[1996] UGHCLD 7

### THE REPUBLIC ⁰⁵' UGANDA

*>*

### IN THE HIGH COURT OF UGANDA AT KAi'iPALA

### CIVIL SUIT NO. 4?8 OF 1989

IBRAHIM MUHAMED :: PLAINTIFF

# VERSUS

1. LAWRENCE LULE ^I

2. SWAIBU AJAKA \*² ² • • ::: DEFENDANTS ^I

## BEFORE: THE HONOURABLE IADX JUSTICE M. KIREJU

#### JUDGEMENT

The plaintiff, Ibrahim Muhamed brought this action against the defendants, Lawrence Lule and Swaibu Ajaka, as the administrator of the estate of his late father Sulemani Ajaka who originally owned the suit land. The plaintiff's claim against the defendants is for an order cancelling the transfer of the property comprised in Block 244'Plot\* 367 < at Kisugu Kampala measuring approximately^!. 20 hectares which the plaintiff alleged was fraudulently registered in the names of 1st defendant having been fraudulently sold to him by the 2nd respondent. He also claims general damages and costs of the suit. .. ... .

In his written statement of defence the 1st defendant denied liability and averred that he bought the land from the 2nd defendant free from fraud on his part. He added that he was a bonafide purchaser for value without notice of fraud and was therefore protected under' the Registration of Titles Act Cap^ao?^— The 2nd defendant Swaibu Ajaka was not served with summons he did not therefore enter appearance, file a written statement of defence and did not appear at the hearing of the case. The case \* his absence®

At the hearing, the plaintiff wan represented by learned counsel Mr. Owiny Dollo of M/S Owiny Dollo and Tibaijuka Advocates who was later replaced by learned counsel Ms nakacwa of the same firm. 'The 1st defendant was represented by learned cov.nsel Mr. John W. C. Matovu of M/S Matovu and Kamugunda Advocates »

were At the commencement of the hearing th3 following issues agreed upon:-

!• Whether or not the suit land wa.i transferred to the 1st defendant fraudulently, y

2. • \*./2 ••• Whether the 1st defendant is a bcnafide jurcnaser.

3. parties ar© entitled to the remedies sought.

The plaintiff Blue an advocate. called two witnesses, P. W.l, and PW2 Shabani Abdulla the 1st defendant Kityo Ssalon# and DWJ Edward the plaintiff himself Kadhi an uncle to the plaintiff. On his part testified on his own behalf and called DW2 Yusufu

*were* taken including the Certificate of title to the suit land. During the war all his things Pwl Ibrahim Mohamed, testified that he was aged 70 years, and resided at Kayanja, in Bombo. in 1978 His father was Sulemani Ajaka and he died • His father owned land at Kisugu Mailo land Block 244 Plot 367, fehe subject of this suit. The plaintiff claimed he is the heir to that lj{jd When the plaintiff's father died and before the plaintiff could obtain . . letters of administration, the 1979 liberation war broke out and he fled to Zaire and did not return until 1985.

When he returned to Uganda in 1985 he found his^fathers' land The RC convened a meeting and the 1st defendant was summoned but he refused to turn up saying he had his own title. Certificate of Title since the duplicate had got lost. plaint. ²⁵ ²' the house and started cultivating the land. The witness then lodged Caveat which was also served on the RCb. He reported the matter to ^a wher Mie police asked the RCs whether knew Lawrence Lule. ft to report to Police. He He also wanted compensation for the things defendant and costs Cf the suit. had been sold off to the 1st defendant allegedly by the 2nd defendant. The land had been fenced by the 1st defendant.^ The plaintiff reported the matter to the Resistance Council (RC, now known.- vas Local Council LC). ... ^z«3 He then tried to obtain a special When he checked the Register\*' in Land Office he found that the land ha£ been transferred to Lawrence Lule by Swaibu Ajaka. He was advised by land office to get letters of administration which he got on 25/8/1988 as per Ann 'A¹ to the The 1st defendant then cut down 4 Muvule trees and demolished police who visited the suit land, they knew anyone called Sw^ibu Ajaka? they said they did not but they The police then left a letter requesting Lawrence 9£lr3C said that up to the day of testifying he has He prayed that the name of ^t he first defendant laixd of his father be returned to him. destroyed by the first never seen Swaibu Ajaka. erased from the R&gister and the

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further in 1922, His father had J wives, **5** one was His own mother had J children, the third one Hassan has since died. The third wife did not have any children. All the 5 wives have since died. His father did not leave any will and as far as he was concerned there were no other children born outside the legal marriage. He said that the name Swaibu though a .religious one was not common in their clan. him He said if his father had other children outside marriage he would have known. 3 in 1979» Abdulla and Mariam stayed in Uganda. Whejj one Ramadan to take care of the property.¹ Ramadan decided to put there someone to keep the house, Ramadan has since died. in his shop in Kisugu. himself, Abdulla and Miriam, the second wife had 3 children Asina, Sebatiya, War and a cultivator. in Bombo although he He denied having gone to Lule to see about the land neither his brother Abdalla. 10¹ When they run aw^r he run away he left had a house in Kisugu. staying in Bombo another one in Kisugu on the father's land and a third one born in Kitgum exwas an ^.solidier Before his father died he was living in cross examination he testified that he was and he moved to Bombo in 1944 with his father who of 1st World

The second plaintiff's witness PW2 Shaban Abdulla Madhi testified that he was 85 years old, his father's name.was Abdulla Madhi he died in tx 1965 at Kumi, Teso. of his brother Muhamed Ahamed. He knew Suleimani Ajaka he was his elder He had 4 brothers namely Muhamed, Suleimani Ajak^ He did not know any body called Swaibu Ajak in their family. people. Mustafa. Suleiman Ajak owned land a\* Kiwuliliza and it was taken away by other brother and he died i£ Kenya and had 6 children including the plaintiff. Shaban Abdulla and ¹ e said he knew Ibrahim Muhamed that he was a son 25 2j

was his brother of Muhamed Ahamed. By in hairobi 30 3C staying k'iberu. Suleiman Ajajca had one wife and his children are elder bother and Suleiman was a younger the time the witness was box\*n tn Bombo, Suleiman Ajaka waff He died in Kenya and thats where he was ...buried. Abdulla Munamed, Mariam In cross examination he testified that Muhamed Ahamad

**J35**

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Ibrahim, Hassan, Asiria and Sabat all of them living in Uganda. Abdulla Muhamed and Mariam were both sick. He further clarified that Muhamed Ahamed gave Ibrahim (the plaintiff) to Suleiman Ajaka. During the war of 1979 he did not go into exile. He also testified that he was present in W Nairobi when Ibrahim Muhamed was appointed heir to Suleiman Ajaka. $\mathcal J$

The first defendant Lawrence Lule DW1 opened the defence case and testified that he was 60 years old, farmer of Mitete Mawogora Masaka. h_c saw the plaintiff for the first time in court. He bought land at 10 Kisugu Kiwuliliza. He had gone to an office on Entebbe Road belonging to Moses Kanaku, a broker by the name of haggwa came and informed him that there was land for sale at Kisugu Kiwuliliza and since he was not acquiante with land issues he decided to take Kaggwa to his lawyers Mayanja, Elue & Co Advocates. Kaggwa also brought the man who was selling the land and who was not known to the witness before. At the lawyer's chambers, Mr. Elue looked at the identification of the seller and the land title and advised them to go back after 2 weeks. After two weeks they went and Mr. Elue informed them that there was nothing wrong with the title. $He$ then decided to go and visit the land with the seller and Kaggwa and he was introduced to the Mutongole Chief Ssalongo (DW2) by the seller. He then went to land office and got surveyors to show him the houndaries which they did. After the land inspection they went back to Mr. Elue and agreed on the price of shs. 1. Sillion shillings, an agreement was signed between the seller and the purchaser Exh. I. I and the seller was $25_{2}$ paid by Go-operative . bank dr. it. After payment the seller signed the transfer form and land was trasferred in his names as per Exh. D.2, the Certificate of Title.

He further testified that by the time he bought the land it had no incumberances and he was not aware of any forgery concerning the title as the lawyer had assured him. The seller was between 65 and 70 years of age. By the time he bought the land there was a Semi-permanent house built with mud and wattle rouf I with iron-sheets. When the occupants of the house left they took in Iron sheets and they had never come $..../5...$

back since that time. 6 houses, some materials and he fenced the land. He intended to develop the land by building there . . he had deposited there

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35 < **b** 4

were completed. not be found. he <nx>re aonay as he had not paid enough and he refused to comply. suit was filed he was approached by some people whose names he did not know and they asked him. to pay informed by CID to stop developing the land as per Exh. D. J until investigation into the alleged forgery reported by Ibrahim Muhamed He tried to look for Kaggwa with police but he could He told the police that he did not know much about Ajaka. After the investigations the police allowed him to develop the land. Xurther testified that before this H® was

were. He decided to plant 2 acres of banana plantation while waiting for the- outcome of this suit. people who claimed to be the relatives of' Aj-aka claiming mo.re He was harsh to them and they never came back to demand money, and the jRCs Chairman who was -trying to bring them together also died. *&* In crwft examination he said that he did not know much about the He said that the RCs got involved when •■seller, the inquiries he made about Ajaka were through his lawyers.. .. When the land was inspected Ajaka helped...to show where the mark-stones

was retired from Meteological Department. he was born. In 1970s he was a mutongole chief, He knew the defendant. land next to his. When the defendant bought the land the 25 witness was still a mutongole. The seller who was known to the witness introduced the defendant to him The seller had a house on the land but when he sold the land he demolished it. he bought a DW2 Yosefu Kityo %alongo testified that he was 70 years old, he He resided at Kisugu where was not living there,

In cross examination he said that the person who introduced the 30 3C defendant to him was ^a Nubian bu ; he does not remember his name, but had another house on another land and it is till there. He last saw he He said that the seller was not a broker because he used to bring bodies to bury cn that land which was being used as a cementary • The seller, who was a Nubian was an old man and was not present in court\* the seller in 1982.

The last defence witness was DW3, Edward Elue who testified that he has been in legal private practice since 1979 and he knew the defendant as he was his client in the 1980s. He was the one who drew up the agreement $\frac{1}{5}$ Exh. D.1 and witnessed the signitures of the seller Swaibu Ajaka and the buyer; Lawrence Lule. When the parties came to his chambers he established the identity of the seller by checking on his Identity $C_{\text{ard}}$ and graduated tax tickets. He carried out a search and found out that the man who appeared before him Swaibu Ajaka was the registered proprietor of the $10$ land in issue and he told Lule that he could go ahead with the purchase. After the agreement had been signed payment was effected and he processed the transfer of the land into the names of Lule. He added that the : seller was fairly old between 55 and 60 years of age and looked like a Nubian.

Further in cross examination he testified that he had noted the particulars of Ajaka on the file but the file went with late Joe Mayanja and he did not know where it was.

At the close of the defendant case both counsel addressed me on the issues and I shall consider their submissions as I consider the issues. The first issue was whether or not the suit land was transferred to the 1st defendant fraudulently. Mr. Matovu, learned counsel for the defendant submitted that the plaintiff has failed to prove fraud in this case. This plaintiff did not prove any fraud in the manner the 25 title moved from Sulaiman Ajaka to Swaibu Ajaka. The only allegation was that Swaibu Ajaka was not known to the plaintiff. Counsel submitted that JPW1 and PW2 both testifie? that Suleiman Ajaka had wives and children but non of them was summoned to come and testify that Swaibu Ajaka was not a son of Suleiman ijaka. Counsel contended that the 30 3( evidence of PW1 could not be $s\varepsilon$ 'ely relied on as he had all along led court to beive that Suleiman Ajaka was his father when in fact he was just an uncle. PW2 also testified that Suleiman Ajaka lived in Kenya, he came to Uganda and bought land and went back to Nairobi, whereas the plaintiff testified that Suleiman lived in Bombo. 35

Counsel argued that in view of the conflicting evidence there was a possibility that the plaintiff did not know that Swaibu Ajaka was a son of Suleiman Ajaka. In the absence of evidence as to how the land was transferred from Suleiman Ajaka to Swaibu Ajaka. It could also not be construed that the defendant knew that Swaibu Ajaka was not a son of Suleiman Ajaka. Counsel further submitted that when the defendant bought the land, the Certificate of title was clean with no incumberances . and there was nothing which could have alerted the defendant that there was a dispute in title. A search had been carried out by PW3 in Land Office before the sale and nothing was detected. Counsel also referred to S.56 of Registration of Titles Aot which provides that a certificate of title is conclusive evidence of ownership. Counsel conclude on this issue by submitting that the land was legally and properly transferred to the first defendant and therefore there was no fraud and none had been proved.

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34,

Ms Nakacwa learned counsel in her submission referred to the definition of fraud as set down in the case of

$(1)$ Waimiha Saw Milling Co Ltd Vs. Waione Timber Co Ltd 1926 AC 101

$(2)$ David Sajjaka Nelima Vs. Rabecca Musoke, Civil Appeal No. 12 of 1985.

$20$ $2$ Counsel referred to the holding of Justice Odoki in the case of. Nelima Vs. Musoke where he stated that where there are series of subsquen. transfers, for the title of incumbent registered proprietor to be impeached the fraud of previous proprietors must be brought home to him. Counsel submitted that according to the evidence the first defendant did not $25_{25}$ carry out enough inquiries, that he did not bother to ask the occupants of the premises as to who owned the land. He did not get enough information from the second defendant as to how he came to be registered as proprietor. Counsel further submitted that the time between the registration of Swaibu Ajaka as the registered proprietor on the $30_{30}$ 23/11/82 and the signing of the sale agreement on 30/11/82 was too short. The inference in the circumstances is that the first defendant in connivance with his lawyer lad Swaibu Ajaka a fictitious person or impostor registered as a proprietor and thereafter the first defendant not himself manist med so as to later claim to be a bonifide punchaser $3535$

$\ldots$ , $8\ldots$

for value without notice. In the alternative she contended that a vendor : newly registered as proprietor selling land within a week should have raised the purchaser's suspicion as to his title or genuiness of the sale. Counsel submitted that the 1st defendant and his lawyer should have inquired into how Swaibu Ajaka got registered. Counsel further submitted that the price paid by the lst defendant of shs. 1.5million was not enough for a property in Kisugu Muyenga and should have raised suspicion on the part of the 1st defendant. Counsel invited court to find that fraud has been proved and the 1st defendant's title is defective and should be cancelled.

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$30$

$35 \cdot 3$

As earlier stated in this judgement the 2nd defendant was not served with summons although his name appeared in the pleadings. This lack of service of the second defendant was raised by counsel for the 1st defendant at the commencement of this suit, counsel for the plaintiff contended that he had sued the two defendants jointly and severally and was therefore free to proceed against one of them. The court ruled that the plaintiff was free to proceed against the first defendant alone if he so wished as court could not force him to proceed against a party he did not want to sue. This suit is in effect against the lat defendant whom $20²$ I shall hereinafter refer to as the defendant.

Section-56-of Registration of Titles Act which I think is relevant to this issue provides as follows:-

"No certificate of title issued upon an application to bring land under this Act shall be impeached or defeasible by reason or on account of any irregularity in the application or in the proceedings previous to the registration of the certificate, and every certificate of tile issued under any of the privisions here in contained shall be received in all courts as evidence of the particulars therein set forth and of the entry thereof in the Register Book, and shall be conclusive evidence that the person named in such certificate as the proprietor of or having any estate or interest in or power to appoint or dispose of the land therein described is seized or possessed of such estate or interest or has such power".

ó

a production of a certificate of title in the names of According to the above provisions it would appear that a proprietor

named therein sufficient proof of ownership of the land in question $...9...$

unless the case falls within the exceptions set down in S.184 of Mr. which provides the following as far as is relevant to this case:

¹¹No action of ejectment or other action for the recovery of any land shall lie or be sustained against the person registered as proprietor under the provisions of this Act, except in any of the following cases -

- <del>- - - - - - -</del> $(b)$ ----------

$(a)$

- $(c)$ the case of a person deprived of any land by fraud as against the person registered as proprietor of such land through fraud or as against a person deriving otherwise than as a transferee bonafide for value from or through a person so registered through fraud; - $(d)$

$(e)$

and in any case other than as aforesaid the production of the registered certificate of title or lease shall be held in every court to be an absolute bar and estoppel to any such action against the person named in such document as the grantee, owner, proprietor or leasee the land therein described, any rule of law or equity to the contrary notwithstanding".

From the above cited provisions an action for recovery of land can only lie or be sustained only by a person deprived of any land against the person registered as proprietor of such land through fraud among other exceptions not relevant to this case. In the case of Kampala Bottlers Ltd Vs. Domanico (U) Ltd Civil Appeal No 22/92 the said provisions of the law were ably considered by the Supreme Court. In the same case it was pointed out that where fraud is pleaded the particulars thereof must be stated. Fraud must also be strictly proved, the burden being heavier than on a balance of probabilities generally applied in Civil matters.

It is also clear from numerous authorities that while the cardinal rule of registration of titles under the Act is that the register is · everything the court can go behind the fact of registration in cases of actual fraud on the part of transferee:

Robert A. Lusweswe Vs. Kasule & Anor. HCCS 1010 of 1983, Clinda De Souza Figueiredo Vs. Kessamali, Nanji 1962 EA 756; Waimiha Saw Milling Co Ltd Vs. Wainone Timber Co Ltd. In the case of Assets Co Ltd Vs Mere Roihi & Others 1905 AC 176 and as was rightly pointed out by counsel for the plaintiff fraud means actual fraud thatis dishonesty of some sort not what is called constructive or equitable fraud. Where there are a

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$20$

$25$

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$\cdot\cdot\cdot$ ^a series of subsquent transfers, for the title of the current registered the fraud of the previous home to him. proprietor to be impeached, proprietors must be brought

In this case the particulars of fraud of the defendant as set down **⁵** in paragraph ⁷ of the plaint were that:

63 •

"(a) Accepting to transfer the property into his names knowing that the transferor had obtained the same by fraud".

¹⁰ arguement was that the defendant did ¹ of Suleiman Ajaka. From the submissions by counsel it is clear that the plaintiff is therefore relying on circumstantial evidence. a . there is no direct evidence of actual fraud on the part of the defendant, - iS Ms Nakacwa's main arguement was that the defendant did not carry out sufficient investigation before . he bought land from Swaibu Ajaka that if he had done so he would have found out that Swaibu was not a son

In the case of Gibbs Vs Messer 1891 AC 248 Where the court was . deali... ; person who dealt with a registered proprietor was to ascertain the existence ²⁰ *2* of the registered proprietor and the genuiness of the instrument signed by him. with a certificate of title which was issued in favour of a fictitious person, it was held that the obligation which was imposed on a

The immediate question now is whether the defendant failed to carry investigation in respect of the title. Although the out the necessary plaintiff did not call anyone from Land Office to testify as to waht ²⁵ ² in the Land Off ce with regard to the suit property, she - documents were the bar that the transfer forms were missing and this . submitted from With respect to Counsel, should have counsel Without the standard of the Land office as evidence from • videnee. what is before Court is Exh. D.2 act on hearsay court cannot that submissions *i: r* by court especially in cases of fraud where aroused the defendant's suspision. without evidence to support them cannot I must state be relied upon proof is higher than in other civil cases. to what happened to the transfer forms

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**30**

**35**

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the Certificate of title showing that Instrument No. nLA 103964 transferred land from Suleiman Ajaka to Swaibu Ajaka and Instrument NO KL_n 104211 which transferred land to Lawrence Lule. Unless there is evidence to thecontrary it can only be assumed that before land was transferred as indicated on the Certificate of title, the Registrar of Titles was satisfied that the provisions of the law as to registration had been 5 complied with.

Counsel for the plaintiff also submitted that the time from when land was registered in the names of Swaibu Ajaka to the time the defendar. was registered was to short and the defendant should have been suspiciou. The land was transferred to Swaibu Ajaka on 23/11/82 and the defendant $w$ 10. registered on $3/1/83$ . I am of the view that the period taken by one proprietor before he sells or transfers to the next proprietor is not very important and cannot impute fraud unless there is evidence to that effect, for example where certain procedures have been intentionally not followed. I say this because people acquire land for-defferent purposes some want to develop the land, others are just speculators, others want to use proceeds from the sell to invest elesewhere, others keep it for their children, the reasons are numerous, so someone who acquires land and wants to sell almost immediately cannot be put to task as to why he is selling his land. I therefore not agree that this is a matter $20.$ which would have made the defendant suspicious.

Counsel also argued that the defendant did not inquire from the occupants of the house as to who owned the land. However, none of these occupants was brought to court to testify that he/she knew who owner of 25 the land was. Pwl testified that when he left the Conntry in 1979, he left one Ramadan to look after the house and he put there some tenant Ramadan has since died, it is not known when he died. DWl testified the after he had bought the land the occupants of the house were removed by Swaibu Ajaka and the defendant did not have anything toto do with them. 30 After they had been removed there is no evidence that they complained t anyone, even Ramadan did not complain. $PW2$ also testified that the son Suleiman Ajaka called Abdalla and Miriam also a daughter of Suleiman Aja did not go to exile and lived in Kabalagala not very far from Kisugu, however, they also did ict complain or receive any complaint about $35_3$

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their father's In fact there in 1985. necessary for the defendant to make inquire. with tenants when he **⁵** of any complaint from anyone. thought he was actually dealing with the real owner c . Of the property and in the absence a total strapger. any complaint by anybody until the plaintiff came back It was therefore not land being sold by is no evidence of

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Counsel also submitted that the defendant should have tried to find out more about Swaibu Ajaka whom someone was 10 DV/3 testified that he ascertained the identity of Swaibu Ajaka from the Gard and graduated tax ticket. he mau a search in: in land office and found that the person holding the Identit . Card\_was the same person on. the Certificate of title in the land office\* A sale agreement was drawn and 'signed by both the seller and purchaser — — . and was witnessed by DWJ. The seller was paid by a bank draft the sum of Shs.i<5million\* The defendant was also introduced to the chief of the area Di/2 as the buyer by Swaibu Ajaka.' This witness said that he knew the seller, that he owned another house in Kisugu and he.used to bring 20; his people for burial on the suit property\* she referred to as fictitious and impostc • Dft'l's evidence was that after he had. been informed that identity selling land, he took that person i.e. Swaibu Ajaka to his lawyers DWJ to handle the transaction.

It could also not be concluded that he was an have been He was The fact that defendant could 30 and he who identified them. is the one and testify does not mean that he does not exist. The plaintiff ^a non existent person. he I must state ' here attempted to serve Swaibu Ajaka **35 .** ¹ plaintiff that there is nothing on and failed to trace him. impostor, because it appears that ue was known to the tenants whom he to evict without any complaint from them to any authority. not trace him to come in his evidence- when he was asked why he did not serve said that hew could he serve the record to show that the a Nubian. Swaibu Ajaka, person the•defendant dealt with was not fictitious because he was there witnesses. in reality and was seen by all the 3 defendant^, nil the 3 witnesses testified that he was an elderly man and DW2 and DWJ said he could from the evidence of the defendant's witness it is clear that . the managed around when the boundaries were being opened by the surveyors

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Unlike the plaintiff in the case cf Lurwes'we Ajaka by substituted serve, \* so it would court to lebal him an impostor when he had a chance to appear before this court and to be heard\* not be fair for the not been given did not apply to the plaintiff in this c^-^ serve the 2nd defendant Swaibu

Counsel also submitted that the amount paid by the defendant was not good enough for the no evidence was called to substutiate her submission. Counsel for the defendant also submitted that the amount . of shs. 1.5million was good money for that property in Muyenga, in 1982, his claim. ^I therefore find that the allegation price - was enough has not been proved. property situated in Muyenga of that size, however -apart from submitting from the bar on, since support by counsel that the This was also a submission from the bar which court cannot rely the ^burden of proof is on the plaintiff he should have adduced evidence to

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There is the evidence by the defendant that the property was free from incumberances when she search was carried out in the Land Office. the evidence on record From —1 there is nothing, that shows that the land was transferred to the first defendant fraudulently.

I therefore find that the plaintiff has failed to prove to the required standard that the land was transferred to defendant fraudulently.

The second issue is whether the defendant was ^a bonafide purchaser for *2.* value without notice and therefore protected under S.189. of R\*T\*A.« This section providesmas follows:-

> ''Nothing in this Act contained shall be so interpreted as to leave subject to an action of ejectment or to an action for recovery of dmages us aforesaid or for deprivation of the -.state or interest in respect to which he is registered as proprietor by anj purchaser bonafide for valuable consideration of land under the operation ^c ^C this Act, on the ground that the propr '.etor through or under whom he claims was xeg -Stered as proprietor through fraud or erre • or has derived from or through a person roistered as proprietor through fraud or erro.\*- and this whether such fraud or error consis ;s in wrong description of the boundaries or of the. «arcels of any land or otherwise howsoever'^

section is that once a registered proprietor has purchased account of One effect of the citcc th\* property in good faith, his title cannot the part of previous registered ne fraud on be impeached on

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proprietor. ^A bona fide purchaser therefore obtains ^a good title even if he purchases from registration by fraud\* proprietor can innocent and free from fraud of S. 184 (c) will apply and the protection will a proprietor who previously obtained However, before a registered enjoy the said protection he should be otherwise the provisions not apply.

in case. I am wrong on the first issue in some detail\* The question now land aware of the fraud\* After my findings on'issue into one, it may not have been ne-cessary to go the details of this issue however, issue I would like to handle this is, in case Swaibu Ajaka acquired the property through fraud, did the know ab. Qu.t- it ^nd went ahead to purvh^u&e the same

establishing the plea of value and without notice: As was pointed out in' the case of Nelima (supra),\* the burden of a bona fide purchaser lies on the person who sets it\*-up. The defendant has to prove that he is a purchaser for Pilcher Vs. Rawlins/T972.. 7 7 CH, App 2?9, Attorney General Vs. Bishopsphated Guano, Co /1^79/ 11 Ch D\_ ?27, Sempa ^babaji Vs, Ajdja a^d 4 others 198? HCB 46, also refer.\*

Whether the defendant paid valuable consideration, there s the property. also contained in the memorandum of It was paid to the seller and he acknowledged receipt dated JO/11/82. This money was paid From the which is not disputed by the plaintiff except that it was not enough defendant has proved oh balance of probability that he paid valuable above evidence and.-I have.already dealt with that question in this judgement, I find that the consideration for the property. agreement Exh.0.1, of the same in the said agreement before the defendant was registered as a proprietor on 3/1/8?. testimony of DW2 who testified that he paid shs. l.?million for the This purchase price is

The next question there. Mr. title if was is whether he had any notice of fraud in Swaibu'^s Matovu, submitted that there was no fraud .../15\*»

as it had there was no Caveat on the title the transaction was handled investigations in land office before HCB **8.** \* 3iand and the boundaries were presence of the defendant and the Seller. Counsel 10 an impostor to do all thee need him in court. Counsel also submitted that the faot that the plaintjlfl **>5** was the administrator of Suleiman *^A*jaka'.s., estate was not important to this case because by the time the plaintiff got the letters of administration the defendant was already registered as the proprietor of the suit property. Counsel concluded by submitting that the defendant was a bonafide purchaser for value as no fraud had been proved. tlina hakabiri & 2 others Vs, Masaka Co-operative ¹⁹⁸ The defendant visited the ⁷ was introduced to the Mutongole Chief, . opened by the surveyors in the The tenants was concluded: jistri c t Grow e rs means that the plaintiff knew that Swaibu Ajaka did exist but he did not were evicted by the seller and they did not complain. • The seller also unroofed the house and took the iron-sheets. contended that it would have been difficult for things. not been proved\* Counsel further submitted that there was no effort on the part of the plaintiff to serve Swaibu Ajaka by substituted service, which Counsel submitted that or any other incumberance, by an advocate who carried out the the agreement

£5

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**2\* ;**

**35 3**

Ms ^akacwa on her part reiterated her submissions on the first issue and added that the defendant in addition to having notice of the fraud he also acted in bad faith. The defendant did not ask the how the seller got registered jaka. Counsel argued that it was the **25 ;** as to how he acquired the title. plaintiff African **³⁰ ³** extended family where your brothers children are considers the ^r also your children\* of administration got letters Counsel contended that the defendant not been revoked. and they have .../16... is known to the family. biological son of Suleiman Ajaka or not especially if one According to PW2 Swaibu ajaka is an impostor who **1t** seller his address and did not inquire on was a as proprietor after Suiaiman defendant who should have called Swaibu Ajaka to testify was immaterial according to her whether the x She further submitted that since the plaintiff no one has come forward to challenge them

obtained his was therefore not a bonafide . be cancelled. title through fraud and he purchaser and she prayed that his certificate of title

*£*

After counsel including the am convinced that as far as the investigations in **⁵** the land office were concerned to do. found that there were no incumberances on the title and Swaibu Ajaka was th registered proprietor. the court found that the defendant 10: was not abonafide purchaser for value because at the time of purchase the title was incumbered with Caveats. The defendant had bought land A\*tell knowing that its ownership was in disputet. court held that the The title in this case ^&lt; The defendant could not have known "the \* interest of the plaintiff as the administrator ^j of the estate Suleiman Ajaka as there was no notice in the Land office. And by the time the' p . plaintiff got letters of administration the defendant had already been registered as proprietor. from register, S.1^5 RTA refer. In the case of Nakabiri 8c 2 others vs Has aka Pj-Qtjrjc\_t Growers Co-operative (supra) Exceph\_in\_case of ffaud a buyer of proprietor is not expected to investigate- beyond Land defendant was therefore not a bonafide purchaser, did not have any incumberences. the defendant did what he was required lawyer DWJ. who carried out a search in the office and considering the submissions by bqth authorities cited, I He engaged a

Another issue'raised by the plaintiff is that the instruments of transfer were missing from the Land Office. It is not known when these instruments went missing. check in land office they were not there this must be after 1985 after a proprietor. In the absence of evide:.. And court therefore can to what happened to custody. them the defendant was the time complied with. been **30 3** The court can only assume that at and what they could have contained. registered all the requirements of the law had not speculate as the defendant had been registered as from the land office as to what happened to these instruments the defendant - cannot be blamed for the loss as' he was not responsible for their *safe* All that is known is that when PW1 went to 25 ^J

/

**35;**

*I*

The defendant also carried out investigations at the site where land is situated however, the plaintiff submitted that these investigations were not enough because, he did not inquire from the tenants as who was their landlord. As $\mathbf I$ had already said in this judgement, the defendant was introduced to the Mutongole Chief Dw2 by Swaibu Ajaka who was selling the land. The tenants in the house were also evicted by the seller and they did not complain especially Ramadan who was supposed to be in charge. Under these circumstances it would have been very difficult for the defendant's suspicion to be aroused, in the absence of any complaint from anybody. Whoever Swaibu Ajaka may have been, he must have been known to the people in the area, I agree with counsel for the defends. that it would have been very difficult for Swaibu Ajaka to do all he did in respect of the land without anybody complaining. I also fail the plaintiff if he knew that he was the heir of Suleiman njaka why to understand why he did not tell truth about his true relationship with Suleiman Ajaka. He knew he was a nephew of Suleiman Ajaka, who lived in Nairobi Aenya but he chose to testify on oath that he was a son of Suleiman Ajaka who lived in Bombo and died in Uganda. If it was not for PW2 the court could have been completely misled.

$\cdots\cdots\cdots$

In the case of Assents Supra Lord Lindley, when referring to a bonafit purchaser had this to say.

"Fraud by persons from whom he claims does not effect him unless knowledge of it is brought home to him or his agents. The mere fact that he might have found out fraud if he had been more vigilant and had made further inquiries which he omitted to make does not itself prove fraud on his part. But if it be shown that his suspicions were aroused and that he abstained from making the necessary inquiries for fear of learning the **truth** the case is very different and fraud maybe properly ascribed to him."

In the present case I have found that the defendant carried out all the necessary inquiries he was expected to carry out as a purchaser of a registered property. There is nothing on record to show that his suspicion was aroused and he referred to investigate for fear of learning I did not find any badfaith or sharp practice in whatever the truth. he did to acquire the property. On the otherhand I found the manner in which the plaintiff handled his interest in this land rat'er strange. .. Tather strenge, The informed the $\cdot$ $\cdot$ $\cdot$

He informed this land transactions as he was informed a persue the matter in court. One starts wondering whether the plaintiff ^t even knew that there- was- ^a title to the land and whether he was really in possession of that title in 1979. caveat immediatley and take action, he started a dilogue with the RCs, it was only in 1988, almost 4 years later when the land office advised him to obtain letters of administration and court that he was familiar with owned other properties. However, when he came back in I985, be that LaWrence Lule had bought the land instead of rushing to Land Office to lodge

71 •

purchaser for value without notice of any fraud in title was there was no way he could have learned this from the land title which was clean and the investigations he carried out, he is therefore protected by Section'145, 184 and .189 of k. T. A. \_\_\_ All facts considered I have found that the defendant was a bonafide

the defendant to the required standard. the registered proprietor of the suit property .as per he has failed to prove, his case against The defendant Lawrence Lule is ' last issue on remedies. In view of my the plaintiff cannot recover the remedies This leads me to the \* findings on issues one and two, prayed for in the plaint, as Certificate of Title\*

The suit against the defendant Lawrence Mile is dismissed with

costs .r\*" \*

**I,**

\$

1 M. Kireju

JUDGE 22/4/1996

c

10