Wakilii

Tibamwenda and 5 Others v Mwebaze and Another (Civil Appeal 59 of 2023)

High Court · [2023] UGHC 152 · 2023 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from Chief Magistrate's Court judgment dismissing claim for trespass and vacant possession of customary land
Decision
Appeal dismissed with costs; judgment of the trial magistrate affirmed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the appellants failed to prove ownership or continuous adverse possession of the disputed customary land. The evidence at locus in quo showed that the disputed portion belonged to the respondents' late father under a certificate of title, while the appellants' kibanja was a separate distinct parcel. The appellants' forcible occupation and construction without consent constituted trespass. The respondents' certificate of title was conclusive absent pleadings and proof of fraud. The counter-claim for trespass as a continuing tort was not time-barred. Appeal dismissed with costs.

Outcome

Appeal dismissed with costs; judgment of the trial magistrate affirmed

Facts

The appellants, claiming to be children and beneficiaries of the late Joseph Kaahwa, sued for trespass, vacant possession, injunction and damages over customary land (kibanja) at Nyamiti along Hoima-Fort Portal Road. They averred they inherited the land from their father who inherited it from their grandfather Jabara Yosefu, and had built homesteads, planted crops and trees thereon. The respondents, sons of the late Samuel Bujwera, denied the claim and counter-claimed, averring their father purchased the land in 1970 from the administrator of the late Yowana Nsubuga's estate and obtained a certificate of title in 1987. The respondents claimed the appellants' kibanja was separate and distinct, with clear known boundaries, and that the appellants trespassed by constructing a temporary structure on the respondents' portion, motivated by the prospect of compensation from UNRA for road construction. The trial magistrate visited locus, found the parties held separate distinct bibanja, and that the disputed portion belonged to the respondents. He dismissed the appellants' claim with costs and ordered demolition of their structure.

Issues

  1. Whether the appellants proved ownership of the disputed customary land (kibanja) to the required standard.
  2. Whether the appellants acquired a protectable interest in the suit land by adverse possession or long use as bonafide or lawful occupants.
  3. Whether the appellants were trespassers on the suit land.
  4. Whether the respondents' certificate of title was lawfully procured.
  5. Whether the respondents' counter-claim for trespass was time-barred.
  6. Whether the trial magistrate properly conducted the locus in quo proceedings.

Orders

  • Appeal dismissed.
  • Costs to the respondents.

Rules and key headnotes

Evidence — Burden of Proof — Civil Proceedings — Ownership of Customary Land
In civil proceedings, the burden of proof lies upon the person who asserts facts to prove those facts exist. A plaintiff claiming ownership of customary land must prove ownership and, if alleging trespass, must prove the alleged trespass.
Civil Procedure — First Appellate Court — Duty to Re-evaluate Evidence
A first appellate court is under a duty to subject the entire evidence on record to exhaustive scrutiny, re-evaluate it and make its own conclusion, while bearing in mind that it did not observe witnesses under cross-examination.
Land & Property — Customary Land (Kibanja) — Proof of Ownership at Locus in Quo
Where a plaintiff claims ownership of customary land (kibanja) based on occupation, use and developments thereon, it is incumbent on the plaintiff at locus in quo to demonstrate to the court the developments (homesteads, tree crops, graves) relied upon as proof of claims.
Land & Property — Adverse Possession — Requirement of Continuous Possession
For possession to be adverse, it must be proved to be continuous. Where a claimant does not adduce evidence of continuous possession of the disputed portion of land, a claim of adverse possession cannot succeed.
Land & Property — Certificate of Title — Conclusiveness — Registration of Titles Act s.59
A certificate of title is conclusive evidence of ownership save for fraud. In the absence of any pleading and evidence that the title was obtained by fraud or with illegality, the certificate stands as conclusive proof of ownership.
Tort Law — Trespass — Continuing Tort — Limitation Act s.5
Trespass is a continuing tort. The cause of action continues until the wrong ceases. Time begins to run from each act of trespass, and where trespass is ongoing, the action is not time-barred under the Limitation Act.
Civil Procedure — Locus in Quo — Revisit by Appellate Court — Curing Deficiencies
Where there are omissions or deficiencies in the conduct of locus in quo proceedings by the trial court, an appellate court may revisit the locus in quo itself to cure such errors and omissions in the interest of justice.

Legislation cited (4)

Cases cited (5)

  • Sanyu Lwanga Musoke v Sam Galiwango (Supreme Court Civil Appeal No. 48 of 1995)
  • Mukasa v Uganda [1964] EA 698
  • Justine Lutaaya v Stirling Civil Engineering (Supreme Court Civil Appeal No. 11 of 2002)
  • Nambulu Kintu v Ephraim Kamuntu [1975] HCB 221
  • Eridad Otabong Waima v Attorney General (Supreme Court Civil Appeal No. 6 of 1990) [1992] V KALR

Full judgment

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Tibamwenda and 5 Others v Mwebaze and Another (Civil Appeal 59 of 2023) [2023] UGHC 152 (3 November 2023)
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.