THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA SITTING AT GULU

CIVIL APPEAL No. 0021 OF 2018

(Arising from Patongo Grade One Magistrates Court Civil Suit No. 21 of 2012)

AKULLU HELLEN…………………………………………………………… APPELLANT

ODONG JINO GWORE ……………………………………………………… RESPONDENT

Before: Hon Justice Stephen Mubiru.

JUDGMENT

The respondent sued the appellant for a declaration that he is the rightful owner of land under customary tenure, measuring approximately six acres, situated at Too-Coo village, Patongo Kal Parish, Patongo Town Council, Agago District. The respondent's case was that the land in issue originally belonged to his late father, Olyaka Abenyo, who before his death distributed it between his two sons, the respondent and another, Ogim Martin, now deceased. Following the death of Ogim Martin, the clan on 15^th February, 1992 authorised the respondent to take over his deceased brother's share of the land as well. In 1999 at the height of the L.R.A. insurgency, the appellant migrated and settled on the land and constructed thereon four small grass thatched huts. The respondent allowed her to occupy the land on a temporary basis. When peace was restored in the region, the respondent asked the appellant to vacate the land and return to her place of origin but she refused to vacate. She instead began constructing more grass thatched huts and planting trees, hence the suit.

In her written statement of defence, the appellant refuted the respondent's claim and instead contended that the land in dispute belongs to her. The land was first occupied by the appellant's late grandfather, Karia Awila. Upon his death, it was inherited by the appellant's father Okwilino Odoc. Her mother, Rose Abil, lived with her said father on that land and it is on that land that the appellant was born and raised. She in turn acquired the land from her mother and she enjoyed quiet possession thereof until the respondent began claiming it.

In his testimony as P.W.1, the respondent stated that during the year 1960, his late father had shared the land between him and his late brother, Ogim Martin. He occupied and began cultivation of the part that was given to him. To his surprise, the appellant forcefully entered onto and occupied the land in dispute during the year 2009. She constructed four houses thereon and planted sisal plants demarcating a boundary of the portion she forcefully occupied. The appellant's land is in Aloi where she is married.

P.W.2, Akulu Marailia, the respondent's wife, testified that the land in dispute belongs to the respondent and she used to cultivate it. The appellant had left the I.D.P Camp in the neighbourhood and constructed four grass-thatched houses on that land but she could not remember when this happened. The appellant's land is in Aloi. The appellant's mother's land is at Loyo-layira, it is not the land in dispute. P.W.3, Okidi Karlo, a neighbour sharing a common boundary with the land in dispute testified that since his childhood he had seen the respondent cultivate the land in dispute and otherwise use it as farmland. The appellant moved from her village in Aloi, Patongo sub-county during the Kony insurgency and settled in an I.D.P Camp in the neighbourhood of the land in dispute. During the year 2010, the appellant left the camp and settled on the land in dispute. She began ploughing it and constructed four houses thereon. That marked the close of the respondent's case.

In her defence, the appellant testified as D.W.1 and stated that it is when the I.D.P Camp was disbanded that the respondent began claiming ownership of the land in dispute. The land was first occupied by her late grandfather, Karia Awila as virgin land. Upon his death, it was inherited by her father Okwilino Odoc. Her mother, Rose Abil, lived with her said father on that land and it is on that land that she was born and raised. She in turn acquired the land from her mother and she enjoyed quiet possession thereof until the L.R.A. insurgency. During that insurgency, the respondent had approached her to allow him permit a woman utilise the land and she gave him that permission. The land was to be used by that woman for only four years. When the I.D.P Camp was disbanded, the respondent began harvesting trees growing wild on the land prompting the appellant to immediately reclaim and occupy it. The respondent has never utilised the land apart from that period when he sought permission to hire it out to a woman. The respondent aims to take advantage of the fact that she has no brothers living on the land yet she is married in Aloi, Patongo sub-county to claim that the land does not belong to her and that her land is situated where she was married, and is no longer the land in dispute where she was born.

D.W.2 Akot Marcela, the appellant's brother testified that the land in dispute belongs to the appellant. It originally belonged to their grandfather Karia Awila. She was born on the land in dispute. He occupies part of it and it has never belonged to the respondent. When their father Okwilino Odoc died, he was buried on that land and so was their mother Rosa Labil. D.W.3 Oyat Tarankwilo, the appellant's maternal uncle testified that his sister Rosa Labil's grave and that of her husband are situated on the land in dispute. Both the appellant and D.W.2 have houses on the land in dispute. The appellant and D.W.2 were both born and raised on that land. It is in 1988 when the appellant separated from her husband in Aloi, Patongo sub-county that she returned to her parents' land and constructed huts thereon one of which she occupies.

D.W.4 Otto John Akwinya, the appellant's estranged husband testified that the appellant inherited the land in dispute from her mother Rosa Labil and began using it in 1974 for cultivation. He and the appellant married in 1972, had six children together but separated in 1988 after they discovered that they were related. The respondent has never lived on the land. Both parents of the appellant were buried on that land. The court then inspected the locus in quo and recorded its observations. The appellant showed it a spot where her parent's old homestead once stood but the respondent claimed instead that it was the spot where the house of a one Otto John Onama once stood.

In his judgment, the trial magistrate found that whereas the respondent's evidence and that of his witnesses was consistent, that of the appellant was not since it was wrought with many grave contradictions and inconsistencies. He therefore declared the respondent the rightful owner of the land in dispute, issued a permanent injunction against the appellant, awarded the respondent general damages of shs. 2,000,000/= for trespass to land and the costs of the suit.

Being dissatisfied with the decision, the appellant appealed to this court on the following grounds;

1. The learned trial Magistrate erred in law and fact when he failed to properly evaluate the evidence on record regarding ownership of the suit land, thereby arriving at a wrong conclusion.
2. The learned trial Magistrate misdirected himself when he evaluated the evidence of the respondent without considering the appellant's evidence.
3. The learned trial magistrate erred in law and fact when he denied the appellant legal representation during her defence thereby prejudicing the appellant's case.
4. The learned trial magistrate erred in law and fact when he ignored major contradictions in the respondent's evidence thereby arriving at a wrong conclusion thus causing a miscarriage of justice.

None of the parties filed written submissions as directed by court. Nevertheless, this being a first appeal, this court is under an obligation to re-hear the case by subjecting the evidence presented to the trial court to a fresh and exhaustive scrutiny and re-appraisal before coming to its own conclusion (see in Father Nanensio Begumisa and three Others v. Eric Tiberaga SCCA 17of 2000; [2004] KALR 236). In a case of conflicting evidence this court has to make due allowance for the fact that it has neither seen nor heard the witnesses, it must weigh the conflicting evidence and draw its own inference and conclusions.

Grounds 1, 2 and 4 relate to the manner in which the trial magistrate evaluated the evidence. An appellate court may interfere with a finding of fact if the trial court is shown to have overlooked any material feature in the evidence of a witness or if the balance of probabilities as to the credibility of the witness is inclined against the opinion of the trial court. In particular this court is not bound necessarily to follow the trial magistrate’s findings of fact if it appears either that he or she has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on demeanour of a witness is inconsistent with the evidence in the case generally. The pertinent aspect of the judgment reads as follows;

Considering the propensity (sic) of the matter before the court, I find that the plaintiff's evidence [is] consistent and unshaken by cross-examination for example, all witnesses maintained their assertions and credence as stated by the plaintiff, while that of the defendant is brought with unexplained contradictions and inconsistencies on material aspects like how they got to live on the suit land unlawfully, year of construction, which inconsistencies are so grave. I am inclined to believe the plaintiff's evidence and I accordingly hold issues one and two in the affirmative for the plaintiff as he has clearly and affirmatively demonstrated his case, making him the owner of the suit land and the defendant a trespasser or her interests are farfetched under customary tenure system of land holding.

It is trite that there is no particular format required in the evaluation of evidence. The task may be carried out in different ways depending on the circumstances of each case since judgment writing is a matter of style by individual judicial officers. A Judgment will be valid once it is the court’s final determination of the rights and obligations of the parties based on the evidence adduced and gives reasons or grounds for the decision (see British American Tobacco (U) Ltd v. Mwijakubi and four others, S.C. Civil Appeal No. 1 of 2012; Bahemuka Patrick and another v. Uganda S.C. Criminal Appeal No. 1 of 1999 and Tumwine Enock v. Uganda S.C. Criminal Appeal No. 11 of 2004).

However, Evaluation of evidence is an exercise involving its interpretation and the assessment of its quality. It involves a determination of which forms of evidence are more reliable than others (be it direct or indirect evidence, weighing the value of particular pieces of evidence against each other), interpreting the evidence in a reliable manner (each piece of evidence is considered as one piece of some larger puzzle or theory. It is the court's responsibility to determine what puzzle or theory it belongs to, how it fits into that puzzle or theory, what portion of the reality puzzle it represents, and what insight it reveals); and drawing sound conclusions from the evidence (since correct reasoning based on incorrect evidence is likely to result in incorrect conclusions). The court determines the credibility of the witnesses, weighs a witness's testimony, and resolves any inconsistencies in the testimony and contradictions in the body of evidence as a whole.

When undertaking that task, the court should be mindful of the standard of proof which Lord Nicholls In re H (Minors) [1996] AC 563 at 586, explained is a flexible test:

The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. ....... this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established.

Allowing the civil standard to be applied flexibly has not meant that the degree of probability required to meet this standard changes in serious cases. Rather, the civil standard is flexibly applied because it accommodates serious allegations through the natural tendency to require stronger evidence before being satisfied to the balance of probabilities standard. So, where civil proceedings involve particularly grave matters, the court may require stronger evidence before it is satisfied the civil standard has been reached, for example cases concerning fraud (see Briginshaw v. Briginshaw (1938) 60 C.L.R. 336 at 362). The difference between succeeding on the balance of probabilities and failing on the balance of probabilities was stated by Lord Denning J in Miller v. Minister of Pensions [1947] 2 All ER 372 thus: "If the evidence is such that the tribunal can say "we think it more probable than not" the burden is discharged, but if the probabilities are equal it is not."

The only practical way in which to reach a factual conclusion in a civil case is to decide whether it is more likely than not that the event occurred (see Lord Hoffman explained in, In re B (Children) (FC) [2008] UKHL 35). The credibility of individual witnesses and the probability or improbability of what they say should not be regarded as separate enquiries to be considered piecemeal. They are part of a single investigation into the acceptability or otherwise of the plaintiff’s or the defendant's version. The version presented by the plaintiff to substantiate the allegations in the plaint, must be found on the whole to be more probable or likely than that of the defendant if court is to decide in favour of the plaintiff. The process of reasoning includes consideration of various hypotheses which are open on the evidence and in civil cases the selection from them, by balancing probabilities, of that hypothesis which seems to be the most natural and plausible, in the sense of acceptable, credible or suitable (see Bates and Lloyd Aviation (Pty) Ltd and Another v. Aviation Insurance Co (1985) 3 SA 916 (A)

The question as to whether the plaintiff has discharged the burden of proof on a balance of probabilities depends not on a mechanical quantitative balancing out of the pans of the scale of probabilities but, firstly, on a qualitative assessment of the truth and / or inherent probabilities of the evidence of the witnesses and, secondly, an ascertainment of which of two versions is the more probable. The enquiry is two-fold: there has to be a finding on credibility of the witnesses; and there has to be balancing of the probabilities.

The version presented by the appellant was to the effect that the land was first occupied by her late grandfather, Karia Awila as virgin land. Upon his death, it was inherited by her father Okwilino Odoc. Her mother, Rose Abil, lived with her said father on that land and it is on that land that she was born and raised. She in turn acquired the land from her mother and she enjoyed quiet possession thereof until the L.R.A. insurgency. During that insurgency, the respondent had approached her to allow him permit a woman utilise the land and she gave him that permission. The land was to be used by that woman for only four years. When the I.D.P Camp was disbanded, the respondent began harvesting trees growing wild on the land prompting the appellant to immediately reclaim and occupy it. The appellant and D.W.2 were both born and raised on that land. It is in 1988 when the appellant separated from her husband in Aloi, Patongo sub-county that she returned to her parents' land and constructed huts thereon one of which she occupies.

The version presented by the respondent was to the effect that the land in dispute was given by their father to his late brother Ogim Martin. Following the death of Ogim Martin, the clan on 15^th February, 1992 authorised the respondent to take over his deceased brother's share of the land as well. In 1999 at the height of the L.R.A. insurgency, the appellant migrated and settled on the land and constructed thereon four small grass thatched huts. The respondent allowed her to occupy the land on a temporary basis. When peace was restored in the region, the respondent asked the appellant to vacate the land and return to her place of origin but she refused to vacate. She instead began constructing more grass thatched huts and planting trees.

As regards assessment of credibility of the witnesses, inherent probabilities and / or truth, the court’s finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. This finding will, in turn, depend on a variety of subsidiary factors, such as;- the witness’ candour and demeanour in the witness-box; his or her bias, latent and blatant; internal contradictions in his or her evidence; external contradictions with what was pleaded or put on his or her behalf, or with established fact or with his or her own extra-curial statements or actions; the probability or improbability of particular aspects of his or her version; and the calibre and cogency of his or her performance compared to that of other witnesses testifying about the same incident or events. The inherent probability or improbability of the story told by a witness may be used as an aid in judging the truthfulness of his or her testimony. Inherent improbability may render the evidence less credible.

Trial Courts have on many occasions been cautioned against attaching undue weight to witnesses' demeanour, an assessment of credibility goes much further. It involves not only an assessment of how witnesses fared especially under cross-examination but also the probabilities pertaining to the particular dispute. A witness’ reliability will depend, apart from some of the factors above, on;- the opportunities he or she had to experience or observe the event in question, and the quality, integrity and independence of his or her recall thereof. Nevertheless, in his judgment, the trial magistrate appears to have attached unjustified importance to the aspect of demeanour under cross-examination. This is evident in his comment that "by cross-examination for example, all witnesses maintained their assertions and credence as stated by the plaintiff..." without alluding to other relevant considerations.

As regards external contradictions with what was pleaded or put on his or her behalf, or with established fact or with his or her own extra-curial statements or actions, it is noteworthy that although the respondent claimed in his testimony that he took possession of the land in dispute, which originally belonged to his brother, only after 15^th February, 1992 when the clan authorised him to take over his deceased brother's share of the land, P.W.3, Okidi Karlo (aged 46 years at the time he testified), a neighbour sharing a common boundary with the land in dispute testified that since his childhood, he had seen the respondent cultivate the land in dispute and otherwise use it as farmland. This contradiction was not dealt with by the trial court. Instead, the court made a sweeping statements about contradictions that exist in the appellant's version. I have scoured the evidence as a whole but have failed to find any aspect that supports the trial court's finding that ".....while that of the defendant is brought with unexplained contradictions and inconsistencies on material aspects like how they got to live on the suit land unlawfully, year of construction, which inconsistencies are so grave."

As regards ascertainment of which of two versions is the more probable, the probability or improbability of particular aspects of either version, an analysis and evaluation of the probabilities and improbabilities of each party’s version on each of the disputed issues are necessary components in coming to a conclusion. It is trite that the more a version seems removed from common experience the less plausible it will be. Plausibility is context-specific and dependent upon judicial experience and common sense, by the court drawing on outside knowledge in determining whether the particular facts alleged attract belief above the speculative level. Application of judicial experience requires the court to reject factual allegations where the court has a better understanding of the way the world is in the nature of human affairs, knowledge of everyday affairs. If an hypothesis put forward to account for the proved facts is in itself extremely improbable, the court may reject such hypothesis in the absence of any evidence supporting it. When the law requires proof of any fact, the court must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality (see Wigmore on Evidence (2^nd ed. 1923) v, s. 2498).

In judging the validity of hypotheses or conclusions from observation, the scientific method relies upon the Principle of Parsimony, also known as Occam’s Razor, a principle from philosophy, which states that all things being equal, the simplest explanation of a phenomenon that requires the fewest assumptions is the preferred explanation until it can be disproved. When there exists two explanations for an occurrence, the simpler one is usually better. Another way of saying it is that the more assumptions one has to make, the more unlikely an explanation.  All that is necessary is that according to the course of common experience the more probable  occurrence from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the plaintiff's version is true. By more probable is meant no more than that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood. Occam’s Razor has special suitability in cases where there is genuine doubt about the correct version, in that it fosters simplicity in arriving at reasonable explanations of ambiguous events. It is however a device to be used after a careful and proper weighing of the evidence.

From the perspective of determination of which of the two versions is the more probable according to the course of common experience, whereas the respondent claimed to have acquired rights in the land by some form of inheritance of what belonged to his late brother, Ogim Martin, the appellant claimed similarly by inheritance of what belonged to her late mother, Rose Abil. It emerges that both lay claim from some form of inheritance. The respondent attributed the presence of the appellant on the land to his having given her permission around 1992 whereas the appellant attributed it to her return from her failed marriage 

According to section 56 (1) (j) of The Evidence Act, a court may take judicial notice of the commencement, continuance and termination of hostilities between the Government and any other State or body of persons. In such cases, the court may resort for its aid to appropriate books or documents of reference. By virtue of that provision, this court takes judicial notice of the fact that from the middle of the year 2004 onwards, rebel activity dropped markedly in the entire Northern Region of Uganda, and in mid-September, 2005, a band of the active remnants of Lord's Resistance Army fighters, led by Vincent Otti, crossed into the Democratic Republic of Congo. Thereafter, a series of meetings were held in Juba starting in July, 2006 between the government of Uganda and the LRA (see Wikipedia, "Lord's Resistance Army insurgency" at https://en.wikipedia.org/wiki/Lord%27s_Resistance_Army_insurgency, visited 18^th September, 2018). The implication is that in 2006, northern Uganda was nearing the end of the brutal Lord’s Resistance Army insurgency (see IRIN, "How the LRA still haunts northern Uganda," at http://www.irinnews.org/analysis/2016/02/17/how-lra-still-haunts-norther..., visited 18^th September, 2018).

I find this to be consistent with the respondent's version that he asked the appellant to vacate the land during the year 2007, after the disbanding of the I.D.P Camps at the end of the Lord's Resistance Army insurgency. His explanation though that she only settled on the land during the insurgency is diametrically opposed to the appellant's version that she was born on this land and only left it when she married in 1972, but returned to the land in 1988 following her failed marriage to D.W.4 Otto john Akwiya in Aloi, Patongo sub-county. According to D.W.4, the appellant's father died before D.W.4 married the appellant, and he was buried on this land. In addition, P.W.3, Okidi Karlo, testified that the appellant moved from her village in Aloi, Patongo sub-county during the Kony insurgency and settled in an I.D.P Camp in the neighbourhood of the land in dispute. That it is during the year 2010, when the appellant left the camp and settled on the land in dispute. It is not in doubt though that the suit was filed in 2012, more or less five years after the disbanding of the camp. The respondent's version rested on the assumption that even before the camp was disbanded, the appellant required land outside the camp, for construction of a dwelling. When there exists two explanations for an occurrence, the simpler one, with no or fewer assumptions, is usually better. The simpler one is that of the appellant, returning from a failed marriage, not a person in a camp constructing houses outside it.

Whereas the respondent claimed to have acquired this land in 1992 following the death of his brother, it is only the appellant's relatives, including D.W.2, who have houses on the land in dispute. Since the respondent did not in his evidence explain the presence of  D.W.2 on the land, this lends credence to the appellant's version that she and D.W.2 were both born and raised on that land. It further lends credence to her claim that it is in 1988 when she separated from her husband in Aloi, Patongo sub-county that she returned to her parents' land and constructed huts thereon, one of which she occupies. No wonder in his testimony, P.W.2, Akuru Maracilia, testified that "her land is not the suit land; her land is in Anyena Lokole.." That the dispute springs from a belief that her claim to ownership of land lies with her marital home, and not her maternal home, is a plausible hypothesis for this conflict. I therefore find that the evidence establishes conflicting versions, with that of the appellant slightly more plausible or of equal degrees of probability, regarding the circumstances in which the appellant came to occupy the land. It is no wonder that the trial court resorted to sweeping statements to back up its decision.

That notwithstanding, our law of evidence depends on allocation of the burden of proof. The party who bears the burden must produce evidence to satisfy it, or his or her case is lost. The probabilities must be high enough to warrant a definite inference that the allegations are true. In a civil suit, when the evidence establishes conflicting versions of equal degrees of probability, where the probabilities are equal so that the choice between them is a mere matter of conjecture, the burden of proof is not discharged (see Richard Evans and Co. Ltd v. Astley, [19U] A.C. 674 at 687). The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the trier of fact may reasonably be satisfied (see Bradshaw v. McEwans Pty Ltd, (1959) I0I C.L.R. 298 at 305). The law does not authorise court to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others.

Having re-evaluated the evidence, I find that had the trial court properly directed itself, it would not have come to the conclusion that it did. Belief in the respondent's version as the more probable hypothesis may have been driven by desire, emotion, faith, or conjecture but not a proper evaluation of the evidence. That being the case, it is trite that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against the entire world but the rightful owner. The respondent failed to prove a better claim to this land on the balance of probabilities, yet the appellant enjoyed possession of the land. The first ground of appeal therefore succeeds.

In the final result, the trial court came to the wrong conclusion when it decided in the respondent's favour. That being the case, I find merit in the appeal and it is accordingly allowed with orders that the judgment of the court below be set aside and it is hereby set aside. In its place, judgment is entered for the appellant against the respondent in the following terms;

1. a declaration that the land in dispute belongs to the appellant.
2. An order of vacant possession.
3. A permanent injunction restraining the respondent, his servants, agents and persons claiming under him from any acts of trespass on the appellant's land.
4. The costs of the appeal and of the suit.

Dated at Gulu this 20^th day of September, 2018                    …………………………………..

                                                                                                Stephen Mubiru

                                                                                                Judge,

                                                                                                20^th September, 2018.