Wakilii

Owon Akwilino v Omara and Another (Civil Appeal No. 11 of 2020)

High Court · [2023] UGHCLD 104 · 2023 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First appeal from Chief Magistrate's Court judgment in a land ownership dispute
Decision
Appeal dismissed but eviction order set aside for appellant and non-parties; they may regain possession of their respective portions

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court dismissed the appeal, holding that the appellant failed to prove customary ownership of the disputed ten acres in Lumoi trading centre. The evidence showed the land belonged to the first respondent, who had owned 500 acres in Lumoi Central village since 1962 and established the trading centre in 1997. However, the court set aside the eviction order against the appellant and other non-parties as it was made without a counterclaim and affected persons not party to the suit.

Outcome

Appeal dismissed but eviction order set aside for appellant and non-parties; they may regain possession of their respective portions

Facts

The appellant sued claiming customary ownership of ten acres in Tee-Oryang village, alleging the respondents trespassed. The appellant traced ownership through his grandfather (1940s) and father who allegedly allowed the first respondent's mother to settle on part of the land in the 1970s. During the LRA insurgency (1999-2005), an IDP camp was established on the disputed land which later became Lumoi trading centre. After camp disbandment, new administrative villages were created. Evidence showed the first respondent owned 500 acres in Lumoi Central village since inheriting from his father in 1962. In 1997 the community designated part of the first respondent's land for a trading centre, which developed with permanent structures. In 2000 Oxfam funded road construction through the area without objection from the appellant or his father. The appellant only raised his claim in 2007 after the trading centre became commercially viable. The first respondent, as LC chairperson, allocated plots to community members including the appellant who operated a shop there.

Issues

  1. Whether the appellant proved he was the lawful customary owner of the suit land.
  2. Whether the trial magistrate erred in finding that the appellant contradicted the evidence of his witnesses as to the location of the suit land.
  3. Whether the locus in quo visit was properly conducted.
  4. Whether the trial magistrate improperly imported facts from the locus visit not observed or recorded.

Orders

  • Appeal wholly dismissed.
  • Trial court order varied to set aside the eviction of the appellant, his daughter, son, nephew, and other named persons from their respective portions in Lumoi trading centre.
  • Appellant to pay full taxed costs of the trial court but half of the taxed costs of the appeal to the respondents.

Rules and key headnotes

First Appellate Court — Duty to Re-evaluate Evidence — Fresh and Exhaustive Examination
The first appellate court has a duty to subject the evidence as a whole to a fresh and exhaustive examination and reach its own decision on the evidence. It must weigh conflicting evidence and draw its own conclusions, not merely scrutinize whether there was some evidence to support the lower court's findings. The appellate court should make due allowance for the fact that the trial court had the advantage of hearing and seeing witnesses. An appeal from a trial court is by way of rehearing and an appellate court is not bound to follow the trial court's findings of fact if it appears the trial court failed to take account of particular circumstances or probabilities or if the impression of the demeanour of a witness is inconsistent with the evidence generally.
Burden of Proof — Customary Land Ownership — Standard of Proof
In a claim for customary land ownership, the plaintiff bears the burden of proving ownership to the required standard. Where the plaintiff's evidence is contradictory on material facts including the location and boundaries of the claimed land, and the plaintiff fails to demonstrate clear basis for the claim while the defendant's evidence is consistent and corroborated, the plaintiff will fail to discharge the burden of proof.
Locus in Quo — Conduct of Visit — Duty of Parties
In an adversarial system of litigation, it is not the duty of the trial court to help a party prove their case at the locus in quo. The court has no duty to ask a party to do what that party does not wish to do. A court should be cautious in the conduct of proceedings where parties are represented, lest the court is accused of descending into the arena of litigation. Where a party's counsel fails to ask their client to identify land boundaries at the locus, the blame falls on counsel, not the trial court.
Locus in Quo — Pre-hearing versus Post-trial Visit — Evidentiary Value
Pre-hearing locus visit is not a judicial hearing as it happens before witnesses are sworn and heard in court. Pre-hearing locus visit merely helps court appreciate the status quo on the suit land before the hearing. It is distinct from post-trial locus visit which forms part of the evidence.
Eviction Orders — Parties to the Suit — Counterclaim Requirement
Where a trial court orders the eviction of persons who were not parties to the suit and where there was no counterclaim by the respondents against those persons, such eviction order is groundless and erroneous at law. An appellate court is justified in making such finding even where no ground of appeal was framed in respect thereof, in exercise of its powers under Order 43 rule 27 of the Civil Procedure Rules.
Customary Land — Mistaken Identification of Village Name — Effect on Claim
Where administrative boundaries are redrawn and new villages created, a misnaming of the village location by a plaintiff does not automatically defeat the land claim if both parties are able to move the court to the exact suit land and the dispute concerns the same identifiable parcel. The court should proceed to evaluate on the evidence whether the plaintiff proved ownership to the required standard, not dismiss the claim merely on the basis of mistaken village nomenclature.

Legislation cited (2)

  • Civil Procedure Rules O.11A r.3(2)
  • Civil Procedure Rules O.43 r.27

Cases cited (8)

  • Selle & another v Associated Motor Boat Co. Ltd & others (1968) EA 123
  • Pandya v R (1957) EA 336
  • David Muhenda & 3 Others v Margaret Kamuje (Supreme Court Civil Appeal No. 9 of 1999)
  • Fr. Narensio Begumisa & 3 others v Eric Tibebaga (Civil Appeal No. 17 of 2002)
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Alimarina Okot & 4 Others v Lamoo Hellen (High Court Civil Appeal No. 026 of 2018)
  • David Acar & 3 others v Alfred Acar Aliro (1982) HCB 60
  • Bongole Geoffrey & 4 Others v Agnes Nakiwala (Court of Appeal Civil Appeal No. 0076 of 2015)

Full judgment

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

Owon_Akwilino_v_Omara_and_Another_(Civil_Appeal_No._11_of_2020)_[2023]_UGHCLD_104_(24_April_2023)
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.