[2025] UGCA 53

## THE REPUBLIC OF UGANDA

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

[*Coram: Egonda-Ntende, Barishaki Cheborion & Gashirabake, JJA*]

## Civil Appeal No. 54 of 2018

(*Arising from High Court Civil Appeal No.29 of 2012 at Arua*)

## **BETWEEN**

Osman Yusuf (legal representative of late Yusufu Ibrahim ========Appellant

## **AND**

| Dramadri Joel==================================Respondent No.1 | | |----------------------------------------------------------------|------------------------------------------------------| | | Idro Godfrey==================================== | | | Taban Ratib==================================== | | | Chandia Margaret==================================== | | Anna Isa=================================== | | | | Madra Felice=================================== |

(On appeal from the judgment of the High Court of Uganda (Mubiru, $J$ .) sitting at Arua and delivered on 29^th March 2017)

### JUDGEMENT OF FREDRICK EGONDA-NTENDE, JA

### **Introduction**

- $[1]$ This is a second appeal. The appellant brought this action before a magistrate grade 1 in the Chief Magistrate's Court of Moyo sitting at Adjumani for a parcel of land, approximately 6 acres in size, located in Biyayi village, Adjumani Town Council. The appellant succeeded in the court of first instance. The respondents appealed to the High Court of Uganda sitting at Arua. The respondents were successful on the first appeal with the court dismissing the appellant's action on the ground that it was prohibited by the Limitation Act. The first appellate court adjudged the respondents as the rightful owners of the disputed land by adverse possession. - $[2]$ Dissatisfied with the decision of the High Court the appellant appealed to this court setting forth 2 grounds of appeal as below:

(l) The learned trial Judge erred in law and fact when he failed to evaluate the evidence on record thereby coming to a wrong conclusion that the appellant's title to the land had been extinguished by the law of limitation. (2) The learned trial judge misdirected himself on both the law and the fact when he found that the respondents had acquired the suit land through adverse possession.'

- t3l The appellant prayed that the judgment of the court below be set aside, and the reinstatement of the judgment of the court of first instance, costs in this court and the courts below. - l4l The respondents opposed the appeal.

# Representation and Submissions of Counsel

- t5] The appellant were represented by Mr Amaal Ali of Kabayiza, Kavuma, Mugerwa & Ali Advocates while the respondents were represented by Mr Henry Odama holding brief for Mr Caleb Alaka of Alaka & Co Advocates. Both counsel filed written submissions upon which the hearing of this appeal proceeded. - t6] Counsel for the appellant combined the submissions on the 2 grounds of appeal and submitted that the period of limitation in this matter started to run initially in 1986 when the appellant first became aware of the trespass on the disputed land. The appellant reported this matter to the Local Council officials in the area who failed to resolve the matter. The appellant then in 1998 contested and intemrpted the possession of the respondents by pouring bricks on the suit land and the respondents reported the matter to the LCs. He asserted that therefore the period of limitation started to run afresh in 1998 and the suit filed at first instance in 2008 was therefore in time. - l7l Counsel for the appellant prayed that the judgment of the High Court be set aside and the judgment of the court of first instance be upheld with costs here and below. - t8l Counsel for the respondent supported the reasoning and findings of the first appellate court and prayed that this appeal be dismissed.

## Analysis

t9] As this is a second appeal this court can only, pursuant to section 72 of the Civil Procedure Act, consider matters of law and not of fact.

[0] Secondly the question of whether the High Court fulfilled its duty to reevaluate the evidence on record of the trial court is a matter of law and if the first appellate court failed to do so this court will be obliged to reevaluate the evidence on record of the trial court.

a

I

[11] However, if the High Court did not err in its duty to re-evaluate the said evidence, this court, as a second appellate court is under no obligation to re-evaluate the evidence on record of the trial court. See Nazmudin Gulam Hussein Viram v Ni las Roussos l.2006.l UGSC 2l in which Katureebe, JSC, (as he then was), stated in part,

> 'This court has also decided in MILLY MASEMBE - Vs-SUGAR CORPORATION AND ANOTHER CIVL APPEAL NO. I OF 2000, where it decided that the appellate court's exercise of the power to review the evidence depends on whether the trial judge failed to take into account any particular circumstances or probabilities or whether the demeanor of the witness whose evidence was accepted was inconsistent with the evidence generally. Mulenga,JSC stated as follows:-

> > "ln a line of decided cases, this court has settled two guiding principles at its exercise of this power. The first is that failure of the appellate court to re-evaluate the evidence as a whole is a matter of law and may be a ground ofappeal as such. The second is that the Supreme Court, as a second appellate court, is not required to, and will not re-evaluate the evidence as the first appellate court is under duty to do, except where it is clearly necessary."'

u2) I have read and examined the judgment of the High Court in this matter. The learned judge in a detailed manner reviewed the evidence on record of the trial court and came to the finding that the time of limitation in this case started to run in the year 1986 when the appellant first became aware of the alleged encroachment by the respondents on this land. He considered whether the appellant had been under any disability between this period and the time the appellant first instituted the action in 2008. He found that the appellant had not established on the evidence such or any disability. He concluded, and rightly in my view, that this action was barred by section 5 of the Limitation Act.

- [13] The claim in ground 1 of the appeal that the learned judge in the court below failed to re-evaluate the evidence adduced in the court of first instance is without merit. - [4] Neither have I found any substance or merit in the claim in ground 2. The finding that the respondents must be taken to have acquired title by adverse possession was a necessary corollary or inference upon finding that the appellant's action was time barred. - [ 5] In this court the appellant's counsel in their submissions claimed that the appellant had re-entered the disputed land in 1998 by delivering building materials to the same, and therefore the time of limitation should start to run from 1998 rather 1986 when he first became aware of the alleged trespass by the respondents. This amounts to putting forth in this court, a new version of his case, departing from the plaint he filed in the court of first instance, which he is not permitted to do, without leave of court. - [6] I would therefore dismiss this appeal with costs here and in the courts below.

### Decision

U7l As Barishaki Cheborion and Gashirabake, JJA, agree this appeal is dismissed with costs here and below.

Signed, dated and delivered at Gulu this rlhy of ²⁰²⁵

I

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Egonda-Ntende Justice of Appeal

## THE REPUBLIC OF UGANDA

## IN THB COURT OF APPEAL OF UGANDA AT GULU

[Coram: Egonda- Ntende, Barishaki Cheborion, & Gashirabake, JJAJ

## CIVIL APPEAL NO 54 OF 2018

(Arising from High Court Civil Appeal No.29 of 2012 at Arua)

### BETWEEN

OSMAII YUSUF. ... APPELLANT (legal representative of late Yusufu lbrahim)

#### AND

- 1. DRAMADRI JOEL - 2. IDRO GODFREY - 3. TABAN RATIB - 4. CHANDIA MARGARET - 5. ANNA ISA

6. MADRA FELICE. ... RESPONDENTS (On oppeal from the judgment o.f the High Court of Uganda Mubiru, sitting at Arua and delivered on 29th March 2017)

## JUDGMENT OF CHRISTOPHER GASHIRABAKE. JA.

I have had the benefit of reading in draft the judgment prepared by my brother Hon. Justice Fredrick Egonda- Ntende, JA in the above mentioned Appeal.

I concur with the judgment and have nothing useful to add.

Signed, dated and delivered at Gulu this ..,^&day of . Ffrb ...202s.

Gashirabake JUSTICE OF APPEAL


#### THE REPUBLIC OF UGANDA

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

(*Coram: Egonda-Ntende, Barishaki Cheborion & Gashirabake, JJA*)

#### Civil Appeal No. 54 of 2018

(Arising from High Court Civil Appeal No.29 of 2012 at Arua)

#### **BETWEEN**

Osman Yusuf (legal representative of late Yusufu <table>

Ibrahim Appellant

#### AND

| <table> Dramadri Joel</table> | | |-------------------------------------------------------------------------------------------|--| | <table><tbody>Idro Godfrey</tbody></table> | | | <table> Taban Ratib</table> | | | <table> Chandia Margaret</table> | | | <table> Anna Isa</table> | | | Madra Felice | | | ( <i>On appeal from the judgment of the High Court of Uganda (Mubiru, J.,) sitting at</i> | | | <i>Arua and delivered on 29^th March 2017</i> | |

Judgement of Cheborion Barishaki, JA

I have had the benefit of reading in draft the judgment in the above Appeal prepared by my learned brother Dr. Fredrick Egonda-Ntende JA. I agree with him that the Appeal is devoid of merit on both grounds and ought to be dismissed.

I also agree with the order as to costs which he has proposed.

Signed, dated and delivered at Gulu this....................................

Cheborion Barishaki

**Justice of Appeal**

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