Wakilii

Kyairagwire and Another v Buteera and Another (HCT-01-CV-CA-0059 2005)

High Court · [2008] UGHC 179 · 2008 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from Masindi District Land Tribunal judgment
Decision
Tribunal decision set aside; respondents' claim dismissed; appellants' customary ownership of land affirmed.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court held that land communally owned by the Aberi clan could not be validly sold by a single clan member without the consent of the other clan members. The purported sale by the 2nd appellant to the respondents was void, as he had no individual interest to dispose of. Evidence of seasonal planting and grazing constitutes proof of customary tenure. A tribunal judgment signed by two out of three members satisfies the statutory requirement for a majority decision under Land Act s.75(1).

Outcome

Tribunal decision set aside; respondents' claim dismissed; appellants' customary ownership of land affirmed.

Facts

In 1997, the 2nd appellant Kiiza Baramu sold approximately 13-15 acres of land at Kihagane village to the respondents for UGX 210,000. The respondents built a temporary hut and began grazing cattle on the land. The 1st appellant, as head of the Aberi clan comprising 16 members, immediately sued in LC courts claiming the land belonged communally to the clan. The respondents purchased the land without knowledge of other clan members. When the clan discovered the sale, they offered to refund the purchase money, but the respondents refused. The clan had occupied the land since 1986, grazing cattle and planting seasonal crops. The respondents claimed before the tribunal that the purchased land was 40-50 acres, contradicting evidence that the actual parcel was only 13-15 acres. The Masindi District Land Tribunal found in favour of the respondents, declaring them rightful owners and awarding damages of UGX 500,000 for trespass.

Issues

  1. Whether the suit land belonged to the respondents or to the Aberi clan.
  2. Whether the sale of land by the 2nd appellant to the respondents was valid when the land was communally owned by the clan.
  3. Whether the appellants were trespassers on land owned by the respondents.
  4. Whether the tribunal judgment was valid when signed by only two members instead of three.

Orders

  • Appeal allowed on grounds 1 to 5.
  • Appeal dismissed on ground 6.
  • Decision and orders of the Masindi District Land Tribunal set aside.
  • Appellants awarded full costs in the tribunal.
  • Appellants awarded three-quarters of the costs in the High Court.

Rules and key headnotes

Customary Land Tenure — Communal Ownership — Individual Member's Capacity to Alienate
Where land is held communally by a clan under customary tenure, an individual member has no capacity to unilaterally sell or alienate any portion of that land without the consent of the other co-owners; any such purported sale is void and passes no interest to the purchaser.
Customary Land Tenure — Proof of Occupation and Use
Evidence of planting seasonal crops or grazing cattle on land may constitute proof of customary tenure, even where the entire land holding is not fully utilised by the occupants.
Credibility of Witnesses — Contradictory Testimony in Different Proceedings
Where a tribunal finds a witness to be untruthful based on demeanour and testimony before it, the tribunal errs if it then relies on the same witness's testimony given in earlier proceedings before an inferior court, assuming that testimony to be truthful without justification for the inconsistency.
Land Tribunal Decisions — Quorum and Validity of Judgment
Under Land Act sections 74(1) and 75(1), a District Land Tribunal consists of a chairperson and not fewer than two other members, and a decision of the tribunal is by majority; a judgment signed by two out of three members satisfies the statutory requirement and is valid.

Legislation cited (2)

Cases cited (1)

  • Marko Matovu and 2 Others v Mohammed Sseviri and Another [1979] HCB 174

Full judgment

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

Kyairagwire and Another v Buteera and Another (HCT-01-CV-CA-0059_2005) [2008] UGHC 179 (30 July 2008)
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.