Wakilii

Banura Grace Isoke v Dizzy Nyanjura, Kalusha Abdhallah Frank, Baguma Anthony, Tebezinda M. Derrick & Kizito Muhumuza (Civil Appeal 74 of 2015)

Court of Appeal · [2024] UGCA 27 · 2024 Appeal Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
First appellate court — civil appeal from a High Court judgment in a land dispute (trespass suit and counterclaim).
Decision
Appeal partly allowed: cancellation of the appellant's certificate of title set aside and her registered proprietorship restored; respondents found to be beneficiaries of a bona fide occupant and not trespassers; order for vacant possession refused absent compensation; caveat vacated.

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Holding

The Court of Appeal held that fraud was not strictly proved against the appellant or her predecessor, so the trial judge erred in cancelling her title, especially given the respondents' admission that she was the registered proprietor. The respondents also failed to prove a kibanja under customary tenure, no custom or payment of busulu being established, and customary tenure could not subsist in an urban area. However, Damiano Matovu qualified as a bona fide occupant and tenant by occupancy, having occupied the land unchallenged for over twelve years before the 1995 Constitution; his beneficiaries could inherit that interest and were not trespassers. Appeal partly allowed: title restored, caveat vacated, vacant possession refused absent compensation, each party to bear own costs.

Facts

Damiano Matovu occupied the suit kibanja at Kibuli from 1975, having been invited by his sister Zaituni Nsungwa to live in the house there after their mother's death. In 1985 the appellant's husband, Kasimu Isoke, bought the mailo interest in the land (Kibuga Block 15 Plot 217) from the registered proprietor Badru Kakungulu for 200,000 shillings; Matovu was allowed to remain as a caretaker. Kasimu Isoke was registered as proprietor and, on his death in 1987, the appellant obtained letters of administration and was registered as administrator of his estate. Damiano Matovu died in 2007 and was buried in Entebbe; thereafter the respondents, his widow and sons, remained on the land, erected structures and planted crops, asserting a kibanja interest inherited from him. In 2008 the appellant sued the respondents for trespass; they counterclaimed, asserting a lawful or bona fide occupancy and that the appellant's title had been procured by fraud. The High Court cancelled the appellant's title for fraud and entered judgment on the counterclaim, prompting this appeal.

Issues

  1. Whether the registration of the appellant's predecessor in title (Kasimu Isoke), and consequently the appellant's certificate of title, was tainted by fraud.
  2. Whether the respondents held a kibanja interest in the suit land under customary tenure.
  3. Whether the respondents were trespassers on the suit land, and whether the trial judge erred in dismissing the appellant's suit and allowing the counterclaim.
  4. What remedies, if any, the parties were entitled to.

Orders

  • The appellant is the lawful registered proprietor of the mailo interest in the land known as Kibuga Block 15 Plot 217 at Kibuli in the City of Kampala.
  • The respondents, or some of them, subject to the decision of the High Court on the grant of letters of administration to the estate of Damiano Mululi Matovu, are beneficiaries to his interest in the land as bona fide occupants thereof.
  • The caveat lodged by the appellant to stop the respondents' application for letters of administration is vacated.
  • Each party to the appeal shall bear its own costs in the appeal and in the court below.
  • The order of the lower court cancelling the certificate of title is set aside.

Key headnotes

Land & Property — Registration of Titles — Fraud — Attribution and Standard of Proof
Fraud sufficient to vitiate a registered title must be attributable to the transferee, directly or by necessary implication, must be specifically pleaded, and must be strictly proved to a standard heavier than the ordinary balance of probabilities.
Land & Property — Registration of Titles — Notice of Unregistered Interest Not Fraud
Except in the case of fraud, a purchaser dealing with a registered proprietor is not required to inquire into unregistered interests, and mere knowledge that such a trust or unregistered interest exists is not of itself imputed as fraud under section 136 of the Registration of Titles Act.
Land & Property — Customary Tenure — Proof of Custom and Urban-Area Prohibition
A claimant asserting a kibanja held under customary tenure must accurately and definitely prove the applicable custom; mere long occupation and development of land do not create a customary interest, and customary tenure could not lawfully be acquired or continued over land in an urban area after the Public Lands Act 1969 and the Land Reform Decree 1975.
Land & Property — Bona Fide Occupant and Tenant by Occupancy — Twelve-Year Occupation
A person who occupied, utilised or developed registered land unchallenged by the registered owner for twelve years or more before the coming into force of the 1995 Constitution is a bona fide occupant and tenant by occupancy under sections 29 and 31 of the Land Act, enjoying security of occupancy; non-payment of the nominal ground rent does not extinguish that interest.
Succession & Estates — Tenancy by Occupancy — Inheritance by Beneficiaries
A tenancy by occupancy may be inherited under section 34 of the Land Act, and the beneficiaries of a deceased tenant by occupancy take his interest and may assert it without first obtaining letters of administration; such beneficiaries entering to use the deceased's assets on the land are not trespassers.
Land & Property — Trespass — Capacity of Registered Proprietor to Sue
Trespass to land is committed against the person in actual or constructive possession; a registered proprietor holding a certificate of title has, by virtue of that title, legal possession and capacity to sue in trespass, and the slightest amount of possession suffices.
Evidence — Admitted Facts Need Not Be Proved
Facts admitted by the parties, including in a joint scheduling memorandum, need not be proved under section 57 of the Evidence Act, and a party who admits the opponent's registered proprietorship is estopped from later denying that title.

Legislation cited (36)

  • Registration of Titles Act s.1(i)
  • Registration of Titles Act s.59
  • Registration of Titles Act s.62(2)
  • Registration of Titles Act s.65
  • Registration of Titles Act s.77
  • Registration of Titles Act s.92(2)
  • Registration of Titles Act s.99
  • Registration of Titles Act s.100
  • Registration of Titles Act s.136
  • Land Act 1997 s.1(1)
  • Land Act 1997 s.3
  • Land Act 1997 s.29(1)
  • Land Act 1997 s.29(2)
  • Land Act 1997 s.31
  • Land Act 1997 s.32A
  • Land Act 1997 s.34
  • Land Act 1997 s.35
  • Land Act 1997 s.37(4)
  • Land Reform Decree 1975 s.1(1)
  • Land Reform Decree 1975 s.2(1)
  • Land Reform Decree 1975 s.3
  • Land Reform Decree 1975 s.5(1)
  • Land Reform Decree 1975 s.10
  • Public Lands Act 1969 s.24(1)
  • Evidence Act s.57
  • Civil Procedure Rules Order 6 rule 3
  • Court of Appeal Rules SI 13-10 rule 30(1)
  • Constitution of Uganda 1995 Article 26
  • Constitution of Uganda 1995 Article 237(8)
  • Constitution of Uganda 1995 Article 237(9)
  • Succession Act s.2(w)
  • Succession Act s.25
  • Succession Act s.26
  • Succession Act s.27
  • Land (Amendment) Act 2004 s.14(c)
  • Land (Amendment) Act 2010

Cases cited (12)

  • Kampala Bottlers Ltd v Damanico (U) Ltd (Supreme Court Civil Appeal No. 22 of 1992)
  • Zzabwe Frederick v Orient Bank Ltd & 5 Others (Supreme Court Civil Appeal No. 2 of 2006)
  • Kampala District Land Board & George Mutale v Venansio Babweyaka (Supreme Court Civil Appeal No. 1 of 2007)
  • Edward Rurangaranga v Mbarara Municipality & Others (Supreme Court Civil Appeal No. 10 of 1996)
  • Balamu Bwetegaine Kiiza & Isma Rubona v Zephania Kadooba (Court of Appeal Civil Appeal No. 59 of 2009)
  • Israel Kabwa v Martin Banoba Musiga (Supreme Court Civil Appeal No. 52 of 1995)
  • Nyanzi Evaristo & Others v Mukasa Silver (Court of Appeal Civil Appeal No. 55 of 2014)
  • Justine E M Lutaaya v Stirling Civil Engineering Co. Ltd (Supreme Court Civil Appeal No. 11 of 2002)
  • Moya Drift Farm Ltd v Theuri [1973] EA 114
  • Ernest Kinganju Kimani v Muira Gikonga [1965] EA 735
  • R v Ndembera s/o Mwandanwale (1947) 14 EACA 85
  • Ndimwibo & Others (supra)
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