Gulam Hussein and Another v Roussos (Civil Appeal 70 of 2002) [2005] UGCA 87 (11 November 2005)

Full Case Text

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

## **AT KAMPALA**

#### CORAM: HON. JUSTICE L. E. M. MUKASA-KIKONYOGO, DCJ. $\mathsf{S}$ HON. JUSTICE C. N. B. KITUMBA, JA. HON. JUSTICE S. B. K. KAVUMA, JA.

$10$

#### CIVIL APPEAL NO. 70 OF 2002

## 1. GULAMHUSSEIN HABIB VIRANI 2. NOZMUDIN GULAMHUSSEIN VIRANI ....: APPELLANTS

$15$

#### **VERSUS**

## NICHOLAS ROUSSOS ::::::::::::::::::::::::::::::::: (As Administrator of the Estate of the late EUGENIA GENOVEFA **ROUSSOS**

[Appeal from judgement of the High Court of Uganda at Kampala (J. P. M. Tabaro, J.) dated 21st March 2002 In HCCS No. 360 of 1982]

### **JUDGEMENT OF KITUMBA, JA.**

appellants' counter claim.

$25$

This is an appeal against the judgement of the High Court in Civil Suit No. 360 of 2002. Gulamhussein Habib Viran and Nozmudin Gulamhussein Viran, hereinafter to be referred to as the first and the second appellant respectively and jointly as the appellants filed it. Nicholas Roussos (as administrator of the Estate of the late Eugenia Genovefa Roussos) hereinafter to be referred to as the respondent, sued both appellants in the High Court in the above mentioned suit. The learned trial judge allowed the respondent's suit and dismissed the

The following are the facts that led to the present appeal. The suit property is known as No. 30 Windsor Crescent, Kampala Lease No. 37670 on Leasehold Register Volume 240 Folio 3. The respondent was the son of the late Mrs. Eugenia Genovefa Roussos who was the registered proprietor of the suit property from l9'hJuly l96l to 22nd April 1969. The suit property is a two storey house comprising of one independent residence on each floor. The late Mrs. Genovefa Roussos resided on the ground floor with her family which consisted of her husband the late Mr. Andreas Neodeous Roussos. her son who is the respondent and her two daughters namely: Elizabeth and Mary. The respondent was at the time of hearing the suit, a national of Cyprus and was the Honorary Cypriot Counsel to Uganda. His late mother, father and two sisters were British nationals. In August 1972 the respondent's family was deported from Uganda by the govemment of the day.

)

On 22-4-1969 the first appellant and his son, the second appellant were registered as tenants in common of the suit property under a transfer deed dated 4th April 1969. After registration and on the same day, the appellants mortgaged the suit property to the Registered Trustees of the Vithaldas Hindas Lohana Vidyarth Bhava. On 25-4-1969 they took a second mortgage in favour ofJustice D. Pradhar. The appellants on l3-3- 1970 mortgaged the suit property to the Housing Finance Company of Uganda. The appellants being of Asian extraction, left Uganda in 1972 during the Asian Exodus which was ordered by the then govemment of Uganda.

When the Roussos family retumed to tJganda in 1980, it found the suit property occupied by the stafl of the Prisons Department as it had been allocated to them by the Departed Asians Property Custodian Board.

The late Mrs. Genovefa Roussos filed a suit in the High Court against the appellants for the recovery of the suit property. It was her case that the transfer of the title in the names of the appellants had been effected through fraud. She asserted that the signature on the transfer document (exhibit P2) was a forgery of her signature.

On l8-8-1982 Kantinti, J. (R.l. P.) entered an exparte judgement in her favour. He ordered the Registrar of Titles to cancel the appellants' names from the certificate of title and to substitute it with hers. The Prisons Department gave vacant possession to her, in view ofthe court order.

When the appellants retumed to Uganda they successfully contested the exparte proceedings and decree. On l2-10-95 Berko, J., as he then was, ordered the hearing ofthe suit inter-parties. Mrs. Roussos died before the resumption of the proceedings. The current respondent as administrator of her estate substituted her as plaintiff in the suit and filed an amended plaint

The appellants filed a written statement of defence and a counter claim. The respondent pleaded in their written statement ofdefence that they had bought the suit property from the late Mrs. Roussos. In the counter claim they prayed for vacant possession ofthe suit property, mesne profits with interest from the date they would have got the repossession certificate, costs of the suit and the counter claim. l0

l{)

The respondent did not give evidence in chiefat the continued hearing of the suit but was cross examined by counsel for the appellants and reexamined by his own counsel. His testimony was to the effect that the suit property was originally registered in the names of his late mother but

was subsequently and fraudulently registered in the names of the appellants. The suit property was used as a family residence and the upper floor was rented by the Sudanese Embassy.

- Mr. John Baptist Mujuzi, PWl, testified as a handwriting expert. He examined the signature on the Transfer of Land Volume 240 Folio 3 dated 4th April 1969 bearing the signature of "G. E. Roussos" which was questioned. He compared it with other spacimen signatures on the following documents: - l0

- l. An original of a statutory declaration made by Eugenia Genovefa Roussos dated 30th August 1982. - 2. A photocopy ofan extension of mortgage dated l6th January 1968 - 3. The original mortgage dated 29-10-1965. - 4. The original transfer ofland dated 14-7-1961. t5

He found that there were similarities between the specimen signatures and the signatures on the questioned document. However, there were some differences in writing habits and strokes. He formed opinion that the person who wrote the specimen signatures did not write the signature

on the transfer form. The report of PWI's finding was tendered in evidence as exhibit PIV.

The appellants called Probhubas J. Pattin, DWI and the first appellant testified as DW2. DW I's evidence was that liom I 958 to 1972 he worked as a law clerk for Patel and Metha Advocates. He knew the Roussos very well and Patel and Metha Advocates worked for Mrs. Roussos when she bought the suit property in 1961. Later on. around 1964/1965 DWI assisted Mrs. Roussos in securing finances and mortgaging the suit property as securify. 25 30

Later Elizabeth, the daughter of Mrs. Roussos, approached him in company of a broker, Karia Narandra. Patel and Metha Advocates were informed that Mrs. Roussos would like to sell the suit property to the appellants. DWI asked Elizabeth about her mother. She informed him that she was in Cyprus and would send the transfer deed to her mother there to sign. DWl prepared transfer document and explained to Elizabeth who should witness the document since they were to be signed outside Uganda. DW1 arranged for the mortgage on the suit property for the appellants to get money for the purchase price of the suit property. When Elizabeth retumed the signed transfer deed to DWl, he had it registered by the land office.

The first appellant's testimony was to the effect that he purchased the suit property. Patel and Metha Advocates handled the transaction. He dealt with DWl, who explained to him matters conceming the transaction and arranged for finances from different lenders. After the transfer ofthe suit property into the appellants' names was completed, his family moved into it. The appellants occupied the lower f'loor as their residence and rented the upper floor to tenants. The first appellant and his family lived in the suit property until they were expelled from Uganda. When the first appellant returned to Uganda he tried to apply for the repossession ofthe suit property but it was blocked by the Roussos. l5 20

Both parties by consent submitted to court documentary evidence, which was put on the court record. This included certified cards for electricity and water. The leamed trial judge framed the following issues for determination. 25

- llhether or nol the defendants volidly acquired the litle registered in their names from the late Eugenia Genovefo Roussos, and 1. - (a) LYhether or not registration wos secured through fraud. ) - (b) llhether or nol the suit was time barred when it was filed. - (c) Whether or not the lronsfer was void for lack of ministerial consent. - (d) llhether or not the respondent complied with the Exp rop r iale d P ro p erl i es Act.

On the first issue he found that the signature of E. G. Roussos on the transfer deed was a forgery. Consequently, the transfer of the suit property to the appellants was a result of fraud. The appellants did not validly acquire the title registered in their names from the name of the late Eugenia Genovefa Roussos. t5

Regarding issue No. 2 the judge made the following holdings:

- The registration was acquired through fraud. (a) - The suit was not time barred (b) - Whether the suit was void for lack of ministerial consent was not determined by court because the parties did not argue it. (c)

The Expropriated Properties Act was not applicable to the suit. 25 (d)

The learned trial judge in consequence of the above holdings made the following orders:

- That the Registrar of Titles cancels the names of the $(a)$ appellants from the certificate of title of the suit property and substitutes it with that of the respondent. - $(b)$ A permanent injunction preventing the appellants from purporting to hold themselves out as owners of the suit property and trying to take possession of the same and - Allowed the respondent's suit and dismissed the appellant's $(c)$ counter-claim with costs to the respondent.

The appellants were dissatisfied with the above decision and filed an appeal in this court on the following grounds:

$15$

$10$

$5$

- *1.* The learned trial judge misconceived and misapplied the law on fraud, which invalidates a transfer of title and thus came to a wrong decision. - $2.$ The learned trial judge erred in law and fact when he allowed conjectures and speculation to influence his judgement in regard to the evidence given by the defendants. - $3.$ The learned trial judge erred in law and fact when he *failed to properly evaluate and appreciate the documentary* evidence adduced by the defendants. - $4.$ The learned trial judge erred in law and fact when he accepted the unproven document from the Sudanese Embassy witness to prove that the plaintiff was resident in the suit property up to 1972 which witness failed to turn up to testify though at the time the diplomatic impediments had ceased to exist. - $5.$ The learned trial judge erred in law and fact when he 35 permitted irrelevancies to influence his perception of the

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first witness for the defendants and thus came to wrong conclusions.

**6.** The learned trial judge misdirected himself on the burden of proof in transaction where fraud is alleged.

$\mathsf{S}$

$10$

$20$

$25$

$7.$ The learned trial judge erred in law and fact when he failed to consider and draw proper conclusions on the effect of Elizabeth Roussos in the whole transaction and of the consideration paid to the original plaintiff.

- **8.** The parties and having agreed that the evidence in the original trial before the late Kantinti, J. be part of the proceedings, the learned trial judge erred in law and fact when he failed to evaluate the evidence of Mrs. Roussos, the original plaintiff and thus came to the wrong conclusions and decision. - 9. For his failure to appreciate and properly evaluate the law and evidence, the learned trial judge erred in law and fact when he failed to appreciate and de-link the period when Pattni, PW1, acted for the plaintiff in the transaction and when he commenced acting for the defendants and thus came to wrong conclusions and decision. - $10.$ The learned trial judge erred in law and fact when he held that the suit was not time barred.

Counsel for the respondent under Rule 91 of the rules of this court filed three grounds for affirming the decision namely: 30

## 1. The appellants, on whom the burden lay, failed to prove that the suit was time barred.

- 2. The suit could not be time barred as, if the appellants were ever 35 in possession of the suit property (which is denied) the said suit property ceased to be in adverse possession in 1972. - 3. The plea of bona fide purchaser for value without notice of fraud,

was not ovailoble lo the appellanls as ;

- (a) They did not raise it in their pleodings; - (b) (Was abandoned during submission) - When the appeal came before court for hearing the appellants were represented by leamed counsel Mr. Godfrey Lule, SC and learned counsel Mr. Didas Nkuruziza, appeared for the respondent. Counsel for the appellants made an application to file written submissions. In view of the fact that counsel for the respondent did not oppose the application, the court allowed both parties to file written submission. l t0

In his written submission, counsel fbr the appellants argued all the first nine grounds of appeal together. He also adopted all his submissions before the High Court. Counsel for the respondent too followed the same procedure and simultaneously handled the grounds for affirming the decision ofthe trial iudge. I propose to follow the same order.

On grounds l, 2, 3, 4, 5, 6, 7, 8 and 9, the complaint by the appellants' leamed counsel was that the leamed trial judge failed to evaluate the evidence properly. Consequently he erroneously held that the appellants became registered on the certificate of title of the suit property through fraud. He criticised the leamed trial judge's evaluation of the evidence under the following headings: 20

l5 (a)

The evidence of handwriting expert. PW I .

- That Pattni, DWl, was the agent of both the appellants and Elizabeth Roussos (b) - Attestation ofthe transfer deed. (c) (d) Preference of the evidence of the respondent to that of the appellants' both oral and the documentary.

Regarding the evidence of the handwriting expert PW1, counsel contended that the learned trial judge was wrong to accept the findings that the person who signed the land transfer in favour of the appellants forged the signature of E. G, Roussos. Counsel submitted that the leamed trial judge rightly wamed himself on the principle that the court is not bound by the finding of an expert. However, the judge did not properly evaluate PWI's evidence. He submitted that he did not test it against all other available evidence. Ifthejudge had done so, he would have found that the expert's evidence left strong possibilities that the late Mrs. Roussos could have signed the document. He argued that the hesitations the expert detected in the strokes of the signature could have been the result of a cautious writing of her signature in a new and unfamiliar lorm induced by the way her name had been typed out in the document. She was signing abroad before a bank manager, and must have felt obliged to change the order of the initials in her signature to follow the names "Eugenia Genenovefa Roussos" instead of her usual G. E. Roussos" which, according to counsel, suggests that her names are Genovefa Eugenia Roussos. Counsel implored court to carefully consider all the l l0 t5 20

In reply, counsel for the respondent disagreed. He contended that the appellants' counsel's submissions were mere speculation. I-Ie submitted that appellants had not adduced evidence to contradict or challenge the evidence of the handwriting expert. Additionally, counsel was seeking a higher standard of proof on the part of the respondent than what is required by law. According to the respondent's counsel "conclusive 25

evidence and find that there was no conclusive proof of forgery.

proof' means "proof beyond reasonable doubt." IIe argued that the appellants were not present when Mrs. Roussos is alleged to have signed the transfer document. In her testimony she denied signing the document.

- I agree with the submissions ofcounsel for the respondent. PWI testified as a handwriting expert and his expertise in that field was not challenged by the appellants. The appellants did not adduce evidence before court to challenge PW I 's findings. Counsel for the appellants submitted from the bar what according to him could have caused the differences between the signatures on documents the late Mrs. Roussos signed in 1965, I 968, 1982 and the questioned document (exhibit P2). As rightly pointed out by counsel fbr the respondent, Mrs. Roussos had testifled before her death that she did not sign transfer document exhibit P2). She had also testified that she was not in Cyprus when the document is alleged to have a l0 - been signed. l5

When evaluating PW I 's evidence the judge stated: -

"I am alive lo the principle that court is not bound by lhe /indings of an expert [See the Criminol Kenyan case of Onyango vs R 1969 EA 3621. However, Mr. Mujuzi (PWI) diligently indicated how he compared spacemen signatures of e.g. Roussos the original ploinliff, lhat is, her signotures made in 1965, 1968 os well as 1982, with the signature on the queslioned documenl, the trtnsfer mtde in form of the defendants (Exhibit P2). He made o delailed exominalion of the documents, including use of a magnified glass for better visibility and clarity.

He (PWI) found evidence for stopping and blots of ink in some oress of the strokes of lhe pen on the question document (exhibit P2), due to hesitation becouse the writer b,os copying, stopping to think of lhe next stop as he wrote on the document, On lhe other hand the writer of the spacemen signature was described os reckless and showed no hesitation at all, Mr. Mujugi came lo the conclusion that lhe signalure on the land transfer (exhibit P2) was not produced materially, bul rather was produced by someone who tried to imitate the signoture of Eugenia Roussos. The handwriting expert's account is well reasoned out and in my humble opinion his findings and opinions are well framed. I accepl his findings thal the person who signed the land tronsfer in favour of the defendonts forged lhe signature of E. G. ^Roassos. " (Sic)

I am unable to fault the leamed trial judge on that finding.

I now tum to the issue whether DWI was the agent of both the appellants and Elizabeth Roussos. Counsel contended that the learned trial judge misconstrued the evidence on the issue of agency. He argued that the judge was wrong to hold that Pattni, DWI, was the agent of both the appellants and Elizabeth Roussos in the transaction before the sale of the suit prope(y. He also elred to find that DWl, knew of the fraud and that knowledge must be imputed to the appellants. He argued that there was no evidence on record to justifu that conclusion. He submitted, further, that on the contrary there was evidence to show that Elizabeth Roussos was the agent of her late mother because she had been held out to be so. Counsel based this on the following pieces of evidence from the testimony of DW I . l0 25

uln 1961, we acled for Mrs. Rozssas for lhe property at 30 Windsor Crescent. After two lo four years the Roussos come back to us. Sometimes it was Mr. frozssos, or Mrs. Roussos or lheir daughter, Elizabeth. They asked us d we could raise some funds on lhe property. "

)

"A. G. Matho lent the money lo Mrs. Roussos on o legal mortgage, ll/e registered the prcperty i.e, 30 lYindsor Crescent oround 1964 or 1965. Mr. Roussos was guarantor in one of the mortgage\* After a few years lhe Roussos - Mr. & Mrs. Roussos came back to us. I think Elizabeth was lhere. They osked us if we could arrange some more finance."

- Counsel contended that DWI's interest only stopped at sccuring tlnances lor the Roussos family when there was a need. When the appellants required money to pay for the purchase price of the suit property he also helped them to secure a loan. They used the suit property as securiry. r5 - Counsel argued that DWI did not have knowledge constructive or otherwise of the alleged lraud in the transaction. He contended that DWI was meticulous in handling the matter and advised Elizabeth Roussos of what had to be done in order to effect a valid sale of the suit property. According to counsel, Pattni (DWl) was a witness of truth who should have been believed by the judge if he had properly evaluated the evidence. He argued further that the appellants were bona fide purchasers and paid for the suit property. After the payment of the money which was outstanding on the mortgages on the suit property, a cheque for the 2{) 25

balance was made in favour of Mrs. Roussos. The cheque was given to Elizabeth for transmission to her mother.

It was counsel's contention that where fraud is not proved on part of the transferee such transferee acquires good title. In support of his submission he relied on Kampala Bottlers Ltd v Domanico Supreme Court Civil Appeal No. 82 of 1992. Counsel further argued that the authority of David Sejjaaka Nalima vs Rebecca Musoke, Court of Appeal Civil Appeal No. l2 of 1985 is distinguishable from the instant appeal because DWI and Patel and Metha advocates were not the agents of Elizabeth and the appellants at the same time. He submitted that the leamed trial .iudge was wrong to rely on that authority in the instant appeal. 5 I{)

- Mr. Nkurunziza for the respondent disagreed and supported the leamed trial judge's finding that Pattni was the appellants' agent in the transaction. He argued that there is ample evidence on record to support the judge's finding that Pattni, DWl, and Patel and Metha Advocates were the appellants' agents. He contended that the appellants had failed to adduce credible evidence to prove that they were bona lide purchasers for value without notice of the fraud. He submitted that they produced no sale agreement to show the fact and terms ofpurchase. They did not call the alleged broker, Karia Narandra, to give evidence about the alleged sale. They also did not call Elizabeth to give evidence that she was her r5 l0 - late mother's agent. 25

Counsel argued further that the argument by respondent's counsel that Elizabeth was her late mother's agent was far fetched. Firstly, they did not plead in their written statement of defence that they bought from an

advocates were their lawyers. Thc flrst appellant in his testimony further stated:-

I signed the sale documents in Patel Metha's office. I did not sign the sale documents in the presence of the seller. I did not read the documents. My lawyer said they were alright and so I signed the documents. I thought my lawyers knew better and so I did not read the documents. Initially I signed one document. Later I signed more documents. The documents were in English. The documents were explained to me. Mr. Pattni said he would call me to sign later, after the seller has agreed and I have agreed also. Later Mr. Pattni called me. He told me the title deed was clear, I would get the loan and the property was ready for transfer...."

From the above evidence it is clear that Patel and Matha Advocates and indeed Pattni were the appellants' agents in the transaction before the purported purchase of the suit property and afterwards for the acquisition of finance. l5

According to the testimony ol DWl, Elizabeth could not get the power ol' attorney from her mother when he advised her to do so. However, she volunteered to get the transfer document duly signed by her mother who was in Cyprus when the deal got through. This is surprising and DWI who is knowledgeable in conveyancing should have been put on notice or 20

suspicion of some fishy activity conceming the land transfer document. 2i

I agree with the finding of the learned trial judge thal DW I either knew about the fraud or was guilty of f-earing to establish the truth or more possibly was in active privy to the fraud. His knowledge must be ascribed

to the appellants because he was their agent. In Kampala Bottles Ltd. Vs. Domonico (supra) Warnbuzi, CJ, as he then was, stated:

)

"froud must be ottributed to lhe transferee ,..,...the lransferee musl be guiltlt of same fraudulent act or must have known of such by somebody else and taken odvantage of il."

In the instant appeal the appellants must have known ofthe fraud. David Sejjaaka Nalima Vs. Rebecca Musoke (supra) is with due respect to counsel for the appellants, not distinguishable from this appeal. In that case the firm ofadvocates who transacted the sale between the appellant and the person from whom he purchased the house had had knowledge that the vendor had no lawful authority to sell the house and to effect the transfer. The Court of Appeal held that such knowledge must be imputed to the appellant and he was not, therefore, a bona fide purchaser. l0

It is appreciated that Pattni on a number ofoccasions saw members ofthe Roussos family together while Mrs. Roussos was effecting some transactions in connection with the suit property. However, it is obvious that Pattni knew very well that Elizabeth had no legal authority to sell the suit propeny. That is the reason why he instructed her to get a power of attomey from her mother. For the aforesaid reasons, the appellants' counsel's argument that Elizabeth was her rnother's agent is not tenable. 20

The duty was upon the appellants to prove that they were bona fide purchasers. However, they failed to do so. As rightly pointed out by counsel for the respondent, the appellants did not produce any sale agreement to enlighten court about the terms of the sale. They did not also call as their witness the alleged agent Nandria Karia to testi! about 25

the sale of the suit property. They should also have called Elizabeth as their witness as she was very crucial to prove that they were bona fide purchasers from Mrs. Roussos. In my view, the issuing of a cheque lor the purchase price of the suit property in favour of the Roussos and giving it to Elizabeth for onward transmission to Mrs. Roussos does not mean that the appellant paid the owner ofthe suit property. Elizabeth did not have the authority to sell and DWI was aware of that.

Counsel for the appellant contended that the trialjudge was wrong to hold that the atteslation of the transfer document was improper. Counsel argued that DWI had explained to Elizabeth the status of who should be the attesting witness in Cyprus. The transfer document that was returned was bearing the signature ofa bank manager and an official stamp of the bank indicating that it was from Cyprus. According to counsel as Cyprus l0

- is a former British colony and a Commonwealth country, there was a prima facie evidence that the requirements of section 155 of the Registration of Titles Act had been complied with. He relied on Odgers' Principles of Pleadings and Practice in Civil Actions in the High Court ofJustice by D. B. Casson p.1-2 and Sections 102 and 103 ofthe t5 - Evidence Act. 20

Mr. Nkurunziza disagreed. He submitted that on the lace of it the bank of Cyprus could not be presumed to be a bank "incorporated under the law of United Kingdom of Great Britain and Northern Ireland on the Republic of lreland." The duty was on the appellants to prove that it

was so. There was evidence from the respondent that Cyprus became independent on l/8/l 960. t5

The respondent had pleaded that the transfer deed was a forgery. The appellants who wanted the court to believe that it was not so had the burden of proof to do so. See S. I03 of the Evidence Act. ln order to prove that it was authentic and properly attested, the appellant had the evidence of DWl. He testified that when he received the transfer deed (Exhibit 2) from Elizabeth, he examined it and was satisfied that it was signed by Mrs. Roussos and attested by the manager of The Bank of Cyprus Ltd. The appellants did not, in my view, prove, as they were duty bound to do, that such a bank existed in Cyprus and was "incorporated under the law of the United Kingdom of Great Britain and Northern Ireland or the Republic of lreland." 'Ihe leamed trial judge correctly held that there was no proper attestation of exhibit P2.

I now consider the issue of preferring the evidence of the respondent to that of the appellant. Counsel complained that the leamed trial judge was wrong to prefer the evidence of the respondent to that of the appellants. He submitted that even if Pattni had told lies about his qualifications, the learned trial judge should not have rejected his evidence without testing it against the whole evidence. In support of his submission he relied on l5

- Khatijaban J. Habhanis Vs Zenas [957] EA 38. He argued that it was the appellants' evidence, which was unreliable. He contended further that the judge was wrong not to believe the evidence of the certified electricity and water cards. According to counsel, there was conclusive proof of who was in possession of the suit property. In support of his submission 20 - he relied on sections 30(b), 92(a) (ii), 74, 75, 77 and 112 of the Evidence Act. 2i

In reply, counsel for the respondent supported the leamed trial judge's finding that DW1 was a liar and that all the defence witnesses did not tell

2() court the truth. On the electricity and water cards, counsel contended that the legal position is that admission of documents by consent merely dispenses with the need to prove them but does not amount to admission of their contents. He submitted that the leamed trial judge weighed all evidence and found the card evidence valueless. In support of his submission he relied on The Attorney General of Uganda vs Charles Baranga & Another and The Lord Advocate vs Lord Blantyre (1879) 4 App Case 792.

Counsel's criticism ofthe learned trialjudge for disbelieving the evidence of the appellants and believing that of the respondent, is not justified. The judge had the opportunity to see DWI and DW2 testifuing in court and observed their demeanours. He considered the evidence as whole. The testimony of DW 1 concerns how he dealt with the alleged sale transaction of the suit property. He also testified in connection with his profession. DWI said that he was a member of the legal profession in England and specialised in personal injury cases. He was not a lawyer but a solicitor. He attained a law degree by correspondence from some college in England but did not remember the name of that college. [Ie tr) t5

was a law clerk in Uganda but not an advocate.

2{)

Evaluating the evidence as a whole, he concluded that DWI told lies and could not believe him on the crucial question of transfer of title. Like the trial judge, I find that DWI's evidence is inconsistent and unbelievable.

It is inconceivable that DWI does not remember the name of the college from which he attained the degree that was a basis of his legal career. I am unable to fault the judge lor disbelieving his evidence on the crucial issue of land transfer. 25

The evidence of DW2 was to the effect that he bought the suit property from the late Mrs. Roussos. He never saw Mrs. Roussos but the whole transaction was concluded in the lawyer's offices. After completion of the sale transaction he and his family moved into the suit property. The upper floor was rented by some tenants but he could not remember them. The judge did not believe his evidence. He was of the view that if there were tenants in his house he could have remembered their names.

The judge evaluated the evidence on the issue ofwho occupied the suit property. He believed the letter exhibit PV, which was from the Sudanese Embassy which, was signed by the ambassador. The letter confirmed that the Sudanese Embassy occupied the top floor of the suit from 1966 ro 1972. The judge was of the view that the ambassador was independent and had no cause to falsiff the evidence. As rightly observed by the leamed trial judge, it was indeed curious that the transfer deed was signed by E. G. Roussos in Cyprus and dated 4'h April 1969. The appellants application for installation of electricity for lamps, cookers, water and radiogram was dated 2'd April 1969. This was well before the appellants knew that their deal ofpurchasing the suit property l0 l5

- had succeeded. Counsel for the respondent has submitted, and rightly so in my view, that the appellants' documentary evidence regarding the occupation of the suit property is in sharp contradiction to their oral evidence. According to the endorsement by the Land Office on the land transfer document, the suit property was registered in the appellants' 20 - nirmes on 22nd April 1969. DW I testified that after the registration of the property in the appellants' names, DW2 gave them the keys in the lawyers' office and in the presence of Elizabeth. He went to the property after getting the keys. On the other hand, DWI testified that the appellants moved into the property in June, July or September 1969 after t5

registration had been completed. It is difficult to believe that the appellants applied lbr electricity before they even had access to the house With due respect the leamed counsel for the appellant, I do not accept his submission that the combined effect of sections 30(b), 72(aXii),74,75,

77 and II2 of the Evidence Act is that certified copies of documents admitted in evidence is that the court must accept them as being true. In the instant appeal considering the evidence on record as a whole the certified copies are suspect and do not prove that either the appellants or their tenants occupied the suit property. The learned judge was right to reject that evidence. 5 l0

All in all I am of the opinion that the judge properly evaluated the evidence and came to the right conclusion that the appellants were registered on the title through fraud. I would therefore, dismiss all the nine grounds for lack of merit.

I now deal with ground I0, which is on limitation. Appellants' counsel complained that the learned trial judge erred in law and fact when he held that the suit was not time barred. He submitted that the land was registered in the appellants names on 22'd April 1969. Mrs. Roussos and her family were deported from Uganda in 1972. She retumed and discovered the fraud in or about 1982. She should have llled the suit any time before 24'h April 1982. Counsel based his argument on the Register of Title and the evidence of the utility cards. It was his strong argument that Mrs. Roussos frequently borrowed money and used her certificate of title as security. In counsel's view, it was inconceivable that Mrs. Roussos would spend a period of three and half years without using her land title for bomowing activities. Counsel repeated his arguments on that water and electricity cards that were proof of who was in possession 20 25

of the suit property. Mrs. Roussos should have been aware of adverse possession by the appellants ofthe suit property.

In reply, counsel for the respondent supported the learned trial judge's finding that according to section 26 of the Limitation Act, in case of fraud the period does not begin to run until fraud has been detected or would have been discovered with reasonable diligence.

This was an action for recovery of land and the time within which one must institute a suit is twelve years. As Mrs. Roussos was deported from Uganda in 1972 and the alleged fraud was not known to her. When she returned to Uganda she discovered the liaud in 1980. As I have earlier on indicated elsewhere in this judgement, the card evidence is unreliable and I do not believe it. It cannot be assumed that Mrs. Roussos should have used the land title fbr borrowing money and should have noted the transfer. Ground 10, too, lacks merit and fails. l0 l5

Before I take leave of this appeal, I must consider the issue of Expropriate Properties Act. During the trial in the High Court appellants' counsel submitted that the suit property was vested in govemment by virtue of the provisions of the Expropriated Properties Act. The judge ruled that the cardinal issue in the suit was whether the title in the suit property had been properly registered in the names of the appellant. This was a question of fraud committed in 1969 before the expulsion of the appellants. 20 25

The appellants did not make the lack ofjurisdiction olthe trial court a ground ofappeal. However. their leamed counsel has argued that the suit was void and a nullity because a non existent party i.e. the appellants

were sued instead the govemment in which the title had been vested by virtue the possession of the Expropriated Properties Act.

It is appreciated that the suit property was dealt with by the Minister who issued a certificate of repossession dated 151711996, However, I am of the considered view that this did not affect the jurisdiction of the High Court. The appellants were fraudulently registered as owners of the suit property in 1969. Consequently when they were expelled from Uganda they did not have a title which could be vested into the govemment. 5

I agree with the learned trialjudge that the provisions of the Expropriated Properties Act, 1982 the Minister is not required to investigate questions offraud. It was not the intention ofthe legislature to perpetuate fraud that anybody registered as owner prior to 1972 should be regarded as a lawful owner regardless of how he had acquired the title. I find that the High l{)

Court had jurisdiction to try the case and this appeal is properly before this Court. l5

In the premises, I find that this appeal has no merit. I would accordingly dismiss it with costs to the respondent.

Dated at Kampala this .l.l.hay of Q- rn 005.

> Cr-{-. A' A..t'l ,-b.-- C. N. B. Kitumba JUSTICE OF APPEAL

# THE REPUBLIC OF UGANDA

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

# CORAM: HON. JUSTICE L. E. M. MUKASA-KIKONYOGO, DCJ HON. JUSTICE C. N. B. KITUMBA, JA HON. JUSTICE S. B. K. KAVUMA, JA

# CIVIL APPEAL NO. 70/2002

#### **GULAMHUSSEIN HABIB VIRANI** 1.

#### $2.$ NAZMUDIN GULAMHUSSEIN VIRAN ::::::::::::: APPELLANT

### VERSUS

## NICHOLAS ROUSSOS :::::::::::::::::::::::::::::::::

# [Appeal from Judgment of the High Court of Uganda at Kampala (J. P. M. Tabaro, J) dated 21st March 2002 in HCCS No. 360 of 1982]

### JUDGMENT OF THE HON. JUSTICE L. E. M. MUKASA-KIKONYOGO, DCJ

I read the judgment of C. N. B. Kitumba J. A in draft. I agree with it, the appellants' appeal is devoid of merit. As S. B. K. Kayuma J. A also agrees, the appeal is dismissed with costs to the respondent.

Dated at Kampala this....................................

L. E. M. Mukasa-Kikonyogo HON. DEPUTY CHIEF JUSTICE

# THE REPUBLIC OF UGANDA

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

# CORAM: HON. JUSTICE L. E. M. MUKASA-KIKONYOGO, DCJ \ HON. JUSTICE C. N. B. KITUMBA, JA HON. JUSTICE S. B. K. KAVUMA, JA

## CIVIL APPEAL NO. 70/2002

#### **1.** GULAMHUSSEIN HABIB VIRANI

#### 2. NAZMUDIN GULAMHUSSEIN VIRAN ::::::::::::: APPELLANT

#### VERSUS

## NICHOLAS ROUSSOS :::::::::::::::::::::::::::::::::

## [Appeal from Judgment of the High Court of Uganda at Kampala (J. P. M. Tabaro, J) dated 21st March 2002 in HCCS No. 360 of 1982]

### JUDGMENT OF THE HON. JUSTICE S. B. K. KAVUMA, JA

I have had the advantage of reading in draft the judgment prepared by Hon. Lady Justice C. N. B. Kitumba JA. I agree with that judgment and the orders proposed by her. I have nothing useful to add.

Dated at Kampala this....................................

B. K. KAYUMA HON. JUSTICE OF APPEAL