Wakilii

Spear Motors Limited v Kiiza and 9 Others (Consolidated Civil Suit 17 of 2008; Consolidated Civil Suit 247 of 2007; Consolidated Civil Suit 340 of 2007)

High Court · [2023] UGHCLD 303 Judgment for Plaintiff AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Consolidated first instance suit for declaration of title, cancellation of allegedly erroneously issued titles, and eviction
Decision
Defendants declared trespassers; ordered to give vacant possession; all defendants' titles cancelled

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the plaintiff, registered proprietor of Kyadondo Block 215 Plot 114 since 1987 under Registration of Titles Act s.59, has indefeasible title. Where a second certificate of title is issued over the same land during the subsistence of a prior valid title, the later title is null and void and passes no proprietary interest. The defendants' titles, created through subdivisions of a fraudulently procured duplicate certificate, were erroneously issued. Defendants who purchased after receiving formal notice from the Land Registration Department in 2001 of the plaintiff's prior title and the irregular subdivisions are not bona fide purchasers for value without notice. Failure to make reasonable inquiries or to heed official warnings constitutes notice and may support an attribution of fraud. Defendants' titles ordered cancelled, permanent injunction issued, and general damages awarded to plaintiff.

Outcome

Defendants declared trespassers; ordered to give vacant possession; all defendants' titles cancelled

Facts

Spear Motors Limited was registered proprietor of Kyadondo Block 215 Plot 114 at Kulambiro (2 acres) from 1987 under instrument KLA 127791. In 1997, a second duplicate certificate of title for the same plot was erroneously created in the names of Christopher Ssali, who transferred it to Hussein Tamale in 1999. Tamale caused illegal subdivisions of Plot 114 into plots 628, 629, 632, 633, 661, 662, 663, and subsequent further subdivisions creating plots 1535, 1552, and 1553. These subdivisions were conducted without plaintiff's consent. In 2001, the Kampala Mailo Office notified all purchasers (including defendants 4–8 and their predecessors) of the plaintiff's prior title and the erroneous nature of the subdivisions, advising them to claim from Plot 116 instead. Despite this formal notice, the defendants and their predecessors continued subdividing and transferring the plots. Defendants 1 and 2 purchased plot 662 in 2006 from Gideon and Stella Muhenda. Defendant 3 purchased plot 1553 from Nakitende Mutabulawo in 2006. Defendant 9 purchased plot 1535 in 2003. Defendants 6, 7, and 8 acknowledged receiving the 2001 notice. Throughout, the Land Registry records showed Plot 114 remained intact in plaintiff's name with no subdivision entries.

Issues

  1. Whether the plaint by consolidation is in compliance with the order of court dated 17th March, 2009.
  2. Whether the plaint by consolidation discloses a cause of action.
  3. Whether the defendants' titles were erroneously procured and issued by the Registrar of titles.
  4. Whether the plaintiff has a lawful and proper title to the suit land.
  5. Whether the defendants are bona fide purchasers without notice of error or fraud.
  6. Whether the title in the name of the 10th counter defendant ought to be cancelled.

Orders

  • The plaintiff is declared the lawful and proper owner of Kyadondo Block 215 Plot 114 land at Kulambiro.
  • It is declared that the defendants' certificates of title were fraudulently and or erroneously issued by the Registrar of titles.
  • It is declared that the defendants are trespassers on Kyadondo Block 215 Plot 114 land at Kulambiro.
  • A permanent injunction is issued restraining the defendants and their agents or servants from pursuing or effecting any further subdivisions, transfers, or continued encroachment on the suit land described as Block 215 Plot 114 land at Kulambiro.
  • All the defendants, their agents, servants, assignees, and or successors are ordered to give vacant possession of the suit land.
  • The Registrar Land Registration is ordered to recall and cancel all the defendants' titles and all subsequent titles relating to the suit land.
  • The plaintiff is awarded UGX 250,000,000 as general damages at 8% interest per annum from the date of judgment till payment in full.
  • Costs of the suit are awarded to the plaintiff.

Rules and key headnotes

Registration of Title — Indefeasibility — Priority Between Competing Titles
Where a certificate of title is issued during the subsistence of an earlier valid certificate of title over the same land, the later title is null and void and passes no proprietary interest. Under the Registration of Titles Act s.48(1), priority in registration determines title: the first registered proprietor's title takes precedence over all subsequently issued titles relating to the same land.
Registration of Title — Indefeasibility — Section 59 Protection Against Informality
Under Registration of Titles Act s.59, a certificate of title once issued cannot be impeached on account of any informality or irregularity in the application or registration process. The certificate is conclusive evidence of the particulars set forth and of the proprietor's estate or interest, and is indefeasible except for fraud proved against the registered proprietor.
Bona Fide Purchaser for Value Without Notice — Actual Notice
A purchaser who receives formal written notice from the Registrar of Titles or the Land Office of a prior registered proprietor's title and of irregularities in the vendor's title before or shortly after purchase cannot claim to be a bona fide purchaser for value without notice. Where a purchaser's predecessor in title was formally notified and the purchaser acquired the land thereafter, the purchaser takes subject to the equities of the true owner.
Bona Fide Purchaser for Value Without Notice — Duty of Inquiry
Failure to make reasonable inquiries of persons in possession and use of land, or the purchaser's ignorance or negligence in conducting due diligence (including proper search at the Land Registry and inquiry from local authorities), forms particulars of fraud or constructive notice. Abstaining from making inquiries does not make a purchaser bona fide for value without notice, and fraud may be attributed to such a purchaser. Land is valuable property and buyers are expected to make thorough investigations not only of the land but also of the sellers before purchase.
Trespass to Land — Trespassers on Wrongly Titled Land
Where defendants hold certificates of title that are null and void because they were issued during the subsistence of a prior valid title over the same land, and the defendants had actual or constructive notice of the irregularity, they are trespassers on the land of the true registered proprietor and may be ordered to give vacant possession.
Registration of Titles Act — Effect of Parallel Titles on Same Land
Where the Land Registry records show that a certificate of title remains intact with no subdivision entries, yet subsequent certificates purporting to be subdivisions of that plot are issued based on mutation forms signed by a third party, those subsequent certificates have no legal foundation. A title created in the subsistence of another title on the same piece of land passes no proprietary interest and is null and void.

Legislation cited (6)

Cases cited (20)

  • Auto Garage & Anor v Motokov [1971] EA 314
  • Tororo Cement v Frokina International Ltd (SCCA No. 2 of 2001)
  • Jani Properties Ltd v Dar es Salaam City Council [1966] EA 281
  • Struggle Ltd v Port African Insurance Co. Ltd [1990] ALR 46
  • Kapeeka Coffee Works Ltd v Npart (CACA No. 3 of 2000)
  • Livingstone Ssewanyana v Martin Aliker (SCCA No. 4 of 1999)
  • John Kalarikawe v Kalwiremu & Another [1977] HCB 187
  • Olinda De Souza v Kasantali Manji [1962] EA 756
  • Masaba Nomunane & Anor v Stirling Civil Engineering Ltd & 4 Others (HCCS No. 2364 of 2016)
  • David Sejjaaka Nalima v Rebecca Musoke (Civil Appeal No. 12 of 1985)
  • Haji Abdu Nasser Katende v Vithalidas Haridas and Co. Ltd (CACA No. 84 of 2003)
  • Ndimwibo & 3 Others v Amoaire (Civil Appeal No. 65 of 2011)
  • Kampala Bottlers Ltd v Damanico (U) Ltd (SCCA No. 22 of 1992)
  • Uganda Posts & Telecommunication V. Abraham Katumba
  • Frederick Zaabwe v Orient Bank Limited and Others (SCCA No. 4 of 2006)
  • Sir John Magira v Ausi Matovu (CACA No. 7 of 1996)
  • Kenyenya Waniala Herbert & 2 Others v Robinah Nabikolo & 4 Others (HCCS No. 771 of 2007)
  • Luzinda v Ssekamatte & 3 Others [2020] UGHCCD 20
  • Uganda Revenue Authority v Stephen Mabosi (SCCA No. 1 of 1996)
  • Taylor V. Stilbert

Full judgment

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Spear_Motors_Limited_v_Kiiza_and_9_Others_(Consolidated_Civil_Suit_17_of_2008;_Consolidated_Civil_Suit_247_of_2007;_Consolidated_Civil_Suit_340_of_2007)_[2023]_UGHCLD_303_(30_Augus
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