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Njawukana v Kasujja and 7 Others (Civil Appeal 118 of 2013)

Court of Appeal · [2020] UGCA 2161 · 2020 Appeal Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
First appeal from a High Court decision dismissing a civil suit for recovery of land and rectification of title
Decision
Appeal partly allowed; trial judgment set aside and substituted with orders for a physical re-survey of the disputed boundary at the appellant's cost.

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Holding

The Court of Appeal held that the respondents and their predecessor were the lawfully registered leasehold proprietors of Plot 3, and that the appellant failed to prove fraud to the heightened standard required, particularly as fraud was not pleaded at trial and no implicating evidence was led. However, the Court found that the southern boundary of Plot 3 had been demarcated by computation rather than physical survey, leaving a probability that part of the appellant's land was wrongly included. It ordered an actual physical survey at the appellant's cost. Grounds 1 and 2 partly succeeded; the locus ground was struck out for an unauthorised amendment, and damages were refused since no wrongdoing was attributed to the respondents.

Facts

Irera Njawukana and Falasiko Kasule, both deceased, occupied neighbouring pieces of rural land in Masaka District. In 1974, Kasule applied for a lease over land and on 11 December 1987 was registered as leasehold owner of Mawogola Block 190 Plot 3 (LRV 1627 Folio 3), measuring about 387.18 hectares, granted by the Uganda Land Commission. The respondents are his successors in title. The appellant inherited Mawogola Block 190 Plot 6 (LRV 1582 Folio 23) from his father, who obtained a lease in 1987. In 1995 the appellant discovered that disputed land he had occupied and used for grazing was registered within the respondents' Plot 3. He complained to the Commissioner Mappings and the Masaka District Land Board, both of which failed to rectify the alleged error, then sued in the High Court seeking eviction, injunction, recovery of the land and rectification/cancellation of the respondents' titles. Evidence showed part of the southern boundary of Plot 3 had been demarcated by computation rather than physical survey.

Issues

  1. Whether the trial Judge erred in holding that the suit land belonged to the respondents.
  2. Whether the trial Judge failed to properly evaluate the evidence and reached wrong conclusions.
  3. Whether the trial Judge erred in the manner she conducted the proceedings at the locus in quo.
  4. Whether the trial Judge erred in omitting to assess the general damages she would have awarded.
  5. Whether fraud not pleaded at trial could be raised on appeal, and whether fraud was proved against the respondents' predecessor in title.

Orders

  • Judgment of the trial Court set aside and substituted with new orders.
  • Declaration that the southern boundary on Plot 3 was demarcated without actual physical survey, leaving a probability that it encompassed part of the appellant's adjoining property.
  • An actual physical survey to be conducted to establish the true extent of Plot 3; if the boundary correctly demarcates the 387.18 hectares leased, the respondents remain in possession, otherwise the appellant is entitled to the part covering his land.
  • The survey to be carried out at the appellant's cost, with the concurrence of the respondents and under the supervision of the relevant District Land Board.
  • Ground 3 struck out.
  • Ground 4 (damages) dismissed.
  • No order as to costs here and in the Court below.

Key headnotes

Customary Tenure — Land Reform Decree 1975 — Tenancy at Sufferance
Under section 3(2) of the Land Reform Decree 1975, a customary occupant of public land held only at sufferance, and the Uganda Land Commission could lawfully grant a lease over such land to any other person, defeating the customary occupant's interest.
Registration of Titles — Conclusiveness of Certificate — Pre-registration Irregularities
A certificate of title is conclusive evidence of the particulars contained in it, and irregularities or informalities prior to registration, even if proven, will not ordinarily defeat the title of the registered proprietor under section 59 of the Registration of Titles Act.
Fraud — Standard and Burden of Proof — Attribution to Registered Proprietor
Fraud sufficient to impeach a registered title must be attributable to the transferee directly or by necessary implication and must be proved strictly, to a standard heavier than the ordinary balance of probabilities; mere allegations in counsel's submissions are insufficient.
Pleadings — Raising Fraud or Illegality for the First Time on Appeal
An issue of fraud or illegality not pleaded in the lower court may be raised on appeal, provided the parties are given an opportunity to address the court on it, which may be done through written submissions.
Grounds of Appeal — Amendment Requires Leave
Under rule 45 of the Judicature (Court of Appeal Rules) Directions, grounds of appeal may only be amended with leave of the court; an attempt to amend a ground through written submissions without leave cannot be sustained and the imprecise ground may be struck out.
Boundary Surveys — Computational Survey versus Physical Survey
Where a boundary on a deed plan has been demarcated by computation or scaling rather than an actual physical survey, leaving a probability that adjoining land was wrongly included, a court should order a physical survey to establish the true extent of the boundary.

Legislation cited (9)

  • Land Reform Decree 1975 s.1
  • Land Reform Decree 1975 s.3
  • Public Lands Act 1969 s.24(2)
  • Registration of Titles Act Cap. 230 s.59
  • Registration of Titles Act Cap. 230 s.61
  • Registration of Titles Act Cap. 230 s.176
  • Constitution of Uganda 1995 Article 237(1)
  • Judicature (Court of Appeal Rules) Directions S.I 13-10 r.30(1)(a)
  • Judicature (Court of Appeal Rules) Directions S.I 13-10 r.45

Cases cited (11)

  • Marko Matovu v Mohammed Sseviri (Civil Appeal No. 7 of 1986)
  • John Katarikawe vs. William Katwiremu (1977) HCB 187
  • Kampala District Land Board v Venansio Babweyaka (Civil Appeal No. 2 of 2007)
  • Fang Min v Belex Tours and Travel Limited (Civil Appeal No. 6 of 2013)
  • Crane Bank Limited v Belex Tours and Travel Limited (Civil Appeal No. 1 of 2014)
  • Inter Freight Forwarders (U) Ltd v East African Development Bank (Civil Appeal No. 33 of 1992)
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Lawrence Kitts v Bugisu Cooperative Union (Civil Appeal No. 15 of 2004)
  • O. Sonza Figuiireda vs Kakamali Nanji {1962} E.A 576
  • Kampala Bottlers v Damanico (U) Ltd (Civil Appeal No. 22 of 1992)
  • Robert Lusweswe v Kasule (Civil Suit No. 10 of 1983)
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.