LOCUS VISIT (1) Final

Land law

Uploaded by

Charles Frank

We take content rights seriously. If you suspect this is your content, claim it here.

Available Formats

Download as DOCX, PDF, TXT or read online on Scribd

0% found this document useful (0 votes)

13 views

LOCUS VISIT (1) Final

Land law

Uploaded by

Charles Frank

We take content rights seriously. If you suspect this is your content, claim it here.

Available Formats

Download as DOCX, PDF, TXT or read online on Scribd

You are on page 1/ 4

LAW RELATING TO LOCUS VISITS

Locus in quo is the place in which the cause of action arose or where
anything is alleged in the pleading to have been done. In Badru Kabalega V
Sepriano Mugangu (1992) KALR 265, it was held that the purpose of
visiting locus in quo is for each party to indicate at the locus, what he is
claiming and each party must testify on oath and be cross examined.

Locus in quo is usually applicable in civil trials. Civil trails are generally
guided by provisions of order 18 of the civil procedure rules. Order 18 rule
5 requires evidence to be given in open court in the presence and
superintendence of the judicial officer. Under order 18 rule 14 of the civil
procedure rules, it’s stipulated that the court has power at any stage of a
suit to inspect any property or thing concerning which, any question may
arise. It is therefore apparent that the provision may be invoked mainly for
purposes of receiving immovable items as exhibits. However, it has been
held that this power includes inspection of locus in quo as stated in Opio v
Onyai (Civil Appeal No. 39 of 2014).

Court can be invited by litigants, their counsel or on its own motion court
can order a locus visit to help it understand the evidence better. Visiting of
the locus is quo is not a mandate therefore failure to carry it out is not fatal.
If court deems it necessary or desirable to have locus visit, the same should
be done properly. In Bale and 2 others v Okumu civil appeal No. 21 of
2005, it was held that the view of a locus in quo is in addition to and cannot
be a substitute for evidence already given in court. It would follow that
visiting locus in quo by court is not mandatory and court reserves the right
to visit locus in quo in deserving cases which is its discretion to exercise

In relations to land proceedings, practice direction No. 1 of 2007 confers

legal authority on locus in quo proceedings. The direction comprises of
guidelines on conduct of locus in quo proceedings. Guideline 3 of practice
direction 1 of 2007 states, “during the hearing of land disputes, the court
should take interest in visiting the locus in quo and while there;

a) Ensure that all parties, their witnesses, and advocates (if any) are
present.
b) Allow the parties and their witnesses to adduce evidence at the locus
in quo.
c) Allow cross examination by either party, or his/her counsel.
d) Record all the proceedings at the locus in quo.
e) Record any observation, view, opinion or conclusion including drawing
a sketch plan if necessary.

The purpose of visiting locus in quo as it was stated by Udo Udoma CJ in

Mukasa v Uganda (1964) EA 698 which was relied on in Ddamulira
Aloysius v Nakijjoba Josephine Civil Appeal No. 59 of 2019, is to check
on the evidence given by the witnesses in court and not to fill in their
evidence for them. In Mukasa (supra) it was held that, “a view of a locus in
quo ought to be, I think to check on the evidence already given and where
necessary and possible to have such evidence clearly demonstrated in the
same way a court examines a plan or map or some fixed object already
exhibited or spoken of in the proceedings. It is essential that after a view a
judge or magistrate should exercise great care not to constitute himself a
witness in the case. Neither a view nor personal observation should be
substituted for evidence.”

To verify and test the evidence adduced at the trial and confirm if the
features at the locus tally with the evidence on record. This implies that the
locus visit must be limited to visiting specific aspects of the case as
canvassed during the oral testimony in court and to testing evidence on
those points only. Thus, in Otto Aita v Akena Nekomia civil appeal 0013
of 2014 it was held that “if not limited, the locus visit may easily turn into a
gathering of residents, a boundary opening exercise, a meeting of some sorts
or a press conferencing by the court involving residents of the area and may
also turn into a fresh trial.”

Once a court finds it purposeful to carry out a locus visit the right procedure
has to be followed, failure to do so can form reasonable grounds of appeal as
discussed in Bongole Geoffrey & 4 others v Agnes Nakiwala Civil Appeal
No.0076 of 2015 where the trial court allowed persons who were not
witnesses and had not testified in court to given evidence at the locus, it
was held that allowing evidence obtained at the visit of locus in quo by
persons who were not witnesses in the case would occasion a miscarriage of
justice and therefore the proceedings were set aside and file sent back to
high court for retrial.

Failure to have evidence given during on trial on record. In James

Nsimbambi v Lovinsa Nankya [1980] HCB 81, it was held that failure to
observe the principles governing the recording of proceedings at the locus in
quo and yet relying on such evidence acquired and the observations made
thereat in the judgment, is a fatal error which occasioned a miscarriage of
justice.

Important to note.

1. Locus in quo proceedings form part of the trial and all rules observed
in court are applicable and must be observed at locus proceedings. In
Ddamulira (supra) “it was held that locus in quo were proceedings of
court and therefore not proceedings of a gathering.”
2. Notice has to be given to parties by court of when the locus visit is to
happen. Thus, in David Acar & 3 others v Alfred Acar Aliro (1982)
HCB 60, “it was held that court must notify the parties and counsel of
the date and time at which the locus proceeding will be conducted.”
3. Proceedings at the locus in quo require the parties and their witnesses
to freely lead the court by demonstrating to it the features and the
corresponding description of the land as they had testified in court.
Both parties may point out material features and observations to the
court which they wish to be placed on record. (Ddamulira supra).
4. The trial magistrate must record all the testimonies he received from
the witnesses at the locus. These must be apparent from the court
record. (Bongole Supra).
5. Witnesses must be subjected to an oath or reminded of the one they
had taken in court. (Opio supra).
6. Only witnesses that testified on the trial are competent to testify.
However, it is possible for a witness listed by a party as one of their
witnesses and their testimony in the trial was reserved for the locus in
quo.
7. Allowance must be made for the parties to cross-examine any of the
witnesses. Thus, in Owon Akwilino Okongo v Omara Yasam &
Another [2023] UGHCLD 104 where a party was not afforded an
opportunity to cross examine a witness and the court overly relied on
their testimony in arriving at the final determination, the omission my
render the judgment liable to be set aside. The right to cross-examine
is a cardinal tenet of a fair hearing. However, where the evidence was
not relied upon by court in arriving at final decision, the omission is
not fatal.

In conclusion therefore locus in quo proceedings are essential for

purposes of enabling the magistrate understand the evidence better, a
trail court should be careful not to act on what it sees and infers at
the locus in quo as to matters in issue which are capable of proof by
evidence in court.