Wakilii

Yahaya Ziraba Balyejjusa v Development Finance Co. of Uganda Ltd (CIVIL SUIT NO. 99 OF 1998)

High Court · [1999] UGHC 39 · 1999 Judgment for Defendant AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for declaration that power of attorney was forged and mortgage invalid
Decision
Plaintiff's claim dismissed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the plaintiff failed to prove fraud attributable to the defendant mortgagee. While the plaintiff alleged forgery of the power of attorney, the pleadings did not contain sufficient particulars of fraud as required by law, and there was no evidence that the defendant was party to any fraud or took advantage of it. A registered mortgagee's title can only be impeached for actual fraud. The plaintiff's suit was dismissed with costs.

Outcome

Plaintiff's claim dismissed

Facts

The plaintiff was the registered proprietor of a prime town plot in Nakasero, Kampala. His brother Tezikuba presented the plaintiff's title deed with a power of attorney allegedly executed by the plaintiff to secure a loan from the defendant bank for Tezikuba's company, Affasat International (U) Ltd. The company defaulted and the defendant sought to enforce the mortgage. The plaintiff learned of the intended sale from a newspaper advertisement in January 1998. He denied signing the power of attorney and claimed it was a forgery. The plaintiff lodged a caveat and instituted proceedings for a declaration that the mortgage was invalid. A handwriting expert testified that the signatures on the power of attorney were unlikely to have been made by the plaintiff. The plaintiff admitted he had entrusted his land titles to his brother and that the same property had been mortgaged to other banks by his brother using similar powers of attorney.

Issues

  1. Whether the power of attorney (Exhibit P2) was forged and not authored by the plaintiff, thereby invalidating the mortgage.
  2. Whether the defendant mortgagee's title could be impeached in the absence of fraud attributable to the defendant.
  3. Whether the pleadings adequately particularised fraud so as to render the mortgage void.

Orders

  • The plaintiff's case against the defendant is dismissed.
  • Costs awarded to the defendant.

Rules and key headnotes

Mortgages — Registered Mortgagee — Impeachment of Title — Requirement of Fraud
A registered mortgagee's title can only be impeached for actual fraud and not for errors or irregularities falling short of fraud.
Pleadings — Fraud — Particulars Required
Where fraud is alleged, it must be pleaded specifically with adequate particulars identifying the person who perpetrated the fraud and showing the defendant's connection to or knowledge of the fraud.
Forgery — Pleading Requirements — Burden of Proof
An allegation of forgery without particulars showing the defendant's involvement in or knowledge of the forgery, and without joining the alleged forger as a party, is insufficient to render a registered mortgage invalid.
Mortgages — Duty of Mortgagee — Good Faith Dealings
In the absence of evidence that a mortgagee bank was party to fraud or took advantage of fraud in accepting a mortgage secured by power of attorney, the mortgagee's right is not vitiated by irregularities in the power of attorney committed by third parties.

Cases cited (10)

  • Gibbs v Messer [1891] All ER 2047
  • Olinda de Souza Figneredo v Kasamali (1962) EA 756
  • Warmiha Saw Milling Co. Ltd vrs Waiome Timber and Re. an application by GNM Mallo (9164) ULR 194
  • Grindlays Bank v Uganda Bottlers (Court of Appeal No. 29 of 1995 and 16 of 1996)
  • Ruth Zirimuzawo v Paul Mukasa and 3 others (High Court Civil Suit No. 897 of 1988)
  • Assets Co. Ltd v Mom Roihi and others [1995] AC 1076
  • Sarah Karim v Registrar of Titles (1992-1993) HCB 110
  • Kazora v Rukuba (1994-1995) HCB 58
  • Stephen Lubega v Barclays Bank (Court of Appeal No. 2 of 1992)
  • Tiffu Lukwago v Samwiri Mudde and another (Court of Appeal No. 13 of 1996)

Full judgment

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

Yahaya Ziraba Balyejjusa v Development Finance Co. of Uganda Ltd (CIVIL SUIT NO. 99 OF 1998) [1999] UGHC 39 (14 October 1999)
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.