“In determining whether a person is a bona fide occupant, the Court only has to consider the duration a person has been in occupation of land.” Court of Appeal Rules.

Waboga David
Nov 19
6 min read

Updated: Nov 20

FACTS

This appeal and cross-appeal arose from the High Court (Land Division) decision in Civil Suit No. 247 of 2011, where both the Plaintiff’s suit and the Defendant’s counterclaim had been dismissed.

Key facts included:

The Respondent (Dr. Makuza) purchased Kibuga Block 26 Plot 284 in 1993 from the late Musa Mpagi, who was in occupation.
The registered proprietor at the time, however, was the late Ajija Nabukalu (Mpagi’s mother), who died in 1978 without taking possession.
Mpagi sold the land without letters of administration.
After Mpagi’s death, the Appellant (Nakamya), his daughter, obtained letters of administration in 2006, registered herself as proprietor, and pledged the land for a loan.
The Respondent claimed he had paid her UGX 17,000,000 for transfer processing, which she never effected.
The High Court held that Respondent was a bona fide occupant, dismissed both claims, and advised parties to negotiate.

Both parties appealed.

ISSUES

The Court of Appeal condensed the appeal and cross-appeal into three broad issues:

Whether the trial judge erred in finding that the Respondent was a bona fide occupant.
Whether the Respondent’s long occupation entitled him to ownership.
What remedies were appropriate in the circumstances.

SUBMISSIONS

Appellant’s Submissions (Nakamya)

The trial judge erred in raising bona fide occupancy unpleaded and unsupported by evidence.

Respondent did not qualify as a bona fide occupant under Section 29 of the Land Act.

The sale by Mpagi was invalid because he had no letters of administration, amounting to intermeddling.

No evidence showed that the Respondent had any transferable interest.

The High Court wrongly relied on an irregularly amended Written Statement of Defence.

Respondent was not entitled to any interest in the land.

Respondent’s Submissions (Dr. Makuza)

The late Mpagi had been in possession since 1970, more than 25 years before 1995, satisfying Section 29(2)(a) on bona fide occupancy.

A person who purchases the interest of a qualified bona fide occupant becomes one under Section 29(5).

Long possession was proven and conceded by the Appellant.

Fraud was committed by the Appellant through:

reneging on transfer arrangements,
obtaining letters of administration to defeat his interest,
mortgaging the land while aware of his long possession,
unlawfully removing his caveat.
The High Court erred by dismissing a well-proven case and advising “negotiations” instead of granting relief.
The Respondent sought ownership or refund of UGX 17,000,000.

LEGAL REPRESENTATION

Appellant, Mr. Isa Kavuma
Respondent, Mr. Henry Rwaganika

The Court adopted the parties’ written submissions.

COURT’S FINDINGS

Duty of the First Appellate Court

The Court reiterated its duty to re-evaluate evidence under Rule 30(1)(a) and cited the principle in Coghlan v. Cumberland:

“A first appellate court has a duty to reconsider the materials before the judge… and not shrink from overruling it if… the judgment is wrong.”

1. On Bona Fide Occupancy

The Court found that the trial judge erred when he concluded that the Respondent was a bona fide occupant within the meaning of the land law framework. The Court emphasized that bona fide occupancy is strictly defined by statute, including the cut-off dates for occupation.

The Court noted at paragraph [47]:

“...the Respondent occupied the suit land in 1993, and did not therefore claim as a bonafide occupant… the learned trial Judge’s finding that possession of the suit land from 1993 qualified the Respondent as bonafide occupant… was evidently in error.”

This observation confirms that occupation commencing in 1993 falls outside the statutory protections accorded to bona fide occupants. The Court therefore held that the trial judge misapplied the law by extending bona fide occupancy protections to circumstances not contemplated by statute.

Nevertheless, the Court clarified that although the Respondent was not a bona fide occupant, his rights over the land arose under the doctrine of adverse possession, which became the central basis for the Court’s decision.

2. On Adverse Possession

The Court gave considerable attention to the historical occupation of the land and found that title had passed through adverse possession, first to the late Mpagi, and later—alternatively—to the Respondent. The Court underscored that prolonged, uninterrupted, open, and exclusive possession had the legal effect of extinguishing the title of the estate of the late Nabukalu.

At paragraph [55], the Court observed:

“Both the late Mpagi and the Respondent can be said to have obtained title of the suit land by possession because they occupied it long enough to dispossess the estate of the late Nabukalu… when the late Mpagi sold the suit land he was the owner as he had obtained title by adverse possession and, therefore, lawfully sold the land.”

The Court accepted that by the time Mpagi transacted over the land, he had already acquired ownership by adverse possession, making the sale valid and binding.

The Court further stated at paragraph [56]:

“We also take the alternative view that the Respondent also obtained title by adverse possession when he occupied the suit land from 1993… by 2006, the Respondent had stayed on the suit land long enough and had dispossessed the estate of the late Nabukalu and the Appellant could not be rightfully registered as the proprietor…”

In this alternative finding, the Court held that even if Mpagi had not perfected title by adverse possession, the Respondent himself had acquired title by 2006, long before the Appellant sought registration. This finding effectively defeated the Appellant’s claim to lawful ownership.

3. On Fraud in the Appellant’s Registration

The Court made a decisive finding that the Appellant’s acquisition of title was tainted by fraud. The Court held that the Appellant knowingly misrepresented the status of the land and intentionally concealed the Respondent’s longstanding and well-known possession.

At paragraph [58], the Court concluded:

“...it was false for the Appellant to assert that the suit land belonged to the estate of the late Nabukalu in the process of obtaining registration as proprietor of the suit land. Moreover, the evidence indicates that the Appellant was aware of the Respondent’s interest long before she embarked on obtaining her registration. We accordingly find that the registration of the Appellant was obtained through fraud with the intention of defeating the Respondent’s interests…”

This finding squarely placed the burden of fraudulent conduct on the Appellant, thereby invalidating her title and reinforcing the Respondent’s superior equitable and possessory rights.

4. On the UGX 17,000,000 Payment

The Court also examined the financial dealings between the parties, particularly the claim regarding payments totalling UGX 17,000,000 under a facilitation agreement. The Appellant attempted to deny receiving the funds or benefiting from them, but the Court found her testimony inconsistent and unreliable.

the Court held that:

The Appellant signed the facilitation agreement,
She received and benefited from the payments, and
Her contradictory explanations were not credible.

The Court therefore applied the common law principle of money had and received, which allows recovery of funds unjustly retained. It concluded that the Respondent was entitled to restitution because the Appellant had no lawful basis to keep the money.

HOLDING

Appeal (by the Appellant): Dismissed.
Cross-Appeal (by the Respondent): Dismissed, except to the extent that the Court affirmed his status as bona fide occupant.
Respondent remains in lawful possession.
Ownership was not transferred to the Respondent.
No refund was ordered.
Both parties to bear their own costs, given the unique circumstances.

KEY TAKEAWAYS

1. Long possession is central to bona fide occupancy

Even without a valid sale agreement, uninterrupted possession for 12+ years before 1995 creates bona fide occupancy.

2. A purchaser of a bona fide occupant becomes a bona fide occupant

Section 29(5) protects successors in title of bona fide occupants.

3. Fraud must be strictly pleaded and strictly proved

Courts will not infer fraud from administrative irregularities or family disputes over estates.

4. Invalid sale ≠ loss of possessory rights

A void sale by a person lacking letters of administration does not automatically dispossess a purchaser who has occupied land for decades.

5. Courts discourage “equitable negotiations” in final judgments

Trial courts should resolve disputes, not defer them to undefined negotiation processes.

6. Payment to third parties must be strictly proved

Where money is paid to an agent or intermediary, liability cannot be shifted without proof of authorization.

7. Family land disputes continue to expose gaps in estate administration

This case shows how long-term occupation and informal transactions can complicate succession and land registration.

Read the full case