Kakaire Mpaata and 2 Others v Nakalema and 2 Others (Civil Suit No. 194 of 2007) [2010] UGHCLD 2 (21 April 2010)

Full Case Text

## **THE REPUBLIC OF UGANDA {**

## **IN THE HIGH COURT OF UGANDA AT KAMPALA;i [LAND DIVISION]**

## **CIVIL SUIT NO. 194 OF 2007**

**1. CHARLES KAKAIRE MPAATA' 2. BRIAN A. ISUBIKALU 3. ANTONIO SENOGA J**

**PLAINTIFFS**

**W-**

CO?'-' O?

•ccs ./

## **VERSUS**

**DEFENDANTS 1. TEZIJADDE NAKALEMA REGINA 2. KIRABIRA SENTAMU RONALD 3. THE REGISTRAR OF TITLES**

## **BEFORE: HON, LADY JUSTICE ANNA MAGEZI**

# **JUDGMENT:**

•"5 The facts of this suit are that the plaintiffs bought the suit land from the first defendant subsequent to which a small store was erected and the land enclosed using a metal wire fence. However, before effecting a transfer the 1st defendant obtained the original Certificate of Title from the agent of the plaintiffs, with whom it had been **It:** deposited. The 1st defendant dully accepted or acknowledged the transaction as per exhibit P4. The transaction was also witnessed by their agent Nyende PW3 and an LC official who testified as PW5. Consequent to the afore-going evidence the 1st defendant allegedly

\ cvxr **L o th**

- 5 defendant issued him a title. Thus this suit. However the 1st defendant failed to file any defence and did not appear in court. In her absence court proceeded without her. Thereafter the 2nd defendant proceeded to any claims from the plaintiffs whose interests were unknown to him. That he had settled the interests of PW3 in Civil Suit No. 194 of 2007 at Entebbe Court. It is important from the onset to note that /c although the 1st defendant purportedly sold to the/2nd defendant she failed to defend the suit before court in which case judgment against her was presumed. In the event this court analyzed the submissions of both parties and the circumstances affecting the matter and found as follows: totally deny the plaintiffs' allegations as pleaded in the plaint. He testified that he was a bonafide purchaser for value without notice of sold the land to the 2nd defendant upon which the 3rd - It is not doubtful at all that the 1st defendant resold the suit property IS having fraudulently obtained the Certificate of Title from the agent of the plaintiffs namely PW3. The fraudulent intent is manifested by lack of any defence by her. I found the 1st defendant fraudulent due to her failure to appear in court and for having misrepresented her

intentions while repossessing the Certificate of Title from PW3. The question remaining to be determined therefore is whether the 2nd defendant was a bonafide purchaser for value without notice. Having scrutinized the record, recalled the demeanor of witnesses, visited the locus in quo, reviewed the law and submissions I find as a fact that the 1st defendant was fraudulent. As far as the 2nd defendant being classified as "a bonafide purchaser for value" this cannot be simply assumed. It has to be proved. However on visiting the locus in quo I found the suit land enclosed by a fence whose polls indicated that this enclosure was not new and should have been noticed by the **'5** him. Namely to observe any adverse interests. In so doing, the first point of call in my view would have been to ascertain from the Local Council officials whether any encumbrances existed. This practice is currently overwhelmingly necessary to avoid any mistakes while evidence purchasing land. I find no proper reason why it was not done. All the defence witnesses failed to say why it was not done. No LC officials 2nd defendant in order to determine any due diligence required of appear to have been met. Even the LC official who testified failed to convince court that she was a truthful witness as manifested by her and demeanor. On the other hand I did believe the LC

**3**

**\\°\**

**5** defendant had repossessed the Certificate of Title through trickery and defendant can rely on Section 92 Registration of Titles (RTA) to prove an authentic transfer I am of the considered opinion that although the transaction was private it is a requirement that such transfer **I D** not monetary. The seventh schedule to the RTA clearly requires the insertion of the amount paid in addition to the name of the transferee. The aforesaid documents are necessary in dealing with **13** defendant to 1st defendant who he alleged sold to him. In line with the case **of Makula International** if an illegality is pointed out to court it cannot be ignored or vitiated by any arguments as such revelation JL-o supersedes any pleadings. The evidence on record indicates that not all the contractual money for the purchase of the suit land was paid defendant. In which case the contract, if any, was defendant cannot claim to have been a bonafide purchaser for value indicates the sum of money paid except where the consideration was land transactions but were not exhibited by the 2nd witness PW4 who had testified that the 1st by the 2nd unconsummated and incomplete. In such circumstances the 2nd authenticate the transaction of sale between him and the misrepresentation. On the other hand, as to whether the 2nd

and fence erected on the suit land. Apparently his witnesses also have visited on the first defendant I am disinclined to find in favour the circumstances. In line with **Kampala Bottlers Ltd Civil Appeal** ignored the afore-mentioned criteria. It is my considered opinion J5 therefore that failure to comply and in view of the apparent fraud I *3* without notice. The Oxford Dictionary of Current English 1993 defines "bonafide" as sincere and genuine. From the evidence on record I am unable to determine that the transactions leading to the alleged purchase were sincere and genuine due to the observations I have of the 2nd defendant. Rather Judgment is entered for the plaintiffs in / alluded to. Namely, the absence of a response to this suit from the **y** fo 1st defendant, the fraudulent recovery of the title deed from PW3 by the 1st defendant and the failure of due diligence by the 2nd defendant's failure to contact LC officials and to observed the store **No.22/92** and acting under the provisions of Section 184 (c) of the jlo Registration of Titles Act I find that the particulars in this suit indicate that the plaintiffs were deprived of the suit land through fraud. They are entitled to recover the land as I am satisfied that the 2nd defendant's registration as proprietor was masked with fraud. Other cases that have influenced my decision include:

**Makula International Ltd. V. His Eminence Cardinal Nsubuga and Another Civil Appeal No.4/1981,** where it was held that illegality overrides all questions of pleadings including admission thereon.'

**September 1996 at Mengo from HCCS No.348/1991 at Kampala,** where it was held that in purchasing land property passes upon deposit but the legal title remains with the vendor on completion of payment. In the case before me no legal defendant due to lack of evidence of L5 completion of payment. **Nandlal Harjivan Karia & Another Supreme Court Civil Appeal** iTf **No.53/95 13th** title passed to the 2nd

# **David Sejjaka Naluma V. Rebeca Musoke Civil Appeal No.12/85 Supreme Court 1992 V. KALR,**

bonafide purchaser. The registration in the instant case was visited **Zo** with some infirmity due to the fact that Section 184 RTA was not strictly complied with. .. -.-TiFsKD TRUi- A bonafide purchaser for value is one without notice of fraud. I have alluded to the reasons why I did not consider the 2nd defendant a

nr THE OHiGKMJ

**DA '**

Fraud may not be active or constructive but could be imputed from $\mathsf{S}$ previous proprietors such as happened in this case where unregistered interests of the plaintiffs would have been apparent if due diligence was made. This caution is necessary to check or discourage dishonest dealings in land as manifested in this current 10 case. For example, John Katarikawe V. William Katwireme and another Civil Suit No.2 of 1973 a High Court decision, confirmed by Civil Appeal No.7 of 1978 Marko Matovu & Another V. Muhamed Seviri & Another, where fencing was visible. In the instant case the agents of the defendant should have seen the fence on the suit land which the court saw during the visit $\overline{15}$ to the locus in quo. This fencing is imputed, by court, to have been seen by the $2nd$ defendant and his agents including the little store built on the land. The 2nd defendant was required to prove that he was a bonafide purchaser who had given valuable consideration and not partial payment as happened in this particular case before me. $2\mathfrak{D}$ The 2nd defendant needed to prove that he bought the disputed land for value without notice. In case the $2^{nd}$ defendant was duped he is at liberty to sue the $1$ st defendant who sold him "air". This remedy is

at rate car:

$27/4$ [II]

$\mathcal{T}$

to file any defence. s more appropriate in the present case where the 1st defendant failed

The litany of the above findings or precedents reinforce my decision in favour of the plaintiffs as already pronounced. Subsequently the respect of the 2nd defendant as it was obviously done in error. ID 3rd defendant is required to cancel the Certificate of Title issued in

Finally Judgment is entered for the plaintiffs with costs as shall be appropriately taxed.

**£-1***1*

**Anna Magezi**

**JUDGE.**

/ **I** LAND S. /lStON COPYOFTHEORiGiN- ft, CLi[q-[l/

### **THE REPUBLIC OF UGANDA**

12.5

### **IN THE HIGH COURT OF UGANDA AT KAMPALA LAND DIVISION**

### **CIVIL SUIT NO 194 OF 2007**

- **1. CHARLES KAKAIRE MPAATA** - **2. BRIAN ISUBIKALU**

PLAINTIFFS **3. ANTONIO SENOGA::::::::::::::::**

### **VERSUS**

- **1. TEZIJADA NAKALEMA REGINA** - **2. KIRABIRA SENTAMU RONALD** - **DEFENDANTS 3. THE REGISTRAR OF TITLES::::::**

### **DECREE**

This suit- coming up for final disposal on this 21st day of April, 2010 before **Hon Lady Justice** i **Anna Magezi,** in the presence of Andrew Kibaya, Counsel for the Plaintiffs and Fahd Muwanga, i Counsel for the second Defendant and in the absence of the first and third Defendants and/or ' their Counsel, it is hereby ORDERED and DECREED that;

- 1. The third Defendant cancels the Certificate oftitle issued to the second Defendant. - 2. That the Plaintiffs be paid the taxed costs to the suit.

**a** GIVEN under my hand and seal of this Honourable Court on this 2011. .... day of

**REGISTRAR**

Extracted **By** I Shonubi,';Musoke & Co ; Advocates & Solicitors i SM Chambers I 14 Hannington Road 1 P. O. Boxi3213 , Kampala.