Wakilii

Ndalike Lameck and 3 Others v Mazinga (Civil Appeal No. 26 of 2018)

High Court · [2021] UGHC 37 · 2021 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from Chief Magistrate's Court judgment in eviction and trespass suit
Decision
Matter remitted for locus visit with government surveyor to ascertain land measurements and determine whether respondent is within purchased boundaries

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Appeal partly allowed. The High Court found that the trial magistrate correctly applied sections 91 and 92 of the Evidence Act in refusing oral evidence contradicting the written sale agreement, and properly relied on the unchallenged sale agreement. However, the trial magistrate erred fundamentally in failing to ascertain the measurements of the disputed land. The matter was remitted for a locus visit with a government surveyor to determine whether the respondent's occupation falls within the purchased boundaries.

Outcome

Matter remitted for locus visit with government surveyor to ascertain land measurements and determine whether respondent is within purchased boundaries

Facts

The respondent purchased land measuring 89ft by 92ft from the appellants' father on 14 September 2010 for UGX 1,700,000 under a written sale agreement. The respondent developed the land and later sued the appellants for eviction, permanent injunction, damages for trespass, and a declaration of ownership. The appellants claimed the respondent had encroached on their land by 50ft by 30ft. The Chief Magistrate's Court granted judgment in favour of the respondent. The appellants appealed, arguing the trial court failed to consider their evidence, wrongly relied on the sale agreement, and failed to ascertain measurements during locus visit. Evidence showed the appellants had constructed a pit latrine and shops on the disputed portion.

Issues

  1. Whether the trial magistrate erred in refusing to consider the appellants' evidence.
  2. Whether the trial magistrate erred in relying on the contested sales agreement.
  3. Whether the trial magistrate erred in failing to ascertain the measurements of the disputed land during locus visit.

Orders

  • Appeal partly succeeds.
  • Within one month from the date of delivery of this judgment, court shall visit the disputed land in the presence of the parties and their lawyers with the help of a government surveyor to ascertain the measurements.
  • Each party to bear its own costs.

Rules and key headnotes

Documentary Evidence — Oral Evidence Contradicting Written Agreement — Evidence Act ss.91 and 92
Where a written sale agreement exists and is unchallenged, sections 91 and 92 of the Evidence Act prohibit the admission of oral evidence to contradict, vary, add to, or subtract from the terms of that written agreement.
First Appellate Court — Duty to Re-evaluate Evidence
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 the evidence in order to reach its own conclusion, taking into account that it did not see the witnesses nor visit the locus.
Boundary Disputes — Duty to Ascertain Measurements at Locus
Where the core dispute concerns land measurements and alleged encroachment, a trial court's failure to ascertain the actual measurements during locus visit constitutes a fundamental error requiring remittal for proper determination with the assistance of a government surveyor.

Legislation cited (2)

Cases cited (2)

  • Begumisa & others v Tibabaga (2004) 2 EA 17
  • Fredrick Zaabwe v Orient Bank (SCCA No. 4 of 2006)

Full judgment

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

Ndalike Lameck and 3 Others v Mazinga (Civil Appeal No. 26 of 2018) [2021] UGHC 37 (31 March 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.