Wakilii

Kusemererwa and Another v Okwiri (HCT-01-LD-CA 24 of 2022)

High Court · [2024] UGHC 1090 · 2024 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from Chief Magistrate's Court judgment in a land ownership dispute
Decision
Appeal dismissed as to 1st appellant; appeal allowed as to 2nd appellant who was wrongly declared a trespasser; respondent declared owner of the suit land; 1st appellant's purchase from George Nyaika declared null and void for want of title

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court dismissed the appeal in part, finding that the respondent proved ownership of the suit land through a valid purchase from David Kalenzi in 1990 under a continuing tenancy agreement. The first appellant purchased from George Nyaika who had no title to pass, rendering that transaction null and void. However, the second appellant was wrongly declared a trespasser as no evidence established his entry on the land. The suit was not time-barred as the cause of action arose in 2015. Appeal allowed only as to the second appellant.

Outcome

Appeal dismissed as to 1st appellant; appeal allowed as to 2nd appellant who was wrongly declared a trespasser; respondent declared owner of the suit land; 1st appellant's purchase from George Nyaika declared null and void for want of title

Facts

The respondent purchased land at Harukuto, Fort Portal Municipality from David Kalenzi in November 1990 for UGX 840,000 and appointed Adyeeri Winfred Kaijamurubi as caretaker. In 1997, his brother George Nyaika stole his documents and in 1998 sold the land to the first appellant who later obtained a leasehold from Toro Kingdom. The first appellant sold to Eunice Rufunda in October 2015, with the second appellant acting as her agent. When the respondent returned in 2000, he found the first appellant had placed building materials on his land. The respondent fenced the land in 2016, leading to his arrest on a complaint by the second appellant. The respondent sued, claiming ownership based on his 1990 purchase from Kalenzi who held the land under a tenancy agreement with Fort Portal Municipal Council dated 29 May 1989.

Issues

  1. Whether the trial magistrate erred in law and fact when he found that the respondent was the rightful owner of the suit land.
  2. Whether the trial magistrate erred in law and fact when he found that the defendants were trespassers on the suit land.
  3. Whether the trial magistrate erred in law and fact when he entertained and heard a matter that was barred by limitation.
  4. Whether the trial magistrate erred in law and fact when he found that the respondent had lawfully bought the suit land from David Kalenzi.
  5. Whether the trial magistrate erred in law and fact when he wrongly applied the principle of burden of proof.
  6. Whether the trial court properly considered the evidence on record in arriving at its findings that the respondent was the rightful owner of the suit land and the appellants were trespassers on the same.

Orders

  • The respondent failed to prove his claim against the 2nd appellant and thus the respondent's claim against the 2nd appellant stands dismissed with costs awarded to the 2nd appellant in the High Court and the court below.
  • The 1st appellant shall meet the respondent's costs of this appeal and in the court below.

Rules and key headnotes

Land & Property — Title Transfer — Nemo Dat Principle — Purchase from Person Without Title
One cannot pass on a better title than he or she possesses. Where a purchaser buys land from a person who has no lawful title to the property, the transaction is illegal, null and void for want of title, and the purchaser acquires no interest in the land regardless of whether a subsequent leasehold is obtained.
Land & Property — Tenancy Agreements — Recurring Tenancies — Continuation Until Termination
Where a tenancy agreement provides for an initial term and thereafter continuation from year to year until terminated by either party giving six months' notice, the tenancy is a recurring one which extends from one year to another until properly terminated. In the absence of evidence of termination, the tenant retains interest in the property capable of being transferred.
Civil Procedure — Limitation — Continuing Trespass — Fresh Cause of Action
Trespass is a continuing tort and any continued stay of a trespasser gives a fresh cause of action against the one in possession of the suit land. Where the act complained of occurred within twelve years before filing suit, the action is not time-barred under the Limitation Act.
Evidence — Documentary Evidence — Alterations in Documents — Effect on Validity
An alteration in a document does not automatically invalidate the document where the alteration was an honest correction consistent with other dates and information on the same document, and where there is no evidence to discredit the execution or existence of the document.
Civil Procedure — Parties — Trespass — Burden of Proof Against Multiple Defendants
Where a plaintiff claims multiple defendants are trespassers, the plaintiff must establish by evidence specific acts of trespass by each defendant. A defendant who merely reported the matter to police but committed no act of entry on the land cannot be declared a trespasser.

Legislation cited (3)

Cases cited (8)

  • Father Nanensio Begumisa & 3 Others v Eric Tiberaga (SCCA No. 17 of 2000)
  • Uganda Breweries v Uganda Railways Corporation 2002 E.A
  • Odyek Alex & Another v Gena Yokonani (Civil Appeal No. 09 of 2017)
  • Kasoya Justine & Another v William Kaija & 3 Others (Civil Suit No. 6 of 2015)
  • Justine E.M.N. Lutaya v Stirling Civil Engineering Company Ltd (UGSC No. 39 of 2003)
  • Uganda Revenue Authority Vs Uganda Consolidated Properties Ltd (1997 - 2001) UCL 149
  • Francis Nansio Michael Vs NuwaWalakira (1993) VI KALR 14
  • George Ojwang v Wison Bagonza (Court of Appeal Civil Appeal No. 25 of 2002)

Full judgment

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

Kusemererwa and Another v Okwiri (HCT-01-LD-CA 24 of 2022) [2024] UGHC 1090 (14 November 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.