Kalungu Farm Limited v Muluta & Another (Civil Appeal 314 of 2020)

Court of Appeal · [2024] UGCA 213 · 2024 Appeal Allowed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

First appeal from a High Court (Land Division) decision dismissing the appellant's suit for cancellation of a mailo title and ordering cancellation of the appellant's freehold title.

Decision

Appeal allowed; High Court decision set aside; appellant's freehold title declared valid and the impugned mailo title and titles arising from it cancelled

The full judgment

Read the complete, verbatim text of this judgment.

Cited — treatment unverified cited in 2 (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 allowed the appeal. Re-evaluating the evidence, it held that the material relied on by the trial judge (Exhibit DE3 and inferences from land records that were neither inspected nor tendered) was unsatisfactory and unreliable, and that no evidence supported the alleged lease from Kitenda to Wilson. The appellant's freehold title, created in 1925, predated the impugned mailo title created in 2013; absent proof of fraud against the earlier title, the earlier title prevailed and the later mailo title ought to be cancelled. The trial judge had, however, correctly declined to dispose of the suit on the contested consent judgment. The mailo title and the cancellation of the appellant's title were set aside.

Facts

Kalungu Farm Limited held a freehold certificate of title (Freehold Register Volume 2 Folio 8, Kalungu Estate) over land at Kalanamu, Luwero District, registered as proprietor on 19 April 1968. The appellant traced its title to a 1914 Crown grant to Frank O'Brien Wilson under the Crown Lands Ordinance, 1903, which after successive transfers became a freehold title in 1925. In 2013, the Administrator General obtained a mailo certificate of title (Bulemezi Block 15 Plots 96 and 97) over the same land in his capacity as administrator of the estates of the late Marko Kitenda and the late Semu Tenywa, and transferred interests to beneficiaries, including the 1st respondent. The appellant, claiming continuous possession, discovered the mailo title on a search and sued for its cancellation. The 1st respondent contended the suit land originated with Kitenda, who held a Final Certificate from 1915 and had leased the land to Wilson, but conceded there was no evidence of any such lease.

Issues

Whether the mailo certificate of title comprised in Bulemezi Block 15 Plots 96 and 97 was validly created where the appellant already held an earlier freehold certificate of title over the same land.
Whether the appellant's freehold title or the impugned mailo title had priority of registration.
Whether the trial judge erred in setting aside the consent judgment concluded between the appellant and certain defendants without the conditions for setting aside a consent judgment being met.

Orders

The decision of the High Court is set aside.
The Appellant's certificate of title describing the suit land as Freehold Register Volume 2 Folio 8 and known as Kalungu Estate is valid.
The mailo certificate of title describing the suit land as Bulemezi Block 15 Plots 96 and 97 initially registered in the name of the Administrator General, and the respective titles arising from subdivision thereof, are set aside.
The Respondents shall pay the appellant's costs in this Court and in the court below.

Key headnotes

Land & Property — Competing Certificates of Title — Priority of the Earlier-Created Title

Where two certificates of title exist over the same land, the earlier-created title takes precedence over the later, and the later title ought to be cancelled unless fraud is pleaded and proved against the earlier title.

Evidence — Reliability — Records Neither Inspected Nor Tendered

A court cannot safely rely on inferences drawn from records that were neither inspected by the court nor tendered in evidence; such evidence is unsatisfactory and unreliable.

Evidence — Proof of a Lease — Inference Without Evidence Impermissible

A court cannot infer the existence of a lease in the absence of evidence; the lack of a writing requirement under section 7(2) of the Registration of Titles Act does not relieve a party of the burden of proving that the lease existed.

Land & Property — Additional Evidence on Appeal — Official Land Records

An appellate court may accept additional evidence consisting of official land records, such as indentures retrieved from official records at the Lands Office, where there is no evidence that the additional evidence was fabricated.

Civil Procedure — Consent Judgment — Refusal to Enforce Against a Non-Consenting Party

A trial court is not bound to dispose of a suit on the basis of a consent judgment where a party who did not agree to it contests it, and may decline to enforce a consent judgment proved to be null and void.

Legislation cited (7)

Evidence Act Cap. 6 s.81
Registration of Titles Act s.54
Registration of Titles Act s.64(1)
Registration of Titles Act s.176(e)
Registration of Titles Act s.7(2)
Land in Buganda (Provisional Certificates) Act Cap. 204 s.2
Crown Lands Ordinance 1903

Cases cited (7)

St Mark Education Centre v Makerere University (Civil Appeal No. 40 of 1992)
Makerere University v St Mark Education Centre (Civil Suit No. 378 of 1990)
Mark Kamoga v Attorney General and Another (Civil Appeal No. 8 of 2004)
Dr Adeodanta Kekimbwa and Others v Edward Hando Makida (Civil Appeal No. 3 of 1997)
URA vs. Mukwano Industries ... of 2012
Barendregt vs. Girebullans 2022 SCCA 22
Banco ... Civil Appeal No. 8

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.