Wakilii

Otto Aita v Akena (Civil Appeal No. 13 of 2014)

High Court · [2020] UGHC 123 · 2020 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from Chief Magistrate's Court judgment ordering subdivision of disputed customary land
Decision
Suit dismissed; appellant's title to the disputed land upheld

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court allowed the appeal and set aside the trial court's order subdividing disputed customary land between the parties. The court held that in a suit for assertion of title to land, the court must determine exclusive ownership based on the evidence and cannot create new boundaries through subdivision unless the suit was specifically for subdivision. The trial court erred in recording evidence from witnesses at the locus who had not testified in court, though this did not occasion a miscarriage of justice. The respondent failed to prove that the disputed land formed part of land acquired by his predecessor, and the evidence supported the appellant's claim that his predecessor acquired the land independently from different grantors.

Outcome

Suit dismissed; appellant's title to the disputed land upheld

Facts

The respondent sued the appellant claiming ownership of approximately 30 acres of customary land at Gem village, Gulu District, alleging his father Mathias Abwang settled on the land in 1947 and that the appellant's uncle Everesto Oyweyo was only permitted to graze livestock temporarily. The appellant claimed his family had lived on the land since 1954, having received it from Valenti Ongwech and Kapipi Alengo. Both parties were displaced by insurgency and lived in IDP camps. The dispute arose in 2006-2008 when the appellant returned and the respondent alleged encroachment. The trial magistrate found both predecessors had used the land together and ordered subdivision: 10 acres to the appellant and 20 acres to the respondent. The appellant appealed, challenging the evaluation of evidence.

Issues

  1. Whether the trial magistrate properly evaluated the evidence on record.
  2. Whether the trial court erred in recording evidence from witnesses at the locus in quo who had not testified in court.
  3. Whether the trial court erred in ordering subdivision of the disputed land rather than determining exclusive title.
  4. Whether the respondent proved exclusive customary ownership of the disputed land.
  5. Whether the appellant's intermittent absences from the land constituted abandonment or forfeiture of his possessory rights.

Orders

  • Appeal allowed.
  • Judgment of the court below set aside.
  • Suit dismissed.
  • Costs of the appeal and of the court below awarded to the appellant.

Rules and key headnotes

Civil Procedure — Locus in Quo — Scope of Inspection — Recording Evidence from Witnesses Not Called in Court
A visit to the locus in quo must be limited to an inspection of the specific aspects of the case as canvassed during oral testimony in court and to testing the evidence on those points only. The practice of visiting the locus in quo is to check on the evidence by the witnesses, and not to fill gaps in their evidence for them, lest the court may run the risk of turning itself into a witness in the case. It is an error for the court to record evidence at the locus from witnesses who had not testified in court.
Evidence — Improper Admission of Evidence — Effect on Appeal — Miscarriage of Justice
The improper admission or rejection of evidence is not of itself ground for a new trial or reversal of any decision if it appears to the appellate court that, independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision, or that if the rejected evidence had been received, it ought not to have varied the decision. A court will set aside a judgment on the ground of improper admission or rejection of evidence only if the error complained of has resulted in a miscarriage of justice.
Land Law — Customary Land — Boundaries — Creation and Establishment
Land boundaries are created, recognised and perpetuated by the landowners themselves, not the court. The creation of a boundary must be concurrent with the parties' intent to establish the location of the boundary. It is for the parties to adduce evidence in court as to the true location of boundaries. The court will look for evidence of the intention to create the boundary and the evidence resulting from the physical action taken by the owners to establish its location on the ground, guided by the hierarchy of evidence: natural objects, artificial objects, course, and distance.
Land Law — Suits for Recovery of Land — Subdivision Orders — Limits on Court's Power
In a suit for assertion of title to land, an order directing subdivision of the land runs the danger of creating new boundaries that may unfairly alter existing vested rights in land. A suit for assertion of title is aimed at establishing existing vested rights in land and thus cannot be permitted to be employed as a means of creating, disturbing or altering them. Only in a suit specifically for subdivision of land can a court order subdivision and create new boundaries. Outside such suits, ordering subdivision defeats the very purpose of establishing the existence of pre-dispute permanent boundaries.
Land Law — Customary Land — Prior Appropriation — First in Time, First in Right
Under the doctrine of prior appropriation, as among appropriators of formerly unoccupied and unclaimed land, the principle of 'first in time, first in right' controls by prioritising possessory rights according to the time of their original acquisition. An appropriator gains the exclusive possessory right to use the land that has been appropriated, over any subsequent appropriators and to the exclusion of subsequent appropriators. The date of appropriation determines the user's priority, with the earliest user having a superior right.
Land Law — Customary Land — Communal Ownership — Incompatibility with Exclusive Claims
With land owned communally, groups of people share the land mainly for purposes of subsistence, and members may graze their livestock on the commonage. As far as the commonage is concerned, no individual may claim exclusive use of the land. Access to the commonage is based on socially-defined membership reinforced and managed within the group. A claim that land was used communally is contradictory to a claim for exclusive use of the same land.
Land Law — Abandonment and Forfeiture — Distinction — Elements of Proof
Abandonment is an intentional relinquishment of a known right and requires proof of intent by the possessor to abandon. Forfeiture, on the other hand, follows failure to use land for an unreasonable period of time regardless of the owner's intent. Intent to abandon is not an element of forfeiture. Forfeiture is the involuntary or forced loss of the possessory right caused by the failure of the proprietor to perform some act required for its maintenance, and requires proof only of non-use, lapse of time and incapacity to exclude.

Legislation cited (7)

Cases cited (9)

  • Father Nanensio Begumisa and three Others v Eric Tiberaga (Supreme Court Civil Appeal No. 17 of 2000)
  • Lovinsa Nankya v Nsibambi [1980] HCB 81
  • Katumba Byaruhanga v Edward Kyewalabye Musoke (Court of Appeal Civil Appeal No. 2 of 1998)
  • Attorney General v Florence Baliraine (Court of Appeal Civil Appeal No. 79 of 2003)
  • 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
  • Miller v Minister of Pensions [1947] 2 All ER 372

Full judgment

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Otto Aita v Akena (Civil Appeal No. 13 of 2014) [2020] UGHC 123 (14 August 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.