[2025] UGHC 78

# **THE REPUBLIC OF UGANDA**

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

### **CIVIL APPEAL No. 041/2023**

## **(Formerly HIGH COURT GULU – CIVIL APPEAL No. 057& 086/2023)**

# **(ARISING FROM CIVIL SUIT No. 05/2015: THE CHIEF MAGISTRATE'S COURT OF KITGUM HOLDEN AT PATONGO).**

### **OWOR MATHIA APPELLANT**

**Versus**

- **1. NAREO GEORGE** - **2. OPALLE** - **3. OKELLO KATEDA** - **4. OBOL S/O OCEE RESPONDENTS**

## **BEFORE: HON. MR. JUSTICE PHILIP W. MWAKA.**

# **JUDGEMENT.**

### **Introduction and Background.**

[1]. This Appeal was instituted *vide* Memorandum of Appeal filed in this Court on the 18th day of September, 2023. A Notice of Appeal had been filed earlier on the 16th June, 2023 and designated Civil Appeal No. 057/2023. This illustrates how designation of Appeal numbers to Notices of Appeal artificially bloats the perception of case load and backlog. The Appeal is in respect of the Judgment of His Worship Alioni Emmanuel Drajole, Magistrate Grade One, Patongo, the Chief Magistrate's Court of Kitgum holden at Patongo delivered on the 8th June, 2023. The Judgment of the Lower (Trial) Court was delivered in favour of the Defendants now the Respondents and against the Plaintiff now the Appellant.

- [2]. The Trial Court determined that the Defendants are the lawful owners of the suit land described as customary land situate at Kanyipa West Village, Orina Parish, Adilang Sub County in Agago District said to measure approximately eight (8) acres. No coordinates or survey report was provided. The Plaintiff was declared a trespasser on the suit land and an order of vacant possession was issued as against him as well as a permanent injunction issued restraining him or anyone making a claim through him from trespassing or interfering with the Defendants' use and enjoyment of the suit land. In addition, general damages were awarded to the Defendants in the sum of Ushs. 7,000,000/- (Uganda Shillings Seven Million) with interest on it at 6% per annum from the date of Judgment until payment in full to be shared equally by the Defendants and costs with interest at 6% per annum on the taxed costs from the date of taxation until payment in full. - [3]. The Plaintiff, now the Appellant, Appealed the decision of the Lower (Trial) Court and raised six (6) grounds of Appeal set out hereunder – - i. **The Learned Trial Magistrate erred in Law and in fact when he declared the Respondents the Lawful owners of the suit land measuring approximately eight (8) acres hence occasioning a miscarriage of Justice.** - ii. **The Learned Trial Magistrate erred in Law and in fact when he passed Judgment that the eight (8) acres of land belong to the Respondents/Defendants when they did not file a Counter-Claim.** - iii. **The Learned Trial Magistrate erred in Law and in fact when he failed to properly evaluate the evidence on Record and held that the Plaintiff is a trespasser on the suit land whereas not hence occasioning a miscarriage of Justice.**

- iv. **The Learned Trial Magistrate erred in Law and in fact when he imported evidence which did not form part of the Record to arrive at a Judgment hence occasioning a miscarriage of Justice.** - v. **The Learned Trial Magistrate erred in Law and in fact when he ignored the Appellant's evidence at the Locus thereby arriving at a wrong conclusion.** - vi. **The Learned Trial Magistrate erred in Law and in fact when he awarded general damages of Ushs. 7,000,000/- to the Respondents/Defendants without basis or proof thereby arriving at a wrong conclusion.** - [4]. The certified Judgment and proceedings of the Lower (Trial) Court were duly provided together with the original file of the Trial Court Record.

# **Pleadings and Proceedings in the Lower (Trial) Court.**

- [5]. The cause of action in the suit in the Trial Court as evidenced by the pleadings the Plaint filed on the Record of the Trial Court of the 25th March, 2015 is founded in claims of ownership of and trespass to land described as being under customary tenure at Kanyipa West Village, Orina Parish, Adilang Sub County in Agago District estimated to measure approximately eight (8) Acres. - [6]. The Appellant as the Plaintiff in the Lower (Trial) Court filed suit on the 25th March, 2015 and averred in his statement of claim that the suit land originally belonged to his late grandfather, Panaleo Angoli, who opened it for settlement in the 1930's when it was vacant and used it together with his family and he himself inherited the suit land from his late father, Oringa Michael, upon his death in 1986. He mentions the neighbours.

- [7]. It was his case at the Trial that in May, 2014 the Respondents as the Defendants entered onto the land and begun cultivating it and constructing grass thatched huts on about eight (8) acres which he reported to the Local Authorities who tried to stop the Defendants in vain. They have been adamantly staying on the land since 2014 despite being cautioned and stopped various times. He contended that they are neither Lawful nor customary owners of the land. - [8]. The Respondents, as the Defendants in the Lower (Trial) Court, filed their Joint Written Statement of Defence on the 9th April, 2015 denying the allegations and contended that the suit did not raise a cause of action, was bad in Law, frivolous and ought to be struck out or dismissed. They averred that they are indigenous residents of Olenyo East Village, Orina Parish, Adilang Sub County in Pader District - which the Court observes is a different village from the area in contention in the suit claimed by the Plaintiff and described in the Plaint - and that they have lived uninterrupted on the **"suit land"** since birth together with their siblings and parents and have been cultivating and using the land. - [9]. It was their contention that neither the Plaintiff's father nor grandfather possessed the land nor had the Plaintiff ever been in occupation of it. Instead, they contended that they have been in occupation and use of the land, as sons of Adonga Philips, who was still living and had been occupying and using it having in turn inherited it from his father Oceng Picce. Their neighbours were mentioned. It is their case that their use and occupation of the land has never been interrupted and the Plaintiff's claim is false. They deny trespassing on the Plaintiff's alleged land and claim that the Plaintiff's land is about a kilometre away with one Ojera's land in between. They pray the Appeal is dismissed with costs. - [10]. The Court observes in the description of the neighbours in the respective pleadings there are none in common - further calling into question whether they contest over the same land. Only one Ojera is said to separate them on the West.

### **The Appellant's Case and Submissions.**

- [11]. In his Submissions filed on the 2nd April, 2024; the Appellant addressed the grounds of Appeal framed and contended as follows: - - [12]. On the first and second grounds of Appeal addressed together, the Appellant reiterated his claim to the land through his father and grandfather. He submitted that the Respondents trespassed on the land starting in 2015 by building, yet their home is seven (7) kilometres away from the suit land. This he avers was corroborated by the testimony of PW2, Okello Raphael, and PW3, Owor Jovino both being his neighbours. Referencing the *Locus in Quo* visit and features on the land, he submits that the Trial Court did not indicate in the *Locus* Sketch Map his land nor did it mention developments of the Respondents or that there were no graves as had been claimed by the Respondents. He further submitted that the Learned Trial Magistrate erred in Law and in fact in declaring the Respondents owners of the suit land when there were no graves, old homestead or sisal boundaries as had been claimed which he contends were not shown at the *Locus*. - [13]. On the third ground of Appeal, the Appellant contests the finding that he is a trespasser on the suit land and reiterates that he inherited the suit land from his father. He further reiterates that the *Locus in Quo* sketch map did not indicate features including a footpath separating their land. It is his case that the Respondents evidence at the Trial had numerous contradictions and inconsistencies - including DW1, Nareo George, who had initially claimed that he got the land from his father on which they had lived as the family of Adonga Philips, their father, and on which their relatives were buried; but later claimed that owing to family misunderstandings some members had left the home but returned in 2012 whereupon their father took them to settle on the suit land.

- [14]. The Appellant cites the testimony of Adonga Philips that the suit should have been filed against him since he had full authority and had distributed the land being customary land of the Ponyi Clan - to the other Defendants (Respondents). - [15]. It is their case that Adonga Philips *"contradicted himself"* in testifying that the land was vacant and opened by his father, long before he was born, on which he had lived until his demise; which the Appellant refutes citing the testimony of DW1, Nareo Geroge, that his grandfather was buried in Otumpili where he had died. - [16]. The Appellant avers that the Respondents came onto the suit land in 2015 and the 1st Respondent, DW1, had in fact admitted that the suit land was distributed in 2012. He contends that the Respondents trespassed on his land and he was not the trespasser as was declared by the Trial Court. - [17]. On the fourth ground of Appeal, the Appellant submits that he, PW1, and his witnesses PW2 and PW3 gave a true account of his acquisition and ownership of the suit land through inheritance from his father and grandfather. He faults the Learned Trial Magistrate for relying on the **"testimony"** of a non-existent **"PW3 – Akello Rose"** – supposedly in regard to description, features and ownership of the land – and contends that there was no such witness that testified at the Trial and such testimony is not part of the Record of the Trial Court. This, he contends, was **"imported evidence"** which was not part of the Record of the Trial Court and on which the Learned Trial Magistrate relied in arriving at his Judgement thus occasioning a miscarriage of Justice. - [18]. This being a fundamental contention, this Court has duly scrutinized the certified Record of Proceedings of the Trial Court and the Judgement of the Learned Trial Magistrate and observes from the Record that **PW3** was a **Owor Jovino** and the Plaintiff's last witness – with **PW1 being the Plaintiff (Appellant)** himself and **PW2** being a **Okello Raphael**. There was no witness for the Plaintiff described as **PW3, Akello Rose**, and no such testimony – as referenced in the Judgement.

- [19]. It is not clear how this supposed testimony of a PW3, Akello Rose, which was clearly and admittedly **"extraneous material"** came to be factored in the Judgement of the Learned Trial Magistrate. - [20]. On the fifth ground of Appeal, the Appellant submits citing authorities on *Locus in Quo* that he and his witnesses were consistent and corroborated each other on acquisition, ownership and possession of the suit land as well as features including trees, stones and rocks (hill) on the Eastern side of it – with the Learned Trial Magistrate only recording the rock. He contends that the Respondent's evidence claiming graves, granary stones and other stones on the land was challenged and was not observed at the *Locus in Quo* – and further, that they are not shown on the *Locus in Quo* sketch map. In sum on this ground, he contends that no *Locus in Quo* proceedings (or procedures) were done and as such the *Locus in Quo* visit was not conducted in accordance with the Law. He prays the irregularity is resolved in his favour. - [21]. On the sixth ground of Appeal, the Appellant submits citing authorities on damages that the award of damages was unwarranted as the Respondents did not suffer any loss to entitle them to damages. In so doing, he reiterates his claim that he owns the land and the Respondents are in fact the trespassers. - [22]. In conclusion, the Appellant submits that the Respondents claims to the suit land lacked evidential weight and prays that this Court allows the Appeal, issues the Orders sought in the Memorandum of Appeal and awards him costs.

### **The Respondents' Case and Submissions.**

[23]. The Respondents opposed the Appeal and filed their Submissions on the 23rd April, 2023.

- [24]. The Court observes that the Respondents in their own facts, stipulated in their Submissions, reiterate that – **"the suit land is at Olenyo East Village, Orina Parish"**. They also similarly stipulated on Record at the Scheduling Conference. - [25]. This, yet again, calls into question whether the respective parties are contesting over the same land - as the **"suit land"** being the subject matter in dispute - and would *prima facie* indicate that the parties are at cross purposes. Moreover, it would indicate that the Respondents' (Defendants') averments and contentions were all along not in respect of the subject matter pleaded in the Plaint as Kanyipa West Village. If this is established, then inevitably it would indicate that the Appellant's (Plaintiff's) claim to the suit land as Kanyipa West Village, Orina Parish, Adilang Sub County in Agago District was uncontested by the Respondents as the Defendants. This will be examined further in the considerations and determinations of the Court in this Judgement. Moreso, in the context of the testimony and evidence at the Trial as well as upon considering the proceedings at the *Locus in Quo*. - [26]. The Respondents in their Submissions raised a preliminary point of Law to the effect that the Memorandum of Appeal was filed out of time being outside of the thirty (30) days stipulated by **Section 79(1)(a) of the Civil Procedure Act, Cap. 282**. It is their case that the Appellant has not advanced good cause for the Memorandum of Appeal to be admitted out of time much as the Court has discretionary powers to extend time for good cause. It is also their case that a Memorandum of Appeal filed late without seeking leave of the Court is incompetent and will be struck out. A Notice of Appeal – which is not a document capable of commencing an Appeal before the High Court - was filed on the 16th June, 2023 and a Memorandum of Appeal was filed on the 15th September, 2023 **(Correct date: 18th September, 2023)** – observing that the Judgment was on 8th July, 2023 (**Correct date: 8th June, 2023**). - [27]. It is their case that the Memorandum of Appeal which is the document required in commencing an Appeal under **Order 43 Rule 1 of the Civil Procedure Rules, SI 71-1** was lodged more than three (3) months late and it is their prayer that the Appeal is struck out with costs. - [28]. The Respondents cited *inter alia* **See: Supreme Court Civil Appeal No. 3/1992: J. Hannington Wasswa & Another Vs. Maria Onyango Ochola & 3 Others and High Court Civil Appeal No. 23/2020: China Civil Engineering Construction Corporation Ltd Vs. Bubera General Construction Ltd.** - [29]. On the first and second grounds of Appeal, the Respondents submit that the testimony and evidence of their witnesses DW1 - Nareo George, DW2 – Obol Ocee, DW3 – Laboke Quentino and of their father who claimed he had full authority over the land DW4 – Adonga Philips was not discredited and they and their families are in occupation of and living on the suit land on which their relatives are buried. DW4's father lived on the land until his demise. - [30]. The Respondents claim that they are using the land while Appellant has never used the land and the Appellant began encroaching on the land in 2015. - [31]. It was their case that the features on the land including their homes where they are settled, an old homestead, grinding stones and granary stones, trees, a sisal border and a stream were observed by the Court during the *Locus in Quo* visit thus corroborating their testimony. - [32]. On the other hand, they submit that the Appellant's witnesses contradicted each other in as far as the size of the land, the features and the neighbours and PW1 did not present any evidence at the Trial of his use of the suit land cited as Kanyipa Village and at the *Locus in Quo* visit - the Trial Court observed features **"completely different from what (PW1) stated"**.

- [33]. It was also observed that the Appellant's land was on the Eastern side separated by a path and he curiously failed to mention that the 3rd Respondent had sold land he claimed which cast doubt on his claim of ownership; in regards to PW2, in describing the suit land cited as at Kanyipa Village he cited neighbours different from those cited by PW1. Also, PW2 in his testimony in chief testified that the Respondents were cultivating the entire suit land while in cross examination he contradicted himself in claiming that they are not cultivating the land. In addition, PW2's description of features on the land including grinding stones they contend matches the description of DW2 indicating a description of the same land; PW3 who claimed to be a neighbour stated that the Appellant's father was not buried on the suit land and did not know about granary stones on the land. They contend that the Appellant's land is on the Eastern side of a path and thus his witnesses **"are not individuals who border the suit land, but rather the land belonging to the Appellant"** which explains why they were unable to identify the old homestead, sisal boundary and other features. - [34]. In regard to the Trial Court finding in their favour in regards to ownership of the **"suit land"** in the absence of a Counter-Claim, the Respondents submit that DW1 supposedly Counter-Claimed **"while giving evidence"**. - [35]. On the third ground of Appeal, the Respondents submit regarding trespass that the Appellant failed to prove that they were cultivating, settled on or using the land in any way and then that the Learned Trial Magistrate correctly took into account the testimony of DW3 of the land belonging to them who allowed him temporary use of some land. The Court observes that this submission is apparently inconsistent with the Respondent's submissions on grounds one and two above averring settlement and habitation – including burial grounds and an old homestead with trees planted. In addition, it is observed that it was the finding of the Trial Court that the Respondents were using their own land.

- [36]. On the fourth ground of Appeal, the Respondents concede that the Appellant had presented three (3) witnesses PW1 – Owor Mathia, PW2 – Okello Raphael and PW3 – Owor Jovino and that the Trial Court made reference in its Judgment to extraneous material which did not feature at the Trial of the supposed testimony and evidence of a - **PW3 - Akello Rose**. It is their case, however, that no miscarriage of Justice was occasioned. - [37]. On the fifth ground of Appeal, the Respondents citing **Order 18 Rule 14 of the Civil Procedure Rules, SI 71-1** submit that at the *Locus in Quo* visit conducted by the Lower (Trial) Court on the 4th February, 2022; the Trial Court observed the boundaries, their grandfather's old homestead, sisal borders and their land with the Appellant's land on the Eastern side separated by a path. It is their case that the Learned Trial Magistrate corroborated the features at the *Locus in Quo* with their testimony. - [38]. On the sixth ground of Appeal, the Respondents contend regarding damages that they are entitled to the damages they were awarded by the Trial Court. - [39]. In conclusion, they pray that the Appeal is dismissed and that the Judgment of the Trial Court is upheld with costs awarded in their favour.

## **Rejoinder.**

[40]. In rejoinder, the Appellant responds to the preliminary point of Law and submits that the Memorandum of Appeal was not filed out of time since **Section 79(2) of the Civil Procedure Act, Cap 282** gives allowance in the computation of thirty (30) days for time taken in preparing the Lower (Trial) Court Record – which was not availed to them until the 31st August, 2023 and they filed the Memorandum of Appeal on the 18th September, 2023 timely – within thirty (30) days of receiving the Lower (Trial) Record.

[41]. In further rejoinder, the Appellant denied contradictions and reiterated his earlier submissions including - that the Court erroneously declared the Respondents land owners in the absence of a Counter-Claim; they were not on the suit land prior to 2015; they are from Otumpili where their grandfather was buried, the absence of Respondents' family graves at the *Locus in Quo* and contradictions in their testimony. In sum, he reiterated his prayer that the Appeal is allowed.

## **Representation.**

- [42]. Counsel, Ms. Elizabeth Kamakune, and Counsel, Mr. Douglas Odyek, represented the Appellant who was absent. - [43]. Counsel, Mr. Louis Odongo, represented the Respondents who were present.

## **Considerations and Determination of the Court.**

[44]. At the outset, the Court is obliged to determine the preliminary point of Law on the timeliness of the filing of the Memorandum of Appeal. The contention was that the Memorandum of Appeal was filed more than thirty (30) days after the decision of the Trial Court in contravention of **Section 79(1)(a) of the Civil Procedure Act, Cap. 282**. It is observed that the Judgement was signed on the 8 th June, 2023. It was certified together with the Record of Proceedings of the Lower (Trial) Court on the 31st August, 2023. The Memorandum of Appeal was filed on the 18th September, 2023. In considering the stipulated Statutory period within which to institute an Appeal, **Section 79(2) of the Civil Procedure Act** requires that a Court takes into account and excludes the time taken in the preparation of the certified Judgment and Record of Proceedings. Clearly, the Memorandum of Appeal was filed shortly after the Judgement and Proceedings were certified. In the circumstances, this Court finds that the Memorandum of Appeal is properly on its Record given the time taken in preparation of the certified Trial Court Record. The objection is therefore overruled.

## **Duty of the Court as a First Appellate Court.**

[45]. **Section 80 of the Civil Procedure Act, Cap. 282** provides for the powers of this Court in considering and determining Appeals and the scope of its mandate in so doing. As a first Appellate Court, the Court is conscious of its duties to review, reconsider and re-evaluate afresh the evidence of the case as well as the materials adduced before the Learned Trial Magistrate thus effectively rehearing the case and making up its own mind without disregarding the Judgment Appealed from but carefully weighing and considering it. In considering which witness should be believed over the other, where the question turns on manner and demeanour the Appellate Court should be generally guided by the impressions made on the Trial Court which saw the Witnesses. Notwithstanding, other factors and evidence affecting the credibility of witness testimony may be re-appraised and considered by the Appellate Court warranting a divergent view even on a question of fact where it has not seen the witness. The Appellate Court will only interfere with errors of the Trial Court where the error has occasioned a miscarriage of Justice – including where the Trial Court did not take into account particular material circumstances or where the conclusions are inconsistent with the evidence of the Trial Court's Record observing that the burden of proof to be discharged to the required standard rests with the Plaintiff. **See: Kifamunte Henry Vs. Uganda: SCCA No. 10/1997 citing with approval Pandya Vs. R (1957) EA 336, Okeno Vs. Republic (1972) EA 32, Charles B. Bitwire Vs. Uganda: SCCA No. 23/1985 and SCCA No. 4/2016 Fredrick Zaabwe Vs. Orient Bank Ltd, Fr. Begumisa Narsensio & 3 Others Vs. Eric Tibebaga: SCCA No. 17/2002 - [2004] KALR 236, Lovinsa Nankya Vs. Nsibambi: [1980] HCB 81, Manigaruha Gashumba Vs. Sam Nkundiye: CA (Court of Appeal) No. 23/2005 & High Court Civil Appeal (Gulu) No. 053/2015: Acaa Bilentina Vs. Okello Michael.**

**Ground 4: The Learned Trial Magistrate erred in Law and in fact when he imported evidence which did not form part of the Record to arrive at a Judgment hence occasioning a miscarriage of Justice.**

- [46]. A fundamental matter raised in submissions on ground 4 of the Memorandum of Appeal was in regard to extraneous and, or extrinsic material in the form of the purported testimony and evidence of a phantom witness cited by the Trial Court as **"PW3 – Akello Rose"**. This Court has already observed, as rightly pointed out by the Appellant and conceded by the Respondent, that no such witness testified and the material is not from the Trial Court's certified Record of Proceedings. Moreover, the Trial Court explicitly indicates on its own Record that it relied on the foreign material in reaching its Judgement. In addressing the matter of whether the inclusion of the foreign material occasioned a miscarriage of Justice which the Appellant asserted in ground 4 of the Memorandum of Appeal, the Respondents while conceding that there was no such Plaintiff witness who was **"imported"** into the Trial Court's Judgement contended that no injustice was occasioned by that foreign material - since the Judgement was given in their favour. In their view, a miscarriage of Justice would have been occasioned had the Trial Court found in the Appellant's favour. - [47]. Undoubtedly, this Court finds this is a callous, self-serving and dubious argument. It is the finding of this Court that the inclusion of the extraneous, extrinsic and foreign material in the nature of the phantom testimony of a nonexistent witness *"PW3 – Akello Rose"* on the Trial Court's Record in and of itself occasioned a miscarriage of Justice. The miscarriage of Justice subsists and would have the same effect – one way or the other – irrespective of whom the foreign material is attributed to especially where the extraneous material is relied on in reaching Judgement.

- [48]. Notably, the foreign material of the non-existent witness was attributed to the Appellant as the Plaintiff at the Trial and this Court observes that it was entirely inconsistent and out of context with his other evidence properly presented to the Trial Court and in taking it into account would have had the effect of undermining the consistency and thus credibility of his case in the Trial Court. - [49]. It is the finding of this Court that the Trial Court clearly cited and factored in the supposed testimony of PW3, Akello Rose, - which did not feature at the Trial whatsoever - in its evaluation of evidence at the Trial in reaching its Judgement. Inevitably, ground 4 of the Appeal therefore succeeds. - [50]. This Court, conscious of its duty and role in its Appellate capacity, has previously determined that under the provisions of *inter alia* **Order 43 Rules 20, 26 and 27 of the Civil Procedure Rules, SI 71-1** it is obliged to resolve all matters having sufficient evidence on Record with completeness and finality in the spirit of bringing litigation to a conclusion and in the interests of ensuring Judicial economy – thereby avoiding needlessly ordering a re-Trial. **See: CACA No. 212/2020: Ellis R. Kasolo Vs. Security Group (U) Ltd, Peters Vs. Sunday Post Ltd [1958] EA 424, Selle & Anor Vs. Associated Motor Boat Co. & Others [1968] EA 123 and King Vs. Thomas [1914] 2 KB 99, High Court Civil Appeal (Kitgum) No. 064/2022: Latom Philips Vs. Anyang Paul.** - [51]. Therefore, the Court will next address grounds of Appeal No.'s 1, 2, 3 together since they relate to the evaluation of evidence by the Learned Trial Magistrate – and subsequently ground 5 on the *Locus in Quo*.

**Ground 1: The Learned Trial Magistrate erred in Law and in fact when he declared the Respondents the Lawful owners of the suit land measuring approximately eight (8) acres hence occasioning a miscarriage of Justice.**

**Ground 2: The Learned Trial Magistrate erred in Law and in fact when he passed Judgment that the eight (8) acres of land belong to the Respondents/Defendants when they did not file a Counter-Claim.**

**Ground 3: The Learned Trial Magistrate erred in Law and in fact when he failed to properly evaluate the evidence on Record and held that the Plaintiff is a trespasser on the suit land whereas not hence occasioning a miscarriage of Justice.**

[52]. In his Judgement, the Learned Trial Magistrate concluded that the Defendants as the Respondents were **"… the Lawful owners of the suit land of approximately eight (8) acres situated at Kanyipa East Village, Orina Parish, Adilang Sub County in Agago District"**. In the consideration of this Court and based on the Trial Court's Record and submissions duly considered, two factors immediately arise. Firstly, besides giving a general and evasive denial the Respondents in their Joint Written Statement of Defence, at the Scheduling Conferencing, in their testimony and throughout the Trial did not claim ownership of the **"suit land in dispute"** as pleaded in the Plaint being situate at Kanyipa West Village, Orina Parish, Adilang Sub County in Agago District. Instead, their response in their Joint Written Statement of Defence, at the Scheduling Conference, in their testimony and throughout the Trial was that the **"suit land"** was not as described by the Plaintiff (Appellant) but instead insisted that the **"suit land"** was situate at Olenyo East Village, Orina Parish, Adilang Sub County in Agago District. In other testimony they variously described the Parish as Nanangwe Parish and the Sub County as Laperebong Sub County. Secondly, there was no Counter-Claim filed by the Respondents incorporated with the Joint Written Statement of Defence asserting a claim over the suit land at Kanyipa West Village, Orina Parish, Adilang Sub County in Agago District. - [53]. In further considering and re-evaluating the testimony and evidence on the Record of the Trial Court, this Court observes that on the one hand the Appellant as the Plaintiff and his witnesses pleaded in their Plaint and asserted at the Scheduling Conference as well as in their testimony that the **"suit land"** on which basis their suit was filed for declarations of ownership and in trespass is situate at Kanyipa West Village, Orina Parish, Adilang Sub County in Agago District; the Respondents as the Defendants on the other hand asserted in their Defence and at the Scheduling Conference as well as in their testimony that the **"suit land"** is as Olenyo East Village, Orina Parish, Adilang Sub County in Agago District. These averments were maintained during and throughout the course of the Trial by the respective parties and neither of the parties amended or altered their pleadings during the Trial (or sought to do so) – most especially the Respondent as the Defendant whose pleadings were not responsive to the claim to conform with the subject matter pleaded in the Plaint. - [54]. The Appellant who testified as PW1 Owor Mathia and his witnesses PW2 Okello Raphael and PW3 – Owor Jovino all consistently testified that the **"suit land"** is situate at Kanyipa West Village, Orina Parish, Adilang Sub County in Agago District. - [55]. However, the Court observes that in a significant departure from his pleadings the Plaintiff testified that the suit land measures approximately twenty-eight (28) acres whereas in the Plaint he had stated that the suit land measures approximately eight (8) acres. The Appellant will be held to his pleadings and therefore the suit land under consideration is approximated as eight (8) acres – much as he also testified that he has other uncontested land. Significantly, the Appellant avers that the Respondents built on his land in or about 2015 and identifies PW2 and PW3 as amongst his neighbours.

- [56]. The Respondents and their witnesses DW1 Nareo George, DW2 Obol S/O Ocee, DW3 – Laboke Quentino and DW4 – Adonga Philips all in turn consistently testified that the **"suit land"** is situate at Olenyo East Village. It is their testimony that approximately eight (8) acres are in contest, amongst other uncontested land they own, which their family has lived on having been allocated portions by their father PW4 and their relatives are buried on it. - [57]. However, in respect of the neighbours described, the Court has already observed that the description of both parties vary significantly in the pleadings. Interestingly, the Respondents do not acknowledge PW2 and PW3 who testified at the Trial for the Plaintiff as neighbours to the **"suit land".** Nor did they for that matter make much effort in cross examination to discredit their claim to be neighbours. DW3 - Laboke Quentino, on whose testimony the Learned Trial Magistrate placed significant reliance having testified that as his nephew DW4 – Adonga Philips allowed him temporary use of some land, apparently did not even know how the Respondents had acquired the land. - [58]. It is the primary duty of a party either claiming or counter-claiming in discharging their burden of proof before a Court against an allegedly infringing party under **Sections 101 – 104, 106 and 110 of the Evidence Act, Cap. 8** to adduce sufficient, cogent and credible material to be relied on by the Trial Court in finding and determining a suit in their favour. The Court finds that the Appellant was consistent and corroborated in his claim and pleadings, averments at the Scheduling Conference which were maintained throughout his and his witnesses' testimony at the Trial. The Respondents, on the other hand, were only consistent in as far as they each were referencing entirely different subject matter. This phenomenon of litigants at cross purposes apparently is not unprecedented.

## **See: High Court Civil Appeal No. 272/2024 (Kitgum): Moro Lamson & 3 Others Vs. Nyeko Sisto & 3 Others.**

## **Ground 5: The Learned Trial Magistrate erred in Law and in fact when he ignored the Appellant's evidence at the Locus thereby arriving at a wrong conclusion.**

[59]. In such circumstances as these, the *Locus in Quo* visit would be particularly instructive. The Learned Trial Magistrate simply indicated in his notes in the Record of Proceedings regarding the *Locus in Quo* visit that the Court traversed the boundaries including the old homestead of the Respondents' (Defendants') grandparents, a sisal border cultivated by the Respondents and the Respondents' undisputed land and found that the Appellant's land was on the Eastern side of the **"suit land"** separated by a path. In his Judgement, the Learned Trial Magistrate indicated that the Court had observed the path separating the Appellant's land and the suit land – with the Respondents' grandfathers' old homestead while the Appellants land and home was on the Eastern side of the suit land. Also observed were the Respondent's undisputed land, a sisal boundary, old grinding stones and granary support stones. Significantly, no graves as claimed by the Respondents are indicated. This Court finds the Trial Court's observations curious since what the Trial Court ought to have simply focused on at the *Locus in Quo* was in fact the **"suit land in dispute"** as pleaded in the Plaint. The Sketch map shows two (2) homes of the Respondents and an area described as **"Defendants Claim"**. The sketch map while indicating that it is in respect of **"Kanyipa West Village"** in fact does not reference the Appellant (Plaintiff) whatsoever. The Court belabours the fact that the Respondents did not in any way lay claim to land in Kanyipa West Village (or present a Counter-Claim) and only insisted that the land they owned was at Olenyo East Village. It is therefore a contradiction in terms that the Trial Court attributed the land at Kanyipa West Village to the Respondents whom the Learned Trial Magistrate declared owners. Clearly, this was not consistent with the respective Pleadings.

- [60]. On review, the Trial Court's Record does not indicate the parties' or witnesses' identification of features. This Court finds that the *Locus in Quo* visit was not conducted in accordance with established procedure under **Order 18 Rule 14 of the Civil Procedure Rules** and fell short of complying with the Guidelines provided in the Practice Directions established for conduct of *Locus in Quo* visits. **See: Fernandes Vs. Noroniha [1969] EA 506, De Souza Vs. Uganda [1967] EA 784, Yeseri Waibi Vs. Edisa Byandala [1982] HCB 28, Nsibambi Vs. Nankya [1980] HCB 81, HCCA (Masaka) No. 59/2019: Ddamulira Aloysius Vs. Nakijoba Josephine, Bongole Geoffrey Vs. Agnes Nakiwala: CACA No. 076/2015.** - [61]. In concluding on grounds 1, 2, 3 and 5 of the Memorandum of Appeal; **Order 8 Rule 3 of the Civil Procedure Rules** provides that facts which are not specifically denied, or otherwise challenged and, or disputed are generally taken to be admitted and do not require further proof. **See: Civil Appeal No. 044/2004: Pamela Sabina Mbabazi Vs. Henry Mugisha Bazira**. This is considered alongside **Order 6 Rules 8 and 10 of the Civil Procedure Rules** prohibiting general and evasive denials respectively. This Court finds that the Appellant's claims of ownership of the land at Kanyipa West Village, Orina Parish, Adilang Sub County in Agago District in the Plaint was not substantively contested or controverted. Significantly, the testimony and evidence of the respective parties adduced at the Trial did not support the finding of the Trial Court that the Respondents are the owners of the suit land as pleaded in the Plaint at Kanyipa West Village. In sum, therefore, this Court finds in the affirmative on grounds 1, 2, 3 and 5 that the Learned Trial Magistrate erred in Law and in fact and arrived at a wrong decision in declaring the Respondents owners of the suit land at Kanyipa West Village and erroneously declared the Appellant a trespasser. In so doing a miscarriage of Justice was occasioned.

- [62]. This Court, therefore, sets aside the declarations and orders of the Learned Trial Magistrate that the suit land at Kanyipa West Village, Orina Parish, Adilang Sub County in Agago District is owned by the Respondents and also sets aside the finding of the Learned Trial Magistrate that the Appellant is a trespasser on the suit land. The Respondents' land in Olenyo East Village is unaffected. - [63]. Naturally, **ground 6** of the Appeal also succeeds. The award of general damages in the sum of Ushs. 7,000,000/- (Uganda Shillings Seven Million) is set aside. - [64]. Having considered the Memorandum of Appeal, the Judgment and Proceedings of the Lower (Trial) Court, the Pleadings of the respective parties in the Trial Court and the Submissions of the respective parties on the Record of this Court; the Court finds that the Appeal has merit and accordingly succeeds.

## **Orders of the Court.**

- [65]. This Court accordingly hereby substitutes the Orders of the Trial Court with the following Orders: - i. The Appellant (Plaintiff) owns the suit land of approximately eight (8) acres situate at Kanyipa West Village, Orina Parish, Adilang Sub County in Agago District. - ii. The finding of trespass against the Appellant is hereby set aside. - iii. The Order of vacant possession against the Appellant is hereby set aside. - iv. The Award of general damages with interest at 6% against the Appellant is hereby set aside. - v. The Appellant is entitled to vacant possession of the suit land. - vi. Each party shall bear their own costs in this Court and in the Lower (Trial) Court.

It is so Ordered.

**Signed and Dated on the 3 rd day of March, 2025. (High Court, Kitgum Circuit).**

**Philip W. Mwaka**

**Acting Judge of the High Court.**

## **Delivery and Attendance.**

This signed and dated Judgement shall upon the directions of the presiding Judge be delivered to the parties electronically on **Monday, 3rd March, 2025 at 10:00am** by the Deputy Registrar, High Court Kitgum Circuit. Certified copies of the Judgement shall be retained on the Record of this Court for the benefit of and to be availed to the respective parties.

| 1. | Counsel<br>for the Appellant | - | Ms. Kamakune Elizabeth and Mr. | |----|------------------------------|---|--------------------------------------| | | | | Douglas Odyek. | | 2. | The Appellant | - | Mr. Owor Mathia. | | 3. | Counsel for the Respondents | - | Mr. Odongo Louis. | | 4. | The Respondents | - | Mr. Nareo George, Opalle, Mr. Okello | | | | | Kateda & Obol S/o Ocee. | | 5. | Court Clerk, present | - | Mr. Atube Michael. |

**Philip W. Mwaka**

**Acting Judge of the High Court.**

**3 rd day of March, 2025.**