[2023] UGHCLD 283

## The Republic of Uganda

### In the High Court of Uganda Holden at Soroti

Civil Appeal No. 24 of 2023

(*Arising from the Chief Magistrate's Court of Soroti at Soroti Civil Suit No. 107 of 2017*)

Ojagoi John Robert ::::::::::::::::::::::::::::::::::::

Versus

<table>

Otetum Henry M :::::::::::::::::::::::::::::::::::

(Appeal from the Judgement and Orders of the Magistrate Grade 1's Court vide Civil Suit No. 107 of 2017 of the Chief Magistrate's Court of Soroti at Soroti delivered by H/W Okiror Edmond *Okwii on 21^st December 2022)*

#### Before: Hon. Justice Dr Henry Peter Adonyo

#### Judgement

#### 1. Background:

The plaintiff (now respondent) sued the defendant (now appellant) for $20$ recovery of three gardens of land situated at Ocupo village, Omagara parish, Kateta sub-county, Serere district (hereinafter called "the suit land"), which he claims that he bought from Eriaku Samson on 9th August 1994 at a cost of 210,000. In the same suit, the respondent sought a permanent injunction, general damages and costs. 25

$\mathsf{S}$

On the other hand, the respondent contends that upon purchase of the suit land, he immediately started using the suit land till 3^rd July 2007, when the appellant entered the land. The respondent contends that he took the matter to the LCs, who tried to summon the appellant/defendant but in vain, that the defendant/appellant could use sharp objects like pangas and spears to threaten the respondent not to step onto the said land to date.

The appellant /defendant denied the respondents'/plaintiff's averments contending that he is the rightful owner of the suit land (three gardens), which he bought from his brother-in-law, Eriaku Samson, on 21st August 1994 at a cost of 210,000. That the land belonged to his uncle, which he captured as he got married to his cousin sister known as Atim, daughter of the late Ocen and that Eriaku was a brother-in-law.

The defendant/appellant contends that he is the rightful owner of the suit land and that the three gardens are bought land of his late uncle (Ocen, son of Ogaine), which Eriaku Samson captured.

That the plaintiff/respondent has never used the suit land, and he prayed for 20 the dismissal of the suit with costs.

The issues that the trial court resolved were;

- Who is the rightful owner of the suit land? $a)$ - Whether the defendant is a trespasser on the suit land? $b)$ - Remedies available to the parties? $\mathsf{C}$

In its judgement delivered on 21^st December 2022, the trial court found in favour of the plaintiff/respondent with the following declarations and orders;

$10$

$\mathsf{S}$

$\mathsf{S}$

- a) A declaration that the suit land measuring approximately three gardens of land situate at Ocupo village, Omagara parish, Kateta sub-county, Serere district belongs to the plaintiff/respondent. - b) a declaration is that the defendant/appellant is a trespasser on the plaintiff's land - c) a permanent injunction restraining the appellant/defendant and his agents from making omissions which constitute further interference with the plaintiff's land. - d) Vacant possession of the suit land by the defendant/appellant. - e) General damages of shs 2,000,000 - f) Costs of the suits

Being dissatisfied with the decision which was entered in favour of the plaintiff/respondent, the defendant/appellant appealed to this court.

# 2. Grounds of Appeal:

According to the memorandum of appeal, the appellant raised three grounds of appeal as follows;

- a) That the learned trial magistrate erred in law and fact when he held that the suit land belonged to the respondent. - b) That the learned trial magistrate erred in law and fact when he failed to evaluate the evidence properly and, as a result, reached a wrong conclusion. - c) That the learned trial magistrate erred in law and fact when he failed to subject the whole of the evidence of the parties to that exhaustive judicial scrutiny and appraisal which the appellant was entitled to expect.

The appellant proposed the following orders;

a) That this appeal is allowed.

$\mathsf{S}$

- b) That the Judgement and Orders of the Grade 1 Magistrate Court be set aside. - c) That Judgement be entered for the appellant - d) Costs be awarded to the appellant and in the court below.

#### 3. Duty of the first appellate court: 10

This is the first appeal from the decision of the learned magistrate, and therefore, the duty of the first appellate court is to scrutinise and re-evaluate all the evidence on record in order to arrive at a fair and just decision.

This duty was well laid down in the case of Kifamunte Henry vs Uganda SCCA No. 10/1997, where it was pointed out that;

"The first appellate court has a duty to review the evidence of the case and to reconsider the material 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."

In case of conflicting evidence, the appellate court has the duty to make 20 allowance for the fact that it has neither seen nor heard the witnesses, it must weigh the conflicting evidence and draw its own inference and conclusions. (see Lovinsa Nankya vs Nsibambi [1980] HCB 81)

Furthermore, in the case Father Nanensio Begumisa and three others vs Eric Tiberaga SCCA 17 of 2000; [2004] KALR 236, the obligation of a first appellate court was pointed as being;

"...under an obligation to re-hear the case by subjecting the evidence presented to the trial court to a fresh and exhaustive scrutiny and re-appraisal before coming to its own conclusion."

See also: Baguma Fred vs Uganda SCCA No. 7 of 2004.

4. Power of the Appellate Court:

10 Section 80 of the Civil Procedure Act, Cap 71, grants the High Court appellate powers to determine a case to its finality.

The above legal position in regard to the duty and legal obligation of the first appellate court is considered while resolving this appeal.

#### 5. Representation:

$\mathsf{S}$

In this appeal, the appellant was represented by M/s Otee Associated 15 Advocates, while the respondent was represented by M/s Legal Aid Project of the Uganda Law Society. Counsel representing the parties argued this appeal by way of written submissions. The submissions and the whole record of the lower court, including pleadings, proceedings, judgement, and orders, are 20 considered while resolving this appeal.

#### 6. <u>Determination</u>:

Counsel for the appellant chose to argue grounds one and two concurrently and lastly, ground three. Upon perusal of the court record, I shall also resolve the appeal in that order.

- 25 *Grounds One and Two:* i. - a) That the learned trial magistrate erred in law and fact when he held that the suit land belonged to the respondent.

b) That the learned trial magistrate erred in law and fact when he failed to evaluate the evidence properly and, as a result, reached a wrong conclusion.

It is the testimony of the appellant that he bought the three gardens (suit land) from the late Eriaku Samson on 21^st August 1994. That the suit land belonged to his uncle (Ocen). The appellant testified that Eriaku Samson was their inlaw who married their sister, Atim and that he has the agreement (DEX1) where he bought the suit land at UGX 210,000/=. DW1 states that he first paid $130,000/=$ on 21/08/1994, and the balance was paid; 30,000/- on $10/11/1994$ , 30,000/= on 5/3/1995, and finally 20,000= on 11/5/1995 which was all accepted by the vendor as supported by the acknowledgement marked as DEX2. DW1 stated that he was the author of the acknowledgements of; 10/11/1994 and the one of 5/3/1995, and DW2, Ongolian Joseph authored the one of $11/3/1995$ . The appellant testified that he started utilising the suit land in 1995 because Edeu still had his crops there.

The appellant testified that the agreement DEX1 was written by Odongo. That 20 the neighbours to the suit land are Okoboi (deceased) on the east, but on the west, north and south, it is the defendant and his brother Edeu David. DW1 testified that he was summoned by the LCII of Kateta over the land in 2015. That prior to Eriaku's death, nobody challenged his ownership of the suit land and that he has used the land for 27 years and that he had paid Eriaku all the money as agreed. Okoboi did not sign the agreement. That the witnesses included Eliogu, Edeu Ogoliam, Ogodia, son of Eyedu and Odongo. Ogoliam is still alive.

On the other hand, the respondent contends that he also bought the three gardens of land situated at Ocupo village, Omagara parish, Kateta sub-county,

$\mathsf{S}$

Serere district from Eriaku Samson on 9th August 1994 at a cost of 210,000 (PEX1). PW1, the respondent, stated that PEX1 was written by PW3, who also corroborated that testimony. PW1 stated that he paid the purchase price as follows: shs 70.000/= paid on 9/8/1994 PEX1 and PEX1(a), shs 90,000/=paid $\pm$ on 15/8/1994 as PEX2 and PEX2(a) and shs 50,000/ $=$ paid on 25/10/2007 as PEX3 and PEX 3(a) paid to the widow and the clan chairperson. PW1 stated that upon purchase, he immediately started using the suit land for cultivation until $3^rd$ July 2007, when the appellant entered the land forcefully. The respondent testified that even during the burial of Eriaku, the vendor, in 2007. That during the funeral of the vendor, when asked who had problems with the deceased, PW1 indicated that he bought the suit land from the deceased and has problems with the appellant. The respondent contends that he took the matter to the LCs, who tried to summon the defendant/appellant but in vain. The respondent's purchase of the land was supported by the testimonies of PW2 and PW3. PW4, the vendor's son, witnessed the last instalment payment made to the widow in 2007.

At locus, the respondent and his witnesses were able to identify the boundaries of the suit land; the features inclusive of the trees were evident, and even trumps of those trees were allegedly cut by the appellant, and it was evident that the appellant is in possession of the suit land.

As can be deduced from the appellant counsel's submissions regarding the $25$ grounds under determination, his main contention is the failure of the trial magistrate to evaluate the evidence which contained inconsistencies and contradictions in the respondent's testimony. The appellant's counsel submits that, during cross examination of PW1 in pages 21 and 22 of the record of proceedings, that the respondent failed to answer and explain 30

- questions relating to the alleged transactions and size of the land. He submits $\mathsf{S}$ that PW1 told court that the size of suit land was not known as it was expressed in terms of meters and he bought 35x35m width and 45x45m length and that the agreement does not show the measurement of the land; they only drew a map. - Counsel for the appellant further submits that when PW1 was probed further 10 about the location of the suit land, he said that the village in the first agreement is Ocupo and in the 2^nd agreement its Oburine village and that about the payment, he answered that the 3^rd payment was made to the wife of Eriaku. yet the wife to whom he made the payment to did not sign the agreement. 15

Counsel for the appellant submitted that PW3 Emacet Joseph testified on page 9 of the record of proceedings that the neighbours to the suit land are Oropoi Godfrey Edou and the defendant and gave the description of the land including the features in it like Ejikai tree and Epapai. PW3 further told the court that they moved around the land before writing the agreement. Counsel for the appellant submitted that PW3 testified during cross examination on pages 27 and 28 of the record of proceedings, PW3 testified that the neighbours are Okoboi Gerefasio, Edenyu David Ojagoi Robert.

Counsel for the appellant submits that the Supreme Court laid down the law as to contradictions and inconsistencies in the case of *Constantino Okwel Alias* Magendo vs Uganda, SCCA No. 12 of 1990 where court stated that;

"In assessing the evidence of a witness his consistency or inconsistency, unless satisfactorily explained, will usually, but not necessarily, result in the evidence of a witness being rejected, minor inconsistencies will not

usually have the same effect, unless the trial judge thinks they point to deliberate untruthfulness. Moreover, it is open to a trial judge to find out that a witness has been substantially truthful even though he lied in *some particular respect."*

Counsel for the appellant submitted that the evidence of the respondent and his witnesses at the trial sharply contradicted each other, which in his view created an inference of witnesses who did not know anything concerning the disputed land making their testimony leave a lot to be desired. Counsel also submitted that the contradicting evidence regarding the neighbors to the suit land both by the court and the parties was very apparent that the court failed to make a finding on it.

On the other hand, counsel for the respondent submitted that the law relating to contradictions and inconsistencies is well settled that when they are major and intended to mislead or tell deliberate untruthfulness, the evidence may be rejected. If, however, they are minor and capable of innocent explanation, they will normally not have that effect. *Makau Nairuba Mabel versus Crane* Bank Ltd HCCS No. 380 of 2009 per Obura J; Oketcho Alfred vs Uganda SCCA No. 24 of 2001, Alfred Tarjar vs Uganda Crim Appeal No. 167 of 1969

That, however, in the case of *Oryem David vs Omory Philip HCCS No. 100 of 2018,* it was held that;

"it is trite law that grave inconsistencies and contradictions, unless" satisfactorily explained, will usually but not necessarily result in the evidence of a witness being rejected. Minor ones, unless they point to *deliberate untruthfulness*, *will be ignored.*"

$\mathsf{S}$

Counsel for the respondent argued that major contradictions vary from case $\mathsf{S}$ to case, but the question is whether or not the contradictory elements are material to the determination of the case. That the locus visit confirmed the testimony of the respondent and his witnesses and brought it clearly that the appellant is not the owner of the suit land. That the plaintiff's /respondent's evidence is so consistent as to how they acquired the suit land and points out 10 that the plaintiff's land is different. That it was evident in the respondent's evidence that the appellant trespassed on the respondent's land in 2007, and during locus, it was evident that the appellant and his family were using the same land for cultivation against the will of the respondent's peaceful possession of the land. That PW2, PW3 and PW4 consistently led evidence in confirmation that the respondent is the owner of the suit land.

In response to the contradictions, the court finds that during re-examination regarding the size of the suit land, PW1 testified that the measurement of the land was by counting feet (strides). PW2, during cross-examination, testified that he was present when the respondent was purchasing the suit land and that there was no measurement, but the owner showed the area he was selling. PW2 also, during re-examination, testified that he could show the exact three gardens they moved around. PW3 testified that the measurement of the land was by counting of feet/paces, which corroborated PW2's testimony.

PW3, who testified that he was the secretary of the PEX1, testified that they were three gardens and that the map of the area was drawn separately showing the boundary. Regarding the neighbours, PW3 testified that the suit land also neighbours Okoboi, Edenyu David and Ojagoi Robert; the court's finding is that in all the contradictions regarding the size of the land, what

stands out is that the plaintiff's witnesses maintained that the suit land was three gardens and two consistently testified that they moved around the land. My other observation is that, PW1 testified that Okoboi is a neighbour one side and the appellant is a neighbour of the suit land on the other sides. PW1 maintained this during cross-examination when he testified that the land neighbours Okoboi the only neighbour, Edeu and that the land of the appellant surrounds the suit land. As to why Okoboi, the neighbour did not witness the agreement PEX1, PW3 testified that he had gone to Kampala but he confirmed that he also drew the map of the place – the suit land.

The court observes that PW4, who said he is the son of the vendor from whom the parties bought the suit land testified to have only witnessed the last 15 transaction – payment of money to Akiteng, the widow of the vendor, on 25.10.2007. Counsel for the appellant contends that the wife of Eriaku, to whom PW1 made the last payment, did not sign the acknowledgement but PW4, during cross-examination on page 25, testified that Akiteng thumbprinted the acknowledgement. The court is also mindful that Akiteng did not 20 testify. This was, however contradictory to PW1's testimony during crossexamination when he stated that the 3^rd agreement did not have the name and signature of the wife of Eriaku but maintained during re-examination that the final instalment was paid to the Widow of Eriaku called Akiteng.

Counsel also noted that during cross-examination, PW1 stated that he told $25$ the court that the defendant/appellant did not use the land from 1994 till 2000. Upon perusal of the record, PW1 indeed during cross examination stated that the appellant did not use the land from 1994 till 2000 which was indeed contradictory to his assertion still in the cross examination that the defendant entered the land in 2007. 30

$\mathsf{S}$

Whereas I am alive to the legal provision that no particular number of witnesses is required by the law to prove a particular fact, I have observed that apart from Ogoliam, who testified as DW2, no other witness who is apparently deceased and neither was a person familiar with the handwriting of Odongo who is said to have written the agreement, testified in regard to the handwriting.

I find that there was sufficient explanation for the inconsistencies and contradictions, which in any case did not go to the root of the matter before the court, which is ownership of the suit land.

- Be the foregoing as it may, counsel for the respondent argued that whereas the respondent bought the suit land from Eriaku Samson on 9^th August 1994 15 at a cost of 210,000, the appellant also alleges to have bought the same land from Eriaku Samson, who happens to be his in-law. That case law has come up to pronounce such positions on account of equity based on the principle of "qui prior est temper", "he who is earlier in time is stronger in law". - For this position, Counsel referred this court to Hanbury and Martin Modern Equity (Sweet and Maxwell) Ltd 1997, which at page 27 provides that;

Prior equitable interest in land can only be defeated by a bonafide purchaser of value without prior notice. Then the equities are equal, and his estate prevails. If he took with notice, the position is otherwise, as equities are not equal.

If he does acquire a legal estate, then the first in time that is the prior equitable interest prevails as equitable interests rank in the order of creation." Counsel then submitted that the respondent is the rightful owner of the suit

$\mathsf{S}$

$25$

land and that the appellant has vehemently failed to prove his case on a balance of probabilities.

According to the case of Balamu Bwetegaine Kiiza and Anor versus Zephania Kadooba Kiiza CACA No. 59 of 2009, in consideration of competing equities such as in the instant appeal, the court had this to say:

It would appear to us that there are two claims of competing interests 10 regarding the suit land by both parties to this appeal. The determination of these competing interests is a point of law though it will also be necessary in resolving this to consider the facts of this appeal. Under classical land law, there are two interests that the law recognizes. These include legal and equitable. According to DJ Bakibinga, Equity and Trusts (Law Africa, 2011), at 15 page 46 and 47, it is generally recognized that a legal interest is valid and enforceable against the whole world (in rem). This means that if, subsequently, a person obtains a legal or equitable interest in the same property, his or her interest is subject to the interest of the first owner. Equitable interests however are enforceable as against another claimant (in 20 *personam*)

Where there are competing equities, the maxim Qui prior est tempore, potior est jure (he who is first in time has the stronger right) becomes applicable. It deals with priority where there is a conflict between two competing equitable interests in property, and the general rule is that equitable interests in property take priority according to the order in which they were created.

In the instant case, the respondent bought the suit land from Eriaku Samson on 9^th August 1994 at a cost of 210,000, and he immediately started using the land until 3^rd July 2007, as evidenced by PEX1, PEX2 and PEX3.

$25$

$\mathsf{S}$

In a subsequent development on 21^st August 1994, the appellant also testified that he bought the same land from Eriaku Samson at 210,000 and has utilised the land from that time until now.

From the record, the respondent testified that he utilised the land from 1994, when he bought it, till 2007; this was against the appellant's testimony that whereas he bought the land in 1994, he started utilising it in 1995, which leaves the respondent's utilisation of the land in 1994 unchallenged. As per the case of Balamu Bwetegaine Kiiza and Anor versus Zephania Kadooba Kiiza (supra), the equitable interest that was created first is followed by the next created interest.

In the case of Balamu Bwetegaine Kiiza and anor versus Zephania Kadooba Kiiza 15 (supra), in resolving one of the grounds that pertained to the issue of competing equitable interests, the Court of Appeal held that;

> " It is our finding both on the law and fact that if the first appellate court had properly applied the principles in relation to its task, it would have found that the first appellant's equity was the first in time and hence in law in terms of ownership of the suit land. it erred in ignoring the grant of the lease offer in 1995. The maxim of competing equities thus applies, resolving this matter in favour of the first appellant."

In view of the above, therefore, I find that the respondent is indeed the owner of the suit land, having bought it earlier than the appellant but also having shown to this court evidence supporting that assertion. Grounds One and Two therefore fail.

$\overline{5}$

ii. Ground three:

$\mathsf{S}$

c) That the learned trial magistrate erred in law and fact when he failed to subject the whole of the evidence of the parties to that exhaustive judicial scrutiny and appraisal which the appellant was entitled to expect

The appellant testified that he was on the land for 27 years. Counsel submits that the testimony of DW1 was corroborated in all material facts by one of the neighbours to the appellant DW2 Ogoliam Joseph who told the court that there was no contestation over the sale by anyone. DW2 testified that he was there in the last transaction of $15^{th}$ /3/1994.

Counsel for the appellant averred that throughout the trial, the appellant and his witnesses told the court that the appellant has been on the land since 15 1995, having gotten there because Edeu still had his crops there, and they were unaware of the respondent's earlier purchase thus arguing that the appellant is then a bonafide purchaser for value without notice.

It is my observation that the claim of the appellant that he is a bonafide purchaser for value without notice was fully conversed by the trial court. The trial magistrate held that:

"When the law of equity is applied to the above set of facts, it is not doubtable that the plaintiff (now respondent) has a longer equitable title on the land and that the defendant had knowledge of the circumstances that would have impelled an honest and reasonable man on inquiries. And since the defendant willfully abstained from inquiry to avoid notice, he cannot claim to have acted in good faith. His subsequent conduct is not that of a bona fide purchaser. His claim,

## therefore, cannot displace the plaintiff's (now respondent's) prior equity."

$\mathsf{S}$

$10$

It is trite that a bona fide purchaser is one who buys property for value without notice of another's claim to the property and without actual or constructive notice of any defects in or infirmities, claims, or equities against the seller's title; one who has in good faith paid valuable consideration for the property without notice of prior adverse claims.

A bona fide purchaser does all that is reasonably possible and necessary in his or her power to find out about all material facts pertaining to the property before he or she could commit him or herself to purchase the same. To be a bona fide purchaser, one must have done due diligence and exercised caution before entering into a transaction of the nature that would ultimately be binding upon him or her. If the purchaser is guilty of fraud or sharp practice, that person ceases to be innocent and therefore loses the protection.

According to the testimony of the appellant, he does not relay the due diligence he conducted apart from providing the history of the land and yet 20 the suit land did not have any other neighbour but mostly him apart from Edeu and Okoboi, who do not appear anywhere in the transaction and he neither controverted the respondent's testimony that immediately upon purchase of the land, he utilised the same until 2007 when the appellant forced himself onto it. This testimony was not controverted by the appellant apart from the 25 insistence that he took possession and started utilising the land in 1995 because Edeu still had his crops there.

There was no iota of evidence that corroborated the fact that Edeu still had his crops on the land in 1994 but only the respondent's evidence that he immediately purchased the land on 9^th August 1994, way before the appellant, he started to use the land; also PW2, PW3and PW4 were in agreement with the respondent's immediate utilisation of the land as early as when he bought it. It is evident then that the appellant if he had wanted to, would have been notified of the respondent's occupation/utilisation of the suit prior to his purchase and eventual utilisation in 1995.

PW1 testified that PW2 represented Edeu in the transaction, and this fact was not controverted by the appellant. PW1 also testified the involvement of LC1 leaders in his transaction, and none is said of the appellant engaging LC leaders. Whereas I am mindful that it is not a legal requirement to engage LC1 leaders, it goes a long way in conducting due diligence on the land.

I am reminded of the case of John Bagaire Vs Ausi Matovu C. A. No. 7 of 1996 *(C. A)*, which emphasises the requirement of due diligence in land transactions; it was held that:

"Lands are not vegetables that are bought from unknown sellers. Lands are very valuable properties, and buyers are expected to make thorough investigations relating to not only the land but also the seller before purchase."

To my mind, this position is to the effect that during the purchase of land, the buyer has a duty to satisfy him/herself that the transaction is legitimate. The law does not treat a purchaser who, for one reason or another, ignores the need to conduct due diligence as bona fide purchaser for valuable consideration without any notice of fraud.

A purchaser of unregistered land who does not undertake the otherwise expected investigation of title, which will often ordinarily involve him in quite

$\mathsf{S}$

$10$

elaborate inquiries, is bound by equities relating to that land of which he had actual or constructive notice (see Williams and Glyn's Bank Ltd v Boland, [1981] AC487).

When a purchaser has actual knowledge of facts and circumstances that would impel a reasonably cautious person to make such inquiry or when the purchaser has knowledge of a defect or the lack of title in the vendor or of sufficient facts to induce a reasonably prudent person to inquire into the status of the title of the property in litigation, his or her mere refusal to believe that such defect exists, or his or her willful closing of his or her eyes to the possibility of the existence of a defect in the vendor's title will not make the purchaser an innocent purchaser for value if it later develops that the title was, in fact, defective, and it appears that he or she would have had such notice of the defect had he or she acted with that measure of precaution which may reasonably be required of a prudent person in a like situation.

The constructive notice applies if a purchaser knows facts which made "it imperative to seek an explanation, because in the absence of an explanation it was obvious that the transaction was probably improper" (see Macmillan v. Bishopsgate Investment Trust (No. 3) [1995] 1 WLR 978). When it is proved that such a purchaser acquired knowledge of circumstances which would put an honest and reasonable man on inquiry (see Baden v. Societe Generale pour Favoriser le Developpement du Commerce et de l'Industrie en France SA, [1993] 1 WLR 509), and yet he did not undertake the necessary inquires, such a purchaser cannot claim to have bought in good faith. The ascertainment of good faith, or lack of it, and the determination of whether due diligence and prudence were exercised or not, are questions of fact which require evidence. The burden of proof to establish the status of a purchaser in good faith lies


$\mathsf{S}$

$25$

upon the one who asserts it. This onus probandi cannot be discharged by mere invocation of the legal presumption of good faith. (Obina & 6 Ors v Okumu & Ors (Civil Appeal No. 42 of 2018) [2018] UGHCLD 73 (6 December $2018)$

Since the burden of proof lies on the one who claims to be a bonafide purchaser, it is evident that I have invoked more questions than answers in the appellant's testimony in regard to the claim of bonafide purchaser for value, because of that, I am constrained to think that the appellant has proved his claim on a balance of probabilities.

In reiteration, Amrattal Purshottan & Anor vs Gian Singh Bhambra – H. C. C. S. No. 289 of 2010, the court held that a bona fide purchaser is a person who 15 acquires property without actual or constructive notice of any defects in title. The person must have, in good faith, paid valuable consideration for the property without prior notice of any adverse claim. In this regard, one who has exercised due diligence, as well as reasonable caution, before entering into a transaction would be a bona fide purchaser. 20

In both the testimonies of the appellant and the respondent, Ogoliam Joseph is not listed as a neighbour to the suit land, yet the counsel for the appellant submits that DW2 is a neighbour to the suit land. The only neighbours to the suit land, as deduced from the testimonies, are the appellant on many sides and then Edeu and Okoboi (deceased), who never testified and neither witnessed any agreement or acknowledgement of receipt of money for the land. Interestingly, the appellant is a neighbor of the suit land on many sides; he cannot allege that he did not have constructive notice of the respondent's prior interest in the suit land.

$25$

$\mathsf{S}$

I am also fortified by the decision in the case of Miza s/o Beki (Miza Bhakit **vs-** Bruna Ososi Civil Appeal No.0026 of 2016, where it was held that "the standard of due diligence imposed on a purchaser of unregistered land is much higher than that expected of a purchaser of registered land. A purchaser of unregistered land who does not undertake the otherwise expected lengthy and often technical investigation of title, which will often ordinarily involve her in quite elaborate inquiries, is bound by equities relating to that land of which she had actual or constructive notice. Constructive notice is the knowledge that the courts impute to a person upon presumption so strong of the existence of the knowledge that it cannot be allowed to be rebutted. either from him knowing something which ought to have put him on further enquiry or from willfully abstaining from inquiry to avoid notice (see **Hunt Vs-**Luck (1901) 1 Ch.45).

Before I take leave of this third ground, counsel for the appellant averred that the trial magistrate in his judgement makes reference to doctrines of equity that the respondent being the first in time was the rightful owner of the suit land. Counsel contends that the respondent / plaintiff by his conduct was guilty of acquiescence and laches having allowed the appellant/defendant to stay in the land from 1995 up to 2017 for a period of 22 years. Counsel further submits that if the defendant/appellant was aware of the prior transaction of the respondent in the suit land, which was not the fact that the respondent/plaintiff acquiesced the appellant's stay from the suit land and he could not again seek to evict him.

The evidence of the appellant's stay on the land since 1995 and for 25 years, is against the respondent's testimony that he took immediate stay on the land from 1994 till 2007 when the appellant forcefully took over the land. Having

$25$

$\mathsf{S}$

- held in grounds one and two that the respondent is the owner of the suit land $\mathsf{S}$ having acquired it prior to subsequent acquisition of the respondent, I am persuaded on a balance of probabilities that the appellant has failed to prove that his actual stay on the land indeed started in 1995 and not 2007 after the death of the vendor. - All in all, I find the appellant's failure to exercise the due diligence expected of 10 a purchaser of unregistered land. I do not find him a bona fide purchaser for value without notice, having had prior constructive knowledge of the prior existence of the respondent's equitable interest.

Since grounds 1, 2 and 3 have failed, the trial magistrate's decision did not occasion a miscarriage of justice.

## 7. Conclusion:

Under Sec.27 of the Civil Procedure Act, costs follow the event. Thus, in the case of Primchand Raichand Ltd & Another vs. Quarry Services of East Africa & 6 Others [1972], EA 162 court held that "a successful litigant ought to be fairly *reimbursed for costs he had incurred ...."*

This instant appeal has no merits. It is hereby dismissed.

- 8. Orders: - This appeal is dismissed with costs to the respondent in this court and below. - 25

The judgment and orders of the trial magistrate vide Civil Suit No. 7 of 2017 of the Chief Magistrate's Court of Soroti at Soroti delivered on 22^nd December 2022 is hereby upheld.

I so order. $\mathsf{S}$

$\ldots$

Hon. Justice Dr Henry Peter Adonyo

Judge

$17/08/2023$