Wakilii

Acaa v Okello (Civil Appeal No. 0053 of 2015)

High Court · [2018] UGHCLD 75 · 2018 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from decision of Gulu Grade One Magistrate's Court in land ownership and trespass suit
Decision
Original suit dismissed; respondent ordered to vacate appellant's land beyond Agulu stream and permanently restrained from trespass

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the trial magistrate erred in recording and relying on evidence from witnesses who had not testified in court during the locus in quo visit, and wrongly admitted hearsay documentary evidence (P.E.1 to P.E.3). The consistent evidence from the appellant established that Agulu Stream had been the accepted boundary between the parties' lands since 1952 for over thirty-five years until the insurgency, whereas the respondent's evidence on the boundary location was inconsistent. Long and unchallenged occupation is determinative where no survey marks exist. Appeal allowed; Agulu Stream declared the boundary.

Outcome

Original suit dismissed; respondent ordered to vacate appellant's land beyond Agulu stream and permanently restrained from trespass

Facts

The respondent sued the appellant claiming ownership of approximately 15 acres at Baraming village under customary tenure, alleging inheritance from his late father Onasimo Banya who received it from his brother-in-law Faustino Okok in 1954. The appellant defended on the basis that she inherited the land from her late husband Paulinus Owot who inherited it from his father Lacete. Both parties' ancestors had family connections to Faustino Okok. During the insurgency both parties vacated the land and moved to IDP camps. Upon return around 2007-2009, a dispute arose over the boundary between their respective parcels of land. The trial magistrate found for the respondent, declaring him owner and ordering the appellant to vacate. This was an appeal from that decision. The core factual dispute concerned the location of the boundary between the two parcels of customary land, with the appellant asserting Agulu Stream as the long-established boundary and the respondent's witnesses giving inconsistent evidence about boundary markers.

Issues

  1. Whether the trial magistrate erred in evaluating the evidence regarding ownership of the suit land.
  2. Whether the trial magistrate failed to properly conduct the locus in quo visit.
  3. Whether the trial magistrate erred in admitting exhibits P.E.1 to P.E.3.
  4. Whether the trial magistrate erred in his assessment of D.W.2's evidence.
  5. Whether the respondent departed from his pleadings.
  6. What is the true location of the boundary between the appellant's and respondent's land?

Orders

  • Appeal allowed.
  • Judgment of the court below set aside.
  • Suit dismissed.
  • Declaration that Agulu stream is the natural boundary between the appellant and the respondent's land.
  • Order of vacant possession against the respondent for occupation of any land beyond Agulu stream, on the appellant's side.
  • Permanent injunction restraining the respondent, his agents, employees or persons claiming under him from further acts of trespass beyond Agulu stream, onto the appellant's land.
  • Costs here and below awarded to the appellant.

Rules and key headnotes

Civil Procedure — Locus in quo — Recording evidence from persons who have not testified in court
A visit to the locus in quo is an exercise intended to check on the evidence by the witnesses, and not to fill gaps in their evidence, lest the court run the risk of turning itself into a witness in the case. It is erroneous for a trial court to record additional testimony from persons who had not testified in court during a locus in quo visit.
Evidence — Hearsay — Admission of documentary evidence without calling maker as witness
Statements made out of court that are offered in court as evidence to prove the truth of the matter asserted are generally inadmissible as hearsay. It is wrong for a trial court to rely on a document when its authenticity has been seriously challenged and when its maker is not called as a witness. The duty of calling the maker of a document as a witness lies on the party who tenders the document in evidence.
Civil Procedure — Pleadings — Departure from pleadings
Not every inconsistency between the pleadings and evidence adduced during trial constitutes a departure. When an inconsistency is a mere variation that is in essence only a modification or development of what is averred, then it is not a departure. A departure exists only if the evidence introduces something new, separate and distinct from the pleadings. The test is whether the opposing party's conduct of the case would have been any different had the impugned aspect been pleaded.
Land & Property — Boundaries — Determining boundaries in absence of survey marks
In determining the true boundary between two properties where survey marks are absent, a court will look to extrinsic evidence including statements by persons acknowledged as trustworthy and knowledgeable about land matters, natural features and trees, human activities such as footpaths and watering points, and maps or plans. The greatest weight must be given to lines actually marked on the ground, followed by natural monuments mentioned in evidence, artificial monuments, and then bearings and distances.
Land & Property — Boundaries — Long and unchallenged occupation as evidence of boundary
In the absence of survey marks, there can be no better indication of the land to which ownership relates than long and unchallenged occupation. A long occupation authorized by the original owner, and acquiesced in throughout the period by the surrounding owners, is evidence of a convincing nature that the land so occupied is that which was conveyed to the occupant. Boundary positions publicly agreed to and observed by neighbours over long periods of time will be binding even when found later to be inaccurate.
Land & Property — Boundaries — Streams as boundary monuments
Streams may be some of the most satisfactory of monuments for boundaries because they are durable and their course not easily shifted.

Legislation cited (7)

Cases cited (25)

  • Okello Anthony and 2 Others v Odonga Alfred and 2 Others (Court of Appeal Civil Appeal No. 22 of 2016)
  • Registered Trustees of the Archdiocese of Tororo v Wesonga and Five Others (Court of Appeal Civil Appeal No. 96 of 2009)
  • Father Nanensio Begumisa and Three Others v Eric Tiberaga (Supreme Court Civil Appeal No. 17 of 2000)
  • Lovinsa Nankya v. Nsibambi [1980] HCB 81
  • Katumba Byaruhanga v Edward Kyewalabye Musoke (Court of Appeal Civil Appeal No. 2 of 1998)
  • Attorney General v Florence Baliraine (Court of Appeal Civil Appeal No. 79 of 2003)
  • Fernandes v. Noroniha [1969] EA 506
  • De Souza v. Uganda [1967] EA 784
  • Yeseri Waibi v. Edisa Byandala [1982] HCB 28
  • Nsibambi v. Nankya [1980] HCB 81
  • Waghorn v. Wimpey (George) and Co. [1969] 1 WLR 1764
  • Esso Petroleum Company Limited v. Southport Corporation [1956] AC 218
  • Kahigiriza James v. Busasi Sezi [1982] HCB 148
  • Opika-Opoka v. Munno Newspapers and Another [1988-90] HCB 91
  • Lukyamuzi Eriab v. House and Tenant Agencies Limited [1983] HCB 74
  • Uganda Breweries Ltd v. Uganda Railways Corporation [2002] 2 EA 634
  • Benmax v. Austin Motor Co. Ltd [1955] AC 370
  • Faryna v. Chorny [1952] 2 D.L.R. 354
  • Donaldson v. Hemmant (1901) 11 QLJ 35 at p41
  • Fulwood v. Graham, 1 Rich. 491 (1844)
  • Walsh v. Hill 38 Cal. 481 (1869)
  • Equitable Building and Investment Co. v. Ross (1886) NZLR 5SC 229
  • South Australia v. Victoria (1914) AC 283
  • Miller v. Minister of Pensions [1947] 2 All ER 372
  • Horne v. Struben [1902] AC 454

Full judgment

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Acaa_v_Okello_(Civil_Appeal_No._0053_of_2015)_[2018]_UGHCLD_75_(6_December_2018)
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.