THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA

                                                HOLDEN AT MBALE

HCT-04-CV-CA- 0032 OF 2016

(ARISING FROM KAPCHORWA CIVIL SUIT NO. 046 OF 2014)

1. LABU GEOFREY
2.  KURUNGO FRED
3. CHEMUTAI SIMON
4.  CHEKWOOTI AUGUSTINE ::::::::::::::::::::::::::: APPELLANTS

VERSUS

 CHEROP STEPHEN            ::::::::::::::::::::::::::::::::::::::::::RESPONDENT

BEFORE: HON. MR. JUSTICE HENRY. I. KAWESA

JUDGMENT

Appellant  was dissatisfied with the  Judgment  and orders  of  the  Magistrate Grade 1 Kapchorwa, his Worship Matovu  Hood of  1^st  March 2016.

The appellant raised 6 grounds of appeal namely:

1. The learned trial Magistrate did not properly evaluate the evidence on record and thereby reached an erroneous decision.
2.  The decision  of the learned trial  Magistrate  is tainted with  fundamental  misdirection and  non direction  in law  and facts.
3.  The learned trial Magistrate erred in fact and law when he did not consider the period the appellants enjoyed quiet possession of the  suit land.
4.  The learned trial Magistrate erred in law and fact when he awarded general damages of two millions without any proof thereof.
5.  The  decision  of the  learned  trial Magistrate  was against  the  weight  of evidence.
6.  The decision of the learned trial Magistrate occasioned a miscarriage of justice.

The appellants’ counsel argued grounds 1, 2, 4 and 5 together, and   ground 3 and 6 separately.

Respondents on the other hand argued grounds 2 and 6 together, and the rest separately. I will consider each ground of appeal separately.

As a first appellate court, this court must re-evaluate the evidence; give the evidence a fresh scrutiny and reach its own conclusions thereon.

However  caution  must  be taken  while assessing  evidence given the fact  that this court  never  listened  to, and  observed the witnesses.  

I do  agree  with the Respondent’s  complaint  under  his background notes in  submissions that the way  appellants  framed his grounds of  appeal offends O. 43  R.1 and 2 of the Civil Procedure Rules.

The grounds indeed do not sufficiently bring out the specific point of contention but are vague. However the same   was cured by counsel chosing to lamp his arguments into two major complaints (i) on failing to properly weigh the evidence (ii) the failure to consider the period of limitation. Though counsel prayed that the offensive grounds be struck off, he did not suggest which law gives court that right. The case of National Insurance Corporation V. Pelican Services CACA N0.5 of 2003, did not decide that the offensive ground is mandatory struck but “Liable to be struck off”.   

For that reason, I do find  that since  arguments have  been made generally  on these grounds, court will consider the  arguments  by counsel  and  decide  the grounds on the basis of such  arguments.

Ground 1: Failure to evaluate the evidence

Issues:

The court considered three issues:

1. Who is the rightful owner of the suit land?
2.  Whether defendants are trespassers.
3. Remedies.

The evidence before court

PW1- Cherop Steven , said  the land  is his  and he got it  from  his father  Erifazi  Cheptai, who  got  it from  his father  Chemonges Kamulwa. PW1 was given the land in 2005. He named the neighbours as west- Cheptai, North River Ngenge, and South – a hill. Defendants came on the land in 2012 and cultivated and even chased away  his people. They encroached on 20 acres. Lasto Siwa had land near the suit land but not the land in issue.

PW2- Erifasi Cheptai said he gave land to plaintiff in 2005. He also got it from his father Chemonges Kamulwa who got it in 1918. Lasto Siwa is father  of some  of the defendants and  was  on Petero Cheptegei’s  land, and  has  no land  at  suit lands. He  said  house  thereon  was constructed when  the  case was already  in court  when  Lasto died on 13.12.2015, he was forcefully  buried on the suit land.

PW3- Cheptai John Petero said plaintiff Cherop Steven is his neighbor and they share the boundary. He named neighbours as West – Cheptai Erifasi, South, Tyangana Sadik, North River Kabagirya.

He said Lasto Siwa was a clan brother and it was PW3 who gave him land amounting 12 acres. The defendants in 2012 trespassed beyond the land PW3 gave them into Cherop’s land.

The  house on suit land  was recently constructed. When defendants forcefully  buried Lasto Siwa on the  suit land, he warned  them  about  their  trespass but they  insisted.

PW4- Asadi Mwanga said that plaintiff is a neighbor, and all defendants are close relatives of his. He told court that he and the defendants encroached on plaintiff’s land in 2012. They crossed from their land into Cherop’s land of about 20 acres. The land was given to them by Cheptegei Petero (PW3) and each shared 4 acres.  He also said Lasto Siwa had no land there at the suit land.

He informed court that he had apologized to Cherop and vacated plaintiff’s land.

In defence, defendants called; DW1- Labu Geofrey who said the land in dispute belonged to Siwa/ his   uncle). Lasto Siwa got it   a long time ago while DW1 was still young. The land was vacant when he acquired it.

Lasto gave them the land in 2002 (about 40 acres). He said  the  land of Siwa neighbored that of DW1’s father  Ndiwa Enoch.

He said that there was a dispute of  grabbing  where Lasto Siwa gave  evidence  against  Erifasi Cheptai , and   Cheptai was  defeated  and  was  chased  from  the land.

Cherop entered their land to revenge as a result of that case. They began cultivating it and   Cheptegei Petero arrested  them. Matters  went  to police  which   decided for them , and  it gave  them  security.

DW2- Kurong Alfred said plaintiff is a neighbour on the western side.

He said his father Lasto Siwa gave him the land in 2002. He did not tell them the acreage. Lasto acquired the land with father of PW3 in 1970, and stayed thereon from then.

Plaintiff began claiming the land in 2005 and they reported him to police which   intervened.

DW3- Chemutai Simon said plaintiff is a neighbour. He said  his father  Lasto Siwa  gave  evidence against  plaintiff’s  father  in court . There was connivance between PW3 and plaintiff’s father to grab their land.

DW4- Chekwoti Augustine said he bought land from Asuman Rotir in 2008 at 1,400,000/= it was 2 acres.

Court visited the locus and made observations.

Counsel for appellant argues that the Respondent’s evidence in court showed that they did not know the neighbors to the suit land.

He  claimed that  court ought  to have  found that  6 acres  of land  belonged to Ndiwa  Enoch out of  20 acres .

Apart from  repeating  the evidence  by  defendants as in his  submissions. Counsel  did not  show  the actual  failure  alluded to the  trial Magistrate in   assessment  of evidence. This is because the burden  of proof in civil matters  is on he who  alleges  a fact. (Section 101,102,103 Evidence Act. )  The defendants made several allegations in their   evidence in chief. The plaintiff also made several allegations. The evidence of the plaintiff however was independently corroborated in all material particular. There was evidence of neighbours, the giver of the land, the one who repented of the act of grabbing all contained in evidence of PW1, PW2, PW3 and PW4. At locus there was proof of what PW1 stated (See Judgment).

However each defendant only stated a lone defence, with no proof thereof. That is why the learned trial Magistrate mentioned the  failure  to corroborate  the allegations (e.g  DW4 said  he  bought, but  had no proof. He did not produce the alleged agreement of sale.

Defendants alleged conspiracy to deprive them of this land between PW3 and plaintiffs’ father (PW2). They did not   bring any evidence of such a case in court. They talked of police intervention still did not call any witness to prove these allegations. They  claimed a long  stay on the land since  1970, but  could not bring  a single  Elder , relative, Chief or document  which  roots their  claim on this land save  their own  word of  mouth in court.

In assessing the evidence by the learned trial  Magistrate  all the above evidence was considered by him  as rightly  observed by  counsel for Respondents, the judgment  by the learned trial Magistrate  considered  all evidence and  weighed  it, then  concluded  as it  did.

The court found that the plaintiff had proved the case on the balance of  probabilities. I do find the same way. I do not agree with the appellants under ground 1, of their appeal as alleged. This ground therefore fails.

Ground 2: Given the findings in ground 1 above the learned trial Magistrate was right in the assessment of evidence and committed no misdirections or non directions. Ground 2 also fails.

Ground3: Failing to consider period the defendants spent on the land.

The  complaint  by  appellants  is that defendants acquired land  in 1970 and the  court should have found that the  doctrine  of  adverse possession  came into play.

The Respondents argued that the arguments above did not affect this matter since the respondents claim use from 2005, and  use by   the  defendants  was in  2002.

I notice from the written statement of defence that the defendants did not plead limitation or adverse possession. Secondly  in  the written statement of defence, defendants referred  to the year 2005, just  generally  in  answer to allegations in the plaint, but mention no  other period  in  their  pleadings.

It’s trite law that parties are bound by their pleadings. The reference to the year 1970, only came in evidence and was subject to proof. After trial court was not convinced that defendant’s version was the truth. It believed the plaintiff’s version. The doctrines above were pleaded and court did not error in not considering their effect because they were not relevant to the matters before it.

Alternatively even if one ventured into that exploration, the argument would still fail for reasons as rightly articulated by respondent’s counsel in submissions.

The record shows that defendants entered on the land in 2002 as per DW1 &

DW2, and in 2005 as per DW3. It is  therefore  true that the claim  of  causation  relating  to  adverse possession was broken  by  the year 2005. (See exposition on this doctrine in Afrad Nebbi& Ezrom  Oker  V Alex Manano Ajoba HCC 03 of  2005, which is very  persuasive  on this topic and I do  adopt its arguments.

Basically - “ In  the eye  of the law an owner  of land is deemed to be in possession of the land  so long as there is no  intrusion… the position  is altered  when  another  person  takes  possession of the land and asserts rights over it  and the original  owner omits  or  neglects to take  legal  action against  such  person for years…”

From the facts of this case, the doctrine of adverse possession was therefore not applicable. The learned trial Magistrate was therefore right. This ground also fails.

 Ground 4: Award of General Damages

 This ground is moot and was not argued. General damages are in court’s discretion. Ghard V. Pfzier(1965), NLR 182

See also Kamuntu v. AG CS.38/2016 (Land Division).

The learned trial Magistrate used the discretion and was in his right. The ground fails.

Ground 5: Evidence against weight of evidence

This court found under ground 1 that all evidence was properly weighed. The conclusions by the learned trial Magistrate were not against the weight. This ground fails.

Ground 6: Miscarriage of justice

There was no miscarriage of justice. This ground fails.

The appellant has failed to prove this appeal. It fails on all grounds. It is dismissed with costs to the respondents.

Henry I. Kawesa

JUDGE

25.05.2017