Wakilii

Kaddu & Ors v Segawa & 2 Ors (Civil Suit No. 418 of 1988)

High Court · [2018] UGHCLD 35 · 2018 Judgment for Plaintiff AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for recovery of land inherited under will, fraud allegations against defendants
Decision
Fraudulent title cancelled; one acre to be demarcated and registered in 3rd Plaintiff's name; damages and costs awarded

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the 3rd Plaintiff was entitled to one acre of land under his father's will but was defrauded when the 1st Defendant fraudulently transferred the entire estate to the 2nd Defendant, who then subdivided it and transferred part to the 3rd Defendant. The transfers were procured by fraud and irregularities including understating consideration to evade stamp duty, using false powers of attorney, and failing to compensate the 3rd Plaintiff. The 3rd Defendant's certificate of title was void under Registration of Titles Act s.77. The fraud exception under Limitation Act s.25 applied, defeating the limitation defence. The court cancelled the fraudulent title and ordered the Registrar to demarcate and register one acre in the 3rd Plaintiff's name.

Outcome

Fraudulent title cancelled; one acre to be demarcated and registered in 3rd Plaintiff's name; damages and costs awarded

Facts

Edward B. M. L. Baliruno died leaving a will bequeathing one acre of land from Kyadondo Block 245 Plot 63 to his son Richard Sekiyivu (3rd Plaintiff). The 1st Defendant, executor of the estate, fraudulently transferred the entire 440-acre plot to the 2nd Defendant in September 1986 without compensating the 3rd Plaintiff. The 2nd Defendant used a power of attorney with irregularities to effect the transfer, declaring it a gift to evade stamp duty though he paid UGX 100 million. Upon subdivision, the 3rd Defendant acquired plot 460 (part of the original plot 63) in February 1996, understating the purchase price as UGX 5 million though he paid UGX 25 million. The 3rd Plaintiff was never compensated for his share. Other plaintiffs settled with the 2nd Defendant, but the 3rd Plaintiff, who was ill, did not benefit from the settlement. The suit proceeded ex parte against the 3rd Defendant and effectively ex parte against the 1st and 2nd Defendants who ceased attending trial.

Issues

  1. Whether the 2nd Defendant lawfully acquired the 3rd Plaintiff's share in the property comprised in Block 245 Plot 63 Kiwuliriza.
  2. Whether the 3rd Plaintiff received consideration from the 2nd Defendant for the portion of land in issue.
  3. Whether the Plaintiff's claim is barred by limitation.
  4. Whether the 3rd Defendant's acquisition of land comprised in Block 245 Plot 460 at Kiwuliriza was tainted with fraud and illegality and should be cancelled.
  5. What remedies are available to the parties.

Orders

  • The 3rd Defendant's certificate of title for Block 245 Plot 460 Kiwuliriza declared void.
  • The Commissioner directed to cancel the certificate of title obtained by fraud by the 3rd Defendant and substitute it with the original title reflecting Block 245 Plot 63.
  • The Commissioner directed to demarcate 1 (one) acre off Block 245 Plot 63 and register it in the names of the 3rd Plaintiff Richard Sekiyivu.
  • General damages of UGX 93,600,000 awarded to the 3rd Plaintiff, to be paid jointly and severally by the Defendants.
  • General damages to attract interest at court rate from date of judgment until payment in full.
  • Costs of the suit awarded to the 3rd Plaintiff.
  • Judgment entered in favour of the 3rd Plaintiff.

Rules and key headnotes

Land & Property — Fraud — Fraudulent Transfer — Failure to Compensate Beneficiary Under Will
Where an executor fraudulently transfers estate land to a third party without compensating a beneficiary under the will, the transfer is unlawful and does not vest legal interest in the transferee, who therefore cannot pass good title to subsequent purchasers.
Land & Property — Registration of Titles — Void Certificate — Procurement by Fraud
Under Registration of Titles Act section 77, any certificate of title procured by fraud is void as against all parties or privies to the land, and the court may under section 177 direct the Commissioner to cancel such fraudulently obtained title.
Land & Property — Bona Fide Purchaser for Value — Understatement of Consideration — Effect on Status
A purchaser who deliberately understates the value of land in the transfer instrument to evade stamp duty commits fraud against the government and cannot qualify as a bona fide purchaser for value without notice, rendering the title liable to cancellation.
Civil Procedure — Limitation of Actions — Fraud Exception — Commencement of Limitation Period
Under Limitation Act section 25, where a cause of action is founded on fraud in the acquisition of land, time does not commence to run against the plaintiff until he becomes aware or could with reasonable diligence have discovered the fraud, and the plaintiff must plead the grounds of exemption from limitation under Civil Procedure Rules Order 7 rule 6.
Civil Procedure — Limitation of Actions — Revival of Suit — Adjourned Sine Die
Where a suit is filed within the limitation period and later adjourned sine die to allow settlement, a party who did not participate in the settlement and later revives the matter is not bringing a fresh action but continuing existing proceedings, and Limitation Act section 5 does not bar such continuation.
Damages & Quantum — General Damages — Assessment — Loss of Use of Land
In assessing general damages for deprivation of use of land, the court considers the value of the subject matter, economic inconvenience, and nature and extent of loss suffered, using a multiplier approach based on hypothetical rental income the plaintiff could have earned over the period of deprivation.

Legislation cited (7)

Cases cited (10)

  • F. J. K Zaabwe v Orient Bank & 5 Ors (Supreme Court Civil Appeal No. 04 of 2006)
  • Samuel Kizito Mubiru & Anor v W Byensibe & Anor (High Court Civil Suit No. 513 of 1982)
  • Mukasa Sendaula v Christine Mukalazi (1992 - 1993) HCB 179
  • Vicent Rule Opio v Attorney General (1990 - 1992) KALR 68
  • Onesiforo Bamuwayira & 2 Ors v AG (1973) HCB 87
  • John Oitamong v Mohammed Olinga (1985) HCB 86
  • Charles Acire v Myaana Engola (High Court Civil Suit No. 143 of 1993)
  • Kibimba Rice Ltd. v Umar Salim (Supreme Court Civil Appeal No. 17 of 1992)
  • Uganda Commercial Bank v Kigozi (2002) EA 305
  • Stroms v Hutchinson [1905] AC 515

Full judgment

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

Kaddu_&_Ors_v_Segawa_&_2_Ors_(Civil_Suit_No._418_of_1988)_[2018]_UGHCLD_35_(4_April_2018)
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.