Wakilii

Khalfan and Others v Registrar of Titles and Others (C.C. 26-1932 (Mombasa).)

East African Court of Appeal · [1933] EACA 6 · 1933 Judgment for Plaintiffs — Rectification Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for declaration and rectification of the Register of Titles
Decision
Register of Titles rectified; fraudulent certificate cancelled; new certificate to be issued to trustees of the wakf

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

A certificate of ownership obtained through fraud and concealment of a wakf affecting the property is not indefeasible, even where the property has been subsequently charged to secure a loan made in good faith. The remedy of the trustees of the wakf is not restricted to damages under section 24 of the Registration of Titles Ordinance. The trustees are entitled to rectification of the Register of Titles by deletion of the fraudulent certificate and charges, and to a new certificate issued in their favour subject to the trusts of the wakf.

Outcome

Register of Titles rectified; fraudulent certificate cancelled; new certificate to be issued to trustees of the wakf

Facts

In 1899, Mwana Iki, an Arab woman, dedicated her house and land in Mombasa as a wakf for the benefit of her son Khamis bin Khalfan and his descendants, appointing Khamis as the first trustee. In 1911, Khamis applied to the Recorder of Titles for a certificate of ownership. His application was written in Arabic and disclosed the wakf, but the English translation was fraudulently altered to state that he had inherited the property from his mother, with no reference to the wakf. In 1922, the Recorder of Titles, relying on the false translation, adjudged Khamis to be the absolute owner. In 1923, a certificate of ownership was issued to Khamis as absolute owner and registered. Khamis subsequently borrowed money from the second defendant and executed a charge over the property. The second defendant relied on the certificate and had no knowledge of the wakf. The charge was registered. Khamis defaulted, and in 1930 the second defendant obtained judgment. In 1931, the property was sold by public auction and the second defendant bought it. The beneficiaries filed a caveat preventing registration of the conveyance and sued for rectification of the Register of Titles.

Issues

  1. Whether a certificate of ownership obtained through fraud and concealment of a wakf is indefeasible.
  2. Whether the remedy of the trustees of the wakf is restricted to an action for damages under section 24 of the Registration of Titles Ordinance.
  3. Whether the trustees are entitled to have the Register of Titles rectified by deletion of the fraudulent certificate and insertion of their title as trustees of the wakf.

Orders

  • Declaration granted that Khamis bin Khalfan was a trustee for the issue of Mwana Iki and that all acts by which he purported to charge the property were illegal and void.
  • Register of Titles to be amended by cancellation of the certificate of ownership issued to Khamis bin Khalfan on 30 August 1923.
  • New certificate of ownership to be issued in the name of the new trustees appointed by order of the Court on 6 August 1932 as trustees of the wakf of Mwana Iki, upon the terms and conditions of that wakf.
  • Second defendant ordered to deliver the certificate of title to the Registrar forthwith.
  • Plaintiffs' costs to be paid by the first defendant.
  • Costs of the second defendant to be paid by the first defendant.
  • No order as to costs of the third defendant.
  • Fees allowed on higher scale.
  • Costs of copies of proceedings allowed.
  • Special fee for instructions allowed to plaintiffs at Sh. 2,000.

Rules and key headnotes

Registration of Titles — Indefeasibility of Grants — Certificates Obtained by Fraud
A certificate of ownership obtained from the Recorder of Titles through the concealment of a wakf affecting the property and a fraudulent representation of absolute ownership is not indefeasible, even where the property has been subsequently charged to secure a loan made in good faith to the apparent owner.
Wakf — Trustees' Remedies — Rectification of Register
The remedy of the trustees of a wakf whose property has been fraudulently registered in the name of a trustee as absolute owner is not restricted to an action for damages under section 24 of the Registration of Titles Ordinance. The trustees are entitled to have the Register of Titles rectified by the deletion of the fraudulent certificate and the insertion of their title as trustees of the wakf.
Registration of Titles — Registrar's Powers — Rectification for Fraud
Where a certificate of ownership has been obtained by fraud, the Registrar of Titles has power under sections 59 and 60 of the Registration of Titles Ordinance to summon the holder to deliver up the certificate for correction, and the Court may direct the Registrar to cancel or correct the certificate and to substitute and issue such certificate as the circumstances require.
Registration of Titles Ordinance — Section 23 — Indefeasibility Subject to Fraud
Section 23 of the Registration of Titles Ordinance, which provides that a certificate of title is conclusive evidence of ownership, is subject to challenge on the ground of fraud to which the registered proprietor is proved to be a party. Where a certificate has been obtained by a crime, particularly forgery, such certificate and the registration of it may be attacked and, upon proof of the crime, cancelled.
Registration of Titles — Original Certificate vs. Subsequent Transfer — Distinction
If a bona fide transferee's registration may be attacked under certain circumstances, so much the more may be the certificate issued on an original application fraudulently made. However, there is no material distinction to be drawn between the original certified owner and a subsequent certified owner on transfer for the purposes of indefeasibility.

Legislation cited (8)

  • Registration of Titles Ordinance s.22
  • Registration of Titles Ordinance s.23
  • Registration of Titles Ordinance s.24
  • Registration of Titles Ordinance s.58
  • Registration of Titles Ordinance s.59
  • Registration of Titles Ordinance s.60
  • Registration of Titles Ordinance s.61
  • Registration of Titles Ordinance s.62

Cases cited (5)

  • Suleiman Virji v Abdurehman (E.A.L.R. Vol. IX, p. 167)
  • Messer v Gibbs [1891] AC 248
  • Assets Co v Mere Roihi [1905] AC 176
  • Mwana Arafa and Others v. Tambaki, action 110 of 1930 (unreported)
  • Reference by the Registrar of Titles in the matter of the property of Kassanbhai Suleman Virji, deceased, File No. 205 (unreported)

Full judgment

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Khalfan and Others v Registrar of Titles and Others (C.C. 26-1932 (Mombasa).) [1933] EACA 6 (1 January 1933)
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.