Wakilii

Kasedde Mukasa v Wambedde and Others (Civil Appeal No. 30 of 2008)

Court of Appeal · [2015] UGCA 2045 · 2015 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from High Court judgment in trespass suit concerning mailo land
Decision
First respondent declared trespasser and evicted; second and third respondents declared bona fide occupants with security of tenure

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal held that the first respondent was a trespasser who failed to prove lawful occupancy, but the second and third respondents were bona fide occupants protected by Article 237(8) of the Constitution. Although customary tenure was prohibited in urban areas under the Public Lands Act 1969, occupants who had been in lawful occupation for over 12 years before the 1995 Constitution acquired security of occupancy and could not be treated as trespassers.

Outcome

First respondent declared trespasser and evicted; second and third respondents declared bona fide occupants with security of tenure

Facts

In 1998, the appellant, registered proprietor of mailo land at Kibuga Block 11 Plot 325 in Ndeeba, sued five defendants for trespass, claiming they had illegally occupied his land since 1990. The High Court found for the plaintiff against the second and fifth defendants but dismissed the suit against the first, third, and fourth defendants. The second respondent claimed he acquired a Kibanja from his father in 1977 and had been in occupation since then, constructing buildings between 1987 and 1993. The third respondent claimed he acquired his Kibanja from Robina Tereza. The first respondent filed a joint written statement of defence claiming lawful occupancy but did not testify or call witnesses at trial. The land was located in an urban area (Kampala) at all material times.

Issues

  1. Whether the learned trial judge properly evaluated the evidence in determining that the respondents were not trespassers on the suit land.
  2. Whether the respondents' alleged customary tenancies were prohibited under the Public Lands Act in an urban area.
  3. Whether the learned trial judge erred in finding a landlord-tenant relationship after the respondents denied the appellant's title.
  4. Whether the agreements of sale between vendors and respondents were lawful and valid.
  5. Whether the appellant was entitled to all the reliefs sought in the suit.

Orders

  • The second and third respondents are bona fide occupants on the suit land, Kibuga Block 11 Plot 325.
  • The first respondent is a trespasser on the suit land, Kibuga Block 11 Plot 325.
  • An order of eviction against the first respondent is issued to the appellant.
  • The first respondent shall pay to the appellant UGX 5,000,000 as general damages for trespass.
  • A permanent injunction is issued against the first respondent restraining him from trespassing on the suit land.
  • The appeal is dismissed against the second and third respondents.
  • The first respondent shall pay two-thirds of the costs of this appeal.
  • The appellant shall pay one-third of the costs of this appeal to the second and third respondents.

Rules and key headnotes

Burden of Proof — Registered Proprietor — Trespass — Evidential Burden Shift
Where a plaintiff establishes that he is the registered proprietor of land under Section 58 of the Registration of Titles Act, this is conclusive evidence of ownership and the evidential burden shifts to defendants claiming lawful occupancy to prove the legality of their occupation.
Customary Tenure — Urban Areas — Public Lands Act 1969 — Prohibition
Section 24(1)(a) of the Public Lands Act 1969 prohibited customary tenure in urban areas. Persons who occupied land in urban areas after the coming into force of that Act could not acquire customary tenure.
Customary Tenure — Proof — Requirements
To establish customary tenure, an occupant must adduce evidence showing under what kind of custom or practice they occupied the land and whether that custom had been recognized and regulated by a particular group or class of persons living in the area.
Land Rights — Article 237(8) — Security of Occupancy — Bona Fide Occupants
Article 237(8) of the Constitution of Uganda 1995 gave protection in the form of security of occupancy to lawful or bona fide occupants of mailo land, freehold, leasehold, and public lands. This protection did not reinstate customary tenancies in urban areas but prevented such occupants from being treated as trespassers.
Bona Fide Occupants — Definition — Land Act Section 29(2)
Under Section 29(2) of the Land Act, a bona fide occupant is a person who before the coming into force of the Constitution had occupied and utilized or developed any land unchallenged by the registered owner or agent for twelve years or more, or had been settled on land by the Government or its agent.
Bona Fide Occupants — Security of Tenure — Rights
A bona fide occupant has security of tenure and is not a trespasser. A bona fide occupant may apply for a certificate of occupancy under Section 33(1) of the Land Act or for a lease under Section 38, and may accept compensation for developments on the land upon surrendering their interest by mutual agreement.
Pleadings — Evidence — Facts Not Pleaded
A party cannot adduce evidence on facts that have not been pleaded. Where a defendant claims lawful occupancy without providing facts upon which the claim is based, this puts the plaintiff at a disadvantage and the court ought to reject evidence on unpleaded facts unless no objection is raised and the opposing party cross-examines on those facts.

Legislation cited (9)

Cases cited (4)

  • Muluta Joseph v Silajano Katama (Supreme Court Civil Appeal No. 11 of 1999)
  • Fr. Narcensio Begumisa & Others v Eric Tibebaaga (Supreme Court Civil Appeal No. 17 of 2002)
  • Kampala District Land Board v Venansio Babwegaka and 3 Others (Supreme Court Civil Appeal No. 2 of 2007)
  • Kampala District Land Board and Chemical Distributors v National Housing and Construction Corporation (Supreme Court Civil Appeal No. 2 of 2004)

Full judgment

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

Kasedde Mukasa v Wambedde and Others (Civil Appeal No. 30 of 2008) [2015] UGCA 2045 (3 December 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.