Wakilii

Buladina Achoka v Okello Peter Byella (Civil Appeal No. 25 of 2016)

High Court · [2019] UGHC 44 · 2019 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First appeal from magistrate's decision in a land boundary dispute
Decision
Appeal dismissed; trial court judgment upholding respondent as rightful owner of disputed land confirmed

Observed later treatment

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Holding

The High Court dismissed the appeal, upholding the trial court's finding that Nsambia trees, not an obliterated Olam tree, marked the boundary between the parties' land. Natural monuments prevail in boundary disputes based on permanence, visibility, and accuracy. A monument that is destroyed or cannot be verified by independent evidence loses its controlling force. The court disregarded evidence taken at locus from witnesses who had not testified in court, but found sufficient evidence remained to decide the matter properly.

Outcome

Appeal dismissed; trial court judgment upholding respondent as rightful owner of disputed land confirmed

Facts

The respondent claimed approximately 30 x 40 metres of customary land given to his parents by his paternal uncle John Achoka in 1966. The respondent's family occupied the land from 1968 until the father's death in 1998, after which the respondent inherited it. In 2006–2007, the appellant (widow of John Achoka) began claiming the land, asserting that the land given to the respondent's family was demarcated by an Olam tree as the boundary, not Nsambia trees. The trial court found for the respondent after visiting the locus in quo, where Nsambia trees were visible but the Olam tree was non-existent. The appellant appealed, challenging the boundary determination, the admission of evidence from non-testifying witnesses at locus, and alleged contradictions in the respondent's case.

Issues

  1. Whether the trial magistrate erred in determining the boundary between the parties' land.
  2. Whether the trial magistrate wrongly admitted evidence from witnesses who had not testified in court during the locus in quo visit.
  3. Whether the trial magistrate improperly evaluated contradictory evidence regarding the boundary marker.
  4. Whether natural monuments (Nsambia trees versus an Olam tree) correctly identified the common boundary between the parties' respective pieces of land.

Orders

  • Appeal dismissed.
  • Costs of the appeal awarded to the respondent.
  • Costs of the court below awarded to the respondent.

Rules and key headnotes

Land Boundaries — Natural Monuments — Hierarchy of Evidence
In determining boundaries, the general rule is to resort first to natural objects or landmarks because of their permanent character, next to artificial monuments or marks, then to boundary lines of adjacent owners, and then to courses and distances. This rule is not inflexible; if a monument is less certain than course or distance in a given case, the rule fails and the monument yields to the more certain evidence.
Land Boundaries — Natural Monuments — Permanence, Visibility, and Accuracy
When determining the true position of a disputed boundary, courts are guided by three qualities of a monument: permanence, visibility, and accuracy. Natural boundaries possess these qualities if they are easily found, highly visible, and reasonably permanent. Where a natural boundary no longer exists, there must be other credible means of establishing its former location with reasonable accuracy.
Land Boundaries — Obliterated Monuments — Loss of Controlling Force
If a monument is obliterated, it is controlling only if its former position can be identified by reliable evidence. If a monument has deteriorated beyond recognition, either visually or by witnesses' evidence, the monument itself is no longer controlling. Once a monument is disturbed, its value as a control point ceases, but if merely obliterated and its former position can be identified, the former position will control.
Demonstrative Evidence — Sketch Maps — Function and Limitations
A sketch map is intended to illustrate the testimony of a witness or witnesses, summarise or explain oral or documentary evidence, and make evidence and facts easier to understand as demonstrated at the locus in quo. The court is not free to draw independent conclusions from it as a demonstrative aid but is only free to utilise it to better understand or remember the evidence of a witness from which the actual conclusions of fact will be drawn. It can never take the place of real or oral evidence.
Locus in Quo — Evidence from Non-Testifying Witnesses — Improper Admission
Visiting the locus in quo is intended to enable the court to check on the evidence given by witnesses in court, not to fill gaps in their evidence. Admission of evidence from persons who had not testified in court during the locus visit is an error. However, under section 166 of the Evidence Act, improper admission of evidence is not ground for reversal if sufficient evidence exists independently of the improperly admitted evidence to justify the decision.
Appeal — First Appellate Court — Duty to Re-hear
A first appellate court must re-hear the case by subjecting the evidence presented to the trial court to fresh and exhaustive scrutiny and re-appraisal before coming to its own conclusion. In a case of conflicting evidence, the appellate court must weigh the conflicting evidence and draw its own inferences and conclusions, making due allowance for the fact that it has neither seen nor heard the witnesses.

Legislation cited (1)

Cases cited (8)

  • Father Nanensio Begumisa and three Others v Eric Tiberaga (SCCA 17 of 2000)
  • Lovinsa Nankya v Nsibambi [1980] HCB 81
  • 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
  • Pritchard v. Rebori, 135 Tenn. 328, 186 S.W. 121, 122 (1916)
  • McCullough v. Absecon Beach Co., 48 N.J. Eq. 170, 21 A. 481, 487 (1891)

Full judgment

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Buladina Achoka v Okello Peter Byella (Civil Appeal No. 25 of 2016) [2019] UGHC 44 (29 August 2019)
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.