Wakilii

Nabalanza and Another v Nabitetenankinga and Another (Civil Suit 705 of 2017)

High Court · [2023] UGHCLD 367 · 2023 Judgment for Plaintiff AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for declaration of ownership and cancellation of title following alleged fraudulent transfer
Decision
Defendant's title cancelled and suit land registered in plaintiffs' names as administrators; permanent injunction granted; general damages awarded

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the defendant fraudulently transferred land held on trust into her own name by misrepresenting herself as a purchaser when she had only power of attorney to sell and remit proceeds. The power of attorney terminated upon the death of one donor, before transfer was effected. Transfer forms violated the Illiterates Protection Act as they lacked certification that the terms were explained to illiterate donors. The court ordered cancellation of the defendant's title and registration of the plaintiffs as administrators of the deceased's estate.

Outcome

Defendant's title cancelled and suit land registered in plaintiffs' names as administrators; permanent injunction granted; general damages awarded

Facts

The late Nabanoba Deziranta and Nambooze Edrisa jointly owned land in Busiro Block 379 Plot 10. After recovering the land through litigation in 2010, Nabanoba gave the certificate of title to the defendant for safe custody. The defendant had assisted in funding the recovery litigation. On 20 October 2010, the deceased persons granted the defendant power of attorney to sell the land and remit proceeds. In January 2011, a memorandum of understanding was signed confirming this arrangement. However, on 10 February 2012, the defendant transferred the land into her own name using transfer forms dated 30 January 2011, which described the transaction as a gift and bore the thumbprints of the deceased persons. Nambooze died before the transfer was effected. Nabanoba revoked the power of attorney on 29 April 2013 and lodged a police complaint. Nabanoba died on 3 September 2013. The plaintiffs, as administrators of Nabanoba's estate, brought this suit seeking cancellation of the defendant's title.

Issues

  1. Whether the defendant acquired and transferred the suit land into her name fraudulently.
  2. Whether the defendant's power of attorney is valid after the death of the donor or not.
  3. Whether the registration of the defendant on the duplicate certificate of title for the deceased's land is still legal and valid.
  4. What are the remedies available to the parties?

Orders

  • A declaration that the suit land belongs to the estate of the late Nabanooba Deziranta.
  • An order directing the Registrar of Title to cancel the defendant's name from title and replace it with that of the plaintiffs as administrators of late Nabanooba Deziranta.
  • A permanent injunction restraining the defendant, her agents, assignees, legal representatives or transferees from any further interference and/or claim on the suit land.
  • Forty million Uganda shillings (40,000,000/-) awarded as general damages.
  • No order as to costs.

Rules and key headnotes

Land & Property — Fraudulent Transfer — Power of Attorney — Termination upon Death of Donor
A power of attorney terminates automatically upon the death of the principal, and any act performed by the donee after the principal's death is without authority and void.
Land & Property — Doctrine of Survivorship — Joint Ownership
Where land is jointly owned and one joint owner dies, the doctrine of survivorship operates to declare the surviving owner as sole owner, and any power of attorney relating to the land requires fresh instructions from the surviving owner.
Evidence — Illiterates Protection Act — Documents Executed by Illiterate Persons
A document written at the request or on behalf of an illiterate person must bear certification that it fully represents their instructions and was read over and fully explained to them; failing such certification, the document is void.
Land & Property — Fraudulent Transfer — Misrepresentation as Purchaser
Where a person holding power of attorney to sell land on behalf of another fraudulently transfers the land into their own name by misrepresenting themselves as a purchaser rather than an agent, this constitutes fraud entitling the court to cancel the registration under s.177 of the Registration of Titles Act.
Trusts — Breach of Trust — Trustee Transferring Property to Own Name
A trustee who holds property on trust for the benefit of others acts fraudulently and in breach of trust by transferring the property into their own name without authority and contrary to the express terms of the trust.
Administrative Law — Registration of Titles Act — Cancellation of Title
Section 177 of the Registration of Titles Act empowers the court to direct the Commissioner for Land Registration to cancel any certificate of title obtained fraudulently and replace it with the rightful owner's name.

Legislation cited (5)

Cases cited (6)

  • Fredrick Zaabwe v Orient Bank and Others (Supreme Court Civil Appeal No. 4 of 2006)
  • Kampala Bottlers Ltd v Damanico (U) Ltd (Supreme Court Civil Appeal No. 22 of 1992)
  • Gold Trust Bank (U) Ltd v Josephine Zalwango Nsimbe (High Court Civil Suit No. 226 of 1992)
  • Violet Nakiwala and Others v Ezekiel Rwekibira and Another (High Court Civil Suit No. 280 of 2006)
  • Miller v Minister of Pensions [1947] 2 ALL ER 372
  • Storms 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.

Nabalanza_and_Another_v_Nabitetenankinga_and_Another_(Civil_Suit_705_of_2017)_[2023]_UGHCLD_367_(13_October_2023)
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.