[2020] UGCA 2169

#### THE It[I)IIBI,IC OF UGANDA

#### IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

#### CIVIL APPEAL NO,227 OF 2016

# 1. OKIRO STEPHEN OCEN

2. OKELTO fOSEPH APPELI,ANTS

#### 10 VERSUS

ofoo PATRTcK RESPONDENT

(Appeal from the judgment of the High Court of Uganda ot Soroti by Hon. Lady Justice H. Woloyo dated 6th April, 2016 in Civil Appeal No. 3 of 2012, orising from the decision ofGrade one Magistrate Court Katakwi in Civil Suit No. 3 of 2010)

CORAM: Hon. Mr. f ustice Alfonse Owlny-Dollo, DCf Hon. Mr. lustice Kenneth Kakuru, fA Hon. Lady fustice Percy Night Tuhaise, fA

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#### 20 IUDGMENT OF COURT

This is a second appeal. It arises from the fudgment and decree of Hon. Lady Justice H. Wolayo, / in High Court Civil Appeal No. J ol 2012 dated 6tt'April, 2016 arising from Grade one Magistrate Court Katakwi in Civil Suit No. 3of 2010.

o²⁵ The respondent filed a suit against the appellants at Grade One Magistrate Court Katakwi, the learned Magistrate held in favour of the respondent, he ordered the appellants to vacate the suit land and also issued a permanent injunction against them. The appellants being dissatisfied with the decision of the trial Court filed an appeal at the High Court of Uganda at Soroti on the following grounds;-

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- ⁵ 1. The learned trial Magistrote erred in law antl fact to hold that the respondent acquired the suit land fi'om Oiko Mikaya by o gift inter-vivos, when the said Oiko Mikaya categoricolly denied giving the disputed land to the respondent, as a gift inter-vivos, Ieave alone inviting the respondent to stay with him on the said disputed land. - 2. The learned trial Magistrate erred in low and fact to rely on a document where Oiko Mikaya was alleged to have given the disputed land to the respondent, wlten Lhe said Oiko Mikuyu dertied the suid docutrrcrrl us Llte suid )iko Mikuyu being an illiterate, unable to read ond write, could not have signed the document in his own name. - 3. The learned trial Magistrate erred in low and fact to rely on evidence of the respondent's witnesses who hod cleor grudges with the appellants without independent corroboration of such evidence. - 4. The learned trial Magistrate erred in law and fact to hold that the suit land belonged to )iko Mikaya and that the said Oiko Mikaya could deal with the disputed land in anyway he wished including givitlg land to the respondent as a gift inter-vivos, which position was categorically denied by Oiko Mikaya, stating that the suit land belonged to Ebalu Yakobo the father of the 1-'t appellant. - 5. The learned trial Magistrate erred in low and fact to hold that the 7't appellant had coerced and persuaded Oiko Mikaya to deny that the suit land belonged to his late father Odiokor Yakobo but belonged to the 7't appellant's late father Ebalu Yakobo, - 6. (a)The learned trial Magistrate clearly displayed bias against the appellan\* by failing to exhaustively scrutinize and evaluate the evidence adduced on the appellants side vis-d-vrs respondent's case including allowing the respondent to draw a judgment notice to be served on the appellants.

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(b) The awarding of lJg.shs. 6,000,000/= as damages to the respondent wos arbitrary as it was not supported by evidence to enoble the court to asse.rs general damages.

- 7. The learned trial Magistrate erred in law and fact to hotd that oiko Mikaya did sell part of the suit land to one Akose Faustino when counsel for the responclent abandoned the evidence of the witness who was sent awoy from court unceremoniously. - 8. The learned trial Magistrate erred in law and fact to hold that the ownership of Llte suit land passed on to odiokor, the late father oi uiko Mikaya, when the said Mikaya, amid strenuous cross examination, categorically testified the suit la nd belonged to the 7st appellant, having inherited the same from his father Ebalu Yakobo. - 9. The learned trial Magistrate erred in low and fact to hold that the 1't appellant's home was 600 metres fronr the suit land. - 10. The decision of the learned trial Mogistrate was not supported by evidence on record. - 11. The decision of the lower court occasioned a total miscarriage ofjustice to the oppellants. - 12. There are fundamental errors patent on the face of the record.

Court filed this second appeal on the following grounds;-

25 The learned appellate ludge dismissed the appeal and confirmed the Judgment and orders of the lower court. she ordered the appellants to vacate the suit land within three months from the date of the Judgments and awarded costs to the respondent. The appellants further being dissatisfied with rhe decision of the first appellate

1. That the learned appellate Judge erred in law when she failed to properly subject the evidence to fresh scrutiny.

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- ⁵ 2. That the learned appellate ludge erred in law when she held that the evidence that Oiko Mikaya sold off part of the land to Akose Faustino was relevant. - 3. The learned oppellate Judge erred in law when she agreed with the trial Magistrote's qward of six million as general clamages in the absence of evidence to prove the damages sulfered by the respondent and support the Mogistrate's 10 award.

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## Representations

At the hearing of this appeal Ms. Elizabeth Nampola learned Counsel appeared for the appellants while Mr. Semuel lsodo learned Counsel appeared for the respondent. The parties agreed to file written submissions. It is on the basis of the written submissions that this appeal has been detennined.

# Submissions of Counsel

Both parties proceeded by way of written submissions. We were therefore as ^a Court unable to interact with Counsel as is always the case during oral arguments. Both Counsel failed to submit their written submissions in time but nonetheless

were able to do so much later. In their written submission both Counsel addressed Court on all grounds extensively. 20

Howevet', upotr pet'usiug thc grounds of appeal, it is appalent that, they raise questions of fact and to a lesser mixed extent facts and law.

This being a second appeal, the law precludes them from doing so. In this regard Section 72 of the Civil Procedure Act (CAP 7-1J provides as follows;-

# "Second appeal,

(7) Exceptwhere otherwise expressly provided in this Act or by any other law for the time being in force, an appeal shall lie to the Court of Appeal from every decree passed in appeal by the High Court, on any ofthe following grounds, namely that-

o 2 5 ⁵ (a) the decision is contrary to law or to some usage having the force of law;

> (b) the decision has failed to determine some material issue of law or usage having the force of low;

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

(2) An appeal may lie under this section from passed ex parte." 0n appellate decree

It is trite law that there is no such a thing as an inherent right of appeal. An appeal is ^acreature of statute. See: Attorney General vs Shah N0.4 [1971] EA 15

In view of the above, we find that grounds 2 and 3 offend the provisions of Section 72 of the Civil Procedure Act as they clearly raise questions of fact and or mixed law and fact on a second appeal although this is not expressly stated. The reading of those two grounds clearly reveals that they are both in respect of questions of fact. We according strike those grounds out on that account. We shall therefore proceed to consider ground one alone.

### Resolution by Court

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This being a second appeal, this Court is concerned with only matters of law. lt has no duty to re-evaluate the evidence at the trial as that is the duty of the first appellate Court unless it determines that, the first appellate Court failed to carry out the duty. The duty of the second appellate Court was expounded upon by the Supreme Court in Henry Kifumunte Henry vs Uganda, Supreme Court Criminal Appeal No. 10 of 1997, Court stated that;-

"On second appeal, the Court of Appeal is precluded from questioning the findings of fact of the trial Court, provided that there was evidence to support those findings, though it may think it possible or even probable that it would not have itself come to the same conclusion; it can only interfere where it considers that there was no evidence to support the finding of fact, this being a question of law" See: R vs Hassan bin Said (1942)9 EACA 62 and Bogere Moses and another vs Uganda, Supreme Court Criminal Appeal No. 1 of 1997.

In Giuliano Graiggo vs Claudio Casadio, Supreme Court Civil Appeal No. 16 of 2004, the Court cited with approval its earlier decision in Goustar Enterprises Ltd vs Oumo [2006] EA 77 where it was held that the second appellate Court can only re-evaluate the evidence on record where it was clear that it had not been subjected to adequate scrutiny by either the trial Court or the first appellate Court. We shall proceed to determine this appeal bearing the above principles in mind.

On ground 1, the learned appellate Judge is faulted for having failed to discharge the duty of the first appellate Court. The crux of this ground mainly relates to whether or not the suit land belongs to the respondent having been given to him as a gift inter-vivos by Oiko Mikaya. It is the appellants' argument that, the learned appellate Judge failed to evaluate the evidence on record in respect of the above issue.

While resolving this issue the first appellate Court clearly re-evaluated the evidence on record as arrived at the same conclusion as the trial Court. We are constrained to reproduce in extenso the analysis of the learned appellate Judge, she stated and found as follows at pages 14-18 of the record;-

The facts of this case are largely not in dispute. It is not in dispute that Oiko by written gift inter vivos gifted his land located in Wera Sub County to the respondent Ojoo Patrick on 26^th October 1993 in the presence of several witnesses including PW2 Edonyu John Peter s LC1 Chairman.

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⁵ It is also not in dispute that Oiko did not have children and that Oioo is the son of Oiko's brother. Oiko inherited the land from his father Odokir, The first appellant referred to him as Ojokol.

> It is also not disputed that qfter Oioo took possession in 1993, he was forced off the land by the ftrst appellant Okior on the pretext that Oioo's uncle had killed the appellant's sister...

> It is Okiro who gave the evidence of the date when Oiko's fother Odokir died. According to Okiro, Odokir died in 1.957 which means Oiko inherited the suit land around that time.

It was further Okiro's evidence that he was given the suit in 1966 by the calm except thot his father Ebalu was buried elsewhere' ln other words, according to Oikro,)iko owned land opposite the suit land but not the suit land.

Oiko DW3, who was 100 years old when he testified, confirmed that his father odikor died in 1956 but denied gifting the land to oioo Patrick. According to Oiko he could not give away Ebalu's son land to Oioo who he denied.

DW4 Ginatious osingei aged 86 confirmed that Ebalu migrated from the area in thc 1950s. 20

> It is not disputed by the defence that it is the second appellant okello Joseph DW2 who has a house on the land which, he constructed in 2007 on his father's authority, according to the evidence-

At the locus, the consensus of those present was that the land belonged to oioo who is paternal nephew to Oiko, the original owner of the land. The sketch map shows Odokir's grave. 25 o

From the foregoing analysis, the appellants' claim to the land is premised on the following ground.

- ³⁰ 1. Their paternal aunt was married to Oiko's father Odokir' - 2. The land Oiko occupied belonged to their father Ebalu and not to Odikor, father of Oiko. - 3. Oiko owned land opposite the suit land' - 4. Oiko denied gifting to Ojoo and denied signing the deed fated 26.1'0. L993'

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The respondent's claim to the land is premised on the following:

- 1.. He wos donated the land by written document dated 26.10.1993 which was identified by the author PWZ Edonyu. - 2. His father Oumo was brother to Oiko - 3. He entered possession butwasforced off the land by the 7n appellant

The trial Magistrate ruled in favour of the respondent arguing that Oiko was coerced to testify against the respondent. Indeed respondent's witnesses testified that Oiko was permanently drunk courtesy of the first appellant who bought him alcohol. 10

The contention by the 1st appellant that Oiko owned land opposite the suit land is diversionary because no such land exists. The suit land was originally owned by Odokir, then Oiko who then gifted it to Ojoo.

"l am inclined to agree with the trial Magistrote thot the balance is in favour of the respondent who produced a gift inter vivos duly witnessed, that Oiko denied authoring the deed is irrelevant because a gift inter vivos cunnot be revctked except if it is made in contemplation of death and the death does not occur within a reasonable time. ln this case, the gift was effected in 1993 and Oiko testified in 2011, nearly eighteen years later.

This legal position was reiterated in linja Civil Appeal No. 3 of 2008 Sophatia Beihi and three others vs Nangobi Jane and two others, an authority supplied by counsel for the appellants.

In the premises, I find that the trial Magistrate properly evaluated the evidence to which he hod listened and arrived at a correct conclusion...

I have discussed this point in my judgment and found that Ojoo acquired the suit land by gift inter vivos from Oiko irrespective that Oiko denied this transaction...

The trial Magistrate had an opportunity to listen to the witnesses including Oiko. He concluded that there was coercion and duress exerted on Oiko hence his changed position when he testifted contrary to respondent's witnesses thot in fact he had gifted the land to )joo. This grountl fails...

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I have studied the proceeding and judgment and find no basis to interfere with the assessment. Suffice it to state that the conduct that is sometimes referred to *as land grabbing..."*

From the above, we find that the trial Court and the first appellate Court both found as a fact that the suit land belonged to the respondent by virtue of the evidence adduced at the trial. We cannot as a second appellate Court, depart from the 10 concurrent findings of fact by both lower Courts unless special circumstances justify it. See: *Giuliano Graggo (Supra)*. Having perused the Court record, we find no special circumstances in this particular appeal justifying a departure from the concurrent findings of both Courts. We are satisfied that the appellate Court re-evaluated the evidence before arriving at the decision that it made. We have found no illegality to 15 compel us into interference with the findings. We therefore uphold them.

This appeal is dismissed with costs to the respondent here and the Courts below.

It is so ordered.

Dated at Kampala this ... day of $\ldots$ 2020.

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**Alfonse Owiny-Dollo** DEPUTY CHIEF JUSTICE

Kenneth Käkuru **JUSTICE OF APPEAL**

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# Percy Night Tuhaise $\qquad \qquad \textbf{JUSTICE OF APPEAL}$

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