Wakilii

Bigirwa and 2 Others v Kiirya (Civil Appeal 3 of 2017)

High Court · [2023] UGHCLD 328 · 2023 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from judgment of Grade 1 Magistrate, Kiryandongo, in a land trespass suit
Decision
Lower court judgment set aside; cross appeal dismissed as incompetent

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court held that the respondent's cross appeal was incompetent, having been filed more than three months out of time without leave and by notice rather than memorandum of appeal. On the merits, the court found ample evidence that Yolamu Mutumba offered the respondent approximately 10 acres, formalised by a settlement agreement in 2001 which the respondent had accepted. The trial magistrate erred in decreeing 3 acres to the respondent from disputed land. The appeal was allowed and the lower court's award of 3 acres set aside.

Outcome

Lower court judgment set aside; cross appeal dismissed as incompetent

Facts

The respondent sued the appellants in the Chief Magistrate's Court claiming to be the rightful owner of suit land at Kisekura, Kiryandongo District, alleging the appellants trespassed in 2001. The appellants contended the land belonged to the late Yolamu Mutumba, their father and father-in-law, who had given the respondent 10 acres for settlement. They averred that a boundary demarcation was conducted in 2001 by the LC1 chairperson in the respondent's presence. The trial magistrate found the land originally belonged to Yolamu Mutumba who gave the respondent some portion, but held the appellants had trespassed 3 acres into the respondent's portion and ordered surveying off 3 acres in the respondent's favour. Both parties appealed.

Issues

  1. Whether the Respondent's cross appeal was filed out of time contrary to s.79(1)(a) of the Civil Procedure Act.
  2. Whether the cross appeal was improperly instituted by notice of cross appeal contrary to O.43 r.1 of the Civil Procedure Rules.
  3. Whether the Appellants trespassed on the Respondent's land.
  4. Whether the trial Magistrate erred in awarding 3 acres to the Respondent having found the land was given by Yolamu Mutumba.

Orders

  • The Respondent's cross appeal is dismissed for being incompetent and illegal on court record for being filed out of time.
  • The sole ground of appeal is allowed.
  • The Respondent/Cross Appellant's grounds of appeal are devoid of merit.
  • The judgment and orders of the trial Magistrate in respect of the 3 acres being decreed to the Respondent are set aside.
  • The Appellants are granted costs of this Appeal.

Rules and key headnotes

Civil Procedure — Appeals — Time Limits — Effect of Filing Appeal Out of Time Without Leave
An appeal filed beyond the statutory period of 30 days from the date of decree or order without first seeking leave of court extending time and showing sufficient reasons is incompetent and liable to be dismissed.
Civil Procedure — Appeals — Form and Institution — Requirement for Memorandum of Appeal
Under Order 43 rule 1 of the Civil Procedure Rules, every appeal to the High Court must be preferred in the form of a memorandum signed by the appellant or advocate. An appeal instituted by notice of appeal rather than memorandum is irregular and improperly constituted.
Evidence — Burden of Proof — Civil Cases — Standard of Proof
In civil cases, the burden of proof lies on the plaintiff and the standard is on a balance of probabilities. The plaintiff must prove the facts upon which the legal right or liability depends.
Land & Property — Boundary Disputes — Locus in Quo — Purpose and Effect of Locus Visit
The purpose of a locus visit is to enable the court to check on the evidence given by witnesses in court. A party who fails to demonstrate at locus the boundaries claimed in testimony may be taken to be in agreement with boundaries established by other evidence.
Land & Property — Boundary Settlements — Effect of Agreed Boundary Demarcation
Where parties participated in a boundary settlement presided over by local council authorities and the demarcation was reduced to writing, a party who fails to object or later demonstrate different boundaries at locus is bound by that settlement and cannot subsequently claim trespass beyond the agreed boundaries.

Legislation cited (4)

Cases cited (6)

  • Ojara v Okware (HCMA No. 23 of 2017)
  • Luzinda George v Edward Wasswa (HCCA No. 39 of 2009)
  • Sempebwa William v Byanugu Muhamed (HCCA No. 12 of 2012)
  • Banco Arabe Espanol v Bank of Uganda (SCCA No. 8 of 1998)
  • Kamo Enterprises Ltd v Krystalline Salt Ltd (SCCA No. 8 of 2018)
  • Fernandes v Noroniha [1969] EA 506

Full judgment

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

Bigirwa_and_2_Others_v_Kiirya_(Civil_Appeal_3_of_2017)_[2023]_UGHCLD_328_(20_July_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.