Wakilii

Ojera v Labeja (CIVIL APPEAL No. 0020 OF 2013)

High Court · [2018] UGHCCD 61 · 2018 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First appeal from a Grade One Magistrate's Court decision on a land ownership dispute under customary tenure
Decision
Judgment on the counterclaim entered in favour of the appellant with a declaration of ownership, vacant possession, permanent injunction, and costs

Observed later treatment

Cited — treatment unverified cited in 2 (treatment unverified) Sequitur — Uganda’s citator · Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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.

No adverse treatment recorded Cited 2 times with no adverse treatment recorded; not yet tested on the merits. Citations rising — 4 citing cases on record, 4 in the most recent three data years. Derived from citing cases in the Wakilii corpus — a deterministic signal, not legal advice.

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 held that the trial magistrate erred in creating a new boundary not supported by evidence and in overlooking testimony establishing that the road to Pabbo formed the boundary between the parties' lands. The court found that the appellant's family had occupied the land under a claim of right from 1959, evidenced by longstanding settlement, burials on the land, and corroborated by observations at the locus showing the respondent encroached only in 2010. Use by the appellant was adverse, not permissive, and the respondent's allegation of temporary licence lacked cogent evidence.

Outcome

Judgment on the counterclaim entered in favour of the appellant with a declaration of ownership, vacant possession, permanent injunction, and costs

Facts

The respondent sued claiming ownership under customary tenure of land he inherited from his father in 1971, alleging the appellant's mother was permitted temporary settlement in 1965 and the appellant unlawfully resettled after insurgency in 2003. The appellant contended his father settled the land in 1959, remained until 1987, and he inherited it. Both parties vacated during insurgency. On return, the appellant claimed the respondent occupied part of his land. The trial magistrate found both parties had distorted the truth and ordered subdivision of the land using a school road as boundary. At the locus in quo, a sketch map showed the respondent's inherited home and 1986 home were left of the Pabbo road while his 2010 home and the appellant's homes were right of the road, suggesting the respondent crossed to encroach on the appellant's land.

Issues

  1. Whether the trial magistrate erred in ignoring the evidence of D.W.2 regarding the boundary between the parties' lands.
  2. Whether the trial magistrate erred in ignoring minutes and attendance list of a meeting held on 5 August 2004 where the appellant gave land to NUSAF.
  3. Whether the trial magistrate erred in admitting and relying on evidence from a witness not called by either party during proceedings at the locus in quo.
  4. Whether the appellant or the respondent is the lawful owner under customary tenure of the disputed land.
  5. Whether the appellant's family occupied the disputed land as licensees or under a claim of right adverse to the respondent.

Orders

  • Appeal allowed.
  • Judgment of the court below set aside.
  • Suit dismissed with costs.
  • Declaration that the appellant is the owner of the land in dispute.
  • Order of vacant possession against the respondent.
  • Permanent injunction restraining the respondent, his servants, agents and persons claiming under him from further acts of trespass on the appellant's land.
  • Costs awarded to the appellant here and below.

Rules and key headnotes

Appellate Jurisdiction — First Appeal — Duty to Re-hear and Re-appraise Evidence
A first appellate court is under an obligation to re-hear the case by subjecting the evidence presented to the trial court to a fresh and exhaustive scrutiny and re-appraisal before coming to its own conclusion, making due allowance for the fact that it has neither seen nor heard the witnesses but must weigh conflicting evidence and draw its own inferences and conclusions.
Locus in Quo — Improper Recording of Evidence from Non-Witness
Visiting a locus in quo is meant to enable a trial court to check on the evidence by the witnesses, and not to fill gaps in their evidence for them, lest the court run the risk of turning itself into a witness in the case. It is erroneous for a trial magistrate to record evidence at the locus from a person who had not testified in court.
Improper Admission of Evidence — Effect on Decision — Evidence Act s.166
Under section 166 of the Evidence Act, the improper admission or rejection of evidence is not to be ground of itself for a new trial or reversal of any decision if it appears to the court that, independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision, or that if the rejected evidence had been received, it ought not to have varied the decision.
Evaluation of Evidence — Standard and Method — Burden of Proof
There is no particular method of evaluation of evidence. If the evidence is such that the tribunal can say 'we think it more probable than not,' the burden is discharged, but if the probabilities are equal it is not. When left in doubt, the party with the burden of showing that something took place will not have satisfied the court that it did. In difficult cases, the burden of proof comes to the court's rescue.
Standard of Proof — Serious Allegations — Cogency of Evidence Required
Where the court has to consider the inherent probability or improbability of an alleged occurrence, the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. The more improbable the event, the stronger must be the evidence that it did occur.
Customary Tenure — Permissive Occupation — Claim of Right — Adverse Possession
Use by express or implied permission or licence cannot of itself ripen into ownership, however long the period of occupation may be. Where there is no proof of an express licence from the landowner, the court must resort to the character of the use enjoyed to determine whether it was adverse or permissive. A claim of right means nothing more than a user 'as of right,' that is without recognition of the right of the landowner.
Boundaries — Evidence from Locus in Quo — Court Cannot Create New Boundary Without Evidence
A trial court errs when it creates a new boundary in respect of which no evidence at all has been led. Where evidence and observations at the locus in quo establish a clear boundary between parties' lands, the court must respect that boundary and cannot substitute it with one unsupported by the evidence.

Legislation cited (1)

Cases cited (17)

  • Father Nanensio Begumisa and three Others v Eric Tiberaga (SCCA No. 17 of 2000)
  • Lovinsa Nankya v Nsibambi [1980] HCB 81
  • 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
  • British American Tobacco (U) Ltd v Mwijakubi and four others (S.C. Civil Appeal No. 1 of 2012)
  • Bahemuka Patrick and another v Uganda (S.C. Criminal Appeal No. 1 of 1999)
  • Tumwine Enock v Uganda (S.C. Criminal Appeal No. 11 of 2004)
  • Miller v Minister of Pensions [1947] 2 All ER 372
  • Rhesa Shipping Co v Edmunds [1985] 1 WLR 948
  • Benmax v Austin Motor Co Ltd [1955] AC 370
  • Faryna v Chorny [1952] 2 DLR 354
  • In Re B (Children) [2009] 1 AC 11
  • Ide v ATB Sales [2008] EWCA Civ 424
  • In re H (Minors) [1996] AC 563
  • In re Dellow's Will Trusts [1964] 1 WLR 451

Cases citing this judgment (2)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

Full judgment

↓ Download PDF

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

Ojera Vs Labeja (CIVIL APPEAL No. 0020 OF 2013) [2018] UGHCCD 61 (25 October 2018)
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.