Wakilii

Nkambwe Christopher & Anor v Shebba Steven (Misc. Applc. No. 1784 of 2017)

High Court · [2018] UGHCCD 31 · 2018 Judgment for Defendant AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for declaration of title and damages for trespass with counterclaim for cancellation of title on grounds of fraud
Decision
Plaintiff's suit dismissed; counterclaim granted; special certificate of title cancelled and original title in names of Stanley Kitaka Kisingiri to be reinstated

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court Land Division dismissed the plaintiff's claim for trespass and granted the defendant's counterclaim, finding that the plaintiff fraudulently obtained a special certificate of title while the original certificate remained intact in the estate of the deceased vendor. The court held that a special certificate issued under Registration of Titles Act ss.70–72 on the basis that the original was destroyed is illegal and fraudulent where the original certificate is proven to exist and was never lost or destroyed.

Outcome

Plaintiff's suit dismissed; counterclaim granted; special certificate of title cancelled and original title in names of Stanley Kitaka Kisingiri to be reinstated

Facts

The plaintiff sued for declaration of title and trespass damages concerning land comprised in Bulemezi Block 1026 Plot 65. He claimed to have purchased the land in 1986 from Stanley Kitaka Kisingiri for UGX 5,000,000 through an agent named Ndawula, receiving transfer forms and subsequently registering in 1996. The defendant, heir and beneficiary of Stanley Kitaka Kisingiri's estate (deceased 2 March 1992), counterclaimed that the plaintiff's registration was fraudulent. Evidence showed that the plaintiff held a special certificate of title issued 14 December 1995 on the basis that the duplicate certificate had been destroyed. However, the defendant produced the original certificate of title which remained intact, unaltered, and in the possession of the estate administrators. The plaintiff had pleaded that he received the duplicate certificate from the vendor in 1986, but the special certificate he tendered was created in 1995, after the vendor's death. No formal sale agreement was produced.

Issues

  1. Whether the Plaintiff obtained registration on the suit land fraudulently.
  2. Whether the Defendant trespassed on the suit property.
  3. What are the remedies available to the parties.

Orders

  • The plaintiff's suit dismissed with costs to the defendant.
  • Judgment entered for the defendant/counterclaimant on the counterclaim.
  • Declaration that the plaintiff acted illegally and fraudulently in obtaining registration and that the land is property of Stanley Kitaka Kisingiri.
  • Order issued to the Registrar of Titles/Commissioner for Land Registration to cancel the special certificate of title issued to the plaintiff for plot 65 block 1026 Bulemezi Namaliga.
  • Order that the names Stanley Kitaka Kisingiri be retained and reverted back on the register as owner and registered proprietor.
  • Plaintiff to compensate the defendant UGX 30,000,000 for pain and suffering, psychological torture, time spent in court, and attendant suffering.
  • Plaintiff to pay the defendant costs of the counterclaim.
  • Interest on costs and damages at the court rate.
  • Right of appeal communicated.

Rules and key headnotes

Registration of Title — Special Certificate of Title — Fraudulent Procurement
A special certificate of title issued under Registration of Titles Act ss.70–72 on the representation that the original or duplicate certificate was lost or destroyed is illegal and procured fraudulently where the original certificate is proven to exist, remain intact, and was never lost or destroyed.
Fraud — Standard and Mode of Proof — Proof by Implication
Fraud may be proved by implication and inference from circumstantial evidence where the totality of the evidence demonstrates intentional perversion of truth, suppression of material facts, or conduct calculated to deceive, even in the absence of direct evidence such as expert handwriting analysis.
Illegality — Court's Duty to Act Upon
A court of law cannot sanction what is illegal. Where an illegality is brought to the attention of the court, it overrides all questions of pleadings including admissions made thereon, and the court must act upon the illegality regardless of how it arises in the proceedings.
Registration of Title — Indefeasibility — Exception for Fraud
While registration under the Registration of Titles Act confers indefeasible title on a registered proprietor under s.59, such protection does not extend to a proprietor who obtained registration by fraud or illegality, and such title is liable to cancellation.
Burden of Proof — Civil Cases — Plaintiff's Duty
In civil matters the plaintiff bears the burden to prove his or her case on a balance of probabilities. Where a plaintiff's title or claim is put in question by credible defence evidence revealing illegalities or inconsistencies, the plaintiff must lead evidence to rebut those allegations and explain the irregularities; failure to do so may result in the plaintiff failing to discharge the burden of proof.
Sale of Land — Proof of Transaction — Evidentiary Requirements
Where the sale of land is involved, purchase cannot be established by mere presumption; there must be actual purchase supported by a written memorandum duly signed by the parties or other credible corroborating evidence. Failure to produce such proof may render the claim unsustainable, particularly where other evidence casts doubt on the transaction.

Legislation cited (10)

Cases cited (9)

  • John Katwiremu & Anor (1977) HCB 187
  • Mudiima Issa & 8 Others v Elly Kayanja & 2 Others (Civil Suit No. 232 of 2009)
  • Mayanja J. B v Lawrence Maggato Guta (HCT Civil Suit No. 727 of 2006)
  • Frederick J. K. Zaabwe v Orient Bank and 5 Others (Supreme Court Civil Appeal No. 4 of 2006)
  • Edward Gatsinzi & Mukasanga Ritah v Lwanga Steven (Civil Suit No. 690 of 2004)
  • Konde Mathias Zimula v Byarugaba Moses and Grace Nampijja (High Court Civil Suit No. 66 of 2007)
  • Makula International Ltd v H. E. Cardinal Nsubuga & Anor (1982) HCB 11
  • National Social Security Fund & Anor v Alcon International Ltd (Supreme Court Civil Suit No. 15 of 2009)
  • Kabenkwine Christopher and 2 Ors v Christopher Mugenyi (Civil Appeal No. 35 of 2011)

Full judgment

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

Nkambwe Christopher & Anor v Shebba Steven (Misc. Applc. No. 1784 of 2017) [2018] UGHCCD 31 (2 May 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.