Wakilii

Kizito v David Kizito Kanonya and 7 Others (Civil Appeal No. 8 of 2018)

Supreme Court · [2019] UGSC 103 · 2019 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second appeal to the Supreme Court from a Court of Appeal decision that had reversed the High Court
Decision
Appeal allowed; appellant reinstated on the title as tenant in common and awarded UGX 100,000,000 general damages; claim for mesne profits declined.

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Cited — treatment unverified cited in 1 (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 allowed the appeal. It agreed the 1st respondent's failure to honour his obligation to subdivide and transfer the Katwe and Kisugu properties was a breach of contract, not fraud, since no intent not to perform existed at contracting. However, falsely declaring in the transfer form that the suit land was a gift (rather than an exchange) and that it was undeveloped, contrary to s.92(1) of the Registration of Titles Act, defrauded government of revenue and rendered the transfer void for fraud. The certificate of title reverted to the joint names of appellant and 1st respondent as tenants in common. Mesne profits were refused for lack of proof, but general damages of UGX 100,000,000 were awarded for the breach.

Facts

The appellant and the 1st respondent (her brother) were registered in 1995 as tenants in common of land at Muyenga (Block 244 Plot 5091). The appellant said they had agreed she would surrender her interest in that land to the 1st respondent in exchange for parts of his properties at Kisugu and Katwe. To effect the arrangement she signed a blank transfer form and handed it to the 1st respondent. He completed the form, declaring the transfer a gift, and in the accompanying consent form stated the land was undeveloped though two houses stood on it; he then transferred the land into the names of himself and his children (the 2nd–8th respondents). The 1st respondent never subdivided or transferred the Kisugu and Katwe properties, and stopped a tenant from paying the appellant rent on the Kisugu property. The properties at Katwe and Kisugu had since been sold to third parties.

Issues

  1. Whether the 1st respondent's actions in transferring the suit land into his names amounted to a mere breach of contract rather than fraud.
  2. Whether concealing the true consideration and the developed status of the land in the transfer and consent forms amounted to fraud.
  3. Whether the Court of Appeal erred in ordering subdivision of the Kisugu and Katwe properties that had already been sold to third parties.
  4. Whether the appellant was entitled to mesne profits and general damages.

Orders

  • Appeal allowed and the decision of the Court of Appeal set aside.
  • The registration of the respondents as proprietors of the Muyenga property declared void for fraud.
  • The Commissioner Land Registration ordered to reinstate the appellant onto the certificate of title of the suit land as a tenant in common with the 1st respondent.
  • General damages of UGX 100,000,000 awarded to the appellant.
  • Costs of the appeal and in the courts below awarded to the appellant.

Key headnotes

Contract Law — Breach versus Fraud — Intent Not to Perform
A failure to perform a contractual obligation amounts to fraud only where the intent never to perform existed at or before the contract was made; an intent not to perform formed after execution is a mere breach of contract, not fraud.
Land & Property — Transfer of Title — False Declaration of Consideration
Declaring in a transfer form that land was a gift when it was in fact given in exchange for other property, contrary to section 92(1) of the Registration of Titles Act, conceals the true consideration and, where it defrauds the government of revenue, renders the resulting title void for fraud.
Land & Property — Fraud — Standard of Proof
Fraud is a question of fact that must be strictly proved; mere suspicion or inference is insufficient and the facts constituting fraud must be clearly and conclusively established.
Damages & Quantum — Mesne Profits — Proof of Quantum
Mesne profits are profits the person in wrongful occupation actually received or might with ordinary diligence have received; a claimant must prove what the occupant earned and the rental value and period of dispossession, failing which the court cannot speculate as to quantum and will decline the award.
Damages & Quantum — General Damages for Breach of Contract — Difficulty of Assessment
The difficulty or impossibility of assessing general damages with precision does not relieve a defendant of liability or disentitle a claimant from an award; the court must attempt to assess damages, the quantum being a matter of judicial discretion.

Legislation cited (2)

  • Registration of Titles Act s.92(1)
  • Civil Procedure Act s.2(m)

Cases cited (19)

  • Yakobo M N Ssenkungu & 4 Others v Cerensio Mukasa (Civil Appeal No. 17 of 2014)
  • Kampala Bottlers Ltd v Damanico (U) Ltd (Civil Appeal No. 22 of 1992)
  • Fredrick J. K. Zaabwe v Orient Bank & 5 Ors (Civil Appeal No. 4 of 2006)
  • Gwolo Jackson vs. Uganda, High Court criminal appeal no. 0014 of 201 (Arua)
  • Senkungu v Yakobo (Civil Appeal No. 35 of 2006)
  • Samuel Kizito Mubiru & Ano v G.W. Byensiba & Ano (Civil Suit No. 513 of 1982)
  • Tradimpex (U) Ltd v Chris Serunkuma and Christine Okot (Civil Suit No. 1519 of 1999)
  • Janet Diana Cope & 4 Ors v Janet Namuli and Allan Katusiime (Civil Suit No. 33 of 2005)
  • Mudiima Issa & 5 Ors v Elly Kayanja & 2 Ors (Civil Suit No. 232 of 2009)
  • Vivo Energy (U) Ltd v Lydia Kisitu (Civil Appeal No. 7 of 2015)
  • Crown Beverages Ltd v Sendu Edward (Civil Appeal No. 1 of 2005)
  • Haji Asuman Mutekanga v Equator Growers Limited (Civil Appeal No. 7 of 1995)
  • Prehn v Royal Bank of Liverpool (1870) LR 5 Ex 92
  • Crane Bank Limited v Nipun Narottam Bhatia (Civil Appeal No. 2 of 2014)
  • Kyambadde v Mpigi District Administration (1983) HCB 44
  • Chaplin v Hicks [1911] 2 KB 786
  • Hall v Ross (1831) 3 All ER 672
  • Bovet V Waletr (1917) 62 Sol Jo 104
  • Obongo v Kisumu Municipal Council [1971] EA 91
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.