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Shire Petroleum Company Limited and Another v Vivo Energy Uganda Limited (Civil Appeal No. 96 of 2018)

Court of Appeal · [2025] UGCA 298 · 2025 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
First appeal from a High Court civil suit decision, with a cross-appeal on mesne profits and interest.
Decision
Appeal allowed; High Court judgment set aside; both certificates of title cancelled; cross-appeal dismissed.

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Holding

The Court of Appeal allowed the appeal. It held the trial judge wrongly imputed unpleaded fraud to the appellants; the 2nd appellant was a bona fide purchaser for value without notice; nemo dat quod non habet does not apply to land registered under the Registration of Titles Act; and the respondent was estopped by its 2004 letter forfeiting interest. The appellants' predecessor, Arua Bus Syndicate, occupied the land without consent from about 1978, becoming an adverse possessor (not a tenant at sufferance) whose over-twelve-year possession extinguished the respondent's and Land Board's title under Limitation Act ss.5, 6(1), 11(1) and 16. The later lease grants were void; neither appellant was a trespasser. Both certificates of title were cancelled; the cross-appeal was dismissed.

Facts

The respondent (formerly Shell/Uganda Shell, now Vivo Energy) was the registered proprietor of land at Plot 17 Hospital Road, Arua (LRV 322 Folio 19) from 1964. In 1978 the Minister cancelled the lease, transferring it to Arua Bus Syndicate; the respondent decided not to contest the cancellation and instructed its lawyers to regularise the change. From about 1978 Arua Bus Syndicate (1983) Ltd occupied the land without the consent of the respondent or the Land Board. The lease expired in 2001; the respondent, though not in possession, obtained a renewal (LRV 2919 Folio 23). In 2002 Arua District Land Board granted Arua Bus Syndicate a lease, registered in 2006 (LRV 3639 Folio 15). In February 2007 the Syndicate sold and handed the land to the 2nd appellant, who relied on his advocate's due diligence; the 1st appellant occupied as the 2nd appellant's tenant. In 2004 correspondence the respondent had told the Syndicate it was no longer interested in operating Shell Arua. The respondent sued in 2016 for trespass, cancellation of title, eviction and mesne profits, and the High Court entered judgment in its favour.

Issues

  1. Whether the trial judge erred in imputing actual or constructive notice of fraud to the appellants through their advocate's conduct, where fraud was neither pleaded nor proved.
  2. Whether the 2nd appellant was a bona fide purchaser for value without notice of the respondent's interest.
  3. Whether the nemo dat quod non habet principle applies to land registered under the Registration of Titles Act.
  4. Whether the respondent was estopped from denying that it had forfeited its interest in the suit land.
  5. Whether the appellants' predecessor in title was a tenant at sufferance or an adverse possessor of the suit land.
  6. Whether the respondent's claim to recover the suit land was barred by limitation.
  7. Whether the appellants were trespassers on the suit land.
  8. Whether, on cross-appeal, mesne profits should run to the date of vacant possession and interest from the date of filing the suit.

Orders

  • Appeal allowed in favour of the appellants with costs in this Court and the Court below.
  • Cross-appeal dismissed with costs to the cross-respondents.
  • The respondent's certificate of title comprised in LRV 2919 Folio 23, Plot 17 Hospital Road, Arua Municipality cancelled under s.177 of the Registration of Titles Act.
  • The 2nd appellant's certificate of title comprised in LRV 3639 Folio 15, Hospital Road, Arua Municipality cancelled.
  • Title acquired through adverse possession declared an unregistered interest, entitling the 1st appellant to priority consideration for a freehold or leasehold title on application to the District Land Board.

Key headnotes

Registration of Titles — Bona Fide Purchaser for Value Without Notice
A purchaser who buys registered land for value in good faith, relying on due diligence properly conducted by his advocate, and without knowledge or notice of any fraud, is a bona fide purchaser for value whose title is protected.
Registration of Titles — Nemo Dat Quod Non Habet — Torrens System
The principle of nemo dat quod non habet does not apply to transactions in land registered under the Registration of Titles Act, because the Torrens system saves circumstances in which a good title can arise from a defective one.
Estoppel — Section 114 Evidence Act
Where a person, by his declaration, act or omission, intentionally causes or permits another to believe a thing to be true and to act on that belief, he is estopped under section 114 of the Evidence Act from later denying the truth of that thing.
Adverse Possession — Extinguishment of Registered Title
Factual, exclusive, open, peaceful and continuous possession of land without the owner's consent for at least twelve years extinguishes the registered owner's title under the Limitation Act and entitles the adverse possessor to be vested with the title.
Limitation — Trespass to Land as an Action to Recover Land
An action for trespass to land concerns possessory rights and falls within actions to recover land, and is therefore subject to the twelve-year limitation period under the Limitation Act.
Pleadings — Fraud Must Be Pleaded and Proved
Fraud must be specifically pleaded and proved; although a court may consider unpleaded fraud or illegality where evidence raises it, it must act cautiously and afford the parties a fair hearing before relying on it.
Tenancy — Tenant at Sufferance Distinguished from Adverse Possessor
A person who remains in occupation of land without the owner's consent is an adverse possessor rather than a tenant at sufferance where the occupation began and continued without the lessor's consent.

Legislation cited (23)

  • Limitation Act s.5
  • Limitation Act s.6(1)
  • Limitation Act s.11(1)
  • Limitation Act s.16
  • Limitation Act s.29
  • Registration of Titles Act s.37(3)
  • Registration of Titles Act s.64(1)
  • Registration of Titles Act s.78
  • Registration of Titles Act s.92(1)
  • Registration of Titles Act s.176(e)
  • Registration of Titles Act s.177
  • Evidence Act s.91
  • Evidence Act s.92
  • Evidence Act s.114
  • Land Act s.56
  • Land Act s.59
  • Judicature Act s.11
  • Constitution of Uganda 1995 art.28(1)
  • Constitution of Uganda 1995 art.240
  • Constitution of Uganda 1995 art.241
  • Court of Appeal Rules r.30
  • Court of Appeal Rules r.32(1)
  • Court of Appeal Rules r.86(1)

Cases cited (39)

  • Patrick Mukasa v Andrew Douglas Kanyike (Civil Appeal No. 13 of 2022)
  • Lutalo Moses v Ojede Abdallah Bin Cona (Civil Appeal No. 15 of 2019)
  • Kiwanuka Fredrick Kakumutwe v Kibirige Edward (Civil Appeal No. 272 of 2017)
  • Amalgamated Investment v Texas Commerce, (1982) QB 84
  • Dr. Diana Kanzira v Herbert Natukundu Rwanchwende (Civil Appeal No. 81 of 2020)
  • Fr. Narsensio Begumisa v Eric Tibebaga (Civil Appeal No. 17 of 2002)
  • Justine E.M.N. Lutaaya v Stirling Civil Engineering Co. Ltd (Civil Appeal No. 11 of 2002)
  • Hajji Abdu Nasser Katende v Vithalidas Haridas & Co. Ltd (Civil Appeal No. 84 of 2003)
  • Saul Rumanda v Emmy Tumwine & 6 Others (Civil Appeal No. 19 of 2018)
  • Interfreight Forwarders (U) Ltd v East African Development Bank (Civil Appeal No. 33 of 1992)
  • Fang Min v Belex Tours & Travel Ltd (Civil Appeal No. 6 of 2013)
  • Hajati Mulagusi v Pade (Civil Appeal No. 28 of 2010)
  • Remon v. City of London Real Property Co. Ltd., [1921] 1 KB 49
  • Asher v. Whitlock (1865) LR 1 QB 1
  • Mwebesa v Shumuk Springs Development Limited (Civil Suit No. 126 of 2009)
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Pandya v R (1957) EA 336
  • Coughlin v Cumberland (1898) 1 Ch. 704
  • Mohammed Hamid v Roko Construction Ltd (Civil Appeal No. 1 of 2013)
  • Uganda Railways Corporation v Ekwaru D.O & 5104 Others (Civil Application No. 185 of 2007)
  • Dr. Adeodanta Kekitinwa & 3 Others v Edward Mando Wakida (Civil Appeal No. 3 of 2007)
  • URA v Stephen Mabosi (Civil Appeal No. 26 of 1995)
  • Matovu & 2 others v Sseviri [1979] HCB 175
  • Gill v Bucholtz, 2009 BCCA 132
  • Nyeko Smith & 2 Others v Attorney General (Civil Appeal No. 1 of 2016)
  • Makerere Institute of Commerce v DAPCB (Civil Appeal No. 13 of 1995)
  • Madhvani International v Attorney General (Civil Appeal No. 23 of 2010)
  • Rehema Kiiza & Another v Sempa Muwanga & 4 Others (Civil Appeal No. 60 of 2008)
  • Kantilal Devraj Shah v Principal Registrar of Titles (1964) E.A 303
  • David Sejjaka Nalima v Rebecca Musoke [1986] UGSC 16
  • Scorpion Holdings Ltd v Lion Assurance Co. Ltd Civil Suit No. 221 of 13
  • Departed Asians Property Custodian Board v Benjamin Anyadra (Civil Appeal No. 8 of 1989)
  • Livingstone Sewanyana v Martin Aliker (Civil Appeal No. 4 of 1990)
  • Attorney General v Florence Balaraine (Civil Appeal No. 79 of 2003)
  • Siree v Lake Turkana Lodges (2000) 2 EA 521
  • Westminster Brymbo Coal & Coke [1896] 2 Ch 538
  • Shell Uganda Ltd v Captain Naeem Shair Chaudry (Civil Appeal No. 32 of 2010)
  • Eridad Otabong Waimo v Attorney General
  • Shaw v Garbutt (1996) 7 BRP, 14816
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