St. Mark Educational Centre Ltd vs Makerere University (Civil Appeal No 40 of 1997)

Court of Appeal · [1998] UGCA 20 · 1998 Appeal Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Civil appeal from a High Court judgment ordering eviction, cancellation of land titles and damages for trespass

Decision

Appeal dismissed; High Court judgment ordering eviction, cancellation of titles and damages upheld

The full judgment

Read the complete, verbatim text of this judgment.

Cited — treatment unverified cited in 3 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions — always read the source judgment before relying on it.

Holding

The Court of Appeal dismissed the appeal. It held that the mailo plots purportedly sold to the appellant were fraudulently created by superimposing mailo land on the respondent's freehold land, since no new mailo could be created in 1990. Although the appellant did not itself commit fraud, it was not a bona fide purchaser for value because the plots fell outside Kibuga Block 38 and were carved from the respondent's freehold; the appellant dealt with a person not on the register and bought nothing. Cancellation of the bogus titles under sections 145 and 189 RTA was justified. The award of nominal damages for infringement of a legal right, and the order for costs against the unsuccessful appellant, were upheld.

Facts

In 1943 the respondent was granted title to land under Freehold Volume 59 Folio 21 covering Makerere University campus, Mulago and Katanga Valley at Wandegeya. In 1990 George Kalimu acquired a title under Kibuga Block 38, Plot 386, and subdivided it into Plots 387, 397 and 402, comprising 5 acres carved from the respondent's freehold. Seeking land for educational expansion, the appellant inquired of the respondent about Plot 386; the respondent replied it had no objection and that the plot was not zoned for its development, advising the appellant to consult the Chief Town Planner. The appellant was registered as proprietor of plots in 1991 and spent about Shs. 300 million developing the land. In 1993 the respondent sued, alleging the land was illegally acquired through fraud committed outside the register. The trial Judge found the plots were bogus mailo superimposed on the respondent's freehold, that the original owners (not the appellant) were responsible for the fraud, and ordered eviction, cancellation of titles, nominal damages and costs.

Issues

Whether there was fraud in the creation of the mailo plots that were the subject of the suit.
Whether the appellant was a bona fide purchaser for value whose title could not be impeached under the Registration of Titles Act.
Whether the appellant bore the burden of proving it dealt with a registered proprietor.
Whether the trial Judge properly awarded the respondent Shs. 50,000 in damages despite finding no loss was suffered.
Whether the appellant was properly condemned to costs despite being found not guilty of fraud.

Orders

Appeal dismissed.
Costs of the appeal and in the court below awarded to the respondent.

Key headnotes

Land & Property — Mailo and Freehold Tenure — Impossibility of Creating Mailo on Freehold Land

Mailo land cannot lawfully be created in modern times or superimposed on existing freehold land; where two titles exist over the same piece of land the earlier title prevails.

Land & Property — Bona Fide Purchaser for Value — Dealing with Person Not on the Register

A purchaser who deals with a person who is not on the register bears the burden of proving that the person was a registered proprietor; failing this, the purchaser is not a bona fide purchaser for value and acquires nothing, even where the purchaser is itself innocent of fraud.

Land & Property — Cancellation of Title — Fraudulent Titles under Sections 145 and 189 RTA

Sections 145 and 189 of the Registration of Titles Act permit cancellation of titles that were fraudulently created, and such titles cannot be invoked to protect an interest that does not exist.

Damages & Quantum — Nominal Damages — Trespass and Infringement of Legal Right

Nominal damages may be awarded for trespass that infringes a legal right even where no actual loss is proved, as the award vindicates the infringed right rather than compensating loss.

Civil Procedure — Costs — Costs Follow the Event

Under section 27 of the Civil Procedure Act costs follow the event and a successful party is entitled to costs; the question of whether the unsuccessful party was guilty of fraud is irrelevant to the award of costs.

Legislation cited (5)

Registration of Titles Act s.145
Registration of Titles Act s.189
Registration of Titles Act s.186
Evidence Act s.113
Civil Procedure Act s.27

Cases cited (5)

Andrea Lwanga vs. Registrar of Titles [1980] HCB 24
David Sejaaka v Rebecca Musoke (Civil Appeal No. 12 of 1985)
Associated Architects v Christine Nazziwa (Civil Appeal No. 1 of 1981)
The Mediana [1900] AC 113
Uganda Transport Company Limited v Outa (Civil Appeal No. 11 of 1981)

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.