Wakilii

Kasedde v Wambedde & Ors (Civil Suit No. 459 of 1998)

High Court · [2004] UGHC 56 · 2004 Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for trespass, eviction and recovery of possession of land
Decision
Second and fifth defendants ordered evicted and to remove illegal structures; third and fourth defendants found to be lawful occupants; suit dismissed against first defendant

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the second and fifth defendants occupied the land illegally without lawfully acquiring customary tenure and were trespassers liable to eviction. The third and fourth defendants lawfully acquired customary holdings by gift inter vivos and purchase respectively under the Land Reform Decree 1975 and were not trespassers. Failure to give notice under section 4(1) of the Land Reform Decree was a curable irregularity that did not vitiate a transfer where the prescribed authority was not clearly established. Against the first defendant, the plaintiff failed to prove trespass.

Outcome

Second and fifth defendants ordered evicted and to remove illegal structures; third and fourth defendants found to be lawful occupants; suit dismissed against first defendant

Facts

The plaintiff, registered proprietor of land comprised in Kibuga Block 11 Plot 325 at Ndeeba since 1971, sued five defendants for trespass. The plaintiff alleged that in 1990 the defendants trespassed by erecting illegal structures on his land without consent. Each defendant claimed to occupy a separate plot acquired under different circumstances. The second defendant claimed he acquired a portion of land from his brother but produced no evidence of a valid transfer. The third defendant testified he acquired his plot by gift from his father in 1977, with developments on the land, and commenced construction in 1981 unimpeded. The fourth defendant bought his plot in 1993 from Robbina Tereza, who had acquired it from another vendor, paying consideration for a plot with crops. The fifth defendant claimed to have bought a plot in 1993 from Tereza Namutebi but gave contradictory testimony and produced an agreement in different names; no developments existed on the plot at transfer. The first defendant did not attend trial and no structure belonging to him was identified on the land.

Issues

  1. Whether the defendants are lawful or bonafide occupants of the suit land.
  2. If not, whether the defendants are trespassers on the suit land.
  3. What remedies are available to the parties, if any?

Orders

  • Judgment entered for the plaintiff against the second defendant (Efulaimu Ssevume) and fifth defendant (Emmanuel Kasule) separately.
  • Second defendant, his servants, workmen and employees to vacate or be evicted from the plaintiff's land (Plot 325) at Nsiike Ndeeba and remove his illegal structures or the same be demolished.
  • Fifth defendant, his servants, workmen and employees to vacate or be evicted from the plaintiff's land (Plot 325) at Nsiike Ndeeba and remove his illegal structures or the same be demolished.
  • Second and fifth defendants, severally, and/or their respective servants permanently restrained from entering, occupying, cultivating or erecting structures on the plaintiff's land comprised in Plot 325.
  • General damages in the amount of UGX 1,000,000 awarded against the second defendant for trespass.
  • General damages in the amount of UGX 3,000,000 awarded against the fifth defendant for trespass.
  • Second and fifth defendants to pay costs of the suit to the plaintiff in equal (50%) shares.
  • Plaintiff's suit against the third defendant (Moses Mugattansi), fourth defendant (Siraje Semwogerere), and first defendant (Emanuel Wambedde) dismissed.
  • Plaintiff to pay costs to the first, third and fourth defendants jointly.

Rules and key headnotes

Land Law — Customary Tenure — Acquisition under Land Reform Decree 1975 — Transfer by Gift Inter Vivos
Under section 4(1) of the Land Reform Decree 1975, a holder of customary tenure on public land may transfer such tenure by sale or gift inter vivos, but the transfer vests title in the transferee only to the improvements or developments carried out on the land, not the land itself.
Land Law — Customary Tenure — Notice Requirement — Curable Irregularity
Failure to give three months' notice to the prescribed authority before transferring a customary tenure under section 4(1) of the Land Reform Decree 1975 is a curable irregularity that does not vitiate the transaction, particularly where the law did not clearly spell out the prescribed authority for customary tenancies at the material time.
Land Law — Effect of Land Reform Decree 1975 — Abolition of Landlord Consent Requirement
The Land Reform Decree 1975 abolished the Busuulu and Envujjo Law 1928 and the requirement for a mailo landowner's consent for creation of customary tenancies. After the Decree, customary tenures continued on public land without the customary rights and obligations previously requiring landlord consent, and the practice of introduction and giving a kanzu was no longer a legal requirement.
Land Law — Unlawful Transfer — Purported Sale of Vacant Land as Title
Where a purported transfer of customary tenure involves a vacant plot devoid of developments and the transferor purports to transfer the customary tenure as if it were actual title to land itself, such transaction contravenes sections 4(1) and 4(2) of the Land Reform Decree 1975 and is void and of no effect.
Trespass to Land — General Damages — Nominal Award
In an action for trespass to land, a plaintiff who proves the trespass is entitled to recover damages even if no actual loss is suffered. Where no evidence is led concerning the market rental value of the land trespassed upon, the plaintiff is entitled to nominal general damages assessed according to the nature and extent of occupation by each trespasser.
Mesne Profits — Burden of Proof — Rental Value
A claim for mesne profits requires proof of wrongful possession and requires the plaintiff to aver in pleadings and prove the annual or rental value of the premises. Where a plaintiff fails to plead or adduce evidence of the rental value of land, the claim for mesne profits fails.
Evidence — Burden of Proof — Lawful Acquisition of Land
A defendant asserting lawful acquisition of a customary holding bears the burden of proving compliance with the law governing such acquisition at the material time, including evidence of valid transfer of developments where acquisition was by purchase or gift inter vivos.

Legislation cited (12)

  • Busuulu and Envujjo Law 1928 s.8
  • Land Reform Decree 1975 (No.3 of 1975) s.3
  • Land Reform Decree 1975 s.4
  • Land Reform Decree 1975 s.5
  • Land Reform Decree 1975 s.6
  • Land Reform Decree 1975 s.16
  • Land Reform Regulations 1976 (S.I. No.26 of 1976) Regulation 1
  • Land Reform Regulations 1976 Regulation 3
  • Land Reform Regulations 1976 Regulation 8
  • Land Reform Regulations 1976 Regulation 14
  • Public Lands Act
  • Civil Procedure Act s.2

Cases cited (9)

  • Muluta Joseph v Katama Sylvano (Civil Appeal No. 11 of 1999)
  • Tifu Lukwago v Samwiri Mudde Kizza & Another (Civil Appeal No. 13 of 1996)
  • Paul Kisekka Saku v Seventh Day Adventist Church Association of Uganda (Civil Appeal No. 8 of 1993)
  • Yekoyasi Mulindwa v Attorney General (1985) HCB 70
  • Paul Kalule v Losira Nanozi (1974) HCB 202
  • ARMSTRONG V. SHEPPHERD and SHORT [1959] 2 Q.B. 384
  • MC Phail V. Persons, names Unknown (1973) 3 All. E.R. 393 (CA)
  • ELLIOTT V. BOYNTON (1924) Ich. 236 (CA)
  • CLIFTON SECURIITES, Ltd V. HUNTLEY AND OTHERS (1948) 2 ALL. E.R. 283

Full judgment

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Kasedde v Wambedde & Ors (Civil Suit No. 459 of 1998) [2004] UGHC 56 (30 April 2004)
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.