Wakilii

Bazalirwaki and 2 Others v Kiiza and 2 Others (HCT-01-CV-LD 118 of 2020)

High Court · [2024] UGHC 142 · 2024 Judgment for Plaintiff AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for cancellation of title, declarations of ownership, eviction, and damages arising from alleged fraudulent registration
Decision
Title to Plot 3, Block 76 Bunyangabu cancelled; plaintiff declared owner of his portion (237.339 acres); 1st defendant ordered to vacate within one month; permanent injunction granted; general damages and costs awarded to plaintiff

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Holding

The High Court held that the 1st defendant fraudulently procured the registration of land comprised in Block 76, Plot 3 by including himself, the plaintiff, the late Musa Bumali, and the 2nd defendant as co-owners when the land actually belonged to the plaintiff and Musa Bumali separately. The plaintiff and Musa Bumali, both illiterate, entrusted the 1st defendant to survey and title their separate portions, but the 1st defendant exploited their trust to register the land in four names. The court cancelled the fraudulent title, declared the plaintiff owner of his portion, and awarded general damages of UGX 20,000,000.

Outcome

Title to Plot 3, Block 76 Bunyangabu cancelled; plaintiff declared owner of his portion (237.339 acres); 1st defendant ordered to vacate within one month; permanent injunction granted; general damages and costs awarded to plaintiff

Facts

In 1967, the plaintiff and his friend Musa Bumali, both illiterate cattle farmers, jointly acquired vacant land in Bunyangabu. They later divided the land into two portions, planted boundary markers, and each family grazed cattle on their respective portions. The 1st defendant was the plaintiff's son, aged about 14 at the time of sharing. In or around 1980, the plaintiff asked the 1st defendant to arrange for survey and titling of his land in the plaintiff's name. Musa Bumali made the same request for his own separate portion. The 1st defendant brought documents in English to the illiterate plaintiff and Musa Bumali for signature. In 2020, the plaintiff received a letter from the 1st defendant's lawyers seeking to subdivide the land into four equal parts. A search revealed that the land had been registered in 1986 in the names of the plaintiff, the 1st defendant, Musa Bumali, and the 2nd defendant (Asuman Bumali, son of Musa Bumali) as tenants in common in equal shares. The plaintiff called a meeting where the 1st defendant apologized, but subsequently the 1st defendant grazed his cattle on the plaintiff's portion and trespassed on the land, prompting the plaintiff to file suit for cancellation of the fraudulent title, declarations of ownership, and damages.

Issues

  1. Who owns the suit land?
  2. Whether the 1st and 2nd defendants were fraudulently registered as co-owners of the suit land with the plaintiff and Musa Bumali.
  3. Whether the 1st defendant's title to the suit land is indefeasible.
  4. What remedies are available to the parties?

Orders

  • The suit land partly comprised in Plot 3, Block 76 Bunyangabu belongs to the plaintiff.
  • The 1st and 2nd defendants were fraudulently registered as co-owners with the plaintiff and Musa Bumali in respect of land comprised in Plot 3, Block 76 Bunyangabu.
  • An order doth issue for cancellation of the title in Bunyangabu Block 76, Plot 3.
  • The status-quo that prevailed prior to the registration of the title in Bunyangabu Block 76, Plot 3 being that the family of Musa Bumali occupied 72.691 acres while the family of the plaintiff occupied 237.339 acres as shown on the sketch plan shall be maintained.
  • The 1st defendant is a trespasser on the suit land.
  • An order doth issue for the 1st defendant to vacate the suit land within one month from the date of delivery of this judgment, in default of which, an eviction order against the 1st defendant hereby issued shall be executed.
  • An order for permanent injunction doth issue against the 1st and 2nd defendants, their agents or any person claiming title under them from conducting any transaction and activities on the plaintiff's land.
  • The plaintiff is awarded general damages of UGX 20,000,000 to be paid by the 1st defendant.
  • Interest is awarded on general damages at 20% per annum from the date of delivery of this judgment till payment in full.
  • The costs of the suit are awarded to the plaintiff.

Rules and key headnotes

Land Registration — Fraud — Exploitation of Illiteracy — Registration of Title in Names of Multiple Persons Contrary to Instructions
Where an illiterate landowner entrusts a literate person to survey and register land in the illiterate's name alone, but the literate person registers the land in multiple names including his own, such registration constitutes fraud under the Registration of Titles Act and the title is liable to cancellation.
Indefeasibility of Title — Exception for Fraud — Burden and Standard of Proof
A registered proprietor holds an indefeasible title under Section 59 of the Registration of Titles Act, but this indefeasibility is subject to exceptions including fraud under sections 64, 77, 136, and 176. The party alleging fraud bears the burden of proving it to a standard higher than balance of probabilities, though not beyond reasonable doubt as in criminal cases. Fraud must be attributable to the registered proprietor or his agents.
Definition of Fraud in Land Transactions — False Representation and Suppression of Truth
Fraud in land transactions means an intentional perversion of truth for the purpose of inducing another to part with property or a legal right. It includes false representation, suppression of truth, dishonest dealings, and sharp practices to get advantage over another, and encompasses all surprise, trick, cunning, and any unfair way by which another is cheated.
Illiterates Protection Act — Duty to Verify Understanding and Identity of Translator
Under Section 2 of the Illiterates Protection Act, a person who writes a document on behalf of an illiterate or who writes the name of an illiterate bears the duty to prove that the illiterate understood the contents of the document. Under Section 3, such person must verify the document by writing his or her full name and address as the translator.
Land Registration — Minors Cannot Acquire Land Jointly with Adults as Co-Owners
There is no credible basis for a claim that an adult and a minor child jointly acquired land as co-owners where the evidence shows the land was acquired by two adult friends who later divided it, and the purported minor co-owners were the children of the adult acquirers and were minors under their care at the time of acquisition.
General Damages — Assessment — Land Fraud and Trespass
General damages are such damages as the law presumes to be the natural or probable consequence of the defendant's act. They arise by inference of law and need not be specifically pleaded or proved by evidence. Where a defendant fraudulently registers land in multiple names contrary to the plaintiff's instructions and subsequently trespasses on the plaintiff's land, an award of general damages is justified.

Legislation cited (9)

Cases cited (19)

  • Kamo Enterprises Ltd v Krytalline Salt Limited (Supreme Court Civil Appeal No. 8 of 2018)
  • Stanbic Bank Uganda Ltd v Ssenyonjo Moses and Another (Court of Appeal Civil Appeal No. 147 of 2015)
  • Frederick Zaabwe v Orient Bank (Supreme Court Civil Appeal No. 4 of 2006)
  • Justine EMN Lutaaya v Sterling Civil Engineering Company (Supreme Court Civil Appeal No. 11 of 2002)
  • Kyenjojo District Local Government v Sunday Clovis (HCT-01-CV-CS-No. 032 of 2010)
  • Loum Kennedy v Obwoma Charles (Civil Suit No. 021 of 2016)
  • John Katarikawe v. William Katwiremu& A' nor [1977] HCB 187
  • Olinda De Souza v. Kasamali Manji [1962] EA 756
  • Kampala District Land Board and Another v Venansio Babweyaka and Others (Court of Appeal Civil Appeal No. 2 of 2007)
  • Musisi v Grindlays Bank (U) Ltd & others [1983] HCB 39
  • Kampala Bottlers Ltd v Damanico (Court of Appeal Civil Appeal No. 11 of 1992)
  • Sebuliba v. Cooperative bank Limited [1987] HCB 130
  • M. Kibalya v. Kibalya [1994-95] HCB 80
  • Kampala Bottlers Ltd v Damanico Ltd (Supreme Court Civil Appeal No. 22 of 1992)
  • Sejjaaka Nalima v Rebecca Musoke (Supreme Court Civil Appeal No. 2 of 1985)
  • Uganda Posts and Telecommunications v AKPM Lutaaya (Supreme Court Civil Appeal No. 36 of 1995)
  • Waimiha Saw Milling Co. Ltd v. Waione Timber Co. Ltd (1926) A.C 101
  • Haji Asumani Mutekanga vs. Equator Growers Ltd
  • Kyadok Hardware Ltd v Kwik Building Contractors (Civil Suit No. 40 of 2014)

Full judgment

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

Bazalirwaki and 2 Others v Kiiza and 2 Others (HCT-01-CV-LD 118 of 2020) [2024] UGHC 142 (5 April 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.