[1989] UGCA 1

AT MENGO อังการสุด เคย เปร (CORAM: HAMYINDO, D. C. J., ODOKI, J. S. C. & PLATT, J. S. C.) CIVIL APPEAL NO.1/88 171 Roll, 021.

mits of **BETWEEN** JOHN RUHIGA ! APPELLANT. 的。开始 quer Ampia $\epsilon_{\mathcal{B}} = \epsilon_{\mathcal{C}} \cdot \hat{\mathcal{M}}$ **Service Britishing** $11.00000$

tente propinsi 1. ELIAS RUGYERA $\mathbb{R}^{\mathbb{N}}$ 2. WILSON MANZI 3. HENRY RUNYWRYE (Appeal from the judgment of<br>the High Court of Uganda, appeal<br>Kampala (Mrs Kg Justing) I<br>Mukanza) dated \$9th November,<br>1987) $.1987)$ $\mathcal{L}_{\text{c}} = \mathcal{L}_{\text{c}} \mathcal{L}_{\text{c}}$ $\sim$ $\sim$ $\sim$ l'administration torici ekorici

> N reconstanting off off CIVIL SUIT NO; 1330 OF 1986 **Section Section**

dovo Bill JUDGMENT OF PLATT, $J. S. C.$ with the passes with manager. $\cdots + \omega_{\rm c}$ " The Tamily of Petero Rubesba fell into dispute sometime before $\tau^{(2)}$ " he died, and since then, the dispute has continued. This family thrives on cattle ranching, and rather appropriately, the first ·Plaintiff Elids Rugyera was at all material times employed as an Animal Husbandry Officer. "Flom this employment he appears to have been the best placed member. It seems to be clear that in 1972 the family rived in Kajara but that the area of their land was too small for them. New land was necessary and in 1973 the. Plaintiff Elias found a bigger "spread of unoccupied land in $x_2, \ldots, x_n$ 'Isingiro: An'application for a lease of this land was made on 19th February, 1974 (Exhibit PZ). In due course a lease offer Form (Exhibit D3) was filled up, and the lease proper dated " 15th July, 1977 was signed. If was to be effective from Let June 1977 for five years, we as Pundter The common resources the labour of the manner and

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## IN THE SUPREME COURT OF

CORAM: HANYINDO, D. C. J., ODOKI, J. S. C CIVIL APPEAL NO.1/88. APPEAL NO.11/88. 1.4. No.11. 57.1 $\mathcal{M}^{\mathcal{A}}$ with $\partial \hat{P}^{\dagger}$ and of

d'horingon's harquash<br>Aprophistics JOHN RUHIGA quer ANDia Articipa **Amazoni** $nri3$

1. ELIAS RUGYERA. 2. WILSON MANZI 3. HENRY RUNHYWRYE (Appeal from the judgment of<br>the High Court of Uganda a tar<br>Kampala (Mr. Kg. Justice) The State $\epsilon$ . $\mathcal{L}^{\text{max}}_{\text{max}}$ Mukanza) dated 29th November 1987) $\n\mathbf{v} = \mathbf{v}^T\n$ $.1987)$

$\cdots \text{ at } \text{ around } \cdots \text{ IN } \cdots \text{ and } \text{ } \text{ } \cdots \text{ IN } \cdots$ $\cdots.$ CIVIL SUIT'NO; 1330 OF 1986 $...$ her

Havo Bash JUDGMENT OF PLATT, J. S. C. ad of hazon and annexes. " "The family of Petero Rubeaba" feil into dispute sometime before $s: S^r$ $\mathbf{r}^{(i)}$ he died, and since then, the dispute has continued. This family thrives on cattle ranching, and rather appropriately, the first ·Plaintiff ElisyRusyera was at all material times, employed as an Animal^rHusbandry Officer. "From this employment he appears to have been the best placed member. It seems to be clear that in the family fived in Kajara but that the area of their land was too small for them. New land was necessary and in 1973 the $\sim 15^\circ$ Flaintiff Elias found a bigger spread of unoccupied land in 'Isingiro. An'application for a lease of this land was made on $\alpha_2 \leq \alpha_3$ 19th February, 1974 (Exhibit P2). In due course a lease Offer Form" (Exhibit D3) was filled up, and the lease proper dated 1. 15th July, 1977 was signed. If was to be effective from 1st June 1979 for five years, we as Passible This is an answer which was you be had a player to the state

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The dispute . conc^rns-'-the way in -which the Plaintiff Elias hand'l^'d\* these matters/-. At first, in the Application for Rural Land, the persons\c^fice'rried 'were' said to'be. the Aba.teganda Beef , ..'Production Company\* I\_tLwaerzf°'r ⁵⁰⁰ head, of pattie^v on land which ' " r-. ..r

*-* ² -

was already occupied'.by''the group\* but who wanted to turn it into . ^a commercial enterprise! \*■ • \* \* *'\* '•* ■' \* .

- Then the lease offer'was made to the following(persons;- ^HThe Abateganda. Be.e.f. Pr.o{d,ucti.on•Company? o.f 'Isxrigiroj.

!• Elias^t Rugyeraj '^t Rubeeba\* John Ruhiga'|'.^<' Henry Runyange and 5» Wilson Manzi.u ' The Qexvfoifica.toi of'^I title ;was' made out in the names of thpsb^r actual..persons Jasj tenants: in .pommon? It seems that the company wa£ not registered• " '''⁷

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But the dispute arises over an alleged oral agreement of ' - May 1977 in which Rubeeba apd^'John-Rjlhiga ar#-. said-to 'have approached ... *v.f/-.<;\**yiij-Elxas Rugyera and asked to be admitted/oh-^o.ythe^title'-of-the land xu Isingxro\*. "Elias says'that he agreed'on terms'.that'each person, ,4 . .. • . . k *...* Rubeeba and John Ruhiga# should pay'over'\* sixty'-head'of cattle, as . . Payment' towards development! . Rubeeba and' John-'Ruhiga are 'said to have agreed and entered into the land? 'But.therewas'then'a dispute^' with a neighbour and they decided to 'hand '.over ; their cattle after the dispute had been se ttled/\* • Then ' the 1979 • war ".came« They all left the land. Rubeeba'and John Ruhiga 'found' a 'place in Koki Raka.i. •• •< ? •. . • ; ' % / .' ;". • Elias returned, he said, t° Isingiro. But Elias.'worked in Koki at the time of the trial- The; title -was later confirmed.

In 1982, Elias wanted to sell the Isingiro land/ • The Land Offi-ce advised him to sock John Ruhiga' s consent or set aside land for him.- The latter refuspd--to give'it and placed a caveat on tho .. ' ' ' , ^a , ■iii. k" ' *.* title. Indeed John Ruhiga donied"any such agreement in May ¹⁹⁷⁷

3/•.♦.

$\mathcal{L}$ is except the 1.27.84 $\mathcal{L}$ and the curve of $\mathcal{L}$ earn that gree in bothing the boother and dia 1. $-3 \tau_{\rm c} \sim 10^{11} \rm \, cm^{-3}$ or that his name came on to the documents of title because he had agreed to pay sixty cows, John Ruhiga was a party to a suit against Elias for leaving the original group of some eleven people off the $\cdots \qquad \cdots \qquad \cdots \qquad \cdots \qquad \cdots \qquad \cdots \qquad \cdots \qquad \cdots \qquad \cdots \qquad \cdots$ title. Elias decided to sue John Ruhiga, his father Rubecba having $\mathcal{A} = \{x_1, y_2, y_3, y_4, z_4, z_5, z_5, z_5, z_5, z_5, z_5, z_5, z_5, z_5, z_5$ died by this time. The redress sought was the repayment of the sixty cattle, and general damages for breach of contract, or alternatively rectification of the register by striking the name $\cdots \rightarrow \cdots \rightarrow \cdots$ of the Dofendant, John Ruhiga, off the titles, Elias was joined ' by his two sons Henry Runyangye and Wilson Manzir But Henry and Wilson took no part at the hearing of the suit, leaving it to their father to conduct the plaintiffs! case on their behalf. $\sim$ Elias was successful in the trial sourt, but John Ruhiga, has appealed to this Court. The trial court. had basically accepted $\sim$ Hn (10) the evidence of Elias, as supported by his witness Joyce Mukankundira a sister of both brothers, and rejected the evidence of John Ruhiga and his witness Richard Kagire. The Court chose the alternative prayer in the plaint and struck. John's name off the register. in any It awarded Shs 5000/- general damages, but not the return of sixty Segment in the search of the search of the search of the search of the search of the search of the search of the search of the search of the search of the search of the search of the search of the search of th head of cattle. the face in Lating way

John Ruhiga, represented by Mr. Kateera, has presented two $\cdots \cdots$ grounds of appeal. The first is that the learned Judge erred in law in holding that Elias and his sons were also granted the leasehold of this Isingiro property and that the Appellant; John Ruhiga was merely invited to have his name included in the title on payment of sixty head of cattle to Elias. The second is that the certificate of title should not have been rectified on the ground of fraud. Accordingly the Appellant John Ruhiga asked for his name to be astored on the title.

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| | The first ground of appeal challenges the findings of fact | | |--|--------------------------------------------------------------------------------------------------------------|--| | | | | | | made by the loarned Judge. Counsel conceded that it was the duty | | | | of this Court to review the evidence, but while Mr. Kateera thought | | | | that the findings of fact were unsound, because of the documentary | | | | evidence which favoured John Runiga, Mr. Ariko counsel for the | | | | Respondent stressed the importance of the Judge having seen the | | | | witnesses. The evidence of Elias could be understood, he argued, | | | | if the various stages in the acquisition of title were considered. | | | | was get getting at the first that the<br>It was still open to Elias in May 1977 to include or exclude John | | | | Runiga since the lease was only registered on 23rd September, 1977. | | | | In these circumstances. it is well to direct attention to the | | | | $\cdots, \quad \cdots$<br>well known words which declare the duty of this Court. In DINKERRAI | | | | $\mathbf{H} = \{x \mid 0 \} \cup \{x, 1\}$<br>RAMKRISHAN-PANDYA V. R (1957) E. A. 336, the Court of Appeal for | | | | and the case that for<br>Eastern Africa approved of the words of the English Court of Appeal | | | | $\cdots \cdots \cdots \cdots$<br>in COGHLAN VS CUMBERLAND (1898) CH 704 as follows:- | | | | | | | | "Even when, as in this case, the appeal. | | | | turns on a question of fact, the Court | | | | of Appeal has to bear in mind that its | | | | duty is to rehear the case, and the<br>Court must reconsider the materials | | | | before the judge with such other | | | | materials as it may have decided to | | | | admit. The Court must then make up | | | | its own mind, not disregarding the | | | | judgment appealed from, but carefully | | | | weighing and considering it; and not | | | | shrinking from overruling it if on a | | | | full consideration the Court comes | | | | to the conclusion that the judgment. | | | | is wrong. When the question arises | | | | which witness is to be believed rathor. | | | | than another, and that question turns | | | | on manner and demoanour, the Court of the | | | | Appeal always is, and must-be, guided | | | | by the impression made on the judge | | | | who saw the witnesses. But there may | | | | obviously be other circumstances, quite | | | | and domain noun | |

by the impression<br>who saw the witnesses. But there may<br>obviously be other circumstances, quite<br>apart from manner and demeanour, which may<br>apart from manner and demeanour, which may<br> $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$

$\cdots\cdots$

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$\sim$ $\sim$

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$\cdot\,$

show whether a statement is credible or with not and these circumstances may warrant the Court in differing from the judge. wings vewen on a question of fact turning on the credibility of witnesses whom, the $\therefore$ is lacourt has not seen if $F$ itted sus bat

The two sides, represented by counsel's addresses, are generally covered, in the above statement of principle, which has remained

the law.

$\cdot$

the first to the trade of the first The learned Judge directing himself on the four issues framed,

made a meticulous review of the evidence. The first three issues which were before the learned trial Judge and which are relevant to the first ground of appeal are as follows:

1. Did the Plaintiff agree to put the Defendant on the title in consideration of the Defendant's paying 1: sixty head of cattle? W: WWWW 1301216

2. Was the Defendant's name included in that title as

a result of that agreement?

3. Is the Defondant liable (to pay sixty head of cattle? $\cdot$ $\cdot$ He began his findings by moting that the parties had all lived in Kajara, and had moved to Isingiro, where there was more land. referred to the 'Cortificate of stitle to describe who had been given land as tenants in common. The dispute, he said, concerned the conditions or reasons which prompted Elias to include the names of Rubeeba and John Ruhiga on the Certificate of Title. It was because of the oral agreement in May 1977; which the Plaintiff/Respondent relied on. .. which will asked asked the grant that

The learned Judge first tackled the problem of the Application for Rural Land on bahalf of the Abateganda Beef Production group dated 19th February, 1974. It was noted that no individual names

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

$-1.7$ and $-1.1$ had been used. These names appeared on the lease offer form, $-1.15$ 0. 42000 0.0 and later, in the cortificate of title. The Court concluded that Elias had not been fraudulent, but rather that his purpose had $\mathbf{a} \cdot \mathbf{b} = \mathbf{a} \cdot \mathbf{b}$ $\cdots \cdots \cdots$ been to acquire land presumably for the group, "rather than individually." $\cdots \cdots \cdots$

If that be so, (and it would appear to be a somewhat indulgent $\mathcal{A}_{\mathrm{c}}(\mathcal{A})$ $\sigma$ . conclusion) then certain factors would have to be taken into account. The first would be the statement in the application that the members $-12 - 21$ **Trime division** of the group were in occupation of the land at the time of the $\mathfrak{g}^{\ast} \mathfrak{g}^{\ast} \mathfrak{g}^{\ast} \mathfrak{g}^{\ast}$ the of the train application. This the learned Judge did not discuss. If it were true, then a part of the case for Elias was unsound, for it could $\mathbb{R}^n$ and $\mathbb{R}^n$ are $\mathbb{R}^n$ being not have been the case that John Rubiga and Rubeeba only came to $\{H^{k+1}, H^{k}\}$ $\sim$ $\sim$ $\sim$ the land in dispute after May 1977. If it were not true, the question would have to be faced whether that was not entirely $\mathcal{L}_{\mathcal{L}}$ misleading. Certainly Elias could be supported for trying to secure a greater areas of land for his family; but the conclusion was that it was for the group, and not individually, and that must have been enhanced by the alleged occupation of the group. If $\cdots \cdots \cdots$ $\ldots \ldots$ the learned Judge Welleved the story about Rubeeba and John Ruhiga coming to the land in May 1977, then the application was at best a tricky document, and obviously not indicative of the clear honosty of Elias. It was of great importance to make a clear finding whether the allegation that the group was in occupation on 19th February, 1974 was true or false. The defence was that they were indeed in occupation.

$\cdot \dot{\mathbf{c}} \cdot$

Secondly, if it is right that the application was for the group, how was it that at a late stage in his evidence, Elias assertud:-

$\mathcal{L} = \mathcal{L}$ "This was my land-it ras allocated to me by the Government."

$_{7/}\ldots$

In his earlier evidence Elias had made it guite plain that he had made the application on behalf of other people. He had stated that the members were above 21 years of age in That rexcluded his sons tors and said ability align to the $\mathcal{L} = \mathcal{L}$ who were much younger. He had applied one behalf of adult members Toda 1992. Station Marketing and Party of the group. He acknowledged: would write with the mail of the distance als not tail quittain pattinue to the $\sim$ With data land was allocated to us. With datami interconvention. $\Phi_{\mathcal{M},\mathcal{M}} = \{ \mathcal{M}_{\mathcal{M}} : \mathcal{M}_{\mathcal{M}} \in \mathcal{M}_{\mathcal{M}} \} \oplus \mathcal{M}_{\mathcal{M}} \oplus \mathcal{M}_{\mathcal{M}} \} \quad , \quad \mathcal{M}_{\mathcal{M}} = \{ \mathcal{M}_{\mathcal{M}} \} \oplus \mathcal{M}_{\mathcal{M}} \oplus \mathcal{M}_{\mathcal{M}} \oplus \mathcal{M}_{\mathcal{M}} \}$ But the Land Office wanted to know who the group, were in 1975. Elias $\cdots \qquad \cdots \qquad \cdots \qquad \cdots \qquad \cdots \qquad \cdots \qquad \cdots$ was pressed for information. He said that the coroup meant members. The beam company of the second of his family, it included Rubeebasandwothers, and some and it that the participants "My brother and my father after surveying as behavior was agroed to pay me.60 head of cattle. Rubeeba $\cdot$ $\cdot$ and Ruhiga moved away from Kajara specause in MC office land was not enough." and are in the $\cdots\cdot\varsigma$ $\ldots \quad \cdots \quad \cdots$ To some degrésmonido foil neum ent After that explanation, it was difficult for Elias to claim at the (1) Service Startes, Maginary of the 1919. $\cdots \cdots$ $\mathcal{L}_{\mathcal{L}} \mathcal{L}_{\mathcal{L}}$ end, that the land had been allocated to him. It was allocated, as $\cdots$ $\cdots \cdots$ it would seem, to five people as tenants in common, who were stated Barrowski Mail Parts (2015) 19 January 1997 $\cdots$ to be members of the group, after an official inquiry. There can $\mathcal{M} = \mathcal{M} \mathcal{M} \mathcal{M}^{\mathcal{A}} \mathcal{M}^{\mathcal{A}} \mathcal{M}^{\mathcal{A}} \mathcal{M}^{\mathcal{A}} \mathcal{M}^{\mathcal{A}} \mathcal{M}^{\mathcal{A}} \mathcal{M}^{\mathcal{A}} \mathcal{M}^{\mathcal{A}} \mathcal{M}^{\mathcal{A}} \mathcal{M}^{\mathcal{A}} \mathcal{M}^{\mathcal{A}} \mathcal{M}^{\mathcal{A}} \mathcal{M}^{\mathcal{A}} \mathcal{M}^{\mathcal{A}} \mathcal{M}^{\mathcal{A}} \mathcal{M}$ be little doubt but that Rubeeba and John Ruhiga were members of the "I fair wat cyclic var flam di It might be that at a late stage the sons group from the beginning. $\ell\in\mathcal{L}_{\mathcal{I}}\cup\{a,b\}\cup\{a,b\}\cup\{b,b\}\cup\{a\}$ $\cdots$ of Elias were put forward instead of other members of the group. . Autoroint. nimmatic quite may On that point, as there is another case pending I say no more, and $\cdots \qquad \cdots \qquad \cdots \qquad \cdots \qquad \cdots$ leave this issue completely open for decision by the appropriate Court. a to part of the 300 model was a That conclusion, drawn from the documents and evidence of is a table . The case of the beampain during the sources of Elias, was not sustained because of the learned Judge's view of the \*\*\* database for a final structure transforme Existential State (see 1); other evidence. He thought that the ovidence of Joyce strongly e on the coording the elaborate of the third of patie. Inc. supported that of Elias, while the evidence of John Ruhiga, was full $\mathcal{L}$ and $\mathcal{L}$ is a statement for an approximation for all $\mathcal{L}$ and $\mathcal{L}$ . $\mathcal{L} = \mathcal{L}$ $a$ to $a$ $a$ $a$ $a$ $a$ $a$ $a$ $a$ $a$ $a$ of contradictions. Richard carried the defence no further forward. Some contradictions mentioned awould not seem, from the record at least, to have been very important it east the price of land being the true was a surface of the state of the state of the state of the state "sold, or whether John Ruhiga had himself brought the suit for the eleven people or was morely a witness. The learned Judge thought

$8/...$ $= 8i$ - that the contributions claimed to have been paid by John Ruhiga were exacterated and exorbitant; but that in any case the burden was on him to prove them. As a matter of fact Richard Kagire (DW2) did explain all the contributions. Although he was not a member Rubeeba was his grandfather, and glias himself, his father was. Rugyera and Ruhiga his uncles. Richard was closely related to these parties and about 27 years old at the time in 1974. He was discre- $\mathfrak{p} \oplus \mathfrak{f} \oplus \mathfrak{f}$ dited however because neither he, nor his father, were members of the society. But that was not the gist of the evidence. Richard conceded that his father's name was not in the Certificate of Title (Exhibit D1) nor in the lease offer form. But that did Ligan Inches advised the process not mean that he was not amongst the group of eleven, John Ruhiga said that he was one of the sons in law of Rubeeba and one of the eleven members. Looking at the evidence from the record I would $\mathbb{E} \left[ \mathbb{E} \left[ \mathbb{E} \left[ \mathbb{E} \left[ \mathbb{E} \left[ \mathbb{E} \left[ \mathbb{E} \left[ \mathbb{E} \left[ \mathbb{E} \left[ \mathbb{E} \left[ \mathbb{E} \left[ \mathbb{E} \left[ \mathbb{E} \left[ \mathbb{E} \left[ \mathbb{E} \left[ \mathbb{E} \left[ \mathbb{E} \left[ \mathbb{E} \left[ \mathbb{E} \left[ \mathbb{E} \left[ \mathbb{E} \left[ \mathbb{E} \left[ \mathbb{E} \left[ \mathbb{E} \left[ \mathbb{$ have thought that Richard knew as much of these matters, having a **THE TOLER AREA OF A TOLE** few cattle himself, as Joyce, who kept the will but was not with the parties all the time. The will did not mention this land, but. **Both Sections of the second of the second of the section** Joyce's inference from this fact that Rubeeba did not claim this the art of the part of the land, was not the only inference that could be drawn. stable discharge. In the result it seems to me that the learned Judge's $v_{\text{total}}$ criticisms of the defence were overstated. It would seem that the account of what happened by the defence was about as strong humood bail agaya joyya a 199215 as that for the Plaintiff. What remained was the documentary geometric and show a game evidence. On that account, the Plaintiff Elias could certainly $\mathbb{R}^{\mathbb{Z}}$ not be relied upon. Upon the evidence before the Court, it could not be said that Elias could have admitted Rubeeba and John this is supported with Ruhiga to the title of this property because of the May 1977. $H_1(M_1, \frac{1}{2}M_2) = 1$ $\cdots \cdots$ agreement. Indeed if he did, what steps did he take to do so? Their names had already been put forward from 1975. Had he taken

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- it into the Service steps to remove their names and then reinstate them after May? 一、からもはれた引きます。 () He does not explain what he did. It is this lack of explanation 3006, 0324, 830m², 3.5 → 11 which answers Mr. Ariko's Find that the matter was still open until September 1977, the date of the certificate of title. Be that as $1.100000000000000000000000000000000000$ $\cdots \cdots$ it may, did Elias take any steps to bring them on to the title $\sim$ 1 $\sim$ 1 $\sim$ 2 $\sim$ 10 $\sim$ 10 $\sim$ 10 $\sim$ 10 $\sim$ 10 $\sim$ 10 $\sim$ 10 $\sim$ 10 $\sim$ 10 $\sim$ 10 $\sim$ 10 $\sim$ 10 $\sim$ 10 $\sim$ 10 $\sim$ 10 $\sim$ 10 $\sim$ 10 $\sim$ 10 $\sim$ 10 $\sim$ 10 $\sim$ 10 $\sim$ 10 $\sim$ 10 $\sim$ 10 $\sim$ 10 after May 1977, which had not already been taken before? With the state 19. • Winnifed need respect to all concerned, the conclusion must surely be that no and the guar to the steps were taken. Ruboeba and John Ruhiga were going to be on the title since the Land Office inquiries of 1975. The burden lay on a like the find ad he will be a structure of the Elias to prove his allegations. ent per en de Canales

$\mathcal{M}^{\text{max}}_{\text{max}}$ It follows then, that I would answer the first two issues the framed in the negative. As to issue 3, whether there was then a seminate agreement for paying cattle is uncertain, since an integral and the state of the particular and the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the part of the agreement was not proved, namely titles. No order for. part of these cattle was made, and there is no cross-appeal for<br>payment of these cattle was made, and there is no cross-appeal for

point.<br>I would therefore allow the first ground which is sufficient The truth will be beather F. Washington to dispose of the whole appeal. But in view of the importance of although a guidadeal differs a the arguments put before the Court by Counsely-anising out of the the age. Him In Might Favil: learned Judge's finding of fraud, it seems notessary to make a few $\mathfrak{m} \longrightarrow \mathfrak{m} \longrightarrow \mathfrak{m} \longrightarrow \mathfrak{m} \longrightarrow \mathfrak{m} \longrightarrow \mathfrak{m} \longrightarrow \mathfrak{m} \longrightarrow \mathfrak{m}$ comments. The arguments arise out of the second ground of appeal, $\cdots \cdots$ a set and a part of a more which rolates back to the fourth issue at the trial. That issue u ... dintim dün Göttök was whether the Defendant's name should be removed from the title with interactions. in all the foot deed for fraud.

Despite the arguments put to him, the learned Judge found that there was sufficient material before him, to establish fraud on the to the ready that part of the Defendant/Appollant, so as to warrant the removal of his it is really please name from the Register. The learned Judge purported to act under $\cdots \cdots \cdots \cdots$ Sec. 184 of the Registration of Titles Act (Cap 205). I would observe as follows:-

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In general whore fraud is an issue it should be pleaded clearly and particularized. But there may be occasions where walls validates a m sufficient facts have been pleaded to show that fraud is relied upon, and what it is. (See B. E. TIMBER CO. VS INDER SINGH GILL (1959) E. A. 463 at p. 469 and the quotation there from DAVY VS $\mathbb{E} = \mathbb{E} \left\{ \mathbb{E} \left\{ \mathbb{E} \left\{ \mathcal{A} \right\} \right\} \right\} \mathbb{E} \left\{ \mathbb{E} \left\{ \mathbb{E} \left\{ \mathcal{A} \right\} \right\} \right\} \mathbb{E} \left\{ \mathbb{E} \left\{ \mathbb{E} \left\{ \mathcal{A} \right\} \right\} \right\} \mathbb{E} \left\{ \mathbb{E} \left\{ \mathbb{E} \left\{ \mathcal{A} \right\} \right\} \right\} \mathbb{E} \left\{ \mathbb{E} \left\{ \$ GARRETT (1878) 7 CH per Thesiger L. J.). In the present case, it The application of the would have been better to amend the pleadings to bring fraud **Christophillar Com** specifically upon the record. The facts of the fraud were set Interference was not a finite out, but the question which arose was whether the appellant intended to comply with the condition of payment, and that might have been equivocal. $\ldots\quad \ldots$

$-10 -$

$\mathcal{M}^{\text{max}}_{\text{max}}(\mathcal{M}^{\text{max}}_{\text{max}}(\mathcal{M}^{\text{max}}_{\text{max}}))$ Mr. Kateera asserted that the fraud referred to in Sec. 184 $\mathcal{L}_{\mathcal{A}} = \mathcal{L}_{\mathcal{A}} \mathcal{L}_{\mathcal{A}} \mathcal{L}_{\mathcal{A}} \mathcal{L}_{\mathcal{A}} \mathcal{L}_{\mathcal{A}} \mathcal{L}_{\mathcal{A}} \mathcal{L}_{\mathcal{A}} \mathcal{L}_{\mathcal{A}} \mathcal{L}_{\mathcal{A}} \mathcal{L}_{\mathcal{A}} \mathcal{L}_{\mathcal{A}} \mathcal{L}_{\mathcal{A}} \mathcal{L}_{\mathcal{A}} \mathcal{L}_{\mathcal{A}} \mathcal{L}_{\mathcal{A}} \mathcal{L}_{\mathcal{A}} \mathcal{L}_{\mathcal{A}} \mathcal$ of the Registration of Titles Act (Cap 205) must be actual fraud, and not constructive fraud. Mr. Kateera relied upon the commentaince pagengiase $\cdot$ , $\cdot$ . ries to that offect in Miseman on The Transfer of Land 2nd Ed., in the state of a state of the which Sec. 244 of an Act of Victoria, Australia, was drafted in $\cdots$ identical terms to Section 184 of Cap 205. The Courts of Australia $\cdots \quad \cdots \quad \cdots$ $\cdots \cdots \cdots \cdots \cdots$ and New Zealand had decided that fraud must be actual fraud. $In$ $\frac{1}{1}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\mathcal{L} \in \mathcal{L}$ a recent decision of this Court, DAVID SEJJAKA NALIMA VS REBECCA<br>MUSOKE, Civil Appeal No.12 of 1985 the opinion of the Privy Council $\cdots \quad \cdots \quad \cdots \quad \cdots \quad \cdots \quad \cdots$ was approved, namely:-

ाशिक कोल भारत के *जाएं* $\mathbf{1} \cdot \mathbf{1} \cdot \mathbf{1} \cdot \mathbf{1} \cdot \mathbf{1}$ n... fraud in these Acts is meant $,\ \cdots .$ actual fraud i.e. dishonesty of some has him down sort, not what is called constructive or equitable fraud - an unfortunate and contains expression and one very apt to mislead, but often used, for want of a basic you have better term, to denote transactions; having consequences in equity similar to those which flow from fraud.". 1445 august of the (See ASSETS CQ. LTD VS MERE ROIHI & 1. 1. 1. 1. 1. 1. 1. 1. 1. 1. 1. 1. 1. 1 OTHERS (1905) A. C. 176 at page 210).

with a good of any area followed in MAINANA SAW MILLING CO.

LTD VS WAOINE TIMBER CO. LTD (1926)

$A. C. 101)$

$11/\ldots.$

I would agree with Mr. Kateera, with respect, that fraud must be actual fraud indicating dishonesty of some kind. I would also agree that proof of fraud must be undertaken to a higher degree than a mere balance of probabilities, though it need not reach the standard of proof beyond reasonable doubt. Having said that, however, it is to be noted that Wiseman advocated a liberal view in interpreting the exception which permits rectification on the ground of fraude at botables

$-$ 11 $-$

$\cdots, \cdots, \cdots, \cdots$ "This section is somewhat exta- and yar of armite ordinary in that it limits the remedy by action of ejectment also graph. against registered proprietors to six cases only. It is difficult<br>to see what good result the section was intended to effect, especially when regard is had to the provisions of secs. 61, 71, and 72 which give a registered proprietor all the security of title which can fairly<br>and reasonably be given ....................................

It is submitted that the general rulo onnotud in 800. 244 will but among it is supply and construed strictly and the exceptions! liborally in order that relief by way way with the odder of ejectment may, if possible be given by those cases in which it is<br>the proper and natural remedy. If at addition of the theorem is (Sections 61, 71, & 72 find their company $\mathbb{R}^2$ find their company $\mathbb{R}^2$ find their company $\mathbb{R}^2$ counterparts in Cap 205 in Uganda

The aspect of fraud in this case is that the Appellant allegedly in this case is that the Appellant allegedly insisted in gaining an unfair advantage or conrichment (Cf. DERRY · 在此,是一身带的整个星星。1975年,1975年中国 VS PEEK (1889)14 APP cases 322) Depending on the evidence accepted, the trial Judge could have found facts that led to the conclusion of actual fraud. He could have held that the Appellant never intended to undertake the condition of payment, and indued did not do so, while claiming payment of part of the resale price which was relevant to his registered title. It is not necessary for me now to decide whether

$12/\ldots$

the learned Judge actually made the necessary findings, or whether $\cdot$ $\cdot$ $\cdot$ $\ddot{\phantom{a}}$ that conclusion should be drawn. The 24 th Wh SQX a firm

$12 + 100$ and it was included in the

The result thon is, that I would order that the appeal be . allowed by setting aside the judgment of the High Court. I would substitute judgment for the Defendant, so dismissing the plaint, and as a consequential order. I would order the name of 'John' Ruhiga to be restored to the title. I would order the Plaintiffs/

> nut in Signed: (WAS nogne high if in a same part degrade of in a to contribute for and many $H,G,\text{ PLATE},\mathcal{H}$ JUSTICE OF THE SUFREME COURT

$\alpha_{\alpha} \cdot \beta = \alpha_{\alpha} \cdot \alpha_{\alpha} \cdot \alpha_{\beta} \cdot \alpha_{\beta} \cdot \alpha_{\beta} \cdot \alpha_{\beta} \cdot \alpha_{\beta} \cdot \alpha_{\beta} \cdot \alpha_{\beta} \cdot \alpha_{\beta} \cdot \alpha_{\beta}$ $\begin{array}{c} \text{where } \mathcal{L}_1 \in \mathcal{L}_2 \text{ and } \mathcal{L}_3 \neq \mathcal{L}_4 \end{array}$

$\cdots \cdots \cdots$

and the "subject of all the

conflaminit diverse and

Respondents to pay the costs both here and below. Dated at Mongo this 7th day of July, 1989.

$\cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots$ Mr. Ariko for the Respondents. $1 - 1$ $\cdot, \cdot,$ $\mathcal{L} \times \mathcal{L}$ I certify that this is $a'$ . and the particular true copy of the original.

$\tilde{f}$ : $\tilde{f}$

Mrs. Muguma for the Appellant:

2 13 国 17年中国2月11日 $\ldots$ $\ldots$ $\ldots$

**B. F. B. BABIGUMIRA** REGISTRAR, SUPREME COURT. $\mathcal{L} \cap \{ \mathcal{L} \}$

$\gamma^{**} \rightarrow \gamma^* \gamma^* \gamma^* \gamma$ $L_{\mathcal{L}}(m) = \mathcal{L}(\mathcal{L})$

AT MENGO ODOKI, J. S. C. & PLATT, J. S. C.) CORAM: MANYINDO. D. C. J. $\sim 10^{-1}$ CIVIL APPEAL NO.1/88. **BETWEEN** . O 長い Marria and Ar BellaG $\mathcal{N}^{(i)}_{\alpha}(\cdot,\cdot)$

IN THE SUPREME COURT OF UGANDA

. . . . . . . . . . . . . . .

AND

1. ELIAS RUGYERA 2-WILSON MANZI

JOHN RUHIGA

**3. HENRY RUNYANGYE**

$\mathbb{S} \mathbb{I}^N$

.... to least the st (Appeal from the judgment of the High Court of Uganda at Kampala (Mr. Ag. Justice I. Am<br>Mukanza) dated 19th November 1987.) $\mu$ googlast with the size. $IN$

$\mathcal{A} = \{W_1, W_2, W_3, \ldots, W_n\}$

$\mathcal{H}^{\mathcal{L}}_{\mathcal{L}}(\mathcal{L})$

........... APPELLANT

RESPONDENT

phil et in anda vilonoa i CIVIL SUIT NO. 1330 OF 1986

## JUDGMENT OF MANYINDO, D. C. J.

I have read the judgment of Platt, J. S. C. just delivered. I agree that this appeal should be allowed. I have no doubt in my with the math Transport mind that the land in question was leased to the appellant, respo-مستند المستنفذ المتوادة التوادة<br>- مستند المستنفذ المتوادة التوادة ndents and the late Rubeeba as temants in common. This fact is clearly borne out by the Application Form (exhibit P2) the lease offer Form (Exhibit D3) and the certificate of title (exhibit D1). Unfortunately, the learned trial Judge did not consider these important documents at all in his judgment. I am sure that had he done so, he would have come to the conclusion that we have come to.

With regard to fraud, I agree that once the learned trial Judge had held, quite rightly in my view, that fraud had neither been pleaded nor proved he was not free to consider the point whether there was constructive or equitable fraud since it is trite law that fraud must be actual and not implied.

$\mathcal{O}(\mathcal{A}) = \mathcal{L}_{\mathcal{A}}$ As Odoki, J. S. C. also agrees with the judgment of Platt, J. S. C. this appeal is allowed. There will be orders in the terms proposed by Platt, J. S. C.1 15 $\sigma = \sigma = \frac{1}{2} \left( \frac{1}{2} \frac{1}{2} \frac{1}{2} \frac{1}{2} \right)$ $\cdots \cdots \otimes w_{\mathcal{C}} \otimes \mathcal{C}$ Dated at Mengo this 7th day of July, 1989. $\cdots$ Sågned: S. T. MANYIN DEPUTY CHIEF JUSTICE $\mathbb{R}^{n+1}$ $\cdot$ $\cdot$ $\mathcal{M}^{\ast}(\mathbb{R})$ $i*$ Mrs. Muguma for the Appellant. $\mathbf{S}_{\mathbf{r}1}$ $\dddot{a}$ $\mathcal{M} \subset \mathcal{M} \subset \mathcal{M}$ $\alpha_{\mathcal{E}}$ Mr. Ariko for the Respondents. I certify that this is a<br>true copy of the original. confort a today is proved and there were B. F. B. BABIGUMIRA. inger fromtte plat fran REGISTRAR, SUPREME COURT $-\alpha$ will him one was to the wind of all add has a new on $\mathcal{M} \subseteq \mathcal{A}$ $\sim$ a state and committee of the state of the of the GR Add (29) and the content $\mathbb{R}^{d \times n}$ never field gefalle with $-101$ $\mathcal{A} \rightarrow \mathcal{A}$ the first the other and the term meta individual at a $\ldots \ldots \ldots \ldots \ldots$ $\alpha_1 \cdot \alpha_1 \cdot \alpha_2 \cdot \alpha_3 \cdot \alpha_4 \cdot \alpha_5 \cdot \alpha_5 \cdot \alpha_5$ ire per an haveaux and latte $\mathbf{J}_{\mathbf{A}}$ $-24.5$ the violent have an investigations are $\mathcal{L} = \{ \mathcal{L} \in \mathcal{G}^{(p)} \}$ $\cdots \cdots$

IN THE SUFREME COURT OF $\mathbf{L}^{\mathbf{I}}\mathbf{C}^{\mathbf{I}}$

AT MENGO

(CORAM: MANYINDO, D. C. J., ODCKI, J. S. C. & PLATT, J. S. C.)

CIVIL APPEAL NO. 1 OF 1988

BETWEEN

JOHN RUHIGA

$VND$

ELIAS RUGYERA WILSON MANZI HENRY RUNYANGYE

•••••••RESPONDENTS

(Appeal from the judgment of the High Court of Uganda at Kampala (Mukanza Ag. J) dated 19th November $1987)$

## CIVIL SUIT NO. 1330 OF 1986

TN

JUDGMENT OF ODOKI J. S. C..

I have had the advantage of reading in draft the judgment prepared by my learned brother, Platt J. S. C., and I agree with him that this appeal must be allowed.

I also concur in the order proposed by him as to costs.. Dated at Mengo this 7th day of July, 1989.

Signed:

B. J. ODOKI JUSTICE OF THE SUPREME COURT

$\ldots$ , APPELLANT

Mrs. Muguma for the Appellant. Mr. Ariko for the Recpondents.

I certify that this is a

true copy of the original..

B. F. B. BAEIGUMIRA REGISTRAR, SUPREME COURT.

$\cdots$

$\dddot{\cdot}$