Wakilii

Ongom & Another v Binega (Civil Appeal 10 of 1987)

Supreme Court · [1988] UGSC 7 · 1988 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Second civil appeal from the High Court, which had dismissed an appeal from a Magistrate Grade I at Nebbi in a land-ownership suit
Decision
Appeal dismissed; the decisions of the High Court and the trial magistrate in favour of the respondent upheld.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

On a second appeal in a land-ownership dispute, the Supreme Court first rejected a preliminary objection that the appeal was time-barred under rule 81, holding the appellants had validly applied for the record of proceedings and served the respondent's advocates. On the merits, the Court held that a first appellate court's duty to re-evaluate evidence is tested by substance, not the length or number of paragraphs of analysis; the High Court judge had adequately re-evaluated the evidence. His comments on the uncertain state of the defence evidence did not shift the burden of proof. A second appeal lies only on points of law under section 74 of the Civil Procedure Act. Appeal dismissed with costs.

Outcome

Appeal dismissed; the decisions of the High Court and the trial magistrate in favour of the respondent upheld.

Facts

The respondent sued the appellants for eviction from land at Aguda in Pakwero Parish, Jonam County, Nebbi District. He claimed to have inherited the land from ancestors who occupied it before 1915 and from 1941 onwards, dedicating it to cultivation. The appellants claimed the land belonged to their ancestor Okwera, who died in 1925 leaving it vacant until they re-occupied it and built houses in 1984. It was common ground that both parties' ancestors had lived on the disputed land at different times. The trial magistrate (Grade I, Nebbi) visited the locus in quo, interviewed unnamed elders, and found the land belonged to the respondent's ancestors, giving judgment for the respondent. The High Court, though finding the magistrate had relied on some hearsay and that the locus in quo proceedings were irregular, held that those errors occasioned no miscarriage of justice because the respondent had proved his case on a balance of probabilities, and dismissed the appeal.

Issues

  1. Whether the appeal was filed out of time and should be struck out under rule 81 of the Rules of the Supreme Court.
  2. Whether the first appellate court failed to subject the evidence to a fresh and exhaustive scrutiny and to reach its own conclusions.
  3. Whether the learned judge misdirected himself on the burden and standard of proof by shifting the burden onto the appellants.

Orders

  • Application to strike out the appeal dismissed.
  • Appeal dismissed with costs.

Rules and key headnotes

Civil Procedure — Appeals — Duty of a first appellate court to re-evaluate evidence
A first appellate court is under a duty to reconsider and evaluate the evidence afresh, subjecting it to a fresh and exhaustive scrutiny and drawing its own conclusions, while bearing in mind that it has neither seen nor heard the witnesses and making due allowance in that respect.
Civil Procedure — Appeals — Adequacy of evaluation a question of substance not form
The adequacy of a first appellate court's evaluation of the evidence is a question of substance rather than form; it is not determined by the length of the analysis or the number of paragraphs devoted to it.
Evidence — Burden of Proof — Comment on state of evidence not a shift of burden
A judge's comment on the uncertain or unsatisfactory state of the evidence adduced by a party, made in the course of evaluating the evidence to reach his own conclusions, does not amount to shifting the burden of proof onto that party.
Civil Procedure — Second Appeals — Jurisdiction limited to questions of law
On a second appeal under section 74 of the Civil Procedure Act an appellant may complain only on grounds of law; questions of fact, including whether a party adduced sufficient evidence to establish his case, are not within the appellate court's jurisdiction.
Civil Procedure — Appeals — Time for filing — Proviso to rule 81
Where an appellant has made a written application for a copy of the proceedings within the prescribed period and served a copy on the respondent, the time certified as required to prepare and deliver the record is excluded in computing the 60 days for instituting the appeal under rule 81; the rules do not require the application letter to be included in the record of appeal.

Legislation cited (6)

Cases cited (5)

  • Shantilal Manekal Kuwala v R [1957] EA 570
  • N.V. Pandya (1957) 2.A. 555
  • James Nsibambi v Lovinsa Nankya [1980] HCB 81
  • Selle v Associated Motor Boat Co [1968] EA 123
  • Abdul Hameed Saif v Ali Mohamed Sholan (1955) 22 EACA 270

Full judgment

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

Ongom & Another v Binega (Civil Appeal 10 of 1987) [1988] UGSC 7 (23 January 1988)
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.