Wakilii

J.W.R Kazoora v M.L.S Rukuba (Civil Appeal 13 of 1992)

Supreme Court · [1993] UGSC 2 · 1993 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Civil appeal from a High Court judgment dismissing a suit claiming an interest in registered land
Decision
Appeal dismissed; respondent confirmed as validly registered proprietor with registration deemed effected on 6th May 1988

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Treatment recorded in citing cases followed in 2 · applied in 1 Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

The Supreme Court dismissed the appeal. The sale was not vitiated by fundamental mistake, since the appellant adduced no evidence that he had ever bought the suit property. Although the appellant's caveat lapsed on the wrong date in the trial judge's reasoning, it had in fact lapsed because the appellant failed to obtain a court order extending it within 60 days of being served the notice to caveator. Fraud could not be relied on because it was neither pleaded nor proved. There is no lis pendens rule in Uganda, and the appellant could not lodge a second caveat protecting the same interest. The respondent, being the first to register and not shown to be fraudulent, held the better title.

Facts

The appellant lodged a caveat in November 1986 over Mailo land at Makindye, claiming an equitable interest under an alleged verbal agreement of sale with the registered proprietor, the late Lubega. After Lubega's death, his son Masengere obtained letters of administration and was registered as proprietor. Masengere agreed to sell the property to the respondent for shs.2,500,000. Through a search, the respondent learned of the appellant's caveat before paying, but proceeded; Masengere executed the transfer in September 1987 having been told the family knew of no claim by the appellant. A notice to caveator issued under the Registration of Titles Act was posted on 26th October 1987 and collected by the appellant's advocates on 16th December 1987. The appellant's application to extend the caveat was filed only in April 1988, after the caveat had lapsed. The transfer was recorded against several inconsistent dates, and the appellant's later second caveat was cancelled. The appellant sued to invalidate the respondent's title; the High Court dismissed the suit.

Issues

  1. Whether the transfer executed by the administrator in favour of the respondent was vitiated by a fundamental mistake of fact rendering it void ab initio.
  2. Whether the respondent, who knew of the appellant's caveat, was a bona fide purchaser for value without notice.
  3. When the appellant was served with the notice to caveator under the Registration of Titles Act and consequently when his caveat lapsed.
  4. Whether the registration of the respondent's transfer was procured by fraud, where fraud was not pleaded in the suit.
  5. Whether a lis pendens rule prevented registration of the transfer while the suit was pending, and whether the appellant could lodge a second caveat to protect a chose in action.

Orders

  • Appeal dismissed with costs to the respondent.
  • Under section 185 of the Registration of Titles Act, the Registrar of Titles to cancel the purported registration of the transfer in favour of the respondent dated 12th January 1988 and substitute an entry deemed registered on 6th May 1988.

Key headnotes

Registration of Titles — Caveats — Lapse on failure to obtain extension within statutory period
A caveat lodged against a proprietor lapses on the expiration of sixty days after service of a notice to caveator unless the caveator obtains a court order extending it within that period; once lapsed, the Registrar is bound to remove it on his own motion and registration of the dealing may proceed.
Registration of Titles — Service of notice to caveator — Date service is effected
Service of a notice to caveator sent by registered post is effected when the letter is delivered in the ordinary course of post, and the sixty-day period within which the caveat may be extended runs from the date of actual service rather than the date of posting.
Pleadings — Fraud — Requirement to specifically plead and strictly prove
A party relying on fraud must specifically plead it with particulars and prove it strictly to a standard higher than mere probability; fraud not pleaded in the suit cannot be raised and argued for the first time on appeal.
Mistake — Fundamental mistake of fact — Evidential foundation required
A sale cannot be held void ab initio for fundamental mistake of fact where the party alleging the mistake adduces no evidence establishing the prior transaction said to give rise to it.
Registration of Titles — Lis pendens — Absence of rule barring dealings during pending suit
There is no lis pendens rule in Uganda preventing registration of dealings in land that is the subject of a pending suit; a purchaser must protect his interest by a valid caveat or a court injunction.
Registration of Titles — Second caveat — Prohibition on renewal of same interest
A caveator cannot lodge a second caveat protecting the same estate or interest as a lapsed first caveat, even where the second is expressed to protect a chose in action arising from a pending suit, as this amounts to renewal prohibited by section 149(3) of the Registration of Titles Act.
Registration of Titles — Priority — First to register obtains better title absent fraud
As between a prior unregistered purchaser and a later purchaser who is first to register, the first to register obtains the better title provided no fraud is shown in the registration.

Legislation cited (12)

  • Registration of Titles Act s.148
  • Registration of Titles Act s.149(2)
  • Registration of Titles Act s.149(3)
  • Registration of Titles Act s.150
  • Registration of Titles Act s.153A
  • Registration of Titles Act s.184
  • Registration of Titles Act s.185
  • Registration of Titles Act s.210A
  • Civil Procedure Rules Order 18 rule 7
  • Civil Procedure Rules Order 6 rule 6
  • Civil Procedure Act (Cap.65) s.101
  • Interpretation Decree 1976 s.35

Cases cited (11)

  • Bell v Lever Brothers Ltd [1932] AC 161
  • Wallingford v Mutual Society (1880) 5 App Cas 685
  • Lawrence v Lord Norreys (1890) 15 App Cas 210
  • Davy v Garrett (1878) 7 Ch D 473
  • B.E.A. Timber Co v Inder Singh Gill [1959] EA 463
  • Ratilal G Patel v Lalji Makanji [1957] EA 314
  • Vidyarthi v Ram Rakha [1957] EA 527
  • Wilson v Moir [1916] NZLR 480
  • Kington v Magee [1902] 2 KB 427
  • Kristofa Tokana Kamanza, 7 U.L.R., 68
  • Alfred Tajar v Uganda (Criminal Appeal No. 167 of 1969)
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.