Wakilii

Balaba & Ors v Kagaba & Ors (Civil Suit No. 1417 of 1999)

High Court · [2015] UGHCLD 25 · 2015 Judgment for Plaintiff AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit in the Land Division for cancellation of certificate of title and declaration of lawful ownership
Decision
Plaintiffs declared lawful owners of the suit land. Defendants' certificate of title cancelled. Counterclaim dismissed.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the defendants' title was obtained through fraud and is therefore invalid notwithstanding registration earlier in time. The plaintiffs (Kebikomi group) occupied the suit land from 1974 after government allocation, applied for it, and were granted a lease. The defendants (Sehene group) applied for the same land in 1978 knowing it was occupied by the plaintiffs and obtained registration through fraudulent manipulation of survey records by crossing out Kebikomi's names in the survey book. Fraud invalidates a title under Section 64 of the Registration of Titles Act. The defendants' certificate of title was cancelled and the plaintiffs declared lawful owners of the land. The counterclaim was dismissed as the tort of trespass is a continuing tort and not time-barred under the Limitation Act.

Outcome

Plaintiffs declared lawful owners of the suit land. Defendants' certificate of title cancelled. Counterclaim dismissed.

Facts

In 1973, the Kebikomi group (including the 1st plaintiff) applied to register land they occupied at Kisendwe in Luwero District. Their application was approved in 1974 and they were granted a lease offer. The land was then taken over by the Uganda Army. Government allocated them alternative land at Kyanamuwanga in Buwana parish, Ngoma sub-county. They settled there in 1974 with their cattle, applied for the new location in November 1974, and commenced surveying. During the survey in 1975, surveyors of the Sehene group from neighbouring Wakyato sub-county crossed into part of the allocated land. The matter was reported to the parish chief and referred to the District Commissioner, who investigated and resolved the dispute in favour of Kebikomi group. Sehene group was ordered to leave in 1977. Kebikomi group completed their survey and was granted a five-year lease in 1978. Meanwhile, in June 1978, Sehene group applied for the same land despite the DC's earlier order. Their application was approved on 14 June 1978 and they obtained a lease offer on 28 June 1978. During the Luwero Triangle war in the 1980s, both parties left the land. Kebikomi group returned in 1986, renewed their application in 1987, and were granted a 44-year lease in 1998. In 1999, when the 1st plaintiff sought to subdivide the land, he was notified that another title existed in Sehene group's names. The plaintiffs instituted this suit alleging fraud.

Issues

  1. Which of the two titles held by the parties is valid?
  2. Whether any of the parties committed fraud.
  3. What are the remedies available to the parties?
  4. Whether the counterclaim is time barred.

Orders

  • The plaintiffs are declared the lawful owners of land comprised in Plot 4 Bulemezi Block 919 land at Kyanamuwanga, Bulemezi.
  • The defendants' certificate of title for land comprised in Plot 4 Bulemezi part of Block 919 is hereby cancelled.
  • The defendants' counterclaim is dismissed with costs.
  • The plaintiffs are awarded costs of the suit.

Rules and key headnotes

Land Registration — Fraud — Obtaining title to land in occupation of another
A person who obtains a certificate of title over land knowing that it is in occupation of another commits fraud and the title so obtained is invalid notwithstanding that it was registered earlier in time.
Land Registration — Fraud — Effect on priority of titles under Registration of Titles Act s.64
Under Section 64 of the Registration of Titles Act, fraud is an exception to the general rule that the proprietor holds land absolutely free from all other encumbrances except a prior registered certificate of title. Fraud invalidates a certificate of title regardless of priority of registration.
Land Registration — Survey as basis of title — Fraudulent substitution of names
The survey is the basis of a title and the inviolability of a certificate of title under the Registration of Titles Act is hinged on a survey that determines and delimits the land to which the certificate relates. Where names in a survey book are fraudulently crossed out and replaced with other names, and the substituted party obtains title based on that survey, the title is invalid for lack of nexus between the survey and the registered proprietor.
Land Registration — Fraud — Standard of proof
Fraud must be proved strictly. The burden of proof is heavier than the balance of probabilities required in ordinary civil cases, but not so heavy as to require proof beyond reasonable doubt.
Limitation of Actions — Trespass as continuing tort — Limitation Act s.5
Trespass to land is a continuing tort. Where trespass is continuous, the person with the right to sue may exercise that right at any time during the tort's continuance or after it has ended. In a counterclaim alleging continuing trespass, the cause of action accrues throughout the period of occupation and the action is not time-barred under Section 5 of the Limitation Act.
Burden of Proof — Negative allegation — Evidence Act s.101, s.102, s.103
The burden of proof lies on the party who asserts the affirmative of the issue in dispute. Where a party makes a negative allegation but adduces no evidence to support it, the burden does not shift to the opponent to disprove it. The party asserting the negative bears the burden of proving the existence of the facts alleged unless a specific law shifts that burden.
Credibility — Contradictory and inconsistent evidence — Rejection of witness testimony
Evidence that is grossly tainted with grave contradictions or inconsistencies that are not satisfactorily explained may be rejected. Even evidence tainted with minor contradictions or inconsistencies that point to deliberate falsehood may also be rejected.

Legislation cited (21)

Cases cited (17)

  • Justine E.M.N Lutaya v Sterling Civil Engineering Company Ltd (Supreme Court Civil Appeal No. 11 of 2002)
  • Alfred Tajar v Uganda (East African Court of Appeal Criminal Appeal No. 167 of 1969)
  • Kampala Bottlers Ltd v Damanico Ltd (Supreme Court Civil Appeal No. 22 of 1992)
  • Sejjaka Nalima v Rebecca Musoke (Supreme Court Civil Appeal No. 2 of 1985)
  • UP&TC v Lutaaya (Supreme Court Civil Appeal No. 36 of 1995)
  • UP&TC v Abraham Kitumba Peter Mulangira Lutaaya (Supreme Court Civil Appeal No. 36 of 1995)
  • Kampala District Land Board & Anor v Venansio Babweyaka & 3 Ors (Supreme Court Civil Appeal No. 02 of 2007)
  • Kampala District Land Board & Anor v National Housing & Construction Co. Ltd (Supreme Court Civil Appeal No. 02 of 2004)
  • Fr. Narsensio Begumisa & Ors v Eric Tibebaga (Supreme Court Civil Appeal No. 17 of 2002)
  • J.W.R. Kazzora v M.L.S. Rukuba (Supreme Court Civil Appeal No. 13 of 1992)
  • Dr. Vincent Karuhanga t/a Friends Polyclinic v National Insurance Corporation & Uganda Revenue Authority (High Court Civil Suit No. 617 of 2002)
  • Takiya Kaswahili & Anor v Kajungu Denis (Court of Appeal Civil Appeal No. 85 of 2011)
  • Annet Zimbiha v Attorney General (High Court Civil Suit No. 109 of 2011)
  • James Fredrick Nsubuga v Attorney General (High Court Civil Suit No. 13 of 1993)
  • Jennifer Rwanyindo Aurelia & Anor v School Outfitters (U) Ltd (Court of Appeal Civil Appeal No. 53 of 1999)
  • National Pharmacy Ltd v Kampala City Council [1979] HCB 25
  • Makula International v His Eminence Cardinal Nsubuga (Court of Appeal Civil Appeal No. 4 of 1981)

Full judgment

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Balaba & Ors Vs Kagaba & Ors (Civil Suit No. 1417 of 1999) [2015] UGHCLD 25 (20 August 2015)
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.