Wakilii

Ojune and Another v Ogwere (Civil Appeal 60 of 2023)

High Court · [2024] UGHC 819 · 2024 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First appeal from the Chief Magistrate's Court judgment in a civil suit for trespass and recovery of land
Decision
Appeal partly allowed; respondent affirmed as rightful owner of suit land; order of vacant possession and permanent injunction upheld; general damages reduced to UGX 1,000,000

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court of Uganda at Soroti dismissed the appeal from the Chief Magistrate's Court except on the issue of damages. The appellate court upheld the lower court's finding that the respondent was the rightful owner of the 16 acres of suit land at Amalera village, Usuk sub-county, Katakwi district. The court found that the respondent's evidence was more consistent and believable than that of the appellants, and that the locus in quo visit was properly conducted. However, the court reduced the general damages award from UGX 5,000,000 to UGX 1,000,000 on grounds that the original award was excessive. Each party was ordered to bear its own costs.

Outcome

Appeal partly allowed; respondent affirmed as rightful owner of suit land; order of vacant possession and permanent injunction upheld; general damages reduced to UGX 1,000,000

Facts

The respondent sued the appellants for trespass and recovery of 16 acres of land at Amalera village, Usuk sub-county, Katakwi district. The respondent claimed that in 1982 his late father, Ojula Erinayo, gave him the suit land which he cultivated and lived on until his father's death in 2010. The appellants countered that they were the rightful owners, having inherited the land from their late father, Ogwere George William, who inherited it from his father, Illaborot Gabriel. The appellants claimed they had been in possession since their birth in 1968 and 1975 respectively. The Chief Magistrate's Court found for the respondent after a locus in quo visit. The appellants appealed on five grounds, primarily challenging the trial magistrate's evaluation of evidence, conduct of the locus visit, and the quantum of damages.

Issues

  1. Whether the learned trial Magistrate erred in law and fact when she failed to weigh properly and in a balanced manner the evidence on the court record
  2. Whether the learned trial Magistrate conducted the locus in quo proceedings in an irregular manner
  3. Whether the learned trial Magistrate erred in law and fact when she based her decision solely on the evidence in chief without taking into account cross-examination
  4. Whether the learned trial Magistrate erred in law by awarding general damages that were unjustified and excessive
  5. Whether the decision of the learned trial Magistrate occasioned a miscarriage of justice on the appellants

Orders

  • The appeal succeeds in part on ground 4 but fails on grounds 1, 2, 3 and 5.
  • The judgment and orders of the lower trial court are upheld save for the general damages.
  • General damages reduced from UGX 5,000,000 to UGX 1,000,000.
  • Each party to bear its own costs, both in the High Court and in the lower trial court.

Rules and key headnotes

First Appellate Court — Duty to Re-hear and Re-appraise Evidence
The 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, while taking due allowance of the fact that it has neither seen nor heard the witnesses.
Burden of Proof — Civil Suits — Balance of Probabilities
In civil suits, the burden of proof lies upon the plaintiff who must prove his or her case on the balance of probabilities. Where the plaintiff leaves his case in equilibrium, the court is not entitled to incline the balance in his favour.
Customary Ownership — Proof of Inheritance — Consistency of Evidence
Where parties claim customary ownership of land based on inheritance, the party whose evidence is more consistent and whose witnesses provide coherent testimony tracing inheritance will succeed on a balance of probabilities, even where documentary evidence presented by the opposing party is ambiguous or contradictory.
Locus in Quo — Conduct of Proceedings — Regularity
A visit to locus in quo conducted in accordance with Practice Direction No. 1 of 2007 Regulation 3, where the court ensures presence of all parties and witnesses, allows evidence and cross-examination at the locus, records all proceedings and observations, and draws a sketch plan if necessary, is regular and its findings are entitled to weight.
General Damages — Trespass to Land — Assessment
General damages for trespass to land are awarded at the discretion of the court to compensate for economic inconvenience and loss of utility, and are assessed based on the value of the subject matter, the duration of deprivation, and the nature and extent of the injury suffered. An appellate court will interfere with an award only where it is so high or so low as to represent an entirely erroneous estimate or where the trial court acted on a wrong principle of law.
Memorandum of Appeal — Formulation of Grounds — Requirements
A memorandum of appeal must set forth concisely and under distinct heads the grounds of objection to the decree appealed from without any argument or narrative, and the grounds must be numbered consecutively. Failure to properly formulate a ground of appeal in accordance with Order 43 Rule 1(2) of the Civil Procedure Rules may result in the rejection of that ground.

Legislation cited (4)

Cases cited (19)

  • Father Nanensio Begumisa and Three Others v Eric Tiberaga (SCCA No. 17 of 2000)
  • Banco Arabe Espanol v Bank of Uganda [1999] UGSC 1
  • Rwakashaija Azarious and others v Uganda Revenue Authority [2010] UGSC 8
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 2007)
  • Lovinsa Nakya v Nsibambi [1980] HCB 81
  • Nsubuga v Kawuma [1978] HCB 307
  • Erumiya Ebyetu v Gusberito [1985] HCB 64
  • Emily Luwedde v Yafesi Kitimbo (Civil Suit No. 108 of 1999)
  • Olinda De Souza v Kassamali Nanji (1962) E.A. 756
  • Bwire John Guloba v Wanyama Manasi and Oweri Joel (HC-04-CA-092-2008)
  • Byabalema & 2 Others vs UTC (1975) Ltd
  • Ouma v Nairobi City Council [1976] KLR 297
  • Shah v Muhamed Hajji Abdalla [1962] EA 769
  • Hadley v Baxendale (1854) 9 Exch 341
  • Uganda Commercial Bank v Kigozi [2002] 1 EA 35
  • Imukot and Others v Arukori (Civil Appeal No. 32 of 2021)
  • James Fredrick Nsubuga v Attorney General (Civil Suit No. 13 of 1993)
  • Erukana Kuwe v Isaac Patrick Matovu and Another (Civil Suit No. 177 of 2003)
  • Migadde and Ors v Nakibuule and Ors (Civil Appeal No. 53 of 2019)

Full judgment

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

Ojune and Another v Ogwere (Civil Appeal 60 of 2023) [2024] UGHC 819 (16 August 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.