Businessman Desh Kananura wins land case

Kampala, Uganda | THE INDEPENDENT | City businessman Desh Kananura has won a land case against six claimants.

This comes after a panel of three Court of Appeal Justices led by Deputy Chief Justice Richard Buteera declared Kananura the rightful owner of the land located at plot 20 to plot 30 along Saddler Way in Naguru. The land measuring three acres was being claimed by several traders most of them Indians.

Other Justices were Stephen Musota and Cheborion Barishaki who wrote the lead judgement.

The land was being claimed by Himalaya Traders Limited, Kamukamu Associates Limited, Treasure Trove Uganda Limited, Singh Jetwant, Singh Gulzar, Jamil Kiyemba, Commissioner Land Registration and Uganda Land Commission.

Kananura in 2011 sued the six on grounds that by the time they acquired interest in the land in question, he was a bonafide tenant on the land and was therefore entitled to be registered as owner and a certificate issued to him accordingly.

He asked the court to declare that the respondents’ respective certificates of title over the land were obtained illegally and fraudulently and should be cancelled on grounds of illegality and fraud. Kananura also noted that the grant of leases to the respondents was in violation and contempt of a court order issued in 2008 where he was declared the lawful owner of the land.

But in their arguments, the respondents defended themselves arguing that they were granted leases on the land when it was bushy and unoccupied by anyone and that the Uganda Land Commission as the registered proprietor confirmed to them that there was no prior equitable or competing interest therein.

As such, High Court Judge Bashaija ruled in favour of the respondents by declaring them as the lawful owners of the suit land.

Bashaija also declared that Kananura was a trespasser and for that reason, he dismissed the suit before ordering Kananura to vacate the land.

At the Court of Appeal, Kananura presented eleven grounds to challenge the decision of the High Court saying that the Judge erred in law and fact by failing to evaluate properly the evidence on-court record.

But in their defence, the traders noted that they were not party to the 2008 decision that gave Kananura the contentious land and that they had acquired it before that decision.

However in their Judgement, the Justices have explained that Justice Bashaija grossly misdirected himself when he said that the decision made in Kananura’s 2008 case was illegal, as the respondents hadn’t been served with court summons and therefore obtained illegally.

According to the Court of Appeal Justices, Bashaija overstepped his judicial powers as he was not sitting in the exercise of a review or an appellate jurisdiction.

“The Judgement and decree in HCCS number 284 of 2008, which he unfortunately disparaged, was made by Honourable Lady Justice Anna Magezi, a Judge with jurisdiction equal to his. He was therefore incompetent to sit in appeal over that Judgement. He acted ultra vires in his attack and purported quashing of the judgement and decree HCCS number 284 of 2008”, wrote Justice Barishaki.

The Judges said that under some doctrines, the same court or any other judge of the same court had no jurisdiction to revisit or reverse the decree through another fresh hearing and therefore Bashaija had no jurisdiction to declare Kananura a trespasser.

They have also declared that the respondents acquired the leases and titles from Uganda Land Commission fraudulently and unlawfully because they were in contempt of court.

The Justices have thus set aside the High Court decision and awarded Kananura costs of the suit in a judgement read by the Court of Appeal Registrar Susan Kanyange.

Kananura has said he was happy with the decision and he will now develop his land after a legal battle of 14 years with security presence on the land.

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