Kasifa Namusisi and Ors v Francis M.K. Ntabaazi [2006] UGSC 1

Supreme Court · 2006 Appeal Allowed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Second civil appeal from a Court of Appeal decision that reversed a High Court judgment in a dispute over whether land transactions were sales or loans

Decision

Appeal allowed; trial judge's orders restored with modifications, declaring the appellants entitled to the suit properties and directing their retransfer

The full judgment

Read the complete, verbatim text of this judgment.

Cited — treatment unverified cited in 2 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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

Allowing the appeal (Kanyeihamba JSC and Oder JSC dissenting), the Supreme Court held that the Court of Appeal erred in equating consideration with performance: consideration is assessed at formation and courts do not inquire into its sufficiency. There was consideration disclosed on the face of the sale agreements, and the respondent's own pleadings and evidence admitted receiving payment. As the respondent transferred and registered the land in the deceased's name and never pleaded or proved fraud, the certificates of title were conclusive evidence of ownership and could not be impeached. The Moneylenders Act did not apply, as it was not proved the deceased was an unlicensed moneylender and any such transaction was exempt under section 22(1)(c). The trial judge's orders were restored with modifications.

Facts

By 1980 the respondent, Dr. Ntabaazi, owned three plots at Ndeeba (Kibuga Block 16 plots 654, 655 and 692) on which he had buildings and which secured bank loans. On 13 November 1980 he executed a sale agreement (exh. P1) transferring plots 654 and 692 to a company managed by the late Sulaiti Jaggwe for shs 4,500,000, and on 6 May 1981 a second sale agreement (exh. P2) for plot 655 for shs 940,000. The respondent signed transfer forms and the plots were registered in Jaggwe's name; the certificates of title were redeemed from the banks. Jaggwe took possession but disappeared within weeks. After obtaining letters of administration over Jaggwe's estate, the appellants sued when the respondent claimed ownership and collected rent. The respondent contended the transactions were loans secured by deposit of title, not sales, and that he was repaying Jaggwe. The trial judge found them to be sales and disbelieved the respondent; the Court of Appeal reversed, holding no consideration was proved.

Issues

Whether the Court of Appeal misdirected itself on the legal nature of consideration and wrongly equated consideration with performance of the contract.
Whether the sale agreements for the suit properties were supported by consideration.
Whether parol evidence sought to be introduced to show the transactions were loans rather than sales was admissible under sections 90 and 91 of the Evidence Act, and whether expunged evidence could be relied upon on appeal.
Whether the Court of Appeal was entitled to go behind the fact of registration of title where fraud was not pleaded or proved.
Whether the transactions were rendered unenforceable by the Moneylenders Act.

Orders

Appeal allowed with costs here and in the courts below.
Judgment and orders of the Court of Appeal set aside.
Notice for affirming the decision of the Court of Appeal dismissed with costs.
Declaration granted that the appellants are entitled to the suit properties.
Registrar of Titles directed to retransfer the suit properties into the appellants' names.
Permanent injunction granted restraining the respondent and his servants or agents from interfering with the suit properties.
Respondent to pay the appellants shs 480,000 as money had and received as rent, with interest at 10% from the date of filing the suit until payment in full.
Award of shs 1,000,000 general damages upheld, with interest at 8% per annum from 5 June 1997 until payment in full.

Key headnotes

Contract Law — Consideration — Distinction from Performance and Sufficiency

Consideration is crucial at the time a contract is formed and its sufficiency is not the business of the courts; consideration must not be equated with performance of the contractual obligations, which are distinct doctrines.

Land & Property — Registration of Titles — Conclusiveness and Impeachment of Certificate

A certificate of title is conclusive evidence of ownership and a court may only go behind registration on grounds such as fraud, which must be specifically pleaded and strictly proved by the party alleging it.

Evidence — Parol Evidence Rule — Sections 90 and 91 Evidence Act

Where the terms of a contract have been reduced to a written document, no oral evidence is admissible between the parties to prove, contradict, vary, add to or subtract from those written terms.

Evidence — Expunged Evidence — Effect on the Record

Evidence that has been expunged ceases to be part of the record for the purpose of deciding the case and a court cannot take it into account, even though it may physically remain in the record of appeal.

Civil Procedure — Pleadings — Departure from Pleadings

A party who gives evidence at trial that departs from and contradicts his own pleadings may properly be found to be untruthful, and a fact not specifically denied in the pleadings operates as an admission.

Statutory Interpretation — Moneylenders Act — Exemption Under Section 22(1)(c)

A moneylending transaction in which the security for repayment is effected by a legal or equitable mortgage upon immovable property is exempt from the Moneylenders Act, and the burden of proving that a party was carrying on business as an unlicensed moneylender lies on the party so alleging.

Evidence — Admissibility — Statement of Deceased Person Under Section 30(b) Evidence Act

A written statement of a relevant fact made in the ordinary course of business or in the discharge of professional duty by a person who is dead is itself a relevant fact and is admissible in evidence.

Legislation cited (18)

Evidence Act s.90
Evidence Act s.91
Evidence Act s.30(b)
Registration of Titles Act s.56
Registration of Titles Act s.59
Registration of Titles Act s.91
Registration of Titles Act s.92
Registration of Titles Act s.176
Registration of Titles Act s.184
Moneylenders Act s.2
Moneylenders Act s.3
Moneylenders Act s.18
Moneylenders Act s.21(1)(c)
Moneylenders Act s.22(1)(c)
Civil Procedure Rules O.6 r.10
Civil Procedure Rules O.16 r.9
Rules of the Supreme Court r.82
Rules of the Supreme Court r.93

Cases cited (20)

Fenekasi Semakula Vs. E. S.M.S. Mulondo (1985) HCB 29
General Industries v Non-Performing Assets Recovery Trust (Civil Appeal No. 5 of 1998)
Libyan Arab Uganda Bank for Foreign Trade Vs Vassiliadis (1987) HCB 32
Bogere Moses & Another v Uganda (Criminal Appeal No. 1 of 1997)
Muluta v Katama (Civil Appeal No. 11 of 1999)
Qadasi Vs Qadasi (1963) EA 142
Shiv Construction Co.Ltd.,Vs Endesha Enterprises Ltd (1999)EA 329(S Ct)
G.M. Combine (U) Ltd. Vs. A.K. Detergents & others (1999) EA 84
Chapell and Co. Vs Nestle Ltd. (1960) AC 87
Jiwan Vs Gohil (1948) 15 EACA page 36
R.G.Patel Vs Lalji Makaiji (1957) EA 314
Dhanji Ramiji Vs Malde Timba (1970) EA 422
Biteremo v Munyanda Situma (Civil Appeal No. 15 of 1991)
Commissioner of Customs Vs Panachand (1961) EA. 303 at P.307
Coast Brick Tile Vs. P. Raichand (1966)E.A.154
S.N.Shah Vs. C.M.Patel (1961) E.A 397
Buganda Timber Co.Ltd. Vs. Mulji Kankji Metha (1961) E.A 477
D.Jakana Vs. C. Senkaali (HCCS No.491 of 1984) (1988-1990) HCB 167
Hajji Musa Sebirumbi v Uganda (Criminal Appeal No. 10 of 1989)
Re Duke of Malborough, Davis Vs Whitehead, (1894) 2 CH 133

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.