Wakilii

Asah Ahamenur Rajab and Others v Henry Kinyozi and Another (Civil Appeal 1 of 2023)

High Court · [2024] UGHC 1298 · 2024 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from the decision of the Chief Magistrate's Court at Nakapiripirit, Amudat, in Civil Suit No. 07 of 2021
Decision
Appeal dismissed; trial court's declaration of respondents' customary interests in the suit land and permanent injunction restraining appellants upheld

Observed later treatment

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Holding

The High Court dismissed the appeal, upholding the trial magistrate's finding that the respondents held customary interests in the suit land. The court held that the appellants' claim was time barred under section 5 of the Limitation Act, as they failed to challenge the respondents' open use of the land for over 12 years. The court further held that the appellants were estopped under section 114 of the Evidence Act from claiming ownership, as their late father had watched the respondents' father use the land without objection. One ground of appeal was struck out for being too general and failing to comply with Order 43 Rule 2 of the Civil Procedure Rules.

Outcome

Appeal dismissed; trial court's declaration of respondents' customary interests in the suit land and permanent injunction restraining appellants upheld

Facts

The respondents claimed customary tenure over land in Lokales Village, Amudat district, which they inherited from their late father Kinyozi Mutumbai who died in 1977. The respondents alleged their father occupied the land from the 1950s, cultivating and rearing animals without interruption until 2018 when the appellants began entering and interfering with the land. In February and March 2021, the appellants constructed structures, cleared, ploughed and planted maize on the suit land. The respondents sought declarations of customary interest and trespass, injunctive relief, and damages. The appellants counterclaimed, asserting they inherited the land from their late father Hussein Maruti who died in 2011, and that the respondents' father was only given a small space for a hides and skins store by Rajab Maruti. The Chief Magistrate found for the respondents. The appellants appealed, challenging the evaluation of evidence and conduct of the locus in quo visit.

Issues

  1. Whether the appellants' ground of appeal alleging failure to properly evaluate evidence was properly framed under Order 43 Rule 2 of the Civil Procedure Rules.
  2. Whether the trial magistrate erred in rejecting the appellants' evidence and holding that the respondents were in occupation and possession of the suit land.
  3. Whether the appellants' claim was time barred under section 5 of the Limitation Act Cap 290.
  4. Whether the appellants were estopped from claiming ownership of the suit land under section 114 of the Evidence Act.
  5. Whether the trial magistrate conducted the locus in quo visit in a perfunctory manner contrary to Order 18 Rule 14 of the Civil Procedure Rules and Practice Direction No. 1 of 2007.

Orders

  • The appeal is dismissed.
  • Costs awarded to the respondents.

Rules and key headnotes

Civil Procedure — Memorandum of Appeal — Grounds of Appeal — Requirement for Specificity
A ground of appeal alleging that the trial court failed to properly evaluate evidence must specifically point out which evidence was not properly evaluated and how the failure occasioned a miscarriage of justice. A general ground allowing the appellant to go on a fishing expedition at the hearing will be struck out.
Land Law — Customary Tenure — Adverse Possession — Limitation
Under section 5 of the Limitation Act Cap 290, no action to recover land may be brought after 12 years from the date the right of action accrued. Where a claimant's predecessor in title failed to challenge open occupation and use of land by another party for over 12 years, the claimant is barred by limitation from asserting ownership.
Evidence — Estoppel — Section 114 Evidence Act — Acquiescence
Under section 114 of the Evidence Act, where one person by declaration, act or omission intentionally causes or permits another to believe a thing to be true and act upon that belief, neither that person nor their representative shall be allowed to deny the truth of that thing. Where a landowner watches another openly use land as their own without objection, the landowner's successors are estopped from later asserting title.
Civil Procedure — Locus in Quo — Conduct of Site Visit — Practice Direction No. 1 of 2007
A locus in quo visit must be conducted in the presence of all parties, their witnesses and advocates; the court must allow parties to adduce evidence and cross-examine at the locus; all proceedings must be recorded; and the court must record its observations. A view of a locus ought to check on evidence already given, not substitute for evidence, and the judge must not constitute himself a witness.
Civil Procedure — First Appellate Court — Standard of Review — Fresh Evaluation of Evidence
The duty of a first appellate court is to evaluate all evidence on the record without isolation, bearing in mind it did not witness the demeanor of witnesses, and to subject the evidence to fresh and exhaustive scrutiny. The appellate court must rehear the case, carefully weighing and considering the trial judgment without shrinking from overruling it if the court concludes the judgment is wrong.

Legislation cited (6)

Cases cited (9)

  • Fr. M. Begumisa and Others v E. Tibegana (Supreme Court Civil Appeal No. 17 of 2003)
  • Odure Norah v Angela Okello (Civil Appeal No. 34 of 2016)
  • 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)
  • F.X Miramogo Vs Attorney General [1979] HCB 24
  • Iga Vs Makerere University [1972] EA 65
  • Ramsden Vs Dyson (1866) L.R. 1 HLL. 129
  • William Mukasa V. Uganda (1964) 698 at 700
  • Mbogo & Another vs Shah, [1968] EA

Full judgment

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Asah Ahamenur Rajab and Others v Henry Kinyozi and Another (Civil Appeal 1 of 2023) [2024] UGHC 1298 (4 December 2024)
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.