High Court of Uganda Confirms Validity of Unwritten Customary Land Gifts Based on Intention, Acceptance, and Longstanding Occupation

Waboga David
Jul 4
3 min read

Introduction

In a rare but significant win for Uganda’s customary land tenure system, the High Court has broken with the traditional judicial reluctance to uphold unwritten customary land claims.

Courts in Uganda have often hesitated to enforce rights under customary tenure due to the informal nature and perceived ambiguities surrounding unwritten customs.

However, in the recent decision of Mafabi Tom v Moses Musambwa, the High Court of Uganda, sitting in Mbale affirmed that a gift inter vivos of customary land, though unwritten, can be legally valid if backed by clear evidence of the donor’s intention, the donee’s acceptance, and long-term, uninterrupted occupation.

The Court emphasized that formal documentation is not the sole avenue for proving land ownership under customary tenure, especially in familial contexts where possession and development over time speak volumes.

This judgment reinforces the legal standing of customary land transfers and clarifies that where intention, delivery, and acceptance are proven, equity will protect unwritten gifts against later claims, even absent a formal deed.

🔍 Background

In this appeal, Mafabi Tom (Appellant) challenged the trial court’s decision which declared his biological son, Moses Musambwa (Respondent), the rightful owner of disputed land measuring approximately ¼ acre in Mangho Upper, Busamaga, Mbale City. The land in dispute is occupied by the Respondent, who built residential structures on it.

The Appellant had sued in the lower court seeking declarations of ownership, trespass, eviction, general damages, and costs. He claimed to have purchased the land between 2000 and 2011 and alleged that the Respondent entered and developed it without his consent.

⚖️ Trial Court’s Decision

The trial magistrate dismissed the claim and found that:

The Respondent was not a trespasser.
The land had been gifted to the Respondent by the Appellant as a gift inter vivos.

Dissatisfied, the Appellant appealed, raising three grounds largely contesting the trial court’s evaluation of evidence and alleging misdirection in law and fact.

📚 Issues on Appeal

Whether the trial magistrate erred in holding that the suit land belonged to the Respondent.
Whether the magistrate ignored relevant evidence, thereby reaching a wrong decision.
Whether the trial court's decision was tainted with misdirection or non-direction in law or fact.

🧾 High Court Findings

The High Court reaffirmed its duty as a first appellate court to re-evaluate all evidence afresh.

✅ On Gift Inter Vivos

Justice Lubega clarified the legal requirements of a valid gift inter vivos based on Onyuta Willy v Akena Lot Lamex, including:

Donor’s clear intention to make a gift;
Acceptance by the donee; and
Delivery of the subject matter.

Although the Appellant denied gifting the land, the Court found the Respondent had:

Taken possession in 2010;
Constructed a house by 2015 without objection; and
Occupied the land openly and continuously.

The Court held that the conduct of the Appellant and surrounding evidence, including lack of objection over several years and presence of permanent structures, was consistent with the existence of a gift inter vivos.

Notably, the Court emphasized that “equity will not perfect an imperfect gift,” but in this case, possession and development by the Respondent amounted to effective delivery and acceptance.

⚖️ Court's Observations

The claim that the land was family property or was not validly transferred lacked evidentiary support.
The Appellant’s allegations were not corroborated by independent witnesses.
The Respondent had taken possession openly and uninterruptedly for years.

🧾 Disposition

All grounds of appeal dismissed.
Trial court’s decision upheld.
No order as to costs—due to the familial relationship between the parties.

🔍 Key Takeaways

A gift inter vivos of customary land, though unwritten, can be valid if supported by clear evidence of intention, acceptance, and delivery.
Continuous and undisputed occupation over time may imply valid transfer.
Customary practices like involving clan elders or LC1 authorities are advisable to avoid future disputes.
Courts will be reluctant to displace longstanding occupation unless strong contrary evidence is presented.

Read the full case below