Mwajuma Nalubega and Mohammed Zaid v Owakubariho Annet and Mugisha Pastori (Civil Appeal No. 38 of 2016)

Court of Appeal · [2026] UGCA 132 · 2026 Appeal Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Second appeal from a High Court decision on a first appeal from the Chief Magistrate's Court in a land ownership suit

Decision

Appeal dismissed; lower courts' declaration of the respondents as rightful owners of the suit land upheld

The full judgment

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Holding

On a second appeal in a customary land ownership dispute, the Court of Appeal held that a second appellate court only intervenes where the first appellate court failed to properly re-evaluate the evidence. The first ground was struck out as generic for failing to particularise the alleged contradictions; the discrepancies found were minor and did not go to the root of the dispute. The customary practice barring women from owning land predated the 1995 Constitution and had not been declared repugnant, so the Land Act provisions were inapplicable to land dating from the 1970s. The locus in quo complaint was a new point not raised below and could not be raised on second appeal without leave. The appeal was dismissed on all grounds with costs.

Facts

The respondents sued the appellants in the Chief Magistrate's Court of Mbarara seeking a declaration that they were the rightful owners of suit land at Nsikye cell, Katete Nyamitanga, Mbarara. The respondents claimed to have separately bought plots of the land in 2007 from Moses Kadede Bumbakari (PW3) under written agreements. Kadede testified that the land originally belonged to his grandfather Bwana Ali, passed to his father Nsansa, and was jointly inherited by Kadede and Lubega Abdul. After Lubega sold part of the land without Kadede's consent, an LC1 court awarded the remaining portion exclusively to Kadede, who then sold it to the respondents. The first appellant claimed she obtained the land from her father Lubega, who she said derived it from Tausi, the widow of Bwana Ali. The trial magistrate, taking judicial notice that 1950s Ugandan customs did not allow women to own land, found Tausi could not have owned or bequeathed the land, and declared the respondents the rightful owners. The High Court dismissed the appellants' first appeal.

Issues

Whether the first appellate court failed to properly re-evaluate the evidence such that the second appellate court should intervene.
Whether the lower courts erred in taking judicial notice of and upholding a customary practice barring women from owning land as a basis for finding against the appellants' predecessor in title.
Whether the respondents lawfully purchased the suit land from PW3 (Kadede) and obtained good title.
Whether the failure of the trial court to visit the locus in quo could be raised for the first time on a second appeal and occasioned a miscarriage of justice.

Orders

The appeal fails on all grounds and is dismissed.
Costs awarded to the respondents in this court and in the court below.

Key headnotes

Civil Procedure — Second Appeals — Scope of Re-evaluation of Evidence

A second appellate court has no duty to re-evaluate the evidence; its concern is whether the first appellate court properly subjected the trial evidence to fresh and exhaustive scrutiny, and it will only intervene where the first appellate court failed in that duty.

Civil Procedure — Grounds of Appeal — Allegations of Contradiction Requiring Particulars

A ground of appeal alleging contradictions in a party's evidence must set out the specific contradictions and inconsistencies relied upon; a generic ground without particulars is liable to be struck out, as the appellate court cannot embark on a voyage of discovery to find them.

Evidence — Contradictions — Distinction Between Material Contradictions and Minor Discrepancies

Evidence is contradictory only where one piece asserts the opposite of another; minor discrepancies in detail that do not go to the root of the issue in controversy do not amount to material contradictions affecting the outcome.

Land & Property — Customary Tenure — Proof of Custom as a Question of Fact

Customary law, customs and practices are questions of fact to be proved by evidence by the party alleging them; a court may take judicial notice only of a custom that is of common and general knowledge within the area requiring no further proof.

Constitutional Law — Repugnant Customary Practices — Temporal Application of the 1995 Constitution

A customary practice that existed before the 1995 Constitution and has not been adjudged repugnant to natural justice, equity and good conscience should be left undisturbed, and the protective provisions of the Land Act do not apply to land dealings predating the Constitution.

Civil Procedure — New Points on Appeal — Failure to Visit Locus in Quo

A substantial point not raised in the courts below cannot be raised for the first time on a second appeal without leave of court; the alleged failure to visit the locus in quo, not having been raised at trial or on first appeal, could not be entertained.

Legislation cited (8)

Land Act s.27
Land Act s.27(1)(b)
Constitution of Uganda 1995 art.25
Constitution of Uganda 1995 art.33
Constitution of Uganda 1995 art.34
Constitution of Uganda 1995 art.35
Judicature (Court of Appeal Rules) Directions rule 86
Practice Direction No. 1 of 2007 Direction 3

Cases cited (8)

Pandya v R [1952] EA 336
Kampala District Land Board v Venansio Babweyana and Others (Civil Appeal No. 2 of 2007)
Muniraguha Gasumba v Sam Nkudiye (Civil Appeal No. 2 of 2005)
Tanganyika Farmer's Association Ltd v Unyamwezi Duel Corporation [1960] EA 620
Yowasi Kabuguruka v Samuel Byarufu (Civil Appeal No. 78 of 2008)
Samba Petroleum Co. Ltd v F.C.M.B. (2014) 3 NWLR (pt 1394) 346
Ogunlana v Dada (2010) 1 NWLR (pt 1776) 534
Pang Ah Chee v Chong Kwee Sang [1985] 1 MLJ 753

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.