Wakilii

Nalwoga v Nansukusa & Anor (Civil Appeal No. 17 of 2011)

High Court · [2012] UGHC 243 · 2012 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from Makindye Chief Magistrates Court judgment in a land ownership dispute
Decision
Appeal dismissed; trial court judgment in favour of respondents affirmed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court dismissed the appeal, holding that the cause of action in trespass accrued in 2006 when the appellant denied the respondents vacant possession and therefore the claim was not time barred. A visit to the locus in quo was not mandatory where boundaries were not in dispute. The respondents' documentary and oral evidence was consistent and credible whereas the appellant's evidence was materially self-contradictory regarding witnesses to the alleged oral agreement and payment of consideration. The appellant had not pleaded fraud in the trial court and could not raise it on appeal.

Outcome

Appeal dismissed; trial court judgment in favour of respondents affirmed

Facts

The appellant was the widow of Ssalongo Ssewamala. The respondents were children of Donah Ssenfuka, son of Ssewamala and step-son to the appellant. The appellant claimed to have purchased a kibanja from Joseph Ngubu in 1978 through an oral agreement and later sought to sell it. The respondents disputed this, contending that their father Ssenfuka had purchased the same land from Ngubu in 1979 under a formal written sale agreement and that the land had been transferred to them after his death. The respondents adduced a written sale agreement dated 6 September 1979 witnessed by six persons. The appellant's evidence and that of her witness contained material contradictions regarding the circumstances of the alleged oral purchase, who witnessed it, where and how payment was made, and the amount paid. The trial magistrate found for the respondents. The appellant appealed on five grounds including failure to evaluate evidence, entertaining a time-barred claim, allowing a claim based on fraud, finding the appellant had no interest, and failure to visit the locus in quo.

Issues

  1. Whether the trial magistrate erred in failing to evaluate the evidence on record.
  2. Whether the claim was time barred.
  3. Whether the respondents' claim was based on fraud and forgery.
  4. Whether the appellant had any interest in the suit land.
  5. Whether the failure to visit the locus in quo constituted a miscarriage of justice.

Orders

  • Appeal dismissed.
  • Costs of the appeal to the respondents.
  • Costs in the lower court to the respondents.

Rules and key headnotes

Trespass to Land — Continuous Tort — Limitation of Actions
Trespass to land is a continuous tort and where trespass is continuous, a person with the right to sue may exercise that right immediately after the trespass commences or at any time during its continuance or after it has ended, subject to the law on limitation of actions.
Trespass to Land — Locus Standi — Possession Distinguished from Physical Occupation
Only a person in possession of land has capacity to sue in trespass and possession does not mean physical occupation; the slightest amount of possession will suffice and it is not necessary for the claimant to take active steps such as enclosing or cultivating the land.
Locus in Quo — Discretionary Nature of Visits — When Mandatory
A visit to the locus in quo is not mandatory but is necessary in deserving cases where the court needs to verify evidence on the ground, particularly to determine boundaries of land in dispute or special features thereon where this cannot be reasonably achieved by witness testimony in court.
Appellate Review — Duty of First Appellate Court — Re-evaluation of Evidence
A first appellate court is under a duty to re-evaluate the evidence on record and arrive at its own independent conclusion but will be loath to interfere with findings of fact by a trial court and will only do so when it concludes the trial court is plainly wrong, taking into account that it has not had the advantage of observing the demeanour of witnesses.
Credibility of Evidence — Material Inconsistencies in Testimony
Where a party's evidence and that of their witnesses contain material self-contradictions on essential elements of their case such as identity of witnesses to an agreement, circumstances of payment of consideration, and the amount paid, such evidence is unreliable and lacks credibility compared to consistent evidence from the opposing party.
Fraud — Pleading Requirements — Inference from Facts
Fraud must be specifically pleaded and proved, with particulars of the alleged fraud stated in the pleading and strictly proved, but where the facts alleged in a pleading are such as to create fraud it is not necessary to explicitly allege fraudulent intent and fraud may be inferred from the acts alleged; fraud cannot be raised for the first time on appeal where it was not pleaded at trial.

Legislation cited (1)

  • Practice Direction No. 1 of 2007 guideline 3

Cases cited (13)

  • Justine E.M.N. Lutaaya v Stirling Civil Engineering Company (Civil Appeal No. 11 of 2002)
  • Wuta-Ofei v Danquah (1961) 3 All E.R.596
  • Oola Lalobo vs. Okema Jakeo Akech Civil Suit N0. 20 of 2004
  • Safina Bakulimya & Another v Yusufu Musa Wamala (Civil Appeal No. 68 of 2007)
  • J. Muluta v S. Katama (Civil Appeal No. 11 of 1999)
  • Kasifa Namusisi & Others v Francis M.K. Ntabaazi (Civil Appeal No. 4 of 2005)
  • Jiwan Vs Gohil (1948) 15 EACA 36
  • R.G.Patel Vs Lalji Makaiji (1957) EA 314
  • Banco Espanol v Bank of Uganda (Civil Appeal No. 8 of 1998)
  • Sebuliba vs. Cooperative Bank Ltd (1982) HCB 130
  • F. Zaabwe v Orient Bank & Others (Civil Appeal No. 4 of 2006)
  • Tifu Lukwago v Samwiri Mudde Kizza & Another (Civil Appeal No. 13 of 1996)
  • B.E.A Timber Co. vs Inder Singh Gill (1959) EA 463

Full judgment

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Nalwoga v Nansukusa & Anor (Civil Appeal No. 17 of 2011) [2012] UGHC 243 (16 November 2012)
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.