Wakilii

Komakech v Anywar & Anor (CIVIL APPEAL No. 062 OF 2018)

High Court · [2019] UGHCCD 158 · 2019 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from Chief Magistrate's Court dismissal of land recovery suit
Decision
Appeal dismissed with costs to respondents; trial court judgment dismissing land recovery suit upheld

Observed later treatment

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Holding

The High Court dismissed the appeal, upholding the trial magistrate's dismissal of the land recovery suit. The court held that actions for recovery of land require the plaintiff to prove a better title than the defendant's, and that the appellant failed to prove valid title. The court found that evidence from the locus in quo visit was consistent with the respondents' version of ownership. On the procedural ground, the court ruled that the trial magistrate properly conducted locus proceedings, as the court cannot be faulted for not recording features that the parties did not bring to its attention. The court also refused to admit new evidence on appeal where it could have been produced at trial with reasonable diligence.

Outcome

Appeal dismissed with costs to respondents; trial court judgment dismissing land recovery suit upheld

Facts

The appellant sued to recover land measuring approximately 300 metres x 100 metres in Gulu Municipality, claiming his late father Okello John Mwokka acquired it as vacant land around 1955 and his mother later paid fees to the Town Council by way of Temporary Occupation Licence. The appellant alleged the respondents took advantage of the insurgency to occupy the land without permission. The respondents countered that the first respondent's late father purchased the land in 1963 from a Kenyan, and that the second respondent's father acquired his portion from the first respondent's father in 1955. Both respondents claimed their fathers paid ground rent to Gulu Municipal Council and constructed houses on the land. At the locus in quo visit, the trial court found the first respondent had a homestead and gardens on the land, while the appellant had no developments or crops. The trial magistrate dismissed the suit, finding the appellant failed to prove how his father acquired the land or provide documentary evidence of payments to the Council, while the respondents were in possession and produced evidence of rate payments.

Issues

  1. Whether the trial magistrate erred in law and fact by ignoring the evidence adduced by the appellant.
  2. Whether the trial magistrate erred in law and fact in holding that the respondents had not trespassed on the suit land.
  3. Whether locus in quo proceedings were conducted in accordance with the proper procedure.

Orders

  • Appeal dismissed.
  • Costs of the appeal awarded to the respondents.
  • Costs of the trial court awarded to the respondents.

Rules and key headnotes

Land Law — Recovery of Land — Burden of Proof — Requirement to Prove Better Title
Actions for recovery of land are premised on proof of a better title than the adversary's. Possession is prima facie evidence of ownership and the law protects the right to possession. Where someone is in possession and is sued for recovery, the plaintiff must show a better title. If the plaintiff does not succeed in proving title, the one in possession keeps the property. The plaintiff must succeed by the strength of his own title and not by the weakness of the defendant's.
Civil Procedure — Locus in Quo — Purpose and Proper Conduct — Recording of Evidence and Observations
Visiting the locus in quo is for purposes of enabling the trial court to understand evidence better and to harness the physical aspects of evidence. It is meant to check on evidence by witnesses, not to fill gaps in their evidence. Evidence at the locus cannot substitute evidence given in court but can only supplement by way of verification. All evidence and proceedings at the locus must be recorded and form part of court record. The court cannot be faulted for not recording features that none of the parties brought to its attention during the visit.
Evidence — Appellate Procedure — New Evidence on Appeal — Conditions for Admission
Appellate courts ordinarily do not receive new evidence that is not included in the record of appeal. New evidence may only be admitted in exceptional cases where the interests of justice lead to the conclusion that an injustice has been done. It must be shown that the new evidence could not have been obtained with reasonable diligence for use at trial and that it was of such weight as to likely affect the court's decision. Evidence which either was in the possession of parties at the time of trial or by proper diligence might have been obtained, but was not produced, cannot be introduced on appeal.
Civil Procedure — Appellate Courts — Duty of First Appellate Court — Re-evaluation of Evidence
It is the duty of a first appellate court to re-hear the case by subjecting the evidence presented to the trial court to a fresh and exhaustive scrutiny and re-appraisal before coming to its own conclusion. In a case of conflicting evidence the appeal court must make due allowance for the fact that it has neither seen nor heard the witnesses, must weigh the conflicting evidence and draw its own inferences and conclusions. The appellate court may interfere with a finding of fact if the trial court is shown to have overlooked any material feature in the evidence or if the balance of probabilities as to credibility is inclined against the trial court's opinion.

Cases cited (15)

  • Father Nanensio Begumisa and Others v Eric Tiberaga (SCCA No. 17 of 2000)
  • Lovinsa Nankya v Nsibambi [1980] HCB 81
  • 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
  • Karmali Tarmohamed and Another v TH Lakhani and Co [1958] EA 567
  • Namisango v Galiwango and Another [1986] HCB 37
  • Mzee Wanje and Others v Saikwa and Others [1976-1985] I EA 364
  • Attorney General v PK Ssemogerere and Others (Constitutional Application No. 2 of 2004)
  • Ladd v Marshall [1954] 1 WLR 1489
  • Makubuya Enock William v Bulaim Muwanga Kibirige (SC Civil Application No. 133 of 2014)
  • Hon Bangirana Kawoya v National Council for Higher Education (SC Misc Application No. 8 of 2013)
  • Skone v Skone [1971] 1 WLR 817
  • Ocean Estates Ltd v Pinder [1969] 2 AC 19

Full judgment

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

Komakech Vs Anywar & Anor (CIVIL APPEAL No. 062 OF 2018) [2019] UGHCCD 158 (9 May 2019)
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.