Wakilii

Hajji Nsimbe and Another v Luyikwe and 7 Others (Civil Appeal 31 of 2022)

High Court · [2024] UGHC 30 · 2024 Appeal Allowed — Retrial Ordered AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from Kiboga Chief Magistrate's Court decision in favour of respondents
Decision
Matter remitted to Kiboga Magistrates Court for retrial before a different magistrate grade one

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court allowed the appeal on procedural grounds. The trial magistrate failed to properly conduct and record the locus in quo visit as required by law and Practice Direction No. 01 of 2007. The absence of a proper record of the locus proceedings, which the trial magistrate relied upon in reaching his decision, constituted a fatal omission that affected the outcome. The judgment and decree of the lower court were set aside and a retrial ordered before a different magistrate.

Outcome

Matter remitted to Kiboga Magistrates Court for retrial before a different magistrate grade one

Facts

The respondents sued the appellants in the Chief Magistrate's Court claiming they received the disputed land as a gift inter vivos from their late father Hajji Abdul Mulindwa. The respondents alleged the appellants trespassed and destroyed crops. The first appellant claimed he inherited the land from his father Hajji Arimanzane Luyikwe, who was the brother of Hajji Abdul Mulindwa. The trial magistrate decided in favour of the respondents after conducting a locus in quo visit. The appellants appealed on five grounds including improper conduct of the locus visit, failure to evaluate evidence, misapplication of principles relating to gifts inter vivos, and speculative damages.

Issues

  1. Whether the locus in quo visit was properly conducted in accordance with established principles and procedural requirements.
  2. Whether the trial magistrate properly evaluated the evidence on record before reaching a decision.

Orders

  • Appeal allowed.
  • Judgment and decree of the lower court set aside.
  • Retrial ordered before a different magistrate grade one.
  • Each party to bear its own costs.

Rules and key headnotes

Civil Procedure — Locus in Quo — Recording Requirements — Proper Procedure
All proceedings at the locus in quo must be recorded and form part of the court record, showing what transpired including which witnesses testified, what they said under oath, and any cross-examination conducted.
Civil Procedure — Locus in Quo — Proper Procedure — Oath and Examination
Witnesses at locus in quo must be reminded of their oath if already sworn in court, or must take oath before testifying at locus, and must be subject to examination-in-chief and cross-examination with all proceedings recorded.
Civil Procedure — Locus in Quo — Purpose and Limitations
The purpose of a locus in quo visit is to cross-check evidence given by witnesses in court and not to fill gaps in the evidence for them.
Civil Procedure — Locus in Quo — Fatal Omission — Effect on Appeal
Failure to record locus in quo proceedings and make them part of the record to guide the appellate court on the lower court's findings is a fatal omission, particularly where the trial court relied on the locus visit in reaching its decision.
Civil Procedure — First Appellate Court — Duty to Re-hear
The first appellate court has a duty to review the evidence, consider materials before the lower court, subject the evidence to fresh and exhaustive scrutiny and re-appraisal, and make up its own mind.

Legislation cited (1)

Cases cited (6)

  • Kifamunte Henry v Uganda (Supreme Court Criminal Appeal No. 1 of 1997)
  • Father Nanesio Begumisa and 3 Others v Eric Tiberaga (Supreme Court Civil Appeal No. 170 of 2000)
  • Damulira Aloysious v Nakijoba Jesephine (Civil Appeal No. 59 of 2019)
  • Fernades v Noroniha [1969] EA 506
  • Deo Matsanga V Uganda 1998 KALR 57
  • Registered Trustees of the Archdiocese of Tororo v Wesonga Reuben Malaba and 5 Others (Civil Appeal No. 96 of 2009)

Full judgment

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

Hajji Nsimbe and Another v Luyikwe and 7 Others (Civil Appeal 31 of 2022) [2024] UGHC 30 (11 January 2024)
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.