High Court at Kabale Holds That Occupation of Land as a “Caretaker” (Licensee) Negates the Intent to Possess (animus possidendi) Required for Adverse Possession

Facts

The respondents, who are sisters, sued the appellant for recovery of family land situated in Rubugo Cell, Rukiga District. They claimed the land formed part of their late father’s estate and had been allocated to their mother, one of his three wives, during his lifetime.

The appellant, a widow and administrator of the estate of their deceased brother, resisted the claim on grounds that the land belonged to her late husband’s mother and that she had been in long possession of the land. She further contended that the respondents had abandoned their share and migrated elsewhere.

The trial Magistrate found in favour of the respondents, declared them owners of the land, held the appellant to be a trespasser, and granted eviction and injunctive relief.

The appellant appealed.

PROCEDURAL HISTORY.

Appellant upon the death of her husband in 2007 had applied for letters of administration, got a grant in 2015; and the respondents began claiming ownership of the same land. At trial, three issues were framed for resolution by court and include:

1. Whether the respondents were the rightful owners of the suit land;

2. Whether the appellant was a trespasser [on the suit land]; and

3. Whether the respondents were entitled to the remedies sought.

In his Judgment, after hearing testimony by both parties and their witnesses, the learned Trial Magistrate on a balance of probabilities upheld the claims of the respondents. He believed their testimony to the effect that they had left the land in the hands of the appellant’s husband merely as a caretaker, as they were married. He also rejected the appellant’s testimony to the effect that the suit land was a marriage gift, holding that it was a departure from pleadings prohibited by Order 6 Rule 7 of the Civil Procedure Rules S.I. 71-1, (the ‘’Civil Procedure Rules’’). The Trial Magistrate lastly gave reasons for rejecting the appellant’s testimony because it was full of grave inconsistencies and contradiction.

GROUNDS FOR APPEAL.

The learned Trial Magistrate erred in law and fact when he failed to consider the law of limitation and adverse possession of the suit property.
The learned Trial Magistrate erred in law and fact when he failed to consider the law governing distribution of property of the deceased persons.
The learned Trial Magistrate erred in law and fact when he shifted the burden of proving the case to the defendant thus reaching the wrong conclusion.

SUBMISSIONS

Appellant’s Submissions

It was the Appellant’s case in support of Ground 1 that the appellant had a long standing and unchallenged possession of the land and cited the decision of Learned Justice Mubiru in Afard Nebbi & Another v Alex Manano Ajoba, High Court Civil Appeal No. 3 of 2005, reported at 2016 UGHCD 32 to cement the position.

The appellant further cited the Doctrine of Adverse Possession quoting Megarry & Wade: The Law of Real Property, 9th Edition, Stuart Bridge, Elizabeth Cooke and Martin Dixon, Sweet and Maxwell, London, 2019 at paragraphs 7-001, 7-004; and 7-084 to the effect that after 12 years, a registered owner loses the right to challenge a person’s occupation of the land, even though the initial entry was illegal, and the registered owner’s title is extinguished and acquired by the person in occupation of the land.

The Appellant also cited the application of the Law of Limitation, section 5 of the Limitation Act, Cap 290 which provides:

‘’no action shall be brought by any person to recover any land and after expiration of twelve years from the date on which the right of action accrued to some person through whom he or she claims to that person.’’

Appellant concluded by stating she had been in possession of the land for over 50 years.

Respondent’s Submissions

The respondent stated that the land belonged to a deceased person, the father of the respondents and that the Limitation Act did not apply to the cause of action as the trespass had only begun in 2014, one year before filing of the suit. Respondents cited the decision of Odyek Alex and another v Gena Yokanami, Civil Appeal No. 09 of 2017, by learned Justice Mubiru for the proposition that for court to find if a suit is time-barred, it refers to the plaint and its annexures. The respondents also argued that the respondents gave the Appellant’s husband permission to use the land, after distribution of the land, and he assumed the role of licensee only.

LEGAL REPRESENTATION

· Appellant was represented by M/S Bikangiso and Co. Advocates.
· Respondent was represented by M/S Beitwenda and Co. Advocates.

Court’s Findings

Hon. Justice Ssemogerere, Karoli Lwanga posited while reappraising evidence on record that the testimony of Pw1, Pw2, two sisters was to the effect that the suit land was their mother’s share of her late husband’s property distributed prior to his death. The testimony of Pw3, David Kamuhanda was to the effect that the land was distributed to the respondents, and that he was a witness to the same; and also testified that they left the land with his brother. This testimony supports a different conclusion; permissive occupation (licence) negates the animus possidendi essential for adverse possession and a licence by law does not confer title.

Court further found that the suit was not time barred, based on the perusal of the plaint and applying the correct test as in the case of Tibagasa v Rwabuheesi, reported at 2024 UGHC, 1058, where court held,

‘’when assessing whether a suit is time-barred, court must examine the plaint and its attachments to establish when the cause of action arose’’

Court found out that the appellant failed to discharge the burden of proof when her entire evidence was rejected by court; after she asserted it was a marriage gift, rather than property she acquired upon the death of her husband. Court cited sections 101-103 of the Evidence Act Cap 8, which falls on the party that will fail if they fail to prove a relevant fact. This being a claim for land, section 110 of the Evidence Act was quoted by court to assert burden of proof for ownership which provides:

‘’when the question is whether any person is owner of anything of which he or she is shown to be in possession, the burden of proving that he or she is not the owner is on the person who affirms that he or she is not the owner’’

Court further found that the appeal partly succeeded and the matter was remanded to the lower court under section 80 (2) of the Civil Procedure Act, Cap 282 to dispose of the competing claims of the appellant and the respondents as an administration cause to distribute the effects of a deceased person .

Summary of the court’s determinations

1. Doctrine of Adverse possession. The Doctrine of adverse possession does not apply as 12 years had not elapsed from the claim of respondents.

2. Admissibility of distribution agreement. Court rejected admisibility of distribution agreement holding that they didn’t fall in the exception to primary evidence in section 30 (g) of the Evidence act Cap 8 that permits admission of statements made by a dead person when the statement is contained in a deed.

Rule of law or legal principle apllied.

The Succession Act is the law governing the suit land, and any claims of ownership belonging to a deceased person are governed by this specific law.

Key Takeaways

1. Burden of proof for ownership. As per section 110 of the Evidence Act Cap 8, the burden of proving that he or she is not the owner is on that person who affirms that he or she is not the owner.

2. The Succession Act is the law governing the suit land, and any claims of ownership belonging to a deceased person are governed by this specific law.

3. The defence of limitation is a complete defence and limitation is applied strictly against the person who asserts it.

4. When assessing whether a suit is time-barred, court must examine the plaint and its attachments to establish when the cause of action arose.

Prepared By

Ssali Junior John Ndigejjerawa

Son of the Rule of Law

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