Senkungu & 4 Ors v Mukasa (Civil Appeal 17 of 2014)

Supreme Court · [2017] UGSC 14 · 2017 Appeal Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Second appeal from a decision of the Court of Appeal which had reversed the High Court at Masaka in a suit for cancellation of certificate of title on the ground of fraud

Decision

Appeal dismissed; the Court of Appeal's decision cancelling the appellants' certificate of title for fraud stands

The full judgment

Read the complete, verbatim text of this judgment.

Cited — treatment unverified cited in 40 (treatment unverified) 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, upholding the cancellation of the appellants' certificate of title for fraud. Fraud need not be a false representation; it includes fraudulent conveyance schemes such as transfers without possession or for grossly inadequate consideration. The original proprietor having died in 1941 could not have transferred the land in 1978, and the 1st appellant's refusal to testify left the authenticity of the transfers unexplained, supporting an inference of fraud imputable to the other appellants. Having visited the land, found the respondent in occupation, and been told of a pending suit, the appellants had notice and were not bona fide purchasers for value without notice. The Court of Appeal did not improperly shift the burden of proof.

Facts

The respondent, holder of Letters of Administration of the estate of the late Gusite Nakaima, sought in 1986 to transfer two parcels of land at Mawogola Block 30 Plot 1 and Block 31 Plot 1 into his name. Nakaima had been registered as proprietor in 1932 and died in 1941. The respondent discovered the land had already been dealt with: in 1978 Peter Ssekasiko was registered as proprietor on an alleged transfer from Nakaima, who was by then long dead. Ssekasiko transferred to Eugene Ssonko, who in 1979 transferred to the 1st appellant, who in 1989 transferred to the other appellants as tenants in common. The transfer forms and certificates of title contained mismatched and disconnected information. The appellants had visited the land, found the respondent and his brother in occupation, and were told of a pending suit against the 1st appellant for fraudulent transfer. The 1st appellant did not testify or defend the suit in the High Court or Court of Appeal.

Issues

Whether the appellants acted fraudulently in acquiring the certificate of title to the suit land.
Whether the appellants were bona fide purchasers for value without notice of the fraud, entitled to protection under section 181 of the Registration of Titles Act.
Whether the Court of Appeal wrongly shifted the burden of proof to the appellants and failed to properly re-evaluate the evidence.

Orders

Appeal dismissed.
Costs of the appeal awarded to the respondent.

Key headnotes

Land Registration — Fraud — Meaning of fraud under the Registration of Titles Act

Fraud under the Registration of Titles Act is not confined to actual misrepresentation; it extends to fraudulent conveyance schemes effected without a false representation, such as transfers to a close relative, secret transfers, transfers of title without transfer of possession, or transfers for grossly inadequate consideration.

Land Registration — Fraud — Imputation of fraud to subsequent transferees

Fraud must be attributable to the transferee directly or by necessary implication; where a transferor's title is shown to be fraudulent and subsequent transferees took with actual notice that the land was subject to court proceedings, the fraud is imputed to them and their titles are void under section 77 of the Registration of Titles Act.

Land Registration — Bona fide purchaser for value without notice — Constructive notice

A purchaser claiming the protection of section 181 of the Registration of Titles Act must prove good faith, valuable consideration, and absence of both actual and constructive notice; a purchaser who finds another in occupation of the land, or who is told of a pending fraud suit, has notice and cannot be a bona fide purchaser for value without notice.

Burden of Proof — Fraud — Shifting evidential burden in civil proceedings

In civil proceedings the burden of proving fraud lies first on the party asserting it; once facts are adduced on a balance of probabilities pointing to fraud, the evidential burden shifts to the party with peculiar knowledge of the relevant facts under section 106 of the Evidence Act, whose failure to testify supports an inference against him.

Legislation cited (8)

Registration of Titles Act s.64(1)
Registration of Titles Act s.77
Registration of Titles Act s.92(2)
Registration of Titles Act s.181
Evidence Act s.101
Evidence Act s.102
Evidence Act s.103
Evidence Act s.106

Cases cited (7)

Fredrick J.K. Zaabwe v Orient Bank Ltd & Others (Civil Appeal No. 141 of 2006)
Kampala Bottlers Ltd v Damanico (U) Ltd (Civil Appeal No. 22 of 1992)
Imelda Ndiwawangi Nakedde vs. Rony Busuulwa Nsereko and another (1997) HCB 73
Uganda Posts & Telecommunications v A.K.P.M Lutaaya (Civil Appeal No. 36 of 1995)
Husky International Electronics, Inc vs. RitzNo. 15-145of 2016
Jones vs. Smith (1841) 1 Hore
Avect Sam vs Uganda Criminal Appeal No.2015 (SC)

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