Wakilii

Kisembo and 3 Others v Tibezinda and 2 Others (Civil Appeal No. 250 of 2016)

Court of Appeal · [2022] UGCA 294 · 2022 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Second appeal from High Court decision on a first appeal in a land ownership dispute
Decision
Appeal dismissed; the High Court decision dismissing the appellants' suit stands

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal (by majority) dismissed a second appeal in a land ownership dispute. Although the grounds of appeal offended sections 72 and 74 of the Civil Procedure Act by raising mixed questions of law and fact, and the purported amendment via submissions without leave was rejected, the majority declined to strike out the appeal and re-evaluated the evidence to determine whether the first appellate Judge properly reappraised it. The Court held that the first appellate Judge was entitled to weigh the whole of the appellants' evidence, including the Wandera Will and the Bunyoro certificate, and to find it contradictory. The appellants failed to discharge their burden of proving ownership on a balance of probabilities. Musota JA dissented, favouring striking out the incompetent appeal.

Outcome

Appeal dismissed; the High Court decision dismissing the appellants' suit stands

Facts

The appellants, descendants of the late Elasto Kibwara, claimed ownership of land at Kitamanya Village, Masindi, asserting Kibwara acquired it from Bunyoro Kitara Kingdom in 1939 and that the respondents had trespassed on portions after his death in 1991. The respondents contended they and their ancestors had lived on their own neighbouring land for decades and that Kibwara's land was separate. The appellants relied on the evidence of PW3, PW4 and PW5, a certificate of ownership from Bunyoro (PE3), and the Will of Yovan Wandera (PE1). The Chief Magistrate's Court found largely for the appellants and awarded general damages of UGX 9,000,000, a permanent injunction, and costs. On appeal, the High Court found the appellants' evidence contradictory, hearsay in parts and not cogent, set aside that judgment and dismissed the suit with costs. The appellants brought a second appeal alleging the first appellate Judge failed to properly evaluate the evidence, in particular PW5's testimony and the documentary exhibits.

Issues

  1. Whether the grounds of appeal in a second appeal offended sections 72 and 74 of the Civil Procedure Act by raising matters of mixed law and fact.
  2. Whether counsel could validly amend the grounds of appeal through submissions without leave of court.
  3. Whether the first appellate Judge failed to properly re-evaluate the evidence, in particular the evidence of PW5, the Wandera Will (PE1) and the Bunyoro certificate (PE3).
  4. Whether the appellants proved ownership of the suit land on a balance of probabilities.

Orders

  • Appeal dismissed.
  • Costs of the appeal and of the proceedings in the lower courts granted to the respondents.

Rules and key headnotes

Civil Procedure — Second Appeals — Grounds Confined to Points of Law under Civil Procedure Act ss.72 and 74
On a second appeal to the Court of Appeal, the grounds of appeal must relate to points of law only and not to points of mixed law and fact or of fact, failing which they offend sections 72 and 74 of the Civil Procedure Act and are liable to be struck out.
Civil Procedure — Amendment of Pleadings — Requirement of Leave under Court of Appeal Rules rr.17 and 45
A party seeking to amend a memorandum of appeal must first obtain leave of court under the Court of Appeal Rules; purporting to change the grounds of appeal through written submissions amounts to an amendment without leave and is invalid.
Civil Procedure — Second Appeals — Duty to Re-evaluate Evidence Where First Appellate Court Failed to Do So
It is a point of law whether the first appellate court properly reappraised the evidence; where it is alleged to have made findings unsupported by the evidence, the second appellate court may itself reappraise the evidence, and a court may decline to strike out an appeal whose grounds technically offend the Civil Procedure Act in order to adjudicate on the merits.
Evidence — Assessment — Whole Evidence to be Weighed, Not Segmented
A court must weigh the whole of the evidence, both documentary and oral, in a wholesome and not a segmented manner; documentary evidence admitted without objection is not automatically to be believed where it contradicts other evidence adduced by the same party.
Land & Property — Proof of Ownership — Burden of Proof on Balance of Probabilities
A claimant asserting ownership of land bears the burden of proving the claim on a balance of probabilities, and where the claimant's evidence is materially contradictory on key issues such as the source and extent of the interest claimed, that burden is not discharged.

Legislation cited (11)

Cases cited (7)

  • Pandya v R [1957] EA 336
  • Muluta Joseph v Katama Sylvano (Civil Appeal No. 11 of 1999)
  • Celtel Uganda Ltd v Karungi Susan (Civil Appeal No. 73 of 2013)
  • Habre International Co. Ltd v Ebrahim Alarakhia Kassam and Others (Civil Appeal No. 4 of 1999)
  • Masembe v Sugar Corporation and another [2002] 2 EA 434
  • Kifamunte v Uganda (Criminal Appeal No. 10 of 1997)
  • Nguyen v Tran [2018] NSWCA 215

Full judgment

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Kisembo and 3 Others v Tibezinda and 2 Others (Civil Appeal No. 250 of 2016) [2022] UGCA 294 (21 December 2022)
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.