Wakilii

Kakuze v Wallia & Anor (Civil Suit No. 223 of 2011) 2017 UGHCLD 4 (2017-01-31)

High Court · [2017] UGHCLD 4 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 and declaration of ownership, with counterclaim for trespass
Decision
Land declared to belong to the estate of Mwana Isha Kahungu Kimandwa; Chief Registrar ordered to register the land in the estate's name; 1st defendant's registration cancelled

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that registration of land in the name of Sunder Kaka was procured through fraud where he was not the purchaser under a written purchase agreement but merely contributed to the purchase price with an arrangement to recoup funds through rent collection. The court found that Sunder Kaka acted fraudulently by procuring registration in his own name when the purchase agreement clearly named Mwana Isha Kahungu Kimandwa as purchaser, and by pledging the property as security when he knew it belonged to another. The suit land was declared to belong to the estate of Mwana Isha Kahungu Kimandwa.

Outcome

Land declared to belong to the estate of Mwana Isha Kahungu Kimandwa; Chief Registrar ordered to register the land in the estate's name; 1st defendant's registration cancelled

Facts

The plaintiff was a beneficiary to the estate of Mwana Isha Kahungu Kimandwa. In 1993, Mwana Isha executed a purchase agreement with Dr. E.B.S. Lumu for land comprised in Kibuga Block 12 Plot 47. Sunder Kaka, a friend of Mwana Isha, contributed to the purchase price with an arrangement to recoup his contribution through rent collection from premises on the land. Dr. Lumu handed the title and signed blank transfer forms to Sunder Kaka for transmission to Mwana Isha as purchaser. Instead, Sunder Kaka pledged the land as security for a loan from the 2nd defendant. When Kaka failed to pay, the 2nd defendant transferred the land into his own names. Later, Kaka sued the 2nd defendant in the Commercial Court and, after repaying the loan by consent judgment, had the land transferred into his own names rather than the rightful purchaser. The plaintiff sought recovery of the land for the estate of Mwana Isha. The 1st defendant, as administrator of Kaka's estate, counterclaimed for trespass.

Issues

  1. Whether the registration of the suit land in the names of Sunder Kaka was procured through fraud.
  2. Whether the late Sunder Kaka purchased the suit land from Dr. E.S.B. Lumu.
  3. What remedies are available to the parties?

Orders

  • The land comprised in Kibuga Block 12 Plot 47 at Mengo belongs to the estate of late Mwana Isha Kahungu Kimandwa.
  • The Chief Registrar of Titles is ordered to register the land comprised in Kibuga Block 12 Plot 47 land at Mengo in the names of the estate of late Mwana Isha Kahungu Kimandwa.
  • The registration of the 1st defendant on the suit land by virtue of Letters of Administration of the late Sunder Kaka is hereby cancelled.
  • The 1st defendant's counterclaim is dismissed with costs to the plaintiff.
  • The plaintiff is awarded costs of the suit.

Rules and key headnotes

Land & Property — Fraud — Registration procured through fraud — Transferee with knowledge of unregistered interest
A person who procures registration on land to defeat an unregistered interest of another person of which he is proved to have had knowledge procures that registration through fraud.
Land & Property — Fraud — Elements of fraud — Actual fraud and dishonesty
Fraud means actual fraud or some act of dishonesty, not constructive fraud. It is an intentional perversion of the truth for purposes of inducing another in reliance upon it to part with some valuable thing or to surrender a legal right.
Evidence — Documentary Evidence — Parol Evidence Rule — Written contracts
Where the terms of a contract have been reduced to the form of a document, no evidence shall be given in proof of the terms of that contract except the document itself or secondary evidence of its contents in cases where secondary evidence is admissible.
Succession & Estates — Locus Standi — Beneficiary's right to sue — Protection of estate property
A beneficiary to the estate of an intestate has locus standi to sue in his or her own name to protect the estate of the intestate without first having to obtain Letters of Administration.
Civil Procedure — Res Judicata — Raising same issue twice — Preliminary objections
A party is precluded by the doctrine of res judicata from raising the same issue again where a court has ruled on a preliminary objection and no appeal or review application was filed against that ruling.
Land & Property — Purchase agreements — Contribution to purchase price — Distinction from purchaser status
The fact that a person contributes to the purchase price of land does not automatically render that person the purchaser where a written purchase agreement identifies another person as the purchaser. A separate financial arrangement for recoupment does not constitute a purchase agreement.

Legislation cited (3)

Cases cited (12)

  • Kabwa v Babona (Supreme Court Civil Appeal No. 52 of 1995)
  • Ingall vs. Morgan [1944]1 ALL ER 97
  • Burns vs. Campbell (1952)1 KB 15
  • Caudle vs. LD Law Ltd [2008]1 WLR 1540
  • Zaabwe v Orient Bank & 5 Others (Supreme Court Civil Appeal No. 4 of 2006)
  • Kampala Bottlers Ltd v Damanico (U) Ltd (Supreme Court Civil Appeal No. 22 of 1992)
  • Waimiha Saw Milling Co. Ltd.vs. Waione Timber Co. Ltd. (1926) A.C 101
  • Assets Co. vs. Mere Roihi (1905) A.C 176
  • Uganda Revenue Authority v Mbosi (Supreme Court Civil Appeal No. 26 of 1995)
  • Katarikawe v Katwiremu & Another (Supreme Court Civil Appeal No. 2 of 1977)
  • Sejjaka v Musoke (Civil Appeal No. 12 of 1985)
  • Kashwahiri & Another v Kajungu (Court of Appeal Civil Appeal No. 85 of 2011)

Full judgment

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

Kakuze v Wallia & Anor (Civil Suit No. 223 of 2011) 2017 UGHCLD 4 (2017-01-31)
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.