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Kampala District Land Board and Another v Venansio Babweyaka and Others [2008] UGSC 3

Supreme Court · 2008 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second appeal to the Supreme Court from a judgment of the Court of Appeal in a land dispute
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 not proved occupation by customary tenure, as no evidence established a recognised custom and the witnesses' testimony was contradictory; that ground of appeal succeeded. However, the respondents were bona fide occupants under Section 29 of the Land Act, having derived their interest from predecessors in possession since 1970. The suit land was therefore not available for leasing without first offering it to them, and the 2nd appellant obtained title fraudulently by deliberately sidelining the occupants in breach of natural justice. The award of general damages was undisturbed. The appeal substantially failed and was dismissed with costs.

Facts

The respondents had occupied a piece of land at Ndeeba, Kampala (Block 7 Plot 1028), operating timber yard and garage businesses on temporary structures. They derived their interest from predecessors who had occupied the land since about 1970 and had been in continuous, unchallenged possession. On 31 October 1999 the 1st appellant, the statutory owner, allocated the land to the 2nd appellant, who obtained a certificate of title on 20 November 2000 without consulting the occupants. Surveyors sent to the land deceived the respondents that they were looking for water pipes, and compensation cheques were prepared before the respondents were heard. The respondents sued, claiming to be bona fide or lawful occupants and/or customary owners. After protracted litigation including an earlier Supreme Court-ordered retrial, the High Court found the respondents to be lawful occupants (not customary tenants), cancelled the 2nd appellant's title, and awarded each respondent general damages. The Court of Appeal dismissed the appellants' appeal and allowed the respondents' cross-appeal, finding them customary owners.

Issues

  1. Whether the respondents were customary owners or tenants of the suit land.
  2. Whether the suit land was available for leasing and whether the allocation to the 2nd appellant was lawful.
  3. Whether the 2nd appellant obtained the certificate of title fraudulently.
  4. Whether the award of general damages to the respondents should be upheld.

Orders

  • Appeal dismissed with costs in this Court and in the courts below.
  • The cancellation of the 2nd appellant's certificate of title is upheld.
  • The award of general damages of shs.6,000,000/= to each respondent is upheld.

Key headnotes

Land & Property — Customary Tenure — Proof of Custom in Urban Areas
A claimant asserting customary tenure must prove the existence of a recognised custom regulated by a particular class of persons in the area; mere long occupation and the carrying out of business activities on the land, without evidence of the governing custom, does not establish customary tenure.
Land & Property — Customary Tenure — Statutory Prohibition in Urban Areas
Customary tenure in urban areas was prohibited by Section 24(1)(a) of the Public Land Act 1969 and Section 5(1) of the Land Reform Decree 1975, and the Land Act 1998 does not operate retrospectively to legalise customary occupation of urban land acquired before its enactment.
Evidence — Proof of Customary Law — Expert Opinion
Where African customary law is neither well known nor documented, it must be proved by evidence, ordinarily expert opinion under Section 46 of the Evidence Act, and the onus lies on the party who relies on it; the court may not supply the custom from its own knowledge.
Land & Property — Bona Fide Occupant — Security of Tenure
A person, or a purchaser of such person's interest, who occupied and utilised land unchallenged by the registered owner for twelve years or more before the 1995 Constitution is a bona fide occupant under Section 29 of the Land Act with security of tenure, and such land cannot be leased to a third party without first offering it to the bona fide occupant.
Land & Property — Registration of Title — Fraud — Defeating Unregistered Interest
Procuring registration of a certificate of title in order to defeat a known unregistered interest, accompanied by a wrongful intention and a breach of the principles of natural justice in failing to hear the occupants, amounts to fraud rendering the title defeasible under Sections 64 and 176 of the Registration of Titles Act.
Damages & Quantum — Appellate Interference — General Damages
An appellate court may interfere with an award of general damages only where it is so inordinately high or low as to represent an entirely erroneous estimate, or where the trial judge proceeded on a wrong principle or misapprehended the evidence.

Legislation cited (29)

  • Public Land Act 1969 s.24
  • Public Land Act 1969 s.24(1)(a)
  • Public Land Act 1969 s.24(5)
  • Public Land Act 1969 s.54
  • Land Reform Decree 1975 s.5
  • Land Reform Decree 1975 s.5(1)
  • Land Reform Decree 1975 s.5(2)
  • Land Act 1998 s.1(1)
  • Land Act 1998 s.2
  • Land Act 1998 s.3
  • Land Act 1998 s.29(2)
  • Land Act 1998 s.29(4)
  • Land Act 1998 s.29(5)
  • Land Act 1998 s.31(1)
  • Land Act 1998 s.33(1)
  • Land Act 1998 s.38
  • Land Act 1998 s.59(1)(a)
  • Evidence Act Cap 6 s.46
  • 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
  • Constitution of Uganda 1995 Article 237(8)
  • Constitution of Uganda 1995 Article 241(1)(a)
  • Local Governments (Rating) Act Cap 242
  • Busuulu and Envujjo Law 1928
  • Land Regulations 2001 (SI 16/2001)
  • Land Reform Regulations 1976

Cases cited (13)

  • Tifu Lukwago v Samwiri Mudde Kizza and Nabitaka (Civil Appeal No. 13 of 1996)
  • Paul Kisekka Ssaku v Seventh Day Adventist Church (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
  • Norman Overseas Motor Transport (Tanganyika) Ltd (1959) EA 131
  • 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
  • Byabalema and 2 Others v UTC (1975) Ltd (Civil Appeal No. 10 of 1993)
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.