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REASONS FOR JUDGMENT
On April 10, 2003 we dismissed the appeal made by the Defendant-Appellant (hereinafter referred to simply as the Appellant) and we supported and affirmed the decision of the trial court judge but the reasons for the decision were deferred. These reasons are now given hereunder.
On the grounds of appeal the Appellant said:
(i) That the evidence of the Surveyor who had been appointed by the court was not adequately considered.
(ii) That the Appellant’s documents and oral evidence were also not adequately considered, and
(iii) The finding that the Appellant was liable to the Respondent in damages was wrong.
It will, at this stage be necessary to state the facts of the case which emerged from the record and which the trial learned judge accepted and used for her decision.
The Respondent who had acquired the property in dispute in or about 1988 had built premises on a large portion of it, walled 3 out of 4 parts of the plot and was living in the premises.
He had reserved the unwalled 4th part for future development. He tendered in evidence various documents of title including Exhibit “J”, LAND CERTIFICATE.
In his testimony supported by the testimonies of P.W.1 and ‘2’. The trial judge found that the Respondent has been able to establish and prove title.
We are in complete agreement with this finding. The Appellant on the other hand tendered certain documents, but these were found not related directly to the land in dispute.
Further she was neither in possession nor had she been able to prove title.
It is true that from the testimony of the Surveyor (C.W. 1) there were minor discrepancies noted and found with the original plans of the litigants but C.W. 1 was able to explain to the satisfaction of the court below how these minor discrepancies occurred. In conclusion, however it was found, and we agree with the finding that the land in dispute between the parties is basically one and the same piece of land.
It was at the stage where the appellant started to develop the disputed land that the Respondent in possession resisted and after the parties had gone on unnecessary voyages through the police, the military and some elders, and had found no solution to their problem that the Respondent in possession sued the Appellant.
The question to be answered here is simply this:
Where as in the present case two parties are each claiming for the same piece of land which they claim to have acquired from different vendors who wins the land