Wakilii

Sufi Murisho Jamil and 2 Others v Abed (Civil Appeal No. 44 of 2017)

High Court · [2021] UGHC 13 · 2021 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from Chief Magistrate's Court judgment in a land recovery suit
Decision
Appeal partly allowed. Lower court's finding that appellants are trespassers upheld. Order cancelling 3rd appellant's title set aside; respondent to move High Court formally for cancellation orders. Interest on damages reduced from 27% to 12% per annum.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court held that the respondent's claim was not time-barred as trespass is a continuing tort and fraud was discovered within the limitation period. The trial magistrate correctly found the appellants to be trespassers but erred in directly ordering cancellation of the 3rd appellant's title, though this was cured by his direction to forward the matter to the High Court. The appeal succeeded in part: the order cancelling title was set aside and the respondent directed to move the High Court formally; interest on damages was reduced from 27% to 12% per annum.

Outcome

Appeal partly allowed. Lower court's finding that appellants are trespassers upheld. Order cancelling 3rd appellant's title set aside; respondent to move High Court formally for cancellation orders. Interest on damages reduced from 27% to 12% per annum.

Facts

The respondent's late father purchased land in Bugiri in 1966 for his three sons. He donated a portion to Mugoya Bin Salim Musoga Wakandia, who sold to Sowedi Musoga in 1975. Musoga sold his portion (50ft x 100ft) to the late Sufi Ismail Murisho, the 1st appellant's husband, in 1991. The respondent alleged that Murisho wrongfully took over possession of the entire suit land (100ft x 200ft and 68ft x 100ft), exceeding the portion he purchased. During the pendency of the suit, the 2nd appellant fraudulently created a plot of the suit land and procured registration in favour of the 3rd appellant on 23 April 2015. The respondent had caused the land to be surveyed and was awaiting a lease offer signed by the Bugiri District Land Board in 2011, before the appellants' registrations. The trial magistrate found all appellants to be trespassers and ordered vacant possession, permanent injunction, cancellation of the 3rd appellant's title, general damages of UGX 18,000,000, interest at 27%, and costs.

Issues

  1. Whether the trial magistrate had pecuniary jurisdiction to handle a matter for recovery of land valued over UGX 300,000,000.
  2. Whether the trial magistrate erred in law when he purported to order cancellation of the 3rd appellant's certificate of title.
  3. Whether the suit was barred by statutory limitation of time under the Limitation Act.
  4. Whether the appellants were trespassers on the respondent's land.
  5. Whether the trial magistrate failed to properly evaluate the evidence.
  6. Whether the award of general damages of UGX 18,000,000 had legal basis.

Orders

  • The judgment and order cancelling the name of the 3rd appellant and replacing it with that of the respondent is set aside.
  • The respondent may formally move the High Court for appropriate orders with regard to the certificate of title comprised in FRV JJA 121 Folio 17, Plot 152 Grant Street at Nkusi, now registered in the names of M/s Gilgal Highway Shopping Centre Ltd, the third appellant.
  • The order of interest of 27% on general damages is set aside and replaced with an interest of 12% per annum from the date of judgment until payment in full.
  • The respondent shall have one half of the costs of the appeal, and one half of the costs in the Court below.
  • The rest of the judgment and orders of the lower court are maintained.

Rules and key headnotes

Limitation of Actions — Continuing Tort — Trespass to Land
Trespass to land is a continuing tort where an unlawful entry on land is followed by continuous occupation or exploitation. Where the right of action is based on a continuing tort such as trespass, if the commencement date is outside the limitation period, such part of the continuing tort as is within the time limit is severed and actionable alone.
Limitation of Actions — Fraud Exception — Discovery of Fraud
Under Section 25 of the Limitation Act, where a case is based on fraud, the limitation period shall not begin to run until the plaintiff has discovered the fraud or could with reasonable diligence have discovered it. Fraud must be expressly pleaded and the court is bound to restrict its conclusion to the pleadings.
Registration of Titles — Jurisdiction to Cancel Title — High Court Powers
Under Section 177 of the Registration of Titles Act, only the High Court has jurisdiction to cancel a certificate of title or direct the registrar to substitute entries in the Register Book. A magistrate's court that does not have jurisdiction to cancel a certificate of title may make a finding of fraud and direct that the record be forwarded to the High Court for appropriate orders, but cannot itself order cancellation.
Unregistered Interests — Priority — Fraud
An unregistered interest that is first in time is protected in law. One who procures registration of land by defeating an unregistered interest does so with fraud, and their title can be impeached. Where an agent has notice of an unregistered interest, that notice can be imputed to the principal who obtains registration through the agent.
Trespass to Land — Proof of Possession — Constructive Possession
To succeed in a claim for trespass to land, a plaintiff must prove that he was in physical or constructive possession of the land or had better title than the defendant. Constructive possession may be established through prolonged family interest, survey of the land, and control as an heir, even without physical presence.
Appeals — Grounds of Appeal — General Grounds
Appellate courts discourage and may dismiss general grounds of appeal which are too vague and constitute a fishing expedition by the appellant to hazard what an appellate court can grant. A ground of appeal must be specific enough to enable the court to identify the precise error complained of.
Damages — General Damages — Appellate Interference
An appellate court may only interfere with an award of general damages when it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on the wrong principle or misapprehended the evidence in some material respect. General damages are compensatory and must place the injured person in as good a position as before the wrong was committed.

Legislation cited (9)

Cases cited (11)

  • Pandya v R [1967] EA 336
  • Narsensio Begumisa and 3 Others v Eric Kibebaga (Supreme Court Civil Appeal No. 17 of 2002)
  • Murome v Kuko (1985) HCB 68
  • Hwang Sung Ltd v M. & D. Timber Merchants & Transporters Ltd (Supreme Court Civil Appeal No. 2 of 2018)
  • E.M.N Lutaya & Sterling Civil Engineering Company Ltd (Supreme Court Civil Appeal No. 11 of 2002)
  • Paulo Kamya v Kampala District Land Board (Supreme Court Civil Appeal No. 69 of 2001)
  • Kawuki v Semaganyi (High Court Civil Suit No. 19 of 2014)
  • Katumba & Byarunga v Edward Kywalabye Musoke (Court of Appeal Civil Appeal No. 2 of 1998)
  • Sejjaaka Nalima v Rebecca Musoke (Supreme Court Civil Appeal No. 12 of 1985)
  • Fredrick Zabwe v Orient Bank and 5 Others (Supreme Court Civil Appeal No. 4 of 2006)
  • Kampala Matiya Byabalema and Others v Uganda Transport Company (1975) Ltd (Supreme Court Civil Appeal No. 10 of 1993)

Full judgment

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Sufi Murisho Jamil and 2 Others v Abed (Civil Appeal No. 44 of 2017) [2021] UGHC 13 (25 February 2021)
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.