“Family land must show clear evidence of residence or sustenance to attract statutory protection under Section 39 of the Land Act,” affirms the High Court at Mukono.

Waboga David
Oct 25
5 min read

Facts

The Plaintiff, Amuyeru Micheal, a real estate businessman, was introduced to the 1st Defendant, Seruwagi Thaddeus (the registered proprietor), by a broker named Iga Peter. The Plaintiff inspected the undeveloped bushland, which was neither cultivated nor occupied, and conducted a title search at the Ministry Zonal Office in Mukono, confirming the 1st Defendant as the sole proprietor with no encumbrances.

On September 9, 2022, the parties executed a written sale agreement for UGX 100,000,000 (One Hundred Million Uganda Shillings). The Plaintiff paid the full purchase price in cash. Immediately thereafter, the 1st Defendant handed over vacant possession, the original certificate of title, duly executed transfer forms, his National Identification Card copy, passport photograph, and Tax Identification Number (TIN), all tendered as exhibits PEXH 3–8.

The Plaintiff promptly graded the land, opened boundaries, and prepared for mutation and registration. Shortly after, the 1st Defendant repudiated the sale, claiming it was a "friendly loan" (later inconsistently inflated to UGX 200,000,000 without supporting evidence). He either personally or through impersonation caused the 2nd Defendant, Seruwagi Gloria (his spouse), to lodge a caveat on February 10, 2023, asserting the property was "family land." The 1st Defendant further swore a false affidavit in Miscellaneous Cause No. 53 of 2023 supporting this narrative.

The 2nd Defendant later disavowed the caveat, stating she neither lodged nor authorized it and held no interest in the land.

The Plaintiff instituted the suit seeking declaratory and injunctive relief, caveat removal, damages, interest, and costs. Both Defendants were served (the 1st via his counsel, M/s Redmond Associates, on May 24, 2024; the 2nd by substituted service on September 12, 2024), but neither filed a defense or appeared, leading to an ex-parte hearing under Order 9 Rule 10 of the Civil Procedure Rules.

Legal Representation

For the Plaintiff, Counsel Aleku Christopher, M/s Angualia Busiku Advocates
For the Defendants, Unrepresented
The Defendants were duly served; substituted service was effected on the 2nd Defendant. The case proceeded ex parte under Order 9 rule 10 of the Civil Procedure Rules.

Issues for Determination

Whether there exists a valid and enforceable sale agreement between the Plaintiff and the 1st Defendant.
Whether the suit land constitutes family land within the meaning of the Land Act.
Whether the Defendants’ conduct amounts to fraud.
Whether the Plaintiff is entitled to the reliefs sought.

Submissions

Counsel for the Plaintiff argued that;

The written sale agreement met all legal elements of a valid contract under Section 9 of the Contracts Act, Cap 384.
The 1st Defendant’s claim that the transaction was a “loan” was inadmissible under the parol evidence rule (Section 92 of the Evidence Act).
The land did not qualify as family land under Section 39(4) of the Land Act, as it was undeveloped bushland at the time of sale, neither occupied nor cultivated.
The 1st Defendant’s actions in lodging a caveat and fabricating loan claims amounted to fraud.

Court’s Findings and Reasoning

(i) On the Valid Sale Agreement

The Court found all elements of a binding contract under Section 9 of the Contracts Act satisfied: capacity, free consent, lawful consideration, lawful object, and intention to create legal relations.

The parol evidence rule under Section 92 of the Evidence Act barred any oral contradiction of the written agreement (Jacob v. Batavia [1924] 1 Ch 287). The 1st Defendant's loan narrative was "not only unsupported by evidence but also legally inadmissible."

(ii) On Whether the Land Was Family Land

The Court held that:

“The uncontroverted evidence showed that the land was bush and undeveloped, without residence or cultivation, and that it was cleared and graded only after the Plaintiff purchased it.”

The land did not qualify as family land under Section 39(4) of the Land Act, Cap. 236, which requires (a) family residence, (b) sustenance derivation, or (c) voluntary agreement to treat as such.

The evidence showed "the land was bush and undeveloped, without residence or cultivation," graded only post-purchase. Occasional use does not suffice (Tumusiime Jacenta v. Mubangizi Stephen & Anor HCCA No. 25 of 2022).

Absent spousal consent evidence or statutory criteria, the transaction was valid.

(iii) On Fraud

The Court found clear evidence of fraud:

“The conduct of the 1st Defendant in accepting the full purchase price, executing transfer instruments, handing over title, and then lodging or causing the lodging of a caveat while fabricating a ‘loan’ narrative constitutes deliberate deception.”

The 1st Defendant's actions, accepting payment, executing transfers, handing over title, then lodging a caveat and fabricating a loan, constituted "deliberate deception" and "intentional perversion of the truth" (Zaabwe v. Orient Bank, supra).

This was a "calculated scheme to frustrate the Plaintiff’s acquisition of legal title," not mere misunderstanding. The 2nd Defendant lacked fraudulent intent, as she did not lodge the caveat or claim interest; the finding attached solely to the 1st Defendant.

Unrebutted evidence was deemed proved under the Evidence Act.

(iv) On Remedies

The caveat, lodged under Sections 123–124 of the Registration of Titles Act, Cap. 240, required a "legally cognisable interest" (Boyes v. Gathure [1969] EA 385; Sentongo Produce & Coffee Farmers Ltd v. Nakakufuma Muyisa HCMC No. 690 of 1999).

Lacking such, it was "both factually and legally untenable" and must be vacated. The Plaintiff proved inconvenience, delay, and commercial loss, justifying general and punitive damages due to "aggravated" deceit.

“A caveat unsupported by a legal interest cannot stand.” — citing Boyes v. Gathure [1969] EA 385 and Sentongo Produce & Coffee Farmers Ltd v. Nakakufuma Muyisa HCMC No. 690 of 1999.

The Court therefore ordered the removal of the caveat, granted injunctive relief, damages, and costs to the Plaintiff.

Holding / Orders of Court

The sale of the suit land between the Plaintiff and 1st Defendant is declared valid and enforceable.
The caveat lodged on 10 February 2023 is to be withdrawn within 14 days, or the Commissioner for Land Registration shall vacate it.
A permanent injunction and eviction order issued restraining the Defendants and their agents from interfering with the Plaintiff’s land.
General damages: UGX 5,000,000, jointly and severally against both Defendants.
Punitive damages: UGX 1,000,000 against the 1st Defendant only.
Interest: 8% per annum from date of judgment until payment in full.
Costs: Awarded to the Plaintiff.

Key Takeaways

A written sale agreement remains binding and conclusive evidence of the parties’ intentions; oral claims inconsistent with it are inadmissible.
Family land must show clear evidence of residence or sustenance to attract statutory protection under Section 39 of the Land Act.
A fraudulent caveat lodged without a legal interest amounts to a civil wrong and can attract punitive damages.
The Court reaffirmed that vacant, undeveloped land cannot be retrospectively labelled as family land to defeat a bona fide purchaser.
The case also highlights the courts’ zero tolerance for fraudulent repudiation of land transactions and reinforces protections for bona fide purchasers under the Registration of Titles Act.