Wakilii

Akech Okullo and 2 Others v Okema and 4 Others (Civil Appeal No. 28 of 2020)

High Court · [2023] UGHCCD 21 · 2023 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from Chief Magistrate's Court judgment dismissing suit for declaration of customary land ownership
Decision
Appeal dismissed with costs; permanent injunction restraining appellants from interfering with the suit land upheld

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court dismissed the appeal and upheld the trial court's finding that the suit was res judicata. The court held that the appellants, who claimed customary ownership of approximately 200 acres through inheritance, were bound by an earlier suit between their cousin Olanya James and the same respondents over the identical land. The court found that the appellants claimed through Olanya under the principle of privity as members of the same Bobi Paidwe clan litigating over clan land. The court further held that neither party proved exclusive customary ownership through inheritance, but the respondents' long possession and use of the land since birth entitled them to remain undisturbed. The appeal was dismissed with costs.

Outcome

Appeal dismissed with costs; permanent injunction restraining appellants from interfering with the suit land upheld

Facts

The appellants sued the respondents claiming customary ownership of approximately 200 acres at Kalamomiya village through inheritance from their grandfather Koyo Akeng, through Okech Tomaci and Odong Apollo. They sought a declaration of ownership, eviction of the respondents as trespassers, and damages. The respondents denied the claim and pleaded res judicata, asserting that the same land had been litigated in Civil Suit No. 33 of 2013 between Olanya James (the first appellant's cousin) and the respondents, which the respondents won. The respondents claimed they were lawful customary owners having been born on the land and inherited it from their fathers Edward Onying and Samsoni Otto. The trial court visited the locus in quo and found that the appellants could not prove possession or ownership, dismissed the suit as res judicata, declared the respondents customary owners, and issued a permanent injunction against the appellants.

Issues

  1. Whether the trial Chief Magistrate erred in holding that the suit was res judicata on account of Civil Suit No. 33 of 2013 and High Court Civil Appeal No. 0064 of 2017.
  2. Whether the trial Chief Magistrate erred in failing to properly evaluate the evidence on record regarding customary ownership of the suit land.
  3. Whether the trial Chief Magistrate erred in holding that the Appellants failed to prove customary ownership of the suit land.
  4. Whether the trial Chief Magistrate erred in taking and relying on extrajudicial statements from unsworn witnesses at the locus in quo.

Orders

  • Appeal dismissed.
  • Permanent injunctive order of the trial court upheld.
  • Costs of the appeal awarded to the respondents.
  • Costs of the trial court upheld.
  • Statements exclusively attributed to the 5th Respondent and Olanya James at the locus in quo expunged from the record.

Rules and key headnotes

Res Judicata — Elements — Privity of Parties — Customary Land Claims by Clan Members
Where a member of a clan sues over customary clan land claiming it as private land, other clan members claiming through the same lineage are bound by the judgment under the principle of privity, even if they were not named parties to the earlier suit, provided the subject matter is identical and the issues are directly and substantially the same.
Res Judicata — Section 7 CPA — Identical Subject Matter — Same Land
For a plea of res judicata to succeed, the matter must be directly and substantially in issue in both suits, the parties must be the same or claim under the same title, the court must have been competent, and the matter must have been finally decided. Where two suits involve the same 200 acres of customary land identically described and located, and the locus in quo confirms the land is the same, the subject matter requirement is satisfied.
Customary Land Tenure — Burden of Proof — Inheritance Claims
A party claiming customary ownership of land through inheritance bears the burden of proving the claim on a balance of probabilities. Mere assertion of lineage without corroborating evidence of possession, use, burial of ancestors on the land, or credible testimony from impartial witnesses is insufficient to discharge this burden.
Locus in Quo — Extrajudicial Statements — Unsworn Witnesses
A trial court commits an error by receiving and relying on statements made at the locus in quo by persons who have not been sworn and have not testified in court, even if they are parties to the suit. Such statements should be expunged from the record. However, where the same facts are testified to by a sworn witness, the error does not vitiate the proceedings if the judgment can be supported on the remaining admissible evidence.
Grounds of Appeal — Procedural Irregularities — Leave to Amend
An appellant may not urge or be heard in support of any ground of objection not set forth in the memorandum of appeal except by leave of the High Court under Order 43 rule 2(1) CPR. Complaints about procedural irregularities raised in submissions but not included as grounds of appeal are misconceived and cannot be entertained without leave to amend.
Customary Land — Clan Land — Long Possession — Undisturbed Use
Where customary land belongs to a clan and a clan member has been in long, undisturbed possession and use of the land since birth with visible developments, and the clan has not disturbed that possession, no other clan member has a right to disturb that possession even if they claim inheritance from a common ancestor.

Legislation cited (16)

Cases cited (26)

  • Fr. Narensio Begumisa & 3 others v Eric Tibebaga (Civil Appeal No. 17 of 2002)
  • Coghlan Vs. Cumberland (1898)1 Ch. 704
  • Pandya Vs. R [1957] EA 336
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Seruwagi Muhammad v Yuasa Investments Ltd (HCCS No. 334 of 2013)
  • Andiazi Vs. Republic [1967] EA 813
  • Semande Vs. Uganda [1999] 1 EA 321
  • Attorney General of United Republic of Tanzania v African Network for Animal Welfare (EACJ Appeal No. 3 of 2014)
  • Angella Amudo Vs. the Secretary General of the East African Community [2012-2015] EACJ LR 592
  • Timothy Kahoho Vs. Secretary General of the East African Community [2012-2015] EAC LR, 412
  • Attorney General of the Republic of Burundi v Secretary General of the East African Community & Hon. Fred Mukasa Mbidde (Appeal No. 02 of 2019)
  • Beutco (U) Ltd & another v Barclays Bank of Uganda Ltd & 3 others (Civil Appeal No. 01 of 2017)
  • Charles Onyango Obbo & Andrew Mujuni Mwenda v Attorney General (Constitutional Appeal No. 2 of 2002)
  • Hallet (1880)13 Ch.D. 712
  • Mario Ali v Opoka Santos (Misc. Application No. 14 of 2022)
  • Toponidhee Vs. Sreeputty (1880) I LR 5 Cal 832
  • Bharasi Vs. Sarat Chunder (1896) I LR 23 Cal 415
  • Official Asignee of Madras Vs. Aiyu Dikshithar (1925) 48 Mad LJ 530
  • Ms Fang Min v Belex Tours and Travel Ltd (Civil Appeal No. 06 of 2013)
  • Ponsaino Semakula Vs. Susane Magala & others (1993) KALR 213
  • Kamunye & others Vs. the Pioneer General Assurance Society Ltd (1971) EA 263
  • Godfrey Magezi v National Medical Stores & 2 others (HCCS No. 636 of 2016)
  • Boutique Shazim Ltd v Norattam Bhatia & another (Civil Appeal No. 36 of 2007)
  • Onzia Elizabeth v Shaban Fadul (Civil Appeal No. 0019 of 2013)
  • JK Patel v Spear Motors Ltd (SCCA No. 4 of 1991)
  • Atunya Valiryano v Okeny Delphino (HC Civil Appeal No. 0051 of 2017)

Full judgment

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Akech Okullo and 2 Others v Okema and 4 Others (Civil Appeal No. 28 of 2020) [2023] UGHCCD 21 (17 February 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.