Wakilii

Onyuta & 2 Others v Akena & 4 Others (Civil Appeal No. 89 of 2019)

High Court · [2020] UGHC 96 · 2020 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from Chief Magistrate's Court decision on land ownership and trespass claims
Decision
Appeal partly allowed. Land given to Atiak Technical School declared part of Obadiah Olaka's estate. Land on which telecommunications mast stands declared part of Okee James' estate. 1st respondent ordered evicted from land near graves. 3rd respondent awarded damages against 1st appellant. Permanent injunctions granted to both parties.

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Holding

The High Court held that the gift of land to Atiak Technical School was imperfect due to lack of proper demarcation and delivery, and the gift remained revocable. The court found that the telecommunications mast was erected on land given by the late Obadiah Olaka to the late Okee James, which the 3rd respondent inherited under Acholi customary law. The common boundary was the path leading to Okee James' home and the Shea nut tree. The 1st appellant wrongfully transacted with ATC Uganda Limited to erect the mast on land belonging to the estate of Okee James and was ordered to pay damages to the 3rd respondent. The 1st respondent was found to be a trespasser on land given to Atiak Technical School, which remained part of Obadiah Olaka's estate. Appeal allowed in part.

Outcome

Appeal partly allowed. Land given to Atiak Technical School declared part of Obadiah Olaka's estate. Land on which telecommunications mast stands declared part of Okee James' estate. 1st respondent ordered evicted from land near graves. 3rd respondent awarded damages against 1st appellant. Permanent injunctions granted to both parties.

Facts

The appellants sued for recovery of approximately two acres of land they claimed to have inherited from their late father, Obadiah Olaka, alleging that the respondents trespassed by excavating, cutting trees, building houses, and claiming ownership. The appellants had entered into a lease agreement with ATC Uganda Limited in 2007 to erect a telecommunications mast on the land. The 1st respondent subsequently entered into a similar agreement in 2011. Prior to the insurgency, the appellants' family had donated approximately 41-50 acres to Atiak Technical School, which later vacated the land. The respondents claimed they inherited the land from their forefathers, particularly from Okee James, and that Obadiah Olaka had given land to Okee James around 1953-1965. Evidence showed the 1st respondent moved from his father's land west of the Gulu-Juba Road to land east of that road after the insurgency. The court visited the locus in quo twice and observed that the mast was located near the home of Okee James, with a boundary marked by a path and Shea nut trees.

Issues

  1. Whether the appellants proved ownership of the land in dispute.
  2. Whether the land upon which the telecommunications mast stands belongs to the 3rd respondent as part of the estate of the late James Okee.
  3. Whether the appellants are estopped from claiming land previously allocated by their relatives to Atiak Technical School.
  4. Whether the trial court correctly conducted proceedings at the locus in quo and made accurate findings of fact.

Orders

  • The claim for trespass against the 2nd, 4th and 5th respondents is dismissed.
  • A declaration is made that the land previously given by the sons of Obadiah Olaka as a gift to Atiak Technical School forms part of the estate of the late Obadiah Olaka.
  • The common boundary between land comprising the estate of the late Obadiah Olaka and that comprising the estate of the late Okee James is the path leading to the home of Okee James and the Shea nut tree.
  • An order of eviction issues against the 1st respondent from land he is occupying East of the Gulu-Juba Road, near the graves of the appellants' deceased relatives.
  • A permanent injunction issues restraining the respondents, their agents and persons claiming under them from undertaking any activities on land East of that common boundary.
  • Judgment is entered on the counterclaim in favour of the 3rd respondent against the 1st appellant by which the land on which the ATC Uganda Limited telecommunications mast is located is declared to form part of the estate of the late Okee James.
  • The 3rd respondent is awarded special damages of UGX 32,000,000 against the 1st appellant (UGX 4,000,000 per annum from 2007 until 2015).
  • A permanent injunction issues restraining the appellants, their agents and persons claiming under them from undertaking any activities on land decreed to the 3rd respondent.
  • The counterclaim by the rest of the respondents is dismissed.
  • Each party is to bear their own costs of the trial and of the appeal.

Rules and key headnotes

Gift inter vivos — Requirements for validity — Intention, acceptance and delivery
For a gift inter vivos to be valid, three conditions must be met: the donor must actually intend to make a gift; the donee must have accepted the gift; and there must be delivery of the property from the donor to the donee. The delivery confirms the donor's intent to make the gift. There will be no gift if the donor is not competent to give and/or the donee is not competent to receive.
Gift of land — Imperfect gift — Requirement of demarcation and delivery
There cannot be delivery of possession of land until the boundaries of the parcel of land are demarcated, appropriating it from the rest of the adjacent land. Property rights cannot be secured without a specification of the physical boundaries, however imprecise. Where there is no determined boundary, there is no parcel and, hence, no enforceable property rights. Equity will not perfect an imperfect gift; an incomplete gift can be revoked at any time.
Customary tenure — Corporate entities — Inability to own land under customary tenure
Unless they are incorporated in accordance with the prevailing culture, customs, traditions and practices of the communities concerned, and are embodied in the traditional lifestyle of the community, non-traditional corporate entities cannot own land customarily, since they are neither created by nor envisaged under customary law. Section 3(1) of the Land Act does not envisage public bodies, statutory institutions, private or public limited liability companies or similar corporate entities owning land under customary tenure.
Customary tenure — Boundary determination — Hierarchy of evidence
Boundaries under customary tenure are traditionally delineated by reference to natural geographical features; by their abuttals or relation to natural or artificial elements such as roads or adjacent lands; by statements of length, bearing and distance. Courts ordinarily adhere to a hierarchy with natural boundaries at the top, followed by monumented lines, old undisputed occupation, abuttals and statements of length, bearing or direction.
Adverse possession — Requirements — Effect on title
A person asserting title by adverse possession must prove six elements: the land was held adverse or hostile to the owner's title; possession has been actual; it has been open and notorious; possession has been exclusive or the use by others has been controlled by the possessor; possession has been continuous for the period of more than twelve years; and possession has been under claim-of-title or colour-of-title. Where a claim of adverse possession succeeds, it has the effect of terminating the title of the original owner of the land.
Court records — Presumption of accuracy — Rebutting the presumption
Under section 79 of the Evidence Act, the appellate court is to presume that the evidence recorded was the evidence actually given, except to the extent the document is shown not to be an accurate transcription of the record. There is a rebuttable presumption that the written proceedings is the official and authentic history of the case and the judgment. The presumption is rebutted when a party adduces evidence sufficient to raise a doubt about the presumption. Mere allegations cannot destroy or discredit the authenticity of the record of proceedings.
Trespass to land — Requirements — Proof of possession
Trespass to land is a possessory action where if remedies are to be awarded, the plaintiff must prove a possessory interest in the land. It is the right of the owner in possession to exclusive possession that is protected by an action for trespass. Such possession should be actual and this requires the plaintiff to demonstrate his or her exclusive possession and control of the land. The entry by the defendant onto the plaintiff's land must be unauthorised.

Legislation cited (8)

Cases cited (16)

  • Father Nanensio Begumisa and three Others v Eric Tiberaga (Supreme Court Criminal Appeal No. 17 of 2000)
  • Lovinsa Nankya v. Nsibambi [1980] HCB 81
  • Registered Trustees Anglican Church of Kenya Mbeere Diocese v. David Waweru Njoroge [2007] eKLR
  • Re McArdle [1951] Ch 669, at 677
  • Richards v. Delbridge [1874] LR 18 Eq 11
  • Milroy v. Lord (1862) 45 ER 1184
  • In re Griffin [1899] 1 Ch 408
  • Macedo v. Stroud [1922] 2 AC 330
  • In re Fry [1946] Ch 312
  • Re Rose, Midland Bank Trustee Co Ltd v. Rose [1949] Ch 78
  • In re Rose, Rose v. IRC [1952] Ch 499
  • Pennington and another v. Waine and others [2002]1 WLR 2075
  • Giselle Zeital and another v. David Norman Kaye and others,[2010] EWCA Civ 159
  • In Re Rose, Midland Bank Executor and Trustee Co. Ltd. v. Rose [1949] Ch. 78
  • Geoffrey Mugambi and two others v. David K. M'mugambi and three others, C.A. No. 153 of 1989 (K)
  • Rwajuma v Jingo Mukasa (High Court Civil Suit No. 508 of 2012)

Full judgment

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Onyuta & 2 Others v Akena & 4 Others (Civil Appeal No. 89 of 2019) [2020] UGHC 96 (22 May 2020)
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.