Wakilii

Aloysius Kakande v Attorney General and Others (Civil Suit No. 125 of 2018 and 22 of 2021)

High Court · [2024] UGHC 1283 · 2024 Judgment for Plaintiff AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance consolidated civil suits for declaration of ownership and cancellation of competing land titles
Decision
Judgment entered in favour of the plaintiff; 5th defendant's title cancelled; 4th and 5th defendants evicted from overlapping portions; cadastral sheet ordered to be reconstructed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

The High Court held that the plaintiff lawfully acquired and was properly registered on Gomba Block 138 Plots 2, 4 and 5; that the 4th defendant's registration on Plot 8 was lawful but the plot was wrongly positioned and overlapped Plot 2; that the 5th defendant's registration on Plot 9 was unlawful and obtained fraudulently; that Plots 8 and 9 do overlap the plaintiff's land; and that the Commissioner for Land Registration acted unlawfully in cancelling Plot 4 and 5 registrations without court order. The court declared the plaintiff the lawful owner, ordered cancellation of the 5th defendant's title, reconstruction of cadastral sheets, and eviction of both 4th and 5th defendants from overlapping portions.

Outcome

Judgment entered in favour of the plaintiff; 5th defendant's title cancelled; 4th and 5th defendants evicted from overlapping portions; cadastral sheet ordered to be reconstructed

Facts

The plaintiff purchased 900 acres from Edward Nsimbi in 1980, confirmed by a 1984 court decree ordering transfer, and 750 acres from Nelson Edmond Nkalubo Sebugwawo in 1986. Both parcels were subdivided from Block 138 Plot 1 (2030 acres co-owned by Nsimbi and Nkalubo) and registered as Plots 2, 4 and 5 in 1986. In 2000, administrators of Nsimbi's estate wrongly surveyed 1280 acres as Plot 7, which was cancelled in 2007. Subsequently, the same administrators obtained registration for Plot 8 (380 acres) in 2014, which they sold to the 4th defendant. The 5th defendant, claiming to act under power of attorney from Nkalubo, obtained registration for Plot 9 (446 acres) in 2015. The Commissioner for Land Registration cancelled the plaintiff's Plots 4 and 5 in 2019 based on fraud allegations. Survey evidence established that Plots 8 and 9 overlapped the plaintiff's registered land.

Issues

  1. Whether the plaintiff lawfully obtained the suit land comprised in Gomba Block 138 Plot 2, 4 and 5 Luzira.
  2. Whether the registration of the plaintiff on land comprised in Gomba Block 138 Plot 2, 4 and 5 was lawful.
  3. Whether the registration of the 4th Defendant as registered proprietor of land comprised in Gomba Block 138 Plot 8 was lawful.
  4. Whether the registration of the 5th Defendant as registered proprietor of land comprised in Block 138 Plot 9 was lawful.
  5. Whether land comprised in Gomba Block 138 Plot 8 and 9 overlaps land comprised in Gomba Block 138 Plot 2, 4 and 5.
  6. What remedies are available to the parties.

Orders

  • Declaration that the plaintiff is the lawful owner of land comprised in Gomba Block 138 Plot 2, 4 and 5 at Luzira Estate.
  • The 2nd defendant (Commissioner Land Registration) is ordered to reconstruct the cadastral sheet to restore plot 2 with 900 acres and the subsequent plots 3, 4, 5, 6 and 8.
  • The 2nd defendant is ordered to cancel the certificate of title of the 5th Defendant as registered proprietor of land comprised in Gomba Block 138 Plot 9.
  • The 4th and 5th Defendants are ordered to surrender to the 2nd Defendant the duplicate certificates of title for land comprised in Gomba Block 138 Plots 8 and 9 for rectification of the Register Book within 60 days of this judgement.
  • Eviction order issued against the 4th defendant from the portion of plot 8 that overlaps into plot 2 on block 138 land at Gomba.
  • Eviction order against the 5th Defendant from the plaintiff's land.
  • Permanent injunction issued to restrain the 5th and 6th Defendants, their agents, servants or persons acting on their behalf from trespassing on, or claiming any interest in plots 4 and 5 block 138 land.
  • The plaintiff is awarded UGX 80,000,000 as general damages payable by the 5th and 6th Defendants, jointly and severally.
  • The costs of the suit shall be paid jointly and severally by the 1st, 5th and 6th Defendants.

Rules and key headnotes

Judgments in Rem — Binding Effect on Third Parties
A judgment in rem which settles the ownership of land is conclusive not only on the parties to it but also on all persons interested in the property, and it is not open to subsequent courts to revisit that determination unless the judgment is set aside.
Ancient Documents — Presumption of Authenticity
Under Section 90 of the Evidence Act, where a document is more than 30 years old and has been in proper custody, the court may presume that the signature and every other part of the document is in the handwriting of the person it purports to be, and that it was duly executed or attested, absent reliable evidence to the contrary.
Expert Evidence — Handwriting Reports — Need for Cross-Examination
A forensic handwriting expert report is insufficient evidence on its own unless the expert is called as a witness and subjected to cross-examination; mere submission of the report without the expert's attendance diminishes its evidential value and the court cannot rely on it to determine forgery.
Constructive Notice — Duty of Inquiry — Fraud
A purchaser who fails to make proper inquiry about persons in physical possession of land is deemed to have constructive notice of their interest, and this constructive notice constitutes fraud in equity sufficient to defeat the purchaser's claim to indefeasibility of title.
Power of Attorney — Scope of Authority — Transfer of Land
A power of attorney which authorises the attorney to manage and execute matters relating to specified properties does not confer authority to transfer those properties into the attorney's own name; where a transferee relies on a power of attorney that does not list the disputed land, the transferee has no valid root of title.
Pleading Fraud — Sufficient Particulars Without Using the Word 'Fraud'
Where a plaintiff sets down a catalogue of allegations in the plaint which clearly point to the defendant's dishonest state of mind, it is not fatal that the plaintiff does not specifically employ the word 'fraud' provided the facts pleaded are sufficient to create an inference of fraud and give the defendant adequate notice of the case to meet.
Powers of Commissioner for Land Registration — Cancellation of Title for Fraud
The Commissioner for Land Registration has no power to cancel a certificate of title and rectify the Register Book upon allegations of fraud; that power is vested exclusively in the High Court, and any cancellation by the Commissioner on grounds of fraud is unlawful.

Legislation cited (14)

Cases cited (19)

  • Aloysius Kakande v Edward Nsimbi (High Court Civil Suit No. 889 of 1982)
  • George William Katerega v Commissioner Land Registration and Others (Miscellaneous Application No. 347 of 2015)
  • Mansukhala J Ramji Karia and Another v Attorney General (Supreme Court Civil Appeal No. 20 of 2002)
  • Adrabo Stanley v Madira Jimmy (Civil Suit No. 0024 of 2013)
  • Wandera Stephen v Good Man Agencies and 2 Others (High Court Miscellaneous Application No. 680 of 2021)
  • William Kasozi v DFCU Bank Ltd (High Court Civil Suit No. 1326 of 2000)
  • Iwa Richard Okeny v Obol George Okot (High Court Miscellaneous Application No. 63 of 2012)
  • Lalwak Alex v Opio Mark (Civil Appeal No. 078 of 2018)
  • KCB Bank Uganda v Paul Alinda (High Court Civil Appeal No. 37 of 2018)
  • Sir John Bageire v Ausi Matovu (Court of Appeal Civil Appeal No. 7 of 1996)
  • Jimmy Tumwine v Frank Nkurunziza and Another (High Court Civil Suit No. 479 of 2002)
  • Omar Salim Mukasa v Hajji Mohammed and Another (Court of Appeal Civil Appeal No. 114 of 2003)
  • Auma Lillian v David Livingstone Lakony (Civil Appeal No. 0012 of 2019)
  • Joseph Kaye Musisi Tooli v Kulubya Luuka (High Court Civil Suit No. 688 of 2007)
  • Kampala Bottlers v Damanico (U) Ltd (Supreme Court Civil Appeal No. 22 of 1992)
  • Bugingo Wilfred v Willy Jagwe and Others (High Court Civil Suit No. 359 of 2014)
  • Hilda Wilson Namusoke and 3 Others v Owalla's Home Investment Trust (E.A) Limited (Supreme Court Civil Appeal No. 15 of 2017)
  • Fam International Ltd and Another v Mohamed Hamid El-Fatih (Supreme Court Civil Appeal No. 16 of 1993)
  • David Nalima v Rebecca Musoke (Court of Appeal Civil Appeal No. 12 of 1985)

Full judgment

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Aloysius Kakande v Attorney General and Others (Civil Suit No. 125 of 2018 and 22 of 2021) [2024] UGHC 1283 (25 September 2024)
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.