Court name
High Court of Uganda
Case number
Civil Appeal 80 of 2018
Judgment date
27 February 2020

Okwonga and Ors v Okello (Civil Appeal 80 of 2018) [2020] UGHC 172 (27 February 2020);

Cite this case
[2020] UGHC 172
Short summary:

Land law— Customary communal ownership of land— In Communal ownership, rights in land are conferred on the basis of accepted group membership, and there is a degree of group control of occupation, use, and allocation or supervision of land — Family communal ownership of land confers on each member of the family a right to use the land or a portion of it, but these rights cannot be bestowed to an outsider — Boundary by acquiescence — Fences are regarded in law as items of defence and guards against intrusion rather than boundary markers — Because boundary by acquiescence requires mutual tacit agreement to recognise the boundary, it seems logical that a fence of convenience can never morph into a boundary if at least one of the parties still considers the fence to be just be a fence of convenience with no further meaning attached.

Coram
Mubiru, J

Reportable

Civil Appeal No. 080 of 2018

 

I

 

 

                          IN THE HIGH COURT OF UGANDA SITTING AT GULU

 

 

 

 

In the matter between

 

 

 

OKWONGA GEORGE

OCAKA JULIUS

 ACAA FILDA

 

and

OKELLO JAMES HARRISON

Heard: 15 October, 2019.

Delivered: 27 February, 2020.

Land law— Customary communal ownership of land— In Communal ownership, rights in land are conferred on the basis of accepted group membership, and there is a degree of group control of occupation, use, and allocation or supervision of land — Family communal ownership of land confers on each member of the family a right to use the land or a portion of it, but these rights cannot be bestowed to an outsider — Boundary by acquiescence — Fences are regarded in law as items of defence and guards against intrusion rather than boundary markers — Because boundary by acquiescence requires mutual tacit agreement to recognise the boundary, it seems logical that a fence of convenience can never morph into a boundary if at least one of the parties still considers the fence to be just be a fence of convenience with no further meaning attached.

JUDGMENT

STEPHEN MUBIRU, J.

Introduction:

  1. The appellants jointly and severally sued the respondent seeking a declaration of ownership of land under customary tenure measuring approximately 1.4 square kilometres situated at Cubu village, Tegwana Parish, Pece Division, Omoro County by then in Gulu District, currently in Omoro District, recovery of that land, general damages for trespass to land, a permanent injunction restraining him from further acts of trespass onto that land, interest and the costs of the suit.
  2. The appellants' case was that their respective fathers Okot Atinga, Abwone Okonga, and Gideon Odwar acquired the southern part of the land in dispute on divers dates between the years 1930 and 1956 from the elders who included a one Latee, father of the respondent. They lived thereon until their respective deaths. They used part of the land, that stretches Eastward to the river, in common as a grazing area. Upon their death, the land was then inherited by their children, the appellants. The children of the late Latee occupied the Northern part of the land in dispute. The railway line, when constructed in 1964, became the common boundary between the two tracts of land. During the year 2013, without any claim of right, the respondent entered onto the part of the land that stretches Eastward to the river that was used in common by the appellants as a grazing area, sub­divided it into plots, and permitted a multiplicity of persons to use it for cultivation, hence the suit.
  3. In his written statement of defence, the respondent denied the appellant's claim. He contended that his father, the late Latee, used to own the entire land in dispute. The late Latee gave specific portions of the land to Okot Atinga, Abwone Okonga, and Gideon Odwar, the fathers of the appellants. In due course the appellants exceeded the boundaries of the land given to their respective fathers and began encroaching on the rest of the late Latee's land sparking off a dispute that was adjudicated by the L.C.II and L.C.III Courts in 2013 and 2014 respectively, from whose decision an appeal is pending before the Chief Magistrate's Court. He prayed that the suit be dismissed.

The appellants’ evidence in the court below;

  1. P.W.1 Julius Abwone Ocaka testified that the land in dispute is to the right of the railway line to Lira and measures approximately 1.4 to 1.5 square kilometres, extending up to Layibi Stream to the South. The respondent is a neighbour to the West of that land. The land has since the year 1934 been owned in common by the families of Okot Atinga, Abwone Okonga, and Gideon Odwar and used as grazing land. It has since 1964 been fenced with barbed wire on Lucoro trees. Each of the three homesteads had a kraal on the land. The home of Latee, father of the respondent lies North of the railway line while the homes of the appellants are South of it. The dispute began around the year 2012 when the respondent crossed the common boundary and began grazing on the appellants' land. He proceeded to enclose parts of it with barbed wire and to destroy the appellants' developments on the land, including the fencing poles that had grown into big trees over the years. He has permitted several other people to establish gardens on the land.
  2. The first appellant, Okwanga George, testified as P.W.2 and stated that the land given to their deceased parents was fenced with barbed wire. The land has been fenced since around 1966 out of fear that the train would knock their cattle dead. Latee did not keep any cattle. P.W.3 Ocen Constantino testified that he has occupied part of the land in dispute since 1944 and was present during its fencing. The land was fenced in 1963 after a train had knocked one of their cows, which belonged to Abwone, dead. P.W.4 Lukwiya Alfonsio testified that the respondent caused a survey of part of the land and placed a mark stone near the well. Latte never kept any cattle in his life time.

The respondent’s evidence in the court below;

  1. In his defence as D.W.1 Okello James Harrison, the respondent testified that all the appellants were born on the land in dispute. The boundaries of the land are marked by Lucoro trees and it is fenced off. The boundary marks were planted by his father, the late Latee. All the appellants' homesteads are within the fenced off area. The land in dispute is across the railway line. He has from time immemorial been cultivating crops within the fenced off area. Gideon Odwar used to keep Lattes cattle but they were stolen during the 1980s. The 1st appellant still rears some cattle on the land in dispute. The appellants are using the land for grazing and cultivation. They have the right to use the land alongside him and he is not bent on evicting any of them.
  2. D.W.2 Cal Marcelino testified that he is one of the sons of the late Latee. The respondent has a garden on the land in dispute. The families of the appellants live within the fenced off are in dispute. He too has a kraal outside the fenced off area where he keeps his cattle but uses the land in dispute for grazing. They had commenced the process of placing mark stoned on parts of the land when the exercise was stopped. The appellants use the land in dispute for grazing only. The well called Wang Jabuloni is on the land in dispute while that called Wang Latee is to the West of the land in dispute. D.W.3 Salim Jerome testified that the land in dispute is fenced and stretches up to Layibi Stream. There is a railway line that separates the respondent from the appellants. Latte used to keep cattle on the land in dispute. The respondents homestead is outside the fenced off area on the other side of the railway line. Gideon Odwar used to keep his father's cattle.

The court’s visit to the locus in quo',

  1. The court then visited the locus in quo on13th July, 2018. It observed that the boundaries of the land in dispute are marked by Lucoro trees. The appellants' homesteads are within the fenced off area. The respondent lives about half a kilometre away and his home is across the railway line. The land in dispute is used for grazing. The respondent and his children have freshly cleared gardens within the grazing area. There is no evidence of long usage by the respondent, of the cleared parts of the land. The 1st appellant has both a new and old kraal on the land in dispute. A sketch map for the land in dispute was prepared.

The Judgment of the court below;

  1. In his judgment delivered on 12th October, 2018, the trial Magistrate found that according to P.W.3, the appellants' fathers Okot Atinga, Abwone Okonga, and Gideon Odwar were left by Jabuloni Ojok as caretakers of his land. Therefore, the appellants could not inherit land that did not belong to their fathers since it belonged to Jabuloni Ojok. The testimony of P.W.3 Ocen Constantino and P.W.4 Lukwiya Alfonsio establishes the fact that the fencing was not fixed as a boundary demarcation but in order to stop cattle from straying onto the railway line. The appellants' homesteads and gardens have clear boundary marks yet the land in dispute is beyond the said boundaries. It is only the 1st appellant who has a kraal adjacent to the grazing land in dispute. None of the appellant proved exclusive rights over the grazing land. There is no evidence to show that Latee gave any of the appellants' deceased parents exclusive rights over the grazing area. The only land where the appellants have exclusive rights is that where they have their homesteads, gardens and the graves of their deceased relatives, which land is separate and distinct from the grazing land.

The grounds of appeal;

  1. The appellants were dissatisfied with the said decision and appealed to this court on the following ground, namely;
  1. The trial Magistrate erred in law and fact when he held that the appellants had failed to adduce evidence to show that the disputed land is part of what they had inherited from their parents.
  2. The trial Magistrate erred in law and fact when he held that the fencing of the suit land was for precautionary reasons and not a demarcation of boundaries.
  3. The trial Magistrate erred in law and fact when he held that the respondent had not trespassed on the suit land as he had a beneficial interest as a son of Latee, the original owner.

The appellants’ submissions:

  1. In their submissions, counsel for the appellants argued that the appellants’ evidence showed that although the land was occupied by their predecessors from around 1943, the railway line became the common boundary between the appellants and the family of the late Latee in 1964. The family of the late Latee from that year henceforth never crossed the railway line, leaving the land South of the railway line, to the exclusive possession of the appellants. The appellants thereafter used a common ground on that side of the land for grazing, exclusive to the three families they represent. The dispute began when the respondent, a member of the family of the late Letee crossed the common boundary and begin grazing on that land. When the court visited the locus in quo, it saw that the homesteads of the three families were surrounded by a Lucoro tree fence. Each homestead had a kraal. They have used the land exclusively for a long time. The respondent lived across the railway line until the year 2012-2013 when he unlawfully crossed over onto the appellant’s land. In his defence, the respondent admitted using the land in dispute for grazing yet his kraal lay outside the land in dispute. It could not have been communal family grazing land. The intention of planting the Lucoro tress was not only for prevention of their cattle being knocked by the train but also to serve as a boundary marker. The trial court therefore came to the wrong decision.

The respondent’s submissions;

  1. In response, counsel for the respondent submitted that it was common ground that the land in dispute was formerly used for grazing. The appellants did not adduce any evidence to show that they acquired it customarily. At the locus in quo, the court found that the land lay outside the area fenced off as homesteads occupied by the appellants. It was the testimony of P.W.3 Ocen Constantino that the land was fenced in 1963 after a train had knocked one of their cows dead. The intention was to avert similar occurrence in the future, not to mark a boundary. The respondent adduced evidence to show that from time immemorial his predecessors in title had been using that land for cultivation and grazing. Both parties traced their rights to the land to the late Latee. This was communal grazing land outside that which he gave to the appellants’ forefathers. They prayed that the appeal be dismissed.

Duties of the first appellate court;

  1. It is the duty of this court as a first appellate court to re-hear the case by subjecting the evidence presented to the trial court to a fresh and exhaustive scrutiny and re­appraisal before coming to its own conclusion (see Father Nanensio Begumisa and three others v. Eric Tiberaga, S.C. C A No. 17 of 2000, [2004] KALR 236). In a case of conflicting evidence, the appeal court has to make due allowance for the fact that it has neither seen nor heard the witnesses, it must weigh the conflicting evidence and draw its own inference and conclusions (see Lovinsa Nankya v. Nsibambi [1980] HCB 81).
  2. In exercise of its appellate jurisdiction, this court may interfere with a finding of fact if the trial court is shown to have overlooked any material feature in the evidence of a witness or if the balance of probabilities as to the credibility of the witness is inclined against the opinion of the trial court. In particular this court is not bound necessarily to follow the trial magistrate’s findings of fact if it appears either that he or she has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on demeanour of a witness is inconsistent with the evidence in the case generally.

Grounds one and two; communal ownership and the common boundary;

  1. In grounds one and two of the appeal, the issue is whether the land in dispute forms part of the appellants' inheritance and the Lucoro tree fencing was planted as a boundary marker. In the first place, the land is claimed as communal grazing land exclusive to the three families represented by the appellants, and the respondent as an intruder thereon.
  2. Section 3 of The Land Act recognises that customary land may be recognised as belonging to a person, a family, or a traditional institution. Communal and private ownership are both forms of holding exclusive rights to land under customary tenure. In Communal ownership, rights in land are conferred on the basis of accepted group membership, and there is a degree of group control of occupation, use, and allocation or supervision of land. There is equal legal and equitable protection for communal and private ownership property interests and rights. Communally owned land includes parcels set aside for the exclusive use of a family, individual or sub-community group or other relevant social identities, under usufruct rights.
  3. Family communal ownership arises in situations where descendants of a common ancestor, usually in an extended family setup, have well defined, exclusive rights to jointly own and/or manage a particular parcel of land. Family communal ownership of land confers on each member of the family a right to use the land or a portion of it, but these rights cannot be bestowed to an outsider.
  4. These rights can be placed in three broad categories; - (i) user rights; such as the right to access the land, draw benefits from the land or exploit it for economic benefit; (iii) control or decision-making rights, such as the rights to manage the land (plant a crop, decide what tree to cut, where to graze) or exclude (prevent others from accessing the land); and (iii) powers of alienation, such as the right to rent out, sell, or transfer the rights to others. Communal management involves collective monitoring of the land for exclusion of outsiders. Access to the land, withdrawal of benefits from the land, management of the land, exclusion by way of determining who has access and withdrawal rights, and alienation of the land is done collectively in accordance with informal customary norms or customary law.
  5. Evidence of family communal ownership of land is to be found in; (i) a system of governance that enforces exclusive use and occupation by the family, the exclusivity being related to the rights exercised by the family and not to individualised rights. The family must have had exclusive occupation of the land from time immemorial; (ii) an established uniform system or set of customary norms that regulate possession and use of the land which, although they may be highly flexible, are certain, considered as binding and are frequently followed by members of the family. All major decisions pertaining to the land must be made by the family; (iii) beneficial occupation and use of the subject land i.e. personal and usufructuary rights (inclusivity), forming part of their inclusive communal activities; (iv) and the usufructuary rights in issue are not irreconcilable with the nature of the family’s attachment to the land. It is for the latter reason that land held as family communal customary land may not be alienated without the consent of the specific family.
  6. "Common property" gives rise to usufructuary rights only and a legal right to manage but not own or possess, in which case the litigant sues as a steward in protection of group interests, while "collective property" gives rise to rights to private use subject to community interests, of land allocated by the community. The definition of private rights in family communal land is subject to family decision­making using informal customary norms or customary law specific to the wider community to which the family belongs. Subject to and in accordance with those norms, there may be allocation of part of the family communal land to a member of the family for their exclusive use and occupation for such period as the family may determine. Such allocation cannot be superior to the family collective title in any way, since family oversight aims at keeping the land within the family.

 

  1. It was the evidence of P.W.1 Julius Abwone Ocaka that the land in dispute measures approximately 1.4 to 1.5 square kilometres, and that it has since the year 1934 been owned in common by the families of Okot Atinga, Abwone Okonga, and Gideon Odwar who use it as grazing land. His father was a nephew to the respondent’s late father, Latee who lived about two kilometres away. His father came to the land though a brother of the late Latee, a one Jabuloni Ojok. On his part, P.W.2 Okwanga George testified that he is related to the respondent. It is Jabuloni Ojok who gave his father Abwone Okwanga the land that this appellant now occupies. The late Latee was one of the elders who gave his father land, and it is all one block. P.W.3 Ocen Constantino testified too testified that it is Jabuloni Ojok who during the year 1944 gave them the land that they currently occupy.
  2. It is clear from the testimony of the three witnesses that all parties belong to the same extended family and trace their occupancy to two brothers, Jabuloni Ojok and Latee. Save for the area occupied by their homesteads and enclosed by Lucoro trees which was thus in the exclusive possession of each of the respective nuclear family, there was nothing sub-diving the land until the construction of the railway line around 1963. The land was therefore utilised communally as one block by members of this extended family, which includes the respondent.
  3. When land is owned communally by a family, in order for exclusive possession to confer or constitute proof of ownership of a parcel, there ought to be evidence of enjoyment by the individual member of the family, of three principal rights: usus, the right to utilise the land for one's own purposes; fructus, the right to gather and use the fruits of the land; and abusus, the right to alienate, i.e. to sell, lease, grant as a gift, or mortgage. In contrast, individual members or smaller units of the community enjoy only the first two of these rights since theirs are usufructuary rights. Ownership is incomplete without having a right to alienate the property in issue. Since there was no exclusivity of use and power of alienation vested in any member of this extended family, for all intents and purposes, the grazing area that lies outside the appellants’ homesteads fenced by Lucoro trees remains communal family property.
  4. Management is the right to regulate internal use patterns and transform the resource by making improvements. Exclusion refers to the right to determine who has access and withdrawal rights, and how those rights may be transferred. Finally, alienation concerns the right to sell or lease management and exclusion rights. Grazing land may accordingly have primary users from the immediate family; secondary transhumance users in certain seasons and tertiary season users defined by kinship or mutual reciprocity (see Robert Wade, Village Republics. Economic Conditions for Collective Action in South India, Orient Longman Ltd. (1989); and Schlager, E and E. Ostrom, (1992) Property-rights regimes and natural resources: A conceptual analysis, Land Economy 68 (3) p.249-262). The tenure is more or less a system of complementary interests held simultaneously. Communal land is characterised by common exploitation and management. It is therefore possible for two or more interest holders to simultaneously exercise rights and powers on the same piece of land.
  5. With land owned communally, groups of people, who are closely bound together by historical ties with one another, common interests and values, share the land mainly for purposes of subsistence. Members may graze their livestock on the commonage. As far as the commonage is concerned, no individual may claim exclusive use of the land (see T. W. Bennett, Customary Law in South Africa, Juta (2004) at p 398. Access to the commonage is based on socially-defined membership that is reinforced and managed within the group, based on the reciprocal obligations of the members in the social hierarchy. Membership of the community is the basis of an individual's entitlement to use of the land. For that reason, the fact that the appellants enjoyed usufructuary interests in the land in dispute does not of itself form the basis of excluding the respondent’s use.
  6. It was argued by counsel for the appellants that the appellants have had exclusive use of the land since 1964 and thus they have a right to exclude the respondent. Whereas at common law adverse possession beyond a specified length of time would confer property rights by prescription, actual occupation under communal ownership does amount to adverse possession, even if it is over and beyond the statutory period of limitation. The separation of the enjoyment of property rights in land and its administration, implies that there may exist, side by side, all of these types of proprietary interests. Sometimes they will co-exist peacefully, sometimes they will come into conflict, importing the common law notion of plurality of owners on one parcel of land. Exploitation of unequal power relationships within communities, for example, may result in some members fencing off portions of communal lands for their own exclusive use, thereby denying access by other members of the community to shared grazing lands. A public-spirited individual within the community who intends to enforce community rights in collective or common property may then be faced with issues of locus standi to sue for the restoration of those rights. The appellants opted instead erroneously to sue for enforcement of exclusivity.
  7. It was argued further by counsel for the appellants that when the railway line was constructed and subsequently Lucoro fencing trees planted, the purpose was not only to prevent the appellants’ cattle from being knocked by trains but also to demarcate the boundary between their land and the respondent’s land. In the first place, this contradicts the evidence on record. It was the evidence of P.W.2 Okwanga George that “the reason for fencing was because of fear [of] the train knocking cattle” (sic). P.W.3 Ocen Constantino testified too that “it is after the train knocked cattle that the fencing was done.”
  8. Fences serve many functions; they can be constructed for security reasons. Fences are regarded in law as items of defence and guards against intrusion rather than boundary markers. Fencing or other enclosure that is obviously designed to create a more private area, or to exclude intruders, or to contain livestock will not necessarily constitute a boundary marker with adjoining land. Common sense will often dictate that a restraining structure should be erected where a person has livestock or domestic pets which need to be contained within the property as may be considered necessary for the purpose of maintaining their safety. Such a fence may not necessarily be located on or close to the boundary of the land.
  9. In the instant case, it was the appellants’ evidence that the fencing done along the railway line was for containing their livestock and preventing the livestock from straying onto the railway line, rather than as a boundary marker indicating the land South of it to be the exclusive property of the appellants. Since it was never intended to be a boundary marker, the question of acquiescence does not arise. There is no evidence of conduct by the parties to show that it was ever recognised as a boundary line. That the respondent had not since 1964 undertaken any activity beyond that line cannot of itself form the basis of an inference of acquiescence.
  10. A boundary by acquiescence recognises the fact that the non-claimant should have objected but did not, in effect consenting by silence. It presupposes the fact that the non-claimant had notice of the fact that the object sought to be deemed a boundary marker, was in fact installed for that purpose. Because boundary by acquiescence requires mutual tacit agreement to recognise the boundary, it seems logical that a fence of convenience can never morph into a boundary if at least one of the parties still considers the fence to be just be a fence of convenience with no further meaning attached. There ought to be some overt act by both parties to establish acquiescence, or some notorious act by the adverse party that would put a reasonable person on notice that the other side may consider the boundary more than "just a fence."
  11. Although a fence that was originally installed for a purpose other than marking a boundary may evolve into a boundary marker through the conduct of the parties over many years, in the instant case there was nothing that could have put the respondent on notice of the fact that the fencing was done as a boundary marker since it was evident at all time that the intention was to protect the appellants’ livestock from the train. The manner of the appellants’ occupation did not provide notice of an assertion of exclusivity. There is nothing either in the behaviour of the respondent that shows recognition of the land South of the railway line to be the exclusive property of the appellants. In the same vein, there was nothing in the appellants’ behaviour that gave the respondent reasonable notice that they were treating this line as a boundary rather than as a protective fence. The trial court therefore came to the correct conclusion and accordingly the two grounds of appeal fail.

The third ground of appeal:                proof of trespass to land.

  1. In the last ground, which is the third ground of appeal, it is contended that the trial Magistrate erred in law and fact when he held that the respondent had not trespassed on the suit land. A suit for trespass to land is an assertion of possessory rights. One must be in actual or constructive possession to maintain such a suit. Constructive possession arises in several contexts.
  2. First, if a claimant has colour of title to a larger tract of land, but only actually possesses a smaller portion of the tract, the claimant will be deemed to be in possession the whole tract. Similarly, if a claimant actually possesses only part of a larger enclosed tract of land, his or her constructive possession of the whole enclosed tract of land qualifies for adverse possession as well. However, if the claimant has neither colour of title nor an enclosure, he or she is limited to the area over which he or she has exercised actual possession.
  3. In resolving the first two grounds of appeal, it has been found that the land in dispute is owned communally by the extended family to which both the appellants and the respondent belong. The appellants therefore have no private rights in it save as members of the extended family. Their rights are only of a usufruactuary nature and their suit is limited to enforcement of those limited rights. The land in dispute is estimated to be between 1.4 to 1.5 square kilometres and unenclosed. This is relatively vast land fitting the description of wild, unimproved, and unenclosed land used as communal grazing land. Indeed, according to P.W1 Abwone Ocaka, the respondent’s activities on the land went unnoticed by the appellants for some time until much later. Where land is wild and unimproved, there may be little or no evidence of possession, and indeed in this case the appellants did not offer any, outside the area of their homesteads enclosed by Lucoro trees. The court was unable to see signs of such when it visited the locus in quo.
  4. Being a member of the extended family which owns the land communally; the respondent could not be described as a trespasser thereon when he engaged in the activities complained of, limited to the unoccupied part of the land. It was not proved that his activities interfered with any of the appellants’ usufructuary rights. The trial court thus rightly found that the appellants had failed to prove that the respondent had committed acts of trespass to land. For all intents and purposes, this is family communal grazing land.

Order:

  1. In the final result, there is no merit in the appeal. It is accordingly dismissed. The costs of the suit and of the appeal are awarded to the respondent.

Stephen Mubiru

Resident Judge, Gulu Appearances

For the appellants : M/s Kunihiira and Co. Advocates

For the respondent : M/s Odongo and Co. Advocates