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Asaba Jaiden v Tegras Byeitima and Others (Civil Appeal No. 21 of 2014)

Court of Appeal · [2023] UGCA 4 · 2023 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
First appeal from the High Court dismissal of a civil suit for trespass to customary land
Decision
Appeal allowed and High Court decision set aside; orders to abide the outcome of related Civil Appeal No. 19 of 2022

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Holding

The Court of Appeal overruled a preliminary objection that the appeal was defective for want of an extracted decree, holding that Rule 87(1) of the Judicature (Court of Appeal Rules) Directions does not list a decree among the required contents of a record of appeal. On the merits, the Court found that the trial judge decided the suit on the basis of a District Land Surveyor's report without hearing the parties' evidence, and that the report was improperly admitted because the surveyor never testified or tendered it under Order 14 of the Civil Procedure Rules. This denied the appellant a fair hearing under Articles 28 and 44 of the Constitution. The appeal was allowed and the High Court decision set aside.

Facts

The appellant sued the first and second respondents in the High Court at Masindi for trespass, alleging they forcibly ploughed his gardens and evicted him from his customary land. The respondents pleaded that the first respondent had purchased the land, including the suit land, from Rajab Rugadya, and had surveyed it and obtained a certificate of title. The court ordered the District Staff Surveyor to open the boundaries. The survey report suggested the first respondent had surveyed more than was purchased. The appellant was added Rugadya as co-defendant but was refused leave to amend to seek cancellation of title for fraud, being advised to file a separate suit. When the appellant testified as PW1, proceedings stalled over service on the newly added third respondent. After adjournments, the trial judge ordered the parties to submit on the surveyor's report and dismissed the suit on that basis, without taking the appellant's evidence or formally admitting the report.

Issues

  1. Whether the appellant's record of appeal was defective for failure to extract a decree under Rule 87(1) of the Judicature (Court of Appeal Rules) Directions.
  2. Whether the appellant was accorded a proper hearing by the trial judge.
  3. Whether the trial judge improperly relied on the District Land Surveyor's report that was not admitted in evidence.

Orders

  • Preliminary objection overruled.
  • The decision and orders of the High Court in H.C.C.S No. 024 of 2010 set aside.
  • Appeal allowed.
  • The orders of the Court shall abide the findings in Civil Appeal No. 19 of 2022 (Tegras Byeitima and Another v Asaba Jaiden).

Key headnotes

Civil Procedure — Record of Appeal — Whether extraction of a decree is a required content under Rule 87(1)
A decree is not among the documents required to form part of a record of appeal under Rule 87(1) of the Judicature (Court of Appeal Rules) Directions, and failure to extract one does not render the record of appeal defective.
Constitutional Law — Right to Fair Hearing — Determination of suit without taking party's evidence
Deciding a suit solely on submissions regarding a surveyor's report, without affording a party the opportunity to call witnesses and present evidence, violates the right to a fair hearing under Articles 28 and 44 of the Constitution.
Evidence — Admissibility — Surveyor's report not tendered by its maker
A court-ordered survey report is improperly admitted where the surveyor who prepared it is not called to testify and tender it under Order 14 of the Civil Procedure Rules; a judgment based on such an unproven report is defective.
Civil Procedure — Preliminary Objection — Nature and requirements
A preliminary objection consists of a point of law pleaded or arising by clear implication from the pleadings which, if argued, may dispose of the suit.

Legislation cited (6)

  • Constitution of Uganda 1995 Article 28
  • Constitution of Uganda 1995 Article 44
  • Constitution of Uganda 1995 Article 126(2)(e)
  • Judicature (Court of Appeal Rules) Directions Rule 30
  • Judicature (Court of Appeal Rules) Directions Rule 87(1)
  • Civil Procedure Rules Order 14

Cases cited (5)

  • Kampala District Land Board and Another v Vanasio Bamweyaka and 5 Others (Civil Appeal No. 16 of 2002)
  • Executrix of the Estate of the Late Christine Mary Namatovu Tebaifuukira and Another v Noel Grace Shalita Stananzi (Civil Application No. 08 of 1988)
  • Pandya v R [1954] EA 336
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd [1969] EA 696
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.