Wakilii

Kaberuka & Anor V N.K Investments Ltd & Anor (Civil Appeal No. 0080 of 2008)

Court of Appeal · [2015] UGCA 95 · 2015 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Civil appeal from High Court dismissal of a suit claiming land ownership through bona fide occupancy, customary tenancy and adverse possession
Decision
Appeal dismissed; the High Court judgment dismissing the suit upheld

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Holding

The Court of Appeal dismissed the appeal, holding that the appellants were neither bona fide occupants, customary tenants, nor adverse possessors of the suit land. Bona fide occupancy under section 29 of the Land Act applies only to land registered under the Registration of Titles Act and requires proof of both occupation and utilisation for twelve years before the 1995 Constitution; this was not established. Customary tenancy was abolished in urban areas by the Public Lands Act 1969 and was unproven. As a gazetted road reserve, the land was not available for occupation, so no adverse possession could accrue, since a person cannot acquire title through unlawful occupation in breach of statute. No fraud in the lease grant was proved.

Facts

On 15 March 1996 the first appellant bought part of the suit land at Plot 2-6 Walusimbi Close, Nakawa, Kampala, from the second appellant for UGX 2,000,000, relying on a 1992 sale agreement of a kibanja (without title). The first appellant fenced the land, deposited building materials, and compensated persons cultivating crops there. The land was, prior to 2000, a gazetted road reserve. In 2000 it was degazetted, its use changed to commercial, Plot 2-6 Walusimbi Close was created, and a lease was issued to the first respondent by the second respondent, the Kampala District Land Board. The first respondent's lease application, dated 31 May 2000, was received on 16 October 2000 and granted on 31 October 2000; the company was incorporated on 2 August 2000. The appellants sued, claiming bona fide occupancy, customary tenancy and adverse possession, and alleging the lease was obtained illegally and fraudulently. The High Court dismissed the suit, finding the appellants failed to prove any allegation, including fraud.

Issues

  1. Whether the appellants or their predecessors in title were bona fide occupants of the suit land under section 29 of the Land Act.
  2. Whether the appellants were customary tenants of the suit land.
  3. Whether the appellants were in adverse possession of the suit land at the time it was leased to the first respondent.
  4. Whether the suit land was available for leasing to the first respondent.
  5. Whether the grant of the lease to the first respondent was lawful or was obtained through fraud.

Orders

  • Appeal dismissed.
  • Costs awarded to the respondents in the Court of Appeal and in the court below.

Key headnotes

Land Law — Bona Fide Occupancy — Registered Land Requirement and Proof
Bona fide occupancy under section 29(2)(a) of the Land Act applies only to land registered under the Registration of Titles Act, and requires proof of both occupation and utilisation or development of the land, unchallenged by the registered owner, for twelve years or more before the coming into force of the 1995 Constitution; mere cultivation of seasonal crops is insufficient.
Land Law — Customary Tenancy — Abolition in Urban Areas and Burden of Proof
Customary tenancy was abolished in gazetted urban areas by section 24(1)(a) of the Public Lands Act 1969, and a party asserting customary tenure must prove the particular custom or practice under which the land was occupied and that the custom is recognised by a class of persons in the area.
Land Law — Adverse Possession — Occupation in Breach of Statute
A person who occupies land in contravention of express statutory provisions, such as a gazetted road reserve under the Roads Act, cannot acquire title to that land by adverse possession, since the law will not permit a person to benefit from his own unlawful or criminal acts.
Land Law — Distinct Tenures — Bona Fide Occupancy and Customary Tenancy Distinguished
Customary tenancy, lawful occupancy and bona fide occupancy are distinct interests in law and fact, and must not be pleaded or treated interchangeably as though they are one and the same.
Land Law — Fraud in Lease Grant — Pre-Incorporation Application
The fact that a company's lease application letter was written before its incorporation does not constitute fraud where, by the time the application was submitted, considered and granted, the company was already a legal entity.
Civil Procedure — First Appeal — Duty to Reappraise Evidence
On a first appeal under rule 30(1) of the Court of Appeal Rules, the court is required to reappraise the evidence and draw its own inferences on issues of fact and law, while making allowance for the trial court's advantage of having seen and heard the witnesses.

Legislation cited (10)

  • Land Act (Cap 227) s.29(2)(a)
  • Land Act (Cap 227) s.1(1)
  • Land Act (Cap 227) s.1(2)
  • Land Act 16 of 1998 s.99
  • Public Lands Act 1969 s.24(1)(a)
  • Roads Act (Cap 345) s.4
  • Roads Act (Cap 345) s.6
  • Land Reform Decree (Decree No. 5 of 1975)
  • Registration of Titles Act
  • Rules of the Court of Appeal r.30(1)

Cases cited (7)

  • Marko Matovu and others versus Seviri and Another [1979] HCB 174
  • Kampala District Land Board v Babweyaka (Supreme Court Civil Appeal No. 2 of 2007)
  • Godfrey Ojanga v Wilson Bagonza (Civil Appeal No. 25 of 2005)
  • Begumisa v Tibebaaga (Supreme Court Civil Appeal No. 17 of 2002)
  • Isaaya Kalya v Moses Macekenyu Ikagobya (Civil Appeal No. 82 of 2012)
  • Coghlan vs. Cumberland (1898) 1 Ch. 704
  • Pandva vs. R (1957) EA 336
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.