High Court affirms that customary land ownership requires proof of delivery, acceptance, & family knowledge; mere use is insufficient, and gift inter vivos & adverse possession are mutually exclusive

Waboga David
Sep 16
5 min read

Facts

The appellants claimed ownership of the 12-acre suit land, asserting it was part of a 19-acre parcel inherited from their late father, Odwar Valente, who allegedly received it as a gift inter vivos from Arop Lawrensio in 1969.

The respondents, led by the 1st respondent (Akena Julius), denied the gift and claimed ownership through inheritance from Arop Lawrensio, the 1st respondent’s father, who inherited it from his grandfather.

The appellants sought a court declaration of ownership, alleging that they were born and raised on the suit land and had maintained possession until 2014, when the 1st respondent forcefully entered, evicted them, and constructed huts. They claimed the respondents were trespassers and sought vacant possession, a permanent injunction, general and exemplary damages, mesne profits, interest, and costs.

The 1st respondent denied the gift, asserting that he inherited the suit land from Arop Lawrensio upon his death in 1984. The 2nd to 7th respondents were in occupation with their authority, and the 8th respondent was an owner alongside him, with some respondents having purchased portions of the land.

The trial magistrate visited the locus in quo, heard evidence, and ruled that the appellants had failed to prove either a gift inter vivos or adverse possession. The trial magistrate dismissed the suit, holding that the appellants had failed to prove gifting or adverse possession, and declared the 1st respondent the rightful owner. A permanent injunction was issued against the appellants.

The appellants appealed on four grounds, including errors in rejecting adverse possession, mishandling of locus proceedings, and reliance on allegedly contradictory defence evidence.

Issues

The appeal raised the following key issues for determination:

Whether the trial magistrate erred in rejecting the appellants’ claim of ownership through a gift inter vivos.
Whether the trial magistrate erred in rejecting the appellants’ claim of adverse possession.
Whether the trial magistrate erred in admitting fresh testimony at the locus in quo, particularly from the 8th respondent and the LCI Chairman.
Whether the trial magistrate erred in ignoring alleged contradictions in the respondents’ evidence, particularly that of DW2 (Lapura Jema), leading to a miscarriage of justice.

Submissions of the Parties

Appellants’ Submissions

Grounds 1 and 2 (On Gift Inter Vivos and Adverse Possession)

The appellants argued that the trial court failed to consider their adverse possession of the suit land, which they claimed extinguished the original owner’s title. They asserted that their father, Odwar Valente, received the land as a gift from Arop Lawrensio in 1969, supported by their long-term occupation and use, including burials of family members (Juspina Abanya and baby Odoch) on the suit land. They contended that their possession was open, notorious, and continuous, satisfying adverse possession requirements.

Ground 3 (Locus in Quo)

The appellants submitted that the trial magistrate improperly admitted fresh testimony from the 8th respondent (Abalo Concy) and the LCI Chairman (Okot George) at the locus, who had not testified in court. They argued this violated procedural law, leading to a miscarriage of justice.

Ground 4 (Contradictions in Respondents’ Evidence)

The appellants alleged that DW2’s testimony was inconsistent regarding her presence during the burials of Juspina Abanya and baby Odoch, claiming she contradicted herself on whether she was present or in Patiko at the time. They argued the trial court ignored these contradictions, which undermined the respondents’ credibility.

Respondents’ Submissions

Grounds 1 and 2

The respondents denied the gift, asserting that Arop Lawrensio never gifted the land to Odwar Valente. They argued that the land was inherited by the 1st respondent in 1984, and the appellants’ use of the land was permissive, facilitated by familial ties (Regina Ladur, Arop’s wife, being the sister of Juspina Abanya). They contended that adverse possession was not pleaded and was an afterthought, unsupported by evidence of exclusive, non-permissive possession for 12 years.

Ground 3

The respondents acknowledged the procedural irregularity in recording the 8th respondent’s testimony at the locus but argued it did not influence the trial court’s decision, as the judgment did not rely on it. They denied that the LCI Chairman testified, asserting he only clarified a boundary issue.

Ground 4

The respondents conceded minor contradictions in DW2’s testimony but argued they were immaterial, as they did not affect the core issue of land ownership. They maintained that DW2’s account was consistent regarding the burials and the respondents’ ownership.

Court’s Findings

The appellate court, acting as a first appellate court, re-evaluated the evidence and made the following findings;

Grounds 1 and 2: Gift Inter Vivos and Adverse Possession

Gift Inter Vivos

The court found no evidence of a gift inter vivos, as the appellants failed to prove Arop Lawrensio’s intent to gift, delivery of the land, or acceptance by Odwar Valente. The appellants’ witnesses relied on hearsay (what Odwar and Juspina told them), and no witness interacted with Arop to confirm the gift during his lifetime (1969–1984). The court noted that the land was held under customary tenure, requiring family consent for any transfer, which was absent. The appellants’ use of the land was permissive, facilitated by familial ties, not indicative of a gift.

Adverse Possession

The court held that adverse possession was not pleaded, violating Order 7 Rule 1(e) of the Civil Procedure Rules, which mandates disclosing the cause of action. The claim was introduced belatedly in submissions, constituting trial by ambush. Even on merits, the appellants failed to prove factual possession, continuous 12-year occupation, animus possidendi, or non-permissive use. The respondents’ family maintained possession, and the appellants’ use was fragmented and permissive. The court rejected the claim as an afterthought, inconsistent with the gift claim.

Ground 3 on Locus in Quo Proceedings

The court agreed that recording testimony from the 8th respondent, who did not testify in court, was irregular, citing precedents like Ocen v. Obol and Bongole Geofrey v. Agnes Nakiwala. However, the error did not cause a miscarriage of justice, as the trial court did not rely on this testimony in its judgment. The LCI Chairman did not testify; he only clarified a boundary issue, and no testimony was recorded. The irregularity did not affect the trial court’s jurisdiction or merits.

Ground 4 on Contradictions in Respondents’ Evidence

The court found no contradictions in DW2’s testimony. She consistently stated she was present during the burials of Juspina Abanya and baby Odoch, and her account of being in Patiko from 1992 to 2000 did not conflict with her presence at the relevant times. Any perceived inconsistencies were minor and did not affect the central issue of ownership. The court upheld the trial court’s reliance on DW2’s credible testimony.

Holding

The appellate court dismissed the appeal, upholding the trial court’s Judgment, Decree, and orders. The court declared the respondents as the rightful owners of the suit land and maintained the permanent injunction against the appellants. Due to the close familial ties between the parties, each side was ordered to bear their own costs in the appellate court, leaving the trial court’s cost order intact.

Key Takeaways

For land under customary tenure, evidence of delivery, acceptance, and family knowledge is essential. Mere occupation, cultivation, or burials on land are insufficient without proof of intention and delivery.
A claim based on adverse possession must be specifically pleaded in the plaint. Raising it belatedly in submissions is procedurally defective.
A party cannot simultaneously claim ownership through both gift inter vivos (voluntary transfer) and adverse possession (hostile occupation). They are doctrinally inconsistent.
Under customary tenure, land disposal, including gifts, requires involvement or knowledge of family members, as land is held communally.