Wakilii

Mulindwa and 12 Others v Ssebugwawo (Civil Appeal No. 28 of 2016)

High Court · [2021] UGHCCD 198 · 2021 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from Chief Magistrate's Court judgment in a trespass and eviction suit
Decision
Judgment of the trial Magistrate set aside; respondent advised to ascertain his parcel and respect appellants' kibanja rights

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that a purchaser who has never taken possession of land and whose parcel is unascertained and unsurveyed has no locus to sue in trespass. Where sitting tenants hold a kibanja interest on mailo land, the landlord must give them the first option to purchase under Land Act s.35(2) before selling to a third party. Failure to do so does not invalidate the sale but the purchaser takes subject to the tenants' interests. Appeal allowed; judgment set aside.

Outcome

Judgment of the trial Magistrate set aside; respondent advised to ascertain his parcel and respect appellants' kibanja rights

Facts

The respondent purchased 10 acres of mailo land in 2008 from the registered proprietor. The appellants, as grandchildren and beneficiaries of the estate of the late Stephen Kajubi, claimed they had occupied a kibanja on the land since the 1990s and paid busuulu to the former registered proprietor. The respondent never took possession or surveyed the land. In 2010, when he attempted to survey, he found the appellants on the land. He sued for eviction, permanent injunction, damages for trespass, and costs. The trial magistrate found the land was vacant at the time of purchase, held that Section 35 of the Land Act did not apply, and entered judgment for the respondent. The appellants appealed.

Issues

  1. Whether the respondent is the lawful owner of the suit land and whether the appellants are trespassers thereon.
  2. Whether the portion of land sold to the respondent is separate from the kibanja of the late Kajubi.
  3. Whether the respondent had locus to sue the appellants as a land owner.
  4. Whether Section 35(2) of the Land Act was applicable to the appellants.
  5. Whether the trial magistrate properly weighed and evaluated the evidence.

Orders

  • Appeal allowed.
  • Judgment of the trial Magistrate set aside.
  • Respondent advised to clearly ascertain the parcel of land he purchased and to respect the rights of the appellants as valid bibanja holders.
  • Costs of the appeal awarded to the appellants.

Rules and key headnotes

Trespass to Land — Locus Standi — Requirement of Possession
A person who has never taken possession of land, whether actual or constructive, has no locus standi to sue in trespass, as trespass to land requires interference with the possession of the person on the land.
Mailo Land — Kibanja Interests — First Option to Purchase
Under Section 35(2) of the Land Act, a landlord selling mailo land must give sitting tenants holding kibanja interests the first option to purchase. Failure to do so does not invalidate the sale but the purchaser takes the land subject to the interests of the tenants.
Kibanja Interests — Proof of Tenancy — Payment of Busuulu
Evidence of payment of busuulu to the registered proprietor, coupled with long occupation and cultivation, is sufficient to establish a kibanja interest on mailo land.
Pleadings — Departure from Pleadings on Appeal
A party cannot depart from its pleadings on appeal. Where a fact was not challenged in the lower court, it stands unchallenged and uncontroverted, and cannot be raised for the first time on appeal.
Land Transactions — Unascertained Parcels — Effect on Trespass Claims
Where a purchaser's parcel of land is unascertained and unsurveyed, and the boundaries have never been shown or demarcated, a claim for trespass cannot succeed as it is impossible to determine whether the alleged trespassers are on the purchased land.

Legislation cited (2)

Cases cited (3)

  • Uganda Revenue Authority v Stephen Mabosi (Civil Appeal No. 26 of 1995)
  • James Sawoabiri and Fred Musisi v Uganda (Criminal Appeal No. 5 of 1990)
  • Justine E.M.N. Lutaaya v Stirling Civil Engineering Company (Civil Appeal No. 11 of 2002)

Full judgment

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

Mulindwa and 12 Others v Ssebugwawo (Civil Appeal No. 28 of 2016) [2021] UGHCCD 198 (12 November 2021)
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.