Wakilii

Siraba v Development Finance Co. of Uganda (Civil Appeal No. 18 of 2000)

Court of Appeal · [2001] UGCA 58 · 2001 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Civil appeal from High Court judgment dismissing a suit for wrongful detention of title deeds and trespass to land
Decision
Appeal dismissed; High Court dismissal of the suit upheld

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Holding

The Court of Appeal dismissed the appellant's appeal, holding that a registered proprietor's or mortgagee's title under section 184 of the Registration of Titles Act is indefeasible except where fraud is pleaded with particulars, proved strictly, and attributed to the person dealing with the title. The appellant's plaint alleged only that a Power of Attorney was forged by his brother's company; it contained no allegation of fraud against the respondent mortgagee and disclosed no cause of action against it. Even if the Power of Attorney was forged, that did not affect the respondent's registered mortgage. The handwriting expert's evidence did not implicate the respondent. The appeal was dismissed with costs.

Facts

The appellant was the registered owner of leasehold property on Aki-Bua Road, Kampala. In 1982 he gave his Certificate of Title to his brother, Haji Tezikuba, who lived on the property. In 1995, Affasat International Ltd, in which Haji Tezikuba and his wife were the major shareholders, pledged the title to the respondent as security for a loan under a mortgage registered on 24 May 1995. The pledge was made under a Power of Attorney allegedly donated to Affasat by the appellant in 1994. The mortgagor defaulted, and in 1998 the property was advertised for sale and Haji Tezikuba and his family were evicted. The appellant sued the respondent for wrongful detention of his title deeds and trespass, seeking a declaration that he never signed the Power of Attorney, delivery of the title free of encumbrances, general damages and costs. He alleged the Power of Attorney was a forgery. The High Court dismissed the suit, finding no fraud pleaded or proved against the respondent.

Issues

  1. Whether, even if the Power of Attorney relied upon by the mortgagor was forged, it invalidated the registered mortgage in favour of the respondent.
  2. Whether the appellant pleaded and proved fraud against the respondent so as to impeach the respondent's registered interest under the Registration of Titles Act.

Orders

  • Appeal dismissed.
  • Costs of the appeal and in the court below awarded to the respondent.

Key headnotes

Registration of Titles — Indefeasibility of Title — Protection of Registered Mortgagee under RTA s.184
Under section 184 of the Registration of Titles Act, a registered proprietor and a registered mortgagee hold an indefeasible title against the whole world, and such title cannot be impeached except in the case of actual fraud on the part of the person dealing with the registered proprietor.
Registration of Titles — Fraud — Requirements for Impeaching Registered Title
To impeach a registered title for fraud, the fraud must be pleaded with full particulars, proved strictly to a standard heavier than the ordinary balance of probabilities, and attributed to the transferee or person dealing with the registered proprietor.
Mortgages — Forged Power of Attorney — Effect on Registered Mortgage Absent Mortgagee Fraud
A forgery of a Power of Attorney used by a mortgagor to pledge title does not affect a mortgagee's registered rights where the forgery is not attributable to the mortgagee and no fraud is proved against it.
Pleadings — Cause of Action — Dismissal under Order 6 rule 28 CPR
A plaint that contains no allegation of fraud against a defendant mortgagee discloses no cause of action against that defendant and is liable to be dismissed under Order 6 rule 28 of the Civil Procedure Rules where the defence has raised that the plaint discloses no cause of action.
Issues — Power of Trial Judge to Amend or Reframe Issues under Order 13 rule 5 CPR
Under Order 13 rule 5 of the Civil Procedure Rules a trial judge has unfettered discretion to amend issues framed by the parties, strike out issues, or frame additional issues at any time before passing the decree, and is not bound by the issues agreed at the start of trial.
Handwriting Expert Evidence — Weight Where Specimen Unwitnessed and Document a Photocopy
Handwriting expert evidence carries limited weight where the expert did not witness the making of the specimen signatures and examined only a photocopy of the questioned document, and such evidence cannot of itself implicate a third party in fraud.

Legislation cited (6)

  • Registration of Titles Act (Cap.205) s.2
  • Registration of Titles Act (Cap.205) s.184
  • Civil Procedure Rules Order 13 rule 5
  • Civil Procedure Rules Order 6 rule 28
  • Court of Appeal Rules rule 29(1)(a)
  • Court of Appeal Rules rule 97

Cases cited (7)

  • Joval n Barngaire vs. Attornev General S.C.C.A No.28 of 1993 (unreported)
  • Gibbs vs. Messer Mclatvres vs. Cresswcll (1991) A.C 248
  • Olinde de Souza [1962] E.A.756
  • Grindlays (U) Ltd v Uganda Bottlers Ltd (Civil Appeal No. 29 of 1995)
  • David Sejjaaka v Rebecca Musoke (Civil Appeal No. 12 of 1982)
  • Kampala Bottlers Ltd v Damanico (U) Ltd (Civil Appeal No. 22 of 1992)
  • Waimiba Saw Milline Co. ltd. Vs. Wriobe Timber & Co. Ltd [1996] A.C 101 at page 106
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.