[2024] UGHC 344

The Republic of Uganda

In the High Court of Uganda Holden at Soroti

Criminal Appeal No. 04 of 2023

(Arising from Criminal Case No. 367 of 2021 of the Katakwi Chief Magistrate's Court)

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Uganda :::::::::::::::::::::::::::::::::::

Versus

A1 Imodot Coloneria

A2 Odong James

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Before: Hon. Justice Dr Henry Peter Adonyo

## Judgement

(This is an appeal from the judgement of HW Gumtwero Justine Olal, Chief Magistrate, sitting at the Chief Magistrate's Court, Katakwi, delivered on 21^st February 2023)

1. Background of the Appeal:

The respondents, Imodot Corneria and Odong James (a mother and a son) were charged with one count of Criminal Trespass contrary to section 302 of the Penal 20 Code Act.

The prosecution's case was that the respondents entered into or upon the land of Omudu Benjamin on the 31^st day of March 2021 at Adacar village in Katakwi district with intent to intimidate, insult, or annoy the said Omudu Benjamin.

$\mathsf{S}$

After investigations, the respondents were arraigned in court, with each pleading $5$ not guilty.

The case was set for hearing with the prosecution presenting six witnesses to prove its case.

Upon the prosecution closing its case, the trial lower court ruled that the prosecution had established a *prima facie* case against each the accused/ 10 respondentherein who each was put to defend themself.

The respondents each gave a sworn testimony and called one witness.

On 21^st February 2023, the learned trial Magistrate delivered his judgement and acquitted both respondents.

Being dissatisfied with the judgement and the decision of acquittal of both 15 respondents, the appellant appealed to this honourable Court.

2. Grounds of Appeal:

The appellant raised two grounds of appeal as follows:

- a) The Learned Trial Magistrate erred in law and fact when he ignored the decision in the High Court Civil Appeal No. 12 of 2015, where the court decreed that the suit land belonged to the appellant, thereby arriving at an erroneous decision leading to miscarriage of Justice. - b) The learned Trial Magistrate erred in law and fact when he failed to analyse evidence as a whole, thereby arriving at an erroneous decision.

The appellant prayed that: 25

- a) The appeal be allowed. - b) The judgement of the lower court and acquittal of the respondents be set aside. - c) The respondents be convicted as charged.

## 3. Duty of the first appellate court: 10

This is the first appeal from the learned trial magistrate's decision. The duty of the first appellate court is to scrutinise and re-evaluate all the evidence on record to arrive at a fair and just decision.

This duty was well laid down in the case of Kifamunte Henry vs Uganda SCCA No.

10/1997, where it was pointed out. 15

> "The first appellate court has a duty to review the evidence of the case and to reconsider the material before the trial judge. The appellate court must then make up its own mind, not disregarding the judgment appealed from but carefully weighing and considering it."

(See also the cases of Father Nanensio Begumisa and Three Others vs Eric Tiberaga 20 SCCA 17 of 2000 and Baguma Fred vs Uganda SCCA No. 7 of 2004).

Resolving this appeal involves considering the above legal position regarding the duty and legal obligation of the first appellate court.

## 4. Representation:

The Senior State Attorney - Katakwi of the Office of the Director of Public 25 Prosecutions represented the appellant, whereas the respondents, even though

they were served and acknowledged receipt of the memorandum of appeal and the $\mathsf{S}$ appellant's submissions vide the affidavit of service dated 5^th December 2023 deposed by Omagor Joseph Okuraut did not file their written submissions in response to the appellant's submissions.

Accordingly, by not responding to the memorandum of appeal they gave up their right to a fair hearing in this appeal by deliberately choosing not to participate in it. 10 This appeal thus proceeded unopposed with the appellant making its submissions thereto for which I am grateful.

The same has been taken into account while resolving with this appeal together with the record of proceedings of the lower trial court, its judgment and orders and the decision of court in High Court Civil Appeal No. 12 of 2015.

- As this is a criminal appeal, the appellant who is the prosecution bears the burden of proof which must be beyond reasonable doubt. Proof beyond a reasonable doubt does not mean proof beyond a shadow of a doubt, however, this standard is satisfied once all evidence suggesting the innocence of the accused, at its best, creates a - mere fanciful possibility but not any probability that the accused is innocent (see: 20 Miller v. Minister of Pensions [1947] 2 ALL ER 372).

That also burden does not shift to the accused persons because they are only convicted on the strength of the prosecution case and not because of weaknesses in their defence (See: Ssekitoleko v. Uganda [1967] EA 531 and Woolmington v DPP

[1935] AC 462). 25


## 5. Determination of Appeal:

The appellant's counsel submitted on the grounds raised consecutively. I will resolve them similarly.

> 1) The Learned Trial Magistrate erred in law and fact when he ignored the decision in the High Court Civil Appeal No. 12/2015, where the court decreed that the suit land belonged to the appellant, thereby arriving at an erroneous decision leading to miscarriage of Justice.

The first ground of appeal, infers to the appellant's main contention that the trial magistrate deliberately left out the evidence of PW5- Epedo Lawrence Pius, who according to counsel, told the court that the accused persons were found ploughing the land belonging to Omudu, which land had previously been a subject of litigation 15 before the Magistrate Grade One, Katakwi vide Civil Suit No. 1 of 2013 and later a subject of an appeal before this Court *vide* Civil Appeal No. 12 of 2015 and which was determined in favour of the complainant with the outcome that the land was decreed as hers which same land the accused persons /respondents herein had trespassed upon. 20

Counsel for the appellant submitted that PW5 told the court that he was once delegated by LC III to mediate between the parties, and in the process, the 1^st respondent accepted surrendering the land to the appellant but, unfortunately, rescinded her decision.

Counsel asserted that the evidence of PW5 corroborated the evidence given by four 25 other witnesses.

$\mathsf{S}$

To that end, counsel argued that had the Learned Trial Magistrate subjected to $\mathsf{S}$ adequate scrutiny the evidence adduced by all the prosecution witnesses, inclusive of PW5 Epedol Lawrence Pius, he could have arrived at a right decision that the respondents did not have a claim of right over that part of the land which certainly they had trespassed upon given the High Court decision which had already decreed 10 that Mrs Omudu Miriam and Omudu Benjamin were the true owners of the trespassed land. That this Hon Court should thus reevaluate the evidence on record

to correct the mistake made by the trial court in this respect.

In making this assertion, the appellant cited the Suopreme Court case of **Muluta** Joseph vs Katama Sylivano SCCA No.11 of 2019 where it was held that where it is apparent that the evidence has not been subjected to adequate scrutiny by the trial court, the first appellate court has the obligation to re-evaluate the evidence.

For the offence of criminal trespass for each of the accused person to be convicted of it the prosecution must adduce evidence beyond reasonable doubt that the ingredients of the offence of trespass as is provided in Section 302(a) of the Penal Code Act are proved.

These ingridients are;

- Intentional entry onto property in possession of another. - An unlawful or entry without authorisation. - The entry was for an unlawful purpose.

- Each of the accused person before the court entered onto the premises under the above circumstances.


See: Uganda vs. Kinyera Walter, Okot Bosco, Oyoo Franco and Ocaya Jackson (High $\overline{5}$ Court Criminal Session Case No. 0374 of 2018.

In determining this ground of appeal, the major contention relates to the failure of trial court in appraising the evidence which the appellant allege the trial magistrate ignored including the decision on appeal of this Honmourable Court vide Civil Appeal

No. 12 of 2015 wherein the suit land a trespassed upon court was decreed as 10 belonging to the complainant in this appeal.

To that end, the appellant avers that the trial court ignored the evidence of PW5, who brought out clearly that evidence that the complainant was in lawful possession of the suit land which was trespassed upon by the respondents.

I will proceed to exhaustively consider this issue of possession as below. 15

In the case of **Uganda vs. Kinyera Walter, Okot Bosco, Oyoo Franco and Ocaya Jackson** defined possession in the following words:

> "Possession is intended to be at the time of entry, and it does not imply that the person in possession must be present at the actual time of entry.... It is worthy of note that the party lawfully entitled to possession has a right to private defence of the property, embedded in the defence of bonafide claim of right under section 7 of the Penal Code Act.

> Possession within this section refers to effective physical or manual control or occupation, evidenced by some outward act, sometimes called defacto possession or detention, as distinct from a legal right to possession."

- As regards the interpretation of the legal term possession of the property by the $\mathsf{S}$ complainant, I note that in the lower trila court, the prosecution led the evidence of a total six witnesses, who presented both direct and circumstantial evidence in proof that the complainant Omudu Benjamin owned/possessed the land alleged to have been trespassed upon by the respondents. - These witnesses testified to the effect that the respondents/accused persons 10 trespassed onto 5 acres of land belonging to the complainant Omudu (PW1) in March 2021 and 2018 by ploughing the land and cutting trees which they used for burning charcoal.

PW1 told the court that the land trespassed upon was hers because it had been a subject of litigation between the complainant and Adeke Benedeta before Katakwi 15 Grade One Magistrate which suit was determined in favour of Adeke Benedeta but was on appeal to this Court determined in the complainant's favour as she was declared to be the owner of the land.

PW1 told the court that the 1^st respondent was witness number 3 of the appellants in Civil Suit No. 1 of 2013, which was in the Grade One Magistrate Court of Katakwi, 20 and that she testified that the land belonged to Adeke Benedata. PW1 stated that he was the one using the land. The other appellant's witnesses confirmed the litigation that involved the appellant/complainant and Adeke Benedeta, but as to whether the suit land therein was the same land that the respondents' are said to have trespassed on, the other witnesses were not exact. 25

The prosecution told the court that the accused began trespassing on the land in $\mathsf{S}$ 2018, claiming it to be theirs when it was not. PW1 told the court that Akello Margaret and Icumar Stephen saw the respondents.

PW2, Akello Margaret, whom the complainant (PW1) mentioned as a direct witness (the person who witnessed the trespass), told the court that on 28^th March 2020. she saw the 1^st respondent with her three children ploughing the complainant's garden and again planted sorghum in 2021.

Whereas she told the court that the complainant and the respondents are neighbours with a boundary between them, she told the court that she neither knew the size of the complainant's land nor the number of gardens the 1^st respondent had, which casts doubt as to which land she saw the respondents ploughing since they were neighbours with the complainant.

PW1 also corroborated PW2's testimony that the 1^st respondent was a witness for Adeke to whom she mentioned that the land in dispute belonged to Adeke and Kulume but in cross-examination PW2 reneged this assertion stating that it is theirs because she is currently on it. This witness seemed unsure of the land she was testifying about because of the inconsistencies in her testimony.

PW3, Ecumar Stephen, another alleged direct witness of the trespass referred to by PW1 told the court that the complainant and the respondents are both his neighbours. He told the court that the disputed land which was in Adacar belonged to the complainant who inherited it from his late father Otim Simon.

PW3 testified that the complainant litigated with one Adeke and confirmed that while Adeke won the suit in the lower trial court where the 1^st respondent was a witness for her, on appeal this court overturned that decision and declared the $\mathsf{S}$ complainant as the owner of the land. PW3 testified that nobody was in the land in dispute.

PW4, Okori Patrick, the clan secretary, testified that the respondents are neighbours of the complainant. That he found that the respondents had ploughed one garden and again in 2022, a second garden. PW4 told the court that the complainant got the land from his father, Otim Moses.

All the prosecution witnesses testified to the effect that the land belonged to the complainant because she inherited it from his father Otim Moses, because she was declared the owner of the land vide Civil Appeal No. 12 of 2015, though the witnesses did not for cetain particularised testify as to whether the land in Civil 15 Appeal No. 12 of 2015 was the same land which had been trespassed upon and also that the complainant was the owner of the land trespassed upon because in the Civil Suit No. 1 of 2013, the 1^st respondent was a witness for Adeke who sued the complainant and that she testified that the land was for Adeke, which in my view testifying for another person is not proof that the land is for the other testified 20 against who is later declared owner.

I have taken judicial notice of this court's judgement in Civil Appeal No. 12 of 2015 upon which this ground is hinged. The testimony in question that in the eyes of the appellant, the trial magistrate did not consider is for PW5, Opedel Lawrence Pius, the LCII Chairperson of Adacar parish, Guyaguya sub-county, Katakwi district, who told the court that on 31/03/2021 he was called to intervene as the accused had gone ploughed the land in dispute. He told the court that he went to them and

proposed a mediation. PW5 testified that the land was a subject of litigation

between Omudu against Adeke and Kulume and that the 1^st respondent was a $\mathsf{S}$ witness to the defendants Adeke and Kulume, and she testified that the land was for Adeke, not hers, but the case ended in favour of Omudu.

PW5 testified that he could not tell why the 1st respondent went ahead and ploughed the same land. PW5 testified that he was delegated to mediate by the LCIII, and while he tried, the 1^st respondent agreed to surrender the land to the complainant, but she reneged and claimed a portion of 2 acres of land inside the land the court awarded to the complainant.

What I find unexplained in PW5's testimony is that while he told the court that he went to the land in dispute, he also testified that he refused to go and see the boundary because of violence but surprisingly asserted that it is true that he pronounced that the land belonged to Adeke.

Like all others, he also testified that Omudu inherited the land from his parents, though no one adduced additional evidence to prove the inheritance because PW4, who testified as a clan leader, did not go far to adduce evidence to show the inheritance by custom.

Surprisingly, unlike the other witnesses, PW5 testified that the respondents shared no common boundary with the complainant but that the boundary he referred to was the one between Adeke and Kulume and that Adeke was claiming from the West belonging to the family of Omudu.

Evidently with the foregoing differences in boundaries and inconsistencies between 25 the witnesses as to the common boundary between the respondents and the complainant, PW5 cannnot be seen to sur and or certain in his testimony as to

whether the suit land in Civil Appeal No. 12 of 2015 was the same land that the $\mathsf{S}$ respondents allegedly trespassed upon.

In defence, the 1^st respondent who testified as A1 told the court that she resides in Adacar where her land shares a common boundary with the complainant's land.

A1 told the court that in 2013, Adeke litigated against the complainant over a piece of land and that she was a witness. A1 told the court that the land in issue has 10 belonged to her since 1962 and no one has ever litigated with her. That the complainant and Adeke were neighbours and the land in dispute between Adeke and the complainant is different from her land which the complainant now was again claiming. A1 testified that she was a witness for Adeke when she was settled on the land now disputed and that her children have been cultivating the said land. 15

DW2 Odong James, A2, told the court that the complainant came to Adacar around 1996 or 1997 and had remained a neighbour. The land he and her mother were accused of trespassing on belonged to them and that before, it belonged to his father, who passed on.

DW2 testified that the complainant is in the habit of targeting the family one by one 20 over land which measures approximately 70 gardens but it was the one garden at the boundary between Omudu (complainant) and the accused that the complainant was claiming.

DW3 Emorwait Moses, a clan leader of the Isubatuk clan told the court that the land in dispute did not belong to the complainant and that the complainant litigated with 25 Adeke and Kulume with respect to another piece of land over which he appealed to the High Court and was successful. That immediately after he won the appeal, the

- complainant went to the police over a different piece of land, now the subject of $\mathsf{S}$ this case, and complained against the accused persons. He told the court that the allegation that the accused persons entered the land of the complainant was untrue and that the accused were charged in court while in possession of the different suit land. - I have considered the whole spectrum of evidence as adduced before the lower trial 10 court. In my considered view the prosecution's evidence clearly fell short of proving that the complainant was in possession of the suit land for which the respondents were charged with.

This is because the testimony of the prosecution's witnesess in regarding the alleged trespassed land fell short of proving that it was the same land decreed to the 15 complainant in Civil Suit No. 12 of 2015.

To prove possession of the disputed land allegedly upon which the act of trespass was committed, the appellant's witnesses (PW1, PW2, PW3, PW4, PW4, PW6) all mentioned that it belonged to the complainant. Whereas PW1, who is the complainant and was not a direct witness, testified that the respondents trespassed on 5 acres of her land, PW5 who was the investigating officer said that it was one acre.

PW2 admitted not knowing the size of the land of the complainant and also the number of gardens that the respondents had.

PW5 the investigating officer also told the court that when he went to investigate 25 the land he went with the LC1 and the complainant in the absence of the respondents whom he told the court that he summoned later to his office and when

the 1^st respondent went thereshe told the investigating officer that the disputed $\mathsf{S}$ land is hers.

The appellant's witnesses all testified that the complainant inherited the land from his father and while they testified about the court case, only PW5 categorically stated that the land in dispute in court was the same land that the respondents

trespassed on. 10

> However, surprisingly, PW5 who was the investigating officer also told the court that during his mediation of the dispute to which no exhibit was adduced, the 1st respondent agreed to surrender two acres, so the question is, what was the 1^st respondent surrendering and who exactly was in possession of the land at the time

of the trespass? 15

> PW5 testified that when he went to the land in dispute he could not go and see the boundary of the disputed land because of violence but pronounced that the land belonged to Adeke and not the complainant.

How was he able to do this when he did not establish the actual land complained of when he agrees to the fact that he did not establish the actual land boundary due 20 to violence?

In my considered view his evidence was not conclusive as to which land was trespassed upon since he never went with both parties to establish exactly wehich land allegedely had been trespassed upon.

The other conflicting evidence is while some of the prosecution witnesses told the $\mathsf{S}$ court that the complainant and the respondents were neighbours, PW5 told the court that the complainant and the respondents shared no common boundary.

On the other hand PW2 who is said to have seen the accused persons / respondents trespass on the land did not know the size of the complainant's land nor the number of gardens that the 1^st respondent owned yet she acknowledged the fact that the complainant and the accused persons were neighbours.

She even mentioned that the land in dispute belonged to Adeke and Kulume in examination in chief only to renege that fact in cross-examination saying that it is theirs because she was currently on it. In re-examination she said that the disputed land belonged to one Omudu. This witnesses's testimony was thus not only inconsistent but appeared untrrleiable given the constant changing by her of as to who owned the suit land.

In Civil Appeal No. 15 of 2015 which is a decision of this court PEXII listed the disputed land as 80 gardens and as situated in Adacar village, Adacar parish, Usuk sub-county, Katakwi district. This is not enough to identify the fact that the land in the current appeal which the accused/respondents cast doubt sas to whether the land which was in the suit between the complainant and Adeke is different from the land in dispute that is alleged to have been trespassed upon.

Given the fact that the prosecution failed to exactly pinpoint as to which land which had been declared to be owned by the appellant/complainant and the land upon 25 which the accused persons were claimed to have trespassed upon, it was difficult for the trial court to determine and make a finding as to the ownership of the land

- said to have been trespassed upon given the fact that the ownership of the land $\overline{5}$ trespassed upon is disputed as both the complainants and the accused persons claim ownership of the same which brings in defence of honest claim of right as per Section 7 of the Penal Code Act which is an absolute defence as observed by the trial magistrate. - Accordingly, I am left with doubts as to whether the land which was decreed to the 10 complainant in Civil Appeal No. 15 of 2015 is the same as the land allegedly trespassed upon. Which led to the trial of the respondents in the lower trila court in the first place. Without evidence proving clear ownership of the alleged trespassed land, the trial court was right in making the finding and conclusion which it did and for that reason, ground one of this appeal would fail. 15

Invariably since ground two that the learned Trial Magistrate erred in law and fact when he failed to analyse evidence as a whole and thereby arriving at an erroneous decision was hinged on the determination of ground one, this ground would fail equally as ground one has failed as I find no relevance to determining it. Meaning that no miscarriage of justice was occasioned onto the appellants.

## a) Conclusion:

Since all the grounds have failed, I find that the instant appeal is unmeritorious, and it would be dismissed accordingly.

However, given the nature of the dispute in this matter where clearly show that the boundaries of the land which was decreed by this court as belonging to the 25 complainant in Civil Appeal No. 15 of 2015 vis a vis the land which was allegedly trespassed upon had not been established, this Hon Court in the interest of justice

of the matter by virtue of Sections 98 and 100 of the Civil Procedure Act, doth orders $\mathsf{S}$ the lower trial court in concert with all the parties herein and the local authorities, that is the LCs, the police, the sub county authorities, the district administrators to proceed and demarcate the boundaries of the land decreed to the complainant iin Civil Appeal No. 15 of 2015 and thereafter to determine whether any person has trespassed which would lead to a fresh charges and trial on the offence of tresapass 10 , where applicable in order to put to rest all the issues relating to theland dispute resolved by this Honourable Court in Civil Appeal No. 15 of 2015.

Accordingly, while I do uphold the judgement and order of the trial magistrate in Criminal Case No. 367 of 2021 of the Katakwi Chief Magistrate's Court delivered on

- 21^st February 2023, I am inclined to make the orders above after noting that the 15 arrest, trial and the subsequent determination of Criminal Case No. 367 of 2021 of the Katakwi Chief Magistrate's Court left a lot to be desired given the fact that the boundaries of land decreed in Civil Appeal No. 15 of 2015 was never determined by any proper investigations leaving the trial magistrate with no option but to - determine Criminal Case No. 367 of 2021 of the Katakwi Chief Magistrate's Court, 20 the way it did so by dismishing the charges against the accused persons thereto. Yet were issue of the boundary of the alleged land trespassed upon vis a vis that which was determined in in Civil Appeal No. 15 of 2015 clearly resolved then the issue of trespass would have been easy to flount. - Orders: 25 - 1. The Appeal is dismissed as no evidence was adduced in proof of the land which was trespassed.

- 2. The judgement and order of the trial magistrate in Criminal Case No. 367 of $\mathsf{S}$ 2021 of the Katakwi Chief Magistrate's Court delivered on 21^st February 2023 is upheld. - 3. In the interest of the justice of this matter and by by virtue of Sections 98 and 100 of the Civil Procedure Act, I do order the Chief Magistrate Katakwi, in concert with all the concerned parties, the local authorities, that include the LCs, the police, the sub county chief, the district administrators and other security agencies to proceed to and demarcate the boundaries of the land decreed to the complainant in Civil Appeal No. 15 of 2015 so as to determine whether any person has trespassed upon it which would lead to a fresh charges and trial of any such persons on the offence of tresapass, where applicable. By doing this fresh demarcation, it is hoped that the doing so will to put to rest all the issues relating to the land which was decreed by this Honourable Court in Civil Appeal No. 15 of 2015 as belonging to the complainant herein.

I so order. 20

Hon. Justice Dr Henry Peter Adonyo

Judge

25^th April 2024

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