Wakilii

Lubega Saulo v Kabali and 4 Others (HCT-15-LD-CA 16 of 2017)

High Court · [2021] UGHC 33 · 2021 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from the Chief Magistrate's Court at Mpigi
Decision
Appeal dismissed and withdrawn with costs against the appellant

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court dismissed the appeal challenging a Chief Magistrate's ruling in a land dispute. The appellant alleged fraud in the respondents' acquisition of land and complained that the trial court refused to order a visit to locus. The court found no fraudulent act proven, noting the first respondent acted as administrator when transacting. A visit to locus was unnecessary where all issues were clear from documentary evidence. The appellant sought to withdraw the appeal; withdrawal was granted but costs were awarded against the appellant, not his counsel.

Outcome

Appeal dismissed and withdrawn with costs against the appellant

Facts

The appellant appealed a Chief Magistrate's decision that favoured the respondents in a land dispute concerning Block 95. The appellant alleged that a sale agreement dated 16 May 2001 between Joseph Vuningoma and Mirieri Nakimera was null and void because Nakimera had no right to sell, fraudulently claiming to be the administrator of the late Nasanairi Kinalwa's estate when letters of administration were granted to Ezra Herbert Kabali on 15 May 2006. The first respondent subsequently transacted with the fifth respondent. The appellant sought a visit to locus in quo to establish physical and legal occupation. During the appeal hearing, the appellant sought and was granted leave to withdraw the appeal, leaving only the issue of costs to be determined.

Issues

  1. Whether the respondents perpetrated fraud in the acquisition of the land in dispute.
  2. Whether the trial magistrate erred in refusing to order a visit to locus in quo.
  3. Whether costs should be awarded following withdrawal of the appeal and if so, whether they should be borne by counsel or the appellant.

Orders

  • Appeal dismissed with costs to the respondents in both the lower court and the High Court.
  • Leave granted to the appellant to withdraw the appeal under Order 25 Rule 1 of the Civil Procedure Rules.
  • Costs of Miscellaneous Application No. 1326 of 2016 and Miscellaneous Application No. 1308 of 2016 awarded to the respondents.
  • Costs to be paid by the appellant, not by counsel.

Rules and key headnotes

Civil Procedure — Appellate Jurisdiction — Duty of First Appellate Court
It is the duty of the first appellate court to appreciate the evidence adduced in the trial court, subject it to exhaustive scrutiny and re-evaluate evidence in order to reach its own conclusion, taking into account the fact that it did not see the witnesses nor visit the locus.
Evidence — Burden of Proof — General Principle
Under sections 101, 102 and 103 of the Evidence Act, whoever asserts a fact must prove it; whoever wants a court to believe in the existence of a given set of facts must have the burden to prove their existence.
Civil Procedure — Locus in Quo — Discretion to Order Visit
Where all issues are very clear from documentary and other evidence, there is no need to visit locus in quo; a visit is discretionary and refusal to order one does not constitute an error where the evidence is sufficiently clear.
Civil Procedure — Withdrawal of Appeal — Costs Following Withdrawal
Where an appellant withdraws an appeal with leave of court under Order 25 Rule 1 of the Civil Procedure Rules, the court retains discretion to award costs; costs ordinarily follow the event and are awarded to the successful party unless there are special circumstances justifying departure from the general rule.
Civil Procedure — Costs — Advocate's Personal Liability for Costs
An advocate may be ordered to pay costs personally where there is misconduct or negligence in the conduct of litigation, but mere filing of multiple remedies (such as appeal and revision) does not amount to misconduct or negligence justifying an order for costs against counsel personally.

Legislation cited (4)

Cases cited (5)

  • Begumisa and Others v Tibabaga (2004) 2 EA 17
  • Zaabwe v Orient Bank (Supreme Court Civil Appeal No. 4 of 2006)
  • Rwakijuma Kabagambe and 4 Others v Bishop Clovis Sunday (HCT-CV-CA-005/2009)
  • Ayella Odoch Jimmy Joel v Kitgum District Local Government and Another (High Court Civil Application No. 26 of 2014)
  • Joel Kato and Another v Nwuule Nalwagga (Supreme Court Miscellaneous Application No. 4 of 2021)

Full judgment

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

Lubega Saulo v Kabali and 4 Others (HCT-15-LD-CA 16 of 2017) [2021] UGHC 33 (19 April 2021)
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.