Wakilii

Kasendwa v Gabura & 4 Others (Civil Suit 40 of 2021)

High Court · [2024] UGHC 1184 · 2024 Judgment for Plaintiff AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for trespass, fraud, and declaration of ownership
Decision
Judgment entered in favour of the plaintiff with declarations of ownership, permanent injunction, eviction and demolition orders, and general damages. Plaintiff offered an alternative buyout arrangement to occupants willing to negotiate.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court held that a registered proprietor who acquired mailo land subject to bibanja rights and entered into an arrangement with some bibanja owners to surrender their interests in exchange for certificates of title retains lawful ownership of the remaining plots. The sale of portions of the land by a former bibanja owner without the plaintiff's consent as landlord constituted fraud and trespass, entitling the plaintiff to declarations of ownership, a permanent injunction, eviction orders, and general damages.

Outcome

Judgment entered in favour of the plaintiff with declarations of ownership, permanent injunction, eviction and demolition orders, and general damages. Plaintiff offered an alternative buyout arrangement to occupants willing to negotiate.

Facts

In 2017, the plaintiff purchased approximately 8 acres of mailo land (Block 269 Plot 118) from Kato Wilson, subject to the equitable interests of several bibanja occupants. The plaintiff subdivided the land into multiple plots. He entered into arrangements with some bibanja owners whereby they forfeited portions of their bibanja in exchange for certificates of title to specific plots under the Land Act. The 1st defendant received title to Plot 126 and acknowledged receipt on 11 December 2017. Three bibanja owners retained their portions without interference. In mid-April 2020, the plaintiff discovered that the defendants had erected structures, demarcated the land into small pieces with boundary marks, and created roads on portions of the suit land. The 1st defendant had subdivided and sold portions of the land to the other defendants without the plaintiff's consent or involvement, despite being aware that the plaintiff held the registered interest in the remaining plots.

Issues

  1. Whether the defendants are trespassers on the suit property
  2. Whether the defendants acted fraudulently to acquire the suit property
  3. Whether the plaintiff is the lawful owner of the suit property
  4. What are the available remedies to the parties

Orders

  • Declaration that the plaintiff is the lawful and rightful owner of the suit land comprised in Block 269 plots 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141 and 142 all situate at Mawokota measuring approximately 8 acres.
  • Declaration that the defendants fraudulently claimed ownership of the suit land and interfered with the plaintiff's possessory rights.
  • Declaration that the defendants are trespassers on the suit land comprised in Block 269 Plots 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141 and 142.
  • Permanent injunction issued against the defendants, their servants, workmen, agents, representatives or any other person claiming under their authority from trespassing, dealing, alienating, interfering with the possession and occupation of the suit property.
  • Cancellation of all illegal agreements conferring ownership entered between the 1st, 2nd, 3rd, 4th and 5th defendants and any other person not known to the plaintiff at the time of instituting this suit.
  • Eviction and demolition of all illegal structures erected on the suit land by the defendants without the plaintiff's authority or consent.
  • Removal of all illegal demarcation boundaries planted by the defendants without any authority on the suit land.
  • Award of UGX 5,000,000 in general damages.
  • Costs of the suit awarded to the plaintiff.
  • In the alternative, parties willing to purchase the plaintiff's legal interest may enter into negotiations to obtain title upon completion of payment.

Rules and key headnotes

Land & Property — Mailo Land — Bibanja Rights — Registered Proprietor — Conclusive Evidence of Ownership
Under section 59 of the Registration of Titles Act, possession of a certificate of title by a registered proprietor is conclusive evidence of ownership of the land described therein, and no certificate of title issued upon an application to bring land under the Act shall be impeached by reason of any informality or irregularity in the application or previous proceedings.
Tort Law — Trespass to Land — Elements — Unauthorized Entry and Interference
Trespass to land occurs when a person makes an unauthorized entry upon land and thereby interferes with another person's lawful possession of that land. The ingredients of trespass are: entering upon the land in possession of another, remaining upon such land, or placing any material object upon it, in each case without lawful justification.
Land & Property — Mailo Land — Bibanja Surrender Arrangements — Effect on Landlord's Rights
Where a mailo landlord acquires land subject to bibanja rights and enters into an arrangement with bibanja owners to surrender their interests in exchange for certificates of title to designated plots, the landlord retains lawful ownership and possessory rights over the remaining plots not transferred under the arrangement.
Land & Property — Dealings in Land — Landlord's Consent — Section 34(3) Land Act
Under section 34(3) of the Land Act, a former bibanja owner who received a certificate of title under an arrangement with the registered landlord has no right to sell portions of the landlord's remaining land without obtaining the landlord's consent. Such dealings are fraudulent and amount to fraud where done with intent to defeat the landlord's registered interest.
Land & Property — Fraud — Actual Fraud or Dishonesty — Nemo Dat Principle
Fraud denotes actual fraud or some act of dishonesty. A person who has no title to land cannot pass good title to another. Where a defendant with knowledge of the plaintiff's registered interest in land purports to sell that land to third parties without the plaintiff's consent or involvement, such acts are fraudulent and intended to defeat the plaintiff's interest.
Evidence — Burden of Proof — Civil Proceedings — Balance of Probabilities
Under sections 101 and 103 of the Evidence Act, the burden of proof in civil suits lies on the party who alleges the facts, namely the plaintiff. In civil cases, the plaintiff must prove their case on the balance of probabilities.

Legislation cited (5)

Cases cited (10)

  • Sebuliba v Co-operative Bank Ltd [1982] HCB 129
  • Nsubuga v Kavuma [1978] HCB 307
  • John W Katende v The Uganda Commission (Civil Suit No. 573 of 2017)
  • Onega and Another v Attorney General and Another (HCCS No. 006 of 2002)
  • Justine E M N Lutaaya v Stirling Civil Engineering Company (Civil Appeal No. 11 of 2002)
  • Kampala Bottlers Ltd v Domanico (U) Ltd (SCCA No. 22 of 1992)
  • Waimiha Saw Milling Co Ltd v Waione Timber Co Ltd [1926] AC 101
  • Assets Co v Mere Roihi [1905] AC 176
  • David Sejjaka v Rebecca Musoke (CA No. 12 of 1985)
  • Kampala District Land Board and George Mitala v Venansio Bamweyana (Civil Suit No. 2 of 2007)

Full judgment

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

Kasendwa v Gabura & 4 Others (Civil Suit 40 of 2021) [2024] UGHC 1184 (9 September 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.