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Aluma & 2 Others v Okuti (Civil Appeal 214 of 2017)

Court of Appeal · [2025] UGCA 81 · 2025 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second appeal from a High Court decision in a civil appeal originating from a Magistrate's Court suit for trespass to land
Decision
Appeal dismissed with costs; High Court decision upheld

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Holding

On a second appeal restricted to points of law, the Court of Appeal upheld the High Court's finding that the respondent had constructive possession of the disputed land, having fenced and used it since 1976, which entitled him to sue for trespass. The Court held that the Limitation Act applies to all land tenures, including customary land under Article 237(3) of the Constitution, so the appellants' counterclaim for trespass — brought 23 years after they became aware of the respondent's fencing — was time-barred under section 5. As limitation disposed of the matter, it was unnecessary to decide the doctrine of laches. The third ground was struck out for non-compliance with rule 66. Appeal dismissed with costs.

Facts

The respondent's late father, Al-Hajji Nasuru Okuti Fadimula, established 'Lobe Mixed Farm' on land in Kei Sub-county, Yumbe District. He applied for a lease in 1976 and remained on the land after its expiry. The land had been fenced off since 1976, having previously been uninhabited woodland. On the father's death, the respondent and other family members inherited the land and continued farming. In 2009 the appellants entered the land. The respondent sued for trespass, seeking eviction, a permanent injunction and costs. Appellant no.1 contended he occupied separate communally-owned land ('Chere Mixed Farm'), that the respondent's father had wrongfully obtained the lease, and counterclaimed for trespass. The respondent and his relatives had enjoyed undisturbed occupation for 23 years until the 2009 intrusion. The trial magistrate found the respondent the lawful owner and the appellants trespassers, dismissing the counterclaim. The High Court dismissed the appellants' appeal.

Issues

  1. Whether the first appellate judge erred in holding that the respondent was in rightful (constructive) possession of the suit land and that the appellants had intruded upon it.
  2. Whether the first appellate judge erred in holding that the appellants' customary interests in the land had been extinguished by the law of limitation and the doctrine of laches.
  3. Whether the first appellate judge failed to properly evaluate the evidence before him.

Orders

  • Appeal dismissed.
  • Decision of the High Court upheld.
  • Ground 3 struck out for contravening rule 66 of the Judicature (Court of Appeal Rules) Directions.
  • Costs awarded to the respondent here and below.

Key headnotes

Civil Procedure — Second Appeals — Scope of review and concurrent findings of fact
A second appeal under section 72(1) of the Civil Procedure Act is restricted to points of law; the second appellate court will not re-evaluate evidence unless the first appellate court failed in its duty, and will not depart from the concurrent findings of fact of the courts below unless there was no evidence to support the finding or special circumstances exist.
Land & Property — Possession — Constructive possession and capacity to sue for trespass
A person who exercises open, notorious, continuous and exclusive possession over part of an enclosed parcel of land is in constructive possession of the whole, and such constructive possession confers the capacity to bring an action for trespass against intruders, even absent actual physical occupation of every part.
Land & Property — Limitation — Application of the Limitation Act to customary land
The Limitation Act applies to actions to recover any land, including land held under customary tenure, because 'any land' in section 5 covers all the land tenures referred to in Article 237(3) of the Constitution.
Tort Law — Trespass to land — Continuing trespass and limitation of actions
Although trespass to land is a continuing tort, a cause of action for trespass remains subject to the law on limitation of actions; a claim to recover land must be brought within twelve years of the right of action accruing under section 5 of the Limitation Act.

Legislation cited (5)

  • Civil Procedure Act s.72(1)
  • Limitation Act Cap.290 s.5
  • Limitation Act s.6
  • Constitution of the Republic of Uganda Article 237(3)
  • Judicature (Court of Appeal Rules) Directions rule 66

Cases cited (4)

  • Milly Masembe v Sugar Corporation and Anor [2000] UGSC 36
  • Nazmudin Gulam Hussein Viram v Nicholas Roussos [2006] UGSC 2
  • Kasoma Fred v Sembatya James [2015] UGCA 55
  • Lutaya v Stirling Civil Engineering Company Ltd [2003] UGSC 39
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.