there was an inconsistency in Tereza Alowo’s case (the plaintiff’s case), it was minor and did not go to the root of the case. He asserted that this ground of appeal did not have merit and should fail. 4. Regarding ground 5, it was argued for the respondent that Ms. Aketch selectively referred to part of the proceedings at locus in quo on pages 52 and 68 of the record of proceedings, which were in regard to the house that the 1st appellant claimed to have built in 2006 and another that collapsed in 2002. According to Mr. Ochieng, there was no evidence to corroborate the claim that the said house existed. That even the graves of the twins of the 1st appellant said to have been buried on the suit land were nonexistent. That in the spot the graves were said to be, was the 2nd house that collapsed. That Tereza Alowo (the respondent) that she did not have any knowledge of the said graves. Counsel wondered where Charles Ochullu (the 1st appellant) was living from 2002 to 2006 after his house collapsed in 2002. 5. Counsel additionally submitted that when the Charles Ochullu (1st appellant) testified that he was the nephew of the late Valiriano Okumu Ochullu and not his son, he departed from his pleadings. He contended that a litigant is bound by his pleadings and should not depart from them, because any departure makes their evidence unreliable. He referred this court to the case of ***Musisi Kiwanuka vs. Asha Chand SCCA* 14/2002,** where it was observed that a party’s departure from his /her pleadings is a good ground for rejecting the evidence and such a litigant can be taken to be a liar. He argued that if the appellant felt that it was necessary to allege different facts, he should have applied to amend the pleadings, which was not done in the instant case. 6. Also, it was contended that in the instant case, the appellants did not clarify their evidence about the subdivided land, during the court’s locus in quo visit. 7. He submitted that while the appellants’ counsel in her argument asserted that the court’s hands are not tied in regard to pleadings and that the court can base on the evidence produced in court instead of pleadingsto make a finding, as per the decision in ***Feibe L Talituka vs Abudi Nakenda (supra)*,** in the same case, the court held that it could only rely on such evidence, if what is proved is immaterial. According to Mr. Ochieng, the departure in the instant case was material, since Charles Ochullu (the 1st appellant) had claimed to be the son of the late Valiriano Okumu Ochullu, giving the impression that he derived his interest in the suit land as a result of that fact. 8. Counsel additionally submitted that the respondent’s testimony was corroborated by that of Justine Osala Othieno PW2, who stated that he shares a common boundary with Tereza Alowo (the plaintiff) and that in 1993 when he acquired his piece of land, he planted boundary marks together with the late Valiriano Okumu Ochullu demarcating his land. That the court confirmed his testimony when it was shown the said boundary marks during its locus to quo visit. It was therefore his conclusion that the learned trial magistrate had properly evaluated that evidence. 9. Counsel referred that court to the testimony of PW3 (Odongo Esero) on page 26 of the record of proceedings when he stated that the suit land was divided and Owere Ochullu took the land that was in Iwala Village while Valiriano Okumu Ochullu remained in Chawolo. That his evidence therefore shows that the land indeed belongs to Tereza Alowo (the respondent). 10. He also argued that the fact the respondent admitting that there was a meeting that led to the division of the land did not amount to departing from her pleadings, thus the contention of the applicant in that regard should be ignored. 11. In reply to the submission that the land is 6 ¼ acres and nothing more, counsel submitted that the respondent did not participate in the alleged division of land in issue, neither did Justine Osala Othieno (PW2). That the said meeting was organized by the appellants to grab Tereza Alowo’s land. He stated that possession raised a presumption of ownership and that the respondent had proved a better title and therefore this honorable court should hold as such. 12. Regarding ground 10, Counsel asserted that the 2nd appellant’s only contention in this appeal is that the learned trial magistrate dismissed the case against him but did not award him costs. He noted that the trial magistrate did not make any orders to either party, although the respondent was the successful party in the lower suit. Counsel submitted that although it is trite that costs follow the event, judicial officers have the discretion to either award or not to ward costs. He cited the case of ***Candiru Asina Binnia vs. Centenary Rural Development Bank Civil Suit No. 22 of 2016*** where the Hon. Justice Stephen Mubiru held that in deciding this issue, the court is guided by the provisions of section 27(1) of the Civil Procedure Act, which confess upon a judge, the discretion and full power to determine by whom and out of what property and to what extent costs incurred in all suits are to be paid and to give all necessary direction for the purpose. 13. Counsel additionally submitted that the court has to consider certain factors such as family relationships, age of the party and capacity to pay the costs inter-alia. He argued that the respondent was an old woman aged 80 years by 2008, the parties were from the same family, Gabriel Owino (the 2nd appellant) filed his own defense, therefore, whereas the trial magistrate did not give reasons for the denial of the costs to Gabriel Owino (the 2nd appellant), there were firm grounds to have the costs to Gabriel Owino (the 2nd appellant) denied. Counsel prayed that the court upholds that denial of costs and dismisses this appeal with costs for lack of merit, for being baseless and wasting court’s time.

**DETERMINATION**

1. I have considered the appeal, the submissions of the parties, the record of the lower court and the law applicable. 2. The duty of a first Appellate Court is well known as stated in ***Selle v Associated Motor Boat Co. [1968] EA 123*,**

*“An appeal … is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally”*

1. In my opinion, the following issues are in contention as derived from the grounds of this appeal: 2. Who is the rightful owner of the suit land? 3. Whether the trial magistrate properly evaluated the evidence of both parties? 4. What are the available remedies?

***Issue 1 - Who is the rightful owner of the suit land?***

1. It is stated in the Charles Ochullu’s (the 1st appellant) written statement of defence, that the late Valiriano Okumu Ochullu was the lawful heir of the late Ochullu Obona his grandfather and that both men passed away before distributing the said land. It was the contention of the appellants that if a person passed away before the distribution of property, the heir was customarily bestowed with the responsibility of distributing the deceased’s property. Tereza Alowo (the respondent) on page 21 of the record of proceedings testified that she obtained letters of administration of the estate of her late husband. She further stated that a one, Patrick Okello was enthroned as an heir in her family (see page 7 of the record of proceedings) and there is no evidence that the said Patrick Okello has distributed the property. 2. Furthermore, in Charles Ochullu’s (the 1st appellant) written statement of defence, he insinuated that he was the son of the deceased Valiriano Okumu Ochullu by referring to the respondent as a step mother. It is clear from his testimony on the record that he was a nephew of the late Valiriano Okumu Ochullu and the son to the late Salmon Owere Ochullu. I agree thus with the respondent’s counsel Mr. Yafesi that the statement must have been calculated to misdirect the court that he was indeed entitled to a share of the suit land as the late Valiriano Okumu Ochullu’s son. 3. PW2- Justine Osalla Othieno and PW3 – Odongo Esero testified that the land in dispute was approximately 95 acres. In his testimony in chief, DW5 – James Oketcho testified that the land in dispute measures 6 ¼ acres. This was corroborated by DW2 – Gabriel Owino and DW3 – John Chandi Stephen. He also stated that his late father Valiriano Okumu Ochullu owned 90 acres of land, which he distributed between himself and Salmon Owere Ochullu. Also, in cross-examination, DW5 – James Oketcho testified at page 44 of the record of proceedings that the land inherited by the late Valeriano Okumu Ochullu from their late father was measuring 90 acres and that upon inheriting the said land, the late Valeriano Okumu Ochullu decided to distribute it with his late brother Salmon Owere Ochullu. He did not state what size of land each of the brothers got in the distribution. DW5 – James Oketcho further testified that when the late Valiriano Okumu Ochullu and Salmon Owere Ochullu divided the land, they planted boundary marks, which were uprooted by a one, Omalla. That he (DW5) helped in planting of the said boundary marks. He further stated that there was a court case against the said Omalla as a result although no evidence was brought to explain the said Omalla’s interest in that land. 4. When the court visited the locus in quo, it did not ascertain the acreage of the suit land which in itself was erroneous. It therefore falls on this court to determine from the facts on the record what the disputed land is. 5. DW2 – Gabriel Ownio, DW3 – John Chandi Stephen and Tereza Alowo - PW1 testified that the land that was distributed by DW2- Gabriel Owino was divided amongst the plaintiff and her step sons. It was measuring 6 ¼ acres when it was distributed on 6/12/2008. However, it was Tereza Alowo’ (PW1) contention that Charles Ochullu (DW1) had trespassed on her land as soon as her husband, the late Valiriano Okumu Ochullu died. In other words, the said distribution above stated did not involve Charles Ochullu (DW1) who had already apportioned part of her husband’s land to himself. The claim that Charles Ochullu (DW1) did not benefit from the latter distribution is not in contest. In paragraph 9 of the written statement of the defence of the 1st appellant Charles Ochullu (DW1), he states that the respondent – Tereza Alowo whom he referred to as his step mother, did not want the grand children of the late Ochullu Obona to benefit from their share in that piece of land. He also stated that his grandfather the late Ochullu Obona passed away before distributing his land amongst his sons and that the late Valiriano Okumu Ochullu also passed away before distributing the land. 6. Charles Ochullu’s testimony (DW1) therefore contradicts the testimony of DW5 concerning the distribution of the land between Valiriano Okumu Ochullu and Salmon Owere Ochullu, which in my view is a major contradiction which goes to the root of the case, since it leaves this court in doubt about the veracity of the whole case of defendant at the lower court, which is based on a claim that the land of Ochullu Obona was never distributed. The testimony of DW5 to that effect tends to agree with the respondent’s case, which is that the disputed land is the piece of land that she and her late husband Valiriano Okumu Ochullu derived sustenance from and which she was entitled to inherit upon his death. 7. Thus, from the evidence of both parties, although this court does not know the exact size of the suit land, it is my opinion that the land that Charles Ochullu (the 1st appellant) is occupying is part of the land that the respondent brought the suit for and therefore constitutes the suit land. 8. In the result, I find that the respondent is the rightful owner of the land and agree with the learned trial magistrate that the appellant trespassed on the said land.

***Issue 2- Whether the trial magistrate properly evaluated the evidence of both parties?***

1. There is no fast and hard rule as to how evidence is supposed to be evaluated. It is trite and sufficient if the trial court gives consideration to the evidence of both sides, weighs the evidence and gives reasons for relying on one part of the evidence and why he/she did not believe some evidence and preferred the other that formed the basis of the decision. 2. Ms. Aketch complained that the trial Magistrate based her decision on only PW2 - Othieno Justine Osalla’s testimony which corroborated the respondent’s testimony but ignored the evidence of the defence witnesses DW3 - James Oketcho and DW4 - Jackson Okoth Osalla, who testified that the suit land belonged to the 1st appellant’s father. 3. From my consideration of the record, I cannot interfere with the finding of the trial magistrate, because I do find that she considered the evidence of both parties on pages 3, 4, 5 and 6 of her judgment, weighed it and agreed with the plaintiff. Also, from my foregoing discussion of ownership of the land in dispute, I confirm her finding and conclude that she rightfully chose to believe the evidence of Tereza Alowo (the plaintiff) because of the contradictions in the defendant’s case. 4. It was also Ms. Aketch’s assertion that the respondent was not punished for departing from her pleadings when she testified during the locus in quo proceedings that Gabriel Owino (the 2nd appellant) did not distribute land to Charles Ochullu (the 1st appellant) as she had claimed in her plaint. I disagree with counsel’s conclusion. The effect of the case ***Feibe L Talituka vs Abudi Nakenda (supra)*** cited by both counsel, is that evidence that is a material departure from the pleadings shall not be considered by the court. It is trite that parties are bound by their pleadings. As a result of Tereza Alowo’s said testimony which departed from her plaint, the court dismissed the plaintiff’s case against the 2nd appellant, because Tereza Alowo had agreed that Charles Ochullu (the 1st appellant) was on the land in dispute without the help of Gabriel Owino the (2nd appellant). That is punishment enough. I therefore agree with Mr. Yafesi that the trial magistrate properly evaluated the evidence.

***Issue 3 - What are the available remedies?***

1. General damages can be awarded in a lawsuit as compensation for injuries suffered in a lawsuit. Since it has been ascertained that Charles Ochullu (the 1st appellant) indeed trespassed on the suit land, I find that the award of Shs 2,000,000/= to Tereza Alowo (the respondent) by the trial court is sufficient. 2. Ms. Aketch complained about the learned trial magistrate’s failure to award the 2nd appellant costs. It was the respondents claim in their written statements of defence that if a deceased person had not distributed his land before his death, it was the duty of the customary heir of the deceased to distribute it. It is on record that the 2nd appellant distributed the said land between the respondent and her step sons. The matter was referred to him to resolve, as the clan leader of the Amor Mugulu Kayoro clan by the Chairperson LC3 (DW7) – Asana Beza. However, he ought to have known the customs his clan which according to the defendant’s witnesses required that the customary heir of Valiriano Okumu Ochullu distributes the said land. He is not the customary heir of the said Valiriano Ochullu and thus had no business dividing that hand. 3. Having found above that the land in issue belongs to the respondent, it follows that DW7 had no right, even if he were to be the customary heir, to distribute it. He soiled his hands in so doing. It is immaterial in that regard, that he did not apportion any part of it to 1st appellant. It is for that reason that I find that the trial magistrate rightfully denied him costs in the lower court. 4. In the result, this appeal is dismissed. Costs of this appeal are awarded to the respondent for the inconvenience suffered in defending it.

I so order,

Susan Okalany

**JUDGE**

**26/2/2020**