Rwebuzagure v Kabatsi & 4 Others (Miscellaneous Cause 52 of 2023)

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

The court held that a tenancy in common can be severed at the request of one co-owner without dissolving the entire tenancy, allowing the departing co-owner to receive a separate title while the remaining co-owners continue their tenancy in common. The applicant's 7/50 share was ordered partitioned and a separate title created, subject to his mother's spousal protection interest under succession law and his wife's consent requirement under family land provisions. The court excluded 20 acres previously redeemed by the first respondent.

Outcome

Partition granted with separate title to be issued to the applicant for his 7/50 share less 20 acres, subject to statutory protections for his mother and wife

Facts

The applicant and four respondents are brothers who inherited land from their late father as tenants in common. The applicant holds 7/50 shares of the 776-hectare property. The respondents developed and fenced their portions but denied the applicant access to his portion. The applicant sought dissolution of the tenancy in common and creation of a separate title. The respondents opposed the application, asserting that the applicant intended to sell his portion contrary to family interests, and that his mother and wife had protected interests in the land. The first respondent had previously redeemed 20 acres after the applicant attempted to sell part of his portion.

Issues

1. Whether the tenancy in common can be severed at the instance of the applicant.
2. Whether the applicant's portion is encumbered with other interests.

Orders

• The land shall be partitioned so that the applicant's portion is given a separate title while the rest of the land remains under one title until such time as all or any of the remaining co-owners wish to opt out.
• The applicant's share to be partitioned is 7/50 shares as reflected in the land title less twenty acres Nyigiziki redeemed.
• The exercise to partition the land shall be carried out without interference from anyone including the respondents.
• The Registrar of Titles is directed to rectify the register to reflect the orders of this court and to create a separate title for the applicant.
• The applicant will file a report in this court once the exercise to secure his portion of land is complete not later than six months from the date of this Ruling.
• The applicant will hold the land subject to his mother's interest.
• The applicant will hold the land subject to the legal protections accorded to his recognized wife not to alienate it without her consent.
• The interests of the licensees is limited to the duration of the period agreed for using the applicant's portion of land.
• The 20 acres the first respondent Nyigiziki redeemed after the applicant had sold the same, belongs to Nyigiziki and the certificate of title to be issued shall exclude this 20 acres.
• Each party shall bear their own costs.

Rules and key headnotes

Legislation cited (12)

• Constitution of Uganda 1995 Article 26
• Constitution of Uganda 1995 Article 50
• Judicature Act Cap. 13 s.33
• Civil Procedure Act Cap. 71 s.98
• Civil Procedure Rules Order 52 rules 1 and 3
• Judicature (Fundamental Rights and Freedoms) (Enforcement Procedure Rules) rules 3 and 8
• Registration of Titles Act Cap. 230 s.56
• Registration of Titles Act Cap. 230 s.57
• Evidence Act Cap. 6 s.101
• Trustees Incorporation Act Cap. 165
• Succession Amendment Act 2022 s.16
• Land (Amendment) Act 2004 s.39

Cases cited (2)

• Zachary John Olum v Bongomin Jon Odora & 4 Others (Civil Application No. 120 of 2015)
• Miller v Minister of Pensions [1947] 2 ALL ER 372

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