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Court discusses ground for appeal

In the case of Sukuton Ali V Augustine Kapkwonyongo & others Civil Appeal No. 117 of 2012.

In a judgement delivered by Hon. Justice Night Percy Tuhaise on the 20thDecember 2019.

This was a second appeal from the judgment of H/W Gimugu K G1 Magistrate of Kapchorwa Magistrates Court.

The Appellant filed a suit in magistrate’s court against the Respondents seeking vacant possession of land measuring two acres, permanent injunction and damages for trespass to land.  The Appellant maintained that his father had allocated the land to him in 1981 and he has been in possession of the same. The respondents denied all the Appellant’s claims and claimed the land belongs to them who have been in effective occupation of the suit land.

The trial magistrate dismissed the case with costs to the 1stRespondent. The Appellant appealed but was dismissed by the High Court Mbale. The Appellant further appealed to the Court of Appeal. In resolving the issue of the whether the trial court occasioned a miscarriage of justice.

The record showed that the decision was based on the finding that the Appellant failed to prove his case on the balance of probabilities.

The evidence of the respondents’ witnesses was consistent and was supported by the trial courts findings at the locus visit as opposed to the Appellant’s evidence which was full of contradictions. The inconsistences were fundamental and go to the gist of the case and could not be ignored. They relate to the main issue of allocation of the suit land. The Appellant also adduced no concrete evidence, documentary or otherwise to prove the allegations that the land was given to him by his late father.

Court noted that it is trite law that where findings have been made by the trial court and affirmed by the 1stappellate court, the 2ndappellate court must be careful not to interfere with those findings unless the court is satisfied that they were devoid of support in evidence on record or that they are so glaring erroneous that the findings by trial court were perverse. The Hon Justice accordingly dismissed the appeal.