Wakilii

Achieng and 2 Others v Nkubi and Another (Civil Suit No. 497 of 2011)

High Court · [2022] UGHCLD 125 · 2022 Counterclaim Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit dismissed for want of prosecution; hearing proceeded on counterclaim by defendants seeking declaration of ownership, eviction, and injunction
Decision
Counterclaim partly allowed. Counter plaintiffs (Muslim Community) declared entitled to 60% of the suit land. Counter defendants recognised as bona fide occupants entitled to 40% of the suit land. Independent survey ordered to demarcate respective portions. Separate certificate of title to be created for counter defendants' 40% share.

Observed later treatment

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Holding

The court held that the Muslim Community validly acquired registered title to the suit land through a gift inter vivos from the late Semairi Kumenteta in 1938. The counter defendants failed to prove fraud or unlawful acquisition. However, the court recognised the counter defendants as bona fide occupants entitled to 40% of the disputed land under Land Act s.29, having occupied portions as a kibanja inherited from the late Zeverio Lupol. The court ordered an independent survey to demarcate the 40% entitlement for the counter defendants and 60% for the Muslim Community.

Outcome

Counterclaim partly allowed. Counter plaintiffs (Muslim Community) declared entitled to 60% of the suit land. Counter defendants recognised as bona fide occupants entitled to 40% of the suit land. Independent survey ordered to demarcate respective portions. Separate certificate of title to be created for counter defendants' 40% share.

Facts

The plaintiffs filed suit in 2015 but it was dismissed for want of prosecution. The court proceeded with the defendants' counterclaim. The 2nd counter plaintiff, the Registered Trustees of Nakasongola Muslim Community, claimed ownership of land at Buruli Block 776, Plot 2, Sabagabo, Kyalubanga, Nakasongola district, measuring 25 acres. The 1st counter plaintiff, Ali Nkubi, testified that his late father Semairi Kumenteta, the original registered proprietor, had gifted the land to the Muslim Community in 1938 and built the first mosque thereon. Ali Nkubi obtained title as administrator of his father's estate in 2005 and transferred it to the Muslim Community. The counter defendants claimed they were children and descendants of the late Zeverio Lupol, who allegedly purchased a kibanja on the same land from one Adam Boda in 1943. They claimed to have occupied the land for over 60 years, using it for residence, cultivation, brick-making, and burial. The counter defendants produced a purported sale agreement dated 12 June 1943 but none of the witnesses could authenticate it. The court conducted a locus visit and observed scattered homesteads, graves, crops, an unfinished school structure, and the mosque on the disputed land.

Issues

  1. Whether the 2nd counter plaintiffs' acquisition of the suit land from the 1st counter plaintiffs was unlawful.
  2. Whether the counter defendants are trespassers on the suit land.
  3. Whether the counter plaintiffs are entitled to the reliefs sought.

Orders

  • An independent survey shall be conducted by the office of Nakasongola district staff surveyor to determine the actual size occupied by the children (including the estates of the deceased children) of the late Zeverio Lupol. The findings of the surveyor in his report shall be binding onto the parties.
  • Any portion of land which is occupied by squatters or other persons who are not children of the late Zeverio Lupol shall revert to the land belonging to the Muslim Community.
  • In conducting the survey, the area currently occupied and utilized by the mosque shall, together with the unutilized portions of the land, including the area where the unfinished structure is located, form part of the land owned by the Muslim Community.
  • The children of the late Zeverio Lupol are bona fide occupants of part of the suit land and their equitable interest is determined to be only 40%, estimated to have been the land initially acquired and occupied as the kibanja of the late Zeverio Lupol and subsequently inherited by his children.
  • The survey report, in calculating the 40% entitlement, shall take into consideration the portions of land currently used and occupied by the seven beneficiaries for their residences, portions of land used for cultivation by the children and for burial for their dead; and any portion of land disposed of by them to third parties and family members who are not entitled to obtain any share out the estate of the late Lupol.
  • The 40% share out of the disputed area shall entitle the children of the late Lupol as joint owners, to a separate certificate of title to be created out of Buruli, Block 776, plot 2, land at Sabagabo, Kyalubanga, Nakasongola district.
  • The counter plaintiffs are entitled to recover from the counter defendants 60% of the land in dispute calculated to include the unutilized portions of land.
  • The 1st and 3rd counter defendants in the counterclaim shall only be entitled to a share out of the estate of the children of the late Zeverio Lupol under whom they respectively claim.
  • The parties shall jointly meet the costs of the survey.
  • Each side to meet their own costs of this counterclaim.
  • For the avoidance of doubt, the counter defendants shall meet the costs of the dismissed suit.

Rules and key headnotes

Gift Inter Vivos — Requirements for Valid Gift — Intention, Delivery, and Acceptance
A gift inter vivos takes effect where there is intention to give the gift, the donor delivers the property, and the donee accepts the gift.
Certificate of Title — Conclusiveness — Protection of Registered Proprietor
Under section 59 of the Registration of Titles Act, a certificate of title is conclusive evidence of ownership and serves as an absolute bar and estoppel to an action of ejectment or recovery of land. A registered proprietor is protected from ejection save where fraud is proved against such owner under section 176(c).
Fraud — Standard of Proof — Pleading and Proving Fraud
An allegation of fraud against a registered proprietor is grave and vitiates a land title. Fraud must be strictly pleaded and proved beyond the balance of probabilities. Fraud means an act of dishonesty, intentional perversion of truth for purposes of inducing another in reliance upon it to part with some valuable thing or to surrender a legal right.
Bona Fide Occupants — Definition and Protection under Land Act
Under section 29(2) of the Land Act, a bona fide occupant is a person who before the coming into force of the Constitution had occupied and utilised or developed any land unchallenged by the registered owner or agent of the registered owner for 12 years. Section 29(5) provides that any person who has purchased or otherwise acquired the interest of a person qualified to be a bona fide occupant shall be taken to be a bona fide occupant for the purposes of the Act.
Change of Ownership — Protection of Existing Lawful Interests
Under section 35(8) of the Land Act, a change of ownership of title effected by sale, grant, succession, or otherwise shall not in any way affect the existing lawful interests of a bona fide occupant. The new owner is obliged to respect the existing interest.
Trespass to Land — Elements — Unauthorized Entry and Interference with Lawful Possession
Trespass to land is a continuous tort which cannot be affected by the Limitation Act or the Land Act. It occurs when a person makes an unauthorized entry upon land and thereby interferes or portends to interfere with another person's lawful possession of that land. To succeed in an action for trespass, one must prove that the disputed land belonged to him, that the defendant entered upon it, and that the entry was unlawful in that it was made without permission or that the defendant had no claim, right, or interest in the disputed land.
Subdivision and Co-ownership — Mutual Agreement between Registered Owner and Tenant by Occupancy
Under section 36 of the Land Act, a registered owner and a tenant by occupancy are entitled to mutually agree that the land in which the tenant by occupancy has an interest be subdivided in such portions as the parties may agree, with each party having exclusive occupancy or ownership of such portions as may be agreed; or that the parties become joint proprietors of the land either as joint tenants or as tenants in common.

Legislation cited (10)

Cases cited (12)

  • George William Kakoma v Attorney General [2010] HCB 1
  • Sebuliba v Cooperative Bank Ltd [1982] HCB 130
  • Okethi v Attorney General (Civil Suit No. 0069 of 2004)
  • Nyorah Nassozi and Another v George William Kalule (HCT-CA No. 5 of 2012)
  • F J K Zaabwe v Orient Bank and 5 Others (Supreme Court Civil Appeal No. 4 of 2006)
  • Kampala Bottlers Ltd. Vs Damanico (U) Ltd (supra)
  • Okot Latigo v Okema Jakeo Akech (Civil Suit No. 20 of 2004)
  • George Kasede Mukasa v Emmanuel Wabende and Others (Civil Suit No. 459 of 1998)
  • Kampala District Land Board and George Mutale v Venansio Babweqala and Others (Supreme Court Civil Appeal No. 2 of 2002)
  • Kampala District Land Board and Another v National Housing and Construction Corporation (Civil Appeal No. 2 of 2004)
  • Shekh Muhammad v Kitala Enterprises Ltd (Court of Appeal No. 4 of 1987)
  • Justin Lutaya v Sterling Civil Engineering Company (Supreme Court Civil Appeal No. 11 of 2002)

Full judgment

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Achieng_and_2_Others_v_Nkubi_and_Another_(Civil_Suit_No._497_of_2011)_[2022]_UGHCLD_125_(6_June_2022)
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.