Kirunda v Isanga [1991] UGSC 13

Supreme Court · 1991 Appeal Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Second appeal to the Supreme Court from the High Court at Jinja, which had dismissed a first appeal from the Magistrate Grade 1 at Jinja.

Decision

Second appeal dismissed with costs; decisions of the lower courts upheld.

The full judgment

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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 confined to matters of law, the Supreme Court held that the evaluation of witness evidence — including which court emissary's demarcation of the boundary to prefer — was a question of fact for the lower courts with which the appellate court would not interfere absent good reason. An allegation that the boundary sketch map had been tampered with (amounting to a suggestion of fraud) had to be raised promptly before the trial magistrate and supported by affidavit or evidence; not having been put squarely to the High Court, nor a rehearing sought, it could not be entertained as a matter of law on second appeal. The appeal was dismissed with costs.

Facts

The dispute concerned the boundary of land between the appellant, Yafesi Kirunda, and the respondent, Sedulaki Isanga. Kirunda had succeeded in the original suit before the Magistrate Grade 1 at Jinja and sought court emissaries to demarcate the boundaries; the court appointed two emissaries, Katende and Mwigombe. A witness, Mwase, was present at the demarcation but was not one of the appointed emissaries. The trial court and the High Court preferred the evidence of the actual emissary, Mwigombe, over that of Mwase, and rejected Mwase's account. A question arose as to whether the boundary demarcated was parallel or perpendicular to another line, with the trial judgment using "parallel" at one page and "perpendicular" at another, prompting a suggestion that the sketch map had been substituted. This challenge had not been raised before the trial magistrate or squarely before the High Court, and no rehearing was sought.

Issues

Whether the first appellate judge failed in her duty to subject the evidence to a fresh and exhaustive examination and draw her own conclusions.
Whether the sketch plan of the disputed boundary was prepared in accordance with the law, and whether the alleged confusion or substitution of the sketch could be raised on second appeal.
Whether the lower courts erred in their treatment of the evidence of the witness Mwase.

Orders

Appeal dismissed with costs.

Key headnotes

Civil Procedure — Second Appeal — Limitation to Matters of Law — Non-interference with Concurrent Findings of Fact

On a second appeal, the evaluation and weighing of witness evidence and findings as to the position of a disputed boundary are questions of fact for the lower courts, and the second appellate court will not interfere with concurrent findings of fact absent good reason.

Evidence — Allegation of Tampering with Documentary Evidence — Duty to Raise Promptly and Support by Affidavit or Evidence

An allegation that documentary evidence such as a sketch map has been tampered with — a suggestion amounting to fraud — must be raised as early as possible before the trial court and supported by affidavit or evidence so the trial magistrate may answer it; it cannot be raised for the first time on second appeal.

Civil Procedure — Appellate Practice — Failure to Seek Rehearing Below — Point Not Raised on Second Appeal

Where a party did not put a contested matter squarely before the first appellate court nor ask for a rehearing, the matter is not properly before the second appellate court and cannot be entertained as a question of law.

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.