Mukasa Kyagaba v Patel (Civil Appeal Number 13 of 2006) [2015] UGCA 2025 (1 January 2015)

Full Case Text

## THE REPUBLIC OF UGANDA

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

### CIVIL APPEAL NUMBER 13 OF 2006

(Appeal arising from the judgment of the High Court of Uganda at Kampala before Honourable *Mr. Justice G. Tinyinondi in High Court Civil Suit No. 815 Of 1991)*

GEORGE MUKASA KYAGABA :::::::::: ::::::::::::: APPELLANT

#### **VERSUS**

RAHUL PATEL :::::::::::::::::::::::::::::::::::: **....................................**

**BEFORE:**

HON. MR. JUSTICE A. S. NSHIMYE, J. A.

HON. MR. JUSTICE RUBBY OPIO AWERI, J. A.

HON. MR. JUSTICE GEOFFREY KIRYABWIRE, J. A.

### JUDGMENT OF THE COURT

The background to this case is that the original plaintiffs, Bernard Kasaato and George Mukasa Kyagaba filed a suit in December 1991 against J. M. Patel and a one, Faisi Kizza. However, in February 1999 an amended plaint was filed when Bernard Kasaato passed away. George Mukasa Kyagaba sued on his own behalf and also as the legal representative of the estate of the late Bernard Kasaato. By this time, J. M. Patel had also passed away and Rahul Patel replaced him as the legal representative of his estate.

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The brief facts ai'e that Bernard Kasaato vuas the registered proprietor of Kibuga Block 12 Plot 87 and Block 255 Plot 391 respectively from L965 lvhich pieces of land had developments thereon. Kasaato was allegedly mentally unsound, senile and had a nervcus breakdown prompting his family rnembers to choose one perscn among themselves to have custody of his land titles and other confidential ciccuments. The appellant (the plaintiff in the court below) was appointed and served in that capacity from 1987 up to 1988 and the appellant being a grandson was allowed to build a permanent house on Block 12 plot 87 Mengo Kisenyi which was used for earning rental income

It is alleged that on the 4th Feb 1998, the appellant was unlawfully and wrongfully arrested at his house by a police officer who proceeded to search the appellant's house and seized seven land titles in addition to detaining the appellant for one day at the CID headquarters. The appellant also pleaded in the lower court that, being aggrieved follouring the disappearance of Kasaato, he had lodged a caveat on land comprised in Btock 12 Ptot 87 on 1't March 1990.

Setween itlarch arrd April 1990, the defendants in the lower court, their servants oi- agents unlawfully demolished Kasaato's house and took his property. The defendants, aware of the mental incapability of Kasaato, induced him to execute and effect transfer of Block 1.2 Plot 87 Mengo Kisenyi, Btock 391 Munyonyo to the second defendant on or befcre 7th October, 1,990 and sign an affidavit supoorting an application to cancel the caveat on 12th November, 1990.

After the cancellation of the earlier caveat, the appellant's family rnembers then lodged another caveat on 8'h May, 1991 but before it could be registered the

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clefendants fraudulently and unlawfully removed Kasaato's names from the register and in his place registered the names of the second defendant.

The second .defendant threatened to evict the appellant and on the 7th December, 1991, the second. defendant's agents and/ or servants carried out unlawiul clearance and fenced the land in Block 12 Plot 87 and prevented the appellant access to his house.

The Learned Trial Judge dismissed the suit on grounds that the plaintiffs in the Court belovr did not aciciuce pi-oper evidence to support their claim. They did not prove the mental incapacity of Bernard Kasaato and also did not prove that the defendants knew of it. The plaintiff's claim of fraud was also dismissed.

The appellant, George Mukasa Kyagaba r,vho is the Administrator of the estate of his late Grandfather, Bernard Kasaato (the original plaintiff) in the Court below now appeals tu this Court agairrst the whole decision on the following grounCs:

1. The Learned Trial Judge erred in lar,.r for not raising on his own motion, counsel for the appellant having failed to do so, the question of legality of the contract of sale dateC 6'h July 1990 of the suit land comprised in lVlailo Register Kibuga Block 12 plot 87 Mengo estate which was entered into between the appellant's Grand father Bernard Kasaato Kasirye an African Ugandan and Manibhai Patel who, according to paragraph 4 of the Amended plaint, was a Non African of lndian origin prior to the minister's conscn? dated 7th March 1991. being obtained, contrary to the relevant provisions of the Land Transfer Act (Cap 202) which law was then in force.

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- 2. The Learned Trial judge erred in lau; for not raising on his own motion, counsel for the appellant having failed to Co so, that the registraticn of Manibhai Patet's transfer dated 7'h Juty 1990 by the Chief Registrar of Titles over the suit Land comprised under fuiailo Register Kibuga Block 12 plot 87 Mengo Estate; which Transfer was executed prior to the said ministe/s consent, granted on the 7rh t'/larch i991 was not illegai but void AB lNlTlO, as its registration contravened the statutory provision of the registration of title Act (Cap.205) then in force. - 3. The Learned Trial Judge erred in law for failing to raise his own motion, counsel for the appellant having failed to do so, the questicn of the oral contract of sale and the transfer of the suit land dated 25th June 199O comprised in Mailo register Kyandondo Block 255 plot 391 at IVlunyonyo estate between Bernard Kasaato an African rvithout the ministers consent which was required under the land transfer Act Cap.202 which lalv was then in force. - 4. The Learned Trial Judge erred in la'w for failing to raise his own motion, counsel for the appellant having failed to do so, that the registration of Ivlanibhai Patel transfer dated 26th June 1990 by the Chef Registrar of Titles over the suit land comprised in Mailo register Kyadondo block 255 plot 391 at Munyonyo estate which was Executed withoLrt the ministe/s consent was not only illegal but void Ab initio, as its registration contravened the relevant provisions of the registration of titles Act (Cap.205) then in force.

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- 5. The Learned Trial judge erred in law and in fact in failing to hold that the Memorandum of sale dated 6th July 1990; the transfer of land dated 7th october 1990 and the transfer of land dated 26th June 199o were forgeries; 'a,rhich forgcries lvere confirmed in evidence by a government analyst who was called by.counsel for the appellant and testified as a hand wr:iting expert; which evidence ..^/as not shaken on cross exa mination. - 6. The Learned Trial Judge erred in lar^; and procedure in hclding as he did that since at the time of Bernard Kasaato's death which occurred in 1993, Manibhai Patel was the registered proprietor of the suit land, the letters of administration dated 6th June 1995 granted to the appeilant did not relate to the suit lancls because they ciid not forrn part of Bernard Kasaato's estate at the time of his death. Whereas Bernard Kasaatc was the 1't plaintiff, and the appellant, the administer, was the 2nd plaintiff as Bernard Kasaatc's next friend in the suit filed by the 1't plaintiff in 199L for the recovery of hi-s land from Manibhai Pate!; the hearing of ',r,'hich was continubd by the appellant as a substitute, as required by lar,v and the rules of procedure. - 7. The Learned Trial Judge erred in la.w and fact in accepting the evidence and opinion of the registrar of titlbs who was not a hand writing expert to the effect that Bernard Kasaato's signatures on the mernorandum of sale and the two transfers were genuine and authentic, contrary to the

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evidence of an expert in handwriting and a gc. Jernment analyst who testified that the documents in question r,";ere forgeries.

- 8. The Learned Trial Judge erred in law in failing to hold that the Chief Registrar.of Titles in registering the instrument of transfer affecting land under Mailo register Kibuga Block 1.2 plot 87 Mengo- Kisenyi estate lvhile the caveat lodged on 8th fuiay, 1991 was pending in the registry unregistered was a deliberate act of fraud which contravened the statutory provisions of the Registration of'Titles Act. - 9. The Learned Trial Judge erred in law in holding as he did that since the certificates of title relating to the suit lands showed that Eernard Kasaato was registered on 11th November 1986 and 7th fularch 1988 respectively hence he was in 1986 not a mental case as claimed. Whereas, the same certificates of title show that Bernard Kasaato acquired the suit lands through succession from his deceased father: lsaya Gawedde the original proprietor and was automatically registered as . proprictor notwithstanding his mental illness. - 10. The Learned Trial Judge erred in fact in accepting the evidence of the Registrar of Titles concerning the true identity of Bernard Kasaato and a group cf people whom she.admitted she c.lid not know previously, but whom she eventually purport to have identified as Bernard Kasaato on the basis of what she was told by the said group which included counsel for the respondent's law clerk who presented the transfer, that he v,,as

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Bernarii K?saatc in support of he; decision to register illanibhai Patel's tra nsfe r.

This appeal was first heard before a different panel on the 2nc September 2009 and the panel coilapsed before giving its decision in the matter. A new panel was constituted to rehear the appeal. When the matter came up for hearing before the present panel, only counsel for the respondent Ms A. Namutebi appeared before Court. Court was informed that the appellants were serveC but did not appear. Counsel fcr the respondent prayed that since this was an old matter Court should rely on the submissions already on record and make its decision. We accepted this prayer and have decided to proceed to dispose of this appeal based on the submissions on record.

At the first hearing bf the appeal, even though there were L0 gror.rnds of appeal counsel for the appellant laisetJ two issues wlrich were argued on appeal namely:

- 1.. Whether Manibhai Patel's failure to obtain the minister/s consents in writing prior to ente!'ing into the two cont!'acts of sale of the suit lands rendered such contracts not only illegal but vcid AD .lnitic.under the provisions of the said Land Transfer Act. - 2, lf so, whether the appellant is entitled to the reliefs sought.

# Case for the appellants:

Counsel for the appellants submitteci that Manibhai Patel under the larv lvas a non-African and did not obtain the minister's consent in writing prior to entering into the tlvo contractg to ourchase the suit land from Eernarcj Kasdato's (an

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indigenous African Ugandan), as required under Section 2 of the Land Transfer Act (Cap.202) (herein referred to as the "LTA") which rlas in force rvhen the tra nsactions took place.

Counsel for the appellant further cited the casc of Broadurays Ccnstructioii Cu. vs Kasule & others {1\$/}E. A 75 where it was held that the LTA makes illegal all taking of possession of land and all contracts made without the consent of the rninister. lt followed therefore that the contract entered into between fManibhai Patel and Bernard Kasaato without the minister's consent was void ob initio. As a result, counsel for the appellant further submitted that no money paid under an illegal contract may be recoverable and argued that the above decision was based on public policv to protect Africans as a class, notwithstanding the maxim: "ex turpi couso non oritor oction [on action does not orise from o bod cause]."

Counsel for the appellant further relied on the case of Ngakwila v Lalani (1972) EA 382; where the court raised the question of legality of a contract entered into for the sale of land before the granting of the consent by the minister. ln that case it was argued for the appellant that the contract was inchoate untii the consent oi the minister had b'een given. The facts of that case were that the respondent's name was entered on the register and took possession of the property sold on 1't January 1971 but the minister's consent was granted on 4th January 1971, three days after. the said registration. lt was held (citing with approval the BroaCways case (supro/) that a contract made before the consent of the minister is obtained is illegaland void ob initiol.

Learned counsel referred to the mandatory provisions of the repealed 5.139 of the Registraticn of Titles Act, Cap 205 (hereinafter refe;'red to as the "RTA")

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Ir which barred the Registrar of Titles from registering any instrument effectuating a transaction which under the provisions of Section 2 of the Land Transactions Act required the prior consent in writing of the minister unless such consent be endorsed on such instrument or otherwise evidenced.

He accordingly argued that purported registration of the two transfers was illegal as it also contravened the mandatory provisions of the RTA. He then prayed that the appeal be allowed, and that all the transfers of the suit land into the names of Manibhai Patel be set aside. He further prayed that the respondent be ordered to deliver to the Court the relevant duplicate certificates of title relating to land comprised in Mailo register Kibuga Block 12 Plot 87 being land at Mengo-Kisenyi and Mailo register Kyadondo Block 255 Plot 391 being land at Munyonyo Estate within a period to be specified by court. He prayed that The Commissioner of Lands/ Chief Registrar of Titles be ordered to cancel all the relevant memorials from the register book and Re-instate the name of Bernard Kasaato Kasirye unto the register book as the registered proprietor thereof. He also prayed for costs of the appeal and the court below.

## Case for the respondent:

Counsel for the respondent submitted that Manibhai Patel was Ugandan and therefore there is no question of illegality as alleged by the appellants. He submitted that Manibhai Patel was a party to the proceedings in Court before he died after which the proceedings were taken over by Rahul Patel as the administrator of the estate of Manibhai Patel. Counsel for the respondent in support of this assertion referred to paragraph 5 of the Plaint which reads;

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"The second defendant is o male odult Uqandan oJ sound mind ond is o business mon ot Kompalo resident with in Kompala." (Emphosis odded)

He submitted that, that was the reason the question of illegality was never raised in the lower Court and therefore should not be raised on appeal.

Learned counsel for the respondent further submitted that Rahul Patel who is the administrator of the estate of the late Manibhai Patel and took over tl're prosecution of the suit is also a Ugandan, and is named in the amended Plaint as the new defendant and that he is a Ugandan of lndian origin. He however submitted that since Rahul Patel is an administrator, it doesn't matter that he is Ugandan.

Counsel further submitteC that the question of whether Manibhai Patel was a non African in the context of the LTA was a question of fact but that no evidence was aciduced to the contrary by the appellants.

Counsel for the respondent submitted that the consent to transfer form used to transfer the suit property r,.ras dated 7th March 1991 and that the actual registration v;as dated,i4th June 1991 which is after the ccnsent girren by the Minister. This, he submitted was in order because the consent was obtained before the registration.

Counsel for the respondent further submitted that the suit is not about transfer because that was already done but rather it is about the cancellation of an existing title. He referred to the prayers of the plaintiff (now the appellant) in the piaint wherein the plaintiff prayed for the annulment and cancellation of the respondent's title and the restoration the Plaintiff's names on the title by the Registrar of Titles. He further referred Court to the carc!inai principle of

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Registration that a certiiicate of title is conclusive evidence of title and or,^rnership. He referred to S 59 of the Registration of Titles Act, Cap 230 which provldes that:

"No certiJicote ol title issued upon an applicaticn to bring lond under this Act sholl be impeoched or deJeasible by reoson or on occount oJ ony inlormality or irregulority in the opplicotion or in the proceedings previous to the registrotion oJ the certiJicate, cnd every certificcte of title issued under this Act shott be received in oll courts as eviclence of the porticulors set lorth in the certificate and oJ the entry of the certiJicate in the Register Book, ond shall be conclusive evidence that the person named in the certificote os the proprietor oJ or having any estote or interest in or power to oppoint or dispose of the lond described in the certificote is seized or possessed oI that estote or interest or hds that power."

Counsel for the respondent further relied on the case of Kasifa Namusisi &2 others vs M. K. Ntabazi, Supreme CourtoCivil Appeal No.4 of 20O5 where Odoki, A @s he then wos) held that:

"lt is wel! settled that a certificote of title is only indefeosible in o few instonces which sre listed in section 775 ol the Registrotion of Titles Act. The section protects o registered proprietor ogainst ejectment except in cases of fraud, among others,"

Counsel argued that there are no grounds that the title should be cancelled-

## Findings of this Court

Counsel for the Appellant raises the question of illegality. He argued that the contract for the sale of suit land was void ab initio. Section 2 of the LTA provides that:

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" l!g\_!p! \fu@ n or percon acting os his agent shcll l :thout the consent in ..,-:t:^^ ^a rL^ tvtt/trtL1 vt attL ttttrttsL=t -.i^!-t^- uL^- CUpl er elter into possession of ortv ianc! ,:f which an Africon is reqistered as proprietor (otherwise thon by receiving rents ond profits payable by non Africans utho have gone into occupotion or possession with thc ccnsent oJ the minister) or moke onv cantract to purchose or toke on leose or accept o gift inter vivos or o bequest of anv such land or af any iniiterest therein other thon a security jor money" (Emphosis odded)

Black's Law Dictionary gth Edition defines a contract as:

"An agreement between two or more pariies creoting obiigotions thot are enforceoble or otherwise recotgnizable ot law."

However an illegal contract cannot be enforced by the court. ln the case of Slaughter & May vs Brorvn Doering McNab & Company (1892) 2 QB 724, it was held that:

"l\lo court ought to enforce on illegal contract or ollovv itselJ to be made on instrument of enforcing obligations olleged to o se out ol o contrcct or tronsaction which is illegal if the illegality is duly brought to the notice of the court and the person invoking the oid of the court is himseff impiicated in the illegailty."

ln this case, Counsel for the Respondent submitted that Manibhai Patel was a Ugandan and so not bound by Section 2 of the LTA (supro). However, this is contested by the appellant. ln our opinion, the above Act refers to Non-Africans. The respondent being an Asian is naturally a non-African. lt is therefore immaterial whether he was a citizen of Uganda or not.

We have perused the record and found that the consent from the Minister to transfer land was given on 7th March 1991 in respect of Btock 12 Plot 87 but the

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actual transfer was dated 7th October 1990 which is before the consent of the Minister was given.

In respect of Block 255 Plot 392, transfer was made on 26th June 1990 but no Ministerial consent for this particular land was given at all. This means that Manibhai Patel was in fact affected by Section 2 of the LTA because he knew he needed the consent and that is why he applied to acquire it. He however acquired the consent after executing transfers of land. As a matter of law, we find that this renders the transfer of both pieces of land to the respondent illegal for lack of Ministerial consent. We also agree with counsel for the appellant that such failure further makes the contracts for the sale of both pieces of land void *ab initio*.

The requirement of ministerial consent is mandatory and this was further espoused by Mulenga JSC in the case of Kisugu Quarries LTD v Administrator General, Supreme Court Civil Appeal No. 10/98. The learned Justice stated that the absence of the ministerial consent cannot merely be ignored. Furthermore, the lack of the consent at the time of effecting transfer of property renders that transfer void and so registering it later, does not make the contract a valid one. It is void ab initio. Mulenga JSC stated that:

## "The act of treating an act as if it is a valid transaction does not validate an illegal transaction."

We find it important to point out that the purpose of the LTA which was in force at the time sought to protect the African from being exploited by economically powerful Non Africans and this is why it was important for a non African to have ministerial consent before entering any contracts related to land and property.

lri the case of Amar Singh v Kulubya [1963] IA 408- the respondent (an African) was the registered proprietor of three plots u/hich by agreements he purporteci to lease for a year to the appellant a non African. The consents of the Governor and ti:e Lukiiko as requii'e,:i b), Section 2 of the Land Transfer Ordinance hai not been obtained. lt was held that the appellant as a non African had no right without the consent in writing of the Governor and the Lukiiko to occupy or enter into possession of the land or to make any contract to take the land on lease as the agreements were unlawful therefore no leasehold interest vested in the appellant.

Similarly in the present case, the transfer any of the suit land and entered into are void. respondent had no ministerial consent to therefore the contracts of transfer that he

## Final Result

We find that the transfer of both pieces of land urere illegal for lack of rninisterial consent at the time they wei'e transferred and w.hen the consent rvas consequently granted, it was in respect of Block 12 Plot 87 on a date aftei the transfer. There was aiso no consent granted in respect of Block 255, Plot 391.

We therefore find that the contracts entered into in respect of the land transfers were void. The appeal is allowed and the judgnrent of the High Court is set aside, as prayed, with costs here and in the Court below.

We accordingly order that all the transfers of the suit land into the names cf Manibhai Patel be cancelled. We further order that the respondent delivers to this Court the relevant duplicate certificates of title relating to larrd compr:sed in

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Mailo register Kibuga Block 12 Plot 87 being land at Mengo- Kisenyi and Mailo register Kyadondo Block 255 Plot 391 being land at Munyonyo Estate within a period of 30 days from the date of this judgment. We further order that The Commissioner of Lands/ Chief Registrar of Titles Re-instate the names of Bernard Kasaato Kasirye unto the register book as the registered proprietor before it is registered in the names of the administrator of the estate.

We so Order

Dated at Kampala this 2015. day of

Hon Justice A. S. Nshimye

JUSTICE OF APPPEAL

Hon Justice Rubby Opio Aweri

JUSTICE OF APPPEAL

Geoffrey W. M. Kiryabwire Hon. Jus

JUSTICE OF APPPEAL