Wakilii

Makuru v Byenkya and Another (Civil Appeal 41 of 2023)

High Court · [2023] UGHCLD 355 · 2023 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from Chief Magistrate's Court judgment in land ownership dispute
Decision
Appeal allowed; judgment of trial Magistrate set aside; appellant declared owner of suit land; respondents declared trespassers and evicted with permanent injunction; general damages of UGX 5,000,000 awarded against each respondent.

Observed later treatment

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Holding

The High Court held that the trial Magistrate erred in failing to properly evaluate the evidence. The appellant established ownership of the suit land through his father's acquisition by gift intervivos from Yozefu Nyakojo Tibanyenda, proved by the gift document and uninterrupted occupation. The 1st respondent's possession of the donor's land certificate without supporting evidence and the 2nd respondent's unexecuted will and unsigned sale agreement failed to establish ownership. Appeal allowed, appellant declared owner, respondents deemed trespassers, and permanent injunction granted with damages.

Outcome

Appeal allowed; judgment of trial Magistrate set aside; appellant declared owner of suit land; respondents declared trespassers and evicted with permanent injunction; general damages of UGX 5,000,000 awarded against each respondent.

Facts

In 1979, Yozefu Tibanyenda Nyakojo donated suit land at Kyentale village to the appellant's father, George Byabataguzi, by gift intervivos. Upon the donor's death, the appellant occupied and utilized the land unchallenged by cultivation and grazing until 2008. The 1st respondent claimed he inherited the land from Nyakojo (his uncle) and possessed a 1945 Bunyoro Kitara Government land certificate in the donor's name. The 2nd respondent claimed her father Jack Mukuru purchased the land from Nyakojo in 1982 for shs.800,000 and bequeathed it to her via will. Both respondents encroached on the land in 2008 and 2012 respectively. The Chief Magistrate's Court dismissed the appellant's suit and awarded damages to the respondents. The appellant appealed.

Issues

  1. Whether the trial Magistrate properly evaluated the evidence on record.
  2. Whether the trial Magistrate erred in awarding remedies not prayed for by the Respondents.
  3. Whether the trial Magistrate properly relied on observations made at the locus.
  4. Whether the general damages awarded to the Respondents were excessive and properly pleaded.
  5. Whether the suit land belonged to the Appellant, 1st Respondent or 2nd Respondent.

Orders

  • The judgment and orders of the learned trial Magistrate are set aside.
  • The suit land comprised at Kyentale village, Buhanika Sub county, Hoima District is declared to belong to the Appellant.
  • The Respondents are declared trespassers on the suit land.
  • Eviction order against the Respondents and their agents and/or workers issued.
  • Permanent injunction against the Respondents and their agents or workers from further trespass and/or interfering with the Appellant's occupation and use of the suit land issued.
  • General damages for trespass awarded in the sum of UGX 5,000,000 against each of the Respondents.
  • Costs of the appeal and in the lower court awarded to the Appellant.
  • General damages to carry interest at court rate from the date of judgment until payment in full.

Rules and key headnotes

Land & Property — Gifts of Land — Gift Intervivos — Requirements for Valid Gift
For a gift intervivos of land to be perfected, the donor must intend to give the gift, the donor must deliver the property, and the donee must accept the gift. A gift becomes perfected and operative upon its acceptance by the donee, and exclusive occupation and user of the land by the donee suffices as evidence of acceptance of the gift.
Evidence — Documentary Evidence — Possession of Land Ownership Documents — Effect of Possession by Non-Named Party
Mere possession of documents pertaining to ownership of land by a person who is not named in the document as owner is not proof of ownership or that the owner passed over ownership by virtue of the document. Possession of such a document without more does not confer upon the holder any legal or equitable interest in the property.
Succession & Estates — Wills — Formal Requirements — Attestation by Witnesses
Every will must be attested by two or more witnesses, each of whom must have seen the testator sign or affix his or her mark to the will, in accordance with section 50(c) of the Succession Act. A document purporting to be a will that lacks such attestation does not conform to the law and is of no evidential value.
Evidence — Documentary Evidence — Primary and Secondary Evidence — Sale Agreements
Evidence must be proved by primary evidence save for public documents where court can admit certified secondary evidence. An unsigned photocopy of a purported sale agreement attached to pleadings, where the purchaser is not a party to the document, cannot be relied upon as proof of purchase when the purchaser himself failed to sign the document.
Evidence — Burden of Proof — Civil Cases — Standard of Proof
The burden of proof in civil cases lies on the plaintiff who must prove his or her case on a balance of probabilities. The burden of proof lies on the person who stands to lose if no evidence is led.
Civil Procedure — Appeals — Duty of First Appellate Court — Re-evaluation of Evidence
The duty of the first appellate court is to evaluate all the evidence that was before the trial court and arrive at its own conclusion as to whether the finding of the trial court can be supported by the evidence that was adduced before the trial court.

Legislation cited (9)

Cases cited (7)

  • Selle & Anor v Associated Motor Boat Co. Ltd & Anor [1968] EA 123
  • Miller v Minister of Pensions [1947] 2 All ER 372
  • Nsubuga v Kavuma (1978) HCB 307
  • Nassozi & Anor v Kalule (High Court Civil Appeal No. 05 of 2012)
  • Ovoya Poli v Wakunga Charles (High Court Civil Appeal No. 13 of 2014)
  • Kyambade v Mpigi District Administration [1983] HCB 44
  • Des Raj Shema v Regina [1953] EACA 310

Full judgment

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

Makuru_v_Byenkya_and_Another_(Civil_Appeal_41_of_2023)_[2023]_UGHCLD_355_(28_July_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.