[2010] UGCA 60

#### THE REPUBLIC OF UGANDA *- '*

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### IN THE COURT OF APPEALOF. UQANDAAT KAMPALA ;

#### CORAM:

# HON. JUSTICE S. G. ENGWAU, JA , HON. JUSTICE. A. TWINOMUJUNI, JA HON. JUSTICE C. N. B KITUM BA,.) A

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#### CIVIL APPEAL NO.35 OF 2006

APPELLANT CRESENSIO MUKASA ::::::::::::::::i::::•::::: •:::::::•:::::::::s: :

VERSUS • **.0**

1. YAKOBO M. N. SENKUNGU

- 2. JAMES KICKJURA ;/■; ? - 3. JOHN RWAKAMURANGA - 4. MISAKI RWAMPIGANE ' - 5. GIRADESIKATONYA . .. - 6. YOHANA RWAKAANO :::::::::: RESPONDENTS . .. ... ...•■■ ... ^y . .'-. . .

*IAppealfrom the Jiulgmeitt of/he Higheourt of-Uganda d/Masaka (V. F. MnsokeKibuuka, J) da/ed 3f' January ²⁰⁰⁶ inHCCSNo.383/1987]*

## **'0** JUDGMENT OF ENGWAU, J^A

This is an appeal against the decision of the High Court of Uganda sitting at Masakain which a civil suit filed by the appellant for cancellation of the respondents' certificate of title and other consequent orders was dismissed. • .

The case has got a long history spanning over two decades. It has also been handled by a number of lawyers making various amendments -to the pleadings as rioted by the learned trial judge. '

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The facts ofthe case are as follows;-

The appellant is a holder of Letters of Administration of the estate of the late Gusite Nakaima who he undisputedly claims was his grandfather. Nakaima died on 13d1 June 1941 leaving behind two pieces of land, the subject of this appeal, situate in Mawogola Block 30, Plot No. ¹ at Kabagoma of about 641 acres and Block ³ ¹', Plot No.l at Ntyazo of about 623 acres. In 1986, the appellant on obtaining the letters of administration sought to transfer the land into his names only to discover that it had long been dealt with by other people. The Certificate of Title which was exhibited in court showed that on 3rd August 1978, under instrument Np. MSK 54168, a one Peter Ssekasiko became registered proprietor with an alleged transfer from Nakaima. Three months later, on 27lh November 1978, Ssekasiko transferred the land to one Eugene Ssonko under instrument No. MSK 54497. On 25th January 1980, under instrument No. MSK 6000, the land was transferred and registered in the names of. Yakobo Mutendwa Senkungu, the first respondent. Finally on 30dl August," 1989 the first respondent transferred the land to the other respondents.

Interestingly, the second piece of land was also allegedly transferred first from Nakaima to the same Ssekasiko, to Eugene Sonko again, andjhen to the first respondent. The chain of transfer is •s • similar to the first case except that the first respondent transferred this particular piece to ^a one Ezekiel Rwankanyuzi. . ' .

These series oftransfers prompted the appellant to fi le ^a suit in the high Court at Kampala on 31st March 1987 before it was transferred to Masaka High court Circuit.

At the trial,'the first respondent did not file a defence but the case proceeded against him exparte under Order 9, rule 8 of the Civil Procedure Rules. The second and fourth respondents were reported dead before the trial commenced. It is thus only the 3rd, 5th, and 6th respondents who filed a joint defence.

Five issues were identified and agreed upon, to wit;- •\_

- *Whether or not the late Gnsit&Naiuliriia transferred the suitproperty to anyone?* - *b) Whether the plaintiffhas ^a cause ofaction against the 3rd, 5th and 6th defendants?*

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*c) Whether any fraud was committed and ifso, by who?*

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- *d) Whether there is a nexus between thatfraud and the defendants?* - *e) Whether the plaintiffs are entitled to the reliefs which they seek in the plaint?*

The learned trial judge resolved the first, third, fourth and fifth' issues in the negative while the second one was resolved in the affirmative. He then dismissed the plaintiff's case.

In his memorandum of appeal, the appellant raised two grounds namely;-

*1. Thai, the learned trialjudge erred in law andfact when he answered issue No.l in the negative, disbelieving the evidence adduced in support ofthe claim.*

*2. That the learned trialjudge erred in law when hefailed to evaluate the evidence before him, thus he arrived at a wrong finding. There was no evidence to show how Ssekasiko got registered on the land, ofwhich also the trialjudge had made a finding that there wasfraud.*

When the matter came up for hearing before this court, it was agreed that the parties would file conferencing notes from which court would proceed to dispose of this matter. In their conferencing notes, the slicking point to be resolved by this court was agreed lo be the issue of fraud. Thus, was fraud proved or not?

biteride, Owor & Co Advocates who represented the appellant stated, in their conferencing notes that fraud had been pleaded, particularized and proved. They pointed to various instances to constitute fraud as;-

*a) Ssekasiko's entry on the Registerptus the transfers thatfollowed.*

- *b) The 3rd, 5th and ^respondents' offer to purchase the suit land from the appellant before they eventually purchased it from the first respondent. This pointed to prior knowledge by the respondents that the appellant had ^a claim ofright in respect ofthe land..* : - *c) The respondents⁹ knowledge that the appellant was actually in possession and lived on the land.*

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They also sought to rely on S, 17<S of the Registration of Titles Act which stipulates fraud as one of the instances where an action for recovery of land or ejectment can lie or be sustained against a registered proprietor. • .

To pinpoint the respondents, S.59 of the same Act was quoted with counsel submitting that a party could be guilty of fraud by participating in it at whatever level which was the case in as far as the respondents were concerned.

Referring to S.77, it was argued that the respondents' benefit.from transfers designated to cheat the appellant of his inheritance inculpated the respondents as parties to the fraud.

Finally, on proof of fraud, reference was made to 8.33 of the Evidence Act which provides (hat all facts may be proved by oral evidence. Counsel pointed to evidence which showed fraud as including;

*a) The Certificates ofTitle which showed dishonest trailsfers/dealings.*

*b) The various transfer instruments.*

*c) The testimony ofthe variousparties which was not controverted.*

The respondents never and have, not challenged the proprietorship of the land having known their dishonest dealing. Appellant's counsel prayed to court to hold that the appellant is entitled to the remedies sought.

Praying to court to dismiss the appeal, M/S Kawanga and Kasule Advocates who represented the respondents argued that there was no concrete irrefutable proof of dishonest dealings. They relied on sections 77 and 176 of the Registration of Titles Act on fraud to submit that no fraud was proved against the respondents to warrant impeachment of their Title. They stated that the fraud referred to in the Act is actual fraud and not constructive fraud and that it must reside in the person whose registered title is to be impeached or his agents. Further, that having failed to establish fraud in the initial transfer of the land to Peter Ssekasiko, there is no way fraud could be traced in the subsequent transfers. There was no allegation of fraud in the transfer to Eugene Ssonko and to the lsl respondent. On the bonafides of the respondents, no evidence was led by the respondent and finally, waiting for 45 years to assert their interest raises estoppel by the doctrine of laches.

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The Black's Law Dictionary, Sixth Edition at pg.660 'defines fraud in the following terms;- '

*^uAn intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or,to surrender a legal right. A false representation of a matter offact, whether by words or by conduct, by false or misleading allegations, or by concealment ofthat which should have been disclosed, which deceives and is intended io deceive another so that he shall act. upon ft to his legal injury. Anything calculated to deceive, whether by a single act or combination, or by suppression oftruth, or suggestion ofwhat isfalse, whether it be by directfalsehood or innuendo, by speech or silence, word ofmouth, or look or gesture. "*

10 ; The relevant sections of the law variously quoted by both learned counsel with regard to fraud are reproduced below;-

S.77, Registration ofTitles Act,

*"Certificate voidforfraud.*

*Any certificate oftitle, entry, removal of incumbrance, or cancellation, in the Register Book, procured or made byfraud, shall be void as against allparties orprivies to thefraud."*

S.176

*"Registeredproprietorprotected against ejectment except in certain cases.*

*No action of ejectment or. other actionfor the recovery of any land shall lie or be sustained against the person registered as proprietor under thisAct, except in any ofthefollowing cases;*

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*b)*

*c) The case of ci person deprived ofany laud by fraud as against the person registered as proprietor ofthat land through fraud or as against a person deriving otherwise than as a transferee bonafidefor valuefrom or through a person so registered through fraud.*

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*d)* —

*and in any case other than as aforesaid the production, ofthe registered certificate oftitle or lease shall be held in every court to be an absolute bar and estoppel to any such action against the person named in that document as the grantee, owner, proprietor or lessee of the land described in it, any rule oflaw or equity to (he contrary notwithstanding.*

In addition to the above provisions, counsel also cited various decisions of court with regard to fraud. Two notable ones were Kampala Bottlers Ltd Vs Damanico (U) Ltd, SCCA No. 22 of 1992 to the effect that *the transferee must be guilty ofsomefraudulent act or must have known ofsuch act by somebody else and taken advantage ofsuch act. and. Fam International Ltd & Anor Vs Mohamed Hamird El* - *Fatih SCCA No. ¹⁶ of ¹⁹⁹³ to the effect thatfraud must be strictly proved on ^a standard more than a mere balance ofprobabilities though less than proof beyond reasonable doubt.*

It was agreed by both counsel that the sanctity of a Certificate ofTitle can only be questioned or investigated if there is proof of fraud. To this end, the Certificate ofTitle now in the hands of the respondents can only be questioned if.fraud is proved on their part. The learned trial judge in dismissing the appellant's case observed that failure to prove fraud on the part of the first respondent, meant that the 2nd to 6lh respondents could not be privy to an unproved fraud. Further, that any imputation of fraud on the respondents in obtaining transfer when a case was pending in court and not being vigilant enough became substantially' inconsequential because they did not commit proven fraud.

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After considering the facts of this case and in view of the law as outlined above, it is my considered view that the learned trial judge wrongly evaluated the evidence available in coming to the aforementioned conclusion. There was fraud on the part of the first respondent which could be imputed on the 2nd to 6th respondents.

Failure to put in a .defence by the First respondent'both at the trial and in this appeal clearly points to a guilty and evasive mind of ^a person determined to'act or refrain from doing anything that may lay him bare and expose him.

The Evidence Act sets the general rule on burden of proof of the existence of facts, under S.101 as resting on the person who desires court to give judgment as to any legal right or liability. S.106 however, provides that in civil proceedings, it is upon a person with a fact

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within his or her knowledge to prove it. The authenticity of the transfers that gave the first respondent proprietorship could only be proved with his testimony. This, he refused to do with no explanation whatsoever.

The absence of proper evidence to show how the land was transferred from Makaima to Ssekasiko and through subsequent transfers to the first respondent provided sufficient ground for court to go behind the fact of registration. When the first, respondent adamantly refrains f. from assisting court in its investigations, it irresistibly points to his fraudulent intention. The '• only possibility that could be left to court's imagination is that even the transfers on the certificates, showing people who at nd single point took possession of the land or more so occupied it, over a period of 1¹ years, is that the first respondent could have himself included the various transfers to secure protection ofthe law. .

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The first respondent, also knowing .that there was a suit against him in the High Court to which he could furnish his evidence oftrue ownership chose instead to resort to an inferior court (ChiefMagistrate's Court) that gave him a quick verdict to cement his fraud.

As for the other respondents, it was argued for (hern that.the)' are'bonafide purchasers for value without any notice. Evidence led at the trial however showed that they became aware of the appellant's claim and witnessed his physical occupation of the land. They actually interacted with him and offered to buy the land which he declined citing a dispute in court.

In pursuance of a quick fix, they ignored this notice and now argue that they had no duty to investigate the first respondent's title in spite of the'notice. My view is that-ordinary . prudence and caution in the circumstances ofthis case would actually inform any reasonable person against engaging in the transaction as the 2nd to 6th respondents did. Payment was hastily made, followed by a transfer and then settlement on the land. These vyere not acts of an honest dealing. • ' *(* .

The respondents again, did not seek to evict the appellant well knowing that their newly acquired interest was in bad faith. For this matter, ¹ would hold that the 2nd to 6th respondents on receiving notice and ignoring it tainted their otherwise bonafide title. It is also worth noting, at this point that the whole trial ofthis matter revealed several unfortunate omissions that seemed to help in cementing the respondent's case.. One notable one was the refusal by

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the trial judge to allow a one Nsereko, a registry official who allegedly executed all the transfers, to appear and testify. The question of the 'Nakaima' who first transferred the land to Ssekasiko could only be answered by him.

The respondents seek to rely on. all the misfortunes of the matter and the blanket protection of the law to benefit from their misdeeds.' To bring to an end to this unfortunate habit of making multiple transfers on land so as to claim and disguise fraud as a bonafide, ¹ am inclined to hold that there was fraud interplaying between the first respondent and the others that aimed at depriving the appellant of his inheritance.

Before .1 take .leave of this matter, ^I wish to adopt the position in Lazarus Estates Ltd Vs Beasley [1956] IQB-702 at 712 in which court stated as follows;-

*"No court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a court, no order of ^a Minister, can be allowed to stand ifit has been obtained by fraud. Fraud unravels everything. The court is carefid not tofindfraud unless it is distinctly pleaded and proved, but once it is proved, it vitiates judgments, contracts and all transactions whatsoever."*

In the end result, ^I would allow this appeal with costs here, and in the court below.

Dated at Kampala this 26th dny ofJuly 29.10.

## S. G. Engwau JUSTICE OF APPEAL

### JUDGMENT OF TWINOMUJU. NI, J^A

^I have had the benefit of reading, the draft judgment of my Lord Justice S. G. Engwau, JA. ^I agree and ¹ have nothing useful to add.

2010 Dated at Kampala this ..:26th'...day of,... July

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Hon. Justice A. Twinomujuni JUSTICE OF APPEAL

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