Wakilii

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

High Court · [2023] UGHC 463 · 2023 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from Chief Magistrate's Court judgement in a customary land ownership dispute
Decision
Appeal dismissed with costs; lower court's declaration that the suit land belongs to the respondent and that the appellants are trespassers upheld

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court dismissed the appeal, holding that the trial magistrate properly evaluated evidence establishing that the respondent inherited the suit land from her late husband who possessed it from 1973, while the appellants' claim rested on uncorroborated hearsay evidence. The court found that the locus in quo visit was properly conducted according to Practice Direction No. 1 of 2007 and that minor inconsistencies in witness testimony during cross-examination, clarified on re-examination, did not undermine the respondent's case. The respondent proved ownership on a balance of probabilities.

Outcome

Appeal dismissed with costs; lower court's declaration that the suit land belongs to the respondent and that the appellants are trespassers upheld

Facts

The appellants sued for recovery of customary land measuring approximately five gardens in Arute village, Amuria district, claiming they inherited it from their late husband Eliu Lawrence who died in 1994. The respondent, as administrator of her late mother's estate (Audo Mary Eweru), counterclaimed ownership, asserting she inherited the land from her husband Eweru William who possessed it from 1973 until his death in 1990. The respondent testified she remained in possession until 2012 when the appellants, with one Ejimu John, attempted to erect structures on the land. The respondent left temporarily during the Kony insurgency (around 2003) but returned to cultivate. The trial magistrate found for the respondent, declaring her the owner and the appellants trespassers. The appellants appealed, challenging the trial court's evaluation of evidence and conduct of the locus in quo visit.

Issues

  1. Who is the rightful owner of the suit land?
  2. Whether the plaintiffs are trespassers on the suit land?
  3. Whether the trial magistrate erred in law and fact when he failed to evaluate the evidence on record?
  4. Whether the trial magistrate perfunctorily conducted the visit to the locus in quo?
  5. Whether the decision of the trial magistrate 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 in Civil Suit No. 89 of 2012 delivered on 9 September 2022 are upheld.
  • Costs of the appeal and in the lower court are awarded to the respondent.

Rules and key headnotes

Evidence — Burden of Proof — Customary Land — Balance of Probabilities
The burden of proof in customary land disputes lies on the party asserting ownership, and proof must be established on a balance of probabilities, not requiring the high standard of criminal cases but carrying a reasonable degree of probability.
Land & Property — Customary Land — Proof of Ownership — Inheritance
Ownership of customary land can be proved through evidence of inheritance from a deceased person who possessed the land during their lifetime, with possession and utilisation establishing ownership where no formal title exists.
Evidence — Witness Testimony — Inconsistencies and Contradictions
Minor inconsistencies in witness testimony, particularly during cross-examination, will not necessarily result in rejection of the evidence unless they point to deliberate untruthfulness; a trial judge may find a witness substantially truthful even though they lied in some particular respect, and inconsistencies clarified during re-examination do not undermine credibility.
Civil Procedure — First Appellate Court — Duty to Re-evaluate Evidence
A first appellate court has a duty to scrutinise and re-evaluate all evidence on record, review material before the trial judge, and make up its own mind while carefully weighing and considering the trial judgment, making allowance for the fact that it has neither seen nor heard the witnesses where there is conflicting evidence.
Civil Procedure — Locus in Quo — Purpose and Proper Conduct
The purpose of a locus in quo visit is to enable the court to better understand evidence already adduced and to check on witness testimony, not to fill gaps in evidence or turn the court into a witness; the visit must be conducted with all parties present, witnesses must testify on oath and be subject to cross-examination, and all proceedings and observations must be recorded as part of the court record.
Civil Procedure — Locus in Quo — Discretionary Nature — Practice Direction No. 1 of 2007
Conducting a locus in quo visit is discretionary and depends on the circumstances of each case, but when undertaken must comply with Practice Direction No. 1 of 2007 requiring that all parties, witnesses, and advocates be present, evidence be adduced and cross-examination allowed, and all proceedings and court observations be recorded.

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 Civil 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

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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 463 (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.