Wakilii

Ocaya v Abwol and Another (Civil Appeal No. 76 of 2020)

High Court · [2023] UGHCCD 27 · 2023 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from decision of Chief Magistrate's Court of Kitgum at Pader
Decision
Appeal partly allowed. Respondents retain ownership of majority of suit land as widows who inherited from their late husbands. Appellant retains ownership of three gardens based on long possession by his ancestors. Land to be surveyed to delineate portions.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

High Court partly allowed appeal, holding that while respondent widows inherited bulk of suit land from their late husbands (who inherited from their father Erica Cwa), appellant had acquired ownership rights by long possession over three gardens initially given to his grandfather by Erica Cwa. Court set aside licensee finding, holding that burial of appellant's grandfather and father on those three gardens was inconsistent with mere licence status and raised presumption of ownership. Grounds of appeal struck out for being argumentative but court resolved them on merits.

Outcome

Appeal partly allowed. Respondents retain ownership of majority of suit land as widows who inherited from their late husbands. Appellant retains ownership of three gardens based on long possession by his ancestors. Land to be surveyed to delineate portions.

Facts

Respondent widows claimed ownership of approximately 60 acres of customary land at Telela Central village inherited from their late husbands, who inherited from their father Erica Cwa (who received the land from his father-in-law in 1952). Appellant's grandfather, Hannington Anying, was allowed to settle temporarily on three gardens within the suit land. After displacement by LRA war, respondents returned from IDP camps in 2007 to find appellant in possession, selling and renting portions of land. Trial court declared respondents owners, holding Hannington was merely a licensee. Appellant claimed to have inherited land via his grandfather's will dated 2009.

Issues

  1. Whether the suit for recovery of land was time-barred under the Limitation Act.
  2. Whether the trial magistrate erred in declaring Hannington Anying a mere licensee on the suit land.
  3. Whether the trial court properly conducted the locus in quo proceedings.

Orders

  • Respondents declared owners of the suit land except three gardens which appellant's grandfather Hannington Anying was given, occupied and cultivated with consent of Erica Cwa.
  • The three gardens declared to belong to appellant and his siblings and those claiming under them with full rights to occupy and use.
  • Permanent injunction restraining appellant, his siblings and those claiming under them from interfering with respondents' ownership, occupation and use of rest of suit land except the three gardens.
  • Parties free to have their portions surveyed and delineated, with appellant's portion limited to three gardens.
  • Appellant to pay respondents half of taxed costs of trial court and half of taxed costs of appeal.

Rules and key headnotes

Civil Procedure — Grounds of Appeal — Requirement that Grounds Not Be Argumentative
A ground of appeal must not be argumentative but should clearly state the error complained of. Grounds offending Order 43 rule 1(2) of the Civil Procedure Rules will be struck out, though the court may proceed to consider them for completeness.
Civil Procedure — Limitation — Requirement to Plead Time Bar in Defence
Where a defendant fails to raise the issue of limitation in the written statement of defence, contrary to the mandatory requirement of Order 6 rule 6 of the Civil Procedure Rules, the defendant cannot raise the issue of time bar for the first time on appeal as this would take the plaintiff by surprise.
Evidence — First Appellate Court Duty — Duty to Re-Evaluate Evidence and Make Own Findings
As a first appellate court, the High Court must rehear the case by reconsidering all materials before the trial court and making up its own mind, weighing conflicting evidence and drawing its own inferences and conclusions. However, where questions turn on credibility based on demeanour of witnesses, the appellate court must be guided by the trial judge's impressions.
Land & Property — Customary Land Tenure — Long Possession Raising Presumption of Ownership
Long possession and use of land, particularly where ancestors were buried on the land, raises a presumption of ownership in favour of the possessor even where the original basis of occupation may have been permissive. Such possession cannot be defeated by someone claiming better title unless that title-holder properly terminated the possession.
Land & Property — Licences — Burial on Land Inconsistent with Licence Status
While a licence does not create an estate in land, it is inconceivable that a mere licensee and his adult son would be allowed to be buried on land unless the status had evolved beyond that of a licence. Such burials are inconsistent with mere licensee status where the burials were not shown to be temporary.
Land & Property — Customary Land — Widows' Right to Inherit Under Acholi Custom
Acholi custom allowing wives to inherit property of their deceased husbands is not repugnant to any law of Uganda, natural justice, equity or good conscience, being consistent with article 21 of the Constitution which prohibits discrimination on the basis of sex, and is therefore upheld under section 15 of the Judicature Act.
Civil Procedure — Locus in Quo — Purpose Limited to Checking Court Evidence
The purpose of a locus in quo visit is not to fill gaps in the evidence of either party but to check on the evidence given by witnesses in court. A party seeking specific demonstrations at the locus must apply to the trial court; the court will not turn itself into a witness in the matter.

Legislation cited (8)

Cases cited (12)

  • Fr. Narensio Begumisa and 3 Others v Eric Tibebaga (Civil Appeal No. 17 of 2002)
  • Coghlan v Cumberland [1898] 1 Ch 704
  • Pandya v R [1957] EA 336
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Alimarina Okot and 4 Others v Lamoo Hellen (Civil Appeal No. 26 of 2018)
  • Katumba Byaruhanga v Edward Kyewalabye Musoke (Court of Appeal Civil Appeal No. 2 of 1998)
  • AG v Florence Beliraine (Court of Appeal Civil Appeal No. 78 of 2003)
  • Asher v Whitlock (1865) LR 1 QB 1
  • Fowley Marine v Grafford [1968] 1 All ER 979
  • Okello Johnson v Lalam Angella (Civil Appeal No. 013 of 2019)
  • Head v Hartley (1882) 42 Ch D 461
  • Yeseri v Edisa Lusi Byandala (1982) HCB 28

Full judgment

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

Ocaya v Abwol and Another (Civil Appeal No. 76 of 2020) [2023] UGHCCD 27 (9 February 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.