Sir John Bageire v Ausi Matovu (Civil Appeal 7 of 1996) [1998] UGCA 27 (29 October 1998)

## **THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA HOLDEN AT KAMPALA CORAM: HON. MR. JUSTICE S. T MANYINDO, DCJ HON. MR. JUSTICE G. M OKELLO, J. A HON. MR. JUSTICE S. G ENGWAU, J. A**

## **CIVIL APPEAL NO. 7 OF 1996**

## BETWEEN

SIR JOHN BAGEIRE:::::::::::::::::::::::::::::::::::::::::::::::APPELLANT

AND

AUSI MATOVU:::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT

(appeal from the judgment and orders of the High Court (Kityo J. as he then was) dated 17 th of November, 1995 in High Court Civil Suit No. 878 of 1994).

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

This appeal challenges the judgment and orders of the High Court (Kityo J. as he then was) dated 17/11/95 in HCCS No. 878 of 1994 whereby it (High Court) gave judgment for the respondent and directed the Registrar of Titles to recall and cancel the special Certificate of Titles issued to the appellant and to reinstate in the register the respondent as the owner of the suit property.

Briefly, the background giving rise to this appeal is that the plaintiff, Ausi Matovu, had in 1968 bought a piece of land from Prince Kakungulu. In that year,the Plaintiff registered the land as Busiru

Block 397 Plot 185. he was issued with a certificate of Titles thereof Exh. P1. The land measured 95 Acres and situated at Bweva. It is commonly known as Lutembe Beach. For convenience, I shall henceforth refer to the land as the Suit Property. On the 2/7/69, the plaintiff leased the Suit Property to three Asians for 49 years. In 1972, the lessees left Uganda as "departed Asians" following the expulsion of Asians from Uganda in that year. The the Government took over the Suit Property and handed it over to the Custodian Board for management.

While the Lessees were still outside this Country, the Registrar of Titles (1<sup>st</sup> Defendant) cancelled the Plaintiff's Certificate of Titles in respect of the Suit Property and issued in respect thereof special Certificate of Title in the names of the $2^{nd}$ defendant. The $2^{nd}$ defendant had claimed to have bought the Suit Property from one "Ausi Matovu" and that the said Matovu had executed a transfer thereof in favour of the appellant. In 11993, when the Lessees returned to Uganda and obtained a Certificate of Repossession of the Suit Property under the Expropriated Properties Act 1982, the above transfer transactions came to light. The plaintiff therefore sued both defendants and alleged fraud in the transfer transactions.

The two defendants, Registrar of Titles and Sir John Bageire filed a single Written Statement of Defence in which they denied fraud. The $2<sup>nd</sup>$ defendant asserted that he bought the Suit Property from one "Ausi Matovu" and that the said Matovu executed the transfer of the same in favour of the $2^{nd}$ defendant. The $2^{nd}$ defendant admitted however that the seller was a different "Ausi Matovu" from the plaintiff.

At the commencement of the hearing of the suit, Counsel for the Plaintiff withdrew the claim against the Registrar of Titles and proceeded against the appellant only. On the evidence adduced, the trial judge gave Judgment for the Plaintiff and directed as stated earlier. He also awarded costs of the suit to the Plaintiff. Hence this appeal.

There are four grounds of appeal namely:-

(1) The learned trial Judge was biased in that he refused Counsel for the defenant to make various applications to wit:-

- a) Application to have the suit heard afresh as the defendant had never been served with the hearing notice; - b) Application to amend the Written Statement of Defence, as the learned Judge wrongly claimed that the defendant's entry into the suit after it had already been partly heard was conditional. - c) Application to adjourn proceedings as the defendant's Counsel had appeal against the learned trial Judge's refusal to hear the application to amend the defence.

(2) The trial Judge having refused to allow the defence to be amended, granted the defendant leave to appeal but out rightly refused to release the file for the purpose of typing copies of the record of the proceedings and proceeded to hear and determine the suit despite a pending appeal.

(3) The trial Judge decided to proceed with the hearing of the suit despite a pending appeal refused to allow the defendant's Counsel to address Court before delivery of Judgment.

(4) The trial Judge erred in not holding that the defendant was bona fide purchaser.

As regards ground 1, the appellant's complaint was that the trial Judge was biased against the appellant. His reason for that complaint was that the trial Judge refused to hearvarious applications made by Counsel for the applicant or to allow the same Counsel to make various applications in the course of the hearing of the case. To illustrate his point, the learned Counsel cited the following three applications:

- a) Misc. Application No. 381 of 1995 which sought an order that the applicant be heard in the head suit as if he had appeared on the day fixed for hearing (p.30). - b) Application for stay ofproceedings pending disposal of pending appeal (p.67).

He submitted tha the appeal be allowed on that ground as refusal amounted to a miscarriage of justice.

Lord Goddarnd CJ in R v Nailsworth Licensing Justice Exparte Bird [1953] 2 ALL ER 652 cited with approval the words of Day J. in R v Taylor etc JJ & Laidler. Exparte Vogwill 14 TLR 185 that objection cannot be taken to "anything at time which could make fools suspect." According to Lord Goddard CJ, bias must mean:

> "real likelihood of an operative prejudice whether conscious or unconscious."

Lord Denning, articulated in Metropolitan Properties Co. (FGC) LTD v Lannon and others; Regina v London Rent Assessment Panel

Committee, Exparte Metropolitan Properties Co. (FGC) Ltd (1969)1 B 577 at 598 E what constitutes bias. He said:

"A man may be disqualified from sitting in a judicial capacity if he has a direct pecuniary interest in the subject matter or ifhe is biased in favour of one side or against the other."

On how to determine whether there is a real likelihood of bias, Lord Denning said:-

"…in considering whether there was a real likelihood of bias, the Courtdoes not look at the mind of the Chairman of the tribunal or whoever it may be who sits in a Judicial capacity. It does look to see if there was a real likelihood that he would or did in fact favour one side at the expense of the other. The Court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless, if right minded persons would think that in the circumstances there was a real likelihood of bias on his part, then hewould not sit. And if he does, sit, his decision cannot stand."

The above meant that there must exist circumstances from which a reasonable man would think it likely or probable that the judge would or dud favour one side unfairly at the expense of the other. The court will not inquire whether he did in fact favour one side unfairly. Suffice it that reasonable people might think he did. The reason for this is that justice is rooted in confidence. That confidence is destroyed when right minded people go away thinking "the judge was biased." I respectfully agree with the above decision as they are sound. I therefore follow them.

The pertinent question to answer in the instant case istherefore whether there existed circumstances from which a reasonable man would think it likely or probable that the trial judge favoured the respondent against the appellant?

My answer is in the negative. With regard to the application (a) above for example, there was nothing on the record to show that the application was placed before the trial judge for hearing and/or that he refused to hearit. On the contrary, the record shows that Counsel for the appellant was allowed to join in proceedings. He was also given time to peruse the recorded evidence given by the respondent and his witness. Later, Counsel was allowed to recall and cross examine the appellant and other witnesses for the appellant. The learned trial judge even allowed Counsel a further adjournment to call another witness for the appellant. It was on the adjourned date that neither the learned Counsel, the appellant nor the witnesses for whom adjournment was sought, appeared. No reason was assigned for that absence. No reasonable person would in my view, think from the above circumstances, that the trial Judge was biased against the appellant.

On (b) above, there was also nothing on the record to indicate that the trial Judge refused to hear the application by the appellant to amend the appellant's Written Statement of Defence. Conversely, the record shows that the trial Judge considered the oral application and rejected it for reasons he gave. If the appellant was not satisfied with the dismissal, he could have appealed against it. But he chose not to do so.

Even in (c) above, there was similarly nothing on the record to show that the application for stay of proceedings pending the disposal of a pending appeal was placed before the trial Judge nor that he refused to hear it. In fact, Counsel himself conceded before us that no such application was placed before the trial Judge and that there was also no appeal pending. Clearly, no reasonable person would think it likely or probable from these circumstances that the trial Judge favoured the respondent at the expense of the appellant. There was therefore no merits in this ground. It must fail.

**Grounds 2 and 3.** these grounds were covered when I argued ground 1 above. They must also fail for the same reasons.

This brings me to ground 4 which criticised the trial judge for failure to find that the appellant was a bona fide purchaser of the Suit Property for value without notice of fraud.

In response, Counsel for the respondent submitted that the trial Judge considered the question of fraud.

Four issues which were framed and considered at the trial did not include whether the appellant was a bona fide purchaser of the Suit Property for value without notice. The trial Judge found in the affirmative in all the four issues. Yet the appellant had pleaded in paragraph 6 of their joint Written Statement of Defence as an alternative, a bona fide purchaser for value without Notice. It should have been considered. The question to consider now is whether that omission constituted a miscarriage of justice.

It is a settled principle of law that the onus is on the defendant to establish the plea of bona fide purchaser for value without notice set up by him. This was the holding of the predecessor of this Court in

**David Sejjaka Nalima v Rebecca Musoke Civil Appeal No. 12 of 1985 [CA]** unreported. That meant that a defendant who sets up that plea must establish purchase for value and lack of notice of fraud at the time of purchase for the plea to succeed.

In the instant case, the trial Judge considered the question of purchase vis-a-vis fraud and held that there was no purchase of the Suit Property by the appellant and that the transfer thereof was fraudelently effected. He also held that the fraud was brought home to the appellant.

On the evidence, I agree with the trial Judge's findings as the evidence of the appellant fell short of establishing the plea of bona fide purchaser for value without notice. His failure to produce the evidence of the person from whom he allegedly purchased the land, and of the advocate who drew the purported Sale Agreement between the appellant and the alleged seller was a serious flaw in the appellant's case. These were witnesses whose evidence could have established purchase and the appellant's lack of notice of fraud at the time of the purchase. That omission left a serious gp in the appellant's case. The argument that to insist on the production of the seller to testify was unrealistic as the seller might have been a con man was self-defeating to say the least and no good reason for dispensing with such vital evidence. It must be noted that lands are not vegetables which are bought from unknown sellers. Lands are very valuable properties and buyers are expected to make thorough investigations not only of the land but also of the seller before purchase. The evidence on record in my view fell short of establishing the appellant's plea. The omission by the trial Judge to

consider that plea therefore did not occasion a miscarriage of justice as he would have found in the negative.

Accordingly, this ground too must fail.

In the result, I would dismiss the appeal with cost to the respondent here and in the Court below.

Dated at Kampala this 29th day of October, 1998.

G. M. OKELLO

JUSTICE OF APPEAL.