Kinalwa Fred & Anor v Kamulegeya (Civil Appeal No. 217 of 2013)

Court of Appeal · [2018] UGCA 3 · 2018 Appeal Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Civil appeal from a High Court judgment in a land recovery suit founded on fraud

Decision

Appeal dismissed; High Court judgment and all orders, including cancellation of registration, restoration of title, permanent injunction and damages of shs. 10,000,000, confirmed

The full judgment

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Holding

The Court of Appeal, re-evaluating the evidence as a first appellate court, upheld the High Court's finding that the respondent never sold or received payment for the disputed eleven acres and never signed any agreement of sale. The appellants' and their witness's testimonies were riddled with irreconcilable contradictions, the alleged written agreement was a forgery, the cheque payments did not add up and were unverified by the banks concerned, and the 1st appellant was not the respondent's agent. The transfer therefore lacked consideration and was fraudulent. The Court confirmed cancellation of registration, restoration of the respondent's title, the permanent injunction, the declaration, and the shs. 10,000,000 damages award. The appeal was dismissed with costs.

Facts

The respondent was the registered proprietor of land at Kireka Bira, Mumyuka, Busiro. On 27 January 2006 he sold five acres to the 2nd appellant and handed over his certificates of title together with mutation and transfer forms to carve out the five acres. The first sale was conducted formally: a written agreement signed by both parties and witnesses, with payments acknowledged in writing. The appellants subsequently carved out eleven additional acres without the respondent's consent or knowledge and registered sixteen acres in total in the 2nd appellant's name. The respondent denied selling the eleven acres, denied receiving payment for them, and denied signing any agreement. He only recovered his title in 2011 through police intervention, when he discovered the additional transfers. The appellants claimed payment was made by cheques and that the 1st appellant acted as the respondent's agent, but their accounts were mutually contradictory, the alleged agreement was tendered as a forgery, and the banks said to have credited payments were not called as witnesses.

Issues

Whether the trial Judge erred in finding that the 2nd appellant had no claim to the suit eleven acres of land for which he allegedly paid consideration.
Whether the respondent proved fraud in the transfer of the eleven acres to the 2nd appellant.
Whether the 1st appellant was acting as the respondent's agent in the transaction.
Whether the order cancelling registration and restoring the respondent's name was justified.
Whether the award of shs. 10,000,000 as damages for trespass and stress was justified.
Whether the appellants' counterclaim was properly dismissed.

Orders

Appeal dismissed in its entirety with costs.
Judgment of the High Court upheld.
Order directing the Registrar to cancel registration of the land comprised in Block 306 Plot 1297 at Kireka Bira in the 2nd appellant's name and restore the respondent's name on the certificate confirmed.
Order that the appellants pay shs. 10,000,000 as damages for trespass and stress confirmed.
Permanent injunction restraining the 2nd appellant, his agents and assignees from trespassing on the suit land confirmed.
Declaration that the 2nd appellant has no claim to the suit land confirmed.
Order that the 2nd appellant vacate the suit land and remove any property thereon, and that the appellants pay costs in this Court and the High Court, confirmed.
Order dismissing the counterclaim upheld.

Key headnotes

Land Law — Transfer Procured by Fraud — Cancellation of Registration

Where a registered proprietor neither sold the land, signed any agreement of sale, nor received consideration, a transfer of that land procured by forgery and contrivance is fraudulent, and the registration may be cancelled and the proprietor's name restored.

Evidence — Credibility — Effect of Irreconcilable Contradictions in Witness Testimony

Fundamental and irreconcilable inconsistencies among the testimonies of a party and his witnesses render their evidence highly suspect and unreliable when weighed against a credible and consistent opposing account.

Evidence — Standard of Proof — Proof of Fraud on a Balance of Probabilities

Fraud in a civil land dispute may be established on a balance of probabilities where the surrounding circumstances, departures from established dealing practices, and unexplained discrepancies point irresistibly to a fraudulent intention.

Evidence — Proof of Payment — Failure to Call the Issuing Bank or Tender Original Documents

Alleged payment by cheque is not proved where the recipient categorically denies receipt, the issuing banks are not called to confirm crediting of the funds, and only photocopies rather than originals are tendered.

Civil Procedure — First Appellate Court — Duty to Re-evaluate Evidence

A first appellate court is under a duty to subject the whole of the evidence to a fresh and exhaustive scrutiny and reach its own conclusion, though it may concur with the trial judge's findings where they are supported by the evidence.

Cases cited (1)

Pandya v. R, [1957] EA 336

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