[2014] UGHC 111

**CIVIL APPEAL NO. 008 OF 2013 (Arising from Civil Suit No. 092/2010 before His Worship Kasakya Muhamadi, Chief Magistrate Lira) THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT LIRA**

**THE HOSPITAL MANAGEMENT BOARD ¹ LIRA REGIONAL REFERRAL HOSPITAL ^J APPELLANT**

## **VERSUS**

**OKELLO GEOFFREY RESPONDENT**

## **Before: HON. JUSTICE BYABAKAMA MUGENYI**

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## JUDGMENT

The appellant sued the respondent in the Chief Magistrate's Court Lira seeking for a declaratory order that the suitland belongs to the appellant, a permanent injunction restraining the respondent, his agents, assignees and workmen from interfering with the quiet possession and use of the suitland, general damages for trespass, an eviction order and costs of the suit.


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the Briefly, the appellant'^s case was that demarcated and allocated to the Hospital between 1950- 1960. The respondent and others started encroaching on the said land in 2007 and in. September 2010 the respondent started constructing a permanent building on the land. The case for the <S respondent was that the I,and belonged to his great grandfather who lived on the same since 1903. The respondent was born and lived on the land un-interrupted since 1975. Judgment was entered for the respondent on the 21sf of June 2013, hence this appeal. suitland was

The appeal is premised on four grounds, to wit:

1-That the Learned Trial Magistrate erred in law and facts in failing to evaluate the evidence on record properly thereby arriving at a wrong conclusion, hence occasioning a miscarriage of justice. ,

2- The Learned Trial Magistrate erred in law and facts in failing to consider and weigh the evidence of the appellant'^s witnesses versus that of the respondent and holding that the respondent is the owner of the suitland whereas not, thereby occasioning a miscarriage of justice. ,

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- 3- That the Learned Trial Magistrate erred in law and facts in holding that the appellant's title was acquired fraudulently as to compulsorily deprive the respondent of the land whereas fraud has not been proved nor pleaded in the respondent's pleadings. - 4- That the Learned Trial Magistrate erred in law and facts when he concluded the locus in quo but failed to draw the sketch map of the disputed land. - 5- The Learned Trial Magistrate exhibited biasness against the $10$ appellant to the detriment of the appellant.

The appellant was represented by Mr. Louis Odongo while Ms. Acan Stella was for the respondent. The parties agreed to file written submissions which they both complied with.

Grounds 1 and 2 were argued concurrently and I will follow the same pattern.

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The sum total of the two grounds is that the trial Chief Magistrate did not properly evaluate the evidence and, had he done so he would have come to a different finding on who owned the suitland. Counsel for the appellant highlighted various aspects of 20 the evidence that showed the suitland was given to Lira Hospital

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long ago and the Certificate of Title clearly established ownership of the same. He also pointed out the respondent could not show Court at the locus the graves of his relatives he mentioned in his testimony. Learned Counsel also attacked the inference by the trial Chief Magistrate that the appellant acquired title by fraud whereas the same was not pleaded by the respondent.

In reply, Ms. Acan Stella for the respondent submitted that not only was the Certificate of Title obtained by the appellant in 2010, but that no evidence was led to show how the appellant acquired the said land in relation to the respondent'^s claim. *(^C* Counsel discussed in great detail the aspects of evidence that cast doubts on the appellant's claim and those that supported the respondent'^s claim over the suitland.

It is trite that where it is apparent that evidence has not been properly evaluated by the trial court, ^vor that wrong inferences *(*-S have been drawn from the evidence, it is the duty of a first appellate Court to evaluate the evidence itself and draw its own conclusions - see **PRINCE -V- KELSALL fl 957] E. A ⁷⁵² & BEGUMISA & OTHERS -VS- TIBEBAGA (2004] 2 E. A 127.**


In the instant case, the trial Chief Magistrate laid out in summary the evidence of the witnesses for either side in the judgment. Having done so, he made the following finding at page ⁶ (marked 39) of the judgment:-

"Now, *having looked at the evidence of the parties above, ^I have no reason to believe that the suitiand belong (sic) to the plaintiff as there is no sufficient evidence to prove this. PW1 Lwigali came to Lira in the year 2008, and apparently his knowledge of the land started from there. He talked about the gazetting and demarcating of the land in 1950-60 but did not elaborate on this. He found the defendant living on the land and his evidence in proof of ownership is mainly'based on the land title, the deed plan and the strategic plan of the year 2000."*

In the evaluation of the evidence for the respondent'^s witnesses, the learned trial Chief Magistrate found as follows:

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the *defendant in possession of the land when she came back from exile in 1986-------------This hospital was constructed at the time when the customary owner was in possession of the land. Alyela Peter DW2 was clear on this and was not strongly contested by the prosecufio'n." "This evidence in my view did not displace the clear evidence of the defence on ownership of this land as mentioned by DW1 that his grand grand parent settled there in the year 1903 and owned that land as a customary land corroborated by Alyela DW2 who was born on the land in the year 1927 and was not strongly contested by the prosecution. Equally Fatuma Umar'^s evidence was clear that she found*

The way ^I see it, in deciding as he did the learned Chief Magistrate found the defence evidence more credible and that the plaintiff/appellant had failed to dislodge it, thereby its case was not proved on a balance of probabilities.

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Upon careful evaluation of the evidence, ^I find there are a number of contradictions in the respondent's case which the Chief Magistrate did not address his mind to. They are as follows:

- to the 1-According to the respondent, the suitland originally belonged to his great grandfather Odida Elasto who passed away in 1989 leaving his family on the land. On the other hand, the evidence of Alyela-Peter (DW2) is to the effect the said Odida Elasto passed away in 1998. DW2 described Odida as his father and the, respondent as his (DW2) grandson. - 2- The respondent testified that Odida Elasto was buried at Ngetta Ginnery Village, some two kilometers from the , suitland. He explained his grandfather decided to be buried on another land hoping that development may take place in future.

According to Alyela Peter (DW2) his grandfather (father to Odida) was buried on the suitland. DW2'^s sons and grandsons were also buried on the same land. *^I*

- / The respondent did not allude to any single relative being buried on the suitland. - 3- The respondent stated he inherited the suitland tram his grandfather Elgsto Odida. DW2 for his part stated that:

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( O *"^I the suitland to the defendant gave sometime ago, it was in my possession after inheriting it from my father."*

and DW2 inherited the land from him, does it mean he (DW2) inherited- the land even before his father Odida died' and even passed it on to the respondent while Odida wa's still alive? - 4- In cross-examination Alyela Peter (DW2) stated he left the land to Okello Geoffrey (respondent) in 1968. Now, since ^8 Odida Elasto is said to have died in 1989 or 1998, whichever.

Connected to the foregoing contradictions, the evidence of DW2 was to the effect the graves of his grandfather, sons and grandsons are visible on the suitland. Looking at the proceedings of the locus visit, there is no indication DW2 showed the Court the said graves.

She found the There is also the testimony of Fafuma Umar (DW3) whose evidence is to the effect that she settled on the suitland in April 1986 following her return from exile'in Sudan. respondent cultivating the land. The^respondent testified on 6-10- 2011 and stated he was born in 1976. By simple arithmetic, in 1986


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he was just 12 years old. Is it plausible at such tender age the respondent was already noticeably cultivating the land as stated" by DW3? The respondent told court he was at school during the formative years of his childhood. While it is not denied some children of this country, mainly the rural areas, are given manual tasks including digging by, their parents/relatives, it is highly, doubtful the respondent was cultivating the suitland as the owner thereof, which was the impression DW3 sought to give by her testimony?

*to !-S>* In her submissions, learned Counsel for the respondent laid emphasis on exhibits DEI, DE3 & DE5 as corroborating the respondent'^s evidence of ownership of the suitland. She particularly highlighted exhibit DEI, a letter written by the District Staff Surveyor, as confirming that the defendant's father one Ayena Christopher was in occupation of the suitland since the 1950s.

^I have carefully scrutinized the said DEI. The author states, "in *the 1950s according to report ^I got on the ground"* which smacks of heresay. Be it as it may, he went on to say the report he got indicated the first occupants on the suitland were Amodo

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Christopher, Alum Sylvia, Ayena Christopher [respondent'^s father) and Fatuma Umar.

DW1 respondent's contradictloh. In my view, the above assertion is at variance with the evidence of the respondent and Alyela (DW2) who stated the first occupant on the land was Lasto Odida who, according to their evidence, 3 was still alive in the 1950s. Therefore, other than corroborating the evidence DW1 simply created another

The contradictions in the respondent's case were, in my view, quite grave and the trial Chief Magistrate did not address himself ( to the same while evaluating the evidence.

Tadeo Echoku (PW3) testified at the locus. His evidence was that he came to study at Lira Nurses Training School in 1957 when the hospital already existed. In 1964 he joined the hospital as a member of staff and the suitland was being used by the hospital staff for cultivation. During the insurgency, many internally displaced persons settled on the suitland by constructing temporary shelters. Many left the area after the insurgency. PW3 pointed out an old building that was erected on the suitland for use by the hospital staff. PW3'^s testimony tallies with that of Opio <^,0 Charles Dickens (PW2) who stated he started working at Lira


Hospital in 1992. By then the land was vacant and was being utilized by the staff of the hospital. During the insurgency many people settled on the land. Between ²⁰⁰⁵ - ²⁰⁰⁶ some people started erecting permanent buildings on the land.

In the judgment, the learned trial Chief Magistrate laid out the evidence of PW1, PW2 & PW3 and concluded it "d/d *not displace the clear evidence of the defence"* on the ownership of the suitland. He relied on the testimony of Alyelo (DW2) as providing corroboration of the respondent'^s evidence.

Having highlighted the grave contradictions in the evidence for the respondent'^s case, it cannot be said the said evidence was clear as found by the Chief Magistrate. Had he carefully scrutinized the said evidence, he would have come to the finding it lacked credibility and could not be believed therefore. Such evidence could not cast doubts on the appellant'^s evidence regarding ownership of the land.

**c** For the reasons above, ^I find merit in grounds ¹ & 2 and they accordingly succeed.


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Ground 3 was to the effect the trial Magistrate erred in holding that the appellant'^s title was acquired fraudulently.

In the judgment, this is whdt the Chief Magistrate stated about the matter complained of:-

> 26 *(2) of the 1995 Constitution." "The .demarcation and survey of the land in the year 2010 was an attempt to compulsorily deprive the defendant of his land in contravention of Article*

^I do not read in the above excerpt any finding that the appellant obtained title through fraud. In any event, since fraud was not pleaded by the respondent it would have amounted^ to a misdirection had thejrial Chief Magistrate made ^a specific finding in that regard. ^I find no merit in this ground and it therefore fails.

Ground No.4 is on the failure by the trial Chief Magistrate to draw the sketch plan at the locus. *^I*

The purpose of locus visit is to check and verify the evidence of the witnesses regarding the features described on the sui'tland. While it is desirable to draw a sketch plan indicating the location of such features, failure to do so would not necessarily render the


locus proceedings materially irregular. The need for a sketch plan depends on the facts of each case. In the instant case, the learned trial Chief Magistrate heard and recorded evidence at locus of witnesses who, in one way or another, were associated with the suitland in the past. The failure to draw a sketch plan was not fatal in my view.

The last ground (No.5) is on bias. According to the submissions of Counsel for the appellant this ground is premised on -the fact judgment of the lower Court was delivered in the absence of the appellant'^s Counsel, and its representatives. Judgment was delivered earlier than the scheduled time that day. This followed a complaint regarding the non-delivery of the judgment on the scheduled date. In Counsel'^s view, the trial-Magistrate "seems *to have got annoyed why the hospital management complained against the delay in delivering the judgment."'*

While it was irregular for the trial Chief Magistrate to read the judgment earlier than the time notified to the parties, ¹ do not read an instance of bias in such conduct. To say he was annoyed is quite speculative and Court cannot come to the finding there was bias in the absence of credible evidence apparent on the record. ^I see no merit in this ground therefore.


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the conclusion he did. Consequently, having discussed as above this appeal succeeds on grounds the trial Chief Magistrate did not properly evaluate the evidence and had he done so he would not have come to The judgment of the lower Court is accordingly set aside and the orders quashed. Costs here and in the Court below are awarded to the appellant. Appeal allowed.

**BYABAl^AMA-MUOENYI**

25-2-2014 **JUDGE**

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