Wakilii

Kigozi Experito v Adida Kigundu & Sait Kisengerwa (Civil Appeal 35 of 2023)

High Court · [2023] UGHC 189 · 2023 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from Magistrate Grade 1 judgment in land dispute suit
Decision
Appeal dismissed; trial court judgment declaring appellant a trespasser and ordering removal of encroaching boundary marks upheld

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court dismissed the appeal, upholding the trial magistrate's finding that the appellant was a trespasser on the respondents' land. The court found that the trial magistrate properly evaluated the evidence and conducted the locus in quo visit in accordance with law. The appellant failed to prove his claim that land he acquired extended beyond old boundary marks into the respondents' late father's land, and credible evidence established that the appellant planted new boundary marks encroaching on the respondents' inherited property.

Outcome

Appeal dismissed; trial court judgment declaring appellant a trespasser and ordering removal of encroaching boundary marks upheld

Facts

The appellant claimed he acquired land (kibanja) from Mpaka John in March 1999 for UGX 200,000 at Ddanya LC1, Busimbi Division, Mityana Municipality. In 2020, he alleged the respondents, sons of the late Musoke Muhammed Lukwago, trespassed on his land. The respondents countered that they inherited the land from their father and that the appellant's land was adjacent to theirs. Witnesses testified to the existence of old boundary marks (barbed wire fence and Majirikiti) that had been present when the appellant purchased his land. The appellant planted new, young boundary marks after the death of the respondents' father in 2015, which extended into the respondents' land. The trial court visited locus and found the old boundary marks corroborated the respondents' testimonies, while the appellant's new marks were recent plantings. The appellant explained he had not marked boundaries in 1999 due to scarcity of demarcation items. The LC2 resolved the boundary dispute in the respondents' favour before the matter proceeded to court.

Issues

  1. Whether the trial Magistrate erred in law and fact by failing to evaluate all the evidence before Court.
  2. Whether the trial Magistrate erred in law when she conducted the locus visit in an irregular manner.

Orders

  • Appeal dismissed.
  • Judgment and orders of the trial Court upheld.
  • Costs of the High Court and the Court below awarded to the Respondents.

Rules and key headnotes

Land & Property — Trespass to Land — Defence of Claim of Right — Effect
A defence of claim of right, if proved, constitutes a complete defence to a claim of trespass to land. Trespass occurs when a person makes an unauthorised entry upon land and thereby interferes or portends to interfere with another person's lawful possession of that land.
Civil Procedure — Appeals — Duty of First Appellate Court
A first appellate court is under a duty to subject the entire evidence on the record to exhaustive scrutiny, to re-evaluate it and make its own conclusions, while bearing in mind that the court never observed the witnesses under cross-examination so as to test their veracity.
Evidence — Evaluation of Evidence — No Set Format Required
There is no set format to which evaluation of evidence should conform. While the length of analysis may be indicative of comprehensive evaluation, the test of adequacy remains a question of substance.
Civil Procedure — Locus in Quo Visit — Purpose and Procedure
Locus in quo proceedings are intended to check on the evidence already given and, where necessary and possible, to have such evidence ocularly demonstrated. A judge or magistrate must exercise great care not to constitute himself a witness in the case. Neither a view nor personal observation should be substituted for evidence. The purpose of visiting locus in quo is for each party to indicate what he is claiming and each party must testify on oath and be cross-examined.
Civil Procedure — Locus in Quo Visit — Basis for Adjudication
The adjudication and final decision of a suit should be made on the basis of evidence taken in court. The locus visit must be limited to an inspection of specific aspects of the case as canvassed during oral testimony in court and the testing of evidence on those points.
Civil Procedure — Preliminary Objections — Grounds of Appeal — Defective Framing
Where a ground of appeal is not well framed and flouts the requirement that a memorandum of appeal be concise and set forth under distinct heads the grounds of objection to the decree appealed from, a badly framed ground may only be ignored in the interest of doing substantive justice. A court may overrule an objection to a defective ground where the court is enjoined to re-evaluate the entire record.

Legislation cited (1)

Cases cited (8)

  • Mukisa Biscuit Manufacturing Ltd v West End Distributers Ltd (1969) EA 696
  • Katumba Byaruhanga v Edward Kyewalabye Musoke (Court of Appeal Civil Appeal No. 2 of 1998)
  • Sanyu Lwanga Musoke v Sam Galiwanga (Supreme Court Civil Appeal No. 48 of 1995)
  • Francis Sembuya v Alport Services Ltd (Supreme Court Civil Appeal No. 6 of 1999)
  • Ephraim Orgoru Odongo & Another v Francis Benega Bonge (Supreme Court Civil Appeal No. 10 of 1987)
  • Justine EM Lutaaya v Sterling Civil Engineering Ltd (Civil Appeal No. 11 of 2002)
  • Mukasa v Uganda (1964) EA 698
  • Mabalega v Sepriano Mugangu (1992) KALR 265

Full judgment

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

Kigozi Experito v Adida Kigundu & Sait Kisengerwa (Civil Appeal 35 of 2023) [2023] UGHC 189 (21 December 2023)
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.