Wakilii

Kala v Ogobilo (Civil Appeal No. 0009 of 2014)

High Court · [2016] UGHCCD 64 · 2016 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from Chief Magistrate's Court trespass suit
Decision
The judgment of the trial court in favour of the respondent for trespass, eviction, permanent injunction and costs was affirmed.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court dismissed the appeal, holding that the trial magistrate properly evaluated the evidence and correctly found that the appellant had encroached on the respondent's land beyond the boundaries of the land originally given to the appellant's mother. The Court held that the locus in quo proceedings were properly conducted in accordance with Practice Direction No. 1 of 2007, and that it was the appellant's duty to summon his own witnesses to attend. The appeal was also held to be incompetent for having been filed outside the statutory 30-day period.

Outcome

The judgment of the trial court in favour of the respondent for trespass, eviction, permanent injunction and costs was affirmed.

Facts

The respondent sued the appellant for trespass on approximately three acres of land at Arobwa village, Yumbe Town Council, seeking eviction, permanent injunction, general damages and costs. The respondent claimed the land through inheritance from his father Silliman Govule, who had given the appellant's mother Khadija a portion of land on which to grow groundnuts. The boundary was marked by Chaugo trees. The respondent alleged that in 2005, the appellant exceeded the boundaries given to his mother and encroached on neighbouring land belonging to the respondent, constructing a semi-permanent house and alienating part of the land to another person. Local Council and elders' attempts at resolution in 2006 and 2007 had decided in favour of the respondent. The appellant claimed he inherited the land from his deceased father Mohammed Viga who died in 1986, and denied any encroachment beyond the Chaugo tree boundary. The trial court visited the locus in quo on 19 February 2014, where the respondent and his witnesses attended and demonstrated the boundaries, while the appellant's witnesses did not attend. The trial court found for the respondent and awarded eviction, permanent injunction, general damages and costs.

Issues

  1. Whether the trial magistrate properly evaluated the evidence on record in holding that the suit land belonged to the respondent.
  2. Whether the trial magistrate conducted proceedings at the locus in quo in accordance with proper procedure.
  3. Whether the appeal was filed within the statutory time limit prescribed by section 79 of the Civil Procedure Act.

Orders

  • Appeal dismissed.
  • Costs of the appeal awarded to the respondent.
  • Costs of the trial awarded to the respondent.

Rules and key headnotes

Civil Procedure — First Appellate Court — Duty on Appeal — Re-evaluation of Evidence
A first appellate court must reconsider the evidence, evaluate it itself and draw its own conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. The appellate court is not bound to follow the trial judge's findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence generally.
Evidence — Standard of Proof — Balance of Probabilities in Civil Matters
Proof in civil matters which is sufficient to justify a finding of fact is on the balance of probabilities. This standard is satisfied if the court, upon considering the evidence adduced by the party on whom the burden lies alongside all the other evidence before it, believes that the existence of the fact sought to be proved is so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does exist. Where a reasonable man might hold that the more probable conclusion is that for which the plaintiff contends, then the court is justified in making a finding in the plaintiff's favour.
Land & Property — Boundary Disputes — Determination of Boundaries — Weight of Evidence
In a land boundary dispute where the issue is not the root of title but the extent in terms of a common boundary of respective pieces of land, resolution of the dispute lies in the court's evaluation of evidence fixing the boundary of the adjacent pieces of land. Evidence relating to the root of title of each party provides context within which the boundary was fixed rather than as a pivotal consideration in the determination of rights over the disputed part of the land.
Civil Procedure — Locus in Quo — Purpose and Conduct of Site Visit — Not for Fresh Evidence
The power of inspection of the locus in quo is for the purpose of the court understanding the evidence and it must be strictly confined to that and not for adducing fresh evidence. It is not meant for the introduction into the case of matters personally observed by the magistrate on inspection or inquiry in order to test the accuracy of the parties' evidence. A trial magistrate should use the visit to the locus in quo for the purpose of making himself familiar with the local facts in order that he might understand the evidence adduced by both sides at the trial better, and for no other purpose.
Civil Procedure — Locus in Quo — Attendance of Witnesses — Duty of Parties to Summon Witnesses
Order 16 rule 1 of the Civil Procedure Rules casts the burden on the parties to obtain, on application to the court, summonses to persons whose attendance is required either to give evidence or to produce documents. Upon receiving notification of the date for visiting the locus in quo, it is incumbent upon a party to cause the attendance of such witnesses who had testified on his behalf as he deems necessary. Attendance of locus in quo proceedings is not mandatory for every witness who testified during the trial. The duty of determining which witness will be required to attend the proceedings is that of the parties and not the court.
Civil Procedure — Appeals — Time Limits — Section 79 Civil Procedure Act — Incompetent Appeal
Section 79 of the Civil Procedure Act requires appeals to be filed within thirty days from the date of the judgment. An appeal filed outside this period without proof of extension or enlargement of time is incompetent.

Legislation cited (2)

Cases cited (9)

  • Selle v Associated Motor Boat Co. [1968] EA 123
  • Abdul Hameed Saif v Ali Mohamed Sholan (1955) 22 EACA 270
  • Bogere Moses and Another v Uganda (Supreme Court Criminal Appeal No. 1 of 1997)
  • Kasifa Namusisi and Others v Francis M.K. Ntabaazi (Supreme Court Civil Appeal No. 4 of 2005)
  • Kahwa Stephen and Another v Kalema Hannington (High Court Civil Appeal No. 07 of 2011)
  • Ahmed Dauda Zziwa and Another v Dr. Kafumbe Anthony Luyirika (High Court Civil Appeal No. 033 of 2012)
  • Yeseri Waibi v Edisa Byandala [1982] HCB 28
  • Board of Governors and the Headmaster Gulu S.S. v Phinson E. Odong (High Court Civil Appeal No. 02 of 1990)
  • Lancaster v Blackwell Colliery Co. Ltd 1918 WC Rep 345

Full judgment

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

Kala v Ogobilo (Civil Appeal No. 0009 of 2014) [2016] UGHCCD 64 (6 October 2016)
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.