Wakilii

Prof. John Ntambirweki and Another v Moses Kasule and Another (Civil Appeal No. 32 of 2021)

High Court · [2025] UGHCLD 281 · 2025 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from Chief Magistrate's Court judgment dismissing trespass suit
Decision
Appeal allowed; Respondents declared trespassers; vacant possession and permanent injunction granted; damages awarded

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court allowed the appeal, finding that the trial magistrate erred in failing to properly evaluate evidence and pleadings. The Respondents' evidence departed from their pleadings by claiming land measurements in meters when they had pleaded feet, and contained material inconsistencies. The Appellants proved prior possession of the land from 1992, before the Respondents acquired their adjacent plot in 2000. The court held that the Respondents trespassed on a portion of the Appellants' land and granted vacant possession, permanent injunction, and damages.

Outcome

Appeal allowed; Respondents declared trespassers; vacant possession and permanent injunction granted; damages awarded

Facts

The Appellants purchased a kibanja at Kutuuso Zone, Makindye on 4 August 1992 from Mustafa Sezibwa for UGX 6,000,000 and took immediate possession. They were certified and recommended for a lease by the Resistance Council on 15 September 1993. The Respondents purchased adjacent land on 16 April 2000 from Yudaya Nakabugo, who had bought it from John Buyugo. The 1st Appellant witnessed the Respondents' purchase agreement. The Respondents obtained local council recommendations and built a house on the land. In November 2012, the Appellants alleged that the Respondents had encroached on their land, cut down fencing, and erected a residential house without consent. The Appellants instituted a trespass suit in the Chief Magistrate's Court, which dismissed their claim. The Appellants appealed to the High Court Land Division.

Issues

  1. Whether the trial magistrate failed to conduct a proper locus visit and take a proper record of the proceedings at locus in quo.
  2. Whether the Appellants proved their case on the balance of probabilities and they had taken possession of the land.
  3. Whether the trial magistrate erred in law and fact when she failed to consider the weight of the evidence of the 1st Appellant vis-à-vis the contradictory witnesses of the Respondents and holding that the Respondents are owners of the suit land.

Orders

  • Appeal allowed.
  • Decision of the lower court set aside.
  • The Respondents are declared to be in trespass on a portion of the Appellant's land described in the sale agreement dated 4th July and August 1992.
  • The disputed portion of land trespassed on should be surveyed by both parties by a joint surveyor of their choice.
  • Permanent injunction issued against the Respondents and their agents restraining them from further trespassing on the above mentioned portion of land.
  • Vacant possession ordered from the above mentioned portion of land.
  • General damages of UGX 2,000,000 awarded for trespass.
  • Costs of the appeal and costs of the court below awarded to the Appellant.

Rules and key headnotes

Locus in Quo — Sketch Map — Effect of Omission
Failure to draw a sketch map during locus in quo proceedings is not fatal if the oral evidence is clear and the court can fairly determine the matter on the evidence on record without causing a miscarriage of justice.
Pleadings — Departure from Pleadings — Effect on Evidence
Parties are bound by their pleadings. A party who departs from pleadings and gives evidence contrary to those pleadings without explanation justifies rejection of that evidence.
Contradictory Evidence — Assessment of Credibility
Where a party's evidence contains material inconsistencies and contradictions regarding fundamental facts such as land measurements, and those inconsistencies are not satisfactorily explained, the court is justified in rejecting that evidence.
Trespass — Proof of Possession — Prior Possession
In a trespass action, where a party proves prior possession of land with clear evidence of boundaries and physical control, and the alleged trespasser's evidence is contradictory and departs from pleadings, the court will find trespass established on the balance of probabilities.
Appellate Review — Re-evaluation of Evidence — Duty of First Appellate Court
A first appellate court has a duty to re-evaluate the evidence presented to the trial court before coming to its own conclusion, and may interfere with findings of fact if the trial court overlooked material features in the evidence or if the balance of probabilities as to credibility was inclined against the trial court's opinion.

Legislation cited (6)

Cases cited (16)

  • Father Nanensio Begumisa and 3 Others v Eric Tiberaga (Supreme Court Civil Appeal No. 17 of 2000)
  • Owole v Owole & 2 Others (High Court Civil Appeal No. 40 of 2014)
  • Bisensio Rubanga & Others v Twomwa Sterio (High Court Civil Appeal No. 001 of 2013)
  • Badru Kibelega v Sepiriano Magunga (High Court Civil Appeal No. 7 of 1987)
  • Buladina Achoka Vs Okello Peter (supra)
  • Jennifer Nsubuga v Micheal Mukundane & Another (Court of Appeal Civil Appeal No. 208 of 2018)
  • Kutambaki Augustine v Byaruhanga Paul (Court of Appeal Civil Appeal No. 65 of 2012)
  • Akena Jabina & Another v Odong (High Court Civil Appeal No. 35 of 2018)
  • Havinder Jhass Singh v Rosemary Asea & Another (Civil Appeal No. 08 of 2016)
  • DSS Motors v Afri Tours and Travel (High Court Civil Suit No. 12 of 2013)
  • Sarapio Tinkamalirwe v Uganda (Supreme Court Criminal Appeal No. 27 of 1989)
  • Buladina Achoka v Okello Peter (Court of Appeal Civil Appeal No. 25 of 2019)
  • General Industries (U) Ltd v Non Performing Assets Recovery Trust (Supreme Court Civil Appeal No. 5 of 1998)
  • Semalulu v Nakitto (High Court Civil Appeal No. 04 of 2008)
  • Akisoferi W. Biteremo v Damscus Munyanda Situma (Supreme Court Civil Appeal No. 15 of 1991)
  • Kasifa Namusisi & Others v MK Ntabazi (Supreme Court Civil Appeal No. 4 of 2005)

Full judgment

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

Prof._John_Ntambirweki_and_Another_v_Moses_Kasule_and_Another_(Civil_Appeal_No._32_of_2021)_[2025]_UGHCLD_281_(7_July_2025)
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.