Wakilii

Bulesa and 3 Others v Nakitto and Another (Civil Suit No. 274 of 2016)

High Court · [2021] UGHCLD 169 · 2021 Judgment for Plaintiffs AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for declarations of ownership, cancellation of fraudulent title, and eviction
Decision
Judgment for plaintiffs with declaration of ownership and cancellation of fraudulent title; 1st defendant declared bonafide occupant of half an acre

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that the plaintiffs, as administrators of the estate of the late Kapere Atenyi Nviri, are the rightful owners of the suit land comprised in Busiro Block 383 plots 37 and 38. The registration of Anna Nambi on plot 38 and the issuance of the certificate of title were fraudulent, based on a forged instrument. The 1st defendant was found privy to the fraud through her actions in securing probate and attempting registration. However, the 1st defendant was declared a bonafide occupant of half an acre under the Land Act.

Outcome

Judgment for plaintiffs with declaration of ownership and cancellation of fraudulent title; 1st defendant declared bonafide occupant of half an acre

Facts

The plaintiffs are administrators of the estate of the late Kapere Atenyi Nviri, who purchased land formerly described as F.C. No. 8848 Busiro (later Block 383 plot 14, measuring approximately 29.7 acres). Kapere died in 1931 before registration, but his son Sebastian Yiga was registered following a 1944 Lukiiko letter. In 2015, the plaintiffs discovered the land had been subdivided into plots 36, 37, and 38, with plot 38 registered to Anna Nambi (the 1st defendant's great-grandmother) on 21 September 1943 under Instrument No. 59804. The 1st defendant obtained probate in 2015 to administer Anna Nambi's estate and applied to be registered as proprietor on plot 38. Investigation revealed that Instrument No. 59804 was a forgery, having been previously used for a different title issued to Anna Tumutendereze in 1933. The 1st defendant had been in occupation of the land since 1982 following her mother Tereza Nanziri, who held a kibanja. The 1st defendant's actions were motivated by seeking compensation from UNRA for the Entebbe Expressway project passing through the land.

Issues

  1. Whether the Plaintiffs have a cause of action against the Defendants.
  2. Whether the 1st Defendant/counterclaimant has a cause of action against the Plaintiffs/counter defendants.
  3. Who is the rightful owner of the suit land described as Busiro Block 383 plots 37 and 38 land at Lumuli.
  4. What remedies are available to the parties.

Orders

  • Declared that the suit land comprised in Busiro Block 383 plots 37 and 38 formerly plot 14 at Lumuli form part of the estate of the late Kapere Atenyi Nviri.
  • Declared that the Plaintiffs as Administrators of the estate of the late Kapere Atenyi Nviri are the rightful owners of the suit land.
  • Declared that the registration of Anna Nambi on the suit land and issuance of the Certificate of title for Busiro Block 383 plot 38 was fraudulent.
  • Ordered the 2nd Defendant to cancel Anna Nambi's names on the Certificate of title and replace it with the Plaintiffs' names as Administrators of the estate of the late Kapere Atenyi Nviri.
  • Issued a permanent injunction restraining the Defendants, their servants, agents from registering the 1st Defendant as an Administrator of the suit land, transferring, subdividing, alienating, and or in any way dealing with the suit land Busiro Block 383 plot 38.
  • Dismissed the entire counterclaim save for declaring the 1st Defendant to be a bonafide occupant of ½ acre of land on Busiro Block 383 plot 38 at Lumuli.
  • Each party to bear his or her own costs.

Rules and key headnotes

Civil Procedure — Cause of Action — Elements Required
For a plaint to disclose a cause of action, the plaintiff must show that they enjoyed a right, that the right has been violated, and that the defendant is liable for the violation.
Civil Procedure — Declaratory Orders — Availability Despite Absence of Legal Cause of Action
A suit for declaratory orders cannot be defeated on the ground that the plaintiff allegedly does not have a legal cause of action.
Evidence — Fraud — Definition and Standard of Proof
Fraud is an intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing or to surrender a legal right. The standard of proof in an allegation of fraud is much higher than the standard of proof on a balance of probabilities generally applied in ordinary civil suits.
Evidence — Fraud — Attribution to Transferee
Fraud must be attributable to the transferee either directly or by necessary implication. The transferee must be guilty of some fraudulent act or must have known of such act by somebody else or taken advantage of such act.
Land & Property — Fraud — Privy to Fraudulent Transaction
A person becomes privy to a fraudulent transaction either by being an active participant in its perpetration by action or omission, or when having acquired knowledge of its perpetration by others or third parties knowingly and willfully seeks to take benefit from it.
Land & Property — Forged Certificate of Title — Effect on Proprietary Rights
A forged certificate of title confers no proprietary rights to either the registered proprietor thereon or their successors by will and beneficiaries of the estate.
Land & Property — Bonafide Occupancy — Status Under Land Act
A person who has been in unchallenged occupation of land since the 1980s without evidence of being a licensee may be declared a bonafide occupant under Section 29(2)(a) of the Land Act 1998, and as such cannot be a trespasser.

Legislation cited (3)

Cases cited (10)

  • Auto Garage v Motokov (No. 3) [1973] EA 514
  • Sikuku Agaitano v Uganda Baati Ltd (High Court Civil Suit No. 298 of 2012)
  • Attorney General v Oluoch [1972] EA 392
  • Sullivan v Mohammed Osman [1959] EA 239
  • Guaranty Trust Co of New York v Hannay & Co Ltd [1915] 2 KB 536
  • Fredrick J K Zaabwe v Orient Bank Ltd and Others (Supreme Court Civil Appeal No. 4 of 2006)
  • JWR Kazoora v MKS Rukuba [1994-95] HCB 58
  • Kampala Bottlers Ltd v Damanico (U) Ltd (Supreme Court Civil Appeal No. 22 of 1992)
  • Magbwi v MTN Ltd and Another (High Court Civil Appeal No. 27 of 2012)
  • Alex Agandiru v Etoma Francis and Others (Arua High Court Civil Suit No. 7 of 2011)

Full judgment

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

Bulesa_and_3_Others_v_Nakitto_and_Another_(Civil_Suit_No._274_of_2016)_[2021]_UGHCLD_169_(19_January_2021)
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.