“A Certificate of Title Does Not Automatically Confer Vacant Possession and Remains Subject to the Statutory Rights of Bona Fide Occupants under the Land Act.” High Court Rules.
- Kiiza John Paul
- 3 days ago
- 5 min read
FACTS
The Plaintiff, Joseph Mbaziira, purchased approximately 3 acres of land comprised in Kyadondo Block 194 Plot 62 from Debulasia Nassali on 10 September 1997. The land was subsequently subdivided, and after selling portions to various buyers, the Plaintiff retained the suit land, Kyadondo Block 194 Plot 2009, measuring approximately 0.86 acres (0.351 hectares).
The late Kasujja Fred, a son of the vendor Nassali, had been in occupation of approximately 0.75 acres of the suit land (being one quarter of the 3 acres purchased). Evidence from defence witnesses (DW1–DW5) established that the late Kasujja Fred's mother occupied the suit land from as early as 1968, and that she gave the land to Kasujja Fred upon his marriage that year. Permanent structures were constructed on the land, and the late Kasujja Fred's mother lived there until her death in 1982.
According to the plaintiff, Nassali permitted the late Kasujja Fred to cultivate cassava and sweet potatoes on the land. However, he instead constructed structures, which prompted Nassali to sell to the Plaintiff. The Plaintiff alleged that in 2011, the 1st and 2nd Defendants (who claim through the late Kasujja Fred) trespassed on the suit land and constructed illegal structures. The Plaintiff therefore sued for a declaration of ownership, eviction, a permanent injunction, mesne profits, and general damages.
ISSUES
Whether the Plaintiff is the lawful owner of the suit land.
Whether the Defendants are trespassers.
What remedies are available to the parties.
REPRESENTATION.
PLAINTIFF.
Counsel Owak Raymond from M/s MOM Advocates.
DEFENDANTS.
Counsel Kateregga Jennifer from M/s JN Kate regarding Advocates and legal Consultants
SUBMISSIONS
On Preliminary Objection
Counsel for the Defendants raised a preliminary objection, arguing that the Plaintiff claimed 3 acres in submissions, but the land title shows only 0.351 hectares, and that the suit Plot was formerly Plot 182, not Plot 62. Plaintiff's Counsel countered that the registered ownership was undisputed, the claim of 3 acres was not pleaded in the plaint, and any discrepancy in acreage was explained by prior sales reducing the land to its current 0.86 acres.
On Issue 1 Ownership
Plaintiff's Counsel relied on Section 59 of the Registration of Titles Act Cap. 240 and the cases of Frazer v Walker [1967] AC 569 and Fredrick J.K. Zaabwe v Orient Bank Ltd & Ors SCCA No. 4 of 2006, arguing that a registered title is indefeasible absent fraud. Counsel further contended that the Plaintiff was a bona fide purchaser for value without notice, relying on Kampala Bottlers Ltd v Damaniko (U) Ltd SCCA No. 22 of 1952 and Hannington Njuki v George William Musisi (1999) KALR 783.
On Issue 2 Trespass
Plaintiff's Counsel cited Justine E.M.N. Lutaaya v Sterling Civil Engineering Co. SCCA No.11 of 2002 and Sheikh Muhammed Lubowa v Kitara Enterprises Ltd C.A.C.A No.4 of 1987 on the elements of trespass. Counsel further argued, citing Harrison v Duke of Rutland (1893) 1 QB 142,, that an initially lawful entry becomes trespass when the entrant remains after permission is withdrawn or abuses the permission granted.
Defendants' Counsel challenged the first element of trespass by questioning the manner in which the Plaintiff obtained his title. On the third element, Counsel relied on Kaggwa Michael v Apire John HCCA No.126 of 2019, arguing that the Defendants' entry was lawful as possession of land is a good title against all but a person with a better title.
COURT’S FINDINGS
On the Preliminary Objection
The Court overruled the preliminary objection, stating that the Plaintiff's plaint disclosed a cause of action. Questions about the acreage discrepancy and plot number were held to be matters of evidence not suitable for a preliminary objection. The Court cited Yudaya Lutta Musoke v Greenland Bank (In Liquidation) HCCS No. 506 of 2001:
"preliminary objections are only justifiable when they are founded purely on law and argued on the face of pleadings. Where Court has to go beyond the pleadings and seek to rely on evidence adduced, or where the objection seeks the exercise of judicial discretion, it is improper to do so by way of preliminary point of objection."
On Issue 1 of the Lawful Owner
The Court found that the Plaintiff's certificate of title (PEX2) for Kyadondo Block 194 Plot 2009 constituted conclusive proof of ownership under Section 59 of the Registration of Titles Act Cap. 240. The Defendants neither filed a counterclaim nor pleaded fraud. The Court, citing Semalulu v Nakitto High Court Civil Appeal No. 4 of 2008, observed:
"Moreover, the Court itself is also bound by what the parties have stated in their pleadings as to the facts relied on by them."
Accordingly, without a fraud plea or counterclaim, the Court declined to go beyond the pleadings and found the Plaintiff to be the lawful registered owner of the suit land.
On Issue 2 the Bonafide Occupants
Despite finding the Plaintiff to be the registered owner, the Court dismissed the trespass claim. The critical issue turned on the third element, whether the Defendants' occupation was unlawful. The Court found it was not, given that the late Kasujja Fred's mother had occupied the suit land from at least 1968, well before the Plaintiff's purchase in 1997.
Defence witnesses DW1–DW5 testified that the late Kasujja Fred's mother gave him the land in 1968 upon marriage, that permanent structures existed since that time, and that she lived there until her death in 1982. These testimonies were not challenged in cross-examination (the Plaintiff having failed to participate in the defence hearing), and the Court acted upon them per URA v Stephen Mabosi SCCA No.26 of 1995,
"Where evidence in chief by a party to proceedings is not challenged by the opposite party on a material or essential point either through cross-examination… it leads to the inference that the evidence is accepted and it is always open to the court seized with the matter to act upon such evidence before it."
The Court held that the occupation since 1968, unchallenged by the registered owner for over twelve years before the Constitution came into force, qualified the late Kasujja Fred and those deriving title from him as bonafide occupants under Section 29(2)(a) of the Land Act Cap. 236:
"persons who before the coming into force of the Constitution had occupied and utilised or developed any land unchallenged by the registered owner or agent of the registered owner for twelve years or more."
The Court further held that such bonafide occupants are entitled to security of occupancy as against registered owners under Sections 31(1) and 3(4)(b)(c) of the Land Act, and per Kampala District Land Board & Others v Venansio Babweyaka & Others SCCA No.2 of 2007, they cannot be arbitrarily evicted.
The High Court entered judgment in favour of the Plaintiff in part, with the following orders;
The Plaintiff is declared the lawful registered owner of land comprised in Kyadondo Block 194 Plot 2009.
The Defendants are bonafide occupants of the suit land and are entitled to security of occupancy.
The claims for eviction, permanent injunction, mesne profits, and general damages are ALL DISMISSED.
Each party shall bear its own costs.
Read the full case below
KEY TAKE AWAYS.
1. A title deed is indefeasible, indestructible or cannot be made invalid save for specific reasons under the Registration of Titles Act Sections 64, 76 and 174 which relate to Fraud.
In absence of Fraud on the part of the transferee a registered owner holds an indefeasible title.
The elements of trespass are as below;
a) That the disputed land belongs to the plaintiff.
b) That the defendant had entered up on it.
c) That the entry was unlawful in that it was made without permission or that the defendant had no claim or right or interest in the disputed land.
4. Kampala District Land Board and Others Vs Venansio Babweyaka and Others.[Supra] Supreme Court held that an occupant cannot be arbitrarily evicted from land.
5. Katarehwere Vs Lwanga ( 1988- 90). HCB 86, where it was held that a plaint which does not supply particulars is defective
COMPILED BY;
KIZZA JOHN PAUL
Email: Johnpaulkizza499@gmail.com
Legal Scholar at Ugandan Christian University, Mukono Campus.
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