Bongole Geofrey & 4 Others v Agness Nakiwala (Civil Appeal No. 0076 of 2015)

Observed later treatment

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

The Court of Appeal allowed the appeal, holding that the trial Judge conducted the locus in quo visit irregularly. The Judge failed to record witness testimony given at the locus, permitted persons who had not testified in court to give evidence there, denied the parties any opportunity to cross-examine, and relied in his judgment on his own perceptions rather than recorded evidence. Applying the Practice Direction No.1 of 2007 and established authority, the Court found these defects vitiated the locus proceedings and any findings based on them, thereby occasioning a miscarriage of justice. The proceedings were set aside and the matter remitted to the High Court for a retrial, with no order as to costs.

Outcome

Appeal allowed; High Court proceedings set aside and matter remitted for a retrial

Facts

The respondent sued the appellants seeking a declaration that she was the lawful owner of land comprised in Kyadondo Block 204 Plots 486 and 488 at Kawempe, a permanent injunction, vacant possession, mesne profits, damages, vacation of a caveat, and costs. The appellants denied the claim and counterclaimed, alleging the respondent had fraudulently registered the land in her name to their detriment, and that they held interests as beneficiaries of the estate of the late Erick Kimbowa. The High Court entered judgment for the respondent, declaring her the registered proprietor, dismissing the counterclaim, granting vacant possession and a permanent injunction, ordering the caveat vacated, and directing each party to bear its own costs. During the trial the Judge visited the locus in quo but did not record the testimony received there, allowed persons who had not testified in court to give evidence, and afforded no opportunity for cross-examination. The appellants appealed, challenging the evaluation of evidence, the conduct of the locus visit, and the finding of no fraud.

Issues

1. Whether the trial Judge erred by failing to take a proper record of the proceedings at the locus in quo.
2. Whether the trial Judge erred by failing to give the parties an opportunity to cross-examine witnesses at the locus in quo.
3. Whether the irregular conduct of the locus in quo visit occasioned a miscarriage of justice warranting a retrial.

Orders

• Grounds 2 and 3 of the appeal succeed.
• The proceedings at the locus in quo are set aside.
• The appeal succeeds.
• The file is sent back to the High Court for a retrial.
• No order as to costs.

Rules and key headnotes

Legislation cited (3)

• Court of Appeal Rules Rule 30(1)
• Court of Appeal Rules Rule 32(1)
• Practice Direction No.1 of 2007 Guideline 3

Cases cited (10)

• William Mukasa v Uganda [1964] EA 698
• De Souza V Uganda (1967) EA 784
• Fernandes V Noroniha (1969) EA 506
• Nsibambi V Nankya (1980) HCB 81
• David Acar & 3 others v Alfred Acar Aliro (1982) HCB 60
• Matayo Okumu v Fransiko Amudhe & 2 others (1979) HCB 229
• Oyua Enoch v Okot William and Others (HCCS No. 0022 of 2014)
• Vivo Energy Uganda Ltd v Lydia Kisitu (Civil Appeal No. 193 of 2013)
• Pyramid Building Society (in liquidation) v Scorpion Hotels Property Ltd (1997) VIC CA
• Fredrick Zaabwe v Orient Bank Ltd and Others (Supreme Court Civil Appeal No. 4 of 2006)

Cases citing this judgment (17)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

• Okot Alfred Otto v Komakech Richard Lajul and Others (Civil Appeal No. 0023 of 2019)
• Okot Alfred Otto v Komakech Richard Lajul and 3 Others (Civil Appeal No. 0023 of 2019)
• Okot Alfred Otto v Komakech Richard Lajul and 3 Others (Civil Appeal No. 0023 of 2019; Civil Suit No. 085 of 2013)
• Onyoro Obol Angel v Acire Christopher and 3 Others (HCT-28-LD-MA-001 OF 2026; Miscellaneous Application 1 of 2026)
• Erifas Maket and Others v Alex Tangicha (Civil Appeal No 30 of 2017)
• Hunter Investments Ltd v Kato Fred (Civil Appeal No. 47 of 2017)
• Okwonga David and Others v Akena Julius and Others (Civil Appeal No. 4 of 2025) followed
• Ocula and Others v Amuru District Land Board and Others (Civil Appeal 123 of 2012)
• Walakira Matia and Another v Kakooza Angelus (Civil Appeal No. 48 of 2018) followed
• Acala v Owor & 3 Others (Civil Appeal 112 of 2019)
• Acala v Owor and 3 Others (Civil Appeal 112 of 2019)
• Obua v Okot and 2 Others (Civil Appeal 52 of 2017)
• Obua v Okot & 2 Others (Civil Appeal 52 of 2017)
• Owon Akwilino v Omara and Another (Civil Appeal No. 11 of 2020)
• Olum v Modikayo (Civil Appeal No. 4 of 2020)
• Mwanje v Sekisenyi and 4 Others (Civil Suit No. 570 of 2017)
• Hon. Justice Choudry v National Water and Sewerage Corporation (Civil Appeal No. 216 of 2019)

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