Wakilii

Nabukenya v Bwogi and Another (Civil Suit No. 251 of 2009)

High Court · [2017] UGHCLD 373 · 2017 Suit Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for recovery of land and cancellation of title
Decision
Plaintiff's claim dismissed as time-barred; caveat ordered removed from 1st defendant's certificate of title

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court dismissed the plaintiff's claim to recover land comprised in Block 9 Plot 358, holding that the action was time-barred under the Limitation Act and that the 1st defendant was a bona fide purchaser for value without notice. The court found that although the plaintiff's late mother was registered as owner in 1961 alongside another proprietor under the same instrument number, the plaintiff failed to bring her action within the 12-year limitation period. The court entered judgment on the counterclaim, ordering removal of the plaintiff's caveat from the 1st defendant's certificate of title.

Outcome

Plaintiff's claim dismissed as time-barred; caveat ordered removed from 1st defendant's certificate of title

Facts

The plaintiff, as administratrix of her late mother's estate, sought to recover land comprised in Block 9 Plot 358 which she claimed her mother purchased in 1953 as part of a larger chunk of land at Makerere Kivulu. The land was subsequently demarcated into plots 351 to 360 and registered in her mother's name in February 1961 under Instrument No. MRV 201 Folio 12. However, records at the Kampala land office showed that Emmanuel B.S. Lumu was also registered as proprietor of Plot 358 in April 1961 under the same instrument number. The land was later transferred to William Nsamuzi Kasiga (the 2nd defendant) in 2001, who then sold it to Musa Mayanja Luyombya in May 2008. Luyombya donated the land to his son, the 1st defendant, Bwogi Abdul-Nasir, who was registered as proprietor on 19 June 2008. The plaintiff lodged a caveat on the title on 14 October 2008. The plaintiff alleged fraud against the 1st defendant, claiming failure to conduct a search, misrepresentation in transfer forms, and procurement of registration on a forged signature. Survey evidence showed that the plaintiff's house occupied small portions of both Plot 358 and Plot 360.

Issues

  1. Whether the land in dispute forms part of the estate of the Late Malia Lwiza Nalongo Nanyonga?
  2. Whether or not the 1st defendant is a bona fide purchaser of the suit land for value without notice?
  3. Whether or not the 1st defendant's title is liable for cancellation for land comprised in Kyadondo Block 9 Plot 358?
  4. What remedies are available to the parties?

Orders

  • Plaintiff's suit dismissed with costs.
  • Judgment entered on the counterclaim in favour of the 1st defendant.
  • The Commissioner for Land Registration is directed to remove the caveat lodged vide instrument No. KLA 392831 on the 1st defendant's certificate of title for land comprised in Block 9 Kibuga Plot 358 Makerere Kagugube.
  • The plaintiff shall pay costs on the counterclaim to the 1st defendant.

Rules and key headnotes

Limitation of Actions — Recovery of Land — 12-Year Limitation Period
Under Section 5 of the Limitation Act, no action shall be brought by any person to recover any land after the expiration of 12 years from the date on which the right of action accrued. Where a plaintiff's right of action accrued in 1961 when the land was registered in another person's name under the same instrument number, an action brought 47 years later is time-barred.
Certificate of Title — Conclusive Evidence — Section 59 Registration of Titles Act
A certificate of title issued under the Registration of Titles Act is conclusive evidence of title and is conclusive evidence that the person named in the certificate as the proprietor is seized or possessed of that estate or interest. The production of a registered certificate of title is an absolute bar and estoppel to any action against the registered proprietor, except in the cases specifically provided for in the Act.
Bona Fide Purchaser for Value — Protection under Section 189 Registration of Titles Act
Once a registered proprietor has purchased property in good faith, his title cannot be impeached on account of fraud by a previous registered proprietor. Before a purchaser can claim the protection of Section 189 of the Registration of Titles Act, he must act in good faith. Where a purchaser conducts a search at the land office, finds no encumbrance, inspects the land with the local council chairman, and completes the purchase, he is a bona fide purchaser for value without notice.
Fraud — Burden and Standard of Proof in Land Disputes
Allegations of fraud must be proved strictly, the burden being heavier than the balance of probabilities generally applied in civil matters. Fraud is a serious matter requiring full and careful inquiry. Where a plaintiff alleges fraud but adduces no evidence to substantiate the claims or connect the defendant to any acts of fraud, the allegation fails.

Legislation cited (9)

Cases cited (7)

  • Eva Lubwama Takirambudde and Another v Bank of Africa and 4 Others (High Court Civil Suit No. 177 of 2013)
  • Miller v Minister of Pensions [1947] 2 All ER 372
  • Mpungu and Sons Transporter Limited v Attorney General and Another [2006] 1 EA 212
  • Kampala Bottlers v Damanico (U) Ltd (Supreme Court Civil Appeal No. 22 of 1992)
  • Fredrick J.K Zaabwe v Orient Bank and 5 Others (Supreme Court Civil Appeal No. 4 of 2006)
  • David Sajjaaka Nalima v Rebecca Musoke (Court of Appeal Civil Appeal No. 12 of 1985)
  • Robert Lusweswe v G.W. Kasule and Another (Civil Suit No. 1010 of 1983)

Full judgment

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Nabukenya v Bwogi and Another (Civil Suit No. 251 of 2009) [2017] UGHCLD 373 (18 October 2017)
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.