[2017] UGHCLD 246

**THE REPUBLIC OF UGANDA**

**IN THE HIGH COURT OF UGANDA SITTING AT ARUA**

**CIVIL APPEAL No. 0013 OF 2014**

**(Arising from Paidha Grade One Magistrate’s Court Civil Suit No. 0031 of 2012)**

**OVOYA POLI ….…….…………………….……………………….…… APPELLANT**

**VERSUS**

**WAKUNGA CHARLES ……….…………….…………….……………… RESPONDENT**

**Before: Hon Justice Stephen Mubiru.**

**JUDGMENT**

In the court below, the appellant sued respondent seeking recovery of land, an order an order of vacant possession, a permanent injunction, an award of general damages for trespass to land, and costs. The appellant’s case was that, he is the rightful owner of approximately one and a half acres of land situated at Okeyo village, Nyacara Ward, Nebbi Town Council in Nebbi District. Sometime during June 2008, following a dispute with his brothers, he and his family relocated from there to Padel Jupukibi in Parombo sub-county. He was surprised when sometime in the year 2009 he returned to his land and discovered someone had deposited thereon construction material in preparation for construction. His inquiries revealed that it was the respondent who had deposited that building material on his land. His attempts to stop the respondent's activities were futile hence the suit.

In his written statement of defence, the respondent admitted being in possession of the disputed land and having constructed thereon but contended that he purchased the land from the rightful owner, the appellant's cousin a one Ochaya Zeberiyo, on 20th June 2009 at the price of shs. 4,000,000/=. He prayed that the suit be dismissed with costs.

At the hearing, the appellant testified as P. W.1 and stated that he obtained the land in dispute during the year 1993 as a gift *inter vivos* from his father, Luciano Poli, who died shortly thereafter. The appellant planted sisal plants and eucalyptus trees on the land. The respondent forced him off the land during the year 2008. P. W.2 No. 23767 D/Sgt Okello Justin testified that sometime in August 2010, following a complaint of criminal trespass lodged by the appellant, he visited the land in dispute. He found thereon three grass-thatched houses, one permanent house under construction and two pit latrines. There was a boundary of sisal plants around the land and a big eucalyptus tree that had been cut down. There was also a heap of sand and the land had been fenced with barbed wire. P. W.3 Akenda Charles testified that he had known the appellant as his neighbour for four years. The appellant had occupied the land in dispute for about 14 years and it is the appellant who had allowed him to settle on a part of that land in the year 2006. Its boundary was marked by sisal plants and there were grass-thatched houses that had since been demolished. That was the close of the appellant's case.

In his defence, the respondent testified as D. W.1 and stated that that he purchased the land in dispute on 20th June 2008 from Ocaya Zeberiyo at a price of four million shillings. The land measures approximately one acre and a half. He compensated the sole occupant, a one Akenda Charles who then vacated the land and the respondent proceeded to construct thereon a residential house. During the year 2010, the appellant claimed that the respondent had trespassed on the land.

D. W.2 Apechu Marcelino testified that the land in dispute originally belonged to a one Zeberiyo Oloya who died around the year 2003. Zeberiyo Oloya was a step-brother of Pauli, the appellant's father. Zeberiyo Ocaya the son of Zeberiyo Oloya, occupied the land for about nine years before he sold it to the respondent. It is Ocaya who sold the land to the respondent. D. W.3 Ocaya Zeberiyo testified that she inherited the land in dispute from her father Zeberiyo Oloya who died in the year 2000. She had occupied the land in dispute for about ten years before she sold it to the respondent. D. W.4 Alisa Poli testified that during the 1970s, his late uncle Zeberiyo Oloya permitted him to grow crops on the land in dispute and around the year 2005 he handed the land back to Ocaya Zeberiyo when she returned from her matrimonial home in Bunyoro. Ocaya then sold it to the respondent. It is this witness that planted sisal plants around it to marks its boundary. D. W.5 Valeriano Okwang testified that he was present as a witness when the respondent was purchasing the land in dispute from D. W.3 Ocaya Zeberiyo. The appellant's family sold off all the land they had in the area and the appellant has no rightful claim to the land in dispute which D. W.3 Ocaya Zeberiyo was occupying and cultivating at all material time before she sold it to the respondent. That was the close of the respondent's case.

The court then visited the *locus in quo* where it established that while during his testimony the appellant had stated that the graves of his relatives were on the suit land, they were in fact on a separate piece of land adjoining the one in dispute. The sisal plants, eucalyptus trees and grass-thatched houses that had been mentioned in the witnesses' testimony in court no longer existed on the land. The court was shown the respondent's permanent house a Yao tree, a Banyan tree and a fence on the land.

In his judgment, the learned trial magistrate found that although the appellant claimed to have obtained the land as a gift *inter vivos* from his late father Luciano Poli, there was no evidence of long occupancy. When it visited the *locus in quo*, the court did not find the sisal and eucalyptus trees on the land which the appellant claimed to have planted thereon. the graves of his relatives which he claimed existed on the suit land were as well found to be located across the road on a different piece of land. His claim to have obtained the land as a gift *inter vivos* fwas not corroborated by any independent evidence. To the contrary, the defence evidence established that D. W.3 Ocaya Zeberiyo was in possession of the land for a decade before she sold it to the respondent and there was an agreement of sale to that effect. The defendant was in possession and had proved a better claim to the land compared to that of the appellant. The suit was therefore dismissed with costs.

Being dissatisfied with the decision the appellant raised five grounds of appeal, namely;-

1. The learned trial magistrate erred in law and fact when he failed to properly evaluate the evidence adduced by the appellant hence wrongly entering judgment for the respondent. 2. The learned trial magistrate erred in law and fact in concluding that the appellant had no evidence of long occupation of the suit land. 3. The learned trial magistrate erred in law and fact in concluding that the appellant never received the suit land as a gift from his late father. 4. The learned trial magistrate erred in law and fact in concluding that the respondent had proved that Zeberiyo had been in occupation of the suit land before it was sold to him. 5. The learned trial magistrate erred in law and fact by deciding for the respondent in view of glaring contradictions in the evidence of the respondent and the witnesses.

In his submissions, counsel for the appellant, Komakech Dennis Atiine argued in respect of Ground 2 that the trial court misdirected itself yet there was evidence from the appellant on record to the effect that the eucalyptus trees were felled and the sisal plants had been destroyed. This fact was pleaded in the plaint as well. The locus visit occurred four years after the destruction as confirmed by P. W.2 in his testimony. The appellant reported a case of criminal trespass. He investigated it and visited the scene near Showers Hospital. He saw three grass-thatched houses, two pit latrines, a big eucalyptus tree which had been cut down. The boundary of sisal plants was still around the land. P. W.3 confirmed he had been a neighbour of the appellant for 14 years. The appellant had allowed him to settle on part of it in 2006. He confirmed the presence of the eucalyptus and of the sisal. He was compensated for the house. The appellant was resident on the land and had houses on the land. The appellant had been imprisoned and on return found the respondent in occupation and his grass thatched houses had been demolished.

The respondent's evidence at page 16 of the record admitted compensating P. W.3 the caretaker who had been occupying the land. When he was cross-examined by the appellant at page 16 he admitted that he did not know where the appellant was when he was buying the land. D. W.2 from whom the respondent bought the land, does not in any way mention anyone that he left on the land as a caretaker. The trial magistrate did not deal with the contradiction of compensating a cater taker who was not linked to his predecessor in title. He prayed that the ground succeeds.

The appellant had previously defended rights over this land and a decision delivered in his favour as he testified at page 35 - 39 of the record. The suit was between him and one of his uncles. In that suit D. W.1 was a witness on the defendant's side. She denied knowledge of the judgment. At locus she denied everything. She was not a reliable witness. At page 22, she said the appellant authorised someone to construct on the land. The gift can be deduced from conduct.

Akenda Charles was the appellant's caretaker and on return the claimed the land. There was no interval that would have allowed the respondent to enter the land. The timeline does not allow for the defence raised by the respondent.

In reply, counsel for the first respondent, Mr. Samuel Ondoma argued that the grounds all touch on the issue of ownership of the suit land. The appellant did not prove is ownership of the suit land. The learned trial magistrate was correct to find in the defendant's favour. At page 13 he claimed that he was given the land in 1993 and shortly thereafter his father died. There is no proof of gift. Conduct cannot be proof. Actual transfer of possession would be required. It should have been evidenced in this case by some form of document evidencing the intention to make a gift which was accepted by the doneee. P. W.2.and P. W.3 did not know anything about the gift. Even in the previous judgment the appellant alleged a distribution in 1980. In the latter case he said it was in 1993. The judgment in the previous suit was only pleaded. The judgment could have related to a different piece of land. He claimed to have planted sisal and eucalyptus trees. D. W.4 at page 18, a biological sister to the appellant claimed that the sisal was planted by her and she was given permission to utilise the land. Yao (Shea tree) tree grew naturally. He claimed there were three graves but they were found to be outside the suit land. The compensation paid by the respondent to P. W.3. Akenda Charles was for developments on the land. D. W.2 - DW5 testified that the appellant owned land in the immediate neighbourhood of the land now in dispute. He sold off the land. He prayed that the appeal be dismissed with costs.

In rejoinder, Counsel for the appellant submitted That if it was DW4 who planted the sisal, this contradicts the evidence of D. W.2 the seller under cross-examination. His answer was that it was planted by her elders. About the caretaking of the land, it is the evidence of the appellant that earlier on in 1985 when he left to join the army he left Akenda as a caretaker. The witnesses were aware of the earlier litigation over the same land but only did not know the outcome. He returned in 2004 and found Akenda had sold the land. He reiterated his earlier prayers.

This being a first appeal, this court is 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. This duty is well explained in *Father Nanensio Begumisa and three Others v. Eric Tiberaga SCCA 17of 2000*; [2004] KALR 236 thus;

It is a well-settled principle that on a first appeal, the parties are entitled to obtain from the appeal court its own decision on issues of fact as well as of law. Although in a case of conflicting evidence the appeal court has to make due 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.

This court therefore is enjoined to weigh the conflicting evidence and draw its own inferences and conclusions in order to come to its own decision on issues of fact as well as of law and remembering to make due allowance for the fact that it has neither seen nor heard the witnesses. The appellate Court is confined to the evidence on record. Accordingly the view of the trial court as to where credibility lies is entitled to great weight. However, the appellate court may interfere with a finding of fact if the trial court is shown to have overlooked any material feature in the evidence of a witness or if the balance of probabilities as to the credibility of the witness is inclined against the opinion of the trial court. In particular this court is not bound necessarily to follow the trial magistrate’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on demeanour of a witness is inconsistent with the evidence in the case generally.

The multiple grounds raised by the appellant are all essentially concerned with the manner in which the trial magistrate evaluated the evidence before him and for that reason will be considered concurrently. In order to decide in favour of the appellant, the trial court had to be satisfied that appellant had furnished evidence whose level of probity was such that a reasonable man, having considered the evidence adduced by the respondent, might hold that the more probable conclusion is that for which the appellant contended, since the standard of proof is on the balance of probabilities / preponderance of evidence (see *Lancaster v. Blackwell Colliery Co. Ltd 1918 WC Rep 345* and *Sebuliba v. Cooperative Bank Ltd [1982] HCB 130*). the burden of proof was on the appellant to prove on the balance of probabilities that he had a better claim to the land than the one made by the respondent.

The appellant's claim was premised on the fact that he had obtained the land in dispute as a gift *inter vivos* from his late father, the late Luciano Poli. A gift is a voluntary transfer of personal or real property without consideration. It involves the owner parting with property without pecuniary consideration. It is essentially a voluntary conveyance of land, or transfer of goods, from one person to another, made gratuitously, and not upon any consideration of blood or money. It has been legally defined as “the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the done” (see *Black's Law Dictionary*, Revised Fourth Edition, (1968) St. Paul, Minn. West Publishing Co., at p. 187).

At common law, the essential requisites of a valid gift are; capacity of donor, intention of donor to make gift, absence of consideration, completed delivery to or for the donee, and acceptance of gift by the donee. The donor of the gift must have had a present intent to make a gift of the property to the done and a transfer of the gift must be delivered to the donee and the donee must accept the gift in order for the property transfer to take place (see *Re Cole [1964] 1 Ch 175*). Oral words coupled with delivery, and gift by deed are the only modes available at common law for an *inter vivos* grant of a gift. The appellant's evidence was to the effect that the gift was never evidenced in writing. The transaction was entirely oral coupled with delivery.

Dealing with this aspect of the appellant's claim, the trial magistrate in his judgement decided that it was not supported by any evidence since the grant was not witnessed by any of his family members or elders on the village. In coming to this conclusion, the trial magistrate misdirected himself. According to section 133 of *The Evidence Act*, subject to the provisions of any other law in force, no particular number of witnesses in any case is required for the proof of any fact. Evidence is not to be counted but only weighed and it is not the quantity of evidence, but the quality that matters. Consequently, the testimony of a witness alone, if believed, is sufficient to establish any fact that requires proof. It is only if some aspect of that testimony is found unreliable or lacking that the court will look for corroboration. The trial court did not set about evaluating the evidence of the appellant but sought to undermine it on grounds of lack of supportive witnesses. In doing that, the court proceeded with a mindset directed at counting the evidence rather than weighing it thereby focusing on the quantity of evidence rather than its quality.

Deciding whether or not the appellant obtained the land as a gift from his father depended on his credibility as a witness. Questions of credibility relate to whether the witnesses should be believed and how much weight should be given to their testimony. Decisions on the credibility of a witness may depend on the demeanour of that witness, the internal consistence of the testimony, its overall consistence with the rest of the evidence of proved facts, motive for the testimony, its accuracy, existence or otherwise of exaggerations, speculations and so on, with the court at all time in that process drawing on its own common sense, good judgment and experience of life in deciding whether the testimony is reasonable or unreasonable, probable or improbable.

An appellate court will be reluctant to reject findings of specific facts, particularly where the findings are based on the credibility, manner or demeanour of a witness. However, an appellate court will far more readily consider itself to be in just as good a position as the court below to draw its own inferences from findings of specific facts where such findings are not based on demeanour of the witness. Assessment of evidence is an evaluation of the logical consistency of the evidence itself. When a finding of fact depends on a matter such as the logical consistency of the evidence rather than the manner of the witness, an appellate court may be more readily willing to reject a finding of a specific fact (see *Benmax v. Austin Motor Co. Ltd [1955] AC 370* and *Faryna v. Chorny [1952] 2 D. L. R. 354*).

In the instant case, the trial court did not come to its conclusion based on the credibility of the appellant as a witness before it but rather on the lack of corroborative evidence. This court therefore is in as good a position as the trial court in the determination of the veracity of the appellant and the logical consistency of his evidence. The veracity of witnesses may be tested by reference to contemporaneous evidence that does not depend much upon human recollection, such as documents or other recordings, or alternatively on objective facts proved independently of their testimony. A gift *inter vivios* of land may be established by evidence of exclusive occupation and user thereof by the donee during the lifetime of the donor. A gift is perfected and becomes operative upon its acceptance by the donee and such exclusive occupation and user may suffice as evidence of the gift.

In his testimony, the appellant explained that following the gift of this land to him in 1993, he planted sisal around it and eucalyptus trees on it and constructed three houses thereon. The eucalyptus trees were subsequently felled. His evidence was corroborated by that of P. W.2 who visited the land in August 2010 after the appellant lodged a complaint to the police of a case of criminal trespass to the land. This witness found the sisal plants boundary still in place and a big eucalyptus tree that had been felled and there were three grass-thatched houses on the land. This witness was never cross-examined at all. It is trite that an omission or neglect to challenge the evidence in chief on a material or essential point by cross examination would lead to an inference that the evidence is accepted, subject to it being assailed as inherently incredible or possibly untrue (see *James Sawoabiri and another v. Uganda, S. C. Criminal Appeal No. 5 of 1990* and *Pioneer Construction Co. Ltd v. British American Tobacco HCCS. No. 209 of 2008*).

This evidence being unassailable as inherently incredible or possibly untrue and both witnesses not having been cross-examined on it, the trial court ought to have inferred that it was accepted by the respondent such that when the court visited the *locus in quo* on 26th February 2014, nearly four years after P. W.2 had been there and witnessed the features that still existed on the land, the court having found that the sisal plants and eucalyptus trees mentioned by the appellant and P. W.2 were no longer on the land, it ought to have accepted the explanation that they were removed by persons other than the appellant and not use that as a basis for discrediting the appellant's testimony. That evidence instead corroborated the appellant's testimony that he had taken exclusive occupation and established user of the land following the gift *inter vivos*.

Although at the *locus in quo* the court found that the graves mentioned by the appellant as existing on the land in dispute were instead located on the land adjoining it, this was a minor discrepancy considering that they were found to exist in close proximity of the land in dispute. Discrepancies which do not shake the basic version of the appellant's case will be considered minor and may be disregarded unless they point to deliberate untruthfulness. Minor discrepancies or improvement will not necessarily demolish the credibility of a witness. On the other hand at the *locus in quo*, D. W.4 Alisa Poli claimed to have planted the sisal plants which were uprooted yet in her testimony in court D. W.2 Ocaya Zeberiyo said they had been planted instead by the elders. This contradiction was never clarified. It is also curious that D. W.4 Alisa Poli who had come onto the land as a mere temporary user would take it upon himself to mark the boundary by planting sisal plants in circumstances where the planting of boundary marking is more readily associated with conduct of an owner rather than a temporary user.

Furthermore D. W.4 Alisa Poli while at the *locus in quo,* although he refuted the fact that the appellant had ever been in physical possession of the land, admitted that at one point in time, the appellant had authorised P. W.3 Akenda Charles to use and construct houses on the land. He however did not explain where the appellant derived the authority to do that if he had no rights in the land. His acquiescence in this is a tacit acknowledgement of the appellant's right to do so as owner. Similarly, D. W.3 Ocaya Zeberiyo, the respondent's predecessor in title, while at the *locus in quo* admitted having found P. W.3 Akenda Charles in possession, with houses on the land at the time she sold it to the respondent.

To cap it all, after purchase of the land from D. W.3 Ocaya Zeberiyo on 24th December 2008, the respondent on 10th May 2010 (see exhibit D.3) proceeded to compensate the person he found in occupation, P. W.3 Akenda Charles who happens to have testified that he had known the appellant as his neighbour for four years. The appellant had occupied the land in dispute for about 14 years and it is the appellant who had allowed him to settle on a part of that land in the year 2006. Its boundary was marked by sisal plants and there were grass-thatched houses that had since been demolished. The implication is that P. W.3 was in occupation of the land by authority of the appellant at the time the respondent purchased it. The respondent did not explain whether or not he inquired into the history of the presence of P. W.3 on this land before he decided to compensate him so that he vacates the land to enable the respondent acquire vacant possession thereof.

By virtue of exhibit D.3, the respondent had constructive notice of the fact that P. W.3. was in physical possession of the land by authority of the appellant. Notice includes actual or constructive notice of such facts as would have been discovered if all usual and proper inquiries were made of the vendor’s title, interests and encumbrances affecting the land. Whereas within the system of land registration, one is not required to search the root of title to ensure that there is a good root, the standard of due diligence imposed on a purchaser of unregistered land is much higher that that expected of a purchaser of registered land. The reason is illustrated by the decision in *Williams and Glyn’s Bank Ltd v Boland,* *[1981] AC 487* where Lord Wilberforce when commenting on the Torrens system of land registration said;-

The system of land registration....is designed to simplify and to cheapen conveyancing. It is intended to replace the often complicated and voluminous title deeds of property by a single land certificate, on the strength of which land can be dealt with. In place of the lengthy and often technical investigation of title to which a purchaser was committed, all he has to do is consult the register……Above all, the system is designed to free the purchaser from the hazards of notice – real or constructive – which, in the case of unregistered land, involve him in inquiries, often quite elaborate, failing which he might be bound by equities.

Therefore, a purchaser of unregistered land who does not undertake the otherwise expected “lengthy and often technical investigation of title” which will often ordinarily involve him in quite elaborate inquiries, is bound by equities relating to that land of which he had actual or constructive notice. According to Cheshire and Burns in their book *Modern Law of Real Property, 16th Edition page 60*; constructive notice is generally taken to include two different things: (a) the notice which is implied when a purchaser omits to investigate the vendor’s title properly or to make reasonable inquires as to the deeds or facts which come to his knowledge; (b) the notice which is imputed to a purchaser by reason of the fact that his solicitor or other legal agent has actual or implied notice of some fact. This is generally called imputed notice.

In *Hunt v. Luck (1901) 1 Ch 45* the court considered the nature of constructive notice. Farwell J said: “Constructive notice is the knowledge which 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 his knowing something which ought to have put him on further enquiry or from wilfully abstaining from inquiry to avoid notice.” In *Uganda Posts and Telecommunications v. A. K. P. M. Lutaaya, S. C. Civil Appeal No. 36 of 1995*, for example, it was held that a person who conducts a perfunctory search of title to land before purchase, takes it subject to existing equitable interests in the land. In that case, the respondent had limited his due diligence before the purchase, to a mere search of the register. He had not carried out a physical inspection of the land and the court found that had he done so, he would have discovered that the respondent had an earth satellite station constructed and operational on the land. He therefore took the land subject to the respondent’s possessory interests.

In the instant case, before purchase of the land the respondent does not seem to have undertaken any inquiries regarding the history of P. W.3s presence on the land. Had he done so, he would have discovered that he was there by authority of the appellant and had he inquired further from that point he would have obtained notice of the appellant's adverse claim to the land. He therefore had constructive notice of the appellant's interests in the land and did not purchase it in good faith from D. W.3 Ocaya Zeberiyo.

On the other hand, I have considered the respondent's version of events and found it implausible. Although the respondent's predecessor in title, D. W.3 Ocaya Zeberiyo, claimed that she had been in possession of the disputed land for over ten years before she sold it to the respondent, while at the *locus in quo* she admitted having found P. W.3 Akenda Charles in possession, with houses on the land at the time she sold it to the respondent. This was corroborated by D. W.4 Alisa Poli while at the *locus in quo*. This admission is inconsistent with her claim that she used to grow crops on this land. Comparing and balancing probabilities as to their respective value of the two versions, I am of the view that a reasonable man might hold that the more probable conclusion is that for which the appellant contends. The appellant discharged the onus cast upon him to prove his claim against the respondent and the trial court came to the wrong conclusion when instead it entered judgment in favour of the respondent.

Having proved that the respondent is a trespasser on his land, the appellant was entitled to an award of general damages. Trespass in all its forms is actionable *per se*, i.e., there was no need for the appellant to prove that he sustained actual damage but without proof of actual loss or damage, courts usually award nominal damages. Damages for torts actionable *per se* are said to be “at large”, that is to say the Court, taking all the relevant circumstances into account, will reach an intuitive assessment of the loss which it considers the plaintiff has sustained. *Halsbury’sLaws of England*, 4th edition, vol. 45, at para 1403, explains five different levels of damages in an action of trespass to land, thus;

1. If the plaintiff proves the trespass he is entitled to recover *nominal damages*, even if he has not suffered any actual loss. 2. If the trespass has caused the plaintiff actual damage, he is entitled to receive such amount as will compensate him for his loss. 3. Where the defendant has made use of the plaintiff’s land, the plaintiff is entitled to receive by way of damages such a sum as would reasonably be paid for that use. 4. Where there is an oppressive, arbitrary or unconstitutional trespass by a government official or where the defendant cynically disregards the rights of the plaintiff in the land with the object of making a gain by his unlawful conduct, exemplary damages may be awarded. 5. If the trespass is accompanied by aggravating circumstances which do not allow an award of exemplary damages, the general damages may be increased.

The defendant’s conduct is thus key to the amount of the damages awarded. If the trespass was accidental or inadvertent, damages are lower. If the trespass was willful, damages are greater. And if the trespass was in-between, i.e. the result of the defendant’s negligence or indifference, then the damages are in-between as well. The instant case is in the category of a cynical disregard of the rights of the appellant in the land. The respondent's conduct inflicted actual loss and damage to the appellant who as a result has been wrongfully deprived of the use of his land for over seven years now. In the circumstances, the amount in general damages the appellant deserves should reflect the repulsion with which the law countenances the respondents’ indifference and more or less cynical disregard of the appellant’s property rights, it should take into account the fall in the value of money since the trespass began, but at the same time take into account the appellant’s duty to mitigate his loss. Bearing all the above factors in mind, I consider an award of shs. 10,000,000/= as general damages for trespass to land to be adequate compensation to the appellant in this case

In the final result, I find merit in the appeal. For that reason the judgment and decree of the court below are herby set aside. In their place, I enter judgment in favour of the appellant in the following terms;

1. An order of vacant possession. 2. A permanent injunction restraining the respondent, his agents, servants, employees or persons claiming under him, from using or interfering with the appellant's user the disputed land. 3. General damages of Shs. 10,000,000/= 4. Interest on the award in (c) at the rate of 6% p.a. from the date of judgment until payment in full. 5. The costs of the appeal and of the suit.

Dated at Arua this 12th day of October 2017. ………………………………

Stephen Mubiru

Judge

12th October, 2017