Wakilii

Abiro and Another v Eweru (Civil Appeal 50 of 2022)

High Court · [2023] UGHC 454 · 2023 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from the Chief Magistrate's Court of Soroti at Soroti Land Claim No. 089 of 2012 arising from judgment delivered on 9 September 2022
Decision
Appeal dismissed; lower court judgment upholding respondent's ownership of customary land affirmed

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains 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

The High Court dismissed the appeal and upheld the Chief Magistrate's Court decision that the respondent (through her late mother Audo Mary Eweru) is the rightful owner of customary land in Arute village. The court found that the respondent proved continuous possession and ownership since 1973 through inheritance from her late husband, while the appellants' evidence of ownership was based on hearsay and inconsistencies. The locus in quo visit was properly conducted, and no miscarriage of justice occurred.

Outcome

Appeal dismissed; lower court judgment upholding respondent's ownership of customary land affirmed

Facts

The appellants sued for recovery of customary land in Arute village, Abeko parish, Ogolai sub-county, Amuria district, claiming they inherited five gardens from their late husband Eliu Lawrence who died in 1994. The respondent, as administrator of her late mother Audo Mary Eweru's estate, claimed ownership through inheritance from her late husband Eweru William, asserting continuous possession since 1973. The respondent testified she was forced off the land in 2012 when the appellants encroached. The Chief Magistrate's Court found in favour of the respondent after hearing evidence and conducting a locus in quo visit. The appellants appealed contending the trial magistrate failed to properly evaluate evidence and improperly conducted the locus visit.

Issues

  1. Who is the rightful owner of the suit land?
  2. Whether the trial magistrate erred in law and fact when he failed to evaluate the evidence on record hence arriving at the wrong decision.
  3. Whether the trial magistrate perfunctorily conducted the visit to the locus in quo hence arriving at a wrong decision.
  4. Whether the decision of the trial magistrate has occasioned a miscarriage of justice upon the appellants.

Orders

  • The appeal is dismissed.
  • The judgment and orders of the Chief Magistrate's Court of Soroti at Soroti delivered on 9 September 2022 are upheld.
  • Costs in this court and in the lower trial court are awarded to the respondent.

Rules and key headnotes

Customary Land — Proof of Ownership — Inheritance — Burden of Proof
Proof of ownership of customary land is based on evidence because it is based on non-titled ownership. For one to claim inheritance of property from a deceased person, the same must have belonged to the deceased during his lifetime. A party claiming customary land ownership bears the burden of proving ownership on a balance of probabilities.
First Appellate Court — Duty to Re-evaluate Evidence
The first appellate court has a duty to review the evidence of the case and reconsider the material before the trial judge. The appellate court must make up its own mind, not disregarding the judgment appealed from but carefully weighing and considering it. Where there is conflicting evidence, the appellate court must make allowance for the fact that it has neither seen nor heard the witnesses, weigh the conflicting evidence and draw its own inferences and conclusions.
Inconsistencies in Testimony — Effect on Credibility
In assessing the evidence of a witness, consistency or inconsistency, unless satisfactorily explained, will usually result in the evidence being rejected. Minor inconsistencies will not usually have the same effect unless the trial judge thinks they point to deliberate untruthfulness. It is open to a trial judge to find that a witness has been substantially truthful even though he or she lied in some particular respect.
Locus in Quo — Purpose and Procedure — Recording of Proceedings
The practice of visiting locus in quo is to check on the evidence of the witnesses and not to fill gaps in their evidence for them, or the court may run the risk of turning itself into a witness. When witnesses clarify evidence at locus, they must do so on oath and the other party must be given opportunity to cross-examine. Any observation by the trial magistrate must form part of the proceedings. All proceedings at locus in quo must be recorded.
Locus in Quo — Proper Conduct — Practice Direction Requirements
Practice Direction No. 1 of 2007 requires that at locus in quo, the court must ensure all parties, witnesses and advocates are present; allow parties and witnesses to adduce evidence; allow cross-examination by either party; record all proceedings; and record any observation, view, opinion or conclusion of the court including drawing a sketch plan if necessary.
Hearsay Evidence — Unsupported Testimony — Weight
Where a party's testimony about how their deceased relative acquired land is based solely on what they were told (hearsay) and they bring no witness to support their assertion, such evidence carries insufficient weight to discharge the burden of proving ownership on a balance of probabilities, particularly when contradicted by consistent testimony from the opposing party and witnesses.
Costs — Costs Follow the Event
Under Section 27 of the Civil Procedure Act, costs follow the event. A successful litigant ought to be fairly reimbursed for costs he or she had incurred.

Legislation cited (6)

Cases cited (18)

  • Kifamunte Henry v Uganda (Supreme Court Criminal Appeal No. 10 of 1997)
  • Lovinsa Nankya v Nsibambi [1980] HCB 81
  • Father Nanensio Begumisa and three others v Eric Tiberaga (Supreme Court Criminal Appeal No. 17 of 2000)
  • Marko Matovu and 2 others v Mohammed Sseviiri and 2 others (Court of Appeal No. 7 of 1978)
  • Uganda v James Sabuni [1981] HCB 1
  • Miller v Minister of Pension [1947] 2 All ER
  • Constantino Okwel Alias Magendo v Uganda (Supreme Court Criminal Appeal No. 12 of 1990)
  • Ongom Stephen v Otodo Clement and Another (Civil Appeal No. 009 of 2015)
  • David Acar v Alfred Aliro [1982] HCB 60
  • Opio v Onyai (Civil Appeal No. 39 of 2014)
  • Fernandes v Noroniha [1969] EA 506
  • De Souza v Uganda [1967] EA 784
  • Yeseri Waibi v Edisa Byanda [1982] HCB 28
  • Nsibambi v Nankya [1980] HCB 81
  • David Acar and Three Others v Alfred Acar Aliro [1982] HCB 60
  • James Nsibambi v Lovinsa Nankya [1980] HCB 81
  • Onek Manacy and Another v Omona Michael (Civil Appeal No. 32 of 2016)
  • Primchand Raichand Ltd & Another v Quarry Services of East Africa & 6 Others [1972] EA 162

Full judgment

↓ Download PDF

The original judgment as reported. Read the original PDF before relying on any passage.

Abiro and Another v Eweru (Civil Appeal 50 of 2022) [2023] UGHC 454 (23 August 2023)
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.