Wakilii

Emboma Simon v Ogada Samuel and Another (Civil Appeal 22 of 2024)

High Court · [2025] UGHC 1539 · 2025 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from Chief Magistrate's Court Land Civil Suit No. 006 of 2021
Decision
Appeal dismissed; lower court judgment affirmed in favour of respondents.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court dismissed the appeal, holding that the appellant failed to prove that the disputed five-acre parcel formed part of his late father's estate. The court found that the late Benjamin Ajunga was a bare licensee on land owned by the 1st respondent, who had acquired it from Nyongesa Francis in 1964 under customary practice. A bare licensee holds no proprietary interest capable of transfer to heirs. The appellant's own witnesses contradicted his claim of a kingdom grant and corroborated that the 1st respondent brought the deceased onto the land. The principle nemo dat quod non habet applied: one cannot give what one does not have. The trial magistrate's findings were affirmed.

Outcome

Appeal dismissed; lower court judgment affirmed in favour of respondents.

Facts

The appellant sued the respondents claiming ownership of five acres at Jeeje 1 Village, Kigumba, which he alleged he inherited from his late father Benjamin Ajunga. The 1st respondent contended that he acquired 20 acres from Nyongesa Francis in 1964 by purchasing crops on the land (a customary practice) and that he invited his father and stepfamily to live on the land. After the father's death, the 1st respondent reclaimed the land. An LC II court divided approximately 20 acres equally; an LC III mediation resulted in an agreement for the appellant and his brother to purchase five acres for UGX 1,500,000, which they failed to honour. The 1st respondent successfully sued at LC I court to repossess the land. The 2nd respondent claimed he purchased five acres from Nerbert Jamwaka, not from the 1st respondent. The Chief Magistrate's Court found for the respondents, and the appellant appealed.

Issues

  1. Whether the learned trial Magistrate erred in finding that the suit land did not form part of the estate of the late Benjamin Ajunga.
  2. Whether the suit land belongs to the appellant, having been acquired from his late father Benjamin Ajunga.
  3. Whether the 1st respondent acquired the suit land from Nyongesa Francis without proof.
  4. Whether the 1st respondent illegally sold the suit land to the 2nd respondent.
  5. Whether the trial Magistrate erred in failing to cancel the agreement of purchase between the 1st and 2nd respondents.
  6. Whether the land owned by the 2nd respondent was different from the suit land.

Orders

  • The appeal is dismissed in its entirety.
  • The judgment of the lower court is affirmed.
  • The respondents are awarded the costs of this appeal and the lower court.

Rules and key headnotes

Bare License — No Proprietary Interest — Inability to Transfer
A bare licensee holds no proprietary interest in land and possesses only a personal permission to occupy, which cannot be transferred to heirs or third parties upon the licensee's death.
Nemo Dat Quod Non Habet — Transfer of Title
The principle nemo dat quod non habet (no one can give what he does not have) prevents a person without proprietary title from transferring ownership to another, including by inheritance.
Burden of Proof — Balance of Probabilities
Under Section 101 of the Evidence Act, the party asserting a legal right must prove the facts on which that right depends on a balance of probabilities, and contradictory testimony from a party's own witnesses fatally undermines credibility.
Customary Land Acquisition — Purchase of Crops as Transfer of Title
Under customary practice in certain areas of Uganda, the purchase of crops on land was understood to transfer ownership of the land itself, and courts may take judicial notice of well-established customary practices.
Permissive Occupation — Licensee vs. Adverse Possession
Long occupation of land with the permission of the owner establishes a license, not adverse possession, and such permissive occupation cannot ripen into ownership regardless of duration.
Appellate Review — Duty to Re-evaluate Evidence
A first appellate court must re-evaluate the evidence and draw its own conclusions, but will not interfere with the trial court's findings of fact unless they are plainly wrong, without basis in the evidence, or result in a miscarriage of justice.
Locus in Quo — Evidentiary Value
A visit to the locus in quo is intended to check evidence already adduced in court and clarify ambiguities; findings from such a visit form part of the court record and are entitled to weight where they are consistent with witness testimony.

Legislation cited (2)

Cases cited (10)

  • Banco Arabe Espanol v Bank of Uganda (Civil Appeal No. 8 of 1998)
  • Kifamunte Henry v Uganda (Supreme Court Criminal Appeal No. 10 of 1997)
  • Mbogo & Another v Shah [1968] EA 93
  • Sebuliba v. Cooperative Bank Ltd [1982] HCB 130
  • Waswa & Anor v Kikungwe (1952-56) 7 ULR 1
  • Street v. Mountford [1985] A.C. 809
  • Greenwood vs. Bennett [1973] Q.B. 195 (26 June 1972)
  • Uganda v. Wasswa & Anor [1992-1993] HCB 78
  • Selle v Associated Motor Boat Co Ltd [1968] EA 123
  • Buhagwa v. Bwambale and another [1993] 2 KALR 21

Full judgment

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

Emboma Simon v Ogada Samuel and Another (Civil Appeal 22 of 2024) [2025] UGHC 1539 (31 October 2025)
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.