Wakilii

Moses Aman & 3 Others V Zepher Besimbire (Civil Suit No. 130 of 2011)

High Court · [2015] UGHCLD 92 · 2015 Judgment for Plaintiff ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
First instance civil suit for ejectment and trespass, transferred from Chief Magistrate's Court to High Court Land Division due to jurisdictional value and competing proprietary claims
Decision
Defendant evicted from suit property; Plaintiffs to take vacant possession with house built thereon; general damages and costs awarded to Plaintiffs

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Holding

Held that the plaintiffs, as registered proprietors of subdivided land, were bona fide purchasers for value without notice of fraud. The defendant failed to prove the plaintiffs participated in or had knowledge of any fraudulent subdivision of his original title. Under the Registration of Titles Act, a certificate of title is conclusive proof of ownership unless fraud is attributable to the registered purchaser. The defendant's unlawful occupation constituted trespass. Suit allowed with ejectment order, perpetual injunction, and general damages of UGX 20,000,000.

Facts

The plaintiffs purchased land comprised in Kyadondo Block 243 Plot 2506 at Luzira for UGX 130,000,000 from Fred Ssebuliba. The suit land was a subdivision of Plot 2321, originally owned by the defendant. The plaintiffs conducted due diligence including land registry searches, physical inspection with LC officials, survey verification, and confirmed the vendor's identity and title. The defendant claimed his original title to Plot 2321 was fraudulently subdivided by an unknown impostor (Moses Kayongo) who then transferred Plot 2506 to Ssebuliba Fred, who sold to the plaintiffs. The defendant took physical possession of the suit land and constructed a house thereon, despite the plaintiffs being registered proprietors. The defendant lodged a caveat but did not produce his original certificate of title at trial.

Issues

  1. Who is the lawful owner of the land comprised in and known as Kyadondo Block 243 Plot 2506?
  2. Whether the Plaintiffs are bona fide purchasers of the suit property for value, without notice.
  3. What remedies are available to the parties?

Orders

  • The Defendant, his agents and servants, shall forthwith be evicted from the suit property (land comprised in Kyadondo Block 243 Plot 2506, at Luzira); which the Plaintiffs shall, immediately, take vacant possession of.
  • A perpetual injunction hereby issues; restraining the Defendant or any person acting on his behalf, from committing any further trespass or unlawful re-entry onto the suit land.
  • The Defendant shall pay the Plaintiffs general damages for trespass on the suit land, in the sum of UGX 20,000,000.
  • The Plaintiffs are awarded costs of the suit.
  • The awards ordered in (iii) and (iv) herein, shall attract interests at the rate of 10% per annum from the date of this judgment.

Key headnotes

Registration of Titles — Certificate of Title — Conclusive Proof of Ownership
Under the Registration of Titles Act s.59, every certificate of title is conclusive proof that the person named therein is the proprietor, and production of the registered certificate shall be held in every court to be an absolute bar and estoppel to any action against the registered proprietor, any rule of law or equity to the contrary notwithstanding.
Fraud — Impeachment of Certificate of Title — Burden of Proof
A certificate of title can only be impeached on limited grounds including fraud. The burden lies on the person seeking to impeach the title to adduce evidence substantiating the allegations of fraud. Fraud must be attributable to the transferee either directly or by necessary implication, meaning the transferee must be guilty of some fraudulent act or must have known of such act by somebody else and taken advantage of it.
Bona Fide Purchaser for Value — Definition and Requirements
A bona fide purchaser is a person who acquires property without actual or constructive notice of any defects in title, who has in good faith paid valuable consideration for the property without prior notice of any adverse claim. One who has exercised due diligence as well as reasonable caution before entering into a transaction would be a bona fide purchaser.
Registered Conveyancing — Paradox of Fraudulent Title — Transmission to Bona Fide Purchaser
Under the Registration of Titles Act s.189, registration obtained by fraud is void and yet capable of becoming a good root of title to a bona fide purchaser for value. A person registered through fraud can pass good title to a bona fide purchaser for value unless the purchaser was not bona fide or was privy or party to the fraud. The law invalidates conveyance of fraudulently acquired registered land when it still reposes in the fraudster, but enables the fraudster to pass valid title to a bona fide purchaser for value who has no notice of the fraud.
Trespass to Land — Registered Proprietor — Legal Possession
A person holding a certificate of title has, by virtue of that title, legal possession of the land and can sue in trespass. Trespass to land occurs when a person makes an unauthorised entry upon land and thereby interferes with another person's lawful possession. Only a person in possession of land has capacity to sue in trespass, and possession is not restricted to physical occupation — the slightest amount of possession suffices.
Fixtures — Improvements by Trespasser — Ownership
On the principle that whatever is fixed to the land becomes part of the land, a registered proprietor is entitled to the land with whatever development a trespasser has put on it. Where a defendant unlawfully occupies land and constructs a building thereon, the plaintiff as registered proprietor is entitled to take possession of the land together with the building.

Legislation cited (5)

  • Registration of Titles Act Cap. 230 s.59
  • Registration of Titles Act Cap. 230 s.176
  • Registration of Titles Act Cap. 230 s.184
  • Registration of Titles Act Cap. 230 s.189
  • Civil Procedure Rules O.14 r.5

Cases cited (16)

  • J.L. Okello-Okello v Uganda National Examinations Board (Supreme Court Civil Appeal No. 12 of 1987)
  • Kampala Bottlers Ltd v Damanico (U) Ltd (Supreme Court Civil Appeal No. 22 of 1992)
  • Robert Lusweswe v Kasule & Anor (High Court Civil Suit No. 1010 of 1983)
  • Hariprasad Ramabai Patel v Babubhai Kalidas Patel (High Court Civil Suit No. 981 of 1990)
  • Ismail Jaffer Allibhai & 2 Ors v Nandlal Harjivan Karia & Anor (Supreme Court Civil Appeal No. 53 of 1995)
  • David Sejakka Nalima v Rebecca Musoke (Court of Appeal Civil Appeal No. 12 of 1985)
  • Assets Company Ltd. vs Mere Roihi & Others [1905] A.C. 176
  • Amrattal Purshottan & Anor v Gian Singh Bhambra (High Court Civil Suit No. 289 of 2010)
  • Uganda Broadcasting Corporation v Sinba (K) Limited & 3 Ors (Civil Application No. 12 of 2014)
  • Edward Musisi vs Grindlays Bank (U) Ltd & 2 Ors, 1983 H.C.B. 39
  • Andrea Lwanga v The Registrar of Titles (Miscellaneous Cause No. 7A of 1977)
  • Gibbs vs Messer [1891] A.C. 248
  • Justine E.M.N. Lutaaya v Stirling Civil Engineering Company Ltd (Supreme Court Civil Appeal No. 11 of 2002)
  • Moya Drift Farm Ltd vs Theuri [1973] E.A. 114
  • Wuta-Ofei vs Danquah [1961] 3 All E.R. 596
  • United Cultivate Company Ltd v Uganda Properties Ltd (Court of Appeal Civil Appeal No. 1 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.