Wakilii

Bahemuka and 6 Others v Berochan (Civil Appeal No. 23 of 2019)

High Court · [2021] UGHCCD 100 · 2021 Appeal Allowed — Matter Remitted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from judgment of Chief Magistrate's Court in a land ownership dispute
Decision
Matter remitted to trial court for retrial to determine boundaries and ownership

Observed later treatment

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Holding

The High Court allowed the appeal, holding that the trial magistrate erred by failing to visit the locus in quo in circumstances that necessitated such a visit to ascertain the actual boundaries and description of the parties' respective pieces of land. The court found that minor inconsistencies in the plaintiff's evidence concerning dates were not material to the issue of ownership. The matter was remitted to the trial court for retrial to determine boundaries, ownership, and whether the first defendant encroached on the plaintiff's land.

Outcome

Matter remitted to trial court for retrial to determine boundaries and ownership

Facts

The respondent claimed ownership of 800 acres of land in Kyangwali, which she alleged was offered to her as a Uganda Wildlife Authority employee in 1999 and registered her presence with the LC1 chairperson. The first appellant claimed he acquired the same land in 1998, also with the help of the LC1 chairperson, fenced it with barbed wire, and obtained a 49-year lease from the District Land Board in 2001, subsequently selling portions to the other appellants. The respondent alleged that when she returned from medical treatment in West Nile (variously stated as between 2001-2005), she found her land fenced off by the first appellant. The trial magistrate found in favour of the respondent and ordered eviction. The LC1 chairperson testified that he showed land to both parties, with the first appellant's land starting where the respondent's ended.

Issues

  1. Whether the trial magistrate erred in law and fact when she failed to properly evaluate the evidence on record.
  2. Whether the trial magistrate erred in law and fact when she held that the suit land belonged to the Respondent when there was no evidence to support her finding.
  3. Whether the trial magistrate erred in law and fact when she decided the case between the parties without first visiting locus in quo.

Orders

  • The decision and orders of the trial court are set aside.
  • Civil Suit No. 0087/2012 is referred back to the trial court for retrial, to ascertain the boundaries and ownership of the plaintiff's/Respondent's and 1st defendant/Appellant's pieces of land, with the view to make a finding as to who is the trespasser of the other, and or, determine whether or not the 1st defendant encroached on the plaintiff's land.
  • Each party to bear its costs in this appeal and in the court below.

Rules and key headnotes

Civil Procedure — Appellate Practice — Duty of First Appellate Court — Re-evaluation of Evidence
It is the duty of a first appellate court to re-evaluate the evidence adduced before the trial court as a whole by giving it fresh and exhaustive scrutiny and then draw its own conclusion of fact and determine whether on the evidence, the decision of the trial court should stand.
Evidence — Contradictions and Inconsistencies — Minor versus Major — Effect on Credibility
When contradictions and inconsistencies in evidence are major and intended to mislead or tell deliberate untruthfulness, the evidence may be rejected. If, however, they are minor and capable of innocent explanation, they will normally not have that effect on the credibility of the evidence.
Civil Procedure — Locus in Quo — When Visit is Necessary — Land Boundary Disputes
The locus visit is essentially for purposes of enabling the trial court understand evidence better and is intended to harness the physical aspects in conveying and enhancing the meaning of oral testimony. Where parties present conflicting evidence as to land boundaries and no evidence is led as to the boundaries and description of land, the circumstances necessitate a locus visit to ascertain the actual boundaries and description of the parties' respective pieces of land before the court can reach a just conclusion.
Land & Property — Public Land Allocation — Powers of District Land Board versus LC1 Chairperson
Section 59(1)(a) of the Land Act vests powers of allocating public land in a district to the District Land Board and not the Chairperson LC1 of the village.

Legislation cited (2)

Cases cited (10)

  • Pandya v R (1957) EA 336
  • Mohan Musisi Kiwanuka v Asha Chand (SCCA No. 14 of 2002)
  • Sebughingiriza v Attorney General (HCCS No. 251 of 2012)
  • Habre International Co Ltd v Ebrahim Alarakia Kassam & Others (Civil Appeal No. 4 of 1999)
  • Makau Nairuba Mabel v Crane Bank Ltd (HCCS No. 380 of 2009)
  • Okecho Alfred v Uganda (SC Criminal Appeal No. 24 of 2001)
  • Alfred Tarjar v Uganda (Criminal Appeal No. 167 of 1969)
  • Kwebiiha Emmanuel & Anor v Rwanga Furujensio & 2 Ors (HCCA No. 021 of 2011)
  • Okullu Ferdinando v Abok David (HCCA No. 008 of 2003)
  • Lanyero Betty v Okene Richard & Anor (Civil Appeal No. 29 of 2018)

Full judgment

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

Bahemuka and 6 Others v Berochan (Civil Appeal No. 23 of 2019) [2021] UGHCCD 100 (17 May 2021)
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.