Wakilii

Nkubito v Dr. Lubunde and Another (Civil Suit No. 713 of 2021)

High Court · [2023] UGHCLD 67 · 2023 Counter Claim Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Counter claim arising from abated civil suit; default judgment entered; proceeding exparte against counter defendants
Decision
Counter claim allowed; title cancelled in favour of counter claimant; counter defendant ordered to receive refund of partial consideration paid

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.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

Held: The registration of Dr. Lubunde on the title was fraudulent. He had not paid the full purchase price under the sale agreement with Nkubito Allan before Nkubito lawfully sold the land to another buyer. Lubunde obtained the title without legal authority and without consent of the registered proprietor, whose signatures on transfer forms were forged. The court ordered cancellation of the title under s.177 of the Registration of Titles Act, awarded general damages of UGX 20,000,000 to the counter claimant, and ordered Lubunde to refund the partial consideration he had paid.

Outcome

Counter claim allowed; title cancelled in favour of counter claimant; counter defendant ordered to receive refund of partial consideration paid

Facts

Nkubito Allan received land as a gift from his father Charles Brian Kwizera, who held registered title to Busiro Block 439 Plot 569. In June 2020, Nkubito entered a sale agreement with Dr. Lubunde Edward and his wife for UGX 85,000,000, of which UGX 25,000,000 was paid in cash and UGX 20,000,000 by way of land exchange, leaving a balance of UGX 40,000,000 to be paid within six months. When Lubunde failed to pay the balance, Nkubito sold the land to Nziza Patrick in December 2020 for UGX 50,000,000, which was paid in full. Meanwhile, a portion of the original plot had been compulsorily acquired by UNRA for the Entebbe Express Highway, leaving a residue as plot 7847. Nkubito discovered that Lubunde had retrieved the title from UNRA and registered himself as sole owner in May 2021 using allegedly forged signatures of Kwizera on transfer and mutation forms dated April 2021. Nkubito's brother Andrew Kananura held power of attorney from Kwizera and testified that Kwizera never transacted with Lubunde. The main suit filed by Lubunde against Nkubito had abated, and Nkubito's counter claim proceeded exparte when Lubunde failed to file a defence.

Issues

  1. Whether the registration of the 1st counter defendant on title to the suit land was fraudulent.
  2. Whether there is lawful justification to warrant cancellation of title for the suit land in the names of the 1st counter defendant.
  3. What remedies are available to the parties?

Orders

  • Counter claim allowed.
  • Declared that Lubunde, the 1st counter defendant, has no claim or interest in the suit land comprised in Busiro Block 439, plot No. 7847.
  • Ordered Commissioner Land Registration to cancel the title for land comprised in Busiro Block 439, plot No. 7847.
  • Nkubito ordered to refund all money paid out as part consideration to Lubunde.
  • Costs awarded to the counter claimant.

Rules and key headnotes

Fraudulent Registration — Obtaining Title Without Full Payment of Consideration
Where a purchaser obtains registration on title without having paid the full purchase price under a contract of sale, and the vendor has lawfully rescinded the contract and sold to another buyer, the registration is fraudulent and liable to cancellation.
Transfer by Unregistered Kibanja Holder — Requirement of Proprietor's Consent
A holder of an equitable interest in land by way of gift of kibanja on titled land is under obligation to secure the consent of the registered proprietor before entering into any transaction relating to the kibanja. A sale agreement executed without such consent or authority under a power of attorney is void.
Breach of Contract — Failure to Pay Full Consideration Within Agreed Time
When a party to a contract of sale fails to pay the balance of the purchase price within the stipulated time, the vendor is entitled to rescind the contract and dispose of the property to another buyer. The defaulting purchaser cannot subsequently claim a valid title to the property.
Fraud Attributable to Transferee — Power of Court to Cancel Title Under s.177 RTA
Under section 177 of the Registration of Titles Act, the court has power to order the Commissioner Land Registration to cancel a certificate of title where fraud attributable to the registered proprietor is established. Such fraud unravels everything and vitiates the registration.
Registered Estate and Equitable Interests — Rights in Rem and Rights in Persona
In a land system based on registration, there are two interests: the registered estate which binds the whole world (rights in rem) and other registrable interests. A purchaser who has not completed transfer acquires only an equitable interest in the nature of a right in persona, enforceable only against the vendor.
Default Judgment — Proceeding Exparte After Abatement of Main Suit
Where a main suit abates for failure to take out summons for directions within the stipulated period, a counter claim may proceed exparte against counter defendants who have been duly served but fail to file a defence.

Legislation cited (12)

  • Registration of Titles Act s.177
  • Contract Act 2010 s.42(1)
  • Contract Act 2010 s.67
  • Evidence Act Cap.43 s.101
  • Evidence Act Cap.43 s.102
  • Evidence Act Cap.43 s.103
  • Land Act Cap.227 s.34(1)
  • Land Act Cap.227 s.34(9)
  • Land Act Cap.227 s.35(1)
  • Land Act Cap.227 s.35(2)
  • Land Act Cap.227 s.36
  • Constitution of Uganda 1995

Cases cited (11)

  • William Kasozi v DFCU Bank Ltd (High Court Civil Suit No. 1326 of 2000)
  • Ronald Kasibante v Shell Uganda Ltd (High Court Civil Suit No. 542 of 2006)
  • Frederick Zaabute v Orient Bank Ltd & 5 Others (Supreme Court Civil Appeal No. 4 of 2006)
  • TWU Lukwago v Samuel Mudde Kizza & Another (Court of Appeal Civil Appeal No. 13 of 1996)
  • Fam International Ltd & Another v Mohamed Hamid El-Fatih (Supreme Court Civil Appeal No. 16 of 1993)
  • John Kabirimukwo v William Katwiremu [1974] HCB 187
  • Progressive Group of Schools Ltd and 2 Others v Barclays Bank of Uganda Ltd t/a ABSA Bank U Ltd and Another (Civil Appeal No. 349 of 2020)
  • Makula International v Cardinal Nsubuga Wamala (Supreme Court Civil Appeal No. 4 of 1987)
  • Fam International Ltd and Ahmad Farah v Mohamed El Fitih [1994] KALR 307
  • Kampala Bottlers v Damanico (U) Ltd (Supreme Court Civil Appeal No. 22 of 2012)
  • Uganda Commercial Bank v Kigozi (2002) 1 EA 305

Full judgment

↓ Download PDF

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

Nkubito_v_Dr._Lubunde_and_Another_(Civil_Suit_No._713_of_2021)_[2023]_UGHCLD_67_(20_March_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.