Uganda High Court Upholds Oral Customary Land Gifts: No Deed Needed if Intent, Delivery, and Lifetime Possession Proven; Challenges Must Occur During Donor's Lifetime
- Waboga David
- Aug 24
- 6 min read
Introduction
Article 237(3)(a) of the Constitution of the Republic of Uganda, 1995, together with Section 2 of the Land Act, Cap 236, expressly recognize customary tenure as one of the lawful systems of landholding in Uganda.
Under this tenure system, rights in land are derived from and regulated by community norms, traditions, and practices, rather than formal registration. It therefore provides a legally valid framework for ownership, transfer, and inheritance of land, particularly in rural areas where customary tenure remains the dominant system.
Customary land rights play a central role in determining ownership, transfer, and use of land within many Ugandan communities. Unlike registered land, customary land transactions are often oral in nature, relying on community recognition, possession, and use as the basis of ownership. These norms are especially significant within family and clan structures, where they define entitlements and resolve disputes.
Within this framework, gifts inter vivos—gifts made by a living person to another during their lifetime—are a common mode of land transfer. For such a gift to be valid under customary law, three elements must be present: the donor’s intention to make the gift, delivery of the property, and acceptance by the donee. Once these elements are satisfied, possession and use by the donee during the donor’s lifetime is sufficient proof of ownership, even in the absence of a written deed or formal documentation.
The High Court of Uganda recently affirmed this principle in Ereu Vincent & Others v Adebo Regina, Civil Appeal No. 076 of 2023 (Soroti), where it upheld the validity of an oral gift inter vivos of land. The Court emphasised that customary law does not require written instruments for the transfer of land and that oral transfers, when coupled with delivery and exclusive possession, are enforceable.
Background of the Case
The dispute originated from a civil suit filed by the respondent, Adebo Regina, against her husband (the 3rd appellant, Emwodu Augustine) and their two sons (the 1st and 2nd appellants, Ereu Vincent and Emwodu Stephen).
The respondent sought declarations of trespass, orders for vacant possession, a permanent injunction, general damages, and costs related to two gardens of land she claimed were gifted to her.
In 1966, the 3rd appellant married a second wife, Arienyo Margaret, with whom he had 6 children.
The respondent alleged that the 3rd appellant had no inherited land from his father (the late Opinya) and was initially staying with his uncle, Yokoyasi Egwanyu.
Shortly after marriage, Echobu Zedekiya (the 3rd appellant's elder brother) orally gifted the respondent two gardens of land, which she cultivated during Echobu's lifetime.
Later, around 1970, Yokoyasi Egwanyu gifted the respondent an additional six gardens, but only the initial two gardens were in dispute.
The appellants allegedly encroached on these two gardens under the 3rd appellant's authority, prompting the suit.
The appellants denied the claims, asserting that the 3rd appellant inherited the land from his uncles (Edoku Edward and Yokoyasi Egwanyu) and distributed it among his wives and children.
They argued the land formed part of the family estate and denied any trespass.At trial before Magistrate Grade One Okiror Edmond Okwii at Soroti Chief Magistrates Court (judgment delivered August 16, 2023), the court found in favor of the respondent, declaring her the rightful owner, ordering vacant possession, issuing a permanent injunction, and awarding costs.
The appellants appealed to the High Court on three grounds, primarily contesting the validity of the gift and the trial court's evaluation of evidence.
Issues on Appeal
The appeal centered on three grounds:
Whether the trial magistrate erred in holding that the land was validly gifted to the respondent, given the absence of a written deed and claims of inheritance rights.
Whether the trial magistrate failed to properly evaluate the evidence, leading to a wrong decision.
Miscarriage of Justice: Whether the decision occasioned a miscarriage of justice to the appellants.
The High Court, as the first appellate court, re-evaluated the evidence under Section 80 of the Civil Procedure Act (Cap 282), emphasizing a holistic review while accounting for not having seen the witnesses (citing precedents like Kifamunte Henry v Uganda [1998] UGSC 20 and Fredrick Zabwe v Orient Bank Ltd SCCA No. 4 of 2006).
Court's Reasoning and Analysis
Ground 1: Validity of the Gift
Appellants' Arguments
Relied on Nassozi & Anor v Kalule [2014] UGHCFD 13, arguing that verbal gifts of land are unrecognized under law, requiring a deed (citing Mellows on the Law of Succession, 5th Ed.).
They contended Echobu had no right to gift land that was part of their father's estate, and cited inconsistencies in the respondent's evidence.
A key witness (Akejo Marasalina, Echobu's widow) denied the gift.
Respondent's Arguments
Cited Wayiatilio & Anor v Elvira Ojali (Civil Appeal No. 23 of 2009) and Olweny Alfred v Otema (Civil Appeal No. 42 of 2019), asserting that oral gifts under customary law are valid if accompanied by delivery, possession, and use during the donor's lifetime. The land was Echobu's personal estate, not inherited from their father.
Court's Determination
The court distinguished the disputed two gardens from other family lands. No evidence linked them to the 3rd appellant's claimed inheritances from Edoku or Yokoyasi.
The respondent's cultivation during Echobu's lifetime shifted the evidential burden under Sections 101 and 103 of the Evidence Act Cap 8 to the appellants, who failed to prove inheritance rights.
The court rejected the appellants' reliance on English law principles, holding that customary land transfers require no writing (Oyet Bosco & Anor v Abwola Vincent [2018] UGHCCD 65).
Elements of a valid gift inter vivos—intent, delivery, and acceptance—were satisfied. Challenges to gifts must occur during the donor's lifetime (Paul Kathuni Gichunge v Polycarp Ntwiga & 2 Others [2016] eKLR).
Inconsistencies in Akejo Marasalina's testimony (claiming multiple sources for the land) undermined her credibility (Bahema Patrick & Anor v Uganda SCCA No. 1 of 1999).Outcome: Ground 1 failed; the gift was upheld as valid under customary law.
Ground 2: Evaluation of Evidence
The court struck out this ground as overly general and non-compliant with Order 43 Rule 1(2) of the Civil Procedure Rules (CPR), which requires concise, distinct heads without narrative (Ronchobhai Shivabhai Patel Ltd v Henry Wambuga & Anor SCCA No. 06 of 2017; Attorney General v Florence Baliraine [2013] UGCA 9).
It did not specify failures in evaluation. Nonetheless, the court independently found the trial magistrate's evaluation sound.
Ground 3: Miscarriage of Justice
Similarly struck out as vague and non-specific. With no errors identified, no miscarriage was occasioned.
Final Orders
Appeal dismissed in its entirety.
Lower court's judgment, decree, and orders upheld (including vacant possession, permanent injunction, and costs).
Appellants to bear the costs of the appeal and lower court proceedings.
Key Takeaways
Oral transfers of customary land are enforceable without a written deed, as long as the gift is perfected by the donor's intent, delivery of the property, acceptance by the donee, and exclusive possession/use during the donor's lifetime.
This distinguishes customary land from registered land, where formalities like deeds may apply citing precedents like Oyet Bosco & Anor v Abwola Vincent [2018] UGHCCD 65
The legal burden starts with the claimant (e.g., proving a gift), but once established on a balance of probabilities, the evidential burden shifts to the defendant to rebut it (per Sections 101 and 103 of the Evidence Act Cap 8).
Unproven inheritance claims or inconsistent witness testimony (e.g., conflicting sources of land acquisition) can undermine defenses.
Any disputes over the fairness or validity of a gift inter vivos should be raised during the donor's lifetime. Posthumous challenges are less likely to succeed if the donee has long-term possession (aligned with Kenyan precedent Paul Kathuni Gichunge v Polycarp Ntwiga & 2 Others [2016] eKLR).
Grounds of appeal must be concise, specific, and under distinct heads (per Order 43 Rule 1(2) of the Civil Procedure Rules). Vague grounds, such as general claims of "failure to evaluate evidence" or "miscarriage of justice," risk dismissal as they violate procedural rules and enable "fishing expeditions" (citing Attorney General v Florence Baliraine [2013] UGCA 9).
In Uganda's predominantly customary tenure system, families should document gifts and land allocations to prevent disputes.
The decision may encourage formal registration (e.g., via Certificates of Customary Ownership under the Land Act Cap 227) and promote mediation for intra-family conflicts. Legal practitioners should emphasize gathering historical evidence like witness statements or local council records.
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