IN THE HIGH COURT OF UGANDA AT SOROTI
CIVIL APPEAL NO. 43 of 2012
(ARISING FROM KUMI LAND CLAIM NO. 42 OF 2008 )
- EBIJU JUSTINE WILSON
- ANGWEDO MARY.........................................................APPELLANTS
ECHODU SURUBABERI .....................................................RESPONDENT
BEFORE HON. LADY JUSTICE H. WOLAYO
The appellants through their advocates Ogire & Co appealed the judgment of HW Belmos Ogwang grade one magistrate dated 29th August 2012 sitting at Kumi on three grounds of appeal that i will refer to later in the judgment.
The respondent was represented by Isodo & Co. Advocates.
Both counsel filed written submissions that i have carefully considered.
The duty of the first appellate court is to re-evaluate the evidence adduced in the lower court and arrive at its own conclusion bearing in mind that the trial court had an opportunity to observe the demeanour of witnesses.
I have therefore re-evaluated the evidence and arrived at my own conclusions on issues of fact and law.
The facts of this case are not disputed. Both appellants and respondents are in agreement that the respondent Surubaberi inherited the second appellant Angwedo Mary as his wife following the death of her husband Oryokot Francis in the 1980s. According to the respondent , he was chosen heir to Oryokot by the clan as all Angwedo’s children had died although he later acknowledged Angwedo’s daughters were still alive and its the boys who are deceased.
The respondent called five witnesses to support him including Edait Tolbert the clan chairman of Atekok Itome Ingaraba who testified that the 1st appellant settled on the suit land with Acibo daughter of Angwedo the 2nd appellant, as husband and wife.
It was the respondent’s case that when he was appointed heir, he inherited both Angwedo and her late husband’s seven gardens.
It was the 1st appellant’s case that he bought five gardens from the 2nd appellant Angwedo on 24th May 2000 for which he paid five head of cattle and 350,000/. The sale was witnessed by Agwedo’s daughters Apio Deborah and Acibo Christine. The sale was confirmed by the second respondent who testified that she sold the land left to her by Oryokot after the clan wanted to offer her a calf for the land. Apio Deborah one of the witnesses to the sale agreement testified in support of her mother.
It also emerged from the testimony of DW4 Arayo Helen that after the 2nd appellant sold the land, she bought land elsewhere and settled on it, a fact that is confirmed by respondent’s witnesses.
I exercised my powers under section 80 of the CPA to call for additional evidence from a person well versed in Teso customs. Mr. Inokoku Stephen in charge of Land and Environment in Emorumor’s office swore that he is well versed in Teso customs.
According to the expert, when a man marries, both husband and wife are shown land by the parents which means the land belongs to both. When the husband dies, the wife takes over but she is to take care of the land for her children and posterity. The expert also testified that the clan controls the land to the extent that it must approve any sale which must be for good reason such as sickness, and school fees. The expert was of the opinion that a sale to a daughter’s husband is defendable because the land remains in the family.
What i gathered from Mr. Inokoku’s expert evidence is that under Teso custom, a widow can dispose of land left by her husband only with consent of the clan elders. Secondly, she is only entitled to use this land and therefore her ownership is fettered under custom.
The trial magistrate framed the key issue for determination as follows:
Whether the 2nd defendant had any proprietary rights in the suit land which she could transfer.
Counsel for the respondent submitted that the custom that only allows a widow to use the land is not repugnant to natural justice and equity . It was counsel’s contention that Angwedo sold land and went away leaving the clan with less land than she found when she was brought as a wife.
Counsel for the appellant submitted that the respondent’s position as customary heir did not confer on him ownership of the suit land.
Whether Angwedo had a proprietary interest in the suit land
To determine whether Angwedo had a proprietary interest in her late husband’s estate, if i go by customary law as explained by Mr. Inokoku, then the response will be that Angwedo had no proprietary interest but merely the right to utilize but not to transfer.
With respect to customary tenure, although section 27 of the Land Act Cap 227 as amended permits the taking of decisions in accordance with customs, traditions and practices of the concerned community, such decision must not deny women access to ownership , occupation or use.
In the instant appeal, Angwedo lived on the suit land for approximately twenty years after her husband’s death until 2000 when she sold five acres and bought land elsewhere after she disagreed with the respondent who had inherited her under the practice of widow inheritance. Apparently, Angwedo sought the permission of the clan to sell which permission was unreasonably withheld because they offered to buy her out with a calf. This was her evidence.
Moreover, the sale was with consent of her daughters Acido and Apio which means she complied with the custom and section 39 of the Land Act that requires members of the family to consent to any sale if the family derives sustenance from the land.
Therefore for the trial magistrate to determine that Angwedo had no proprietary interest in the suit land left by her husband was erroneous and not grounded in law.
Custom against the dignity of women
Article 32 (2) of the Constitution prohibits customs , cultures and traditions that are against the dignity, interests or welfare of women. Article 5 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) affirms the same principle when it urges States to modify social and cultural patterns of conduct of men and women with a view to achieving elimination of prejudices , customary and other practices which are based on the idea of inferiority or superiority of either of the sexes.
The custom that bars widows who have inherited customary land to exercise proprietary rights is discriminatory and against the welfare of women and contrary to article 33(1) of the Constitution, which accords women equal dignity with men. Furthermore, article 21(2) of the Constitution forbids discrimination on grounds of sex. Discrimination is defined under article 21(3) as follows:
‘To give different treatment to different persons attributable only or mainly to their description by sex.....’
A custom that denies widows proprietary rights inland held under customary tenure is discriminatory.
Equal rights at marriage, during marriage and at its dissolution.
Under article 31 (1) (b) of the Constitution, men and women shall have equal rights at marriage, during marriage and at its dissolution.
Therefore , as death leads to dissolution of marriage, Angwedo was entitled to benefit from her late husband’s estate together with her daughters. The suit land could not devolve to the brother of the deceased when the widow survived him.
In Soroti Civil Appeal No. 46 of 2013 Adong Simon and others v Opolot David(reported on ulii) in which the respondent challenged a sale of her late husband’s customary land by his widow Amoding, i held that she had a right to dispose of the land she inherited from her deceased husband as surviving spouse in light of article 31 (1) of the Constitution that confers on men and women equal rights at marriage, during marriage and at its dissolution.
It follows that the respondent acquired no interest in Oryokot’s land at his death or when he inherited the widow. This is because the widow and children take priority over other relatives in the estate of an intestate.
The fact that the respondent inherited her as a wife did not confer on him the status of husband in law and therefore the respondent, acquired no interest in the suit land when he inherited her because there was no valid marriage as no evidence was called to prove that the respondent paid dowry.
Having found that Angwedo had a proprietary interest in the suit land, i find that she was entitled to sell her interest to the 1st appellant who acquired a good title.
I now turn to the grounds of appeal.
The trial magistrate erred in law and fact when he failed to properly evaluate the evidence on record hence arrived at a wrong conclusion.
I have found that the while the learned trial magistrate evaluated the evidence, he arrived at a wrong conclusion.
The decision has occasioned a miscarriage of justice.
I have found that the decision was erroneous and therefore there was a miscarriage of justice.
I therefore allow the appeal and make the following orders.
- The judgment and orders of the lower court are set aside.
- The 1st appellant has a good title to the five gardens he purchased from the second appellant.
- The respondent is given 90 days within which to vacate the land decreed to the 1st appellant , failure of which , an order for vacant possession will issue.
- Costs of this appeal and the court below to the appellants.
DATED AT SOROTI THIS 6TH DAY OF APRIL 2015.
HON. LADY JUSTICE H. WOLAYO