Wakilii

Gatare v Parkash Kau and 2 Others (Civil Appeal 41 of 1998)

Court of Appeal · [1999] UGCA 43 · 1999 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from a High Court ruling overruling a preliminary objection
Decision
Appeal dismissed with costs to the respondents; cancellation of the appellant's title by the Registrar upheld

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal dismissed the appeal. It held that failure to serve the Notice of Appeal on the first and second respondents, as required by rule 77, rendered the appeal incompetent, although lodging the notice before leave to appeal was granted was permissible under rule 75(4). On the merits, the Court held that the Registrar of Titles acted lawfully under sections 69 and 178(a) of the Registration of Titles Act in cancelling the appellant's certificate of title, which had been obtained through an obvious mistake tainted by irregularities admitted by the appellant. The fact that the appellant was not a party to the irregularities did not entitle him to retain a tainted title.

Outcome

Appeal dismissed with costs to the respondents; cancellation of the appellant's title by the Registrar upheld

Facts

The appellant purchased Plot No. 5 Bunigo Road, Kabale, from one L.S. Kogo, who claimed to be the attorney of Parkash Kaur, the first respondent. The property was registered in the appellant's name in March 1990. The Registrar of Titles later detected that the entry was tainted with irregularities: an un-withdrawn caveat, lack of evidence of compliance with provisions governing donees of powers of attorney, and the transfer not being backed by payment of stamp duty, fees, consent to transfer, and income tax clearance, with a fake instrument number used. After notice, the appellant's advocates acknowledged the irregularities and described him as a victim of circumstances. The Registrar cancelled the appellant's title and re-instated the first respondent. A caveat was lodged by the second respondent. The appellant sued, alleging fraud and that the Registrar acted illegally, and raised a preliminary objection that the Registrar lacked power to cancel without a court order, which the High Court overruled.

Issues

  1. Whether the appeal was competent given that the Notice of Appeal was filed before leave to appeal was granted and was not served on the first and second respondents.
  2. Whether the Registrar of Titles had power under section 178(a) of the Registration of Titles Act to cancel the appellant's certificate of title without a court order.
  3. Whether the trial judge erred in deciding the merits of the case before hearing evidence.

Orders

  • Preliminary objection upheld.
  • Appeal dismissed with costs to the respondents.

Rules and key headnotes

Civil Procedure — Appeals — Notice of Appeal — Service on affected litigant as essential requirement
Service of a notice of appeal on a litigant affected by the intended appeal is an essential requirement, and failure to effect such service renders the appeal incompetent.
Civil Procedure — Appeals — Lodging Notice of Appeal before grant of leave
Where an appeal lies only with leave, it is not necessary to obtain leave before lodging the notice of appeal; a notice of appeal lodged before leave is granted is therefore not incompetent on that ground.
Civil Procedure — Appeals — Burden of proof of service of Notice of Appeal
The obligation to serve the notice of appeal rests on the intending appellant, and the onus of proving service likewise lies on the appellant, not on the respondent.
Land & Property — Registration of Titles — Power of Registrar to cancel certificate of title for obvious mistake
The Registrar of Titles has power under sections 69 and 178(a) of the Registration of Titles Act to rectify the Register Book and cancel a certificate of title without a court order where the registration resulted from an obvious mistake or where the entry is tainted with irregularities.
Land & Property — Registration of Titles — Innocence of registered proprietor does not cure tainted title
A registered proprietor cannot retain a certificate of title tainted with irregularities merely because he was not a party to those irregularities.

Legislation cited (6)

Cases cited (2)

  • Skill Consultants v Pearls Flowers Ltd (Civil Appeal No. 47 of 1996)
  • Francis Hansio Micah v Nura Walakira (Civil Appeal No. 24 of 1994)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Gatare v Parkash Kau and 2 Others (Civil Appeal 41 of 1998) [1999] UGCA 43 (30 September 1999)
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.