[1995] UGHC 68

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA CIVIL SUIT NO. 757 OF 1992

DR. JOOD MOFOKENG ::::::::::::::::::::::::::::PLAINTIFF

#### **VERSUS**

| | HASSAN DADDU NKATA | | DEFENDANT | |--|--------------------|----------------------------------------------------------|-----------| | | 2. C. W. H. WAMALWA | $\cdots\cdots\cdots\cdots\cdots\cdots\cdots\cdots\cdots$ | |

#### BEFORE: THE HON. MR. JUSTICE J. B. A. KATUTSI

#### **JUDGEMENT**

$\mathcal{L}_{\mathcal{A}}(\mathcal{A})$

By his plaint dated the 25th day of Novermber, 1992, plaintiff sues the two defendants jointly and severally for a declaration that the land and premises situate on Nkoma East in Mbale Mucipality and known as Plot No. M. 25 and comprised in Leasehold Register Volume 807 Folio 7 is the property of the plaintiff which was acquired by both defendants through fraud. He to that end seeks an order cancelling the Certificate of Title in respect of the land and an order that he be registered as the proprietor of the suit premises. He also prays for general damages and mesne profits.

The case fo: the plaintiff briefly put is that on or about the 31st day of August, 1968 he bought the suit premises from a lady known as FIRIDA NAMWANDU for vaulable consideration. Later this Firida executed a transfer application in his favour. The necessary consent was granted. Exhibit P.1 and he took possession of the projecty.

$\gamma$ _n 25/4/69 the building and drainage works he had carried out at the site were insp cted and passed - Exhibit P2. Later Firida executed a transfer in his 'avour - Exhibit P.3. In 1971 he was forced to flee Uganda and went to Kenya where he stayed up to 1992. While in Kenya the suit property were being rented out. Later he decided to sell the property and asked Kesero Makamya to get him a prospective buyer. This Kesero-Makamya introduced the 1st defendant as a prospective suyer. A price of shs. 450,000/= (four hundred fifty thousand) was agreed upon. First defendant issued a cheque for Shs. 90,000/= (ninety thousand) as part payment but the cheque was never paid as 1st defendant stopped it on : allegations that the premises were not in the names of the Flaintiff - Exhibit P4. On 24/5/77 Firida Namundu swore a

special Certificate of soerr. time in March, 1973. nt-e, the duplicate havtng been lost

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a ⁱ ^r er 22-9-92. premises had been sold to the Later 1st defendant entered upon Plaintiff instructed M/s. Ochieng ls^b defendant from the premises. See exhibit P8. On leaving the premises the beys quarters he had erected at the Ooe Olanya (DW4) went to him in Kenya with the son premises. Tn the declaration she stated the plaintiff Exhibit P5 and P6. the premises clandestinely. .•Z] borne & Co. Advocates to evict This they did on 12/12/80. 1ft defendant demolished suit property. .no Okello desiring to rent the suit premises. He passed the keys t ^> -..his Olanya. Later plaintiff received information that O¹ anyr. and 1st defendant had gone to some lawyer about the suit premises. Plaintiff was worried not t> go to Mbale. Later when he •' reported the matter to the Police C. I.9. Headquarters he was served w: th a detention order - Exhibit P9. He spent three months at Luzira which he was deported to Kenya where he remained till On returning to Uganda he discovered that the suit property had been registered in the names of 1st defendant.

It is his case that the transrer was by fraud and that the 2nd defendant was not an innocent purchaser who knew that 1st defendant had acquired th ³ suit property by fraud. He pleads the following particulars of fraud:

- ' a) the first defendant forged or caused signature of Namwandu to be forged on the transfer. - (b) the first defendant know that the house belonged to the plaintiff and in 1980 he was evicte'¹ there from by a Court bailiff. - (c) pre re ⁱ the first defendant forged or caused a letter to be written to the incial Commissioner for lands that the plaintiff had been inded the purchase parice. - (d) the 2nd premises defendant used Olanya to acquire the keys of the from the plaintiff so that ne may occupy it. - the 2nd the." the ( '' defendant knew from Olanya and the first defendant land belonged to the plaintiff. - so *- )* could have name. the 2nd \hat he defendant used Kanywamusai to detain the plaintiff the land and house registered in his

$(a)$ the $2\pi\mathrm{d}$ defendant knew the entire history of the land and the house.

case for the 1st defendant brief put is that he came to know $\dot{n}$ of the plain\_iff in 1976 through KIsoro-Makanya who introduced him $\epsilon$ , the former in Kenya. On the cocasion plaintiff sold the suit premise to him at Shs. 4,500,000 (four hundred fifty thousand). Out of this money he paid Shs. 90,000/= (ninety thousand) to Kisori -Makamya by cheque in Mbale and the rest by cash. In 1978 plaintiff s arted harassing him over the suit property.

Solder taken to him by plaintiff removed and tore documents to the $p\circ op$ rty. He had mortgaged the property to U. C. B and failing to redeem it, it was sold by public auction. He signed transfer forms in favor of 2nd defendant at the invitation of the bank.

The case for the 2nd defendant is that he bought the suit property at a public auction which had been duly advertised in Newspapers Erhibit D.4.

Both counsel submitted written submissions which I have very carefully perused. Neither of them referred to the provisions of the Registration of Titles Act. Mr. owori for defendants submitted that allegations of fraud put forward by the plaintiff had not been strictly proved. R. G. PATEL vs. L. MAKANJI (1957) E. A. 314. $M₁$ . Byaruhanga argued that 1st defendant acquired title to the suit property by fraud.

As regards the 2nd defendant, Mr. Byaruhanga urgued that fraud had been apply particularised in paragraph $33(b)(e)$ and $(q)$ of the plaint. The written statement of defence put forward by the 2nd defendant coupled with the evidence got to show fraud, urged counsel.

The following issued were listed for the defermination of this Court.

- whether the 1st defendant acquired the suit property by fraud. $(1)$ - whether 2nd defendant acquired the suit property by fraud and $(2)$ missuse of his official position. - whether the 1st defendant held a valid title when the suit. $(3)$ property was acquired by the 2nd defendant. - whether the plaintiff is entitled to the remedies listed in $% \mathcal{L}$ $( . . )$ $\frac{1}{5}$ aragraph 37 of this statement of claim or to any other relief.

I will in this judgement treat the 1st and 3rd issues together for $% \mathcal{L}_{\mathcal{A}}$

'.meh, they are one.

reg: tered at 10.00a. Section 56 of Th-' 1st plaintiff was premises on 6.2.78 Exhibit PIO. (hereinafter referred of title shall such Certificate as Interest in seized'or possessed of Certificate of Title is as th proprietor vi the suit m. vide instrument No. 201621 the Registration of Titles Act to as R. T. A) provides that a certificate be conclusive evidence that the person named in the proprietor of or having any estate or or power to appoint oi dispose of the land is such estate, interest or power. The not to be impeached or defeated by reason or on account of any informality or irregularity in the in the application or proceedings previous to registration. Section 184 of the R. T. A provided that no action of ejectment or ocher action for the recovery of any land shall or be sustained against the person registered as proprietor under the Act except in ixcepted circumstances. These include the case of a person deprived of any land by^frauo as against the person registered as proprietor of such land through fraud. It is the case for the plaintiff that the 1st defendant was registered as proprietor by fraid.

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Fraud in common parlance is a somewhat comprehensive word that embraces a multitude of deliquencies deferring widely in turpitude. He.'re we are dealing with legal fraud. Allegations of fraud must be specifically pleaded: DAVY vs GARRET (1878) ⁷ Ch. 473 and n.ust be strictly proved: R. SC. PATEL V. L. MAKANJI (1957) E. A.314 .

In the matter of fraud a higher standard of proof is required than that required in proving ordinary civil matters.

> a if "A Civil court" said DENNINGL. J" When considering charge of fraud will naturally require a higher degree of probability than that which it would require considering whether necl'gence were established".

The onus proband is upon plaintiff it is alleged in the plaint: BELLANY VS. 425. CRAIG vs PHILIPS (1876), 3Ch. D. EATER V. BATER (1951) P.35. :u prove his case as SABINE (1817), ² P.h.

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STARLAND (1914) W. L. R (can) or his particulars: SACIS vs SPEILMAN (1887) 37 Ch. D. 295. Nothing short of $\textbf{w}$ iful misrepresentation intended fraudulently to deprive a man of his property must be proved: RICHARDSON vs HATRICK & MENSON (.903), 28 M. Z. L. R. 170. Every material step necessary for making out a case of fraud must be proved by sufficient evidence:

$1 - 132$

# ANGUS vs. CLIFFORD (1891) 2 Ch.479.

It is the case for the plaintiff that lst defendant forged a $% \mathcal{L}_{\mathcal{A}}$ signature of Namwandu to be forged on the transfer. I think in choosing to frame this particular of fraud in the manner $% \mathcal{L}_{\mathcal{A}}$ plaintiff took on himself a grave responsibility, he had to prov that the signature of Namwandu is forged. There is no evidence to show that the signature of Namwandu was forged. Plaintiff has not shown that the document in question is not that of Namwandu. The second particular of fraud pleaded is that the 1st defendant know that the house belonged to the plaintiff and in 1980 he was evicted therefrom by a Court bailiff. I really don't know what this is supposed to mean. It is the case for the 1st defendant that he bought the house from the plaintiff. This of course pre-supposes that he knew that it belonged to plaintiff. I can't see how this knowledge can ne transferred into fraud. It is said that he was evicted by court bailiff from the house in 1980. Exhibit P10 shows that he was registered as proprietor on 6.2.78. I fail to see how the eviction of 1980 can taint the registration of 1978 with fraud. It is said the 1st defendant forged or caused a letter to be written to the Provincial Commissioner. Once plaintiff comes out with an allegation of forgery he takes on himself a grave task. He has to prove the forgery.

In this case he relies on the fact that his name on the letter was mispelt. I however find that the same spelling appears on a document on which he relies. I refer to Exhibit Pl. Another factor relied on is that the letter is alleged to have been written in 1967. I think I am entitled to look at the document $\therefore$ a who e. Although it is that the date as given on the document is not explained, $\mathbf I$ find that there is an impression of a stamp on the document to show that it was received on 27th

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^I must case. It case. was remove say this document raises sure that this In Septe- her *,* ¹ 976 . suspicion that ^I am not sure that this suspecion amounts to vidence of proof of forgery. in tr / case there is no evidence was relied on when registered the There are a lot of Of course a party is free to But be that as it may ^I think the Kisoro-Mckamya in the witness box should have been ssistance to both parties. I am, on the evidence, constrained to find that fraud has notbeen brought home to the 1st defendant from the protection fo section 184 oe the R. T. A to show that the docunent 1st defendant as proprietor of tne suit property, .several unexplained circumstances surrounding this would appear Kisoro-Mukamya was a prominent'figure in the proceedings leading to this case. It is not known why he not called as witness. Of course a partv is free to examine a witness of nis choice, presence of of great

He can The The 2nd defendant claims to be an innocent purchaser for value, only be removed from the protection of section 184 by evidence to show that he was not abona fide purchaser, relevant part of section 184 reads:

> or as against a person otherwise than a transferee bona fide for through a person so registered "184 No action of ejectment or other action for recovery of any land shall lie or be sustained against the person registered as proprietor un.-er the. provisions of this Act, except in any of the following cases - (emphasis supplied) (a) (b) (c) .... deriving value from or through fraud".

⁷ Ch. App. ²⁵⁹ JAMES L. J. said: VS a jn p ¹ JHER VS RAWLINS (18 ⁷ 2), "I propose simply to apply myself to the case of purchaser for valuable consideration, without notice, obtaining upon the occassion of his purchase, and by me ns of his purchase deed, some legal estate, some Legal right *,* some legal advantage; and, according to view of the established law of this Court, such

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purchaser's plea of ^a purchase for valuable consideration more given in order to show the bona fides or mala fides of his purchase, and also the presence of the absence of notice; but when he lias gone through that ordeal, and has satisfied the terms of of the plea of purchase foi valuable consideration without notice, then? this court has no jurisdiction whatever to do anything than let him depart in possession of that legal estate, that legal right, that legal advantage which he has obtained". without notice is an absolute, unqualified, unanswerable defence and answerable plea to this jurisdiction of this court. Such Purchaser, when he has once put in the plea, may be interrogated and tested to any extent as to the valuable consideration "which he has

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be: ^I adopt this view as (c) K. T. A. a .subject of public auction, advertised. the proper inter pretation of section 184 The 2nd defendant has shown that the property was The public auction was properly He becane a duly registered proprietor of the property on 22.1.82 a\_ 10.30a.m. vide instrument 211038. A registered bona fide purchaser from a registered owner whose title might be impeached for fraud has a better title than his vendor, even if the title of the latter could be unmpeached: AN APPLICATION BY G. N. M. MALLO (1964) E. A. 731.

o: It is ^I nave very carefully considered the instances of fraud as advanced against the2nd defendant. I find them to be empfcy substance. It is claimed the 2nd defendant used Olanya (DW4) to get the keys to the house. olanya appeared in court and cate; jorically-denied any involvement. in any case it would.-be ci^icult to comprehend how ^a prudent property owner would part ,/.ith the keys in the manner claim J by the plaintiff. ¹ t.ac 2nd def- .dan- know from Olanya that the hnnsn ^J Lne Pla--• • re is nc what • -k up Chis claim. It remains wishful thinking. it is claimed chat 2nd defendant used Kanywamusayi to detain the plaintiff chat he could have the land and house registered in his names.

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■The ! Semakula. of mala fide. is Thi-> ~laim appear to be empty of any substance and logic, detention order compalined of is dated 26-8-82 - exhibit P9. The 2nd defendant became the reqi: •; red proprietor of the suit property on 22.1 r? that is some seven months before J. can well understand the But acting as a droaning person it is on 22.1.82, the detention order was signed! feelings of the plaintiff. But acting as a does not enhance his position. it is on record that plaintiff has never been registered as the owner of the suit property. According to the 2nd defendant he did examine the title deed in the legal ddepartment of UCD. he found a caveat in favour of UCB registered. Otherwise the'title deed had no any other incumbrances. He decided to bid for the property. The law cannot except him to have done more than that. There is evidence tp show that despite his claim the successful bidder was O. K. Semakula. Plaintiff did not advance this asn an instance ^I think under section 184 R. T. A. 2nd defendant entitled to depart from this Court in possession.

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This suit is dismissed with costs to the defendants.

J. B. A. Katutsi,

JUDGE

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**a**

# THE REPUBLIC OF UCANDA IN THE HIGH COURT OF UCANDA HOLDEN AT KARPALA

$135C$

### CIVIL SUIT No. 757 C.2 1952

# DR. JOOD MOFOKENG::::::::::::::::::::::::::::::::::::

#### VENSUS

1. HASSAN KADDU NKATA

2. C. W. H. WAMALWA

**HOMEHOMOROMENDANTS**

# DECREE IN ORIGINAL SUIT:

(Under 0.18 r6 and r7 of Civil Procedure Rules)

This suit coming this 24^th day of January 1936 for final disposal before HIS LORDSHIP J. B. A. KATUTSI.

In the presence of the Plaintiff and his Counsel MD, BYARUHANGA and in the absence of the Defendants and their Counsel MR. OWORL.

#### IT IS ORDERED:

$\mathbf{1} \quad \mathbf{1}$

That this suit be and is hereby dismissed with costs to the Defendants.

GIVEN under my hand and the seal of the Court this 24^th day of January 1995.

#### DEPUTY REGISTRAR

$\sim$ $\sim$

# DRAWN AND FILED BY:

**EMESU & CO ADVOCATES** PLOT No. 4 JOHNSTONE STREET P. O. BOX 10613 KAMPALA.