Wakilii

Kabuubi & Another v Kashaya & 3 others (Civil Suit 385 of 2020)

High Court · [2024] UGCOMMC 18 · 2024 Judgment for Plaintiffs AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for cancellation of fraudulent land transactions
Decision
Judgment entered in favour of the plaintiffs with orders for cancellation of fraudulent title, restoration to rightful administrator, annulment of fraudulent grant, and award of damages with costs

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court Commercial Division held that the 1st defendant fraudulently acquired registered title to land at Kisugu where the 2nd defendant had fraudulently obtained letters of administration by misrepresenting the deceased's name, date and place of death, and the 1st defendant failed to exercise proper due diligence despite having notice of the true ownership through occupants on the land. The court ordered cancellation of the fraudulent title, restoration of the estate to the rightful administrator, annulment of the fraudulent grant of administration, and awarded nominal general damages of UGX 15,000,000 for 15 years of wrongful deprivation.

Outcome

Judgment entered in favour of the plaintiffs with orders for cancellation of fraudulent title, restoration to rightful administrator, annulment of fraudulent grant, and award of damages with costs

Facts

The late Paulo Lwanga Ssebugwawo died testate in 1985 as registered proprietor of land at Kisugu, Kampala (Kyadondo Block 244 Plot 501). In 2004 his son and estate administrator obtained a grant of probate. In 2007 the 2nd defendant fraudulently obtained letters of administration to the same estate by misrepresenting the deceased's name as Sebutemba Lwanga Paul, his date of death as 22 November 2004 (19 years later than the actual death), and his place of residence. On that basis the 2nd defendant caused transmission of the land into his name and sold it to the 1st defendant in June 2007 for UGX 18,000,000. The 1st defendant mortgaged the land to the 3rd defendant bank in 2009. The land had been occupied by long-term occupants since the 1960s who knew the owner was Paulo Lwanga of Masaka. The plaintiffs discovered the fraud in 2004 when attempting to transmit the land under the lawful grant of probate.

Issues

  1. Whether the 1st defendant acquired the land fraudulently.
  2. Whether the 1st defendant fraudulently mortgaged the title deed to the 3rd defendant.
  3. Whether the plaintiffs are entitled to the remedies sought.

Orders

  • Declaration that the 1st defendant fraudulently acquired the land comprised in Kyadondo Block 244 Plot 501 situated at Kisugu, Kampala.
  • Declaration that the 1st defendant fraudulently mortgaged the title deed to the land comprised in Kyadondo Block 244 Plot 501 situated at Kisugu, Kampala.
  • Order directing the 4th defendant to cancel the 1st defendant's registration as proprietor of Kyadondo Block 244 Plot 501.
  • Order directing the 4th defendant to register the land in the name of the 1st plaintiff as executor of the estate of the late Paulo Lwanga on the basis of the grant of probate dated 6th July 2004.
  • Order of annulment of the grant of letters of administration issued to the 2nd defendant on 4th June 2007 in respect of the estate of the late Sebutemba Lwanga Paul.
  • Award of general damages of UGX 15,000,000.
  • Interest on general damages at 6% per annum from the date of judgment until payment in full.
  • Judgment by consent between the plaintiffs and 3rd defendant by which the 3rd defendant is to vacate the mortgage registered on 5th May 2009 and the further charge of 12th December 2014, and to hand over the special certificate of title free from all encumbrances within 30 days.
  • Costs of the suit to the plaintiffs.

Rules and key headnotes

Land Transactions — Fraud — Duties of Prospective Purchasers — Due Diligence Required
Prospective purchasers of registered land have two primary concerns: to establish whether the vendor has the right to sell the land in question and secondly, whether there are any third-party rights to the land which may interfere with their intended use of the land. To avoid dealing with factious persons and impostors, it is the duty of the purchaser to ascertain the existence and identity of the registered proprietor and the genuineness of the instrument signed by him.
Bona Fide Purchaser — Standard Required — Due Diligence and Ordinary Precautions
Bona fides does not simply mean absence of fraud, deceit or dishonesty; it also requires acting honestly, reasonably or fairly, and this includes taking ordinary precautions that ought to be taken. This creates a duty of due diligence which involves a search of title at the Land Registry and a physical inspection of the land. An element of carelessness and negligence in either process negates bona fides.
Fraud — Constructive Notice — Wilful Abstention from Inquiry
Constructive notice is the knowledge which the courts impute to a person upon presumption so strong of the existence of the knowledge that it cannot be allowed to be rebutted, either from his knowing something which ought to have put him on further enquiry or from wilfully abstaining from inquiry to avoid notice. When a person wilfully abstains from inquiry to avoid notice, such person cannot claim to have acted in good faith.
Registration of Titles — Indefeasibility — Fraud Exception — Bringing Fraud Home to Registered Proprietor
Under the Torrens system of land registration, an owner of interest in land which was originally obtained from the rightful owner through fraud still obtains an indefeasible interest in that title if they were unaware of the fraud. The fraud exception will only apply if the fraud can be brought home to the current registered proprietor or his or her agent. Fraud must be brought home to the person whose title is impeached or to his or her agents.
Succession — Grant of Administration — Revocation — Fraudulent Grant
There can only be one valid grant in respect of any estate, which has to be revoked first before another is issued. Under section 234(2)(b) and (c) of The Succession Act, the grant of letters of administration may be revoked or annulled for just cause, which includes the fact that the grant was obtained fraudulently by making a false suggestion, or by concealing from the court something material to the case, or where the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant.
General Damages — Loss of Use of Land — Nominal Damages — Proof Required
Where a plaintiff has not proved any actual or specific loss or injury as a result of the defendant's wrongful deprivation of land, and there is no evidence to show that the plaintiff has ever derived benefit from possession or put the land to economic use, the absence of a basis for reasonably ascertaining the monetary value of the lost use of land justifies the award of nominal damages only in vindication of the plaintiff's violated property rights rather than substantial general damages.

Legislation cited (8)

Cases cited (26)

  • Sebuliba v Cooperative Bank Limited [1987] HCB 130
  • M Kibalya v Kibalya [1994-95] HCB 80
  • Kampala Bottlers Limited v Damanico Limited (Supreme Court Civil Appeal No. 22 of 1992)
  • Sejjaaka Nalima v Rebecca Musoke (Supreme Court Civil Appeal No. 2 of 1985)
  • Uganda Posts and Telecommunications v A K P M Lutaaya (Supreme Court Civil Appeal No. 36 of 1995)
  • Fredrick J K Zaabwe v Orient Bank and 5 Others (Supreme Court Civil Appeal No. 4 of 2006)
  • Gibbs v Messer [1891] AC 248
  • Williams and Glyn's Bank Ltd v Boland [1981] AC 487
  • Waimiha Sawmilling v Waione Timber Co [1926] AC 101
  • Mayambala George Gilbert Kigozi v Sentamu Joseph and Another [1987] HCB 68
  • Assets Company Ltd v Mere Roihi [1905] AC 176
  • Sir John Bageire v Ausi Matovu (Court of Appeal Civil Appeal No. 7 of 1996)
  • The Zamora [1921] AC
  • Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378
  • English and Scottish Mercantile Investment Co v Brunton [1982] 2 QB 700
  • Khamis Bin Salim Bin Khamis El Sheksi v Mohamed Ismail Khoja [1958] 1 EA 92
  • Frazer v Walker [1967] 1 AC 569
  • Olinda De Souza Figueiredo v Kassamali Nanji [1962] 1 EA 756
  • Eccon Construction and Engineering Ltd v Giro Commercial Bank Ltd and Another [2003] 2 EA 426
  • Grace Manjeri Nafula v Brig Gen Elly Kayanja and Another (High Court Civil Suit No. 136 of 2011)
  • Lwanga Andrea v The Registrar of Title [1980] HCB 24
  • Nandyose Elizabeth v R Kyogaba [1971] HCB 13
  • Mugerwa John Bosco and Another v Mss Xsabo Power Ltd (High Court Misc Application No. 273 of 2018)
  • Doreen Otto Aya and Four Others v Okwera William (High Court Civil Appeal No. 36 of 2013)
  • Macmillan v Bishopsgate Investment Trust (No 3) [1995] 1 WLR 978
  • Baden v Societe Generale pour Favoriser le Developpement du Commerce et de l'Industrie en France SA [1993] 1 WLR 509

Full judgment

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Kabuubi & Another v Kashaya & 3 others (Civil Suit 385 of 2020) [2024] UGCommC 18 (25 January 2024)
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.