Wakilii

Bagenda and Another v Ssenyonga (Civil Suit 755 of 2016)

High Court · [2023] UGHCLD 284 · 2023 Judgment for Plaintiffs AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for recovery of land, declaration of ownership, and eviction
Decision
Defendant declared a trespasser and ordered to vacate within 3 months, failing which eviction will follow. Damages and costs awarded to plaintiffs.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the first plaintiff is the lawful registered owner of the suit property. A kibanja transaction without the consent of the registered owner is null and void under Land Act s.34(9). The defendant failed to prove that the alleged seller of the kibanja had title to pass, and failed to prove consent from the registered owner. The defendant is a trespasser and must be evicted. The plaintiffs are entitled to special damages, mesne profits, general damages, punitive damages, and costs.

Outcome

Defendant declared a trespasser and ordered to vacate within 3 months, failing which eviction will follow. Damages and costs awarded to plaintiffs.

Facts

The 1st plaintiff purchased land comprised in Kyadondo Block 111 Plot 1434 at Lubata from Faith Mbabazi for Ushs 85,000,000, paying Ushs 30,000,000 cash and obtaining a mortgage of Ushs 55,000,000 from the 2nd plaintiff. The 1st plaintiff was registered as owner on 24 July 2015. On 16 September 2016, the defendant entered the property, evicted tenants, and took possession. The defendant claimed he purchased a kibanja interest from Agnes Kabaziba on 13 July 2016 for Ushs 50,000,000, and that Kabaziba had acquired it from Mbabazi on 23 June 2015. Mbabazi denied selling to Kabaziba. The defendant failed to produce the alleged sale agreement between Mbabazi and Kabaziba, and Kabaziba did not testify. The defendant did not obtain consent from the registered owner for the kibanja transaction.

Issues

  1. Who is the rightful owner of the suit property?
  2. Whether or not the defendant is a trespasser on the suit property?
  3. What are the remedies available to the parties?

Orders

  • The 1st plaintiff, Kasim Bagenda, is the lawful registered owner of the suit property comprised in Kyadondo Block 111 Plot 1434 at Lubata measuring 0.0390 Hectares.
  • The defendant, Ssenyonga Ronald, is a trespasser on the suit property.
  • The defendant shall vacate the suit property within 3 months from the date of this judgment, in default of which, he shall be evicted in accordance with The Constitution (Land Evictions) (Practice) Directions, 2021.
  • A permanent injunction issues restraining the defendant, his agents, servants, workmen and all those claiming under him from trespassing, encroaching, interfering and/or in any way dealing with the suit land.
  • The defendant shall pay special damages of Ushs 580,000 to the 1st plaintiff.
  • The defendant shall pay mesne profits of Ushs 46,480,000 to the 1st plaintiff.
  • The defendant shall pay general damages of Ushs 20,000,000 to the 1st plaintiff.
  • The defendant shall pay punitive damages of Ushs 10,000,000 to the 1st plaintiff.
  • The defendant shall pay punitive damages of Ushs 10,000,000 to the 2nd plaintiff.
  • The defendant shall pay costs of the suit to the 1st and 2nd plaintiffs.

Rules and key headnotes

Land & Property — Registered Title — Certificate of Title as Conclusive Evidence of Ownership
A certificate of title issued under the Registration of Titles Act is conclusive evidence that the person named as proprietor is seized or possessed of the estate or interest described, and production of the certificate is sufficient proof of ownership unless the case falls within section 184 of the Act.
Land & Property — Kibanja Tenure — Definition and Characteristics
A kibanja is a form of land holding subject to Baganda customs and traditions, characterised by user rights and ownership of developments on land in perpetuity, subject to payment of annual rent (busuulu) and correct social behaviour, distinct from ownership of the land itself.
Land & Property — Kibanja Tenure — Requirement of Landlord's Consent for Valid Transfer
Under Land Act sections 34(3) and 34(9), no transaction for the assignment or transfer of a kibanja is valid to pass any interest in land if undertaken without the consent of the registered owner of the land. The requirement of consent is mandatory.
Land & Property — Transfer of Title — Nemo Dat Quod Non Habet Principle
The principle nemo dat quod non habet (no one can give what they do not have) applies to land transactions. A person who has not acquired valid title to a kibanja cannot transfer that interest to another.
Civil Procedure — Burden of Proof — Shifting of Evidential Burden
When a party adduces evidence sufficient to raise a presumption that what he asserts is true, the burden of proof shifts to the opponent to adduce evidence to rebut the presumption.
Damages & Quantum — Mesne Profits — Liability for Wrongful Possession
Mesne profits are a mode of compensation claimable against a person in unlawful possession of property. Such person is liable to pay a reasonable sum for the wrongful possession, calculated as the profits actually received or which might with ordinary diligence have been received, together with interest, but excluding profits due to improvements made by the wrongful possessor.
Damages & Quantum — Punitive Damages — Award for High-Handed Conduct
Punitive damages may be awarded to punish, deter, and express the court's outrage at a defendant's malicious, vindictive, oppressive or high-handed conduct, such as unlawfully and forcefully taking possession of property without proof of ownership.

Legislation cited (15)

Cases cited (11)

  • Senkungu & 4 Others v Mukasa (Civil Appeal No. 17 of 2014)
  • Kampala Bottlers Ltd v Damanico (U) Ltd (Civil Appeal No. 22 of 1992)
  • Greenland Bank (In Liquidation) v Ssekiziyivu (Civil Suit No. 501 of 2001)
  • J.K Patel v Spear Motors Limited (Civil Appeal No. 4 of 1991)
  • Owembabazi Enid v Guarantee Trust Bank Limited (Civil Suit No. 63 of 2019)
  • Jennifer Nsubuga v Michael Mukundane & Another (Civil Appeal No. 208 of 2018)
  • Justine E. M. N. Lutaya v Stirling Civil Engineering Company Ltd (Civil Appeal No. 11 of 2002)
  • Haji Asuman Mutekanga v Equator Growers (U) Ltd (Civil Appeal No. 7 of 1995)
  • Inverugie Investments Ltd v. Hackett [1995] 1 WLR 713
  • Kibimba Rice Ltd v Umar Salim (Civil Appeal No. 17 of 1992)
  • Ahmed El Termewy v Hassan Awdi & Others (Civil Suit No. 95 of 2012)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Bagenda_and_Another_v_Ssenyonga_(Civil_Suit_755_of_2016)_[2023]_UGHCLD_284_(13_September_2023)
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.