Wakilii

Okeny v Okun & Another (Civil Appeal No. 60 of 2017)

High Court · [2019] UGHC 46 · 2019 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from the Chief Magistrate's Court dismissing the appellant's claim for recovery of land and declaration of ownership
Decision
Appeal dismissed; trial court decision affirmed; respondents declared rightful owners of the land

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court dismissed the appeal, holding that sub-county officials had no legal mandate to allocate land they did not own, applying the principle nemo dat quod non habet. Compulsory acquisition of land without following constitutional procedures and paying compensation is illegal and does not transfer title. The appellant, who knew the allocation was conditional on compensating the customary owners but failed to do so, did not occupy the land in good faith and is not entitled to compensation for improvements.

Outcome

Appeal dismissed; trial court decision affirmed; respondents declared rightful owners of the land

Facts

The appellant sued for recovery of land measuring 27 x 75 meters at Tumato village, Ocettoke Trading Centre, Kitgum District, claiming it was allocated to him in 1995 by Labongo Layam sub-county officials. The respondents, who claimed customary ownership inherited from their grandfather Omonya Sole through their father Jeremiah Opwonya, entered the land in 2015 and began making bricks. The trial magistrate found that the sub-county officials had allocated land that did not belong to the sub-county, as confirmed by witnesses from both sides. The allocation was made on condition that the appellant would compensate the customary owners, which he never did. At the locus in quo, the trial court found the respondents in possession of most of the land with seven houses, while the appellant occupied only 7 x 15 meters with one house. The trial magistrate dismissed the suit and declared the respondents the rightful owners.

Issues

  1. Whether the trial magistrate erred in evaluation of evidence and finding that the land belonged to the respondents
  2. Whether the trial magistrate demonstrated judicial bias
  3. Whether the sub-county authorities had legal mandate to allocate land that did not belong to them
  4. Whether the appellant acquired valid title to the land through allocation by sub-county officials
  5. Whether compulsory land acquisition without compensation violates constitutional property rights
  6. Whether the appellant occupied the land in good faith and is entitled to compensation for improvements

Orders

  • Appeal dismissed
  • Costs of the appeal awarded to the respondents
  • Costs of the court below awarded to the respondents

Rules and key headnotes

Land Allocation — Invalid Grant by Non-Owner — Nemo Dat Quod Non Habet
A grantor of land cannot give away what he or she does not possess; the principle of nemo dat quod non habet (no-one can give something they do not possess) applies to land allocations by authorities that do not own the land.
Property Rights — Compulsory Acquisition — Constitutional Requirements
An acquiring entity cannot legally compulsorily acquire a person's property without payment of compensation as this will constitute a violation of the constitutional right to property under article 26(2) of the Constitution; compulsory acquisition requires that it be necessary for public use or in the interest of defence, public safety, public order, public morality or public health, and must be made under a law providing for prompt payment of fair and adequate compensation prior to taking possession.
Conditional Allocation — Failure to Satisfy Condition — No Title Acquired
Where one enters upon land with knowledge that he or she is doing so upon a certain contingency, such as compensating the original owners, he or she does not acquire title when the contingency is not realised; an occupant under such conditions should reasonably expect that his or her title might be defeated and therefore makes improvements at the risk of losing them.
Occupying Claimant — Bad Faith — No Compensation for Improvements
An occupying claimant who improves land with knowledge that he or she does not own title to the land, or who has actual or constructive notice of an adverse claim, is not entitled to compensation because he or she is in bad faith; good faith requires an honest belief in one's right or title based on reasonable grounds.
Judicial Bias — Test for Apprehension of Bias
For an allegation of judicial bias, there has to be a proper and appropriate factual foundation for any reasonable apprehension of bias; a reasonable person who is fully informed of and understands all facts and circumstances surrounding the case and seeing the outcome may not reasonably question the judicial officer's impartiality.
Grounds of Appeal — Requirement for Specificity
Every memorandum of appeal is required to set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative; properly framed grounds of appeal should specifically point out errors observed in the course of the trial which the appellant believes occasioned a miscarriage of justice; general grounds that allow a fishing expedition will be struck out.

Legislation cited (4)

Cases cited (12)

  • Father Nanensio Begumisa and three Others v Eric Tiberaga (SCCA No. 17 of 2000)
  • Lovinsa Nankya v Nsibambi [1980] HCB 81
  • Katumba Byaruhanga v Edward Kyewalabye Musoke (CA Civil Appeal No. 2 of 1998)
  • Attorney General v Florence Baliraine (CA Civil Appeal No. 79 of 2003)
  • Mwebesa and three others v Shumuk Springs Development Limited and three others (HC Civil Suit No. 126 of 2009)
  • Olatunji v. Military Governor of Oyo State (1995) 5 NWLR (Part 397)
  • Marquess of Clanricarde v. Congested District Board for Ireland (1914) 79 JP 48
  • Ahmadu Falke v. Billiri Local Government Council and others [2016] LPELR-40772 (CA)
  • Clifford Ebere and others v. Imo State University and others, 2016] LPELR-40619 (CA)
  • National Universities Commission v. Oluwo [2001] 3 NWLR (Pt. 699) at 90; [2001] 3 NWLR (Pt.542) 438
  • Gibson v. Hutchins, 12 La. Ann. 545 (1857)
  • Anglin v. Pennington, 296 Ky. 142, 176 S.W.2d 277 (1943)

Full judgment

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Okeny v Okun & Another (Civil Appeal No. 60 of 2017) [2019] UGHC 46 (29 August 2019)
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.