Lubowa v Kitara Enterprises Limited (Civil Appeal 4 of 1987)

Court of Appeal · [1987] UGCA 2 · 1987 Appeal Allowed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Civil appeal from High Court judgment dismissing the appellant's counterclaim for trespass

Decision

Appeal allowed; finding of trespass substituted and matter remitted to the High Court for assessment of general damages

The full judgment

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Holding

The Court of Appeal held that the appellant, as registered proprietor, had proved unlawful entry by the respondent, establishing trespass. Since the respondent entered the land without consent and before any negotiations, and the purported sale agreement failed for want of consideration, there was no valid contract of sale to validate the occupation. The trial judge misdirected himself in finding the respondent was not a trespasser. The appeal was allowed, the High Court judgment set aside, a finding of trespass substituted, and the case remitted to the trial judge for assessment of general damages.

Facts

The respondent company filed suit in the High Court seeking an injunction restraining the appellant and one Nakibule from evicting it from land comprised in Block 245 Plot 212 at Kisugu, Kampala. The respondent claimed it had purchased the land from Nakibule. The appellant, the registered proprietor under a certificate of title, contended the respondent was a trespasser building houses without his consent, and counterclaimed eviction and general damages. The respondent entered the land, fenced it and constructed two houses. After litigation commenced, the respondent negotiated to purchase the land from the appellant but failed to pay the agreed price. The respondent withdrew its claim against Nakibule and did not call him as a witness. The respondent failed to appear at trial before Kato J., whose suit was dismissed for non-prosecution. The trial proceeded on the counterclaim, and Kato J. held there was a valid agreement to sell, so the respondent was not a trespasser, dismissing the counterclaim.

Issues

Whether the respondent was a trespasser on the disputed land.
Whether the respondent occupied the land with the consent of the appellant.
Whether there was a valid and executed agreement for the sale of the disputed land to the respondent.
Whether an agreement of sale could validate an entry onto land that was originally unlawful.

Orders

Appeal allowed.
Judgment of Kato J. set aside.
A finding that the respondent was guilty of trespass substituted.
Case remitted to the trial judge to assess general damages.
Appellant awarded costs of the appeal and costs incurred in the lower court.

Key headnotes

Registration of Titles — Certificate of Title — Conclusive Evidence of Ownership

Under section 56 of the Registration of Titles Act, a certificate of registration is conclusive evidence of title to land.

Trespass to Land — Elements — Proof of Title, Entry and Lack of Consent

To prove trespass to land, a claimant must establish that the land belonged to him, that the defendant entered upon it, and that the entry was unlawful in that it was made without permission or claim of right or interest.

Trespass to Land — Continuing Trespass — Subsequent Agreement

Where an original entry onto land is unlawful, trespass is complete and continues until the trespasser acquires a valid interest entitling him to occupation; a subsequent agreement could at most end the trespass from the date of its signing and cannot retrospectively validate the unlawful entry.

Contract of Sale of Land — Want of Consideration — Validity

A purported agreement for sale of land under which the purchaser fails to pay the agreed consideration is not a valid contract of sale and cannot confer on the occupier any interest legitimising occupation.

Legislation cited (2)

Registration of Titles Act (Cap 205) s.56
Civil Procedure Rules Order 9 rule 19

Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.