Wakilii

Openy and Another v Aber Bicentina (Civil Appeal 90 of 2021)

High Court · [2024] UGHC 446 · 2024 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from Chief Magistrate's Court decision in civil suit concerning land ownership and trespass.
Decision
Civil suit dismissed. Judgment and decree of trial court set aside. Mediation agreement endorsed.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court allowed the appeal, set aside the trial court's judgment, and dismissed the respondent's civil suit. Held that the respondent failed to prove on a balance of probabilities that Akucu Wilson made a gift inter vivos of land in Pailyech Parish to her late father-in-law. The claim to 10 acres in Pagak Parish was not pleaded and its adjudication was a nullity violating the second appellant's right to fair hearing. The trial court erred in failing to properly frame issues, evaluate evidence, and confine itself to pleadings.

Outcome

Civil suit dismissed. Judgment and decree of trial court set aside. Mediation agreement endorsed.

Facts

The respondent sued the appellants for trespass on land she claimed to have inherited from her late husband, who had inherited from his father Odong Augustine. She alleged Odong was gifted approximately 50 acres in Pailyech Parish by Akucu Wilson (father of the first appellant) in 1974. The appellants denied the gift. The first appellant claimed he inherited the land from his father Akucu who acquired it in 1968, and that Odong only temporarily took refuge there for two years in the 1980s after fleeing a murder. Both families were displaced by LRA insurgency and lived in IDP camps. The first appellant returned in 2007 to vacant land. The respondent returned later and caused his arrest. Following traditional mediation, the first appellant voluntarily ceded 15 acres to the respondent. The trial court found for the respondent and declared her owner of land in both Pailyech and Pagak Parishes. The second appellant was found to be a trespasser on 10 acres in Pagak Parish, which was not pleaded in the amended plaint.

Issues

  1. Whether the respondent lawfully owns the suit land in Pailyech Parish?
  2. Whether a gift inter vivos of the land was made by Akucu Wilson to Odong Augustine?
  3. Whether the appellants jointly and severally trespassed on the suit land?
  4. Whether the claim regarding land in Pagak Parish was properly before the trial court?
  5. What remedies are available to the parties?

Orders

  • Appeal allowed.
  • Judgment, decree and orders of the trial court set aside in their entirety.
  • Civil Suit No. 004 of 2014 dismissed.
  • Appellants awarded 75 percent of taxed costs in this court and in the trial court.
  • Mediation outcome pursuant to which first appellant ceded 15 acres to respondent is endorsed and shall not be disturbed.

Rules and key headnotes

Gift Inter Vivos — Elements — Intention, Delivery and Acceptance
For a gift of property inter vivos to be complete and irrevocable, three conditions must exist: the donor must intend to give the gift; the donor must deliver the property to the donee; and the donee must accept the gift and take possession of it.
Pleadings — Requirement to Plead Cause of Action — Effect of Unpleaded Claims
A party cannot obtain relief on a cause of action not pleaded. Where evidence is adduced on matters not rooted in any pleading and not agreed upon as being in dispute, the court cannot purport to adjudicate such matters. Allowing a new cause of action at trial without supportive pleading flouts the rules of pleadings and denies the opposite party the right to fair hearing under Article 28 of the Constitution.
Issue Framing — Court's Duty — Power to Amend Issues
A trial court has a duty to ensure that issues are properly framed to mirror the pleadings and concessions. The court should not simply adopt issues as framed by counsel if they do not properly delineate the matters in controversy. The court has power to amend issues and should exercise that power to ensure proper adjudication.
Grounds of Appeal — Form — Requirement to be Concise Without Argument or Narrative
A memorandum of appeal must be concise, without argument or narrative. A ground of appeal should challenge a holding of the court or some procedural defect in the proceedings. A ground that purports to bring clearly distinct matters that could have formed separate grounds of appeal into one ground is incurably defective.
Disclosure of Cause of Action — Test — Plaint and Annexures Only
When investigating whether or not a cause of action is disclosed in the plaint, the court must restrict itself to reading and examining the plaint and annexures thereto and nothing more. A written statement of defence is not considered. The court is not concerned with whether the cause of action has chances of success; that falls within disclosure of a reasonable cause of action, which is distinct from disclosure of a cause of action.
Res Judicata — New Point on Appeal — Requirements
Where the defence of res judicata is not raised before the trial court, being a question of mixed fact and law, it is improper to raise it on appeal for the first time. Any new point of law raised for the first time on appeal should be based on facts not in controversy and on evidence that is not challenged. Where the matter is contested, it cannot form the basis for a new point of law on appeal.
Evaluation of Evidence — Contradictions — Customary Land Gifting Claims
Where a party claiming land by way of gift inter vivos relies on hearsay evidence and produces no credible direct witness to the alleged gifting, and where witnesses give contradictory evidence on material aspects of the gifting (date, circumstances, extent of land gifted), the claim fails on a balance of probabilities. Extraneous considerations such as the presence of old trees or the fact that the alleged donor did not return from displacement due to insurgency are immaterial to proof of the alleged gift.

Legislation cited (7)

Cases cited (38)

  • Jovelyn Barugahare v Attorney General (Civil Appeal No. 28 of 1991)
  • Hadija Nakibuka v Attorney General (Civil Appeal No. 11 of 1993)
  • Ayella David v Kalokwera Gladys (High Court Civil Appeal No. 14 of 2015)
  • Okwonga George and Another v Okello James Harrison (HC Misc. Application No. 132 of 2021)
  • Auto Garage & another Vs. Motokov (No.3), (1971) EA 314
  • Sietco v Noble Builders (U) Ltd (Civil Appeal No. 31 of 1995)
  • Katumba Byaruhanga v Edward Kyewalabye Musoke (CACA No. 2 of 1998)
  • National Insurance Corporation v Pelican Air Services (Civil Appeal No. 15 of 2003)
  • Lagedo Christine and 3 Others v Fabiano Obwoya (HC Civil Appeal No. 82 of 2019)
  • Dr. Baveewo Steven v Kagquwa Anthony (HC Civil Appeal No. 001 of 2020)
  • John Bwiza v Patrick Yowasi Kadama (Civil Appeal No. 16 of 2018)
  • Ochwa Olanya Charles v Ochaya Santo and Acayo Ludina (High Court Civil Appeal No. 69 of 2017)
  • Olyel Bazil and Another v Otto Justine and Another (HC Civil Appeal No. 43 of 2021)
  • Father Narsensio Begumisa and 3 Others v Erie Tibebaga (Supreme Court Civil Appeal No. 17 of 2002)
  • Kifamunte v Uganda (S.C.C.A No. 10 of 1997)
  • Selle & another Vs. Associated Motor Boat Co. Ltd & others (1968) E.A 123
  • David Muhenda and 3 Others v Margaret Kamuje (Civil Appeal No. 9 of 1999)
  • Kapeka Coffee Works Ltd v NPART (CACA No. 3 of 2000)
  • Jiraj Shariff & Co. Vs. Chotai Farey Store (1960) EA 374
  • Lworomoi Trobisch and Another v Aloti Hellen Ogwal (HCCS No. 007 of 2020)
  • Businge Maxim and Another v Sinopec Services (U) Ltd (HCCS No. 07 of 2023)
  • Sarwan Singh Vs. Notkin (1952) 19 EACA 117
  • Nubbock & Sons Ltd Vs. Wilkin Heywood & Clark Ltd (1899) 19 QB 198
  • Drummond Jackson Vs. British Medical Association (1970) 1 WLR 668
  • Mario Ali v Opoka Santo (Misc. Application No. 14 of 2022)
  • Dison Okumu and 7 Others v Uganda Electricity Co. Ltd and 6 Others (Civil Appeal No. 18 of 2020)
  • Narensio Begumisa and 3 Others v Eric Tibebaga (SCCA No. 17 of 2002)
  • Rubaramira Ruranga v Electoral Commission and the Attorney General (Constitutional Petition No. 21 of 2006)
  • Nalongo Burashe v Kekitiibwa Mangadalena (Court of Appeal Civil Appeal No. 89 of 2011)
  • Steven Katabazi and 2 Others v Ignatitus Kadoma and Another (Civil Appeal No. 23 of 2022)
  • Alwi Abdulrehman Saggaf Vs. Abed Aki Algeredi [1961] 1 E.A 767
  • Uganda Breweries Ltd v Uganda Railways Corporation (SCCA No. 6 of 2001)
  • Interfreight Forwarders (U) Ltd v East African Development Bank (SCCA No. 33 of 1993)
  • General Medical Council Vs. Spackman (1943) 2 All ER 337
  • Ridge Vs. Baldwin [1964] AC 40
  • Marko Matovu and 2 Others v Mohammed Sseviri (Civil Appeal No. 7 of 1978)
  • George William Kalule v Norah Nassozi and Thomas Kalinabiri (Civil Appeal No. 29 of 2014)
  • Oyo Francis v Olanya Martin (High Court Civil Appeal No. 05 of 2017)

Full judgment

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Openy and Another v Aber Bicentina (Civil Appeal 90 of 2021) [2024] UGHC 446 (10 June 2024)
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.