Wakilii

Odwong & Another v Latigo & Another (Civil Appeal No. 61 of 2018)

High Court · [2019] UGHC 62 · 2019 Appeal Dismissed — Rectification Ordered AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from Chief Magistrate's Court judgment dismissing claim for declaration of ownership and trespass
Decision
Appeal dismissed subject to boundary reopening; rectification of appellants' title ordered if overlap is established after survey.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

When legal descriptions of adjoining parcels overlap, the controversy is a survey issue, not one of title. An entry reflecting an overlap is a mistake that may be rectified because it should never have been made. Part-parcel adverse possession may transfer ownership of a portion of an abutting parcel consequent to long-term occupation. The court ordered boundaries reopened to establish whether an overlap exists and rectification of the appellants' title if necessary.

Outcome

Appeal dismissed subject to boundary reopening; rectification of appellants' title ordered if overlap is established after survey.

Facts

The appellants claimed ownership of land comprised in LRV 2227 Folio 17, alleging the respondents trespassed. The 1st appellant acquired a title in 1994, extended to 49 years in 2008. The 2nd respondent held title to adjoining land comprised in LRV 117 Folio 24, acquired in 1982 and extended to 49 years in 1987. The trial court found that the appellants' title overlapped the respondents' title and ruled in favour of the respondents, ordering rectification of the appellants' title. The overlap was suggested by a surveyor's report from a different suit indicating that both parcels were on the same side of two streams. The trial court did not reopen boundaries but relied on this external opinion. Both parties are registered proprietors claiming the other trespassed onto their respective parcels.

Issues

  1. Whether overlapping legal descriptions on two title deeds created a title dispute or strictly a survey issue.
  2. Whether the appellants' title should be rectified to exclude land occupied by respondents due to an overlap.
  3. Whether the respondents were trespassers on the appellants' land.
  4. Whether part-parcel adverse possession principles apply where boundaries are disputed due to overlapping title deeds.
  5. Whether priority principles under the Registration of Titles Act determine superior title where two registered titles overlap.

Orders

  • Appeal dismissed subject to survey outcome.
  • Trial court to commission a surveyor to open the boundaries of both titles to establish whether an overlap exists.
  • In the event of any overlap, rectification of the title deed to land comprised in LRV 2227 Folio 17, Aruu Block 1 in Kitgum is ordered, to exclude land occupied by the respondents and comprised in LRV 117 Folio 24, Aruu Block 1 in Kitgum.
  • Each party to bear their own costs of appeal and of the trial.

Rules and key headnotes

Land Law — Overlapping Titles — Legal Description Overlap as Survey Issue Not Title Dispute
When the legal description of one parcel of land overlaps with the legal description of an adjoining parcel, the controversy between the parties is not one of title but rather is strictly a survey issue.
Land Registration — Rectification — Mistake in Register Due to Overlapping Titles
An entry made in the register reflecting an overlap of titles is a mistake and may be rectified because it should never have been made in the first place.
Land Law — Boundaries — Legal Question of What a Boundary Is Versus Factual Question of Where It Is Located
The question of what is a boundary line is a matter of law, but the question of where a boundary line, or a corner, is actually located is a question of fact.
Land Law — Adverse Possession — Part-Parcel Adverse Possession and Transfer of Ownership
Part-parcel adverse possession may effectively transfer ownership of a small portion of an abutting parcel consequent to long term occupation, where the claimant proves actual, exclusive, visible, notorious, distinct, and hostile possession of the land continuously for more than twelve years.
Land Registration — Priority of Registered Interests — Race, Notice, and Race-Notice Principles
The general principles that guide the ranking in priority of registered interests in land are: under the race principle, the first person to record their deed has senior title regardless of the sequence the conveyances were made or the knowledge a grantee had of an earlier conveyance; under the notice principle, the last conveyance made where the grantee did not have notice of an earlier conveyance has senior title; under the race-notice principle, the first person to record their deed who was conveyed the property without notice of an earlier conveyance has senior title.
Land Registration — Rectification — Court's Power to Order Alteration of Register
A court may make an order for the alteration of the register for the purpose of correcting a mistake, bringing the register up to date, or giving effect to any estate, right or interest excepted from the effect of registration.
Evidence — Expert Evidence — Reliance on Surveyor's Opinion Not Tested by Cross-Examination
A court should not rely on an opinion of a surveyor that has never been subjected to cross-examination and that has not been tested for accuracy and authenticity as should be determined by precision instruments duly verified by accredited surveyors.

Legislation cited (10)

Cases cited (7)

  • Father Nanensio Begumisa and Others v Eric Tiberaga (SCCA No. 17 of 2000)
  • Lovinsa Nankya v Nsibambi [1980] HCB 81
  • Walleigh v. Emery, 163 A.2d 665, 668 (Pa.Super. 1960)
  • Malory Enterprises Ltd v Cheshire Homes Ltd [2002] Ch 216
  • Hodgson v Marks [1971] Ch 892
  • NRAM Ltd v Evans [2018] 1 WLR 1563
  • Norwich and Peterborough Building Society v Steed [1993] Ch 116

Full judgment

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

Odwong & Another v Latigo & Another (Civil Appeal No. 61 of 2018) [2019] UGHC 62 (12 September 2019)
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.