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Wasswa Siragi and Another v Tom Luwalira and Others (Civil Appeal No 148 of 2017)

Court of Appeal · [2020] UGCA 2176 · 2020 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First appeal from High Court judgment dismissing a suit for cancellation of land title
Decision
Appeal allowed; special certificate of title declared null and void, register to be restored to the appellants; mesne profits, general damages and costs awarded

Observed later treatment

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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 replace the particulars of the earlier duplicate certificate of title but must contain an exact copy of all entries. The special certificate wrongly omitted the appellants' 1981 registration and encumbrances, so registering the deceased's estate, the 1st respondent and 2nd respondent was irregular and unlawful. The appellants were not parties to the consent decree in HCCS 1523 of 2000 and had no duty to seek its review. The 2nd respondent, having concealed prior transactions and prior tenancy, was not a bona fide purchaser for value without notice.

Outcome

Appeal allowed; special certificate of title declared null and void, register to be restored to the appellants; mesne profits, general damages and costs awarded

Facts

The appellants claimed to be registered proprietors since 1981 of Kibuga Block 4 Plot 355, having bought it from Hajati Hawa Nampima, administratrix of the estate of the late Asinansi Zamwanguya. Their duplicate certificate of title (Exhibit P1) was issued in 1981 and carried an encumbrance of a 1966 lease. In HCCS 1523 of 2000, the 1st respondent obtained a consent decree providing that the land be transferred back to the deceased's estate if not already transferred to bona fide purchasers for value. Without knowing the whereabouts of the duplicate title, the 1st respondent applied for and obtained a special certificate of title (Exhibit D1) in 2009 registered in the deceased's name, then as administrator, then sold to the 2nd respondent in 2010. The special certificate omitted the appellants' 1981 registration and the lease encumbrance. The Commissioner for Land Registration (DW2) testified the appellants' title appeared genuine though no corresponding records were in the registry. The 2nd respondent had previously rented the premises from the Muslim World League, a lessee whose lease had been cancelled.

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 appellants' duplicate certificate of title.
  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 the issuance of the special certificate of title.
  5. Whether the appellants ought to have sought review of the consent decree in HCCS No 1523 of 2000.
  6. Whether the 2nd respondent was a bona fide purchaser for value without notice.
  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 of title and the entries of the deceased, the 1st Respondent and the 2nd Respondent made in 2009 and 2010, 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 of the suit property to the appellants.
  • The 1st Respondent shall pay US$2067 per month from May 2010 to 4th May 2017 as mesne profits.
  • General damages of UGX 50,000,000 awarded against the 1st and 2nd Respondents jointly and severally.
  • General damages of UGX 10,000,000 awarded against the 3rd Respondent for breach of statutory duty.
  • Interest at 15% per annum on all awards from 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 — Effect under section 70 RTA
A special certificate of title issued under section 70 of the Registration of Titles Act does not replace the particulars of the lost duplicate certificate of title; it must contain an exact copy of the certificate in the Register Book and every memorandum and endorsement on it, and merely serves as the current owner's copy.
Registration of Titles — Priority of Instruments — section 48 RTA
Under section 48 of the Registration of Titles Act, instruments affecting the same estate or interest take priority according to the date of registration and not the date of the instrument, notwithstanding any actual or constructive notice.
Registration of Titles — Substitute and Special Certificates — Duty to Reflect Existing Entries (ss.70, 72 RTA)
Where a special or substitute certificate of title is issued, it must be endorsed with all entries as were on the original so far as ascertainable from the records and other available information; issuing a certificate omitting a proprietor's prior registration and existing encumbrances is a procedural irregularity that renders subsequent transfers unlawful.
Registration of Titles — Bona Fide Purchaser for Value Without Notice
A purchaser who conceals from court prior transactions and a prior tenancy over the suit property, and who takes from a transferor with no lawful title, cannot claim the protection of a bona fide purchaser for value without notice.
Consent Decrees — Standing to Seek Review under section 82 CPA
A party who is neither party to a consent decree nor adversely affected by its terms is under no obligation to apply for review of that decree under section 82 of the Civil Procedure Act before challenging acts done in disregard of it.
First Appellate Court — Reappraisal of Evidence and Additional Evidence (r.30 Court of Appeal Rules)
A first appellate court may reappraise the evidence and, for sufficient reason, take additional evidence; documentary evidence proving an existing encumbrance already reflected on a title in evidence may be admitted where the respondents suffer no prejudice.

Legislation cited (15)

Cases cited (6)

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

Full judgment

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Wasswa Siragi and Another v Tom Luwalira and Others (Civil Appeal No 148 of 2017) [2020] UGCA 2176 (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.