Gatare v Parkash Kau and 2 Others (Civil Appeal 41 of 1998) [1999] UGCA 44 (30 September 1999)

Full Case Text

# THE REPUBLIC OF UGANDA

# IN THE UGANDA COURT OF APPEAL HOLDEN AT KAMPALA

## CIVIL APPEAL NO. 41 OF 1998

#### HON. MR. JUSTICE G. M. OKELLO, J. A. CORAM: HON. MR. JUSTICE J. P. BERKO, J. A. HON. LADY JUSTICE C. N. B. KITUMBA, JA.

(Appeal from the Ruling of the High Court of Uganda at Kampala by The Honourable Lady Justice C. K. Byamugisha, dated the 3rd day of February 1998)

[H. C. C. S. NO. 106 of 1995]

#### **BETWEEN**

........ APPELLANT TOM GATARE...... $20$

## **AND**

1. PARKASH KAUR

$10$

PROPERTY SERVICES LTD).. RESPONDENTS 2.

)

3. REGISTRAR OF TITLES )

## JUDGMENT OF HON. J. P. BERKO, J. A.

appeal is against the ruling 30 The of Byamugisha J. delivered on the $3^{rd}$ day of February 1998 in which she over-ruled a preliminary legal point raised by the appellant's counsel and ordered the suit to be heard on the merits.

The case of the appellant, as disclosed by his amended plaint of $3^{rd}$ September, 1997, was that he purchased the suit property Plot No. 5 Bunigo Road, Kabale on 6/10/98 from one L. S. Kogo who claimed to be the attorney of Parkash Kaur, 40

$\mathbf{1}$

the first Respondent. The property was duly registered in the names of the appellant on the 6th day of March 1990 under instrument No. 241091. He averred that on a casual visit to the land office one day, he met the Registrar of Titles, the third respondent, who told him that he wanted to look at the appellant's title to the property. The appellant went to the Land Office one day to check on his title only to find that his title to the property had been cancelled and the property registered in the names of the first respondent by the third respondent. He also found that the second respondent had lodged a caveat on the property.

It was the contention of the appellant that the first respondent was registered through The particulars of fraud of first and fraud. third respondent were pleaded. In the alternative, it was pleaded that the third 20 respondent acted illegally and without jurisdiction when he cancelled the names of the appellant from the Register Book and re-instated the names of the first respondent. He therefore instituted action against the respondents <pre>claiming:-</pre>

- declaration that he was the $(a)$ $\overline{a}$ rightful owner of the suit property and has superior title to that of the first and second respondents; - an order for permanent injunction; $(b)$ - $(C)$ order directing the third an respondent to re-instate the appellant as the registered proprietor of the suit property and - (d) cost of the suit.

In their joint written statement of defence, the first and second respondents contended that:

- $(i)$ first respondent never the authorised anyone to sell the suit property on his behalf and that the alleged Power of Attorney was forged; - $(ii)$ the appellant's certificate of title was recalled by the Registrar of Titles in order to rectify the Register Book due to irregularities and/or illegalities concerning the transfer of the property to the appellant and - (iii) finally that the registration of the appellant as proprietor of the suit property was tainted with illegalities which were pointed out in the caveat filed by the second respondent.

On behalf of the third respondent, it was pleaded that:

- ( i ) the registration of the appellant as proprietor was tainted with irregularity and it was conceded with due notice to the appellant; - $(i i)$ the appellant came to the Land Office following a notice to him by the third respondent after the appellant's advocates had acknowledged that the transfer to him was irregularly done. The appellant surrendered the special certificate of Title in his possession to the third respondent in exchange for the

$10$

irregular transfer deed to regularise it;

(iii) when the appellant returned with the duly stamped transfer the register had already been rectified and also that the second respondent had already The third lodged a caveat. respondent denied the allegation of fraud and contended that he acted lawfully and with full knowledge and acquiescence of the appellant.

When the matter came up for hearing, learned counsel for the appellant, raised a preliminary point of law that the third respondent had no jurisdiction to cancel the appellant's Certificate of Title under S. 178(a) of the $20$ Registration of Titles Act without a court's order to that effect. According to counsel, the Registrar of Titles has power under the Section to correct minor errors on the Title Register and not to cancel registration.

For the respondents, it was submitted that the Registrar of Titles had power under the Section to cancel Certificate of Title.

$\boldsymbol{\cdot}$

$10$

learned trial Judge considered The the pleadings, the correspondence between the appellants and the third respondent, that between the third respondent and the appellant's legal advisers, the law on the matter and came to the conclusion that the third respondent acted legally when he cancelled the appellant's Certificate of Title and overruled the preliminary objection. The appeal is against that ruling.

There are two grounds of appeal, namely:-

$\overline{4}$

- (a) That the learned Judge erred in law to hold that the Registrar of Titles had power to cancel the Appellant's Certificate of Title under the then Section 178(a) of the Registration of Titles Act, and - (b) that learned Judge erred in law to have decided the merits of the case before hearing evidence.

After the arguments of appellant's counsel, when the appeal came up for hearing, Mr. Mukasa, who appeared for the First and Second respondents, belatedly raised what appeared to be $\overline{a}$ preliminary point of law touching on the competence of the appeal. That was a matter which ought to have been raised under rule 81 of the Rules of this court. However, as it was point of law and affected jurisdiction, we $20$ granted him leave to argue that point. Though we did not say so in so many words, rule 101(b) is our authority for granting the leave.

The arguments of Mr. Mukasa were that the Notice of Appeal was filed before leave to appeal was granted and also that the first and second respondents were not served with copies of the Notice of Appeal as required by rule $77(1)$ of the Court of Appeal Rules Directions. He cited and relied on the case of Skill Consultants $\mathbf{V}$ Pearls Flowers Ltd, Civil Appeal No. 41 of 1996, (unreported) Judgment of Supreme Court.

On behalf of the appellant, Mr. Tibesiqwa submitted that the preliminary objection was misconceived as the Notice of Appeal was properly filed. According to him the ruling of the court was given on the $3/2/98$ , the Notice of Appeal was filed on the $17/2/98$ and leave to appeal was $15/4/98$ . granted on He submitted that the lodging of Notice of Appeal before leave was granted was permissible under rule $75(4)$ of the Rules of this Court.

$10$

As regards to non-service of the Notice of Appeal on the respondent, Mr. Tibesigwa argued that there is no evidence on the record that the respondents were not served. The burden was on the respondents to prove that they were not served.

In my view there is no merit in the argument of Mr. Mukasa that the Notice of Appeal is 10 incompetent as it was filed before leave to appeal was given. The position is covered by rule $75(4)$ , the relevant part of which reads:

> $"75(4)$ When an appeal lies only with leave ................................ **.....................................** it shall not be necessary to obtain the <pre>leave.........................before lodging</pre> the notice of appeal."

It is clear from the rule that Notice of Appeal can be lodged before leave to appeal was obtained.

With regard to the issue concerning nonservice of the Notice of Appeal on the respondents, I have perused the files from both the High Court and this court, but I was unable to find any evidence that the respondents were 30 served with the Notice of Appeal. Since the obligation to serve the respondents rests on the intending appellant by rule 77, the onus of proof of service rested on the intended appellant and not on the respondent. Counsel for the appellant was not able to show that the respondents were served. It is clear that the first and second respondents were not served.

My view that the respondents were not served 40 with copies of the Notice of Appeal is reenforced by the fact that, even though rule 79) $(1)$ $(a)$ requires a person on whom notice of appeal has been served, to serve on the intended appellant notice of full and sufficient address for service, such notice of address was in fact filed on behalf of the respondents by Messrs. Bariqye, Tibesiqwa and Co., who are Advocates for the appellant. The intention clearly was to give impression to the Registrar that everything was in order when that was not so. The Supreme Court has held in the cases of Francis Nansio Micah $\mathbf{v}$ Nuwa Walakira, Civil Appeal No. 24 of 1994 and Skill Consultants v Pearls Flowers Ltd (Supra) $10$ that service of a notice of appeal on a litigant affected by the intended appeal is an essential requirement under rule 77 of the Rules of this Failure to do so renders the appeal court. incompetent. As the Notice of Appeal was not served on the first and second respondents, the appeal is incompetent. The objection is upheld.

This point is sufficient to dispose of the appeal. I wish, however, to consider, briefly, $20$ the grounds of the appeal. In my view, there is no merit in ground two as the judge did not conclusively decide the merits of the appeal. After overruling the preliminary point of law, the learned judge ordered further hearing to proceed.

As regards the first ground of appeal, I am of the view that the authorities cited by Mr. Tibesiqwa are clearly against him. His argument, 30 in the main, was that the Registrar of Titles has powers under S. 178 to correct only minor errors in the Register Book and not to cancel $\overline{a}$ certificate of title. He invited the court to be quided by the Australian Torrens System of Land **Titles.** He referred to a treatise on that system by one James Edward Hogg. The commentary of the learned author on S. 12 which is said to be in pari - materia with our S. 178(a) and Ss. 136 and 137 which are said to be in pari - materia with 40 S. 69 of the Registration of Titles Act is as follows:

"The Summary powers of the registry officers under Sections 12(b), 136 and 137 are probably intended to be exercised either after the determination of the rights of the parties $\boldsymbol{b}\boldsymbol{y}$ Ordinary judicial where an obvious proceedings or mistake has been made, and not where questions relating to conflicting rights $have$ to be decided".

Under the Torrens System, the Registrar of Titles has power to rectify the Register Book either after the rights of the parties have been determined by the court or where an obvious mistake has made in the Register Book.

In this case the Registrar of Titles wrote to the appellant a letter of $19/1/94$ . The relevant $20$ parts state:

> "It has been detected that entry of your name in the Register Book is tainted with irregularities, namely:-

- $20/5/70$ (1) A caveat ${\it entered} \quad {\it on} \quad$ under Inst. 180995 in favour of M/s. Barclays Bank of Uganda Ltd has never been withdrawn. Inst.241067 was falsely used to try to cancel the entry. - Lakhinder (2) One Rajput Kogo purported to act on the basis of Powers of Attorney but there is no evidence of compliance with the provisions governing donees of powers of attorney under the Registration of Titles Act. - (3) The transfer purportedly executed in your favour by the said L. C. Rajput Kogo is not backed by:

$10$

Payment $of$ stamp duty, payment of perusal and registration fees, production of consent to transfer $\quad\text{and}\quad$ Income Tax clearance certificate. $\boldsymbol{A}$ fake instrument number was used."

$10$

٠.

The appellant was given 21 days to show cause why the Registrar of Titles should not amend the Register Book by cancelling the appellant's name and re-instating Parkash Kaur, the first respondent, who is said to be the executrix of one Haraza Singh Rajput.

That letter was replied to by the then advocates of the applicants in which the appellant acknowledged the irregularities and 20 stated that "he was a victim of circumstances" as far as the irregularities were concerned. The advocates indicated that they had "embarked on the task of rectifying the same" and prayed that the Registrar of Titles "do exercise vour magnanimity in favour of our client by allowing him to rectify the errors". The letter ended:

"We reiterate wish to that our client acted purely in good faith and did not in any way engineer the above unfortunate errors".

The above statement is a clear admission by the appellant that the entry of his name in the Register Book was tainted by irregularities. The registration of the appellant on the Register Book was therefore as a result of obvious mistake. He would not have been registered if the irregularities had been detected. Under the Australian Torrens System the registrar could have summarily rectified the Register Book without a court's Order.

The Registrar of Titles cancelled the appellants certificate of Title on account of the obvious mistake made in registering the appellant. These irregularities have been accepted by the appellant. The fact that he was not a party to the irregularities does not mean that he can hold on to a title that is tainted with such irregularities.

The Registrar of Titles was therefore right $10$ to cancel the Certificate of Title of the appellant. He has ample authority under Sections 69 and 178(a) of the Act to do what he did and the judge was right in so holding.

In the result I do not see any merit in the appeal.

For the above reasons, I would dismiss the appeal with costs to the respondents. 20

Dated of $\mathcal{L}$ Kampala this. 3.7 of... $\mathcal{L}$ Kampala this...day

J. P. BERKO JUSTICE OF APPEAL.

### THE REPUBLIC OF UGANDA

## IN THE UGANDA COURT OF APPEAL HOLDEN AT KAMPALA

### CIVIL APPEAL NO. 41 OF 1998

#### HON. MR. JUSTICE G. M. OKELLO, J. A. CORAM: HON. MR. JUSTICE J. P. BERKO, J. A. HON. LADY JUSTICE C. N. B. KITUMBA, JA.

(Appeal from the Ruling of the High Court of Uganda at Kampala by The Honourable Lady Justice C. K. Byamugisha, dated the 3rd day of February 1998)

[H. C. C. S. NO. 106 of 1995]

#### **BETWEEN**

TOM GATARE....... $\ldots \ldots \ldots APPELLANT$

### **AND**

- 1. PARKASH KAUR - 2. PROPERTY SERVICES LTD).. RESPONDENTS

)

3. REGISTRAR OF TITLES )

JUDGMENT OF C. N. B. KITUMBA, J. A.

T have had the benefit of reading the judgment prepared by Berko, J. A. I agree with it and the orders proposed by him.

Dated at Kampala. ...... day of September 1999.

CHLS. Filanda! C. N. B. Kitumba JUSTICE OF APPEAL.

# THE REPUBLIC OF UGANDA **IN THE COURT OF APPEAL OF UGANDA HOLDEN AT KAMPALA**

## **CORAM: HON. MR. J USTICE G. M. OKELLO, J. A.** HON. MR. JUSTICE J. P. BERKO, J. A. HON. LADY JUSTICE C. N. B. KITUMBA, J. A.

## CIVIL APPEAL NO. 41 OF 1999

(Appeal from the Ruling of the High Court (Lady Justice C. K. Byamugisha) at Kampala dated 3rd February 1998 from HCCS No. 106 of 1995)

### Between

**Tom Gatare:::::::::::::::::::::::::::::::::::**

## And

- 1. Parkash Kaur - **2. Property Services Ltd.}:::::::::::::::::::::::::::Respondents**

}

**3. Registrar of Titles**

# JUDGMENT OF G. M. OKELLO, J. A.

I had the chance to read in draft the judgment prepared by Berko J. A. I fully agree with his reasons that the preliminary objection must fail and the appeal be dismissed. I have nothing useful to add. As Kitumba, J. A. also agrees, the appeal is dismissed with costs in favour of the respondents.

Dated at Kampala this 35th day of September 1999.

$C_{\text{max}}$

G. M. OKELLO JUSTICE OF APPEAL