Wakilii

Wasswa & Another v Luwalira & 2 Others (Civil Appeal 148 of 2017)

Court of Appeal · [2020] UGCA 2144 · 2020 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from the High Court dismissing a suit for cancellation of a land title alleged to have been fraudulently procured
Decision
Appeal allowed; High Court judgment set aside; special certificate of title declared null and void, register restored to appellants, mesne profits and general damages awarded

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal allowed the appeal, holding that a special certificate of title issued under section 70 of the Registration of Titles Act does not create a new or replacement title in different particulars but must contain an exact copy of all entries in the register. Since the appellants had been registered proprietors since 1981, the special certificate wrongly omitting their names and registering the deceased's estate, the 1st respondent and later the 2nd respondent was invalid. The 1st respondent had no title to pass, and the 2nd respondent, aware of prior encumbrances and having concealed past transactions, was not a bona fide purchaser for value without notice. The appellants were not required to review the consent decree, to which they were not parties.

Outcome

Appeal allowed; High Court judgment set aside; special certificate of title declared null and void, register restored to appellants, mesne profits and general damages awarded

Facts

The appellants claimed to have been registered proprietors of land comprised in Kibuga Block 4 Plot 355 since 1981, having bought it from Hajati Hawa Nampima, administratrix of the estate of the late Asinansi Zamwanguya. In 2000 the 1st respondent sued Nampima and others; a 2005 consent decree directed the land be transferred back to the deceased's estate if not already transferred to bona fide purchasers for value. Relying on that decree, the 1st respondent, finding the register showed the deceased as proprietor and being unable to locate the duplicate title, applied for and obtained a special certificate of title in 2009, registered the deceased's estate and himself, then sold to the 2nd respondent in 2010. The appellants alleged the special certificate was fraudulently created when their prior title already existed. The Commissioner for Land Registration testified the appellants' duplicate title appeared genuine, though no corresponding records existed in the registry. The 2nd respondent had earlier rented the premises under a leasehold and claimed to be a bona fide purchaser.

Issues

  1. Whether the duplicate certificate of title held by the appellants and the special certificate of title held by the respondents were concurrent titles.
  2. Whether the special certificate of title replaced the duplicate certificate of title in the appellants' possession.
  3. Whether the special certificate of title in possession of the 2nd respondent was valid and could not be impeached.
  4. Whether there were procedural irregularities in issuing the special certificate of title.
  5. Whether the 2nd respondent was a bona fide purchaser for value without notice.
  6. Whether the appellants were required to seek review of the consent decree in an earlier suit before challenging the title.
  7. Whether the special certificate of title could only be impeached on proof of fraud.

Orders

  • The decision and orders of the High Court are set aside and substituted with this judgment.
  • A declaration issues that Exhibit D1, the special certificate of title registered in the names of the 2nd respondent, is null and void.
  • The duplicate certificate of title Exhibit P1 is the only valid title to the suit property.
  • The registrar is directed to cancel the special certificate and the 2009 and 2010 entries of the deceased, the 1st and 2nd respondents, and restore the register to the 1981 position with the appellants as registered proprietors.
  • A permanent injunction issues restraining the 1st and 2nd respondents from interfering with the appellants' ownership.
  • The 2nd respondent shall give vacant possession to the appellants.
  • The 1st respondent shall pay US$2,067 per month as mesne profits from May 2010 to the date of the High Court judgment of 4 May 2017.
  • General damages of UGX 50,000,000 are awarded against the 1st and 2nd respondents jointly and severally.
  • General damages of UGX 10,000,000 are awarded against the 3rd respondent for breach of statutory duty.
  • Interest on all awards at 10% per annum from the date of judgment to payment.
  • The appeal succeeds with costs in this court and in the lower court.

Rules and key headnotes

Registration of Titles — Special Certificate of Title — Nature and Effect under s.70 RTA
A special certificate of title issued under section 70 of the Registration of Titles Act does not create a new title or replace the particulars of the lost duplicate; it must contain an exact copy of the certificate of title in the Register Book and every memorandum and endorsement on it, and serves only as the current owner's copy where the duplicate has been lost or destroyed.
Registration of Titles — Validity of Special Certificate Omitting Prior Registered Proprietors
A special certificate of title that omits the entries of prior registered proprietors and other encumbrances existing on the mother title is defective; such omission renders subsequent transfers derived from that certificate invalid, as the registrar was bound to reproduce all existing entries under sections 70 and 72 of the Registration of Titles Act.
Registration of Titles — Bona Fide Purchaser for Value Without Notice
A purchaser who was aware of prior encumbrances on the land, occupied the property as a tenant under an earlier leasehold, and concealed past transactions from the court cannot claim protection as a bona fide purchaser for value without notice; moreover a vendor who holds an invalid title has no title to pass.
Consent Decrees — Review — Non-Parties Not Bound
A party who was not a party to a consent decree and whose interests were not adversely affected by its terms is not required to seek review of that decree under section 82 of the Civil Procedure Act before bringing a separate action; a court errs in holding that such a party ought to have reviewed a decree to which it was not bound.
Registration of Titles — Priority of Instruments — s.48 RTA
Under section 48 of the Registration of Titles Act, instruments affecting the same estate take priority according to the date of registration and not the date of the instrument, notwithstanding actual or constructive notice; however priority of instruments only arises where the genuineness and prior registration of the earlier title is established as a matter of fact.
Appeals — First Appellate Court — Reappraisal of Evidence and Additional Evidence
A first appellate court has a discretionary duty under Rule 30(1)(a) of the Court of Appeal Rules to reappraise the evidence and draw inferences of fact, and may for sufficient reason take additional evidence where such evidence would not prejudice the respondents and serves the interests of justice.

Legislation cited (17)

Cases cited (7)

  • General Parts (U) Ltd v Middle North Agencies Ltd (Civil Suit No. 610 of 2013)
  • Middle North Agencies Ltd v New Uganda Securicor Ltd (Civil Suit No. 107 of 2003)
  • Kampala Bottlers Ltd v Damanico (U) Ltd (Civil Appeal No. 22 of 1992)
  • David Ssejjaka Nalima v Rebecca Musoke (Civil Appeal No. 12 of 1995)
  • Ndimwibo Sande & Others v Allen Peace Ampaire (Civil Appeal No. 65 of 2011)
  • Ibaga Taratizo v Tarapke Fastina (Civil Suit No. 004 of 2017)
  • Peters v Sunday Post Limited [1958] 1 EA 424

Full judgment

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Wasswa & Another v Luwalira & 2 Others (Civil Appeal 148 of 2017) [2020] UGCA 2144 (12 June 2020)
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.