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Nkola Joseph v Kanyago Milika and Others [2025] UGHC 454

High Court · 2025 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 Civil Suit No. 02 of 2021
Decision
Appeal dismissed; lower court judgment upholding trespass finding and ordering vacant possession affirmed

Observed later treatment

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Holding

The High Court dismissed the appeal, upholding the lower court's finding that the appellant was a trespasser. The court held that the appellant failed to prove his alleged purchase of the land through credible evidence, as his witnesses contradicted themselves on material facts regarding the size of the land purchased. The court further held that the trial magistrate properly exercised discretion in framing additional issues under Order 15 rule 5 of the Civil Procedure Rules to determine ownership, which was necessary to resolve the trespass claim. The court affirmed that land belonging to deceased persons forms part of their estates and must be administered according to the Succession Act.

Outcome

Appeal dismissed; lower court judgment upholding trespass finding and ordering vacant possession affirmed

Facts

The respondents claimed that their late father, Yokana Mbulamberi, bequeathed land to his four sons before his death in 1998. Two of these sons, Kuchana Lazaro and Abosolom Teggu, died in 2012 and 1997 respectively. In 2013, the respondents temporarily allowed the appellant, a family relative, to use the two deceased brothers' land for farming. In 2020, the respondents discovered the appellant had sold part of the land. The appellant claimed he had purchased the land from Yokana Mbulamberi in 1995 and 1997 for UGX 180,000 and UGX 70,000 respectively, but alleged his purchase agreements were lost during his father's funeral in 2018. The lower court found the appellant to be a trespasser and ordered vacant possession. The appellant appealed, challenging the finding and the trial court's exercise of discretion in framing issues.

Issues

  1. Whether the lower court erred in holding that the Appellant did not provide evidence to confirm the sale of land to him
  2. Whether the lower court erroneously exercised its discretion under Order 15 rule 5 of the Civil Procedure Rules in framing additional issues
  3. Whether the lower court erred by granting orders and prayers that were not sought or pleaded for
  4. Whether the trial court erred in awarding costs against the Appellant

Orders

  • Appeal dismissed.
  • Costs of the appeal awarded to the Respondents.

Rules and key headnotes

Evidence — Proof of Lost Documents — Secondary Evidence — Contradictory Oral Testimony
Where a party claims a document is lost and seeks to prove its contents through oral testimony under sections 62(e) and 64(1)(c) of the Evidence Act, the oral evidence must be credible and consistent. Contradictory testimony from witnesses regarding material facts, such as the size of land allegedly purchased, undermines the credibility of the claim and is insufficient to prove the contents of the lost document.
Land Law — Customary Tenure — Proof of Ownership — Long User and Occupation
Proof of ownership of land under customary tenure is not established solely by evidence of long user or occupation. A claimant must show that the acquisition of the land was in accordance with a system of land tenure regulated by laws or customs which are limited in their operation to a particular description or class of persons.
Evidence — Burden of Proof — Sections 101, 102, and 103 of the Evidence Act
Under sections 101, 102, and 103 of the Evidence Act, he who asserts a fact must prove that fact exists. Where a party claims ownership of land against another party's assertion that the land was bequeathed by a deceased person, the burden lies on the claimant to prove acquisition through credible evidence, particularly where the claimant alleges purchase but fails to produce documentary proof.
Civil Procedure — Framing of Issues — Order 15 Rule 5 of the Civil Procedure Rules — Judicial Discretion
Under Order 15 rule 5 of the Civil Procedure Rules, a court has discretion to amend issues or frame additional issues at any time before passing a decree as it deems necessary for determining the matters in controversy between the parties. Where a plaintiff pleads trespass, the issue of ownership necessarily arises and the court may properly frame an issue on ownership to resolve the trespass claim.
Succession — Intestate Estates — Administration by Personal Representatives — Succession Act
Under sections 1 and 21 of the Succession Act, all property in an intestate estate devolves upon the personal representative of the deceased upon trust for those persons entitled to the property. Property of a deceased person forms part of the estate and must be managed and administered by personal representatives appointed by courts of law, not by customary heirs. A customary heir is merely a successor to the deceased but does not assume the role of a legal representative.
Civil Procedure — Costs — Section 27 of the Civil Procedure Act — Judicial Discretion
Under section 27 of the Civil Procedure Act, the court has absolute discretion to determine by whom and to what extent costs are to be paid. This discretion must be exercised judiciously depending on the facts of each case. While courts may order each party to bear their own costs in family matters to preserve harmony, this is not automatic and depends on the conduct of the parties and the circumstances of the case.

Legislation cited (11)

Cases cited (6)

  • Fr. M. Begumisa & Others v E. Tibegana (Supreme Court Civil Appeal No. 17 of 2003)
  • Kayinamura v Uganda (Criminal Appeal No. 0124 of 2022)
  • Atunya Variryano v Okeny Delphino (Civil Appeal No. 0051 of 2017)
  • Sheik Muhammed Lubowa v Kitara Enterprise Ltd (Court of Appeal No. 4 of 1987)
  • Impressa ING. Fortunato Federici v Irene Nabwire (Supreme Court Civil Appeal No. 03 of 2000)
  • Prince J. Mpuga Rukidi v Prince Solomon Iguru and Others (Court of Appeal No. 18 of 1994)

Full judgment

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Nkola Joseph v Kanyago Milika and Others 2025 UGHC 454 (26 June 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.