Masereka Ernest and Others v Bakandema Innocent (Civil Appeal No. 46 of 2019)

The full judgment

Read the complete, verbatim text of this judgment.

Holding

On a second appeal in a land trespass dispute, the Court of Appeal noted that the parties agreed the locus in quo had not been properly handled by the first appellate judge, who had ordered a locus visit but in circumstances the parties accepted were unsatisfactory. The Court declined to determine the appeal on its merits and instead directed the Registrar to send the file back to the High Court so the locus in quo issue could be dealt with properly, with a survey to be carried out to assist the visit.

Facts

The respondent sued the appellants in the Chief Magistrate's Court of Kasese in the tort of trespass and conversion over land of approximately 0.869 hectares on Bazarabusa Road, Kasese Municipal Council. The respondent claimed to have acquired a freehold offer from the Kasese District Land Board in August 2007 and to have taken possession by planting trees and growing cotton, before the appellants entered the land in 2008, erected structures, and sold part of it. The appellants alleged fraudulent acquisition by the respondent; some claimed customary ownership acquired from a village elder in 1996, while others claimed to be bona fide purchasers for value. The trial Magistrate found for the respondent. The appellants appealed to the High Court, which upheld the decision and dismissed the appeal with costs, prompting this second appeal.

Issues

1. Whether the first appellate judge erred in failing to properly handle the visit to the locus in quo before determining the appeal.

Orders

• The Registrar of the Court is directed to send the file back to the High Court for it to deal with the issue of the locus in quo properly.
• A survey to be carried out to assist in the visit to the locus in quo.

Key headnotes

Legislation cited (2)

• Judicature (Court of Appeal Rules) Directions r.32(2)
• Civil Procedure Act s.72(1)