Wakilii

Kampala District Land Board and Another v Venansio Babweyaka and Others (Civil Appeal No. 2 of 2007)

Supreme Court · [2008] UGSC 37 · 2008 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second appeal to the Supreme Court from the Court of Appeal in a land dispute over allocation of a leasehold and cancellation of title.
Decision
Appeal dismissed; cancellation of the 2nd appellant's certificate of title and the award of general damages to the respondents upheld.

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Holding

The Supreme Court held that the respondents had failed to prove they occupied the suit urban land under customary tenure, since customary tenure was prohibited in urban areas before the 1998 Land Act (which is not retrospective) and the custom relied on was not proved by evidence. Ground one therefore succeeded. However, the respondents were bona fide occupants whose unregistered interest could not be defeated. Allocating a lease to the 2nd appellant without hearing them breached natural justice, and procuring registration to defeat their known interest amounted to fraud, rendering the title defeasible. The award of general damages was not interfered with. The appeal was dismissed with costs.

Facts

The respondents occupied land at Block 7 Plot 1028, Ndeeba, Kampala (LRV 2847 Fol. 9), from about 1998, having bought their interests from earlier occupiers who had been there since 1970. They held temporary structures and ran a timber business, paying rates to Kampala City Council. The land was under a statutory lease that passed to the 1st appellant, Kampala District Land Board. On 31 October 1999 the 1st appellant allocated the land to the 2nd appellant, who obtained a certificate of title on 20 November 2000. The respondents, among 20 original plaintiffs, sued to challenge the allocation, claiming to be lawful, bona fide or customary occupants. After a first trial, an appeal, a Supreme Court-ordered retrial, and a further appeal, the courts found the respondents were not customary tenants but were bona fide occupants, ordered cancellation of the 2nd appellant's title, and awarded each respondent UGX 6,000,000 in general damages. The appellants appealed to the Supreme Court.

Issues

  1. Whether the respondents were customary owners of the suit land.
  2. Whether the suit land was available for leasing to the 2nd appellant.
  3. Whether the 2nd appellant obtained the certificate of title lawfully and free of fraud.
  4. Whether the award of general damages to the respondents should be upheld.

Orders

  • Appeal dismissed.
  • Orders of the Court of Appeal (cancellation of the 2nd appellant's certificate of title and award of general damages) upheld.
  • Costs of the appeal awarded to the respondents in the Supreme Court and in the courts below.

Key headnotes

Land Tenure — Customary Tenure — Prohibition in Urban Areas
Customary tenure could not lawfully be acquired in urban areas under section 24(1)(a) of the Public Land Act 1969 and section 5(1) of the Land Reform Decree 1975, and the silence of the 1998 Land Act on that prohibition does not operate retrospectively to legalise customary occupation of urban land acquired before 1998.
Proof of Custom — Customary Land Tenure — Onus and Expert Opinion
A party asserting customary tenure bears the onus of proving the relevant custom by evidence, including expert opinion under section 46 of the Evidence Act; mere carrying out of activities on land for a long period, without proof of the custom recognised by the class of persons in the area, does not establish customary tenure.
Bona Fide Occupant — Protection of Unregistered Interest
A bona fide occupant in possession of land holds an unregistered interest entitled to recognition and priority, and is entitled to a first option of any lease; that interest cannot lawfully be defeated by allocating the land to another without first hearing the occupant.
Registration of Titles — Fraud — Defeating a Known Unregistered Interest
Procuring registration of a certificate of title in order to defeat a known unregistered interest amounts to fraud; such a title is not obtained lawfully and is defeasible and liable to cancellation under sections 64 and 176 of the Registration of Titles Act.
Natural Justice — Statutory Land Allocation — Right to be Heard
Where a District Land Board allocates occupied land without giving the occupants a hearing, the allocation is made in breach of the principles of natural justice; a decision reached in the absence of or in departure from those essential principles is no decision at all.
Framing of Issues — Failure to Frame Issue — When Not Fatal
Failure to frame a specific issue, such as fraud, is not fatal where the matter was pleaded with particulars, the parties knew the real question between them, evidence was taken on it, and the court considered it.
General Damages — Appellate Interference with an Award
An appellate court may interfere with an award of general damages only where the award is inordinately high or low so as to represent an entirely erroneous estimate, or where the trial judge proceeded on a wrong principle or misapprehended the evidence in a material respect.

Legislation cited (21)

  • Public Land Act 1969 s.24(1)(a)
  • Public Land Act 1969 s.24(5)
  • Public Land Act 1969 s.54
  • Public Land (Restriction of Customary Tenure) Order 1969 (SI 103/1969)
  • Land Reform Decree 1975 s.5(1)
  • Land Reform Decree 1975 s.5(2)
  • Land Reform Regulations 1976
  • Land Act 1998 s.1(1)
  • Land Act 1998 s.2
  • Land Act 1998 s.3
  • Land Act 1998 s.29(4)
  • Land Act 1998 s.59(1)(a)
  • Registration of Titles Act s.59
  • Registration of Titles Act s.64
  • Registration of Titles Act s.136
  • Registration of Titles Act s.176
  • Registration of Titles Act s.178
  • Evidence Act Cap 6 s.46
  • Constitution of Uganda 1995 Article 241(1)(a)
  • Local Governments (Rating) Act Cap 242
  • Land Regulations 2001 (SI 16/2001)

Cases cited (13)

  • Tifu Lukwago v Samwiri Mudde Kizza and Justina Nabitaka (Civil Appeal No. 13 of 1996)
  • Paul Kisekka Ssaku v Seventh Day Adventist (Civil Appeal No. 8 of 1993)
  • Marko Matovu and 2 others v Mohammed Sseviiri and 2 others (Civil Appeal No. 7 of 1978)
  • R v Ndembera s/o Mwandawale (1947) 14 EACA 85
  • Kampala District Land Board and Another v National Housing and Construction Corporation (Civil Appeal No. 2 of 2004)
  • Ernest Kinyanjui Kimani v Muira Gikanga [1965] EA 735
  • General Medical Council v Spackman (1943) 2 All ER 337
  • Kampala Bottlers Ltd v Damanico Ltd (Civil Appeal No. 22 of 1992)
  • Sajjaka Nalima v Rebecca Musoke (Civil Appeal No. 2 of 1985)
  • Uganda Posts and Telecommunications v Lutaaya (Civil Appeal No. 36 of 1995)
  • Katarakawe v Katwiremu (1977) HCB 187
  • Norman Overseas Motor Transport (Tanganyika) Ltd (1959) EA 131
  • Byabalema and 2 Others v UTC (1975) Ltd (Civil Appeal No. 10 of 1993)
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