[2025] UGHC 382

## 5 **THE REPUBLIC OF UGANDA**

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

## **LAND APPEAL NO.016 OF 2018**

# **(ARISING FROM LAND CLAIM NO. 24 OF 2016 OF THE CHIEF MAGISTRATES COURT OF OYAM HOLDEN AT OYAM)**

10 **1. OKELLO NEWTON 2. KEREN OGOLA 3. DOREEN OKELLO……………………………………………............. APPELLANTS AND ANGIA OGOLA…………………………………………………………….. RESPONDENT**

## **BEFORE: HON. MR. JUSTICE GEORGE OKELLO**

## **JUDGMENT**

The genesis of the dispute which has reached this appeal court can be traced to an earlier land claim No. 02 of 2015 between the respondent and his paternal

20 uncle Ogola C. P. Mr. C. P was the father of Newton (1st Appellant), a husband to Ms. Keren (2nd Appellant) and a father-in-law to Ms. Doreen ( 3rd Appellant). A consent was reached between the two wherein Mr. CP as defendant agreed to hand-over to the respondent (as plaintiff) ownership of approximately six acres of land located at Abok "A" Village, Bar Parish, Abok Sub- County, Oyam District.

25 Mr. C. P was to vacate the suit land by 28 February, 2016. On his part, the


- 5 respondent would not destroy pine trees on the suit land but the pines would remain available for Mr. C. P's use. The respondent would buy for Mr. C. P approximately one acre of land by 28 August, 2016. Each party would bear its own costs. It appears neither side honored the consent. For that reason, the respondent sued the present appellants. For some inexplicable reason, the 10 respondent did not implead Mr. C. P as defendant. His major complaint was that the appellants as close relatives of Mr. C. P, refused to relinquish their interest in the suit land despite constant reminders and more especially in light of the consent the respondent had executed with Mr. C. P. Giving a historical account of his claim, the respondent averred that he inherited the suit land from his late - 15 father- Martin Ogola who died in 1988. He averred that no one doubted Mr. Ogola's ownership. After Ogola's death, his widows- Alice Ogola ( the respondent's mother) and Agnes Ogola ( a co-wife of Alice) took over the suit land and continued utilizing till 2004 when Agnes left and went back to her parents' home. Upon Agnes' departure, the respondent's mother (Alice) "assumed - 20 ownership and possession of a portion of the land vacated" as it formed part of the estate of their late patriarch. It was averred that Ms. Alice continued using the suit land until 2007 when the appellants trespassed on it. The 1st appellant who is a husband to the 3rd appellant is said, together with the spouse, to have built grass-thatched houses and planted pine trees while the 2nd appellant who 25 is the biological mother of the 1st was alleged to have been cultivating the suit land. The respondent prayed for affirmative declaration of ownership. He also

5 prayed that a permanent injunction, eviction order, mesne profits, general damages and costs of the suit issue against the appellants.

In their joint written statement of defence, the appellants refuted the respondent's claim. They, however, agreed that whereas a consent was executed by Mr. C. P, the respondent had sued Mr. C. P wrongly, because, as at the time,

- 10 the suit land was already given by Mr. C. P to his son and daughter-in-law. The appellants asserted that the respondent had shown interest in the suit land for long as evidenced by his disturbances of the appellants and complaints he lodged with the clan chief. The appellants averred that while before the clan chief, the respondent accepted to exchange the suit land with his own but recanted. They - 15 contended that ever since the land was given by Mr. CP to his son and daughterin-law, the spouse of Mr. C. P (the 2nd appellant) has not used it again. About the land size, the appellants averred that the suit land is approximately four acres but only 2 and half acres thereof was given by Mr. C. P in 2007. They added that one and half acres thereof were bought by Mr. Newton from Mr. Kuranimo - 20 Apunyu (an uncle) and the transaction was documented.

The dispute was adjudicated by the learned Magistrate Grade 1, His Worship Oburu Morris Ezra who returned judgment for the respondent. He declared the respondent to be the rightful owner of the suit land holding the appellants to be trespassers. The trial court issued a permanent injunction against the 25 appellants, ordered for their eviction and awarded the respondent general damages of shs. 5,000,000, plus costs of the suit.


Four grounds of appeal were framed but one was abandoned in the written arguments of Mr. Egaru Emmanuel Omiat, learned counsel for the appellants. I will thus re-number and set out only three grounds, namely;

- 1. The learned trial Magistrate erred in law and fact by failing to properly 10 evaluate the evidence on court record thereby reaching a wrong decision and judgment. - 2. The learned trial Magistrate erred in law and fact by failing to properly conduct locus in quo by failing to inspect the entire land and by making 15 incorrect observation thereby misdirecting himself and reaching a wrong judgment hence occasioning a miscarriage of justice. - 3. The learned trial Magistrate erred in law and fact by awarding general damages of shs. 5,000,000 without justifiable cause. - 20 The appellants pray that the appeal be allowed, the trial court's judgment and orders be set aside, and costs of the appeal and costs of the trial court be awarded to the appellants.

I wish to note that the appeal was initially dismissed for want of prosecution by Gaswaga J but on the application of the appellants vide Misc. Application No. 35 25 of 2023, and by consent of the parties, I set aside the dismissal and reinstated

the appeal for hearing on merit. I directed counsel for the parties to file


- 5 submissions. The initial timeline was not followed, apparently, because, Mr. Egaru received the trial court record late. After the court extending the timelines, the appellants filed submission but still out of time. For the respondent, Mr. Daniel Odongo, learned counsel, did not lodge any submission. Enquires by court through its clerk yielded nothing. I shall accordingly proceed on the basis - 10 of the appellants' submission only.

Being a first appeal, the duty of this court is well settled. Court has to re-evaluate the evidence on record and reach its own conclusions while giving allowance for the fact that it did not see the witnesses testify and would thus be unable to comment on their demeanor especially where there is conflicting evidence. Court 15 must, however, still be guided by the impressions of the trial court, if any, who saw the witnesses testify. There may obviously be other circumstances which quite apart from manner and demeanor may show whether a statement of a witness is credible or not, and may warrant this court in differing from the trial

court even on a question of fact turning on the credibility of witnesses whom this

- 20 Court has not seen. This Court must, therefore, re-hear the case while carefully weighing and considering all material on record including the impugned judgment by not disregarding but considering it and must proceed to draw its own inferences and conclusions both on matters of fact and matters of law. Where this court finds that the lower court Judgment is wrong it should overrule 25 it. Given that an appeal is by way of a retrial this court is not bound to follow - the trial court's findings of fact if it appears either that the trial court failed to take account of particular circumstances or probabilities or if the impression of

5 the demeanor of a witness is inconsistent with the evidence generally. The foregoing statement of the law is supported by the case of **Selle & another Vs. Associated Motor Boat Co. Ltd & others (1968) E. A 123**, and **David Muhenda & 3 others Vs. Margaret Kamuje, Civil Appeal No. 9 of 1999 (SCU).**

In arguing ground one, Mr. Egaru touched on several aspects of the evidence on 10 record and attempted to demonstrate how the trial court dealt with the evidence. He criticized the learned trial Magistrate for the manner he evaluated the evidence. I should observe that ground one as framed falls short of what the rules and the decided cases require. The ground does not show which item of evidence the trial court failed to evaluate. It does not set out the particular wrong 15 decision arrived at by the trial court. Therefore, had it been objected to, the ground might have been struck out. See: **Ranchhobhai Shivabhai Patel Ltd & Anor Vs. Henry Wambuga & Anor, Civil Appeal No. 06 of 2017 [2018] UG SC 68 (per P. K Mugamba, JSC, p.6)**. However, having read the detailed submission, the requisite material which gives the basis for the complaint is 20 apparent, and since no objection was raised, I will consider the ground on merit. Being a matter of evidence, I shall not reproduce Mr. Egaru's arguments. I will reappraise the evidence as a whole and assess whether the complaint stands.

The ownership of the suit land remains a point of controversy. The respondent testified as PW1. He was 41 years old as at 15 May, 2017. He stated that the 25 appellants forcefully grabbed the suit land which he had inherited from his late father-Martin Ogola. Mr. Ogola had inherited from his own father. Mr. Ogola


5 passed on in 1988. His widow (the mother of PW1) continued to use the suit land. The 1st appellant and spouse (the 3rd appellant) were cultivating and built grass-thatched houses on the suit land in 2013. They planted pine trees in 2012 and 2013. The 2nd appellant who is the mother of the 1st appellant was not doing anything on the suit land. She only backed up her son to use the suit land 10 claiming it is hers. The physical features on the suit land, according to PW1, were; an old homestead of the late grand-mother of PW1, her grave, a fig tree stump showing grave of Atim Jimmy, mango tree growing on the grave of Akulu Patricia, among others. According to PW1, the land used to be a grazing area but after cattle rustling, it was turned into gardens from 1989 to 2007 when the 15 appellants trespassed. In cross-examination by the 1st appellant, PW1 stated that he took the 1st appellant and Mr. C. P to a Chief Magistrate in order to confirm an LCIII Court judgment that had given rights over the suit land. He stated that the Chief Magistrate, however, set aside the LCIII Court judgment and directed a retrial. This court notes that the details of the alleged LC III Court 20 judgment or order of the Chief Magistrate was not adduced in evidence. The Chief Magistrate is also not named. PW1 testified that at one time there was a dispute over the suit land between his mother and the mother of the 1st appellant (the 2nd appellant). He claimed that in that dispute, the clan chief ordered the 2nd appellant to pay the cost of ploughing the land and to vacate it. In cross-25 examination by the 2nd appellant, the witness stated that Mr. Ogola Martin died in 1989. He added that the suit land was in the past being used for grazing and there was no dispute over it. In response to court question, PW1 stated that in


5 2015, he sued Mr. C. P in a land claim because the latter had claimed the suit land saying he had given to the 1st appellant. And according to PW1, the case resulted in a consent judgment.

The respondent's mother- Alice Ogola who was 70 years old, testified as PW2. She confirmed the close family ties between herself and the appellants calling

- 10 the 1st appellant a son of a brother-in-law. According to PW2, the appellants grabbed the suit land. She used to cultivate it in 1978. It was formerly owned by PW2's father-in-law-Mr. Angia. The suit land is approximately 5-6 acres. About the user, PW2 stated that the 1st appellant planted cassava, maize, and trees, but also built three grass-thatched houses. She added that initially the 1st - 15 appellant was living across the road at his mother's home. The features on the suit land, according to PW2 were, one big tree, Olam (fig tree), mango tree, Ituba tree, a grave of the late child- Akullo. In cross examination by the 1st appellant, PW2 stated that Ms. Keren (the 2nd appellant) came to her in 2007 asking her to vacate the garden but PW2 refused. In cross-examination by the 2nd appellant, 20 the witness stated that her husband (Mr. Ogola Martin) died in 1989 and in the year cattle were raided, she lived on the suit land where her mother-in-law was buried. PW2 cleared the suit land after it ceased being cattle-grazing area.

(Ms. Agnes) once used the suit land before the dispute erupted. PW2, however, 25 did not know the relationship between Ms. Agnes and the appellants.

Responding to questions put by the 3rd appellant, PW2 stated that her co-wife

 - 5 The paternal uncle of the respondent, Mr. Atim Ben, who was 68 years old, testified as PW3. He knew the appellants. The 1st appellant is a nephew (son of a brother). According to PW3, the suit land was owned by the respondent's late father. Before, it was owned by the respondent's grand-father. It is about six acres. The features on the suit land are, orange trees and mango tree planted by - 10 the respondent in 2000. There are three visible graves- for Akullu (the respondent's grand-mother), Okello, and Omara. There are Owelo and Ituba trees. Owelo is in the south. According to the witness, Mr. Martin Ogola was buried in an (IDP) camp. The land dispute erupted in 2007 but before, the suit land was being used by the respondent. PW3 was cross-examined by the 2nd and - 15 third appellants.

In their defences, the 1st appellant who was 40 years old, testified on 16 October, 2017 as DW1. He stated that the respondent is a cousin brother. And that the respondent was suing over a land owned by the 1st appellant. According to DW1, the suit land was given to him by his father and mother in 2007, that is, Mr. 20 Ogola C. P and Ms. Karen Ogola. Only two and half acres were given by the parents but the additional 1 and half acres were given by an uncle- Kuranimo

Apunyu. The respondent was claiming both pieces of land. Describing the features on the suit land, DW1 mentioned his two grass-thatched houses constructed in 2012, pine trees, palm tree, Mango trees planted by the late father 25 in 1995, and Ituba tree. The witness went on to name other features demarcating the one and half acres allegedly given by the uncle. He also stated that his father (Mr. CP Ogola) and the respondent's father (Mr. Martin Ogola) once lived on the

- 5 suit land without any dispute. The witness named the persons who were present when his father gave him the two and half acres namely, his spouse (the 3rd appellant), Atoo, Mr. Kuranimo Apunyu, and Okech John. As regards the one and half acre allegedly given by Mr. Kuranimo, the witness stated that his spouse (the 3rd appellant), mother (the 2nd appellant), Ayo John, and Obura Richard were - 10 present. He stated that the land donation was not put in writing. In crossexamination, DW1 testified that his father was using the two and half acres as garden prior to giving it to him. He also stated that Mr. Kuranimo did not sell the one and half acre to him but donated it. DW1 asserted that his grand-father did not inherit but married the respondent's grand-mother. He denied that the - 15 remains of the late Odongo Jimmy, and the remains of the daughter of Okello Francis (Akullu Patricia) were interred on the suit land. He, however, conceded that, in the Lango culture, the dead are buried at home.

Mrs. Keren Ogola who is the 2nd appellant testified as DW2. She was 65 years old. She stated that the respondent's father (the late Martin Ogola) was a brother-

20 in-law. She was married (to Ogola C. P) in 1968 and the father-in-law gave her two and half acres (part of the suit land) which she has used since 1969. When the 1st appellant (DW1) married a wife, DW2 (being the mother) gave the first appellant a portion of the two and half acres. DW2 mentioned trees for timber, mango trees, palm tree, Ituba tree, Ogali tree, Okutu-anam tree, and a boundary 25 ant-hill, as some of the features that identify the suit land. She named the persons who were present during the alleged giving of the land portion to the 1st

appellant. They were; Atoo, Alice, Ogola C. P (the husband), Ayo John, Awino,

- 5 and Doreen Okello (the 3rd appellant). DW2 testified that she authorized Agnes Awino (DW5) (a step mother of PW1) to use the suit land in 2000. She asserted that the respondent (PW1) claims that the two and half acres belong to him simply because DW2 had given it to PW1's step-mother who later left it after cultivating for two years. DW2 maintained that Ms. Agnes returned the two and - 10 half acres in 2006 in the presence of Atim Johnson- the chairman LCI of Abok "A" area. In cross-examination by the respondent, DW2 stated that she last used the suit land in the year 2000. She constructed a house thereon in 1995 and it is Ms. Agnes who took over that house. DW2 refuted the claim that Ms. Agnes cleared the two and half acres in 1987. DW2 denied that the respondent's grand- - 15 father once settled on the suit land. She asserted that the respondent's grandmother Dolika Akullo was buried on the land of Alice not being the disputed land. DW2 denied that the late Akullu Patricia was buried on the suit land.

The 3rd appellant testified as DW3 on 15 November, 2017. She was recorded as Doris Okello (it appears the name Doris and Doreen were used interchangeably

20 in the trial court). DW3 was 31 years old. She stated that the respondent is a cousin to her husband (Mr. Newton Okello). She asserted that the suit land which is two and half acres belong to the father-in-law (Mr. C. P) who gave her and the husband in 2002 upon marriage. She added that because the couple lived in an internally displaced persons camp (IDP), they only begun using the 25 suit land in 2007. DW3 testified that Mr. C. P was alive at the time of her testimony. During the land donation, the witness, her mother-in-law (DW2), Okech John, and Nickolena, were present. The witness mentioned two houses


- 5 built in 2002, a mango tree and pines planted in 2012, palm and Ogali trees as the features on the suit land. She clarified that the suit land was once the subject of a dispute in 2015 between Mr. C. P and the respondent. She asserted that although that suit was concluded, it did not go well. She asserted that the respondent was to buy alternative land for his paternal uncle and take over the 10 suit land which was being occupied by the witness and her spouse but this did not happen. In cross-examination by the respondent, DW3 stated that during - the years 2002 to 2007, her parents -in-law were using the suit land. She explained that Ms. Agnes had requested to use the suit land from DW3's parentsin-law but Agnes handed back the land in the year 2002 and went back to her - 15 parents' home. And where DW3 and the spouse built their home is the former homestead of the parents-in-law. DW3 never saw a grave of Akullu Patricia on the suit land. At the time the parents-in-law were giving DW3 and husband (DW1) the suit land, there were eye witnesses. The land donation was not, however, documented. - 20 DW4 Atoo Mikario was 87 years old. She was a paternal aunt to the respondent and the 1st appellant. She was a sister in-law of the 2nd appellant (Keren) and Alice Ogola (PW2). She testified that the suit land was given to Mr. C. P by C. P's father. Mr. C. P gave it to the 1st appellant. DW4 was present during the land give away to the 1st appellant. Approximately two acres were given in a year the 25 witness could not recall. Many people witnessed the land donation. The features on the suit land, according to DW4, are; a mango tree, Olam (fig) tree and Palm tree. In cross-examination, DW4 stated that the late Ms. Doneka (Dolika) was

- 5 buried in the garden of Alice. She also stated that Mr. C. P Ogola and Mrs. Keren Ogola once lived on the suit land. And Ms. Keren at one time gave the suit land (the approx. two acres) to Ms. Agnes- a step mother of the respondent to occupy but Agnes later vacated and went to her parents' home. DW4 denied that Anna Odongo once used or lived on the suit land. She stated that Anna lived across - 10 the road in her house roofed with iron sheets. DW4 denied that the suit land was once owned by Alice- the respondent's mother. She insisted that Ms. Keren Ogola was given the suit land in 1980 by a father-in-law called Omara.

Awino Agnes testified on 3rd January, 2018 as DW5. Her age was recorded as 70s although she said she was born in 1949. Doing simple arithmetic, since the

- 15 exact month of her birth is unknown, this court thinks the witness may have been 69 or 70 years old. She is a step-mother of the respondent. DW5 stated that the suit land which is approximately two acres and situated in Abok "A" Village is owned by Mr. C. P Ogola. She asserted that the respondent wanted to covet the suit land. According to DW5, she was given the suit land (the two acres) - 20 in 2000 and in 2006 she handed it back and left. The permission to use the land was given in the presence of Keren Ogola (Defendant No.2), Okello Ceasar and Bua Ogwang. The permission to use the land was given because DW5 had nowhere to cultivate. After the death of DW5's husband (Mr. Martin Ogola), the witness left the area and went back to her parents' home. DW5 named palm tree, 25 ituba tree and 'trees for timber' as some of the features on the suit land. In crossexamination, the witness stated that when she got married, she lived with the

mother-in-law and upon the mother-in-law's death, DW5 asked Mr. C. P for land.

5 She did so because the respondent's mother (a co-wife of DW5) did not want DW5 to use any of the family land. DW5 said she did not know if the 1st appellant bought any other land other than the two acres.

Christine Anyinge who did not know her age testified as DW6. She is married to the paternal uncle of the respondent. According to DW6, the suit land is

- 10 approximately two acres and is located in Abok "A". At first, Agnes (DW5) was the one using it but handed it back to the 1st appellant. DW6 named the features on the suit land as ituba tree, ogali tree, and an anthill. In cross-examination, DW6 stated that she was not aware of any land donation by her husband (Mr. Kuranimo) to the 1st appellant. She knew Akullo Dolika but never found Dolika - 15 on the suit land. In re-examination, the witness stated that the features on the suit land are; palm tree, ituba tree, mango tree, and "timber tree".

On record is an attendance list of persons who attended the locus in quo proceedings. The date of the visit is not recorded. Attached to the list is a sketch map which does not bear the date of the locus proceedings. There is some scanty 20 record. The sketch map of the suit land, as drawn by the trial court, shows that the suit land is segmented into three tracts. Each segment is separated with dotted and straight horizontal lines. The lines appear to demarcate three distinct tracts of land. The first quadrangle (land) has the following features: former homestead of the plaintiff's (respondent's) grand-mother, grave of the grand-25 mother, ituba tree at the border (boundary).


- 5 The second quadrangle has pine trees for the 1st defendant (1st appellant), palm tree (the African fan palm), ogali tree, ituba tree, and mango tree and a house of the 1st defendant. Below the second quadrangle are two straight horizontal lines which pierce a house of the "defendant". Below the second line are two dotted lines. In between the dotted lines is a writing 1 ½ which appears within the third - 10 quadrangle and is the smallest. There are no features on this 1 ½ acres as per the sketch map.

The typed and hand-written record of the trial court are slightly at variance. They do not indicate that the parties clarified whether the whole three tracts of land as drawn and comprised in the three quadrangles are in dispute. Although from

- 15 the evidence adduced in court, it appears the whole are in dispute. At the locus, the parties are not shown to have offered any clarity as to what they testified on in court. I have noted that in some instances, the record appear in a question form without indication as to who was asking them. There are no answers or comments recorded. For example, the record in respect of the respondent (the - 20 plaintiff) appears as follows:

*"Buried on the land when?"*

"*Planted trees when?*"

The rest of the sentences are not helpful. As regards the 1st Defendant (1st appellant), the record shows a summary of purported fresh testimony but it is 25 not shown that the 1st appellant was testifying on oath. He does not offer clarity on the features or matters of substance spoken about in court. The locus record


- 5 is not coherent at all. The hand-written and typed record are not page numbered. Elsewhere, a completely different hand-writing (bigger in font size) appears. There, it is written (from what I could piece together) that the 2nd defendant's (2nd appellant's) father-in-law was not buried on the suit land. However, the mother of the plaintiff (respondent) was buried within the suit land observed at locus - 10 (Akullo). I should say the proceedings at the locus was not satisfactory. In resolving the issue of who rightfully owns the suit land, the trial court noted that it had visited the locus on 09.05.2018 although, as noted, this is not apparent on record. After capturing the key aspects of the testimonies of PW1 and PW2, the trial court remarked: - 15 *"I shall not waste time to reproduce the entire testimonies of the plaintiff's witnesses, however, the testimonies of the plaintiff and his witnesses- PW2, PW3 are consistent as to the fact that the suit land belongs to the plaintiff's father Ogola Martin. As opposed to the testimony of DW1, DW2 and DW3 that are inconsistent."*

The trial court proceeded to summarize the testimonies of the appellants' 20 witnesses. I think, and with respect, the trial court, so to speak, put the cart before the horse. The court made premature conclusions on who owns the suit land before fully evaluating the evidence adduced by both sides to litigation. The trial court's subsequent analysis, in my considered view, simply sought to buttress a pre-conceived position. This was a flaw. In **Okic Vs. Loum, Civil**

25 **Appeal No. 60 of 2023 [2024] UGHC 336**, commenting on a similar approach, I remarked as follows:

- 5 *"The trial court ought to have considered the evidence on record holistically side by side while keeping in mind that it was the duty of the Respondent to prove its case on the balance of probability. The court appears to have assembled the Respondent's evidence on one side, and the Appellant's on the other side, and gleaned selectively on the Respondent's to question why the Appellant did not* - 10 *explain away the Respondent's story. That approach, even if I were to call it a style, resulted in the poor evaluation of the evidence on record. As a result of the approach, the trial court ended up believing the Respondent before assessing its version alongside the Appellant's holistically while bearing in mind the fact that the Respondent bore the burden of proof."* - 15 Elsewhere, while dealing with a situation similar to the instant, the court of Appeal for East Africa in **Trevor Price & Anor Vs. Raymond Kelsall (1957) E. A. 752** guided that where it is apparent that the evidence has not been subjected to adequate scrutiny by the trial court before expressing a view, it is open to an appellate court to find that the view of the judge is ill founded. It is the duty of 20 the appellate court to evaluate the evidence itself.

Given the above guidance, I proceed to evaluate the evidence holistically. I note that the trial court, after making the premature conclusion, proceeded to consider the testimonies of DW1 to DW4. It noted, correctly, in my view that, Mr. Newton (DW1) claims 1 ½ acres of land was given to him by uncle Kuranimo yet 25 other witnesses did not state so. The trial court also noted that, in their written statement of defence, the appellants aver that the 1st appellant (DW1) bought 1


- 5 and ½ acres from Mr. Kuranimo and that the transaction was documented. The trial court reasoned that other defence witnesses were, however, silent on DW1's claim regarding the 1 ½ acres allegedly got from Mr. Kuranimo be it through purchase or by way of gifting. The trial court concluded that the defence witnesses were inconsistent on a material aspect of the dispute. I agree with the - 10 observations and conclusion of the trial court as regards the 1 ½ acres of land as comprised in the third quadrangle. The appellants had clearly departed from their pleading without an amendment. Whereas they pleaded that the 1 ½ acres out of the disputed four acres were purchased from Mr. Kuranimo and there was an agreement, at the hearing, however, the first appellant changed stance - 15 claiming the 1 ½ acres was a donation. Interestingly, no other defence witness spoke about it. DW6 (Christine Anyinge) who appears to have been the spouse of Mr. Kuranimo- going by her testimony, threw a spanner in the works, so to speak, when she said she was not aware of any land donation by her husband to the 1st appellant (referring to the 1 ½ acres). In **Ms. Fang Min Vs. Belex Tours** - 20 **and Travel Ltd, Civil Appeal No. 06 of 2013, consolidated with civil Appeal No. 01 of 2014: Crane Bank Ltd Vs. Belex Tours and Travel Ltd (SCU)** the Supreme Court held that a party is expected and bound to prove the case as alleged and covered in the issues framed and will not be allowed to succeed on a case not set up by him and be allowed at the trial to change his case or set up 25 a case inconsistent with what he alleged in the pleadings except by way of amendment of the pleadings.

- 5 The object of pleadings in litigation need not be gainsaid. According to Sir Ronald Sinclair in the case of **Captain Harry Gandy Vs. Caspair Air Charter Ltd (1956) 23 EACA 139**, the object of pleadings is to ensure that both parties know what are the points in issue between them, so that each may have full information of the case he has to meet and prepare his evidence to support his own case or - 10 meet that of his opponent. See also **Uganda Breweries Ltd Vs. Uganda Railways Corporation, SCCA No. 6 of 2001**.

In light of the foregoing analysis and the authorities, it is, therefore, my finding that the appellants' claim to the 1 ½ acres of land comprised in the third quadrangle is unfounded.

- 15 The above being the position, the question that remains for resolution is whether the respondent as the person suing was able to prove his claim to the 1 ½ acres? The answer to this lies in the evaluation of the evidence. I note that the respondent packaged his evidence around the six acres of land he says is in dispute. The trial court approached the matter from that perspective yet the 20 locus sketch map shows a segmentation of the suit land into three tracts. The testimony of the first appellant, however, suggests two segments, that is, the 1 ½ acres, and 2 ½ acres, respectively as being in dispute. In such a state of things, the trial court ought to have ascertained at the locus the approximate size of the disputed land. The drawn sketch map appears to confirm that the disputed area 25 is indeed compartmentalized. Thus beginning with the 1 ½ acres, I note that - there were no features identified by the trial court as existing on this portion.


- 5 From his evidence and that of the witnesses, the respondent did not speak to this portion at all. He spoke generally but from his description of the features, and as shown by the locus sketch map, the respondent's description did not stretch to the 1 ½ acres which the 1st appellant claims he got from Kuranimo. Although the appellants have failed to prove their claim to the 1 ½ acres, I note - 10 that they had no legal burden to discharge since they did not counterclaim. This means the respondent ought to have proved his claim to it on the balance of probability before the evidential burden could shift to the appellants. See: **Sarkar's Law of Evidence, Vol. 2, 14th Ed. 1993 Reprint, 1997, pp. 1338- 1340**; **Oceng Francis & 3 others Vs. Lucy Larubi, Civil Appeal No. 64 of 2021** - 15 **(HC).** Here, no cogent evidence was adduced by the respondent. So the evidential burden could not shift to the appellants as regards the proof of their claim to the 1 ½ acres. See: **Musisi Vs. Sietco, Supreme Court Civil Appeal No. 24 of 1993.** Accordingly I hold that the 1 ½ acres as represented on the locus sketch map and which the 1st appellant purport to claim through Mr. Kuranimo, does not 20 belong to the respondent. Having made this finding, who then takes the 1 ½ acres since neither party owns it? My inescapable conclusion is that to avoid this piece going to the person who never proved his claim to it, the appellants shall

This brings me to the land comprised in the second compartment. This is the 25 area with pine trees, palm tree (the African fan palm), ogali tree, ituba tree, and mango tree and a house of the 1st defendant. From the evidence, this appears to be the portion which Mr. CP and spouse allowed DW5 (Ms. Agnes Awino) to

continue using it until or unless successfully challenged by any valid claimant.

5 occupy and put to use. DW5 testified that her co-wife-PW2 (Alice Ogola) had denied her the use of any family land so DW5 had to seek the favour of Mr. C. P who allowed her to use his land ( the suit land.) I note that DW5 was strongly supported by DW4 and DW6. These witnesses were emphatic that the disputed land belongs to the 1st appellant. I have also noted that the respondent's 10 testimony were quite restricted to the first quadrangle of the suit land. That is, the area where the grave of his grand-mother and her former homestead stood. I hold that the respondent clearly failed to prove his claim to the area comprised

in the second quadrangle. I accordingly hold that he does not own it.

The last portion of the suit land is that represented in the first quadrangle. This 15 is the area where the grave of Dolika (the grand-mother of the respondent) is. The appellants' own witness DW4 (Atoo Mikario) stated that the late Ms. Doneka (Dolika) was buried in the garden of Alice. I think Alice is the respondent's mother (PW2). On their part, the appellants did not adduce any evidence to prove they own this segment. I accordingly hold that the respondent was able to prove on 20 the balance of probability that the part comprised in the first compartment and identifiable with a former homestead of his (respondent's) grand-mother, the grand-mother's grave, and an ituba tree at the border (boundary), as shown by the locus sketch map, belong to the respondent.

Before I take leave of this appeal, I should express my regret at the failure of the 25 trial court to clearly delineate the 1 ½ acres from the entire purported four acres as claimed by the defence or the six acres as claimed by the respondent to be in


- 5 controversy. The trial court did not seek clarity from the parties at the locus. The court wondered in its judgment why the respondent's grand-mother was buried (within the first quadrangle) if at all the land belonged to Mr. CP. It thus went on to decree the whole land to the respondent which was and error. There was evidence that Mr. Ogola C. P and Mr. Martin Ogola were brothers. There is also 10 evidence from the first appellant (DW1) that his father and the respondent's - father once lived on the 'same" land without any dispute. This must be true because evidence show that the whole land traces its root to the common patriarch- Mr. Angia (grandfather of the respondent and the 1st appellant.) The trial court ought to have established on the ground on which portion the two - 15 brothers peaceably lived. This could have helped the court establish the credibility of the competing claims.

I also note that the simmering dispute started earlier and climaxed in 2007. It appears other avenues for resolving it failed hence the first litigation by the respondent in 2015 against Mr. C. P. Whereas that action yielded some fruits, no 20 harvests came out of it apparently because the parties recanted. No attempts were made by the respondent to enforce the consent judgment/ decree against Mr. C. P. I think the respondent realized that at the time of entering into their consent, the 1st and third appellants were in possession of the suit land. That perhaps explain why he saw no point in enforcing the consent decree. I did not, 25 therefore, place any weight on the consent decree. What, however, puzzles this court is why Mr. C. P accepted to relinquish 'ownership of the suit land' yet he had gifted it to the 1st and 3rd appellants. Could this lend credence to the

5 respondent's claim to the suit land? Mr. C. P did not testify but according to the daughter-in-law (DW3), he was alive. Be that as it may, from his pleading, the respondent's claim seems to rest chiefly on the fact that because his step-mother (Awino Agnes DW5) once used the suit land which she later vacated, the land reverted to his father's estate. However, DW5's explanation rebutted the 10 respondent's averment and claim. It is of course unfortunate that DW5 was not prompted to point at the locus on which area she had settled although court thinks she settled within the second quadrangle. No survey was done of the whole land or simple measurements in the parties' setting.

All in all, the decision of the trial court cannot stand. The appeal is allowed. I set 15 aside the Judgment, the decree and orders of the trial court including the award of general damages. I declare the respondent as an owner only of the area where his grand-mother was buried and her former homestead stood, as detailed in this Judgment. The rest of the disputed areas comprised in the 2nd and third quadrangle/compartments as described in this Judgment and as supported by 20 the locus sketch map do not belong to the respondent. The appellants' occupation and use of the 2nd and 3rd quadrangles/ compartments shall not be disturbed by the respondent or his agents. On costs, given the strong family ties between the parties and the fact that they self-represented in the trial court, no order is made as to costs of the trial court. Regarding costs in this appeal, given 25 the same reason of relationship and given that the parties appeared by counsel,

the appellants shall meet their own costs of the appeal while the respondent


5 shall not meet costs of his counsel given the neglect by counsel to file submission for the respondent in this court. It is so ordered.

Dated, signed and delivered this 04th June, 2025

George Okello JUDGE

10 04/06/2025

## **Attendance**

Mr. Odongo Daniel, counsel for the respondent, present

Respondent absent

Appellants present

15 Mr. Egaru Emmanuel Omiat, counsel for the appellants absent

Mr. Esau Opio, Court clerk.

George Okello JUDGE

20