Wakilii

Okello v Akello and Another (Civil Appeal 135 of 2021)

High Court · [2025] UGHC 38 · 2025 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from the Chief Magistrate's Court of Kitgum dismissing the plaintiff's claim for customary land ownership and trespass
Decision
Appeal dismissed; trial court's dismissal of suit affirmed with variation that appellant failed to establish ownership rather than declaring respondents customary owners

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Appeal dismissed. High Court upheld trial court's dismissal of appellant's land ownership and trespass suit. Appellant failed to establish on a balance of probabilities that he owned the disputed customary land or that respondents were trespassers. Evidence was inconsistent on land acreage, boundaries, and descriptions; appellant's witnesses contradicted each other. Respondents' evidence was consistent and corroborative. Court struck out grounds 1 and 2 of appeal and found remaining grounds lacked merit. Trial court's declaration that respondents were customary owners was set aside and replaced with finding that appellant failed to establish ownership, due to insufficient evidence of customary tenure from both parties.

Outcome

Appeal dismissed; trial court's dismissal of suit affirmed with variation that appellant failed to establish ownership rather than declaring respondents customary owners

Facts

Appellant sued claiming customary ownership of approximately 20 acres in Orama Central and Orama Tebung Villages, Agago District, alleging respondents trespassed in 2011. Appellant claimed he inherited the land from his late father Awio Binasio in 1958. Respondents contended they lawfully owned the land acquired by their late father-in-law Okumu Galdino in 1962, from whom they inherited it when their husband Okidi Francis was abducted by LRA rebels in 2002. Both parties agreed Okumu Galdino had been given land by appellant's mother Regina Akidi. Trial court found for respondents. Ambiguity existed throughout regarding land dimensions, acreage (variously stated as 6, 10, 13, 20, or 26 acres), and boundaries. No locus in quo visit was conducted. No Counter-Claim was filed by respondents.

Issues

  1. Whether the Learned Trial Magistrate held that the Respondents/Defendants had a cause of action against the Appellant/Plaintiff.
  2. Whether the Learned Trial Magistrate properly resolved the matter of whether the Respondents' father in law was given the land in dispute.
  3. Whether the Learned Trial Magistrate gave adequate reasons for his decision.
  4. Whether the Learned Trial Magistrate examined the period of time the parties acquired the land.

Orders

  • Grounds 1 and 2 of the Memorandum of Appeal are struck out.
  • The Appeal substantially fails on all the remaining grounds, 3 and 4, and is hereby dismissed.
  • The Order of the Trial Court declaring the Respondents the customary owners of the suit land is hereby set aside and varied by substituting it with an Order that the Appellant as the Plaintiff at the Trial failed to establish ownership of the suit land.
  • The Appellant shall bear the Costs in this Court and the Trial Court.

Rules and key headnotes

Civil Procedure — Appeals — Framing of Grounds of Appeal — Requirements for Conciseness
Grounds of appeal must be set forth concisely and under distinct heads of objection to the decree appealed against without narrative or argument, and must arise from the ratio decidendi of the trial court's judgment.
Evidence — Burden of Proof — Land Ownership — Customary Tenure
A litigant claiming customary land ownership must discharge the burden of proof by adducing evidence of the custom or tradition under which ownership is claimed as well as the group or class of owners; customary tenure cannot be established by assumption or presumption.
Land & Property — Customary Tenure — Proof of Ownership — Expert Testimony
Traditional and cultural structures of the community where land is situated are best placed to provide expert testimony on customary land ownership; short of such evidence, a court is constrained to make a determination of customary ownership and the litigant risks leaving establishment of ownership by a simpler or lesser interest such as by possession or occupation.
Civil Procedure — Counter-Claims — Affirmative Relief — Necessity of Pleading
A party who has not filed a Counter-Claim in the trial court is generally not entitled to affirmative remedies, and a court cannot make an award on the basis of a non-existent Counter-Claim, though it may in its discretion determine questions of law and fact finally where the evidence is sufficient to enable it do so.
Evidence — Weight of Evidence — Consistency and Corroboration
Where a party's witnesses give inconsistent testimony and fail to corroborate each other, particularly on material facts regarding land dimensions, acreage, and boundaries, such evidence lacks credibility and the party fails to discharge the burden of proof on a balance of probabilities.
Civil Procedure — Locus in Quo — Duty of Litigants to Establish Subject Matter
A diligent litigant must take effort in preparation to establish the subject matter of any suit, particularly matters involving previously unsurveyed and undocumented lands which benefit from technical and expert testimony to establish parameters; a locus in quo visit is not intended to fill gaps in evidence or turn the court into a witness.

Legislation cited (15)

Cases cited (32)

  • Kifamunte Henry v Uganda (Supreme Court Criminal Appeal No. 10 of 1997)
  • Pandya v R (1957) EA 336
  • Okeno v Republic (1972) EA 32
  • Charles B. Bitwire v Uganda (Supreme Court Criminal Appeal No. 23 of 1985)
  • Fredrick Zaabwe v Orient Bank Ltd (Supreme Court Civil Appeal No. 4 of 2016)
  • Father Begumisa Nanensio and 3 Others v Eric Tiberaga (Supreme Court Civil Appeal No. 17 of 2000) [2004] KALR 236
  • Lovinsa Nankya v Nsibambi [1980] HCB 81
  • Manigaruha Gashumba v Sam Nkundiye (Court of Appeal No. 23 of 2005)
  • Acaa Bilentina v Okello Michael (High Court Civil Appeal No. 53 of 2015)
  • Otim Julius Peter v Pader District (High Court Civil Suit No. 50 of 2014)
  • Sukuton Ali v Augustine Kapkwonyongo and 2 Others (Court of Appeal No. 117 of 2012)
  • Justine E. M. N. Lutaaya v Stirling Civil Engineering Co. Ltd (Supreme Court Civil Appeal No. 11 of 2002)
  • Sheikh Mohamed Lubowa v Kitara Enterprises Ltd (Court of Appeal Civil Appeal No. 4 of 1987)
  • Fernandes v Noroniha [1969] EA 506
  • De Souza v Uganda [1967] EA 784
  • Yeseri Waibi v Edisa Byandala [1982] HCB 28
  • Nsibambi v Nankya [1980] HCB 81
  • Ddamulira Aloysius v Nakijoba Josephine (High Court Civil Appeal No. 59 of 2019)
  • Bongole Geoffrey v Agnes Nakiwala (Court of Appeal Civil Appeal No. 76 of 2015)
  • Ellis R. Kasolo v Security Group (U) Ltd (Court of Appeal Civil Appeal No. 212 of 2020)
  • Peters v Sunday Post Ltd [1958] EA 424
  • Selle & Anor v Associated Motor Boat Co. & Others [1968] EA 123
  • King v Thompson [1914] 2 KB 99
  • Atunya Valiryano v Okeny Delphino (High Court Civil Appeal No. 51 of 2017)
  • Balamu Bwetegeine Kizza and Anor v Zephania Kadooba Kizza (Court of Appeal Civil Appeal No. 59 of 2009)
  • Hon. (Rtd.) Justice Galdino Okello Moro & Others v The Attorney General (Constitutional Petition No. 28 of 2019)
  • Candy v Caspair Air Charter Ltd [1956] EACA 139
  • Francis Sembuya v All Ports Services Ltd (Supreme Court Civil Appeal No. 6 of 1999)
  • Goustar Enterprises Ltd v John Oumo Kokas (Supreme Court Civil Appeal No. 8 of 2003)
  • High Court Civil Appeal (Kitgum): Olum Bazilo Vs. Oweka Paul and 2 Others
  • Christopher Katuramu v Maliya & 3 Others (High Court Civil Suit No. 1 of 1989)
  • The Attorney General v Florence Baliraine (Court of Appeal Civil Appeal No. 79 of 2003)

Full judgment

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Okello v Akello and Another (Civil Appeal 135 of 2021) [2025] UGHC 38 (31 January 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.