Competing Legal Interests in Land
On 15th August 2024, the Court of Appeal of Uganda delivered its decision in the case of Kalungu Farm Ltd v. Muluta Wilson William & The Commissioner Land Registration, C.A. Civil Appeal No. 314 of 2020. The appeal had been lodged by the appellant (Kalungu Farm Ltd) challenging the decision of Bashaija, J., who had made an order at the High Court for cancellation of the appellant’s freehold certificate of title. The Court allowed the appeal and in doing so, considered how competing legal interests in land should be dealt with.
To identify the competing legal interests in this case, a brief overview of the appellant’s High Court suit is necessary.
The suit revolved around two certificates of title that were issued over the same piece of land at Kalanamu in Luwero District (the “suit land”). One was the appellant’s freehold certificate of title which described the suit land as Freehold Register Volume 2 Folio 8 Kalungu Estate and showed that the appellant was registered as proprietor on 19th April 1968; and the other was a mailo certificate of title which described the suit land as Bulemezi Block 15 Plots 96 and 97 and showed that the Administrator General (AG) was registered as proprietor on 9th April 2013. The AG was among the 8 persons that were named as defendants in the suit—some of the other persons included Muluta Wilson William, the Commissioner Land Registration, and Ms. Madina Nabukeera, a Lands Registrar at the Bukalasa Lands Office. The whole essence of the suit was therefore to determine which of the two competing legal interests, that is, the two certificates of title, should prevail; since it is well-established that there cannot be two certificates of title over the same piece of land. Bashaija, J., held inter alia that the mailo title was validly created and he also made an order for cancellation of the appellant’s freehold title—hence the appeal.
On appeal, the Court was faced with the question of whether the mailo certificate of title describing the land as Bulemezi Block 15 Plots 96 and 97 was validly created. But before it could address this fundamental question, the appellant, with the leave of Court, adduced additional evidence in the form of an affidavit sworn by Mr. Ssekito Moses, an Acting Principal Registrar of Titles in the Office of the Commissioner Land Registration.
Counsel for the appellant mainly contended that the 1st respondent (Muluta Wilson William) did not adduce evidence to support his case and as a result the learned trial Judge was not justified in believing his case.
The 1st respondent’s case was that the suit land initially belonged to his grandfather the late Marko Kitenda who held a Final Certificate issued after the survey of the suit land in 1915—that following the death of his grandfather, the suit land became part of his grandfather’s estate which was inherited by his father the late Semu Tenywa who also passed on and consequently the suit land became part of his late father’s estate in which he (the 1st respondent) was a beneficiary—that he and other beneficiaries notified the AG who obtained letters of administration for his late father’s estate—that on the strength of those letters of administration, the AG applied for and was issued with the mailo certificate of title on 9th April 2013 —and that thereafter, the AG transferred the suit land to him (the 1st respondent) and other beneficiaries of estate of the late Semu Tenywa.
In answering the question of whether the mailo certificate of title was validly created, the Court had to re-evaluate the evidence that had been adduced in the lower court (High Court) and on appeal.
One of the key pieces of evidence that had been adduced in support of the 1st respondent’s case was Exhibit DE3—a report said to have been made after scrutiny of the relevant records kept at the Department of Surveys and Mapping. The Court observed that according to the report, the suit land was initially owned by Marko Kitenda who initially held a Provisional Certificate (PC) 1450 and thereafter a Final Certificate (FC) 9738 for the suit land—that the FC was granted on the strength of cadastral “cartridge” map sheets 61/3/13 and 18—and that the suit land had a “grantee” known as FOB Wilson, although the report did not clarify in what capacity the suit land had been granted to him.
Counsel for the 1st respondent contended that FOB Wilson was a grantee of a lease from Marko Kitenda—in rebuttal, Counsel for the appellant relied on the additional evidence of Mr. Ssekito. The additional evidence consisted of official land records, which included indentures that clarified the history of the ownership of the suit land. The Court observed that according to the first indenture made on 6th May 1914, the suit land, then part of land held by the Crown under the Crown Lands Ordinance 1903, was transferred by the Crown to Frank O’brien Wilson and that thereafter, by a second indenture dated 3rd August 1923, Wilson transferred his interest to the Standard Bank of South Africa—the Bank on 1st February 1924 divested to Naranbhai Chaturbhai Patel who became the first registered proprietor on the appellant’s freehold title—that on 21st May 1925, a certificate of title was issued for the suit land in which it was described as Freehold Register Volume 2 Folio 8 and known as Kalungu Estate—on that title, it was stated that the land was formerly CLR Vol. 31 Folio 6 and was previously held under Crown Grant No. 10020.
Upon its perusal of the record of proceedings of the lower court, the Court in its wisdom discovered inter alia that, a) one of the 1st respondent’s witnesses, that is, DW1 Jasper Kakooza, who had tendered the report in the lower court, had stated in cross examination that there was no record supporting the claim that Kitenda granted a lease to Wilson; b) the 1st respondent in his testimony in the lower court conceded that there was no existence of a lease of suit land by Kitenda to Wilson; and c) the report made by DW1 was stated to have been made after the scrutiny of the relevant records but none of these records were tendered in the lower court.
Since the relevant records were not tendered in the lower court, the Court reasoned that there was no way of verifying the information contained in the report of DW1 Jasper Kakooza. The Court thus found that the information allegedly linked to the said report was “unsatisfactory and unreliable” and that the indentures tendered in the additional evidence of Mr. Ssekito were more credible.
As a result, the Court agreed with the appellant that indeed the learned trial Judge was not justified in believing the 1st Respondent’s case; and also opined that the evidence on record revealed that the appellant’s title was created on 21st May 1925 which was earlier than the impugned mailo title created on 9th April 2013.
“It is trite law that an earlier title takes precedence and mere allegation of fraud regarding its creation unless pleaded and proved cannot have it impeached. If fraud is not proved on the earlier title, then the latter title ought to be cancelled,” the Court authoritatively stated.
The Court then concluded that the impugned mailo title was illegally created and that therefore the learned trial Judge had erred in finding that the said mailo title was validly created.
Accordingly, the Court allowed the appeal and – (a) set aside the decision of the High Court; (b) declared the appellant’s freehold title valid; (c) set aside the mailo title initially registered in the names of the AG and the respective titles arising from subdivision therefrom; and (d) ordered the respondents to pay the appellant’s costs of the appeal and the lower court.
My major takeaway from the Court’s decision is that in issues related to competing legal interests in land, priority must be given to the certificate of title that was created first in time. In addition, litigants involved in cases similar to the one discussed herein should pay keen attention to the evidence—it must be credible. For instance, if the evidence consists of a report drawn by a surveyor/employee of a lands office, and the findings in that report are said to have been reached after scrutiny of relevant records kept at the lands office, those “relevant records” should be attached to that report so as to enable the court to inspect them—failure to attach such records, may render the report suspect.
