Wakilii

Kiteme v Twesigye and Others (Civil Suit 2212 of 2016)

High Court · [2023] UGHCLD 138 · 2023 Judgment for Plaintiff AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for declaration of trespass, cancellation of certificate of title, and permanent injunction
Decision
Plaintiff's suit against 1st defendant succeeded. 1st defendant's certificate of title cancelled. Permanent injunction granted. Suit against 2nd and 3rd defendants dismissed.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that where two certificates of title exist for the same parcel of land, the first registered legal interest takes priority. The plaintiff, registered in 1999, had priority over the 1st defendant registered in 2007. The 1st defendant's certificate of title was fraudulently obtained and must be cancelled. The 1st defendant was a trespasser. The 2nd defendant mortgagee was not liable as they conducted a proper search and were unaware of the fraud. General damages of UGX 20,000,000 awarded to the plaintiff.

Outcome

Plaintiff's suit against 1st defendant succeeded. 1st defendant's certificate of title cancelled. Permanent injunction granted. Suit against 2nd and 3rd defendants dismissed.

Facts

The plaintiff was registered proprietor of land at Kilinya (Plot 1320) since 1999. She purchased the land in 1988 and began constructing rental units in 2002. In 2015, the plaintiff discovered that the 1st defendant had mortgaged the same land to the 2nd defendant using a different certificate of title (Plot 310) registered in 2007. The 1st defendant defaulted on the loan and the 2nd defendant advertised the property for sale. Both certificates of title were verified as authentic by the Commissioner for Land Registration, creating a double titling scenario. The 1st defendant claimed to have purchased the land in 2006 from Mpooya Seith for UGX 50 million but never took possession despite rental units being present. A locus in quo visit confirmed the plaintiff was in complete occupation of the land with rental units.

Issues

  1. Whether the 1st and 2nd defendants trespassed on the suit property?
  2. Whether the 3rd defendant is liable for any wrong doing?
  3. Whether there are any remedies available to the parties?

Orders

  • Declaration that the 1st defendant (Roseline Niwamanya Twesigye) is a trespasser on land comprised in Kyadondo Block 234 Plot 1320 Land at Kilinya.
  • Order directing the Commissioner for Land Registration to cancel the certificate of title for land comprised in Kyadondo Block 234 Plot 310 Land at Kilinya.
  • Permanent injunction restraining the 1st defendant, her servants, agents, and any other person acting on her behalf, from further trespass on land comprised in Kyadondo Block 234 Plot 1320 Land at Kilinya.
  • Order directing the 1st defendant to pay general damages of UGX 20,000,000 to the plaintiff.
  • Interest of 25% per annum on general damages from the date of judgment until payment in full.
  • Order directing the 1st defendant to pay the costs of the suit.

Rules and key headnotes

Land & Property — Double Titling — Priority of Competing Legal Interests — First in Time Rule
Where there are two competing legal interests in the same parcel of land, the first of the legal interests to be registered or created takes priority over the second legal interest.
Land & Property — Fraudulent Registration — Ejection of Registered Proprietor — Section 176(c) Registration of Titles Act
Under section 176(c) of the Registration of Titles Act, a registered proprietor of land can be ejected on grounds of fraud.
Land & Property — Double Titling — Cancellation of Certificate of Title — Determination of Better Title
Where the same parcel of land has two different certificates of title, one of the title deeds must be cancelled. The question is which of the parties holds better title, as there can only be one main proprietor at any one time.
Tort Law — Trespass to Land — Definition and Elements
Trespass to land occurs when a person makes an unauthorised entry upon land, and thereby interferes, or portends to interfere, with another person's lawful possession of that land.
Land & Property — Mortgagee's Liability — Fraud Not Discoverable by Ordinary Search
A mortgagee who conducts an ordinary search at the land registry and relies on the search report showing the mortgagor as registered proprietor cannot be said to have trespassed where the fraud committed is not of a type that could be discovered during an ordinary search.
Land & Property — Fraudulent Acquisition of Title — Evidence of Active Participation in Fraud
Where a purported purchaser pays substantial consideration for land already occupied and developed but shows no interest in taking possession, collecting rental income, or occupying the property, and instead uses the title deed only to obtain loan facilities, such conduct is evidence of active participation in fraudulent acquisition of the certificate of title.

Legislation cited (8)

Cases cited (6)

  • Lutaya v Stirling Civil Engineering Company Ltd (Civil Appeal No. 11 of 2002)
  • Kampala District Land Board & Chemical Distributors v National Housing and Construction Corporation (Civil Appeal No. 2 of 2004)
  • Lamwaka Lucy v Laloyo Jalon (High Court Civil Appeal No. 31 of 2017)
  • Vivo Energy (U) Ltd v Shire Petroleum Company Ltd & 2 Others (High Court Civil Appeal No. 8 of 2016)
  • Mohammed Abdallah Garelnabi v Diana Irene Nayiga (Court of Appeal Civil Appeal No. 231 of 2019)
  • St Mark Educational Centre Limited v Makerere University (Court of Appeal Civil Appeal No. 40 of 1997)

Full judgment

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

Kiteme_v_Twesigye_and_Others_(Civil_Suit_2212_of_2016)_[2023]_UGHCLD_138_(25_May_2023)
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.