Wakilii

Member Investment Limited and Another v Nanyunja and 2 Others (Civil Appeal 82 of 2020)

High Court · [2024] UGHCLD 76 · 2024 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from the judgment of Chief Magistrate Mengo Court delivered on 15 October 2020
Decision
Certificate of title/lease cancelled; appellants awarded damages and permanent injunction; matter remitted to district staff surveyor for boundary verification and access route identification

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

The High Court allowed the appeal and set aside the Chief Magistrate's judgment. Held that the 1st and 2nd respondents had no protectable interest in land already registered in the name of Henry Sebunya, whose registration remained unchallenged and who was neither involved in the grant of the lease nor made party to the suit. The lease granted to the respondents during the pendency of the suit was fraudulent as neither the appellants in physical occupation nor Sebunya with registered interest were involved in the process. Certificate of title cancelled on grounds of fraud and illegality.

Outcome

Certificate of title/lease cancelled; appellants awarded damages and permanent injunction; matter remitted to district staff surveyor for boundary verification and access route identification

Facts

The 1st and 2nd respondents filed suit claiming ownership of land allegedly inherited from their late father, which the appellants used as access to their land on Kibuga Block 78 Plot 397. During the pendency of the suit in 2015, the respondents obtained a lease from the 3rd respondent (Kabaka of Buganda) over the disputed land. The appellants claimed they had been using the land as parking and access since 1976 under an approved building plan, and that they qualified as lawful or bonafide occupants. A search revealed that the land (Kibuga Block 77 Plot 7028) was already registered in the names of Henry Sebunya since 1997 and had a caveat lodged by Rose Nabateregga Mukiibi in 2011. Neither Sebunya nor the caveator were made parties to the suit. KCC had previously revoked permission granted to the respondents to fence the land in 2008 after the appellants complained.

Issues

  1. Whether the certificate of title for Kyadondo Block 77 plot 7028 issued in the names of the 1st and 2nd plaintiffs/counter defendants under the lease granted by the 3rd defendant was issued and/or obtained illegally/unlawfully and/or fraudulently.
  2. Who of the parties owns the suit land.
  3. What remedies are available to the parties.
  4. Whether the 3rd respondent was the rightful lessor of the land in dispute.
  5. Whether the land was available for leasing to the respondents in 2015.

Orders

  • Appeal allowed.
  • Judgment of the lower court set aside.
  • The respondents have no protectable interest in the land comprised in plot No. 7028 block 77 already registered in the names of Henry Sebunya whose registration remained unchallenged and who was neither involved in the grant of the lease nor made party to the suit.
  • The certificate of title/lease created in the joint names of the 1st and 2nd respondents in the land comprised in LRV 4553, Folio 2, plot No. 7028, block 77, at Natete is hereby cancelled on the ground that it was fraudulently granted to the respondents as neither the appellants who were in physical occupation of the land nor Henry Sebunya who had the unchallenged registered interest on the suit land were ever involved in the process of granting the lease.
  • Punitive damages of UGX 15,000,000 awarded to the appellants, to be jointly paid by the respondents.
  • Damages of UGX 30,000,000 awarded to be jointly paid by the respondents.
  • The orders in 4 and 5 shall each attract interest of 15% payable per annum from the date of delivery of this judgment till payment in full.
  • A permanent injunction issues to restrain the respondents, their agents, servants, employees or any person claiming under any of them from further claim of right and interference with the use of the land as access route to the appellants' land.
  • By order of this court, the office of the district staff surveyor is accordingly directed to peg the boundaries and take any corrective measures to rectify any errors on the titles which are the subject of this appeal and identify a proper access route for the appellants to their land comprised in block 78 plot 397.
  • The exercise shall bear in mind what was in existence at the time when the title was created and also taking into account the existing interests of Henry Sebunya in the land comprised in block 77, plot 7028, under which he was registered as the owner since 25 July 1997 and had remained so registered as at 6 May 2016, a year after the lease was granted to the respondents.
  • The verification/correctional exercise must be conducted in the presence of the parties to this appeal, any party with valid interest, the law, Police and neighbours.
  • Costs awarded to the appellants in the lower level and in respect of this appeal.

Rules and key headnotes

Land Law — Registration of Titles — Fraud and Illegality — Creation of Title During Subsistence of Suit
Where a party to a land dispute obtains a certificate of title or lease over the disputed land during the pendency of the suit, without notice to the opposing party who is in physical occupation and without involving a prior registered proprietor, such registration is fraudulent and liable to cancellation.
Land Law — Registration of Titles — Prior Registration — Priority of Interests
Where land is already registered in the name of a proprietor whose title remains unchallenged, any subsequent lease or transfer of the same land to another party without involving the registered proprietor is void, and the first registered interest prevails since interests rank in the order of creation.
Land Law — Leasehold — Availability of Land for Leasing — Requirements
Land is only available for leasing when it is vacant with no conflicting claims, or occupied by the applicant with no adverse claims, or where the applicant has a superior equitable claim to that of the occupant, or where the occupant has no objection to the application. A lessor has a duty to satisfy itself that there are no prior or conflicting interests before granting a lease.
Land Law — Registration of Titles — Caveat — Effect on Subsequent Dealings
By virtue of section 139 of the Registration of Titles Act, once a caveat is lodged, no registration of any person as transferee or proprietor or of any instrument affecting the estate or interest can take place until after notice of the intended registration or dealing is given to the caveator. A transfer made without notice to the caveator is invalid.
Civil Procedure — Natural Justice — Right to Fair Hearing — Non-Joinder of Necessary Parties
Where a court makes orders affecting the rights and interests of persons who are not parties to the suit, such as a registered proprietor whose land is the subject of the dispute or a caveator with an interest in the land, the decision violates the rules of natural justice and the constitutional right to a fair hearing under Article 28 of the Constitution.
Evidence — Fraud — Standard of Proof — Wrongful Intention to Defeat Existing Interests
Although mere knowledge of unregistered interest cannot be imputed as fraud, where such knowledge is accompanied by a wrongful intention to defeat existing interests, that amounts to fraud. Fraud must be specifically pleaded and proved to a standard heavier than the mere balance of probabilities.
Damages — Punitive and General Damages for Land Disputes — Assessment
Where a party's interests in land are unduly affected by the wrongful actions of another, including fraudulent creation of title and attempts to block access, the affected party is entitled to both punitive damages to punish the wrongful conduct and general damages to compensate for trespass and inconvenience suffered.

Legislation cited (12)

Cases cited (16)

  • Justine E.M.N. Lutaaga v Sterling Civil Engineering Company (Civil Appeal No. 11 of 2002)
  • Tagebwa Geoffrey and Another v Kagimu Nguddde Mustafa (HCCS No. 118 of 2012)
  • F J K Zaabwe v Orient Bank and 5 Others (SCCA No. 4 of 2006)
  • Farm International Ltd and Ahmad Farah v Mohamed Dl Faraj [1994] KARL 302
  • Kampala Bottlers Ltd. v Damanicco (U) Ltd (supra)
  • Sulaiman Adrjsi v Rashida Abul Karim Halani and Another (Civil Suit No. 008 of 2011)
  • Kagebura Enock and 2 Others v Joash Kahangi're (Court of Appeal No. 88 of 2015)
  • Katarikawe v Katuiremu (1977) HCB 188
  • Ronald Kasibante v SHELL (U) LTD [2008] HCB 163
  • Robert Carussens v Attorney General (SCCA No. 8 of 1999)
  • Uganda Commercial Bank v Kigozi [2002] 1 EA 305
  • Kalenera & Others v UNILEVER (U) LTD & Anor [2008] HCB 134
  • Henry Kffamante v Uganda (Criminal Appeal No. 10 of 1992)
  • Tiban'umu v Bangumga (Civil Appeal No. 10 of 1971)
  • Magnus Broron Doering v C I AB & Co. (1882) 2QB 128
  • Kyagulanyi Coffee Ltd v Francis Senabulya (CACA No. 41 of 2006)

Full judgment

↓ Download PDF

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

Member_Investment_Limited_and_Another_v_Nanyunja_and_2_Others_(Civil_Appeal_82_of_2020)_[2024]_UGHCLD_76_(13_March_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.