Wakilii

Grace Karuhanga Butare v Ssanyu Mukasa Kyazike (Civil Application No.652 of 2007)

High Court · [2009] UGHC 96 · 2009 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from a judgment of Mukono District Land Tribunal cancelling the appellant's land title
Decision
Appellant's title reinstated; cancellation order set aside

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that fraud must be strictly pleaded and proved before a registered proprietor's title can be cancelled under the Registration of Titles Act. The respondent failed to establish any fraudulent conduct by the appellant or that the appellant knew of or took advantage of any fraudulent act by another party. A certificate of title is conclusive evidence under sections 55 and 136 of the Registration of Titles Act and cannot be impeached without proof of fraud. Even in exparte proceedings for formal proof, the claimant must prove all elements of the claim on the balance of probabilities. Appeal allowed; title cancellation order vacated.

Outcome

Appellant's title reinstated; cancellation order set aside

Facts

The appellant was the registered proprietor of land comprised in Kyaggwe Block 188 Plot 9 at Nakapinyi. The respondent filed a claim in Mukono District Land Tribunal seeking cancellation of the appellant's title on grounds of fraud, alleging that one Lameck Njuki fraudulently obtained succession certificate and transferred the land. The Tribunal heard the matter exparte after the appellant made two unsuccessful attempts to have it heard interparte, gave judgment in the respondent's favour, and ordered cancellation of the appellant's title. The respondent claimed equitable interest as administrator and granddaughter of the late Bulasio Musoke, and alleged the land originally belonged to her grandfather. The appellant appealed to the High Court.

Issues

  1. Whether the Tribunal erred in law when it heard the matter for formal proof.
  2. Whether the Tribunal erred in law and fact when it ordered cancellation of the Appellant's title when fraud had not been strictly pleaded and proved against her.
  3. Whether the High Court should admit additional evidence on appeal.

Orders

  • Appeal allowed with costs.
  • Cross-appeal dismissed.
  • Order cancelling the Applicant's title vacated.
  • Applicant to be reinstated on the title.
  • Applicant entitled to costs in both the lower court and the High Court.

Rules and key headnotes

Land & Property — Title Impeachment — Certificate of Title as Conclusive Evidence — Exceptions for Fraud
A certificate of title is conclusive evidence of title under sections 55 and 136 of the Registration of Titles Act and cannot be impeached except for fraud which must be strictly pleaded and proved.
Evidence — Burden of Proof — Fraud — Standard of Proof Required
Fraud must be strictly pleaded and proved. A transferee must be guilty of some fraudulent act or must have known of such act by somebody else and taken advantage of it. Mere allegations without proof of the registered proprietor's participation in or knowledge of fraudulent conduct are insufficient to impeach title.
Civil Procedure — Formal Proof — Burden of Proof in Exparte Proceedings
Even where a matter proceeds for formal proof in the absence of the defendant, the plaintiff must still prove all elements of the claim on which the burden of proof lies in order to establish the claim on the balance of probabilities. Formal proof is not a matter of course but requires laying relevant evidence before the court in line with the cause of action as pleaded.
Civil Procedure — Appellate Practice — Additional Evidence — Order 43 Rule 22 CPR
Order 43 rule 22 of the Civil Procedure Rules permits additional evidence on appeal only where the lower court refused to admit evidence which ought to have been admitted, or where the appellate court requires a document or witness to enable it to pronounce judgment. An application with sufficient reasons is required, and exceptional circumstances must be shown. The appellate court will not permit a party represented by counsel to reassemble evidence that could and should have been led at trial.
Civil Procedure — Appellate Court Duty — First Appeal — Evaluation of Evidence
The duty of the first appellate court is to evaluate all the evidence adduced before the trial court and arrive at its own conclusion as to whether the findings can be supported. The appellate court is not bound by findings of fact of the lower court, especially where the lower court clearly failed on some points.

Legislation cited (3)

Cases cited (3)

  • Fredrick J. Zaabwe v Orient Bank and 5 Others (Supreme Court Civil Appeal No. 4 of 2006)
  • Kampala Bottlers Ltd. V Damanico (U) Ltd
  • Dave v Business Machines Ltd [1974] EA 18

Full judgment

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

Grace Karuhanga Butare v Ssanyu Mukasa Kyazike (Civil Application No.652 of 2007) [2009] UGHC 96 (17 June 2009)
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.