IN THE HIGH COURT OF UGANDA AT SOROTI

                            CIVIL APPEAL NO. 50 OF 2011

ARISING FROM BUKEDEA  CIVIL SUIT NO. 37 OF 2010

ONGURA JOSEPH ..........................................APPELLANT

                                                            V

ODEKE DAVID AND OKELLO CHARLES.............RESPONDENT

BEFORE HON. LADY JUSTICE H. WOLAYO

JUDGMENT

The appellant appealed the judgment of HW Felix Omalla Senior Principal Magistrate Grade one dated 6^th December 2011 sitting at Bukedea on six grounds of appeal that i will revert to later in the judgment.

The appellant was represented by Mr. Echipu while Mr. Isodo appeared for the respondent.  Both counsel made oral submissions that i have given due consideration.

The duty of an appellate court is to re-evaluate the evidence adduced in the lower court and arrive at its own conclusion bearing in mind that the lower court had an opportunity to observe the demeanour of  witnesses.

The respondent  sued the appellant   Ongura  Joseph  as 1^st  defendant and the second   respondent  Okello Charles  as 2^nd  defendant for recovery of three gardens of land sold by the appellant to the 2^nd respondent Okello Charles. The facts of this case were not in dispute right from the pleadings to the trial.

I have  examined the proceedings and found that the following facts are not in dispute.

The  1^st respondent  Odeke David was brought up by his maternal relatives and on reaching the age of majority in 2007, his maternal uncles and paternal uncles held a meeting at which it was resolved that Odeke be handed his late father’s land comprising 14 gardens. It was at this point that Okello Charles    admitted to selling three gardens to Ongura  Joseph  while Odeke was still young.

PW3   Noah Aisu , clan chairman of  Odeke’s clan testified that he was the caretaker of the 14 gardens but he delegated the physical caretaking of these gardens to Okello    who then sold to Ongura  three gardens  but that Okello was not authorised to sell.

From the defense case, it is evident that Ongura puts across  the defense that he was a bona fide purchaser for value without notice . He bought the land in 1999 and states that he made inquiries from  the LC 1 chairman . However,  Okello in his evidence admits to selling land that did not belong to him.

In light of Okellos admission that he sold land that did not belong to him ,   Ongura’s defense that he was a  bona fide purchaser for value without notice cannot stand. Had he done due diligence as to the true ownership of the land, he would have found that Okello had no authority to sell the land.

Indeed, it can be said that Okello intermeddled in the estate of Odeke’s late father because he was not an entitled beneficiary.

I therefore find that the trial magistrate correctly evaluated the evidence and arrived at a correct conclusion.

Turning to the grounds of appeal, the first ground is that the trial magistrate erred in pronouncing judgment on an interview of the 2^nd defendant who had not filed a written statement of defense.  I find no merit in this ground because although there is no written defense on record, the 2^nd defendant was present throughout the proceedings and gave sworn evidence.

 The key defendant in the case was Okello 2nd defendant who sold land to the 1^st  defendant. I note that the 1^st defendant Ongura  was represented by Mr. Echipu  who is still his counsel on appeal but the 2^nd defendant  was not represented.      In any case, no miscarriage of  justice was occasioned by the omission to file defences except  that it  is good practice for parties to file pleadings as a basis for  their   respective cases.   In fact, Order 6 rule 27  permits suits in magistrates courts  to be tried on a plaint without further pleadings  unless the court otherwise directs.

Ground one fails.

Ground two is that the trial  magistrate erred when he ignored the fact that the 2^nd  defendant had authority to sell the land to the 1^st  defendant.  I have found that the 2^st defendant had no authority to sell the land and instead , he  intermeddled in the estate of the deceased owner.

Ground two fails.

The gist of Grounds three  and four is that the trial magistrate did not give the defendants a chance to  explain that the land was sold with authority of the clan.

I find no merit in these two grounds as it is evident from   the plaintiff’s case that the clan did not give authority to sell the land.

The fifth ground is that the orders of the trial magistrate are uncertain.

The orders of the trial  court were:

1. The disputed land belongs to the plaintiff (   Odeke)
2. The plaintiff to get vacant possession.
3. Permanent injunction to issue restraining the defendants( Ongura and Okello) from  laying claim to the land.
4. Without prejudice, the 2^nd defendant ( Okello) to pass    his own garden to the 1^st defendant ( Ongura) to avoid  the 2^nd defendant from benefitting from  his own wrong.
5. Costs to the plaintiff.

I find no uncertainty in these orders   that i hereby confirm. To avoid protracted litigation, the trial magistrate ordered the second defendant now second respondent , to compensate the 1^st defendant now appellant with one garden  in light of   his conduct   in selling land that he had no authority  to sell.

In the premises, i dismiss the appeal, and  confirm the orders of the trial court with costs of this court and court below to the 1^st respondent.

Before i take leave of this appeal, i have had occasion to look at the taxed bill of costs taxed by the trial court and i find that the items on disbursements were taxed at very high amounts. The number of attendances   by the respondent does not correspond with appearances in court. I direct that this bill be ignored and one bill be filed for costs in the High court and trial court to be taxed by the Deputy Registrar.

DATED AT SOROTI THIS 17TH DAY OF OCTOBER 2014.

      HON. LADY JUSTICE H. WOLAYO