Wakilii

Mudiima Issa and Others v Elly Kayanja and Others [2014] UGHCLD 275

High Court · 2014 Judgment for Plaintiffs; Title Cancelled for Fraud AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit seeking declaration of lawful occupancy, cancellation of title, and injunctive relief
Decision
Plaintiffs' title as bona fide occupants recognized; defendants' certificate of title cancelled; permanent injunction granted restraining defendants from interfering with plaintiffs' occupation

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court held that the plaintiffs were bona fide and lawful occupants on the suit land, having occupied it since before 1978. The 1st and 2nd defendants' certificate of title was cancelled on grounds of fraud and illegality. The 3rd defendant illegally obtained registration by extending an expired lease without authority. The 1st and 2nd defendants purchased the land with knowledge of the plaintiffs' occupation, failed to conduct due diligence, did not accord priority to sitting tenants as required by law, and grossly undervalued the land to defraud government of revenue.

Outcome

Plaintiffs' title as bona fide occupants recognized; defendants' certificate of title cancelled; permanent injunction granted restraining defendants from interfering with plaintiffs' occupation

Facts

Mudiima Issa and five other plaintiffs sued on behalf of themselves and other occupants for declarations that they were bona fide and lawful occupants on land comprised in LRV 1039 Folio 19, Block 303-305, Plot 171, measuring approximately 53.64 hectares at Kabulegwa, Kyebando, Wakiso District. The land originally belonged to the Kabaka of Buganda. In 1978, Kikomeko Cephas obtained a five-year lease expiring September 1983, which the occupants resisted as fraudulent. Kikomeko died in March 1983 before the lease expired. In 1997, the 3rd defendant obtained Letters of Administration for Kikomeko's estate and was registered on the title, claiming an illegal extension to a full 49-year term. In 2003, the 1st defendant, who had promised to help plaintiffs resolve the dispute, instead purchased the land from the 3rd defendant for Shs. 10 million and registered himself and his wife (2nd defendant) as proprietors. On 21 January 2008, agents believed to be working for the 1st and 2nd defendants razed down plaintiffs' properties. The plaintiffs had occupied the land since the 1970s; PWI inherited interest from his grandfather who lived there since the 19th Century. The 1st and 2nd defendants never surveyed the land, did not give sitting tenants priority to purchase as required by law, and were aware of the plaintiffs' occupation.

Issues

  1. Whether the plaintiffs are the bona fide and/or lawful occupants on the suit land.
  2. Whether the 1st and 2nd defendant's certificate of title to the suit land is liable to be cancelled on the ground of fraud and/or illegality.
  3. What are the remedies available to the parties?

Orders

  • Judgment entered for the plaintiffs.
  • Counterclaim dismissed with costs to the plaintiffs.
  • Permanent injunction issued restraining the defendants from interfering with the plaintiffs' quiet occupation and possession of the suit land.
  • Plaintiffs awarded general damages of Shs. 20,000,000 with interest at court rate of 6% per annum from date of judgment until payment in full.
  • Plaintiffs awarded costs of the suit.
  • Registrar of Titles directed to cancel the registration of the 1st, 2nd and 3rd defendants from the Register Book.

Rules and key headnotes

Bona Fide Occupancy — Security of Tenure — Requirements under Land Act
A person who entered land with consent of the registered owner or occupied land as a customary tenant whose tenancy was not disclosed or compensated for at the time of acquiring leasehold title qualifies as a lawful occupant under Land Act s.29. A bona fide occupant is a person who, before the Constitution came into force, occupied and utilized or developed land unchallenged by the registered owner for twelve years or more. Such occupants have security of tenure and their interest cannot be alienated except as provided by law.
Lease — Extension — Expired Lease Cannot Be Extended
An expired lease cannot lawfully be extended because in essence there is nothing to extend. Where a lessee dies before the expiry of the initial lease term and the lease subsequently expires, no extension can be validly obtained by the administrator of the deceased's estate, as extension can only be effected during the currency of the initial term.
Fraud — Actual Fraud — Definition and Elements
Fraud means actual fraud or some act of dishonesty. It is an intentional perversion of truth for purposes of inducing another to part with valuable property or surrender a legal right. Fraud comprises all multifarious means which human ingenuity can devise and which are resorted to by one individual to get advantage over another by false suggestion or suppression of truth, including all surprise, trick, cunning, dissembling and any unfair way by which another is cheated. Fraud must be specifically pleaded and strictly proved, must be attributable to the transferee either directly or by necessary implication, and cannot be left to be inferred from facts.
Fraud — Purchaser with Notice — Duty to Conduct Due Diligence
A person who purchases land which he knows to be in occupation of another person other than the vendor is not a bona fide purchaser without notice. A purchaser who fails to make reasonable inquiries of persons in possession, or whose suspicions were aroused but who abstained from making inquiries for fear of learning the truth, may properly have fraud ascribed to him. Lands are valuable properties and buyers are expected to make thorough investigations not only of the land but of the sellers before purchase.
Bona Fide Occupancy — Priority Right to Purchase — Land Act s.35(2)
Where land is occupied by bona fide or lawful occupants, the registered owner selling the land must accord first priority to the sitting tenants to purchase their interest as required by Land Act s.35(2). Sale to a third party without giving occupants the opportunity to purchase their interest is illegal and registration in total disregard of occupants' unregistered interests, which the purchaser was aware of, and by failing to follow the right procedure prescribed by law for transfer of such unregistered interest, constitutes fraud which defeats the act of registration.
Fraud — Undervaluation — Intention to Defraud Government Revenue
Deliberately understating the value of land in transfer instruments with the intention of cheating Government of tax revenues payable on such transaction constitutes fraud. By public policy, any transaction designed to defraud the Government of its revenue is illegal, and the effect of the illegality is to prevent recovery under a contract secured illegally. A certificate of title procured through such fraud is void.
Cancellation of Title — Remedies under Registration of Titles Act s.177
Where a certificate of title has been impeached on the ground of fraud, the High Court may under Registration of Titles Act s.177 direct the Registrar to cancel any certificate of title or instrument, or any entry or memorial in the Register Book relating to that land, and to substitute such certificate of title or entry as the circumstances of the case require, and the Registrar shall effect that order.

Legislation cited (18)

Cases cited (23)

  • Kampala District Land Board & Another v Venansio Babweyoka & 3 Others (Supreme Court Civil Appeal No. 02 of 2007)
  • Kampala District Land Board & Another v National Housing & Construction Corporation (Supreme Court Civil Appeal No. 02 of 2004)
  • Godfrey Ojwong v Wilson Baguma (Court of Appeal Civil Appeal No. 25 of 2002)
  • Stanbic Bank (U) Ltd v Uganda Clays Ltd (Supreme Court Civil Appeal No. 1 of 2004)
  • Tororo Cement Co Ltd v Frokina International Ltd (Supreme Court Civil Appeal No. 02 of 2001)
  • Yusuf Ali Mohamed Osman v. D.T Dobie & Co.(T) Ltd [1963] EA 238
  • John Kariakwe v. William Katwiremu & Another [1977] HCB 197
  • Olindo De Souza v. Kasamali Manji [1962] E.A.756
  • Sebutibo v. Co-operative Bank Ltd [1985] HCB 130
  • Ratilal Gordhanbhai Makanji [1957] EA 314
  • F.J.K Zaabwe v Orient Bank & 5 Others (Supreme Court Civil Appeal No. 1 of 2006)
  • Kampala Bottlers Ltd v Daminico Ltd (Supreme Court Civil Appeal No. 22 of 1992)
  • Waimiha Saw Milling Co. Ltd v. Waione Timber Co. Ltd (1926) A.C 101
  • David Sejjooka v Rebecca Musoke (Civil Appeal No. 12 of 1985)
  • J.W.R Kajura v M.L.S Rukuba (Supreme Court Civil Appeal No. 13 of 1992)
  • Hajji Nasser Katende v Vithalidas Haridas & Co Ltd (Court of Appeal Civil Appeal No. 84 of 2003)
  • Ndyanabo Desiranta & Another v Kayiwa Joseph & Another (High Court Civil Suit No. 196 of 2005)
  • Samuel Kizito Mubiru & Another v W Byensibe & Another (High Court Civil Suit No. 113 of 1982)
  • James Fredrick Nsubuga v Attorney General (High Court Civil Suit No. 13 of 1993)
  • Erukan Kuwe v Isaac Patrick Matovu & Another (High Court Civil Suit No. 127 of 2003)
  • Charles Acire v Myoano Engola (High Court Civil Suit No. 143 of 1993)
  • Kibimba Rice Ltd v Umar Salim (Supreme Court Civil Appeal No. 17 of 1992)
  • Uganda Commercial Bank v. Kigozi [2002] 1 EA. 305

Full judgment

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Mudiima Issa and Others v Elly Kayanja and Others 2014 UGHCLD 275 (23 October 2014)
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.