Wakilii

Bithum v Adonge (Civil Appeal No. 260 of 2019)

Court of Appeal · [2023] UGCA 83 · 2023 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second appeal from a High Court decision on first appeal from the Chief Magistrate's Court in a land dispute
Decision
Appeal dismissed; decision of the High Court affirmed

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Cited — treatment unverified cited in 1 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions — always read the source judgment before relying on it.

Holding

On a second appeal in a customary land dispute, the Court of Appeal held that Order 43 rule 10 of the Civil Procedure Rules imposes no obligation on a court to produce a typed and certified record of proceedings; the first appellate judge was entitled to proceed on an original legible manuscript obtained from a hard-to-reach magistrate's court. The Court also affirmed that proceedings of a Local Council II court that lacked jurisdiction over the land dispute were a nullity, so the suit was not res judicata. Both grounds failed and the appeal was dismissed with costs in the Court of Appeal and the courts below.

Facts

The dispute concerned a customary piece of land at Ocolini village, Buntu Parish, Oluko Sub-County, Arua District. The appellant claimed to have inherited the land, together with his siblings, from his late father Quirino Opio, who died in 2002. The respondent, as administrator of the estate of her late uncle Silvano Wayi, contended the land formed part of his estate, he having settled and cultivated it under customary tenure since 1932, and that the appellant trespassed and forced the deceased's family off the land. The respondent's claim was filed before the Arua District Land Tribunal, transferred to the Arua Chief Magistrate's Court as Civil Suit No. 005 of 2006. The appellant appealed to the High Court (Civil Appeal No. 020 of 2015), where the appeal was heard on an original manuscript record after the typed certified record could not be procured promptly from the remote trial court. The High Court dismissed the appeal, after which the appellant brought this second appeal.

Issues

  1. Whether the first appellate judge erred in determining the appeal without a typed and certified record of proceedings and judgment from the trial court.
  2. Whether the suit land was res judicata.

Orders

  • Appeal dismissed with costs in this court and in the courts below.

Key headnotes

Civil Procedure — Record of Proceedings on Appeal — No Requirement for Typed or Certified Record under Order 43 r.10
Order 43 rule 10 of the Civil Procedure Rules imposes no obligation on a court to produce a typed and certified record of proceedings; the trial court must send all material papers with practicable dispatch, and an appellate court may properly proceed on a legible original manuscript record.
Civil Procedure — Records from Remote Courts — Best Endeavours to Avail Court Records
Where trial courts are located in hard-to-reach areas, parties and the court must use their best endeavours to avail court records in a timely manner, and an appellate judge will not be faulted for relying on an original manuscript record freshly obtained from such a court.
Land & Property — Res Judicata — Nullity of Proceedings of a Court Lacking Jurisdiction
Jurisdiction is a creature of law and cannot be assumed; proceedings and judgment of a Local Council court that lacked competent jurisdiction over a land dispute are null ab initio and cannot found a plea of res judicata.
Civil Procedure — Second Appeals — Limits on Re-examining Findings of Fact
On a second appeal, the Court of Appeal is precluded from questioning the findings of fact of the trial court where there was evidence to support them, and may interfere only where there was no evidence to support a finding, that being a question of law.

Legislation cited (1)

  • Civil Procedure Rules Order 43 r.10

Cases cited (5)

  • Kifamunte v Uganda (Criminal Appeal No. 10 of 1997)
  • R v Hassan bin Said (1942) 9 EACA 62
  • Peter Mugoya v james Gidudu & Anor [1991] HCB 53
  • Mubiru & Ors v Kayiwa (1979) HCB 212 (CA)
  • Burashe Nalongo v Kekitiibwa (Civil Appeal No. 89 of 2011)
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.