[2020] UGHC 417

**THE REPUBLIC OF UGANDA**

**IN THE HIGH COURT OF UGANDA HOLDEN AT MBALE**

**CIVIL APPEAL NO. 074 OF 2012**

**(ARISING FROM CIVIL SUIT NO. 216 OF 2011)**

1. **OKURI DEMENSIANO :::::::::::::::::::::::: APPELLANTS** 2. **EMODOI ZERVERIO**

**VERSUS**

**OKWETI CHRISTOPHER :::::::::::::::::::::::; RESPONDENT**

**BEFORE: HON. JUSTICE SUSAN OKALANY**

**JUDGMENT**

**INTRODUCTION:**

1. This is an appeal arising from the Judgment and Orders of His Worship Felix Omalla, Principal Magistrate Grade One, Bubulo Magistrate’s Court, delivered on 28th May 2012.

**BACKGROUND**.

1. The plaintiffs/appellants filed Civil Suit No. 216 of 2011 in the Magistrate’s Court of Bubulo, seeking to have a share of the suit land, general damages and costs of the suit. The appellants through their pleadings stated that in 1960, their grandfather Noah Odeke died, leaving behind two pieces of land situated at Khatsonga and Goria respectively, which were under the care of the 1st Plaintiff’s father Alonsio Tanga who later died in 1987. 2. The two pieces of land were upon Alonso Tanga’s death, left under the care of Aya Desederio. Aya Desederio wanted to distribute the said land amongst the plaintiffs and the defendant but in 2010, the defendant/respondent took possession of the two pieces of land and denied the plaintiffs a share. 3. The defendant/Respondent through his Written Statement of Defence disputed the assertions and stated that he knew about only one piece of land, forming part of the suit land located at Khatsonga, which was originally for his father Omechi Ben and the same was given to him. He shared it with his brothers, namely; Odeke, Okuri and Masse. The defendant averred that he had no idea about the 2nd piece of land which formed part of the suit land. 4. The trial Magistrate evaluated evidence and decided in favor of the defendant. Being aggrieved with the decision of the learned trial Magistrate, the appellants filed this appeal. The grounds of the appeal are that: 5. The trial Magistrate erred in law and fact when he did not properly evaluate the evidence on record or at all; 6. The trial Magistrate erred in law and fact in holding that the plaintiffs “lacked forum” cause of action; 7. The trial Magistrate misdirected himself in holding that the plaintiffs’ action was beaten by limitation; 8. The trial Magistrate erred in law and in fact by failing to determine the real matter in dispute thus denying the appellant substantive justice; 9. The trial Magistrate erred in law and fact by joining seven other defendants not sued by the Plaintiff; and 10. The decision of the trial magistrate has occasioned a miscarriage of justice.

**REPRESENTATION**.

1. Mr. Allan Mooli represented the appellants, while Mr. Jude Wamimbi appeared for the respondents. Counsel proceeded by way of written submissions.

**SUBMISSIONS OF COUNSEL FOR THE APPELLANTS**

1. Counsel argued grounds 1 and 6 jointly and grounds 2, 3, 4, and 5 separately.

**Grounds 1 & 6**:

*The trial Magistrate erred in both law and fact when he did not properly evaluate the evidence on record or at all*.

*The decision of the trial magistrate has occasioned a miscarriage of justice*.

1. Counsel Mooli submitted that the cardinal issue before this court was the question of ownership. The land belonged to the plaintiffs’ paternal grandfather (Odeke Noah). Odeke Noah died before distributing the suit land to his three sons, namely: Alonsio Tanga, the plaintiff’s father - Desederio Aya and Omechi Ekisa (father of the defendant). According to Mr. Mooli, they all derive title in a portion of the suit land, under their respective fathers. 2. Counsel referred to the testimony of PW1, who stated that his paternal grandfather Odeke Noah bought the suit land from Anderea Wakhalambwa for a consideration of 8 head of cattle and 1 goat in 1959 and an agreement was made to that effect. In addition, that the testimony of Aya Desiderio, who was PW3 and the second son of Odeke Noah corroborated PW1’s evidence. Counsel stated that Anderea Wakhalambwa who was PW5 confirmed that he sold the land to Odeke Noah and testified that Odeke Noah handed to him, seven head of cattle and under took to pay one later on. That when PW5 returned from Busoga, Odeke Noah had passed on and his son Desederio Aya handed over one cow and goat in settlement of his father’s debt. Counsel contended that it was on this basis that the defendant testified that his father Omechi Ekisa had bought the suit land from PW5, which claim PW5 denied, stating that he never sold land to Omechi Ekisa the defendants’ father. 3. Counsel asserted that the evidence highlighted above highly demonstrated the fact that the land in issue did not belong to the respondents or Omechi Ekisa, but to the estate of Odeke Noah, who had died before distributing the same. That Tanga and Omechi were simply caretakers for all the beneficiaries thereto. 4. Mr. Mooli complained that the trial Magistrate did not conduct a locus visit. According to him, the trial Magistrate ignored information that would have been generated at locus and used in making the decision. He submitted that the same notwithstanding, the evidence on record overwhelmingly proved the fact that the land belonged to the estate of the late Odeke Noah. That by finding otherwise, the trial Magistrate failed to evaluate the evidence on record. He prayed for this court to allow grounds 1 and 6.

**Ground 2:**

*The trial Magistrate erred both in law and fact in holding that the plaintiffs “lacked forum” cause of action*

1. Counsel averred that the evidence of the plaintiffs even without demonstration, clearly disclosed a cause of action. That there is overwhelming evidence that the defendants’ father never purchased the suit land. In addition, the evidence on record also shows that the land was never distributed amongst Odeke Noah’s sons. 2. Counsel further averred that the plaintiffs’ being the sons of Alonsio Tanga who was one of the sons of the late Odeke Noah, gave them a right to a share of the estate, just like any other children of the late Odeke’s sons. That it was not just by accident that Aya Desderio the surviving son of the late Odeke had testified for the plaintiffs, but it was because there was a cause of action.

**Ground 3:**

*The trial Magistrate misdirected himself in holding that the plaintiffs’ action was beaten by limitation*

1. Counsel submitted that the evidence on record showed that the defendants stopped the plaintiffs/appellants from using the land in 2010. ***Sections 5 and 7*** of the ***Limitation Act*** provided for a 12 year period within which a party whose interest on land is being challenged should seek redress from court. He cited the case of ***Eridad Otabong vs Attorney General SCCA No.6 of 1990 (1991) ULS LR150*** in support of his submissions. 2. According to counsel, the cause of action arose in 2010 when the defendants chased the plaintiffs away from cultivating on the suit land. Therefore, the appellants were not affected by the ***Limitation Act.*** He prayed for this ground also succeeds.

**Ground 4:**

*The trial Magistrate erred in law and in fact by failing to determine the real matter in dispute, thus denying the appellant substantive justice.*

1. Counsel argued that the issue that was to be addressed by the trial magistrate was whether the suit land was still under the estate of the late Odeke Noah. According to him, the trial Magistrate did not judiciously delve into this important issue and no wonder he denied the appellants substantive justice as required under ***Article 126(2)(e) of the constitution.***

**Ground 5:**

*The trial Magistrate erred both in law and fact by joining seven other defendants not sued by the Plaintiff.*

1. Counsel submitted that ***Order 1 Rule 3*** and ***R 7 of the CPR*** leaves the plaintiff with the right to sue whomever he wants to**.** That any person for good cause may apply to be joined as a defendant in a suit. However, when such a need arises, the party who wants to be joined must do so in accordance with the law. In absence of such formal application, the joinder is bad in law and the joining of the other seven defendants was ineffectual. Counsel prayed that this court to allows the appeal and sets aside the judgment and orders of the lower court, as well as the costs, both in this court and in the court below.

**SUBMISSIONS OF COUNSEL FOR THE RESPONDENTS**

1. Mr. Wamimbi submitted that the trial Magistrate rightly evaluated the evidence on record. He referred this court to the testimony of DW1 Okweti Christopher who stated that his father bought the suit land in 1959. That Aya Desederio being the caretaker, allowed them to use the suit land after the death of his father. 2. Counsel argued that the appellants referred to the respondents’ agreement as a forgery without any evidence in rebuttal. In addition that the appellants also furnished no evidence to support the assertion that, their grandfather bought the suit land. 3. Furthermore, he submitted that while PW3 testified that his father had paid 8 cows and 1 goat in exchange of the suit land, he did not mention that the respondents’ father paid the one cow and goat necessary to complete the land purchase. That PW5 confirmed that fact and stated that he tore the original agreement and gave PW3 a new one. 4. Counsel averred that the plaintiffs lied that they had lived on the suit land since 1959. That if that was the case, where were they, when PW3 and the defendant sold the land? That therefore, there was no way the trial magistrate could be faulted. 5. Mr. Wamimbi further argued this was not a deserving case for a locus visit. According to him, the testimonies of the witnesses were enough. He cited the decision in ***Mugerwa Muliisa & another vs Twaha Kiganda HCCA 9 of 2012*** in support of his submissions. 6. In response to the 2nd ground of appeal**,** Counsel asserted that the appellants did not have a cause of action**.** According to him, the appellants were not direct benerifaries of the estate of the late Noah Odeke, because he died before their birth. That they had no interest in the estate of their grandfather but should ask the heir to distribute what belonged to their father to them. 7. Counsel further asserted that there was no evidence of distribution of the late Noah Odeke’s estate. Therefore, the appellants had no locus to sue, because the estate had an heir (Aya Desederio). If anything, PW3 is the right person to sue the respondents but not the appellants.

**Ground 3**:

*The trial Magistrate misdirected himself in holding that the plaintiffs’ action was beaten by limitation.*

1. Counsel submitted that if the appellants were on the suit as they had claimed, they would have known when Aya Desederio and the respondent’s mother sold off part of the suit land. He concluded that the trial magistrate was right in holding that the Limitation Act bared the appellants.

**Ground 4:**

*The trial Magistrate erred in law and in fact by failing to determine the real matter in dispute thus denying the appellant substantive justice.*

1. In response to ground 4, counsel submitted that there was no evidence to support the appellants’ case, from the proceedings to the judgment. That the trial Magistrate addressed the issues that pertained to the estate of the late Noah Odeke.

**Ground 5:**

*The trial Magistrate erred in law and fact by joining seven other defendants not sued by the Plaintiff.*

1. Concerning ground 5, Mr. Wamimbi refuted the claims that the trial Magistrate joined 7 defendants in the suit. He averred that a typographic error occurred during the course of typing proceedings. Counsel prayed for this court to find no merit in the appeal and dismiss it with costs.

**DECISION OF COURT**

1. I have considered the submissions of counsel, the record of proceedings and the law applicable. The duty of the first appellant Court is to reevaluate the evidence adduced before the trial Court and arrive at its own conclusion as to whether the findings of the trial Court can be supported. See ***Pandya vs. R 1957. E. A 336.*** Mindful of this duty, I will go ahead and determine this Appeal as argued by the parties. This Court will resolve ground 1 and 4 jointly since they are relate to the evaluation of the evidence and grounds 2, 3, 5 and 6 separately.

**Grounds 1& 4**:

***The trial Magistrate erred both in law and fact when he did not properly evaluate the evidence on record or at all.***

***The trial Magistrate erred in law and in fact by failing to determine the real matter in dispute thus denying the appellant substantive justice.***

1. The consideration of these grounds merits the examination of the evidence adduced by the parties and their witnesses. Briefly, according PW1- Demensiano Okuri’s testimony at page 1 of the record of proceedings, their grandfather (Odeke Noah) bought land from Anderea in 1959 in exchange for 8 head of cattle and one goat. He took occupation with his 3 children Alonsio Tanga, Desederio Aya and Omechi. Their grandfather passed on in 1960. Alonsio Tanga became the caretaker of the land. In 1987, Tanga also died. Desederio Aya was appointed the heir, and that they started using the land in the 1980’s until 2010, when the defendants chased them away. 2. PW2 who Emodoi Zaverio testified that their grandfather bought the piece of land in 1959. When he died in 1960, the land remained family land until 2010 when the defendants failed the distribution process. 3. PW3 was Desederio Aya. He testified that he was born in 1920. His father (Odeke Noah) bought land from Anderea. That his father had 3 sons namely himself - PW2, Tanga who was his elder brother, and Omechi who was his youngest brother. During cross-examination, he stated that the land was never distributed to them. He also stated that only one piece of the land was distributed but not the other. PW3 admitted being the caretaker of the late Odeke’s land. Further, he stated that he had distributed pieces of his land to his children. That what he sold was the share of his grandchild, which act caused no harm. He was convinced by DW1 to sell the land to him, because his son needed help. He testified that the land he distributed was not part of the land in dispute. 4. PW4- Moses Kenge’s testimony was that he was a neighbour of the suit land. That Odeke bought land from Anderea and he witnessed the sale. He testified during cross-examination that he signed the sale agreement of 1959 but not the one brought by the defendant to court. That the three children of Odeke were using the land. 5. PW5 (Anderea Wakhalambwa) aged 88 years testified at page 4 of the record that he sold a piece of land to Odeke in 1959 for 8 cows and 1 goat. He received 7 head of cattle and went to Busoga. In 1960 when he returned, he received 1 cow from Aya in settlement of the debt owed to him by Odeke who had passed on. He testified that he destroyed the agreement after receiving his debt and went away. That Kenge, Khaukha and Aya were his witnesses. During cross-examination, PW5 stated that he sold the land to the defendant’s grandfather and not the defendant’s father. He made for them an agreement that he destroyed after the debt of 1 cow was cleared. That PW5 advised the defendant to go and share the land with his cousins in good faith. 6. PW6- Khaukha Eriya aged 82 years testified that in 1959 his brother Anderea Wakhalambwa went to Busoga and left his land measuring 500 x 100 strides with him. Since PW5 had another piece of land, he decided to sell that which he left with PW6. PW6 notified Odeke Noah who was the immediate neighbour about the sale and they negotiated with Wakhalambwa who agreed to sell it at 8 cows and 1 goat. They received 7 cows, leaving balance of one cow and one goat. 7. PW6 further testified that in 1960, Odeke died. When his brother came to demand for the balance of the cow, Aya the second born of Odeke paid him off. He stated that he was given one goat and the landowner took a cow, which Aya had paid. He further stated that two agreements were written, the sale agreement and an agreement for the balance. In 2010, they were told that the beneficiaries had been denied use of the land. He intervened as an immediate neighbour but failed. PW6 also testified that he signed the sale agreement. The author was Webola Constant. 8. DW1 who was Okweti Christopher aged 60 years. He testified that his father Omechi bought a piece of land in 1959. That they utilized the land until 2011, when Okuri stopped them. He also testified that Aya Desederio told them to stay on the land without any disturbance. Aya and DW1 went to the land and distributed it and that the caretaker and chairperson endorsed the distribution. 9. He further testified that shortly before the distribution, they were interrupted. He was also surprised to learn that his grandparents land was already distributed. He stated that his father died in 1971 and that has utilized the land together with his brothers since 1959. During cross-examination, he stated that his father had paid 6 head of cattle for the land. That the plaintiffs’ father came to the suit land as a tenant. 10. DW2- Sibo Ben testified that in 1980, Lawrence Okuri the subcounty Chief, told him that Alonsio Tanga had sued the children of Omechi. He stated during cross-examination that in 1980, the appellants’ father failed to prove that his father bought the suit land. That the appellants have never entered the suit land. That it was Omechi who started using the suit land. 11. My conclusion, from my examination of the evidence on record, is that from the onset, the appellants stated in all their pleadings and testimonies that the land belonged to their late grandfather – Odeke Noah. The evidence of PW3 who is an uncle to both the appellants and the defendant and who is the only surviving son of the late Odeke Noah corroborated their claims. He testified that Odeke Noah died and that at the time of his death, he had not distributed the disputed land. PW5’s testimony regarding his sale of the suit land to Odeke Noah is not controverted. He received the balance of one cow and goat from PW3, upon the death of Odeke Noah. PW4 who was a neigbour of the disputed land witnessed and signed the sale agreement made by Odeke Noah and PW5. PW6 approached Odeke Noah and informed him that PW5 had put up the disputed land for sale and further witnessed the sale of the suit land to Odeke Noah by PW5. Basically the testimonies of the appellants witnesses were consistent and corroborative. PW5 stated that he sold the land to Odeke and after receiving his balance of one cow and a goat, he destroyed the agreement. This explains why the appellants had no sale agreement to tender. 12. On the other hand, DW1 testified that his father bought the disputed land on 15/9/1959 for 6 head of cattle. He also stated and that there were minutes left behind by his parents The respondent adduced no single witness who witnessed how his father purchased the said land. None of the respondent’s witnesses came up to support his assertion. DW2‘s testimony was hearsay, since he was told what he stated in court by Lawrence Okuri the subcounty chief, which evidence is inadmissible. 13. I agree with Counsel Mooli that the trial magistrate failed to evaluate the evidence on record. No wonder he reached a wrong decision. The suit land therefore still forms part of the estate of the late Odeke Noah. In the result grounds, 1 and 2 of the appeal succeed.

**Ground 2**

***The trial Magistrate erred in law and fact in holding that the Plaintiffs “lacked forum” cause of action.***

1. It is a settled principle of law that a beneficiary of an estate can sue to protect his or her interests as a beneficiary, without letters of administration. In ***Israel Kabwa vs Martin Banoba Musiga SCCA No: 52 of 1995*** Justice Tsekoko held that an heir’s interests to the estate does not depend on a grant of letters of administration but on his being an heir. 2. The plaintiffs were children of the late Alonsio Tanga who was one of the three sons of the late Odeke Noah. This clearly qualifies them as beneficiaries to what would have been their father’s share of the estate of Odeke Noah. Concerning whether they have a cause of action, the law is well known. A cause of action is established where it is shown that the plaintiff had a right, the right has been violated and the defendant is liable. See ***Tororo Cement Co. Limited vs Frokina International Limited Supreme Court Civil Appeal No: 2 of 2001*.** In establishing whether or not a suit discloses a cause of action, one looks, ordinarily, only at the plaint and assumes that the facts alleged in it are true. This is the law as stated by ***Spry Ag P in Attorney General V Oluoch [1972] EA 392, at 394.*** In ***Sullivan V Mohamed Osman [1959] EA 239 (CA) (T),*** Windham J A, at p. 244, stated that:

“*The plaint must allege all facts necessary to establish the cause. The fundamental rule of pleading would be nullified if it were to be held that a necessary fact not pleaded must be implied because otherwise another necessary fact was not pleaded and could not be true*.”

1. The appellants pleaded under paragraph 5 of the plaint that their grandfather left behind land and that in 2010, the defendant denied them a share. It is my considered opinion that the plaint in issue discloses a cause of action against the defendant. Ground 2 of the appeal also succeeds.

**Ground three.**

***The trial Magistrate misdirected himself in holding that the Plaintiffs’ action was beaten by limitation.***

1. The Plaintiffs stated under paragraph 4 of the Plaint that their claim is for a share of two pieces of land. They pleaded under paragraph 5(b) that in 2010 the defendant took possession of the two pieces of land and totally denied the plaintiffs a share, ownership or enjoyment. The Court record shows that the plaint was filed on 30th September 2011. ***Section 5 of the Limitation Act, Cap. 80*** provides:

“*No action shall be brought by any person to recover any land after the expiration of 12 years from the date on which the right of action accrued to him or her*”.

Furthermore, ***Section 20*** of the same Act provides:

“*subject to section 19(1) no action in respect of any claim to the personal estate of a deceased person or to any share or interest in such estate, whether under a will or on intestacy, shall be brought after expiration of twelve years from the date when the right to receive the share or interest accrued*…………………”

1. According to paragraph, 5 of the plaint, the defendant took occupation and denied the plaintiffs a share of the suit land in 2010. Clearly, that was when the cause of action arose. I thus find that the appellants’ claim was not affected by limitation period. This ground succeeds too.

**Ground 5**

***The trial magistrate erred in law and fact by joining seven other defendants not sued by the Plaintiff****.*

1. The general rule in civil proceedings is that a plaintiff is “dominus *litus*” he is free to sue whomever he thinks he has a cause of action against. The Court record shows that the plaint filed and received by the Court registry on the 30th September 2011, had only one defendant who was Okweti Christopher. Summons to file a written statement of defence were issued on 3rd October 2011 and the defendant filed a written statement of defence on the 24th day of October 2011. On the 26th day of April 2012, an amended plaint was filed which introduced eight (8) other defendants, making them nine (9) in number. Fresh summons were issued on 26th April 2012 to nine defendants. The record of proceedings was silent on whether the addition of parties and amendment of the plaint was done with the leave of Court as required by ***Order 6 Rule 20*** of the ***Civil Procedure Rules SI 71-1.*** 2. The added defendants did not file written statements of defence. The record of proceedings mentions their names, although no evidence was recorded from them. Clearly, the amended Plaint was irregularly and incorrectly admitted by the court. Ground 5 of the appeal also succeeds.

**Ground 6**

*The decision of the trial magistrate has occasioned a miscarriage of justice.*

1. A decision appears to have caused a miscarriage of justice where there is a prima facie case that an error has been made. See ***Matayo Okumu Vs Fransisko Amudhe & 2 Other (1979) HCB 229.*** All the grounds of appeal having succeeded, this court is left with the inevitable conclusion that the decision of the trial magistrate that arose out of the failure to evaluate the evidence on the record, occasioned a miscarriage of justice. 2. Because of the foregoing reasons, the appeal succeeds. The Judgment and Orders of the trial Magistrate are hereby set aside. This Court issues the following orders: 3. The suit land at Khatsonga still forms part of the estate of the late Odeke Noah and all the respective children of Alonsio Tanga, Desederio Aya and Omechi Ekisa are equally entitled to a share of this land as beneficiaries; and 4. Costs of the Appeal

Susan Okalany

**JUDGE**

8/9/2020