[1998] UGCA 45

## THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA

# **AT KAMPALA**

**CORAM:**

HON. MR. JUSTICE J. P. BERKO, JA.; HON. MR. JUSTICE S. G. ENGWAU, JA.; AND HON. MR. JUSTICE A. TWINOMUJUNI, JA.

# CIVIL APPEAL NO. 50 OF 1996

#### IBRAHIM MOHAMED::::::::::::::::::::::::::::::::::::

#### **VERSUS**

LAWRENCE LULE & ANOTHER:::::::::::::::::::::::::::RESPONDENTS

### JUDGMENT OF ENGANU, JA.

The appellant is the legal representative of his late uncle, one Suleiman Ajaka who was once the registered proprietor of the Suit Property which was subsequently transferred into the names of Swaibu Ajaka, the second defendant in the lower Court. Swaibu Ajaka transferred the Suit Property into the names of the first defendant now the respondent. The 2nd defendant was not served, so he did not enter an appearance and he did not also file his Written Statement of Defence.

The appellant got Letters of Administration in respect of the estate in question but failed to transfer the Suit Property into his names because he discovered that the property had been fraudulently acquired by the 2nd defendant and sold it to the respondent.

The appellant then instituted the suit in the High Court for an order cancelling the names of the respondent and vest the property in his names. The lower Court dismissed the suit on the grounds that fraud was not proved and that the respondent was a bona fide purchaser for value without notice of fraud. The

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respondent was t.herefore protecEed by Sections L45. 184, and 189 of the Registrat.ion of Titles Act (Cap. 205), hence this appeal.

The Memorandum of Appeal sets the grounds of appeal as follows: -

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- t1l The Learned t.ria1 Judge erred in Law and fact by not critically evaluating the defence wit.ness evidence and as such came to ^a wrong decision that there was no fraud involved in the transfer of the land from the second to the ^fj-rsE defendanE/respondent . - l2l The learned trail ,Judge erred in 1aw by not exercLsing Court's discreEion to direct that an officer from Ehe Ministry of Lands and Survey Department. of RegistraEion of TiEles be called to clarify to CourE on the transaction Eransfer of land from Suleiman Ajaka to the second defendant /respondent and as such came to a wrong decision t.hat there was no fraud. - l3l The learned triaf ,fudge erred in Iaw by not critically eval-uating the evidence on record and as such came to a wrong decision that the f irst defendant /respondent was a bona fide purchaser.

At the hearing of argued grounds one t.his appeal, learned Counsef for appellant and three together. In her broad submission,

learned Counsel pointed ouE that according to the evidence of the respondent, (DW1). and Ehe evidence of the advocatse who drew tshe sale agreement of the Suit ProperEy, (Dw3), the second defendanE was Ehe registered owner of Ehe properEy in quesEion. The respondent stated that he bought E.he suit land either towards the end of october. L982, or at Ehe beginning of November, 1982. The SaIe AgreemenE, Exh. D1 , was executed in November, 1982 without mention of a specific date. The land was transferred on 23/Ll,/82 from E.he second defendant, Swaibu Ajaka, to the respondent as per Iand EiEfe, Exh. D2. It was the contention of learned Counsel for Ehe appellant that the period beginning from when the Sale Agreement was executed to the time of transfer of title was suspect in that if normal- procedure was fol-1owed, it r^,as too short. In her view, Lhe whole transaction was tainted wiEh fraud.

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Consequently, learned Counsel submitted Ehat for the respondent Eo be a bona fide purchaser, he should have carrj-ed out adequate investigations to find out whether the sel-Ier, Swaibu Ajaka, was a successor who had got Letters of Administratj-on on the Suit ProperEy in accordance with the provisions of Section 143 R. T. A. Since the respondenE, j-n her view, did noE do tshat, Ehe Learned trial Judge erred in concluding that the respondent was a bona fide purchaser for value without notice of fraud.

Learned Counsel for the respondent supported Ehe judgment and orders of the learned Erial ,Judge. According to him, the Erial ,Judge had evaluated the evidence before her properly and in great details. The appellant pleaded that there was fraud on the matter. IE was t.heref ore incumbent. upon him to prove it which he faiLed to do. In order Eo justify that he was a bona fide purchaser for val-ue without not.ice of fraud, learned Counsel submitted that Ehe respondent through his advocates, checked t.he Register Book and found therein that Swaibu Ajaka was Ehe registered proprietor of the Suit ProperEy at Ehe material t.ime. According to the learned Counsel that was enough investigat.ion.

It is not. in dispute that Swaibu Ajaka, t.he second defendant, sofd the Suit Property to the respondent sometime in November, 1982. IE was pleaded, however, Ehat Ehe EransacLion was marred by fraud. The burden, j-n my view. \$/as upon the appellant who pleaded fraud to prove it. Before the transfer of title to the respondent was effectsed, Swaibu Ajaka was t.he regist.ered owner of the property as Dw3 found from a white page of Ehe Regist.er Book. The transfer of Eitle from Swaibu Ajaka t.o the respondent. was effected on 23/ll/ 82 accordj.ng to the land title Exh. D2. under section 55 R. T. A., such Certj,ficate of TitIe j-s conclusive evidence of ownership unless obcained by fraud.

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In the inst.an! case, the appellant did not prove fraud on the matter. Like the fearned t.riaI Judge, I find t.hat. the respondenE. is the registered proprietor of the Suit. Property. He is therefore proEected by the provisions of Sections l-45, 184, and 189 of the R. T. A. By the time the appellant got Letters of Admini- sEraE ion, the respondent had already been regi.stered as the proprietor of the Suit. Property. Under Section 145, of the R. T. A., the respondenE was not bound to investigate beyond Land Register. He clearly dj-d that through his advocates. In the premises, the respondents is a bona fide purchaser for value of t.he Suit Property wj.thout noEice of fraud. I find no merit in grounds one and three of this appeal .

Learned Counsel for appellant complained in ground two that the Iearned trial Judge. erred in 1aw by not exercisj.ng Court.'s discreEion Eo direcE t.hat an officer of the Ministry of Lands and Survey Department. should have been called Eo clarify to Court on Ehe transfer transaction of land from Swaibu Ajaka Eo Ehe respondent. However, learned Counsel did not have any authority for that proposi-tion. Learned Counsel for respondent submj.tted that Ehe learned trial ,Iudge was not expect.ed E.o lead evidence to fill Ehe gaps in the appellant's case. I agree. Accordingly, ground two of this appeal aLso fai1s.

In the result, I would dismiss the appeal with costs to the respondent here and in the Court below.

Dated at Kampala this. $29\cancel{K}$ <br>Dated at Kampala this. ...................................

$1950$ S. G. ENGWAU

$\mathcal{S}^{\mathcal{A}}_{\mathcal{A}}$

JUSTICE OF APPEAL.