Wakilii

Mugala v Kasenke (HCT-04-CV- CA- 005-2015)

High Court · [2017] UGHCLD 73 · 2017 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from Chief Magistrate's judgment dismissing plaintiff's claim for trespass and encroachment
Decision
Appeal allowed; judgment entered for the appellant with costs

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the trial Magistrate failed to properly evaluate evidence and did not follow the correct procedure during the visit to locus in quo as required by Practice Direction No. 1 of 2007. The trial court improperly attempted to overrule a Magistrate Grade 1 judgment without jurisdiction and based findings on observations at locus that were not recorded. The appellant satisfied her burden of proof that the disputed land was the same land awarded to her in earlier litigation. Appeal allowed and judgment entered for appellant.

Outcome

Appeal allowed; judgment entered for the appellant with costs

Facts

The appellant claimed ownership of land inherited from her father David Nsereke under a written document dated 18 December 1995. She had previously litigated over the same land in Tororo court (CS 0024/2002) and won. The land was formally handed over to her by the LC1 following that judgment. In 2009, the respondent encroached on the land and constructed a house. The appellant sued for trespass and encroachment. The respondent claimed he inherited the land from his grandfather Asanasio Kadyali and that the suit land was different from the land subject to the earlier Tororo litigation. The trial Chief Magistrate dismissed the appellant's claim after a visit to locus. The appellant appealed on grounds that the trial Magistrate failed to evaluate evidence properly and conducted the locus visit perfunctorily.

Issues

  1. Whether the learned trial Magistrate erred in law and fact when he failed to evaluate the evidence properly.
  2. Whether the learned trial Magistrate erred in law and fact when he conducted the proceedings at locus in quo perfunctorily.
  3. Whether the decision of the trial court occasioned a substantial miscarriage of justice.

Orders

  • Appeal allowed.
  • Decision and orders of the learned trial Magistrate set aside.
  • Judgment entered for the plaintiff/appellant.
  • Costs awarded to the appellant here and in the court below.

Rules and key headnotes

Evidence — Burden of Proof — Standard of Proof in Civil Cases
In civil proceedings, the plaintiff bears the burden to prove her case on a balance of probabilities as required under sections 101, 102, and 103 of the Evidence Act. Where the defendant raises a defence, he must adduce cogent evidence to discharge the evidential burden placed on him by his pleadings.
Evidence — Assessment of Witness Credibility — Contradictory Testimony
Where a witness gives contradictory evidence, changing his testimony on material facts during examination and cross-examination, such evidence is unreliable and must be taken with caution. Evidence from a witness who was a party to earlier related litigation and now testifies for the opposing party in subsequent litigation over the same land cannot be cogent.
Civil Procedure — Locus in Quo — Compliance with Practice Direction No. 1 of 2007
When a court visits the locus in quo, it must comply with Practice Direction No. 1 of 2007, Rule 3, which requires that all parties, witnesses, and advocates be present; that parties and witnesses adduce evidence at the locus; that cross-examination be allowed; that all proceedings be recorded; and that the court record all observations, views, opinions, or conclusions including drawing a sketch plan if necessary. The purpose of the visit is to verify evidence given in court, not to fill gaps in the evidence.
Civil Procedure — Locus in Quo — Effect of Non-Compliance with Procedure
Failure to follow the correct procedure during a visit to locus in quo, including failure to record observations made by the trial court, is fatal and amounts to a procedural irregularity. Where the trial court bases its findings on observations and views made at locus which are not part of the recorded proceedings, such findings are a nullity and cannot be relied upon. Such failure vitiates the trial and renders the decision null and void.
Civil Procedure — Appeals — Duty of First Appellate Court
The duty of a first appellate court is to re-evaluate the evidence and make its own conclusions while reminding itself that it did not have the opportunity to listen to the witnesses.
Civil Procedure — Miscarriage of Justice — When Occasioned
A miscarriage of justice is said to have been occasioned where there has been a misdirection on matters of fact or law and the decision cannot be supported having regard to the evidence on record as a whole.

Legislation cited (3)

Cases cited (5)

  • Uganda Revenue Authority v Rwakasaya Azarious and 2 Others (Court of Appeal Civil Appeal No. 8 of 2007)
  • Waibi V Byandala HCB 28 at 29
  • Marieta Dyer Akile v Mawadri George (High Court Civil Appeal No. 2008)
  • Paineto Omwero v Saulo S/o Zebuloni (High Court Civil Suit No. 31 of 2010)
  • Hadondi Daniel v Yolamu Ego (Court of Appeal Civil Appeal No. 67 of 2008)

Full judgment

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

Mugala v Kasenke (HCT-04-CV- CA- 005-2015) [2017] UGHCLD 73 (19 May 2017)
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.