“A lease, by itself, does not extinguish customary rights unless it is shown that lawful acquisition procedures, including engagement of existing occupants, were followed.” High Court at Mbale Rules.

Waboga David
Dec 13, 2025
7 min read

Facts

The Appellant, The Board of Governors, Sironko High School, sued the nine Respondents in the lower court, seeking a declaration of ownership, vacant possession, and an injunction against trespass on 11.3 hectares of suit land.

The Appellant claimed to be the lawful and equitable owner, having occupied the land since 1960 after it was handed over to the Sironko Muslim Community by a Mr. Lindsell, who had acquired it from a Mr. George Wasangai in 1956 for the establishment of three projects: a mosque, a primary school, and Sironko High School. The Appellant was granted a five-year lease in 1999, which was later extended.

The Respondents, who had been in occupation since the 1980s, 1990s, and 2000s, denied the Appellant's claim. They asserted that they derived their ownership interests through purchase, inheritance (gift inter vivos), or bonafide purchase for value, from the estate of the late Jafari Mafabi, who allegedly purchased the land from George Wasangai in 1956. They adduced evidence of long-term occupation, cultivation, building of structures, and even burials on the land.

The trial magistrate found that the land occupied by the Respondents was part of the land George Wasangali sold to Jafabi Mafali, from whom the Respondents derived their ownership, dismissing the Appellant's suit.

Issues

The issues in the lower court were:

Who is the lawful owner of the suit land?
What remedies are available to the parties?

On appeal, the High Court addressed the six grounds raised by the Appellant:

Failure to evaluate evidence on ownership, leading to an erroneous decision.
Failure to appreciate locus proceedings regarding demarcations of the land given by Lindsel.
Holding that the suit land belonged to the Respondents without documentary proof.
Disregarding the Appellant's documentary evidence on acquisition.
Misdirection and non-direction on law and fact (struck out for non-compliance with procedural rules).
Occasioning a miscarriage of justice to the Appellant.

The appellate court re-evaluated the evidence as a first appellate court, per the principles in Fr. M. Begumisa & Ors v. E. Tibegana SCCA No. 17 of 2003, requiring it to rehear the case, weigh the trial judgment, and overrule if wrong.

Submissions

Appellant's Submissions (represented by Counsel Nicholas Agaba)

Argued that the trial magistrate failed to properly evaluate evidence, ignoring the Appellant's documentary proof (e.g., 1956 sale agreement and 1960 deed of gift) showing acquisition from Lindsel and Mukasa.
Contended that the Respondents lacked documentary proof of ownership from Jafari Mafabi, and their claims were unsubstantiated.
Emphasized the Appellant's lease from 1999 (extended in 2004) and quiet possession until 2012,that encroachments.
Asserted the locus visit should have confirmed demarcations, and the decision caused miscarriage of justice.
Prayed for the appeal to be allowed, the lower court judgment set aside, and costs awarded.

Respondents' Submissions (represented by Counsel Gyabi Charles James):

Defended the lower court's findings, highlighting unrebutted evidence of their long-term occupation (since the 1980s–2000s) and acquisitions from Jafari Mafabi via purchases, gifts, or inheritance.
Argued the Appellant's documents (PW3 EX.1 and EX.2) lacked clear descriptions or boundaries, limiting the land to the school site only, not the entire 11.3 hectares.
Pointed out procedural flaws in the Appellant's lease acquisition, including a lack of community engagement, and that the Respondents' presence (e.g., homes, burials) was ignored.
Noted some Respondents provided purchase agreements, and occupation evidence sufficed under customary law.
Urged dismissal of the appeal with costs.

Court's Findings

The High Court, exercising its mandate as a first appellate court, undertook a fresh and exhaustive re-evaluation of the evidence on record, while bearing in mind the findings of the trial magistrate. Guided by the principles in Fr. M. Begumisa & Ors v E. Tibegana SCCA No. 17 of 2003, the Court made the following key findings:

1. On Ownership of the Suit Land

The Court found that the Appellant failed to prove ownership of the disputed land on the balance of probabilities. While the Appellant relied on a 1956 sale agreement (PW3 EX.1) and a 1960 deed of gift (PW3 EX.2), the Court held that these documents were incapable of establishing ownership of the entire suit land claimed.

The Court observed that PW3 EX.1 expressly limited the land sold to Lindsel to the portion “marked out for the site of the Indian School” and explicitly excluded the rest of George Wasangai’s land. The Court therefore held that:

The Appellant’s claim was confined to the specific site demarcated for the school;
There was no documentary or oral evidence proving that the additional land claimed formed part of the original conveyance.

Accordingly, the Court concluded that the Appellant’s documents did not support its expansive claim over 11.3 hectares.

2. On Absence of Clear Demarcations and Boundary Identification

The Court placed significant emphasis on the absence of boundary descriptions in the Appellant’s foundational documents. It found that neither PW3 EX.1 nor PW3 EX.2 described the location, size, or boundaries of the land allegedly gifted to the Muslim community or the school.

The Court held that:

Ownership of land cannot be inferred where the subject matter of the transaction is uncertain;
The lack of demarcations rendered the Appellant’s claim speculative and incapable of enforcement against third parties.

The Court further reasoned that if Lindsel intended to convey the entire suit land, such intention would have been clearly reflected in the deed of gift.

3. On the Respondents’ Customary and Lawful Interests

The Court found that the Respondents had sufficiently proved lawful interests in the suit land through a combination of:

Purchase agreements from late Jafari Mafabi;
Inheritance under customary tenure;
Inter vivos gifts; and
Long, uninterrupted occupation dating back to the 1960s, 1980s, and 1990s.

The Court noted that this evidence was largely unrebutted by the Appellant. Several Respondents had established homes, cultivated the land, and buried relatives thereon, acts consistent with ownership under customary tenure.

The Court held that documentary title is not the sole means of proving land rights and that customary ownership, once established by credible evidence and long occupation, is legally protected.

4. On the Lease Granted to the Appellant

The Court held that the issuance and subsequent extension of a statutory lease to the Appellant in 1999 and 2004 did not extinguish pre-existing customary interests.

The Court found that:

The Appellant failed to demonstrate that lawful procedures were followed prior to issuance of the lease;
There was no evidence of consultation, consent, or compensation of existing customary occupants;
Visible occupation and use of the land by the Respondents should have put the Appellant and the land authorities on notice.

The Court emphasized that a lease acquired without due process cannot override established customary rights, holding that:

“The issuance of the lease offers to the Appellant school did not in any way negate the existence of other customary owners on the suit land.”

5. On the Locus in Quo Proceedings

The Court rejected the Appellant’s argument that the trial magistrate failed to properly appreciate the locus visit. It clarified that the purpose of a locus in quo is not to create evidence, but to verify boundaries and physical features already established by documentary or oral evidence.

The Court found that since the Appellant’s evidence failed to define boundaries in the first place, there was nothing for the locus visit to confirm. As such, the locus proceedings could not cure the evidentiary deficiencies in the Appellant’s case.

6. On Burden and Standard of Proof

Applying sections 101–103 of the Evidence Act, the Court reaffirmed that the burden of proof lay squarely on the Appellant as the party asserting ownership.

The Court held that:

The Respondents’ long occupation and acquisition history shifted an evidentiary burden to the Appellant to disprove their claims;
The Appellant failed to discharge this burden on a balance of probabilities.

7. On Alleged Misdirection and Miscarriage of Justice

The Court found no misdirection or nondirection by the trial magistrate. It held that the lower court properly evaluated the evidence and reached a legally sound conclusion.

One ground of appeal alleging general misdirection was struck out for offending Order 43 rule 2 of the Civil Procedure Rules, while the remaining grounds were dismissed on merit.

8. Final Finding

The Court concluded that the Appellant had no lawful claim over the disputed land beyond the original school site and that the Respondents’ customary and lawful interests had been validly established. Consequently, the appeal lacked merit and was dismissed with costs.

HOLDING

The appeal was dismissed in its entirety. The Court upheld the trial magistrate's decision that the Respondents were the lawful owners of their respective portions of the suit land.

Orders:

Appeal dismissed
Costs awarded to the Respondents
Judgment delivered via email on 10th December 2025

KEY TAKEAWAYS

1. Importance of Clear Land Descriptions

Land transfer documents must contain clear descriptions and demarcations. Ambiguous language such as "the area marked out" without specific boundaries is insufficient to establish ownership beyond the immediate area in question.

2. Literal Interpretation of Sale Agreements

Courts will apply literal interpretation to land sale agreements. Where a document explicitly states that transferred land does not cover "the rest of my land," subsequent claims to such remaining land will fail.

3. Community Engagement in Lease Applications

Authorities must engage local communities and investigate third-party interests before granting leases over customary land. Failure to do so may render such leases ineffective against existing customary owners.

4. Long-Term Occupation Establishes Rights

Decades of peaceful, continuous occupation, cultivation, construction of permanent structures, and burial of relatives on land creates strong evidence of ownership rights, even in the absence of formal registration.

5. Leases Don't Extinguish Pre-existing Rights

The issuance of a lease by government authorities does not automatically extinguish pre-existing customary ownership rights, particularly where proper procedures were not followed in the lease application process.

6. Burden of Proof in Land Disputes

In civil land disputes, the party asserting ownership bears the burden of proving ownership on a balance of probabilities. Unrebutted evidence of the opposing party's long-term occupation will defeat weak documentary claims.

7. Purpose of Locus Inspections

Locus visits are meant to verify boundaries indicated in documentary evidence. Where documents contain no boundary descriptions, a locus inspection serves no meaningful purpose in establishing ownership.

8. Institutional Purchasers Must Exercise Due Diligence

Schools, religious institutions, and other organizations acquiring land must conduct thorough due diligence, including physical inspection and engagement with persons in actual occupation, before claiming ownership rights.

9. Customary Land Rights Protected

Ugandan courts recognize and protect customary land rights, including those acquired through purchase, inheritance, and gifts inter vivos, even against institutional claimants with government-issued leases.

10. Procedural Defects in Ground Drafting

Grounds of appeal must comply with Order 43 rule 2 of the Civil Procedure Rules. Vague grounds alleging general "misdirection and non-directions" without specificity may be struck out.

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