Wakilii

Alule v Agwe (Civil Appeal No. 0032 of 2014) 2017 UGHCLD 17 (2017-02-23)

High Court · [2017] UGHCLD 17 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from Adjumani Grade One Magistrates Court decision on land ownership under customary tenure
Decision
Appeal dismissed with costs; trial court judgment affirmed.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court dismissed the appeal. The appellant failed to discharge the burden of proving customary ownership on the balance of probabilities. While claiming inheritance from his grandfather through his father, the appellant acknowledged that the respondent's father Paulino Mbgulu lived on the land from the 1950s. The appellant did not adduce evidence of the customary law procedures, practices and rules by which he acquired ownership, a requirement where customary rules are neither documented nor notorious enough to warrant judicial notice.

Outcome

Appeal dismissed with costs; trial court judgment affirmed.

Facts

The appellant sued the respondent for recovery of approximately 80 acres of land held under customary tenure at Ubungo village, claiming he inherited it from his father who inherited it from the appellant's grandfather Ariloko. The appellant alleged that in the 1950s Ariloko gave part of his land to the respondent's father Paulino Mbgulu, who left in 1966 and returned in 1986-87 after Ariloko and the appellant's father had died. The respondent contended he was born on the land, inherited it from his father Paulino Mbgulu who died in 1999, and that his grandfather and other family members are buried there. The respondent claimed Paulino Mbgulu acquired the land from two brothers Chula and Iza in the 1930s and the family had lived there continuously. The trial magistrate visited the locus in quo, found the respondent's family had been in possession for a very long time, and held that Paulino Mbgulu acquired proprietary interest by long usage and possession. The appellant appealed.

Issues

  1. Whether the trial magistrate properly evaluated the evidence on record in determining ownership of the disputed land.
  2. Whether the trial magistrate erred in relying on unsworn evidence of persons gathered at the locus in quo.
  3. Whether the respondent acquired customary ownership of the land through usage and possession.
  4. Whether the appellant proved customary ownership of the land under customary tenure on the balance of probabilities.

Orders

  • Appeal dismissed.
  • Costs of both the appeal and the trial awarded to the respondent.

Rules and key headnotes

Customary Tenure — Burden of Proof — Requirement to Prove Applicable Customary Rules
A person seeking to establish customary ownership of land has the onus of proving that he or she belongs to a specific description or class of persons to whom customary rules apply, that he or she acquired the land in accordance with those rules, and must establish the nature and scope of the applicable customary rules and their binding and authoritative character.
Customary Tenure — Modes of Proving Customary Ownership
There are three modes of proof of customary ownership: documented customary rules attaining codification in land legislation; customary practices of sufficient notoriety that courts may take judicial notice under Evidence Act s.56(3); and cases where customary rules are neither notorious nor documented, requiring the party to adduce evidence of the customary law as they would prove other facts.
Customary Law — Proof Where Not Notorious or Documented
Where customary rules are neither notorious nor documented, the customary law must be established for the court's guidance by evidence of persons who would likely know of its existence or by expert opinion, since under Evidence Act s.46 courts may receive such opinions when forming opinions as to the existence of any general custom or right.
Locus in Quo — Purpose and Proper Procedure
The purpose of visiting the locus in quo is to check on the evidence given by witnesses in court, not to fill gaps in their evidence. All parties, witnesses and advocates must be present, witnesses must give evidence on oath, cross-examination must be allowed, all proceedings must be recorded including any observations of the court, and the court must not rely on unsworn evidence from persons who did not testify in court.
Locus in Quo — Effect of Procedural Irregularities
Failure to observe the principles governing recording of proceedings at the locus in quo is normally a fatal error if it occasions a miscarriage of justice, but where the defect did not demonstrably influence the decision and the case can be decided on the available evidence without relying on the impugned aspect, a retrial will not be ordered.
Appeals — First Appellate Court Duty to Re-evaluate Evidence
On first appeal, the appellate court is under an obligation to re-hear the case by subjecting the evidence to fresh and exhaustive scrutiny and reappraisal before coming to its own conclusion on issues of fact and law, while making due allowance for the fact that it has neither seen nor heard the witnesses.

Legislation cited (10)

Cases cited (16)

  • Father Nanensio Begumisa and three Others v Eric Tiberaga (Supreme Court Civil Appeal No. 17 of 2000)
  • Fernandes v Noroniha [1969] EA 506
  • De Souza v Uganda [1967] EA 784
  • Yeseri Waibi v Edisa Byandala [1982] HCB 28
  • Nsibambi v Nankya [1980] HCB 81
  • David Acar and three others v Alfred Acar Aliro [1982] HCB 60
  • James Nsibambi v. Nankya [1980] HCB 81
  • James Nsibambi v. Lovinsa Nankya [1980] HCB 81
  • Badiru Kabalega v. Sepiriano Mugangu [1992] 11 KALR 110
  • Basaliza v Mujwisa Chris (High Court Civil Appeal No. 16 of 2003)
  • Peters v Sunday Post Ltd [1958] E.A. 429
  • John Busuulwa v John Kityo and others (Court of Appeal Civil Appeal No. 112 of 2003)
  • Kiwalabye v Kifamba (High Court Civil Suit No. 458 of 2012)
  • Muluta Joseph v Katama Sylvano (Supreme Court Civil Appeal No. 11 of 1999)
  • Geoffrey Mugambi and two others v David K. M'mugambi and three others, C.A. No. 153 of 1989 (K) (unreported)
  • Ernest Kinyanjui Kimani v Muira Gikanga [1965] EA 735

Full judgment

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Alule v Agwe (Civil Appeal No. 0032 of 2014) 2017 UGHCLD 17 (2017-02-23)
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.