Wakilii

Ndighaha v Sekanabo (Civil Appeal 15 of 2018)

High Court · [2024] UGHC 711 · 2024 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First appeal from Chief Magistrate's Court judgment on land boundary dispute and trespass
Decision
Trial court judgment declaring respondent owner of suit land, appellant a trespasser, and ordering appellant to surrender encroached portion upheld by High Court

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

The High Court dismissed the appeal, holding that while the trial magistrate improperly relied on a pre-trial visit rather than formal locus in quo proceedings, sufficient evidence on record independently supported the finding of trespass. The court held that where boundary marks were uprooted and the land was not measured at time of purchase but only described by boundaries, the respondent successfully proved on the balance of probabilities that the appellant encroached beyond the original boundaries by 23 ft by 29 ft.

Outcome

Trial court judgment declaring respondent owner of suit land, appellant a trespasser, and ordering appellant to surrender encroached portion upheld by High Court

Facts

In 2009, the respondent sold 1½ acres of land to the appellant in Bundibugyo District. The land was described by boundaries marked by oburamura trees, as recorded in the sale agreement. The parties did not measure the land at the time of purchase. Thereafter, the appellant allegedly uprooted the boundary trees and encroached on the adjacent land belonging to the respondent by 23 ft by 29 ft. The respondent sued for a declaration of ownership, trespass, damages, and injunction. The Chief Magistrate's Court found for the respondent, awarding UGX 3,000,000 in general damages and a permanent injunction. The appellant appealed, challenging the trial court's evaluation of evidence and its reliance on a pre-trial visit rather than formal locus in quo proceedings.

Issues

  1. Whether the trial magistrate properly conducted a locus in quo visit
  2. Whether the trial magistrate erred in evaluating the evidence of the defence witnesses
  3. Whether the appellant encroached on the respondent's land
  4. Whether the trial magistrate misdirected himself by basing his decision on facts not on record

Orders

  • Appeal dismissed.
  • Trial magistrate's decision and decree upheld.
  • Costs of the appeal awarded to the respondent.

Rules and key headnotes

Civil Procedure — Locus in Quo — Distinction Between Pre-Trial Visit and Locus in Quo
A pre-trial visit to suit land is conducted before witnesses are sworn and heard in court to help the court appreciate the status quo and gather preliminary information, while a locus in quo visit is a formal part of the trial process conducted after witnesses have testified in court to cross-check the evidence adduced during trial. The findings of a locus in quo visit form part of the court record and can be relied upon in judgment, whereas a pre-trial visit does not form part of the trial record.
Civil Procedure — Locus in Quo — When Visit is Mandatory
A visit to the locus in quo is not mandatory but lies within the discretion of the judicial officer. The decision to visit locus in quo rests on the need for the judicial officer to better understand the evidence adduced during testimony. A judicial officer will not be faulted for not conducting a locus in quo visit if there is sufficient evidence to support the decision without such a visit.
Evidence — Improper Admission or Rejection — Effect Under Evidence Act s.166
Under Evidence Act s.166, improper admission or rejection of evidence shall not be ground for reversal of a decision if, independently of the improperly admitted evidence, there was sufficient evidence on record to justify the decision. Where a trial court wrongly relies on pre-trial visit findings that do not form part of the record, the appellate court may uphold the decision if other evidence properly admitted on record, when evaluated as a whole, supports the same findings.
Civil Procedure — First Appellate Court — Duty to Re-evaluate Evidence
On a first appeal, the appellate court must reappraise the evidence, subject it to exhaustive scrutiny, and draw its own inferences of fact to reach its independent conclusion. The appellate court must weigh conflicting evidence and make its own findings, not merely scrutinize whether there is some evidence to support the lower court's findings, though it must make allowance for the trial court's advantage of seeing and hearing the witnesses.
Land & Property — Boundary Disputes — Proof of Encroachment Where Boundaries Uprooted
Where land was sold by description of boundaries rather than measured acreage, and the boundary marks have been uprooted, it is illogical to require that the purchased land be measured first to determine whether encroachment occurred. If all witnesses agree that boundary marks were planted and the plaintiff leads evidence that the defendant uprooted those marks and went beyond them, the plaintiff may prove encroachment on the balance of probabilities without requiring measurement of the defendant's land.

Legislation cited (1)

Cases cited (12)

  • Father Nanensio Begumisa and three others v Eric Tiberaga (Supreme Court Civil Appeal No. 17 of 2000)
  • Peters v Sunday Post [1958] EA 424
  • Waikubi Asuman Muzale and Another v Kigaye Samson (Court of Appeal Civil Appeal No. 57 of 2013)
  • Jacob Mutabazi v The Seventh Day Adventist Church (Court of Appeal Civil Appeal No. 88 of 2021)
  • Manweri Manwa Anthony v Wabalayi John (Court of Appeal Civil Appeal No. 7 of 2010)
  • Deo Matsanga Vs. Uganda 1998 KALR 57
  • Badiru Kibelega v Sepiriano Magunga (High Court Civil Appeal No. 7 of 1987)
  • Bale and 2 Others v Okumu (Court of Appeal Civil Appeal No. 21 of 2005)
  • Mbusa Muyeye v Maliro Benezeri (High Court Civil Appeal No. 15 of 2017)
  • Owon Akwilino Okongo v Omara Yosam and Another (High Court Civil Appeal No. 11 of 2020)
  • Kutambaki Augustine v Byaruhanga Paul (Court of Appeal Civil Appeal No. 65 of 2012)
  • The Registered Trustees of the Church of Uganda Rwenzori Diocese v Kasangaki Paul (High Court Civil Appeal No. 20 of 2019)

Full judgment

↓ Download PDF

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

Ndighaha v Sekanabo (Civil Appeal 15 of 2018) [2024] UGHC 711 (12 July 2024)
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.