Wakilii

Bukenya v Mugenyi & 2 Ors (Civil Suit No. 259 of 2010)

High Court · [2014] UGHCLD 115 · 2014 Counterclaim Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for declaration of ownership dismissed for want of prosecution; counter claim by 2nd defendant heard exparte
Decision
Counter claimant granted eviction order, permanent injunction, and general damages; plaintiff's suit having been earlier dismissed for want of prosecution

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Where a registered proprietor mortgages land and defaults on the loan, and the mortgagee exercises its right to foreclose and sells the land to a bona fide purchaser for value who completes registration, the original proprietor loses all interest in the land. The purchaser, as new registered proprietor, is entitled to eviction orders and general damages for interference with possession. Special damages and mesne profits must be strictly proved and cannot succeed on pleadings alone.

Outcome

Counter claimant granted eviction order, permanent injunction, and general damages; plaintiff's suit having been earlier dismissed for want of prosecution

Facts

The plaintiff mortgaged land comprised in Kibuga Block 13 Plot 1068 Najjanankumbi to the 3rd defendant (Global Credit Management Co. Ltd) as security for a loan of UGX 42,000,000. The plaintiff defaulted on the loan. The 3rd defendant served demand and statutory notices, then advertised the land for sale in the Daily Monitor. The 2nd defendant (Kakooza Charles) saw the advertisement through brokers, conducted a search at the land registry, inspected the land with the 1st defendant (managing director of the 3rd defendant), and found it vacant. The 2nd defendant purchased the land and was registered as proprietor. He took possession by erecting a fence. The plaintiff and persons in military uniform acting on his instructions forcefully evicted the 2nd defendant, confiscated building materials, and blocked access. The plaintiff then filed suit claiming ownership and alleging fraudulent sale. The plaintiff failed to prosecute the suit and it was dismissed on 2 October 2012. The 2nd defendant's counterclaim proceeded exparte as the plaintiff did not appear or file a reply.

Issues

  1. Whether the counter claimant is the rightful owner of the suit land
  2. Whether the plaintiff/counter defendant has interest in the suit land
  3. Whether the counter claimant is entitled to the remedies sought

Orders

  • Counter claim allowed.
  • Eviction order issued against the plaintiff/counter defendant and his agents from the suit land.
  • Permanent injunction granted restraining the plaintiff/counter defendant, his agents and/or servants from any further or future interference with the counter claimant's possession and quiet enjoyment of Block 13 Plot 1068, Najjanankumbi.
  • General damages awarded in the sum of UGX 25,000,000.
  • Special damages claim dismissed for failure to strictly prove.
  • Mesne profits claim dismissed for failure to prove.
  • Counter claimant awarded costs of the dismissed suit and counterclaim.

Rules and key headnotes

Land & Property — Indefeasibility of Title — Effect of Registration under Registration of Titles Act s.59
A certificate of title issued under the Registration of Titles Act is conclusive evidence that the person named as proprietor is possessed of that estate or interest, and is prima facie indefeasible except where registration was obtained through fraud or another person holds a previously registered certificate.
Land & Property — Mortgage Foreclosure — Loss of Mortgagor's Interest on Valid Sale
Where a mortgagor defaults and the mortgagee lawfully exercises the right to foreclose and sells the mortgaged property to a bona fide purchaser for value who completes registration, the original proprietor ceases to have any interest in the land.
Evidence — Burden of Proof — Shifting of Burden on Uncontroverted Evidence
Where a party adduces cogent and uncontroverted evidence in support of their claim, the evidential burden shifts to the opposing party to adduce credible evidence in rebuttal. Failure to do so results in the presumption that the averments are admitted as true.
Evidence — Burden of Proof — Ownership of Property in Possession
Where a person is shown to be in possession of property, the burden of proving that they are not the owner rests on the person who asserts that they are not the owner.
Damages & Quantum — Special Damages — Strict Proof Required
Special damages must be strictly pleaded and proved. Mere enumeration of losses without supporting documentary or other evidence is insufficient to satisfy the standard of proof required by law.
Damages & Quantum — Mesne Profits — Requirement of Formal Proof
A claimant for mesne profits must formally prove the claim by showing how the proposed entitlement was calculated. A claim for loss of rent cannot succeed on assertion alone without evidence of the rental value.

Legislation cited (4)

Cases cited (9)

  • Lawrence Kitts v Bugisu Co-operative Union (SCCA No. 15 of 2004)
  • Dr. Vincent Karuhanga T/A Friends Poly Clinic v NIC and URA [2008] HCB 151
  • Justine E.M.N. Lutaya v Stirling Civil Engineering Company Ltd (SCCA No. 11 of 2002)
  • Lugazi Progressive School and Immaculate Matuta v Serunjogi and Others (HC Mbarara Civil Revision Order No. 0006 of 2001)
  • DCB Vs Iga Bukenya t/a Ney Mars Wave House Misc. App. No.26/92
  • Abednego Absolom Ongom v Amos Kaheru (1995) III KALR 7
  • Dr. Denis Lwamafa v Attorney General (CS No. 79 of 1983) [1992] KALR 21
  • Eric John Watanta v Bugisu District Administration [1975] EA 164
  • Edward Rurangaranga v Mbarara Municipal Council and Others (SCCA No. 10 of 1996) [1997] KALR 138

Full judgment

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

Bukenya v Mugenyi & 2 Ors (Civil Suit No. 259 of 2010) [2014] UGHCLD 115 (18 August 2014)
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.