Kisitu Ssengendo & Anor v Mukoni Farmers Ltd (Civil Appeal No. 53 of 2006)

Court of Appeal · [2018] UGCA 117 · 2018 Appeal Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

First appeal from High Court decision dismissing a civil suit for recovery of land

Decision

Appeal dismissed; trial Judge's decision upholding the respondent's ownership of the suit land confirmed

The full judgment

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Holding

The Court of Appeal dismissed the appeal. It held that while the 1981 transfer was void ab initio for lack of mandatory ministerial consent under the Land Transfer Act, the 1990 transaction was a fresh and distinct transaction supported by new consideration, after consent was obtained, and was therefore valid. The appellants' late father, having signed a fresh transfer and accepted additional payment, were estopped by conduct from challenging the legality of the earlier transaction. The appellants failed to strictly prove the alleged fraud or forgery, which must be attributable to the transferee. The trial Judge had considered all the evidence, which largely supported the respondent's ownership.

Facts

In 1981 the appellants' late father sold the respondent (a non-Ugandan company) land in Busiro Block 448 Plot 51. A first agreement covered 10 acres for UGX 2,200,000, and a second agreement the same year covered 14.45 acres (inclusive of the first 10 acres and overlooking Kasenyi Harbour) for UGX 2,700,000. The respondent was registered in 1981 without obtaining the mandatory ministerial consent required for transfers to non-citizens. In 1990, after discovering the omission, the respondent obtained ministerial consent and executed a fresh transfer to itself, with the late Kisitu paid an additional UGX 1,200,000. The first transfer registered in error was cancelled by the Registrar and the new transfer registered. The appellants sued for recovery of the land, alleging fraudulent acquisition of an extra 4.45 acres including Kasenyi landing site, and that the transaction was illegal for want of consent. The High Court dismissed the suit. The appellants appealed.

Issues

Whether the alleged execution of a second transfer validated an earlier transaction that was illegal and a nullity for want of ministerial consent.
Whether the trial Judge was right to hold that the appellants failed to prove fraud or forgery in the respondent's acquisition of the extra 4.45 acres.
Whether the trial Judge failed to consider all the evidence and, if so, whether that failure led to an erroneous decision.

Orders

The appeal fails and is hereby dismissed.
Costs to the respondent.

Key headnotes

Land Transfer to Non-Citizens — Ministerial Consent — Effect of Absence under Land Transfer Act s.2

A transfer of land to a non-Ugandan executed without the mandatory ministerial consent is void ab initio, and a subsequent transfer cannot retrospectively validate the earlier void transaction; the later transfer, where supported by fresh consent and consideration, stands as a separate and distinct valid transaction.

Estoppel by Conduct — Party Precluded from Asserting Illegality after Entering Fresh Contract

A party who enters into a fresh contract over the same land and accepts additional consideration is estopped by conduct from later challenging the legality of an earlier transaction, as estoppel prohibits a party from contradicting his previous acts to the prejudice of another who relied on them.

Fraud — Standard and Burden of Proof — Attribution to Transferee

Fraud must be strictly proved to a standard heavier than the ordinary balance of probabilities and must be attributable, directly or by necessary implication, to the transferee, who must be guilty of or have knowledge of the fraudulent act.

Parol Evidence — Oral Evidence Inadmissible to Contradict Written Sale Agreements

Where parties have entered into written sale agreements, a party cannot rely on oral evidence to contradict the terms of those agreements.

First Appeal — Duty of Appellate Court to Re-appraise Evidence under Rule 30(1)(a)

On a first appeal the appellate court is under a duty to re-appraise the evidence on record and draw its own inferences and conclusions of fact, making due allowance for not having seen or heard the witnesses.

Registration of Titles — Registrar's Power to Correct Errors under Registration of Titles Act s.178(a)

The Registrar of Titles has power to correct errors in the Register Book by entering the word 'error', which operates to cancel an erroneous transfer, but such a correction does not of itself validate a subsequent transfer that constitutes a separate transaction.

Legislation cited (4)

Land Transfer Act s.2
Evidence Act (Cap 6) s.114
Registration of Titles Act (Cap 203) s.178(a)
Rules of the Court of Appeal Rule 30(1)(a)

Cases cited (7)

Kisugu Quarries Ltd v Administrator General (Civil Appeal No. 10 of 1998)
Begumisa & Others v Tibebaaga (Civil Appeal No. 17 of 2002)
Coghlan vs. Cumberland (1898) 1 Ch. 704
Pandya vs. R (1957) EA 336
John Oitamong vs Mohammed Olinga [1985] HCB 86
Kampala Bottlers Ltd v Damanico (U) Ltd (Civil Appeal No. 22 of 1992)
Zaabwe v Orient Bank Ltd & Others (Civil Appeal No. 141 of 2006)

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