Wakilii

Mugarra and Others v Bamuhiga and Others (CIVIL APPEAL NO.II OF 2010)

Court of Appeal · [2015] UGCA 2027 · 2015 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First appeal from High Court judgment in consolidated civil suits concerning customary land ownership
Decision
Appeal dismissed; High Court judgment declaring respondents customary owners and nullifying the leases upheld

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal dismissed an appeal against a High Court decision that had found the respondents to be customary owners in occupation of disputed land and had nullified fraudulent lease grants made by the District Land Board. The Court held that controlled hunting areas have always permitted human settlement, that overwhelming evidence including the locus in quo visit confirmed the respondents' longstanding customary occupation, and that no free land existed for leasing. Procuring lease grants to defeat a known unregistered interest amounted to fraud. The locus in quo was properly conducted, and the general damages award of UGX 3,000,000 per respondent was within the trial Judge's discretion and not excessive.

Outcome

Appeal dismissed; High Court judgment declaring respondents customary owners and nullifying the leases upheld

Facts

The respondents claimed to be customary owners in possession of land at Kimara, Kajuura, Nyakeera, Rwenyana and Kacwankumu in Bundibugyo (now Ntoroko) District, grazing cattle with numerous homesteads and kraals over many decades, some since colonial times. In 2004-2005 the appellants applied to Bundibugyo District Land Board to lease and register the land, which the respondents challenged as fraudulent. The land had been part of a controlled hunting area. The 3rd and 4th appellants were respectively secretary and member of the Land Board, and the acreage in their lease offers exceeded what was allocated. The High Court found the respondents were customary owners in effective occupation, that the land was not available for leasing, and that the alienation was fraudulent, awarding each respondent UGX 3,000,000 general damages. The appellants appealed. The Land Board (7th appellant) was struck out of the appeal and did not contest the findings against it.

Issues

  1. Whether the respondents were customary tenants in occupation of the suit lands prior to the start of the leasing process.
  2. Whether the suit lands were available for leasing.
  3. Whether there was fraud on the part of the appellants in obtaining lease offers.
  4. Whether the appellants departed from their pleadings by claiming customary interests in the land they applied to lease.
  5. Whether the trial Judge conducted the locus in quo proceedings properly and if not, whether there was a miscarriage of justice.
  6. Whether the general damages awarded to the respondents were excessive.

Orders

  • Appeal dismissed.
  • Judgment of the trial judge upheld.
  • Costs of the appeal and of the court below awarded to the respondents.

Rules and key headnotes

Land & Property — Customary Tenure — Proof of Customary Ownership by Occupation and Use
Customary land ownership is largely a matter of evidence, and may be established by long occupation, grazing of cattle, and construction of homesteads and kraals in accordance with the customary practices of the community, even where the land is undemarcated and communally used.
Land & Property — Controlled Hunting Areas — Compatibility with Human Settlement
Land within a controlled hunting area or wildlife management area is not thereby unavailable for human settlement; the governing legislation regulates land use to protect wildlife rather than prohibiting occupation, so such land may be held under customary tenure.
Land & Property — Fraud — Procuring Grant to Defeat Unregistered Interest
Procuring a lease or registration in order to defeat an existing unregistered interest of which the applicant has knowledge constitutes fraud, particularly where board members allocate land to themselves and inspection processes are conducted in disregard of statutory requirements.
Civil Procedure — Locus in Quo — Proper Conduct of Proceedings
A visit to the locus in quo must be to check evidence given in court and not to fill gaps or make the judge a witness; proceedings are properly conducted where the court records observations, draws a sketch plan, and affords all parties an opportunity to be heard on what transpired.
Civil Procedure — Pleadings — Departure from Pleadings
A party who pleads that it acquired land through lease grants and that the land was unoccupied departs from its pleadings when it later testifies to holding customary interests in the same land, and such evidence may be rejected.
Damages & Quantum — Appellate Interference with General Damages
An appellate court will not interfere with an award of general damages unless the trial judge acted on a wrong principle or the amount is so high or so low as to be an erroneous estimate of the damages to which the party was entitled.

Legislation cited (8)

Cases cited (12)

  • Kitosi Charles and Others v Bumero Estates Ltd (Civil Appeal No. 59 of 2005)
  • Cosma Bwabambale and Another v Yokosofati Matta (Civil Appeal No. 58 of 2002)
  • Yeseri Waibi v Edisa Lusi Byandala (1982) HCB 28
  • Fernandes v Noronha (1969) EA 506
  • David Acar & 3 others v Alfred Acar Aliro (1982) HCB 60
  • Gulaballi Ushillani v Kampala Pharmaceuticals Ltd (Civil Appeal No. 6 of 1998)
  • Marko Matovu & others v Mohammed Seviiri [1979] HCB 174
  • Fredrick Zaabwe v Orient Bank and Others (Civil Appeal No. 4 of 2006)
  • Kampala District Land Board & Anor v National Housing and Construction Corporation [2005] E.A. 69
  • Tibamanya Johnson and Another v Murungi Moses and Three Others (Civil Appeal No. 19 of 2007)
  • Attorney General v Lutaaya (Civil Appeal No. 16 of 2007)
  • Truill vs Bowker 1947 14 EACA 20

Full judgment

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

Mugarra and Others v Bamuhiga and Others (CIVIL APPEAL NO.II OF 2010) [2015] UGCA 2027 (26 November 2015)
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.