Wakilii

Tamale & 1 Ors V Ndugwa Nalongo & Ors (Civil Appeal No. 09 of 2014)

High Court · [2015] UGHCLD 33 · 2015 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from Chief Magistrate's Court decision in land ownership dispute
Decision
Lower court decision set aside; 1st and 2nd respondents declared trespassers on suit land

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court allowed the appeal in part, holding that the trial magistrate erred in evaluating the evidence and wrongly concluded that the suit land belonged to Hussein Musa rather than the appellants' deceased father. The court found that the sale by the 3rd respondent to the 1st and 2nd respondents was wrongful and void, making them trespassers. The decision of the lower court was set aside, with the appellants awarded half the costs of appeal and full costs in the lower court.

Outcome

Lower court decision set aside; 1st and 2nd respondents declared trespassers on suit land

Facts

The appellants claimed that their late father Sulaiman Lukwago purchased a kibanja of approximately half an acre at Kazo Muganzi Lwaza in 1975 from Hamidu Sebyala for UGX 27,500. After Lukwago's death in 1994 while the appellants were minors, the 3rd and 4th respondents became caretakers of his estate and allegedly sold the suit land illegally to the 1st and 2nd respondents. The respondents contended that the suit land originally belonged to Hussein Musa, who purchased it from Hamidu Sebyala and left it under the 3rd respondent's care. The 1st and 2nd respondents claimed to have initially purchased the land from the 1st appellant in 1996, but after a dispute and police involvement, they purchased it from the 3rd respondent acting on Hussein Musa's authority. The trial magistrate found in favour of the respondents, holding that the appellants failed to prove ownership. The appellants' family had been in continuous occupation of the land cultivating it since 1975.

Issues

  1. Whether the trial magistrate properly evaluated the evidence on record including documentary evidence and witness testimony
  2. Whether the trial magistrate erred in rejecting PEX7 (the sale agreement between the deceased and Hamidu Sebyala) while accepting PEX3 (a photocopy agreement)
  3. Whether the trial magistrate properly considered evidence from the locus in quo visit
  4. Whether the suit land belonged to the appellants' deceased father Sulaiman Lukwago or to Hussein Musa
  5. Whether the 1st and 2nd respondents are trespassers on the suit land
  6. Whether costs were properly awarded

Orders

  • Appeal allowed on grounds 1, 2 and 3.
  • Appeal dismissed on grounds 4, 5 and 6.
  • Decision of the lower court fully set aside.
  • Appellants entitled to one half of the costs of the appeal.
  • Appellants awarded full costs in the lower court.

Rules and key headnotes

Appellate Jurisdiction — First Appellate Court — Duty to Re-evaluate Evidence
The duty of a first appellate court is to re-evaluate the evidence and findings of the trial court and draw its own conclusions.
Documentary Evidence — Admissibility of Photocopies — Primary Evidence Rule
Under Section 63 of the Evidence Act, documents must be proved by primary evidence. A photocopy of a document may only be admitted as an exception under Section 64 of the Evidence Act where proper explanation is given for the absence of the original. It is wrong for a court to admit a photocopy into evidence without furnishing reasons as to why it qualifies as an exception.
Witness Credibility — Evidence of Witnesses with Grudges
The evidence of a witness who demonstrates a grudge against a party must be taken with caution and restraint. However, such evidence cannot be entirely ignored, as it may mean the witness concocts evidence or that the witness has legitimate grievances.
Signature Verification — Comparison by Court
Under Section 72 of the Evidence Act, a court may compare disputed signatures with admitted specimens. Where a party disputes a signature and the court is requested to compare signatures, the court must give attention to such comparison or obtain expert evidence if the comparison is dispensed with by counsel.
Proof of Ownership — Evaluation of Evidence from Locus in Quo
Evidence obtained at a locus in quo visit, including the positioning of disputed land in relation to adjacent properties formerly owned by a party, measurements stated in sale agreements, and the extent of boundaries, must be considered together with all other evidence to determine ownership. The findings at the locus in quo, when considered with documentary and testimonial evidence, may tip the balance in favour of one party's testimony.
Costs — Entitlement of Successful Party
Under Section 27(2) of the Civil Procedure Act, the successful party is entitled to costs except where the court for good reason thinks otherwise. Where no reason is advanced to deny the successful party costs, the award of costs is proper.
Previous Convictions — Relevance in Civil Proceedings
Under Section 41 of the Evidence Act, a court is not bound to follow the decision in a criminal case when determining a civil matter. A conviction of a witness in a criminal matter for intermeddling with an estate does not disentitle them to judgment in a subsequent civil matter, and each case must be tried and determined on its own facts.

Legislation cited (7)

Cases cited (4)

  • Sanyu Lwanga Musoke v Galiwango (Supreme Court Civil Appeal No. 48 of 1995)
  • Adonia Makundi v Christ Mukasa (Supreme Court Civil Appeal No. 2 of 1998)
  • Sabitti Vincent and Others v Uganda (Court of Appeal Criminal Appeal No. 140 of 2001)
  • Chesaki Matayo v Uganda (Court of Appeal Criminal Appeal No. 95 of 2004)

Full judgment

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

Tamale & 1 Ors V Ndugwa Nalongo & Ors (Civil Appeal No. 09 of 2014) [2015] UGHCLD 33 (12 May 2015)
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.