Kizza v Sempa Mbaziira and Another (Miscellaneous Application No. 144 of 2005)

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

Court found fraud proved against both respondents on a standard beyond balance of probabilities where they relied on an ex-parte judgment of 1985 that had been set aside in 1986, and the first respondent concealed that his suit against the applicant had been dismissed in 1993. Following Makula International, fraud once detected overrides all other considerations. Cancellation of land transactions set aside; applicant restored as registered proprietor.

Outcome

Fraudulent land transactions cancelled; applicant restored as registered proprietor

Facts

In 1969, the first respondent sued the applicant in HCCS 615/69 claiming land at Kijude, Kyaggwe. On 28 May 1985, Odoki J entered ex-parte judgment for the plaintiff ordering cancellation of the applicant's title and issuance of title to the first respondent's father. On 20 January 1986, Odoki J set aside the ex-parte judgment on application of defendants. On 4 October 1993, Rajasingham J dismissed the suit against the applicant on grounds of res judicata. In 1994, the first respondent attempted to have the Registrar of Titles effect the set-aside judgment; the Registrar initially complied but rescinded after being informed the judgment had been set aside. In 2001, the first respondent again moved the Registrar to effect the set-aside judgment and the Registrar complied, cancelling the applicant's title and issuing new titles to the first respondent.

Issues

1. Whether the first respondent acted fraudulently in submitting to the Registrar of Titles an ex-parte judgment that had been set aside.
2. Whether the first respondent acted fraudulently in concealing from the Registrar of Titles the existence of a later court order dismissing the suit against the applicant.
3. Whether the second respondent acted unlawfully in acting on an ex-parte decree that had been set aside.
4. Whether the court has jurisdiction to deal with the matter on application rather than through a formal suit.

Orders

• Application allowed.
• Cancellation of the applicant's Certificate of Title Kyaggwe Block 424 Plot 28 now plots 44, 45, 46 and 47 set aside.
• Issuance of Certificate of Title in the names of Thomas Binywera cancelled.
• Registration of the first respondent as registered proprietor of the suit land as administrator of the estate of Thomas Binywera cancelled.
• Subdivision of the suit land into Kyaggwe Block 424 plots 44, 45, 46 and 47 cancelled.
• First respondent ordered to surrender to the Registrar of Titles, Mukono, the Certificate(s) of Title for Kyaggwe Block 424 Plot 28 now plots 44, 45, 46 and 47 within 30 days.
• Entry of first respondent to be cancelled and applicant restored as registered proprietor.
• First respondent ordered to pay all fees requisite by Government by way of revenue and fees for affecting the orders.
• Costs of the application awarded to the applicant.

Rules and key headnotes

Legislation cited (7)

• Civil Procedure Act s.98
• Civil Procedure Rules Order 48 Rule 3
• Registration of Titles Act s.77
• Registration of Titles Act s.177
• Registration of Titles Act s.179
• Registration of Titles Act s.185
• Registration of Titles Act s.190

Cases cited (1)

• Makula International v Cardinal Emmanuel Wamala [1982] HCB 11

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