Appeal No.53 Of 2017; Judgment Entered into on 7th February 2019 By Justice Stephen Mubiru
Hon. Justice Stephen Mubiru while deciding this appeal discussed an important principle in our legal system; that there cannot be a “draw” in litigation; court must make a finding in favor of one of the parties, against the other. “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” (see Miller v. Minister of Pensions  2 All ER 372). When left in doubt, the party with the burden of showing that something took place will not have satisfied the court that it did. In addition, Justice Stephen Mubiru stated that evidence has to be clearly and carefully evaluated in relation to the law, thus a good judgment has to take into consideration the law, the facts available and the evidence adduced.
The respondent in the trial court sued the appellants jointly and severally for a declaration that he is the rightful owner of the land that was apparently bequeathed to him under the will of his late grandfather Odwar Kasiano on 28thApril 1994. He had physical possession of the land until 2012 when the 1stappellant joined him on the land and was later joined by the 2ndappellant in 2013. The appellants refuted the claim and contended that the land does not form part of the estate. The appellants on the other hand inherited the land from their great grandfathers; Okello Lobule, Onyimu, and Odwar Kassiano and have always been living on that land save that period during which the first appellant was abducted by the LRA rebels but he later returned onto the land.
The trial magistrate had declared both parties as the rightful owners however on appeal, and upon evaluating the evidence, Justice Stephen Mubiru set aside the judgment.
The major contention was whether the respondent rightfully inherited the land. Although he pleaded that he had acquired the land under a will, the respondent instead placed reliance on a grant of letters of administration which was never submitted in evidence. Further the customary law under which the respondent acquired the land is neither documented nor of such notoriety as would have justified the trial court to take judicial notice of. He therefore had the onus of adducing evidence of the customary procedures, practices and rules by virtue of which he is recognized as the lawful proprietor of the land, or compliance with the legal process of acquisition of a grant of letters of administration. He did not prove either. There was also no proof that the respondent was related to the deceased.