Wakilii

Sserumaga v Kazibwe (Civil Suit 67 of 2013)

High Court · [2023] UGHCLD 413 · 2023 Judgment for Plaintiff AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for cancellation of title on grounds of fraud and declaration of ownership
Decision
Plaintiff declared rightful owner; defendant's registration cancelled and ordered to deliver certificate of title for cancellation; permanent injunction issued restraining defendant from claiming or interfering with the land

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The plaintiff was in actual possession of the suit land since 1971 as a kibanja owner and later as purchaser of registrable interest from the registered proprietor. The plaintiff holds an equitable interest in the land. The defendant was not a bonafide purchaser for value without notice because he failed to exercise due diligence by not inquiring from neighbors or local council authorities despite the vendors not being in actual possession. The defendant fraudulently acquired registration by misrepresenting to the registered proprietor that he had paid the purchase price when transfer forms were executed months before the alleged purchase. The plaintiff is declared the rightful owner and the Registrar of Titles is directed to cancel the defendant's registration.

Outcome

Plaintiff declared rightful owner; defendant's registration cancelled and ordered to deliver certificate of title for cancellation; permanent injunction issued restraining defendant from claiming or interfering with the land

Facts

In 1971, plaintiff bought kibanja interest in land from Amitai Lwanga. In 1975, he purchased registrable interest from the registered proprietor Princess Nalinya Kasalina Nkinzi for UGX 5,000 paid in installments. Transfer and consent forms were executed but plaintiff did not effect registration. Plaintiff took possession, fenced the land, and used it as paddock for his cattle farm. In October 2006, defendant purchased the same land for UGX 15 million from Busuulwa Alex and Fred Sinnabulya, who claimed to have received it as a gift from Nkinzi in April 2006. Defendant conducted search at land registry and confirmed land was registered in Nkinzi's name without encumbrances. Nkinzi executed transfer forms in defendant's favor on 27 April 2006. Defendant obtained duplicate certificate of title in October 2007 but could not take physical possession due to plaintiff's resistance. Court found that transfer forms were signed months before the alleged purchase agreement dated 12 October 2006.

Issues

  1. Whether the plaintiff was in possession of the suit land at the time the defendant purchased the same.
  2. Whether the plaintiff has any interest in the suit land.
  3. Whether the defendant is a bonafide purchaser for value without notice of the plaintiff's unregistered interest in the suit land.
  4. Whether the defendant acquired registration of the suit land fraudulently.
  5. What remedies are available to the parties?

Orders

  • The plaintiff is hereby declared to be rightful owner of the land comprised in Kyadondo Block 265 Plot 817.
  • The Registrar of Titles is hereby directed to cancel the name of Emmanuel Kazibwe from the certificate of title of the land comprised in Kyadondo Block 265 Plot 817 and substitute it with the name of Sserumaga William.
  • The defendant should hand over the duplicate certificate of title to the Registrar of Titles for cancellation.
  • A permanent injunction is hereby issued restraining the defendant, his servants, agents, employees or anybody claiming under him from laying any further claims on the suit land or in any way interfering with the plaintiff's possession of the same.
  • The defendant shall pay UGX 5,000,000 to the plaintiff as general damages.
  • The defendant shall pay costs of the case to the plaintiff.

Rules and key headnotes

Equitable Interest — Unregistered Purchaser — Rights Against Third Parties
A purchaser who has bought land from the registered proprietor and received executed transfer documents holds an equitable interest in the land even where transfer has not been effected into their name on the certificate of title. Equity considers a gift or sale complete as soon as the donor or vendor has done that which ought to be done, and it is immaterial whether the donee or purchaser registers a transfer.
Possession — Possessory Title — Enforceable Rights
Possession of land confers a possessory title upon the holder and a recognizable enforceable right to exclude all others but persons with a better title. Possession of land is in itself a good title against anyone who cannot show a prior and better right to possession.
Bonafide Purchaser — Due Diligence — Actual Possession by Third Party
A bonafide purchaser for value is a person who acquires property without actual or constructive notice of any defect in title, has in good faith paid valuable consideration without prior notice of any adverse claim, and has exercised due diligence and reasonable caution before entering into the transaction. Where neither the vendor nor the registered proprietor is in actual possession of land being purchased, a purchaser has a duty to make inquiries from neighbors and local council authorities to ascertain the interest of the person in actual possession. Failure to make such inquiries negates the exception of being a bonafide purchaser and imputes fraud.
Due Diligence — Land Registry Search — Physical Inspection
Conducting a search in the land registry is not sufficient due diligence. A purchaser ought to conduct a physical search on the land to establish possession and also ask neighbors about the state of the land.
Fraud — Proof — Standard of Proof
Fraud is an intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or surrender a legal right. To succeed in a claim of fraud, the plaintiff must prove that there were acts of dishonesty attributable to the defendant or that the defendant knew of such acts and took advantage of them. The standard of proof of fraud is slightly higher than balance of probabilities though not beyond reasonable doubt.
Cancellation of Title — Fraud — Certificate of Title
While a certificate of title is conclusive proof of ownership of the land to which the title relates, it can be impeached for fraud. Where registration has been obtained fraudulently, the court may direct the Registrar of Titles to cancel the fraudulent registration and substitute the name of the rightful owner.
Limitation — Right of Action — Accrual
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. The right of action accrues when the claimant first has reason to bring suit, not from the date of the original transaction. Where a plaintiff only discovers a competing claim to land years after purchase, the right of action accrues from the date of discovery of the competing claim, not from the date of the plaintiff's own purchase.

Legislation cited (7)

Cases cited (8)

  • Norah Nassozi & Anor v George Kasule & William (Civil Appeal No. 5 of 2012)
  • Kaggwa Michael v Apire John (High Court Civil Appeal No. 126 of 2019)
  • Amrattal v Purshottan & Anor (HCCS No. 289 of 2010)
  • David Ssejjaka Nalima v Rebecca Musokes (Civil Appeal No. 12 of 1985)
  • Rogers Kalyegira Eulogius v Irene Rukundo Potts (High Court Civil Suit No. 181 of 2019)
  • Fredrick Zaabwe v Orient Bank & 5 others (Civil Appeal No. 4 of 2006)
  • Kampala Bottlers Ltd v Domanico (U) Ltd (SCCA No. 22 of 1992)
  • Makula International v Cardinal Nsubuga [1982] HCB

Full judgment

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

Sserumaga_v_Kazibwe_(Civil_Suit_67_of_2013)_[2023]_UGHCLD_413_(14_November_2023)
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.