Wakilii

Ntabazi v Walusimbi (Civil Appeal No. 101 of 2012)

High Court · [2015] UGHCCD 144 · 2015 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from Chief Magistrate's Court Mukono dismissing trespass claim
Decision
Appellant declared owner of encroached portion; Respondent's certificate of title to be cancelled and reissued excluding that portion; permanent injunction granted

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that installing survey mark stones on a customary tenant's land without consent, thereby including that land in one's certificate of title, constitutes fraud and illegality. A certificate of title obtained by such conduct is void under Registration of Titles Act s.176(c) and (d), which protect the rights of persons whose land is included by misdescription. The appellate court set aside the lower court's dismissal and declared the appellant owner of the encroached portion, ordering rectification of the respondent's title.

Outcome

Appellant declared owner of encroached portion; Respondent's certificate of title to be cancelled and reissued excluding that portion; permanent injunction granted

Facts

The appellant held a customary kibanja tenure. The respondent acquired an adjoining kibanja. In 2005, at the instance of the landlord who sold to the respondent, a survey was conducted and the respondent obtained a certificate of title. The parties' properties had been separated by a hedge. After the survey, mark stones were placed beyond the hedge, extending into the appellant's kibanja by less than a metre. The respondent installed these mark stones without the appellant's knowledge or consent. In 2008, the appellant attempted to register his kibanja. He subsequently sued for trespass, alleging the respondent's title improperly included part of his land. The trial magistrate dismissed the suit, finding no fraud proved and holding the certificate of title conclusive under Registration of Titles Act s.59.

Issues

  1. Whether the trial Magistrate erred in holding that there was no fraud by the Respondent.
  2. Whether the trial Magistrate erred when she did not rely on the evidence of PW2.
  3. Whether the trial Magistrate properly evaluated the evidence on record.

Orders

  • Appeal allowed.
  • Judgment and orders of the Magistrate set aside.
  • The Appellant is declared the owner of the portion of the land encroached upon by the Respondent.
  • The said portion is to be excluded from the Defendant's Certificate of Registration.
  • The Defendant/Respondent is to immediately vacate the said portion of the land.
  • A permanent injunction is issued restraining the Defendant/Respondent, his servants and or agents from trespassing on to and interfering with the Plaintiff's land.
  • The land of both the Plaintiff and Defendant is to be surveyed to properly exclude that portion encroached upon.
  • The Defendant/Respondent's Certificate of Title is to be cancelled by the Commissioner for Land Registration, and a fresh Certificate with the demarcations excluding the encroached portion issued to the Defendant/Respondent.
  • The Respondent is to meet the Appellant's costs of this appeal and in the trial Court.

Rules and key headnotes

Land & Property — Customary Tenure — Kibanja Holder — Protection of Interests Under Registration of Titles Act
The interests of kibanja holders, customary tenants, and bona fide occupants are recognised and protected by law and cannot be extinguished merely because another party has obtained a certificate of title over land that includes the kibanja holder's portion.
Land & Property — Registration of Title — Fraud — Definition and Effect
Where a registered proprietor procures registration of a certificate of title by including land belonging to another through conduct amounting to fraud, the certificate is void. Fraud includes acts intended to defeat an interest in land, and the effect of fraud is to make the entire transaction a nullity.
Land & Property — Boundary Disputes — Installation of Survey Mark Stones Without Consent
Where survey mark stones are installed on a customary tenant's land without that tenant's knowledge or consent, thereby including the tenant's land within a certificate of title issued to another party, such conduct amounts to fraud that voids the certificate in respect of the encroached portion.
Land & Property — Registration of Titles Act s.176(c) and (d) — Protection Against Misdescription
Sections 176(c) and (d) of the Registration of Titles Act protect the rights of persons whose land is included in a certificate of title by misdescription of boundaries, as against a registered proprietor who is not a bona fide transferee for value.
Land & Property — Certificate of Title — Conclusiveness Under s.59 RTA — Exceptions
While a certificate of title is conclusive evidence of ownership under Registration of Titles Act s.59, this conclusiveness does not apply where the certificate was obtained through fraud or where the rights of persons affected by misdescription are protected under s.176 of the Act.
Civil Procedure — Appellate Court — Duty to Evaluate Evidence as a Whole
Where a trial court fails to consider all the evidence and circumstances as a whole, an appellate court is entitled to re-evaluate the evidence and reach its own conclusions on the totality of the material before the lower court.

Legislation cited (5)

Cases cited (6)

  • Kampala Bottlers v Damanico (U) Ltd (Supreme Court Civil Appeal No. 22 of 1992)
  • National Provincia Bank Vrs. Anisworth (1965) AC 1175
  • Kampala District Land Board v National Housing Corporation (Supreme Court Civil Appeal No. 2 of 2004)
  • Marsh Investments Vrs. Kachara
  • Fredrick Zzaabwe v Orient Bank (Supreme Court Civil Appeal No. 4 of 2006)
  • Makula International Vrs. Cardinal E. Nsubuga

Full judgment

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

Ntabazi Vs Walusimbi (Civil Appeal No. 101 of 2012) [2015] UGHCCD 144 (16 April 2015)
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.