Wakilii

Kutambaki v Byaruhanga (Civil Appeal No. 65 of 2012)

Court of Appeal · [2019] UGCA 357 · 2019 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second appeal from the High Court (sitting on first appeal) in a land trespass suit originating in the Magistrate's Court
Decision
Appeal dismissed; the judgment of the High Court decreeing the disputed land to the respondent affirmed

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Holding

On a second appeal in a land trespass dispute, the Court of Appeal held that where a trial court relies significantly on locus in quo proceedings not conducted in accordance with the prescribed procedure, the defect is fatal to the judgment but not necessarily to the whole trial. A re-trial is not automatic; an appellate court should determine the matter on the existing record where this can be done without a miscarriage of justice. As the first appellate judge had reached the correct conclusion that the disputed land belonged to the respondent without relying on the flawed locus proceedings, no miscarriage of justice arose and a re-trial was unnecessary. The appeal was dismissed with costs.

Facts

The respondent sued his uncle (the appellant) in the Magistrate's Court at Kyenjojo for trespass, claiming approximately five acres he had inherited from his late father, who died in 1978. The appellant contended he had jointly bought and divided the land with his brother, the respondent's father. The will of the late Alifunsi Nsiisi stated the appellant should not cross the road to disturb the children. The trial magistrate visited the locus in quo but failed to draw a sketch plan or record his observations, and gave judgment for the appellant. On first appeal, the High Court re-evaluated the evidence, found the appellant's witnesses discredited (notably regarding an aborted sale to Bamanya which the clan forced the appellant to rescind), determined the boundary was the road to Mpunda, and decreed the land to the respondent. The appellant died and was represented by James Agaba. On second appeal he abandoned all grounds except a complaint that the High Court should have ordered a re-trial given the defective locus proceedings.

Issues

  1. Whether the first appellate judge erred in law by failing to order a re-trial after finding that the trial court had relied on locus in quo proceedings that were not properly recorded.
  2. Whether the first appellate court could fairly determine the dispute on the evidence on record without a re-trial.
  3. Whether an appellant may, for the first time on a second appeal, seek an order for a re-trial that was never prayed for in the court below.

Orders

  • Appeal dismissed.
  • Costs of the appeal awarded to the respondent here and in the court below.

Key headnotes

Land Disputes — Locus in Quo — Effect of Failure to Record Proceedings
Where a trial court relies in its judgment significantly or largely on proceedings at the locus in quo that were not conducted in accordance with the prescribed procedure or not properly recorded, that defect is fatal to the judgment but not necessarily to the whole trial.
Re-trials — When an Order for Re-trial is Appropriate
A re-trial should be ordered only where it is in the interests of justice, that is where a miscarriage of justice would otherwise occur; where on a review of the evidence on record a matter can be fairly determined, the appellate court should conclude the litigation rather than prolong it.
Locus in Quo — Prescribed Procedure under Practice Direction No.1 of 2007
On visiting a locus in quo in a land dispute, the court must ensure all parties, witnesses and advocates are present, allow evidence and cross-examination, record all proceedings, and record any observation including a sketch plan where necessary.
Second Appeals — Scope of Appellate Review
On a second appeal only questions of law may be raised under sections 72 and 74 of the Civil Procedure Act, and the second appellate court is not required to re-evaluate the evidence unless the first appellate court failed to do so.
Re-trials — Raising a Remedy Not Sought Below
A court is not bound to grant a remedy that no party prayed for, and an appellant who never sought a re-trial in the court below may not raise that prayer for the first time on a second appeal.

Legislation cited (3)

  • Civil Procedure Act s.72
  • Civil Procedure Act s.74
  • Practice Direction No.1 of 2007

Cases cited (6)

  • Yowasi Kabiguruka v Samuel Byarufu [2010] UGCA 7
  • Yeseri Waibi v Edisa Lusi Byandala [1982] HCB 28
  • Mukasa v Uganda [1964] EA 698
  • Vincent Ntambi v Uganda (Criminal Appeal No. 78 of 2012)
  • J.W. Ononge v Okallang [1986] HCB 63
  • Badiru Kabalega v Sepiriano Mugangu (Civil Appeal No. 7 of 1987)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.