Wakilii

Mukasa v Wambedde & Ors (Civil Suit No. 459 of 1998)

High Court · [2004] UGHCLD 1 · 2004 Judgment for Plaintiff — Partial AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for trespass, eviction, recovery of possession, and permanent injunction
Decision
Second and fifth defendants ordered evicted with structures demolished; general damages awarded to plaintiff against those defendants. Suit dismissed against first, third and fourth defendants with costs to them.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that under the Land Reform Decree 1975, acquisition of customary tenure required compliance with prescribed procedures. Second and fifth defendants failed to prove lawful acquisition of their kibanja holdings and were trespassers. Third and fourth defendants acquired their holdings lawfully by gift and purchase respectively under section 4(1) of the Land Reform Decree, and failure to give notice to the prescribed authority was a curable irregularity that did not vitiate the transactions. Registered proprietor entitled to eviction of trespassers and demolition of illegal structures without liability to compensate.

Outcome

Second and fifth defendants ordered evicted with structures demolished; general damages awarded to plaintiff against those defendants. Suit dismissed against first, third and fourth defendants with costs to them.

Facts

Plaintiff, registered proprietor of Kibuga Block 11 Plot 325 at Ndeeba since 1971, sued five defendants for trespass. Plaintiff claimed defendants erected illegal structures on his land around 1990. Second defendant claimed to have acquired a kibanja in 1985 from his late brother but produced no evidence of transfer. Third defendant received his kibanja by gift from his father in 1977 and had occupied it for 21 years by time of suit. Fourth defendant purchased his kibanja in 1993 from Robbina Tereza. Fifth defendant claimed to have purchased from Tereza Namutebi in 1993 but evidence was contradictory and the transaction concerned a vacant plot with no improvements. First defendant did not attend trial and no structure belonging to him was identified on the land.

Issues

  1. Whether the defendants are lawful or bonafide occupants of the suit land.
  2. Whether the defendants are trespassers on the suit land.
  3. What remedies are available to the parties?

Orders

  • Second defendant and fifth defendant, their servants, workmen and employees to vacate or be evicted from the plaintiff's land (Plot 325) at Nsiike Ndeeba.
  • Second defendant and fifth defendant to remove their illegal structures/buildings or the same to be demolished.
  • Second and fifth defendants, their servants, workmen and employees permanently restrained from entering, occupying, cultivating or erecting structures/buildings on Plot 325.
  • General damages of Shs. 1,000,000/= awarded against the second defendant for trespass.
  • General damages of Shs. 3,000,000/= awarded against the fifth defendant for trespass.
  • Second and fifth defendants to pay costs of the suit to the plaintiff in equal (50%) shares.
  • Suit dismissed against the first, third and fourth defendants.
  • Plaintiff to pay costs of the suit to the first, third and fourth defendants, to be presented in a joint bill of costs and taxed.

Rules and key headnotes

Customary Tenure — Acquisition under Land Reform Decree 1975 — Transfer of Existing Holdings
Under section 4(1) of the Land Reform Decree 1975, a holder of customary tenure on public land may transfer such tenure by sale or gift inter vivos after giving not less than three months' notice to the prescribed authority, and such transfer vests in the transferee title only to the improvements or developments carried out on the land, not to the land itself.
Customary Tenure — Failure to Give Notice — Effect on Validity of Transfer
Failure to give notice under section 4(1) of the Land Reform Decree 1975 before transfer of customary tenure is a curable irregularity which does not vitiate the transaction, particularly where the prescribed authority was not clearly established or operational at the material time.
Customary Tenure — Consent of Former Mailo Owner — Requirement Abolished
The Land Reform Decree 1975 abolished the requirement under the Busuulu and Envujjo Law 1928 for obtaining consent of the mailo land owner before acquiring or transferring a kibanja holding. The customary practice of introduction and giving a kanzu, which existed to solicit such consent, had no legal effect after the Decree.
Customary Tenure — Transfer of Vacant Plot — Validity
A purported transfer of customary tenure consisting of a vacant plot with no improvements or developments contravenes section 4(1) and (2) of the Land Reform Decree 1975 and is void and of no effect, as the transferor is deemed to have transferred the customary tenure as if it were actual title to the land.
Trespass to Land — Registered Proprietor — Right to Eviction and Demolition
Where a registered proprietor establishes that structures have been erected on his land by persons in unlawful occupation, he is entitled to an order for eviction and demolition of the illegal structures without liability to compensate those affected.
Trespass to Land — General Damages — Nominal Award
In an action for trespass to land, the plaintiff is entitled to recover damages even if no actual loss is proved. Where the plaintiff fails to adduce evidence of market rental value or specific loss, the court may award nominal general damages based on the nature and extent of the trespass.
Mesne Profits — Pleading and Proof of Rental Value
A claim for mesne profits requires the plaintiff to plead and prove the monthly or annual rental value of the premises. Where no such averment is made in the plaint and no evidence is adduced to establish rental value, the claim for mesne profits must fail.

Legislation cited (12)

  • Busuulu and Envujjo Law 1928 s.8
  • Land Reform Decree No.3 of 1975 s.3
  • Land Reform Decree No.3 of 1975 s.4
  • Land Reform Decree No.3 of 1975 s.5
  • Land Reform Decree No.3 of 1975 s.6
  • Land Reform Decree No.3 of 1975 s.16
  • Land Reform Regulations 1976 reg.1
  • Land Reform Regulations 1976 reg.3
  • Land Reform Regulations 1976 reg.8
  • Land Reform Regulations 1976 reg.14
  • Land Act Cap.227
  • Civil Procedure Act Cap.71 s.2

Cases cited (9)

  • Muluta Joseph v Katama Sylvano (Civil Appeal No. 11 of 1999)
  • Tifu Lukwago v Samwiri Mudde Kizza & Another (Civil Appeal No. 13 of 1996)
  • Paul Kisekka Saku v Seventh Day Adventists Church Association of Uganda (Civil Appeal No. 8 of 1993)
  • YEKOYASI MULINDWA V. ATTORNEY GENERAL (1985) H.C.B. 70
  • MC Phail V. Persons, name Unknown (1973) 3 All. ER. 393 (CA)
  • ARMSTRONG V. SHEPHERD and SHORT [1959] 2 Q.B. 384
  • ELLIOTT V. BOYNTON (1924) Inc. 236 (CA)
  • CLIFTON SECURIETS, Ltd V. HUNTLEY AND OTHERS (1948) 2 ALL. E.R. 283
  • PAUL KALULE V. LOSIRA NANOZI (1974) H.CB. 202

Full judgment

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

Mukasa v Wambedde & Ors (Civil Suit No. 459 of 1998) [2004] UGHCLD 1 (30 April 2004)
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.