Wakilii

Kilama & 2 Others v Abonyo (Civil Appeal No. 94 of 2018)

High Court · [2020] UGHC 97 · 2020 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from Chief Magistrate's Court judgment in a land dispute, with counterclaim.
Decision
Appeal dismissed. Respondent confirmed as rightful owner of the land in dispute. Eviction order and permanent injunction against appellants upheld.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the appellants failed to establish that the land formed part of Komakech Solomon's estate. The land originally belonged to Maria Acan who had two surviving children: Banya Yusuf and the respondent Abonyo Vicky. Clan elders divided Maria Acan's estate between them: the part at Kanyagoga C sub-ward went to P.W.1 Atek Rose (Banya Yusuf's daughter), and the part at Kanyagoga B sub-ward (the land in dispute) went to the respondent. A valid gift inter vivos was not established as Banya Yusuf did not divest himself completely of ownership and dominion. Komakech Solomon did not qualify as a dependent relative under Succession Act s.2(g)(ii). The distribution by clan elders under customary law was consistent with Succession Act s.28(1). The respondent is the rightful owner. Appeal dismissed.

Outcome

Appeal dismissed. Respondent confirmed as rightful owner of the land in dispute. Eviction order and permanent injunction against appellants upheld.

Facts

Appellants, as joint administrators of the estate of Komakech Solomon, sued the respondent seeking recovery of three plots of land at Kanyagoga B sub-ward, Gulu Municipality, claiming they inherited it from their father Komakech Solomon, who allegedly acquired it from his grandfather Banya Yusuf. The respondent contended that the land belonged to her mother Maria Acan and was divided by clan elders between herself and her brother Banya Yusuf. The respondent received the Kanyagoga B sub-ward portion while the Kanyagoga C sub-ward portion went to Banya Yusuf's daughter P.W.1 Atek Rose. P.W.1 Atek Rose sold her portion and the appellants then trespassed onto the respondent's land in 2015-2016 by constructing huts. The trial Magistrate found for the respondent, declared her the rightful owner, issued an eviction order, granted a permanent injunction, and awarded damages of UGX 5,000,000 plus costs. Appellants appealed on grounds that the trial court erred in finding the land did not form part of Komakech Solomon's estate and ignored evidence that Banya Yusuf owned and transferred the land.

Issues

  1. Whether the land in dispute formed part of the estate of the late Komakech Solomon.
  2. Whether the late Yusuf Banya owned the land in dispute and could validly transfer it to Komakech Solomon.
  3. Whether Komakech Solomon acquired the land by gift inter vivos from Banya Yusuf.
  4. Whether Komakech Solomon acquired the land by inheritance from Banya Yusuf as a dependent relative.
  5. Whether the trial Magistrate properly evaluated the evidence on record.

Orders

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

Rules and key headnotes

Succession — Intestate Succession — Distribution Among Lineal Descendants
Under Succession Act s.28(1), all lineal descendants are entitled to share their proportion of a deceased intestate's property in equal shares, and a person absolutely entitled to a share of an un-administered estate has an interest of a kind in the assets comprised in it.
Dependent Relatives — Test for Dependency
Under Succession Act s.2(g)(ii), a dependent relative includes a grandchild who, on the date of the deceased's death, was wholly or substantially dependent on the deceased for the provision of the ordinary necessaries of life. The dependency must immediately precede the death. For an adult offspring of the deceased who is able to earn and earns his or her own living, there must be some special circumstance, typically a moral obligation of the deceased towards him or her, before he or she can be deemed a dependent relative.
Gifts Inter Vivos — Requirements for Validity
For a gift inter vivos to be valid the donor must have done everything which according to the nature of the property comprised in the gift was necessary to be done by him in order to transfer the property and which it was in his power to do. It is essential to the validity of a gift that the donor should divest himself or herself completely of all ownership and dominion over the subject of the gift before he or she can effect delivery of possession of the property gifted. A gift of land of which the donor is in actual possession is not complete unless the donee is given possession. However, the mere fact that donor reserves the right to take usufruct during his life time does not mean that possession is not given to the donee.
Inheritance by Grandchildren — Requirement of Death of Intervening Descendant
Under Succession Act s.28(2), a grandchild of an intestate can only take the share which their deceased parent would have taken if the parent survives the intestate. Where the parent is still living, the grandchild has no direct claim to the grandparent's estate until the parent's death. The principle nemo est haeres viventis (no one is heir to the living) applies.
Customary Law — Application by Courts — Consistency with Statutory Law
Section 10 of the Magistrates Courts Act empowers Magistrates courts to observe and to enforce the observance of any civil customary law which may be applicable that is not repugnant to justice, equity or good conscience or incompatible either in terms or by necessary implication with any written law for the time being in force. Article 37 of the Constitution guarantees the right to maintain and promote culture and custom. Determinations of transmission of rights to land held customarily should be undertaken within a framework of interdependence between customary law and statutory law rather than exclusively on the basis of statutory law.
Grounds of Appeal — Requirement of Specificity
Under Civil Procedure Rules Order 43 r(1) and (2), a memorandum of appeal must set forth concisely and under distinct heads the grounds of objection to the decree appealed from without any argument or narrative. Properly framed grounds of appeal should specifically point out errors observed in the course of the trial which the appellant believes occasioned a miscarriage of justice. General grounds of appeal that allow a general fishing expedition will be struck out.

Legislation cited (16)

Cases cited (11)

  • Father Nanensio Begumisa and three Others v Eric Tiberaga (SCCA No. 17 of 2000)
  • Lovinsa Nankya v. Nsibambi [1980] HCB 81
  • Katumba Byaruhanga v Edward Kyewalabye Musoke (Court of Appeal Civil Appeal No. 2 of 1998)
  • Attorney General v Florence Baliraine (Court of Appeal Civil Appeal No. 79 of 2003)
  • In re Bradley's Estate, 185 Wis. 393, 201 N. W. 973, 38 A. L. R. 1 (1925)
  • Re Achillopoulos [1928] Ch. 483
  • Re Leigh's Will Trusts; Handyside v Durbridge [1970] Ch 277
  • In re Beaumont, Deceased; Martin v Midland Bank Trust Co Ltd [1980] 1 Ch 444; [1980] 1 All ER 266
  • Harlow v. National Westminster Bank Plc and Others; in re Jennings [1994] Ch 286; [1994] 3 WLR 67; [1994] 3 All ER 27
  • Jelley v. Illife [1981] 2 All ER 29
  • Administrator General v George Mwesigwa Sharp (Court of Appeal Civil Appeal No. 6 of 1997)

Full judgment

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

Kilama & 2 Others v Abonyo (Civil Appeal No. 94 of 2018) [2020] UGHC 97 (22 May 2020)
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.