[1996] UGHC 15

## THE REPUBLIC OF UGANDA

### IN THE. HIGH COURT OF UGANDA AT KAMPALA

### CIVIL SUIT NO. 4?8 OF 198?

IBRAHIM MUHAMED :: PLAINTIFF

# VERSUS

1. LAWRENCE LULE ¹

::::::: :: DEFENDANTS 2. SWAIBU AJAKA ⁵

# BEFORE: THE HONOURABLE IADX JUSTICE M. KIRLJU

### JUDGEMENT

The plaintiff, Ibrahim Muhamed brought this action against the estate land. defendants, Lawrence Lule and Swaibu Ajaka, as the administrator of the of his late father Sulemani Ajaka who originally owned the suit 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 1.20 hecteres 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 Is-; 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 Aot Cap 2OJ» The 2nd defendant Ewaibu Ajaha was not served with summons he did not therefore enter appearance, fiae a written statement, of defence-and did not appear at the hearing of the case. The case • rp.vo\*M^dod-'.in. his absence.

At the hearing, the plaintiff was .represented \*3y learned counsel Mr. Owiny Dollo of M/S Owiny Dollo and '.^ibaijuka Advocates who was later replaced by*'* learned counsel Ms wak.acwa of the same firm. The 1st defendant was represented by learned counsel Mr. John W. C. Matovu of M/S Matovu and ^amugunda Advocates.

uu At the commencement of the hearing th .agreed upon:\* e following Issues were

- st 1. Whether or not the suit land was trans? 'erred to the defendant fraudulently. - a. .../a ... Whether the 1st defendant is a bonafide purchaser.

>•

The plaintiff called two witnesses, P. W.l, the plaintiff himself and PW2 Shabani Abdulla \*»adhi an uncle to the plaintiff\* On his part the 1st defendant testified on his own behalf and called IM2 Yusufu Kityo Ssalong) and DUJ Edward Blue an advocate\*

Pwl Ibrahim Mohamed, testified that he was aged 70 years, and resided at Kayanja, in Bombo\* His father was Sulemani Ajaka and he died in 1978. His father owned land at Kisugu Mailo land Block 244 Plot 367, letters of administration, the 1979 liberation war broke out and he fled to Zaire and did net return until 1985. During the war all his things were taken including the Certificate of title to the suit land. . £he subject of this suit. The plaintiff claimed he is the heir to that landc When the plaintiff's father died and before the plaintiff could obtain

when he returned to Uganda in 1985 he found his fathers' land had been sold off to the 1st defendant allegedly by the Ind defendant. -Lt. 3an' fenced by the 1st defendantthe matter to the 7 The RC convened a meeting and the Is" defendant was summoned but he refused to turn up saying he had his own tixle. He then tried to obtain a special Certificate of Title since the duplicate had got. lost. W:.xe'. X he checked transferred to Lawrence Lule by Swaibu Ajaka. He was advised by land letters ci ac • "1. ' n '"hicb he get on 25/8/1988 as per A,nn plaint. The 1st defendant then cut down 4 Muvule trees and demolished the house and started cultivating the land\* The witness the ³¹ lodged a Caveat whi ch was also served on the RCs«. He reported the r.. 'atter to asked the RCs whether police who visited the suit land. when the police they knew any on ohII'a^H AwMhu Ajaka, they said they did not bu they ^Tu> knew Lawrance Lule» e has a to report- to Police. He endant never of the first des tr - He also wanted conrpensation for the things destroyed by the first defendant ¹ ^and ooot '.h of the euit. The police then left a letter requesting La- 'rcncc said that up to the day of testifying ¹ the Register" in Land Office he found that the land had been office to get 'A' to the soen Swaibu .. juka. Ho prayed that the lame 1 erased fri>m the Register and the land of his father be returned to ^h ••rr. n ¹ The plaintiff reported new knov/n. \*as local Council LC).

-.../J...

of let tforld War and. a cultivator. in Bombo although he had a house in Kisugu. His father had J wives, one was staying in Bombo another one -in Kisugu on the father's land and a third one in his shop in Kisugu. His own mother had 3 children, himself^t -Abdulla -and Miriam, the seobnd wife had 3 children Asina, S^batiya, the third one Has6an has since died. The third wife did not have any children. All the 3 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. He denied having gone to Lule to see him about the land neither his brother Abdalla. He said if his father had other children outside marriage he would have known. When they run away in 1979j Abdulla and Mariam stayed in Uganda. flheg. he run away he left one Ramadan to take care of the property. Ramadan decided to put there someone to keep the house, Ramadan has since died. further in cross examination he testified that he was born in Kitgum in 1922, and he moved to Bombo in 1944 with his father who exwas an ^.solidier Before his father died he was living \*

,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 1963 at Kumi, Teso. of his brother Muhamed Aharaed. He knew Suleimani Ajaka he was his elder brother and he died i# Kenya and had 6 children ineluding the plaintiff. Mustafa\* Suleiman Ajak owned land at Kiwulilifcu and it was taken away by other people. Shaban Abdulla and - He had 4 brothers namely Muhamed, Suleimani Ajak^ He did not knovz any body called Swaifou Ajak in their family. ne said he knew Ibrahim Muhamed that he was a son

In cross examination he tesi^Lfied that huhjimed Ahamad was his elder bother and Suleiman was a yqunger brother of Muhamed Ahamed. By staying at Kiberu. born in \$\$mbo, Suleiman, Ajaka was in Nairobi He died ^n Ketiya and thats where he was <,buried. Suleiman Ajaka had one wife and his children are. Abdulla Muhamed, Mariam —/4-- the time the witness was

*5*

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. H© also testified that he was present in appointed heir to Suleiman Ajaka. Nairobi when Ibrahim Muhamed was

he saw the plaintiff he bought land at Kisugu Kiwuliliza. there was land for sale at Kisugu Kiwuliliza and since he was not aoquiante with land issues he decided to take Kaggwa to his lawyers Mayanja, Blue & 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. Blue 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. Blue 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 boundaries which they did. After the land inspection they went back to Mr. Blue and. signed between the seller and the purchaser Exh. D.l and the seller was paid by Oo-operative . bank draft. After payment the seller'signed the transfer form and land was transferred in his names as per Exh. D.2, the Certificate of Title. He had gone to an office on Entebbe Hoad belonging to Moses . Kanaku, a broker by the name of Kaggwa came and informed him that The first defendant Lawrence Lule Dtfl opened the defence case and testified that he was 60 years old, farmer of Mitete Nawogora Masaka. for the first time in court. agreed on the price of shs. J.^million shillings, an agreement was

He further testified that by. ;he time he bought the land it had no as the lawyer had assured him. 'he seller was between 6^ and 70 years By the time he bough; the land there was a Semi-permanent house built with mud and wattle ro.l i with iron-sheets. When the occupants of the house left they took :h ii-on sheets and they had never come of age. incumberances and he was not awn'e of any forgery concerning the title

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

He was informed by CID to stop developing the. land as per Exh. D.3 not be found. .money as he had not paid enough and he refused to comply. further tas-tified that before this suit was filed he was approached by some people whose names he did not know- and they asked him to pay more •He told the police that he did not know much about Ajaka. After the investigations the police allowed him to develop the land. • he until investigation into the alleged forgery reported by Ibrahim huhamed were completed. H© tried to look for K-aggwa with police but he could

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

DW2 Yosofu Kityo salongo testified that he was 70 years old, he was retired from Mateological Department. he was born. In 1970s he was a mutongole chief, he bought a land next to his. When hhe defendant bought the land the 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 was not living there, when he sold the land he demolished it. He resided at Kisugu where He knew the defendant,

In cross examination he said that the person who introduced the he had another house on another land the seller in 1982. cement\*ry. Tho seller, who was a Nubian was an old man and was not present in court. 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 defendant to him was a Nubian bu ; he does not remember his name, but and it is till there.. He last saw

The last defence witness was DWJ, Edward Elue who testified that he has been in legal private practice since 1979 and he knew the defendant aa he was his client in the 1980s. He was the one who drew up the agreement; Exh. D.l 'and witnessed the signitures of the seller Swaibu Ajaka and the buyer! Lawrence Lule. 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 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 nsjmes \* of Lule. He added that the ; seller was fairly old between 55 £nd 60 years of age and looked like a Nubian. when the parties came to his chambers he established the identity of the seller by checking on his Identity Card and graduated

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

At the close of the defendant case both counsel addressed me on the issues and 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 title moved from Suleiman Ajal a to Swaibu Ajaka. The only allegation Counsel submitted that Ajaka was not a son of Suleiman Ajaka. he had all along children but non of them was sui.imoned to come and testify that Swaibu Counsel contended that the evidence of PW1 could not be be. 'ely relied on as 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 anc bought land and went back to Nairobi^&gt; whereas the plaintiff testified that Suleiman lived in Bombo. was that Swaibu Ajaka was not known to the plaintiff. and Prf2 both testifiei that Suleiman Ajaka had wives and

Counsel argued that in view of the conflicting evidence there was a . possibility that the plaintiff did not know that Swaibu Ajaka was a eon 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 tne 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 PWJ in Land Office before the sale and nothing was detected. Counsel also referred to S.56 of Registration of Titles Aot whioh 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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Ms Hakacwa 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 1?26 AC 101 - (2) David Sajjaka ^elima Vs Rabecca Musoke, Civil Appeal ho. 12 of 198\$.

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 th.: evidence the first defendant did not carry out enough inquiries, tha; 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 30/11/82 was too short. connivance with his lawyer had Swaibu Ajaka a fictitious person or to later claim to be a bonafide pur;«h impostor registered as a proprietor and thereafter the first defendant bl— - 23/11/82 and the signing of the sale agreement on The inference in the circumstances is that the first defendant in tv'nd sc i

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 1st 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.

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 1st defendant whom 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:-

¹¹No 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 $\mathop{\rm forth}\nolimits$ 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 $\iota$ $\mathbf f$ such estate or interest or has such power".

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

named therein sufficient proof of ownership of the land in question

$\ldots$ /9..

$\ddot{\circ}$

$\mathcal{L} = \mathcal{L}$

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

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

- (a) - (b) - any (c) the case of a person deprived of 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 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. exceptions not relevant to this case.

It is also clear from numerous authorities that while the cardinal of actual fraud on the part of transferee: 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

Ltd Vs. ftainone Timber Co Ltd. In the case of Assets Co Ltd Vs Mere fthere there are a •\*\*/10.o Robert A. Lusweswe Vs. Kasule & A: or. HCCS 1010 of 1983, Olinda De Souza Figueiredo Vs. Kessamali, Nanji 196g EA 756; Kaimiha Saw Milling Co Roihi & Others 1905 AC 176 the plaintiff fraud means actual fraud thatia dishonesty of aome sort anc as was rightly pointed out by counsel for not what is called constructs^&lt; or equitable fraud. a series of subsquent transfers, for the title of the current registered proprietor to be impeached, the fraud of the previous proprietors must be brought home to him.

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

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

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

In the case of Gibbs Vs Messer 1891 AC 248 Where the court was deal:. 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 person who dealt with a registered proprietor was to ascertain the existence of the registered proprietor and the genuiness of the instrument signed by him.

is whether the defendant failed to carry out the necessary investigation in respect of the title. although the plaintiff did not call anyone from Land Office to testify as to waht documents were in the Land Of1'ce with regard to the suit property, she submitted from the bar that .the transfer forms were missing and this should have aroused the defendant'^s suspision. With respect to Counsel I must state that submissions ' *r* counsel without evidence to support them cannot be relied upon by court especially in cases of fraud where the standard of the proof is higher than in other civil cases. Without to what happened to the transfer forms court cannot act on hearsay -.vidence. 'flhat is before court is Exh«D.2 evidence from Land office at- The immediate question now

>

.../ll..

the Certificate of title showing that Instrument Wo. ALa 1O59&4 transferred land from Suleiman Ajaka to Swaibu Ajaka and Instrument WO KL\*. 104211 which transferred land to bawrence 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 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 defendai. was registered was to short and the defendant should have been suspicion/.. The land was transferred to Swaibu Ajaka registered.on 3/1/8?. 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 ^&gt; is selling his land. I therefore do not agree that this is a matter which would have made the defendant suspicious. on 25/11/82 and the defendant w .-

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 owtfsr of the land was. Ptfl testified that when he left the Country in 1979> Ramadan has since died, it is not known when he died. DW1 testified th£" after he had bought the lane the occupants of the house were removed by Swaibu Ajaka and the defendant did not have anything toto do with them. After they had been remove c. there is no evidence that they complained ¹ • PW2 also testified that the son ^x did not go to oxile and lived in Rabalagala not Hji anyone, even Ramadan did not complain. Suleiman Ajaka called Abdalla and Miriam also a daughter of Suleiman very far from ^isugu, however, they also did ict complain or receive any complaint about .../12.\* he left one Ramadan to look after the house and he put there some tenant

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

Counsel also submitted that the defendant should have tried to find out more about Swaibu Ajaka whom she referred to DWl's evidence was that after he had been informed that someone was selling land, he took that person i.e. Swaibu Ajaka to his lawyers PWJ to handle the transaction. DWJ testified that he ascertained the identity of Swaibu Ajaka from the identity Card and graduated tax ticket. he made a search im in land 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.1.^million. The defendant was also introduced to the chief of the area Dft'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 his people for burial on the suit property. Card was the same person on as fictitious and imposto \* office and found that the person holding the Identity

^f'rom the evidence of the defendant's witness it is clear that . the all the 3 witnesses have been a Nubian. It could also not be concluded that he was an impostor, because it appears that ne was known to the tenants whom he managed to evict without any complaint from them to any authority. He was around when the boundaries were being opened by the surveyors and he is the one who identifiel them. The fact that defendant could not trace him to come and testify does not mean that he does not exist. The plaintiff in his evidence when he was asked why he did not serve Swaibu Ajaka, he said that how could he serve a non existent person. I must state ' here that there is nothing on the record to show that the Swaibu Ajaka and failed to trace him. plaintiff attempted to serve person the defendant dealt with was not fictitious because he was there witnesses. in reality and was seen by all the J defendant^. testified that he was an elderly man and DW2 and 0W3 said he could

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. V

Unlike the plaintiff in the case cf Lurweswe the plaintiff in this casv did not apply to serve the 2nd defendant Swaibu Ajaka by substituted serve, • , so it would not be fair for the court to lebal him an impostor when he hud not been given a chance to appear before this court and to be heard.

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

There is the evidence by the defendant that the property was free from incumberances when she search was carried out in the Land Office. From the evidence on redord 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 value without notice and therefore protected under b.189 of R. T.a. Thia section provides as 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 ns aforesaid or for deprivation of the estate or interest in respect to which he is registered as proprietor by any purchaser bonafide for valuable consideration of land under the operation c-0 this Act, on the ground that the propr .etor through or under whom he claims was registered as proprietor through fraud or erro • or has derived from or through a person r mistered 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'' ^o

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

• prefer\*. • ; ts a good \*i

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

after my findings on issue one, it may not have been necessary to go into the details of this issue however, in case. I am wrong on the first issue I would like to handle this issue in some detail. The question now is, in case Swaibu Ajaka acquired the property through fraud, did the know about it and went ahead to purchase the same land aware of the fraud.

As was pointed out in the case of Nelima (supra), the burden of establishing the plea of a bona fide purchaser lies on the person who sets it up. The defendant has to prove that he is a purchaser' for value and without notice:

Pilcher Vs. Rawlins /1972-7 ⁷ \_Ch App 259,.. Attorney General Vs. 4 others 19&5 HCB 46, also refer. Bishopsphated Guano Co /1&79 7 H Ch ^D 3271. Sempa nbabali Vs. Ajd&a

Whether the defendant paid valuable consideration, there s the testimony of DW2 who testified that he paid shs. l.^million for the property. This purchase price is also contained in the memorandum of agreement Exh. D.l. It was paid to the seller and he acknowledged receipt of the same in the said agreement dated *\$0/11/82•* This money was paid before the defendant was registered as a proprietor on 3/1/8}. From the above evidence which is not disputed by the plaintiff except that it was not enough and.! have.already dealt with that question in this judgement, I find that the defendant has proved oh balance of probability that he paid valuable consideration for the property.

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

as it had not been proved. Counsel submitted that there was no Caveat ' on the title or any other incumberance, the transaction was handled by an advocate who carried out the investigations in land office before the agreement was concluded: ■Elina Nakabiri & fl others Vs« Masaka District Growers Co-operative 1985 HCB ^8. The defendant visited the ⁷ The tenants were evicted by the seller and they did not complain. The seller also unroofed the house and took the iron-sheets. Counsel contended that it would have been difficult for an impostor to do all thes things. Counsel further submitted that there was no effort on the part of the plaintiff to serve Swaibu Ajaka by substituted service, which need him in court. Counsel also submitted that the faot that the plaintif.' was the administrator of Suleiman Ajaka'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. land and was introduced to the Mutongole Chief, the boundaries were opened by the surveyors in the presence of the defendant and the Seller. means that the plaintiff knew that Swaibu ajaka did exist but he did not

Ms Nakacwa 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 seller his address and did not inquire on how the seller got registered Counsel argued that it was the defendant who should have called Swaibu Ajaka to testify as to how he acquired the title. is known to the family. plaintiff was a biological son of Suleiman Ajaka or not especially if one considers the African extended family where your brothers children are also your children. She further submitted that since the plaintiff got letters of administration no one has come forward to challenge them Counsel contended that the defendant and they have not been revoked!. . According to PW2 Swaibu njaka is an impostor who It as proprietor after ^ulaiman ,ijaka. whs immaterial according to her whether the p

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,../16...

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

the land office were concerned the defendant did what he was required to do\* He engaged a lawyer DWjS who carried out a search in the office and found that there were no incumberances on the title and Swaibu Ajaka was th registered proprietor\* In the case of Nakabiri & 2 others vs Lusaka District Growers Co-operative (supra) the court found that the defendant was not abonafide purchaser for value because at the time of purchase the title was incumberod. with Caveats. The defendant had bought land well knowing that its ownership was in disputet. court held that the Q defendant was therefore not a bonafide purchaser. The title in this case ^&lt; did not have any incumberences. The defendant could not have known the interest of the plaintiff as the administrator ⁱ of the estate Suleiman Ajaka as there was no notice in the Land office. And by the time the p registered Except in case of ffaud a buyer of from a registered proprietor is not expected to investigate beyond Land register, \*S.145 RTA refer. After considering the submissions by both counsel including the authorities cited, I am convinced that as far as the investigations in . plaintiff got letters of administration the defendant had already been as proprietor.

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\* All that is known is that when vie nt to check in land office they were not there this must be after 1985 after the defendant had been registered as a proprietor.' In the absence of evide .. 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* custody. And court therefore can to what happened to them and what they could have contained. been complied with. not speculate as The court can only assume that at I the time the defendant was registered all the requirements of the law hud

I

The defendant also carried out investigations at the site where land is situated however, the plaintiff submitted that these invest!- / gations were not enough because, he did not inquire from the tenants .as who was their landlord. As 1 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 oomplain 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, 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 I agree with counsel for the defenu • •

*r* ¹⁷

in Nairobi \*enya 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. 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 the case of Assents Supra Lindley when referring to a bonafid. 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 ?ound that the defendant carried out 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 • the truth. ^I did not find any badfaith or sharp practice in whatever On the otherhand I found the manner strange. Tuth'r stren/c. all the necessary inquiries he was he did to acquire the property. in which the plaintiff handled his interest in this land rat'ar ini 'rr.sd ^t'..;

## 18

He informed this court that he was familiar with \*\*. land transactions as he owned other properties. However, when he came back in 1985, he A; was informed that Lawrence Lule had bought the land instead of rushing V to Land Office to lodge a 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 persue the matter in court. One starts wondering whether the plaintiff even knew that there was a title to the land and whether he was really in possession of that title in 1979»

All facts considered I have found that the defendant was a bonafide purchaser for valuo 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 14-5, 184 and 189 of R. T. A.

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

The suit against the defendant ^awrence Mile is dismissed with costs.

1 M. Kireju

JUDGE 22/4/1996