Wakilii

Lukwago Stephen and Others v Jackson W. Kiggundu Kato (Civil Appeal No. 227 of 2023)

Court of Appeal · [2023] UGCA 412 · 2023 Appeal Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
First appeal to the Court of Appeal from a High Court (Land) judgment in a civil suit and counter-claim over ownership of registered land
Decision
Appeal partly succeeds; High Court judgment and orders set aside; respondent's amalgamation declared fraudulent and void ab initio, with the title reverting to the estate of the late G.W. Lukwago

The full judgment

Read the complete, verbatim text of this judgment.

Sign in to read the full judgment

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions — always read the source judgment before relying on it.

Holding

The Court of Appeal partly allowed the appeal. It upheld the trial court's shifting of the burden onto the appellants once the respondent's registration was admitted, and its refusal to visit the locus in quo (a discretionary matter, the dispute being ownership not boundaries). However, it held that fraud had been specifically pleaded with particulars in the counter-claim, so the limitation exception under s.25 of the Limitation Act applied. Re-evaluating the evidence, the Court found the respondent had not proved how he acquired Plots 398 and 454 from the late G.W. Lukwago and that the Registrar confirmed no transfer or consent documents existed; the amalgamation was therefore fraudulent and void ab initio. The High Court judgment was set aside.

Facts

The respondent sued the appellants claiming to be the registered proprietor of land at Gwafu, Seeta, Mukono (Kyaggwe Block 109, Plots 2871 and 2872), formed by amalgamating Plots 469, 454 and 398, and alleging trespass. The 1st and 2nd appellants, administrators of the estate of the late Lukwago George William, counter-claimed that the respondent had fraudulently amalgamated Plots 398 and 454 (which he never lawfully acquired) with Plot 469, and pleaded particulars of fraud. It was not disputed that Plot 469 had been bought from the appellants' late father. The Registrar of Titles (D.W.3) testified that the register held no transfer or consent forms and no evidence that the amalgamation of Plots 398 and 454 had been sanctioned by the registered proprietor, George William Lukwago, who as of April 1997 still held Plot 454. The respondent gave inconsistent accounts of how he acquired the plots and produced no admitted documentary proof of purchase or exchange.

Issues

  1. Whether the trial judge wrongly shifted the burden of proof onto the appellants.
  2. Whether the trial judge wrongly applied the law of limitation where fraud had been specifically pleaded and proved.
  3. Whether the trial judge misrepresented the evidence of the Registrar of Titles (D.W.3) and failed to properly evaluate the evidence on whether the respondent fraudulently amalgamated the plots.
  4. Whether the respondent was the lawful owner of the plots, having lawfully amalgamated them.
  5. Whether the trial judge erred by failing to visit the locus in quo.

Orders

  • The amalgamation by the respondent of land comprised in Kyaggwe Block 109, Plots 398, 454 and 469 at Gwafu, Seeta, Mukono District, to form Block 109, Plot 2125, was fraudulent and void ab initio.
  • The Commissioner Land Registration to re-instate the name of George William Lukwago on the certificate of title for land now comprised in Kyaggwe Block 109, Plot 2125, as registered proprietor.
  • Land now comprised in Kyaggwe Block 109, Plot 2125 at Gwafu, Seeta, Mukono District, forms part of the estate of the late Lukwago George William, administered by the 1st and 2nd appellants.
  • Costs of the appeal and of the lower court, including costs of the 1st and 2nd appellants' counter-claim, awarded to the appellants.

Key headnotes

Evidence — Burden of Proof — Ownership and Possession under s.110 Evidence Act
Where a person is shown to be in possession of property, the burden of proving that he is not the owner lies on the party who affirms that he is not the owner; once registered proprietorship is admitted, the burden shifts to the party alleging fraudulent acquisition to prove it.
Evidence — Standard of Proof — Fraud in Civil Proceedings
Allegations of fraud in a civil matter must be strictly proved to a standard higher than the ordinary balance of probabilities, though not as high as proof beyond reasonable doubt.
Limitation — Recovery of Land — Fraud Exception under s.25 Limitation Act
Where an action or counter-claim is based on fraud and the particulars of fraud are specifically pleaded, time under the Limitation Act does not begin to run until the fraud is discovered or could with reasonable diligence have been discovered, and the limitation bar does not apply.
Registration of Titles — Conclusiveness of Certificate — Fraud Vitiates Title
A certificate of title is conclusive evidence of ownership except in the case of fraud; any registration, entry or cancellation procured by fraud is void against parties or privies to the fraud, and fraud unravels everything.
Evidence — Documents — Marking for Identification versus Admission as Exhibit
A document merely marked for identification but not tendered and admitted as an exhibit does not form part of the record and cannot be used by the court in reaching its decision.
Civil Procedure — Locus in Quo — Discretionary Nature of Inspection
Visiting the locus in quo is desirable but not mandatory; it is conducted at the court's discretion to check evidence already given, and is unnecessary where the dispute concerns ownership rather than boundaries and the parties have consented not to visit.

Legislation cited (17)

  • Evidence Act Cap. 8 s.101
  • Evidence Act Cap. 8 s.102
  • Evidence Act Cap. 8 s.103
  • Evidence Act Cap. 8 s.106
  • Evidence Act Cap. 8 s.110
  • Limitation Act Cap. 290 s.5
  • Limitation Act Cap. 290 s.6(2)
  • Limitation Act Cap. 290 s.20
  • Limitation Act Cap. 290 s.25
  • Registration of Titles Act Cap. 240 s.59
  • Registration of Titles Act Cap. 240 s.64(1)
  • Registration of Titles Act Cap. 240 s.76
  • Registration of Titles Act s.184
  • Civil Procedure Rules SI 71-1 Order 7 rule 6
  • Civil Procedure Rules SI 71-1 Order 7 rule 11(d)
  • Civil Procedure Rules SI 71-1 Order 18 rule 14
  • Judicature (Court of Appeal Rules) Directions SI 13-10 rule 30(1)(a)

Cases cited (20)

  • Fr. Narsensio Begumisa and 3 Others v Eric Kibebaga (Supreme Court Civil Appeal No. 17 of 2002)
  • JK Patel v Spear Motors Ltd (Supreme Court Civil Appeal No. 4 of 1991)
  • Kampala Bottlers Ltd v Damanico (U) Ltd (Civil Appeal No. 22 of 1992)
  • Miller v. Minister of Pensions [1947] ALL ER 372
  • Takiya Kaswahili & Anor v Kajungu Denis (Court of Appeal Civil Appeal No. 85 of 2011)
  • Ratilal Gordhanbhai Patel v. Laiji Makanji [1957] EA 314
  • Fam International Ltd & Anor v Muhammed Hamid (Civil Appeal No. 16 of 1993)
  • Birkett v. James (1977) 2 All ER 801
  • Donovan v. Gwentoys Ltd (1990) 1 All ER 1018
  • Iga v. Makerere University [1972] EA 65
  • Lazarus Estates Ltd v, Beasley (1956) 1 QB 702
  • Fredrick Zaabwe v Orient Bank Ltd & Others (Civil Appeal No. 4 of 2005)
  • Edward Musisi v. Grindlays Bank (U) Ltd & 2 Ors (1983) HCB 41
  • Nabwire Jane v Nanteza Irene (Civil Appeal No. 133 of 2022)
  • Michael Hausa Vs The State (1994) 7-8 SCNJ 144
  • Kenneth Nyaga Mwige Vs Kiguta & 2 Ors C.A.C.A No. 140/2008 [2015] 9KLR
  • Odongo Ochama Hussein v Abdul Rajab (Civil Appeal No. 119 of 2018)
  • James Nsibambi v. Lovinsa Nankya [1980] HCB 81
  • David Acar and 3 Others v. Alfred Acar-Aliro [1982] HCB 60
  • William Mukasa v. Uganda [1964] EA 598
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.