Wakilii

Muhwezi & 5 Others v Twine (Civil Appeal 21 of 2022)

High Court · [2023] UGHC 455 · 2023 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from a judgment of Magistrate Grade One at Kanungu in Civil Suit No. 028 of 2017
Decision
The trial court's judgment declaring the appellants as trespassers and issuing a permanent injunction was set aside. The appeal court found in favour of the appellants' right to use the communal footpath.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court allowed the appeal, holding that the trial Magistrate committed procedural irregularities by admitting exhibits at the locus in quo after parties had closed their cases. The court found that the evidence established the existence of a longstanding communal footpath or road through the respondent's land, used by the appellants and the wider community. The trial court failed to properly evaluate this evidence. The judgment and orders of the trial court were set aside.

Outcome

The trial court's judgment declaring the appellants as trespassers and issuing a permanent injunction was set aside. The appeal court found in favour of the appellants' right to use the communal footpath.

Facts

The respondent owned customary land in Kanungu Town Council. The appellants used a footpath traversing the respondent's land to access their properties and the wider community. The respondent purchased the land from previous owners who had permitted use of the footpath. After acquiring the land, the respondent attempted to fence off the footpath for security reasons, blocking access. The appellants contended that the footpath had existed for decades and was used communally. The respondent sued the appellants for trespass. The trial court found for the respondent, declaring there was no public road and that the appellants were trespassers. The appellants appealed, arguing that the trial court failed to properly analyze evidence showing the existence of a longstanding communal footpath and that the trial court improperly admitted evidence at the locus in quo after parties had closed their cases.

Issues

  1. Whether the trial Magistrate erred in failing to properly analyze evidence on the record.
  2. Whether the trial Magistrate erred in holding that there was no public road on the disputed land.
  3. Whether the trial Magistrate erred in admitting exhibits in evidence at the locus in quo visit after the parties had closed their cases.

Orders

  • Appeal allowed.
  • The trial court's judgment and orders set aside.
  • Each party to bear its own costs.

Rules and key headnotes

Civil Procedure — Locus in quo visits — Admission of evidence after parties close their cases — Irregularity
It is procedurally irregular and constitutes trial by ambush for a trial court to allow a party to tender documentary evidence at a locus in quo visit after both parties have closed their respective cases, even if the opposing party does not object to the admission.
Evidence — Locus in quo visits — Purpose and scope — Limits on taking fresh evidence
The purpose of a locus in quo visit is to check on evidence already given by witnesses in court, not to fill gaps in their evidence. A court that takes fresh evidence at a locus in quo risks turning itself into a witness in the case.
Land & Property — Easements — Ways of necessity — Implied easements arising from long use
A court may imply an easement based on the intention of original parties and how they intended property to be used. An easement can arise from long use of property in a similar way, where the court assumes the original owners intended to create an easement but forgot to have it noted on the title deed.
Land & Property — Easements — Ways of necessity — Duration and effect
A way of necessity arises by operation of law and continues to exist for as long as the necessity exists, notwithstanding that it was not referred to in the certificate of title to the servient tenement.
Civil Procedure — First appellate court — Duty to re-evaluate evidence and draw own conclusions
On a first appeal, parties are entitled to obtain from the appellate court its own decision on issues of fact as well as law. Although the appeal court must make due allowance for not having seen or heard witnesses, it must weigh conflicting evidence and draw its own inferences and conclusions.

Legislation cited (3)

Cases cited (14)

  • Administrator General v Bwanika James and Others (Supreme Court Civil Appeal No. 7 of 2003)
  • Coghland Vs. Cumberland (1898) 1 ch. 704 (Court of Appeal of England)
  • Pandya V R. (1957) E.A 336
  • Fr. Narsensio Begumisa and Others v Eric Tibebaga (Supreme Court Civil Appeal No. 17 of 2002)
  • Goustar Enterprises Ltd Vs Oumo [2006] EA 77
  • Obita Charles v Kilma Franco and 4 Others (Civil Appeal No. 45 of 2016)
  • Turyahikayo James & 2 Others v Ruremire Denis (High Court Civil Appeal No. 043 of 2010)
  • Okech John David v Ojok Robin (Civil Appeal No. 047 of 2015)
  • 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
  • Zzimula Laban v Anthony Mulindwa (Civil Suit No. 214 of 2011)
  • Barclays Bank versus Patel, [1970] EA 88, Court of Appeal of Kenya

Full judgment

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

Muhwezi & 5 Others v Twine (Civil Appeal 21 of 2022) [2023] UGHC 455 (1 December 2023)
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.