Kutambaki Augustine v Byaruhanga Paul (Civil Appeal No. 65 of 2012)

Observed later treatment

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

On a second appeal in a land trespass dispute, the Court of Appeal held that where a trial court relies significantly on locus in quo proceedings that were not properly conducted or recorded, this is fatal to the judgment but not necessarily to the whole trial. A re-trial should be ordered only where the interests of justice require it and the trial is not salvageable on the available record. Here, the first appellate judge had properly re-evaluated the remaining evidence and correctly concluded the disputed land belonged to the respondent without relying on the flawed locus visit, so no miscarriage of justice occurred. The appeal was dismissed with costs.

Outcome

Appeal dismissed; High Court decree that the disputed land belongs to the respondent affirmed

Facts

The respondent sued his uncle, the appellant, in the magistrates' court for trespass over approximately five acres of land which the respondent claimed to have inherited from his late father, Alifunsi Nsiisi, who died in 1978. The appellant contended that he had bought the land jointly with his brother (the respondent's father) and that it had been divided between them. The late father's will directed that the appellant should not cross a specified road to disturb the children. A key dispute concerned whether that road was the road to Mpunda. The appellant admitted encroaching on the land in 1990 and having sold the disputed land, later refunding the buyer after clan intervention, which contradicted his own witnesses. The trial magistrate visited the locus in quo but did not properly record his observations or draw a sketch plan, and gave judgment for the appellant. The High Court reversed on appeal, decreeing the land to the respondent. The appellant died and is now represented by James Agaba.

Issues

1. Whether the first appellate judge erred in law by failing to order a re-trial once it was established that the trial magistrate had relied on evidence from the locus in quo which was not captured on the record of proceedings.

Orders

• Appeal dismissed with costs here and below.

Rules and key headnotes

Legislation cited (3)

• Civil Procedure Act s.72
• Civil Procedure Act s.74
• Practice Direction No. 1 of 2007

Cases cited (6)

• Yowasi Kabisuruka v Samuel Byarufu [2010] UGCA 7
• Yeseri Waibi v Edisa Lusi Byandala 1982 HCB 28
• Mukasa v Uganda [1964] EA 698
• Vicent Ntambi v Uganda (Criminal Appeal No. 78 of 2012)
• J.W. Ononge v Okallang [1986] HCB 63
• Badiru Kabalesa v Sepiriano Musangu (High Court Civil Appeal No. 7 of 1987)

Cases citing this judgment (1)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

• Hunter Investments Ltd v Kato Fred (Civil Appeal No. 47 of 2017)

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