Wakilii

Ddamulira v Nakijoba (Civil Appeal No. 59 of 2019)

High Court · [2021] UGHCCD 236 · 2021 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from Chief Magistrate's Court decision in trespass suit
Decision
Appeal dismissed; trial court's finding of trespass and orders upheld

Observed later treatment

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Holding

The High Court dismissed the appeal and upheld the trial magistrate's finding that the appellant trespassed on the respondent's land. The court held that the locus in quo visit conducted before the defendant's case was heard fulfilled its purpose where both parties were present, gave evidence, and cross-examined witnesses. The court found sufficient evidence that the appellant constructed a house on land allocated to the daughters of the late Joseph Katende, not on the one-acre burial ground he claimed as heir. The court emphasised that equal inheritance rights under Article 26(1) of the Constitution protect daughters' property rights equally with sons.

Outcome

Appeal dismissed; trial court's finding of trespass and orders upheld

Facts

The respondent, one of five daughters of the late Joseph Katende, sued the appellant for trespass. The deceased had distributed his 10 acres of land equally before his death: 5 acres to his daughters and 5 acres to his sons. The respondent obtained letters of administration and was registered as administrator on the title for the daughters' portion. In November 2013, the appellant constructed a permanent house on the respondent's portion. The appellant claimed he inherited 3 acres from his late father Leonard Ssemakula (son of Joseph Katende) and 1 acre as heir and caretaker of Joseph Katende's kibanja, which included ancestral burial grounds. At the locus visit, the court observed that the appellant's house was on the portion allocated to the daughters, while the burial grounds were on the sons' side. The trial magistrate found the appellant had trespassed and granted a permanent injunction. The appellant appealed, challenging the locus visit procedure and the evaluation of evidence.

Issues

  1. Whether the learned trial Magistrate erred in law and fact when she declined to visit locus in quo to ascertain the actual facts of the land in dispute.
  2. Whether the Magistrate misdirected herself on the law and fact and reached wrong decisions.
  3. Whether the learned Magistrate erred in law and fact when she failed to properly evaluate the evidence adduced by the appellant that the Appellant has a house on one acre.

Orders

  • Appeal dismissed.
  • Orders of the trial Court upheld.
  • Costs awarded to the Respondent.

Rules and key headnotes

Civil Procedure — Locus in Quo — Timing of Visit — Whether Locus Visit Before Defendant's Case Heard is Fatal
A locus in quo visit conducted before hearing the defendant's case does not vitiate the proceedings where both parties were present, allowed to give evidence, cross-examine witnesses, and the court made proper observations that were recorded. The purpose of locus is fulfilled if all procedural requirements are met, regardless of timing.
Civil Procedure — Locus in Quo — Adoption of Previous Locus Minutes — Effect of Party's Agreement
Where a party agrees to adopt locus in quo minutes recorded at an earlier visit and does not object, that party is estopped from later appealing on grounds that the locus visit was irregular. No miscarriage of justice occurs where the party fully participated in the locus proceedings and chose to adopt the minutes.
Civil Procedure — Locus in Quo — Purpose and Function — Limits on Court's Use of Observations
The purpose of locus in quo proceedings is to enable the court to check on evidence already given by witnesses and to have such evidence clearly demonstrated. A court must exercise great care not to constitute itself a witness in the case. Neither a view nor personal observation should be substituted for evidence.
Succession & Estates — Distribution of Intestate Estate — Requirement for Letters of Administration
Under Section 191 of the Succession Act, letters of administration are required before dealing in an intestate's estate. Section 25 provides that all property in an intestate devolves upon the personal representative of the deceased upon trust for those persons entitled to such property. Distribution by clan members without letters of administration is contrary to law.
Human Rights — Property Rights — Equal Inheritance — Gender Equality
Article 26(1) of the Constitution protects the right to own property. The law protects the right to equal inheritance and both women and men should exercise their right to property equally. Where a property owner distributed his property equally amongst his children during his lifetime, it is unfair and unjust for clan leaders to deprive daughters of their property on the basis of gender.

Legislation cited (4)

Cases cited (9)

  • Father Nanensio Begumisa and three Others v Eric Tiberaga (SCCA No. 17 of 2000)
  • Mukasa v Uganda (1964) EA 698
  • 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
  • Mukhoda Twaha v Wendo Christopher (Civil Appeal No. 0142 of 2012)
  • Olanya James v Ociti Tom and three others (Civil Appeal No. 064 of 2017)
  • Alimarina Okot..

Full judgment

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

Ddamulira v Nakijoba (Civil Appeal No. 59 of 2019) [2021] UGHCCD 236 (10 March 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.