LDC

LEGAL ALERTS
Legal Alerts

Osele Yusuf & Others vs. Oruni

Odwar John & Others

Civil Appeal No. 0090 of 2023

(Arising from Katakwi Land Suit No.
006 of 2018)
Judgment on Appeal was
delivered by Hon. Justice Dr Henry
Peter Adonyo on 10th July 2024.

Key Highlights

In this case, the issue of hearsay evidence was emphasized when the appellants argued
that the trial magistrate had improperly relied on uncorroborated hearsay testimonies to
decree the land to the respondents. Hon. Justice Dr Henry Peter Adonyo was of the view
that history tracing and telling where the original narrator of the story is dead, in the
context of customary land as recognized in commonwealth jurisdictions such as Canada, is
indeed an exception to the hearsay rule. This is because it is the only best evidence
available, adhering to the principled approach to the hearsay rule. Both necessity and
trustworthiness are determined by common sense and experience by the trial courts,
especially when the events referred to must have occurred "before living memory."

Accordingly, the trial magistrate was found to have rightly accepted and found the
respondents' testimonies as credible and reliable in establishing their ownership of the suit
land. The respondents' clear and unshaken oral evidence, despite the recounter being
deceased, provided sufficient reliability. The trial court juxtaposed this oral evidence with
its findings during the locus in quo, arriving at a logical decision. Thus, the appellate court
upheld the trial magistrate's decision, noting that the ground claiming the magistrate had
erred in relying on uncorroborated hearsay evidence was unwarranted.
 Page 02
LDC Legal Alerts

Facts & Background:

The case stems from a land dispute over a 2.25 square mile piece of land located in
Ngariam village, Katakwi District. The respondents claimed ownership based on
inheritance from their ancestor, Oruni Yona, who acquired the land through a
combination of family grants and clearing idle land for settlement. This land has been
in the respondents' family since the 1920s, with documented historical ties and
boundaries respected by the local community, despite occasional displacement due
to insurgencies. The appellants, on the other hand, contested these claims, asserting
that their ancestor Iddi Isadat had hosted Oruni Yona temporarily and that the land in
question had always belonged to their family. The Chief Magistrate's Court initially
ruled in favor of the respondents, declaring them rightful owners and issuing a
permanent injunction against the appellants. The court also awarded general
damages and costs to the respondents. Dissatisfied with the decision, the appellants
brought the case to the High Court on grounds that included improper evaluation of
evidence, unjustified damages, and reliance on hearsay.

Determination & Analysis::

The appellate court reviewed the grounds for the appeal against the trial magistrate's
decision. The appellants argued that the trial magistrate erred in law and fact by
failing to properly evaluate the evidence, resulting in an erroneous decision that the
plaint disclosed a cause of action against them. They contended that the 3rd to 7th
appellants had no interest in the suit land and were merely acting as local leaders
during the demarcation process, and that no objections were raised before the
demarcation.

However, the respondents argued that the trial magistrate correctly evaluated the
evidence and cited relevant legal tests, such as in Auto Garage & Others v Motokov
(1971) EA 514 and Tororo Cement Co. Ltd v Frokina International Ltd (2001) 1 EA 32,
demonstrating that the plaint did disclose a cause of action against the appellants.
The court agreed with the trial magistrate's findings, determining that the evidence
and annexures supported the respondents' claims of trespass and that the trial
magistrate had not erred in her decision. The appellants also challenged the award of
general damages and costs, asserting that there was no justification for these awards
and that not all respondents deserved costs. The court found that the respondents'
right to the land had been violated, and the trial magistrate's award of general
damages was appropriate given the circumstances.
LDC Legal Alerts Page 03

The court dismissed the appellants' claim that the damages were unjustified, noting
that trespass is actionable per se, and the respondents' long-term possession of the
land corroborated their testimonies. However, the court agreed that the 3rd
respondent, whose land was not in contention, should not have been awarded costs.
The court concluded that the award of general damages was warranted based on the
evidence of trespass and the respondents' established rights to the land.

Furthermore, the appellants argued that the trial magistrate relied on uncorroborated
hearsay evidence to decree the land to the respondents. She ruled that the historical
narrative provided by the respondents was consistent and detailed enough to
establish their late father's ownership and subsequent inheritance by the
respondents. The court found the respondents' testimonies regarding the historical
acquisition of the land by their late father, Yona Oruni, to be necessary and reliable,
dismissing the hearsay claims.

Hon. Justice Dr Henry Peter Adonyo was of the view that history tracing and telling
where the original narrator of the story is dead, in the context of customary land as
recognized in commonwealth jurisdictions such as Canada, is indeed an exception
to the hearsay rule. This is because it is the only best evidence available, adhering to
the principled approach to the hearsay rule. Both necessity and trustworthiness are
determined by common sense and experience by the trial courts, especially when
the events referred to must have occurred "before living memory."

Accordingly, the trial magistrate was found to have rightly accepted and found the
respondents' testimonies as credible and reliable in establishing their ownership of
the suit land. The respondents' clear and unshaken oral evidence, despite the
recounter being deceased, provided sufficient reliability. The court affirmed that the
trial magistrate had not erred in law or fact, maintaining that the respondents had
sufficiently proven their case through credible evidence.

Consequently, the appellate court upheld the trial magistrate's decision while partially
addressing the appellants' concerns regarding costs, thereby confirming the
respondents' ownership of the suit land and the appropriateness of the awarded
damages.

Represantation:

The appellants were represented by M/S Nangulu & Mugoda Advocates while the 15
respondents were represented by M/S Okurut-Magara Associated Advocates.
 Listen to the audio
VERSION OF TODAY'S ALERT

Ckick here to Ckick here to Ckick here to

listen to the listen to the listen to the
Swahili Audio English Audio Luganda Audio
Summary Summary Summary
(COMING SOON)

NB
To access today's Legal Alert
audio summary in a specific
language, simply click on the
corresponding language icon.

Prepared by the Department of Law Reporting, Research

and Law Reform at the Law Development Centre

Law Development Centre

Follow Us

www.ldc.ac.ug