IN THE COURT OF APPEAL

AT MENGO CORAM:
WAMBUZI CJ, LUBOGO AG. J.A. AND ODOKI J.A.) CIVIL APPEAL
NO.12 OF 1985 BETWEEN
DAVID SEJJAAKA NALIMA::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPELLANT AND
REBECCA MUSOKE:::::.::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT Appeal
from the Judgment and order of the High Court of Uganda at Kampala (Ouma Ag. J) dated
26th September 1984.
in
Civil Suit No. 486 of 1983)

JUDGMENT OF ODOKI J.A.

The appellant is the registered proprietor of the property comprised in Leaseholder Register
Volume 625 Folio 2 Plot 156-158 Mutesa 11 Road, Nakawa in Kampala. The respondent is
the widow of the laterofatimer1-1usoke who, prior to hi death, was the registered owner of
the property. The respondent brought an action in the High Court against the appellant for a
declaration’ that the registration of the appellant was null and void on account of having been
obtained from persons who did not have lawful authority to effect the transfer, or through
fraud. She prayed for an order directing the Registrar of Titles to cancel the appellant’s entry
as the registered
proprietor, and to reinstate the name of Prof. Latimer Musoke as the registered proprietor of
the said property. The appellant pleaded that he was a bona fide purchaser for value without
notice. The trial judge gave judgment for the respondent, and it is against that decision that
the appellant now appeals to this court.

The facts as found by the learned trial judge are as follows. The respondent is the widow of
Prof. Latimer Kamya Musoke, who died on 3rd October, 1979. The deceased left a will in
which the respondent and Mr. John Kazoora Advocate
were named executrix and executor, respectively. The deceased’s children were named in the
will. The respondent and Mr. Kazoora applied to the High Court for the grant of probate of
the will. Notice of the application was duly advertised in the Uganda Times newspaper of 3rd
October, 1980. The High Court (Oder J.) granted the application on 29th April 1981. The

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respondent found it prudent not to administer
the estate because Mr. Kazoora and the elder children were out of Uganda.

After the grant of probate, one Dick Sengomwami Semanda, who was neither named in the
will nor known to the respondent, applied, as a son of late Prof. Musoke, to the Chief
Magistrates Court of Mengo for letters of administration of the estate of the late Prof.
Musoke. The Court granted the letters of administration to him on 7th August 1981. On 5th
January, 1982, he was registered as the proprietor of the suit property.
On 30th March, 1982, he transferred the property to one Lameck Nteyafa Sendaula in
consideration of Shs. 555,500/= and he was registered as the proprietor of the property on
29th April, 1982. Lameck Nteyafa Sendaula in turn transferred the property to the appellant
in consideration of Shs. 1,500,000/=, and he was registered as proprietor of the property on
29th December, 1982.

The respondent came to know that Lameck Sendaula was claiming ownership of the Suit
property when she received from her tenants, Uganda Blanket Manufacturers (1973) Ltd, a
copy of the letter dated 23rd May 1982 (Ext. P.VI) addressed to “the Illegal Occupant” by M/S
Musoke and Co. Advocates, acting on behalf of Lameck Sendaula. In that letter, it was stated
that Lameck Sendaula was the registered proprietor of the suit property, and that the “Illegal
Occupant”, had occupied the house without the consent of the owner in 1979 soon after the
liberation war and that he was therefore given notice of seven days to quit. The respondent
also received a copy of the letter dated 5th July 1982 (Exb. P. VII) addressed to M/S Musoke
& o. Advocates by the Uganda Blanket Manufacturers (1973) Ltd, in reply to their letter, in
which they stated that they bad never forced their way into the house but had been in lawful
occupation of the house since January, 1976.

The respondent then contacted her advocates, M/S Mulira &Co. Advocates) who wrote a
letter dated 26th July, 1982 (Exh. P. VIII) to M/S Musoke & Co. Advocates informing them
that the property in question was registered in the names of the late Prof. Latimer Musoke
and that probate of the estate was granted by the High Court to the respondent, and further
that the house had been leased and occupied by M/S Uganda Blanket Manufacturers (1973)
Ltd since 1976. There was no reply to that letter. The respondent went to Ntinda Housing
Estate Office to find out whether the house was still in the name of the late Prof. Musoke and

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it was still so. She therefore thought that the letter dated 23rd May 1982 addressed to the
Illegal Occupant was baseless.

However, after a few months, the respondent’s advocates, M/S Mulira & Co. Advocates,
received a letter dated 30th December, 1982 addressed to the tenant of house by M/s
Kyambadde Mayambala & Co Advocates, acting on behalf of the appellant, claiming
ownership of the house and stating that the tenant’s lease had expired at the end of October
1982. M/S Mulira & Co. Advocates responded by writing a letter dated 26th January, 1983
(Ext. P. IX) in which they informed the then appellant’s advocates that the property registered
in the name of the late Prof. Musoke and that the property had never been sold to the
appellant, and that M/s Uganda Blanket Manufacturers had been occupying the property a
tenants since 1976 and that their lease as still in force.

The respondent and her advocates then decided to investigate the title of the property at the
Land Office. It was discovered that the title had been deposited in the National Grindlays
sank (Uganda) Ltd, as a security for an overdraft, and that the title had been transferred to the
appellant. The respondent1s advocates wrote to the appellant a letter dated 28th March 1983
informing him of the respondent’s claim to the property, but the appellant did not respond.
Whereupon the respondent filed this suit. In his written statement of defence, the appellant
pleaded that ha had no knowledge or notice of an fraud and that he was at all times a bona
fide purchaser for value whose title was good and protected by law.

At the trial the agreed issues were:

(a) Whether the letters of administration intended to one Dick Sengowami

Semanda on 7th August 1981 were capable in law to confer title to land in issue
or question.

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 (b) whether third parties could derive title at law from a transaction arising out of
such letters of administration.

(c) Whether the defendant was a bonafide purchaser for value of the land in
question.

On the first issue the learned trial judge found that Dick Semanda acted fraudulently in
applying for letters of administration when he was not named in the will and after the
respondent had been granted, probate of the will. He held that the Mengo Magistrates Court
had no jurisdiction to grant the letters of administration to Semanda for two reasons. The first
was that respondent had not renounced her executorship, as provided under Section 193 of
the Succession Act. The second was that the court had no jurisdiction since the value of the
subject matter in issue exceeded the pecuniary jurisdiction of a Chief Magistrate as provided
under Section 1 (i) of the Administration of Estates (Small Estates) (Special Provisions)
Decree 1972. Therefore, held the trial judge, the grant of letters of administration was
incompetent and of no legal effect, and accordingly they were annulled for want of
jurisdiction Under S. 233 (b) & (c) of the Succession Act and S. 1 (4) of the Administration of
Estates (Snail Estates) (Special Provisions) Decree 1972.

As regards the second issue, the trial judge took the view that whether third parties could
derive a good title at law from the letters of administration granted by the Mengo - Court,
depended largely on statutory interpretation to ascertain whether Section 233 of the
Succession Act and S. 1 (4) of the Administration of Estates (Small Estates) (Special
Provisions) Decree repealed or excluded by implication the application of S. 189 of the
Registration of Titles Act. He found that S. 233 of the Succession Act and S. 1 (4) of the
Decree were in conflict with S. 189 of the Registration of Titles Act.

He invoked the rule of Statutory Construction to the effect that where a later Act is
inconsistent with an earlier one, the earlier Act stands repealed or modified by implication by
the later Act. He then held that since the Succession Act and the Decree were later enactments
having been enacted in 1965 and 1972 respectively, they had repealed by necessary

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implication, the provisions of S. 189 of the Registration of Titles Act which he held to be an
earlier Act enacted in 1963. He therefore finally held on this issue that the annulled letter of
administration could not become a good root of title to a bona fide purchaser.

On the third issue the learned trial judge held that after the letters of administration which had
originated the purported transfers of the suit property had been annulled for just cause, the
appellant who had derived his title from Sendaula who had obtained registration through
fraud, could not be protected while the respondent who was defrauded was deprived of the
property.

The appellant preferred six grounds of appeal, but only the first five were argued. The first
ground of appeal is:

“The learned trial judge erred in law in holding that the provisions of S. 233 of the
Succession Act and S. 1(4) of the Administration of Estates (Small Estates) (Special
Provisions) Decree, 1972, repealed or excluded by implication the application or
operation of the provisions of S. 189 and other relevant sections of the Registration of
Titles Act.”

Mr. Kulumba - Kiingi, for the appellant, submitted that the trial judge erred in so holding
because the provisions of the Registration of Titles Act prevail over those of the Succession
Act and the Administration of Estates (Small Estates) (Special Provisions) Decree. Ho argued
that S. 3 of the Registration of Titles Act makes it a special Act in respect of all land
transactions affecting registered land so that it prevails over all other law. Ho cited the
decisions in Souza Figueiredo V. Talbot (1962) E.A. 167 and Kawalya Kaggwa V. Registrar
of Titles HCCS No. 627/74 in support of his submissions. Counsel contended further that
where the legislature intends to curtail the provisions of the Registration of Titles Act it
expressly enacts so as it did in S. 43 of the Public Lands Act and S. 1(2) of the Expropriated
Properties
Act 1982. It was his submission that there is nothing in S. 233 of the Succession Act and S.
21(2) of the Decree which excludes the operation of the Registration of Titles Act by

5
implication. Moreover, counsel submitted, the Registration of Titles Act was made later than
the Succession Act.
Counsel Concluded, that the provisions of the Succession Act and the Decree must be read
subject to the Provisions of S. 189 of the Registration of Titles Act.

In reply Mr. Mulira, for the respondent, submitted that the Registration of Titles Act is not a
supreme law which courts are bound to gibe effect to irrespective of
circumstances. He contended that on nay occasions courts have gone behind its provisions to
g4e effect not only to legal logic but save an absurd situation. He supported his argument by
reference to the cases of Adonia Mutekanga (1970) E.A. 429, Gibbs V. Messer (1891)
A.C.248 and Olinda de Souza Figueiredo V. Kassamali Manji (1962) E.A. 759. He contended
further that the court has to look at a particular situation and decide whether it was the kind of
situation intended to be protected.

As regards the provisions of S. 3 of the Registration of Titles Act Mr. Mulira submitted that
they deal only with inconsistent provisions and do not automatically supercede or abridge the
provisions of any other law. It was his contention that the trial judge was free to apply the
provisions of the Succession Act, and that the cases cited by counsel for appellant were
irrelevant to the facts of this case.

In dealing with this issue the learned trial judge said,

“I have considered the strenuous and lengthy arguments and counter arguments
adduced at the hearing of this case by the learned counsels. I have also considered the
authorities cited to me and relied on by the learned counsels in support of the
arguments and counter arguments. It would not be necessary to set out the arguments
and counter arguments and authorities here.
I have however come to the conclusion that whether third parties could derive title at
law from the letters of Administration granted by the Mengo Court, depends very such
on the Statutory interpretation, that is to say, whether section 233 of the Succession
Act and sub-section (4) of Section 1 of the Administration of Estates (Small Estates)

6
 (Special Provisions) Decree 1972 (No. 13 of 1972) repealed or modified or excluded
by implication the application or operation of the provisions of Section 189 of the
Registration of Titles Act, to a case of peculiarities and or circumstances, of this
instant case.”

The learned trial judge then said that he would take the Acts in their chronological order, and
continued,

“In 1963, the Legislature by the Registration of titles Act provided in Section 189
thereof, as follows:-

“189, Nothing in this Act shall be so interpreted as to leave subject to an action

of ejectment or to an action for recovery of damages as aforesaid, or for
deprivation of the estate or interest in respect to which he is registered as
proprietor any purchaser bona fide for valuable consideration of land under the
operation of this Act, on the ground that the proprietor through or under whom
he claims was registered as proprietor through fraud or error or had derived
from or through fraud or error consists in wrong description of the boundaries
or the parcels of any land or otherwise howsoever.”

“In 1965 the Legislature by the Succession Act provided in Section 233 as follows:-

“233(1) The grant of probate or letters of administration may be revoked or

annulled for just cause.
(2) In this section “just cause” means,

(a) that the proceedings to obtain the grant were defective in substance;

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 (b) that the grant was obtained fraudulently by making a false suggestion
or by concealing from the court something material to the case;

(c) that the grant was obtained by means of an untrue allegation of a fact
essential in point of law to justify the grant though such allegation was
made in ignorance or inadvertently;

(d) that the grant has become useless and inoperative through
circumstance; or

(e) that the person to whom the grant was made has willfully and without
reasonable cause omitted to exhibit an inventory or account in
accordance with the provisions of Part XXXIV of this Act inventory or
account which is untrue in material respect.”

“In 1972, the Legislature, by the Administration of estates (Small Estates)

(Special Provisions) Decree 1972 (No. 13 of 1972) provided in Sub-section (4)
of section 1 thereof, as follows:-

“(4) The grant of probate or letters of administration may be revoked,

altered or annulled for just cause and any errors therein may be
rectified by the court.”

The learned trial judge then held,

“In application to the peculiarities and circumstances of this instant case it is my

considered opinion that the phrase, “or for deprivation of the estate or interest in
respect to which he is registered as proprietor any purchaser bona fide for valuable
consideration of land under the operation of this Act, on the ground that the proprietor
through or under whom he claims was registered as proprietor through fraud or error

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 or has derived from or through a person registered as proprietor through fraud or
error,” in Section 189 of the Registration Titles Act is in conflict, or inconsistent or
cannot be reconciled in application to the extent of protection of the title or
indefeasible right of a bona fide purchaser for value with the phrase,
“annulled for just cause”
in Section 235 of the Succession Act and in Sub-section (4) of Section 1 of the
Administration of Estates (Small Estates) (Special Provisions) Decree 1972, precisely,
if the title of a bona fide purchaser for valuable consideration, derived under the
peculiar circumstances of this present case, is impeachable or protected by section
189 of the Registration of Titles Act annulment for just cause, Linder the provisions
afore said, would be devoid of any legislative intent whatsoever, if in spite of the
annulment the plaintiff is all the same to be deprived of the house It cannot be
maintained that was the intention of the legislature. Further, it can be maintained that
the annulled letter of administration for just cause can yet become a good source or
root of title to a bona fide purchaser with or without notice. It would seem to me
inconsistent or contradictory in application of the provisions referred to above that
after the letters of administration which in this case originated the purported transfers
of the house in question, having been annulled for just cause, the defendant who
derived title from or through Sendaula whom, as I have found was registered as
proprietor of the house through fraud, is protected whereas, the plaintiffs who was
defrauded is to be deprived of the house.”

The trial judge finally concluded,

“It is not competent for a legislature to enact an Act or Decree binding itself never to
enact a contradictory Act or Decree. That would be fettering the supremacy of the
Legislature. What the legislature can do, the Legislature can undo. It seems therefore
to me that the intent of the Legislature in Section 233 of the Succession Act and in
sub-section (4) of the Administration of Estates (Small Estates) (special provisions)
Decree was to repeal Or exclude by implication the application or operation of the
provisions of Section 189 of the Registration of Titles Act to a case of this nature.”

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In coming to this conclusion, the learned trial judge relied on the principles of statutory
construction which he stated as follows:-

“According to the principles of Construction if the provisions of a later Act are so

inconsistent with or repugnant to those of an earlier Act that the two cannot stand
together, the earlier Act stands impliedly repealed by the latter Act, See Maxwell on
Interpretation of Statutes, 10th Ed. at page 161 and a leading case of Kariapper V.
Wijesinha (1968) A.C 716. In Goodwin V. Phillips (1908) 7 C.L.R reproduced in
Statutory Interpretation in Australia by D.C. Pearce Second Edition, at P. 162) Griffith
C.J. (as he then was) said:-

“........... where the provisions of a particular Act of Parliament dealing with a

particular subject matter are wholly inconsistent with the provisions of an earlier Act
dealing with the same subject matter, then the earlier Act is repealed by implication. It
is immaterial whether both Acts are Penal Acts or both refer to civil rights. The former
must be taken to be repealed by implication. Another branch of the proposition (which
is relevant to this Case) is this, that if the provisions are not wholly inconsistent but
may become inconsistent in their application to particular cases, then to that extent the
provisions of the former Act are excepted or their operation is excluded with respect
to cases falling within the provisions of the later Act.”

I respectfully agree with the principles of construction as stated by the learned trial judge. But
with respect, I think he misdirected himself when he held that the Succession Act was a later
enactment to the Registration of Titles Act. The learned trial judge held that the Succession
Act was enacted in 1965 but according to the date appearing at the beginning of the
Succession Act (Cap. 139) the date of commencement is indicated as 15th February, 1906.
There is nothing in the Act to show that S. 233 was amended or added to the Act in 1965 On
the other hand the Registration of Titles Act (Cap. 205) was enacted in 1922 by ordinance
No.22 of 1922 and appears to have commenced on 1st May 1924. But the learned trial judge
surprisingly held that the Act was made in 1965. Again there is nothing in the Act to indicate
that S. 189 was added to the Act in 1965. It is not clear therefore how the trial judge arrived at
the finding that the Succession Act was made in 1965.

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It seems plain to me that the Succession Act was made in 1906 and is therefore an earlier Act
to the Registration of Titles Act which was made in 1922. The decision of the Court of
Appeal in Barclays Bank V. Gulu (1959) E.A. 541 supports my view that the Registration of
Titles Act was made in 1922. In that case Sir Kenneth O’Connor P. said at page 549;

“In 1922 the registration of Titles Ordinance (Cape 102 of the 1923 Revised Edition
of the Laws and now Cap. 123 of the 1951 Revised Edition) was enacted which
introduced Torrens System of registration of title. This repealed the Registration of
Titles Ordinance 1908 and the Equitable Mortgages Ordinance 1912 and by S. 3
provided that except so far as was expressly enacted to the contrary, no Ordinance or
rule so far as inconsistent with the Ordinance should apply to land whether freehold or
leasehold which was under the operation of the Ordinance.”

It follows, therefore, that the Succession Act being an earlier Act could not amend or repeal
by implication the Registration of Titles Act which is a later Act. Moreover, the two Acts do
not deal with the same subject matter. The Succession Act is a general Act dealing with the
law of Succession to both movable and immovable property, whereas the Registration of
Titles Act is a Special Act dealing with registered land. Since the Registration of Titles Act is
both a later and special Act its provisions which are inconsistent with those of the Succession
Act, which is earlier and general, must prevail over those of the latter Act.

In my view, Section 3 of the Registration of Titles Act makes this point clear when it
provides,

“Except so far as is expressly enacted to the contrary, no Act or rule so far as

inconsistent with this Act shall apply or be deemed to apply to land whether freehold
or leasehold which is under the operation of this Act. This Act shall not be construed
as limiting or abridging the provisions of any law for the time being in force in
Uganda relating especially to the property of married women”

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I therefore think that Mr. Kiingi is correct in saying that this section makes the Act a special
enactment whose provisions prevail over the provisions of another inconsistent law dealing
with registered land. In Souza Figueiredo & Co Ltd V. Moorings Hotel Ltd (1960) E.A. 926,
it was held that no equity could co-exist with the provisions of Sections 3 and 51 of the
Registration of Titles Act if it was
inconsistent with these Sections. Sir Kenneth O’Connor P. said at page 939,

“Of course an equity can co-exist with the provisions of 5.3 and S.51 of the Ordinance
so long as the equity is not inconsistent with these Sections.”

The relationship between the Succession Act and the Registration of Titles Act has been
considered in the cases of Kawalya Kagwa V. Registrar of Titles HCCS No. 627/74
(unreported) and Figueiredo V. Talbot (1962) E.A. 167. In Kawalya Kagwa V. registrar of
Titles, Wambuzi C.J. said,

“As to the last question as to whether the Registrar of Titles can register any transfers
executed by the applicant as executrix, the answer must be in the negative. I accept
the very plausible arguments of Mr. Katera, counsel for the applicant, to the effect that
provisions of the Succession Act already referred to confer power upon an executor or
administrator to dispose of all property of the deceased person. However, the
Succession Act vas enacted on 5th February, 1906 and the Land Transfer and
Registration of Titles Acts on 15th November 1944 and 1st May 1924 respectively.
The two latter Acts were later in time and special acts dealing with special subjects
whereas the former Act is general. Such provisions in the later Acts as are inconsistent
with the provisions in the earlier Act must curtail those provisions to the extent of the
inconsistency. In other words, whereas a non-African executor may be able to dispose
of personal and real property of the deceased person under the Act, his ability so as to
deal with real property is curtailed by the Land Transfer and the Registration of Titles
Act (See Cases on Statute Law 7th Edition page 374)”.

In Firu1redo V. Talbot (supra) the Court of Appeal hold that the general provisions of Section
214 of the Succession Ordinance must be read subject to the specific provisions of S. 143 of

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the Registration of Titles Ordinance which was also a later enactment. Sir Alastair Forbes V-P
who wrote the leading judgment with which the other members of the court concurred, said,
at page 171,

“Where more persons than one are registered as proprietors, “the registered
proprietor” must mean all such persons; and the definition of proprietor in S.2 of the
Ordinance supports this view. The Section does not indicate that one of several
registered proprietors may make a deposit of certificate of title. Here “registered
proprietor” of the party is Mrs. Talbot and Mr. G.B.Talbot. There is no evidence
whatever that Mr. G.B. Talbot joined with Mrs. Talbot in depositing the duplicate
certificate of title with the appellant with intent to create a security thereon. In my
opinion, unless both executors joined in such deposit, the deposit would be ineffective
to create an equitable mortgage. Reference was made to S. 27 of the Succession
Ordinance (Cap. 34) which reads (omitting the illustrations);

‘274.When there are several executors or administrators, the powers of all may
in the absence of any direction to the contrary be exercised by any one of them
who has prove will or taken out administrations”

That general provision must however, be read subject to the specific provisions of the
Ordinance which is also a later enactment. Section 143 ordinance provides, inter alia:

“If in any case probate or administration is granted to more persons than one
all of them for the time being shall join and concur in every instrumental
surrender or discharge relating to the land, lease or mortgage.”

While this does not specifically refer to the creation of an equitable mortgage by
deposit of title deeds, it is the obvious intention of the legislature that in relation to
registered land all executors must concur in transaction affecting the land. In these
circumstances I think the term “registered proprietor” in S. 138 of the Ordinance is to

13
 e construed as I have indicated which is the ordinary meaning of the words, and is not
to be read subject to S.274 of the Succession Ordinance.”

Since the provisions of the Registration of Titles Act prevail over the provisions of the
Succession Act in the event of any inconsistency, the provisions of S. 233 of the Succession
Act must be read subject to the provisions of S. 189 of the Registration of Titles Act.

As regards the Administration of Estates (Small Estates) (special Provisions) Decree, it is true
that it was made in 1972, and is therefore a later enactment to the Registration of Titles Act.
However, like the Succession Act, the Decree is of general application to administration of
small estates, consisting of both moveable and immoveable property whether registered or
unregistered. The Registration of Titles Act, as pointed out earlier, is special enactment
dealing with specific and different subject matter. Section 1(4) of the Decree gives the court a
general power to revoke, alter or annul a grant of probate or letters of administration for just
cause. Section 189 of the Act on the other hand is a specific provision granting protection to a
bona fide purchase for value without notice who is a registered proprietor. The two provisions
do not appear to be dealing with the same subject matter nor do they appear to conflict in
their application. In my opinion, for the reasons already given, the provisions of S. 1(4) of the
Decree must also be read subject to the provision of S. 189 of the Registration of Titles Act.

Consequently I am of the view that the trial judge erred in holding that the provisions of S.
233 of the Succession Act and S. 1(4) of the Administration of Estates (Small Estates)
(Special Provisions) Decree 1972 repealed or excluded by implication the application or
operation of the provisions Of S. 189 of the Registration of Titles Act.

The next three grounds of appeal were argued together by counsel for the appellant, but I
shall consider the second and third grounds first. These are stated as follows:

“2. The learned trial Judge erred in law when he resorted to Statutory interpretation of
the provisions of the succession Act and the Administration of Estates (Small Estates)
(Special Provisions) Decree 1972 in deciding the issue whether the appellant upon
Registration acquired an indefeasible title.

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 3. The learned trial Judge misdirected himself on vital point of law when in his
Judgment he erroneously attempted to deal with the issue: Whether the letters of
Administration granted by the Mengo Court which the trial judge had annulled for
“just cause” could yet become a good source or root of a good title to a bona fide
purchaser with or without notice, instead of answering the question whether a bona
fide purchaser for value from a registered proprietor like the Appellant who Entered
his deed of transfer on the Register and become the registered proprietor by virtue of
the said instrument of transfer acquired an indefeasible right or title to the suit
property, notwithstanding, the infirmity of his author’s title.”

Mr. Kiingi for the appellant submitted that the learned trial judge ought to have looked at the
Registration of Titles Act only in deciding the case. He submitted further that the first issue
was wrongly framed. The issue, he argued was not whether the letters of administration were
capable of passing a good title but whether appellant could obtain a good title from a person
who purportedly transferred land to him, that is, whether the appellant having been registered
as proprietor was protected by law. Counsel contended that the deceased’s interest in the
property did not pass when Dick Semanda obtained letters of administration, but when he
was registered contended further that Semanda having subsequently transferred the property
to Sendaula, the latter Obtained a good title so long as he did not know of the former’s fraud.
Mr. Kiingi then submitted, that even if the magistrate lacked jurisdiction or that Semanda
obtained registration by fraud, the annulment of the letters of administration could not affect
the titles of bona fide purchasers. It was his submission that there is nothing in Section 233 of
the succession Act to show that once the letters of administration are annulled the subsequent
purchaser loses his title.

Mr. Mulira, for the respondent, conceded that the learned trial judge’s statutory interpretation
was baffling and could not be of much use. He also conceded that the issue was whether the
appellant was protected as a bona fide purchaser. He pointed out that S. 189 of the
Registration of Titles Act protects only bona fide purchasers registered without fraud or error,
and does not protect every registered proprietor. He submitted that if the registration is visited
with some infirmity, the purchaser is not protected. Learned counsel also contended that
nothing legal could flow from illegal proceedings. He cited the case of Mawji V. Arusha

15
General Stores (1970) E.A. 137. in support of this proposition.

The first two issues agreed upon by the parties at the trial required the trial judge to decide
whether the letters of administration granted to Semanda were capable in law of conferring
title to the suit property, and secondly whether third parties could derive good title at law
from a transaction arising out of such letters of administration. It seems to me rather strange
that the appellant now complains that the trial judge erred in considering the issue whether
the appellant as a bona fide purchaser for value had obtained an indefeasible title. That latter
issue was the third agreed issue framed at the trial.

Be that as it ray it seems to me that the first two issues were wrongly framed. The learned
trial judge dealt with the first issue framed and then found that the second issue was
inaccurately framed when he said,

“The next issue I have to consider is whether third parties could derive good title at
law from such letters of administration. I would observe that is an administrator to
whom letters of administration are granted who derives title from the letters of
administration and not third parties. If that be the legal position, then the issue is
improperly or inaccurately framed. However whether third parties could derive good
title at law from the letters of administration depends on the facts and or
circumstances of each particular claim.”

However, the trial judge does not seem to have reframed the issue. With respect I think the
first to issues could have been combined into one namely whether the title of Prof. Musoke to
the suit property was transferred to third parties through fraud. The third issue which was
whether the appellant was a bona fide purchaser for Value without notice of the fraud was
well framed and could then have become the second issue.

In deciding the issues before him the learned trial judge had to consider the evidence relating
to the manner in which the name of Prof. Musoke had been removed from the register. This

16
evidence included the circumstances under which the letters of administration had been
obtained by Semanda, how he registered himself on the register, how he transferred the title
to Sendaula and how Sendaula transferred to the appellant. All this evidence was relevant to
the issues before the court.

In my opinion, the question of interpretation of the various statutes in relation to each other
was not strictly necessary to determine those issues. I agree with both counsel that the learned
trial judge’s interpretation was rather baffling for the reasons already given. What was called
for was the application of the relevant provisions of the law to the issues before him. Nor do I
think that it necessary to make an order annulling the letters of administration since that order
was not prayed for nor essential to the decision of the case as Semanda not a party to this suit.
An order directing the Registrar of Titles to cancel the appellants name from the resister and
reinstate the name of prof. Musoke was all that was required. I agree with the Submission of
counsel for the appellant that annulment of letter of
administration obtained by Semanda could not automatically affect the title of a subsequent
bona fide purchaser who was not a party to Semanda’s fraud. Therefore I do not see the
relevancy of the argument of counsel for the respondent that nothing legal could flow from an
illegal order.

The substantial issue which arose for consideration at the trial and in this appeal was whether
the appellant was a bona fide purchaser for value without notice. In the fourth ground of
appeal the appellant complains that the learned trial judge erred in law in failing to hold that
the appellant’s title as a bona fide purchaser for value of the suit property without notice of
any fraud or of the Respondents interest enjoyed the protection afforded by the provisions of
the Registration Titles Act and the relevant case law.

Mr. Kiingi submitted that since the trial judge found that Semanda and Sendaula were guilty
of fraud but did not so find in case of the appellant, he ought to have decided the case in
favour of the appellant. Counsel submitted further that the appellant was not guilty of fraud
because he had no notice of it. He contended that the appellant had no duty to make inquiries
as to how previous owners had acquired their titles, nor was mere knowledge of unregistered
interest sufficient to clothe him with fraud. It was his contention that fraud means actual
dishonest dealing but does not include constructive fraud. Learned counsel then submitted

17
that since the appellant was a bona fide purchaser without notice of any fraud he was
protected by the provisions of Sections 145, 184 of the Registration of Titles Act.

In reply Mr. Mulira submitted that the issue whether the appellant was a bona fide purchaser
as specifically framed, and that there was sufficient circumstantial evidence to connect the
appellant with acts of fraud. Learned counsel contended that the cheque the appellant issued
for payment of the suit property was a forgery as it was signed by him in the name of his
infant son. He submitted further that M/S Musoke & Co.
Advocates acted for the appellant in transferring the suit property and since the advocates
know of the respondent’s interest in the property the appellant must be presumed to have had
constructive notice of the interest. Counsel also contended that the advertisement in the
newspaper regarding respondent’s intention to apply for probate as notice to the appellant of
the respondents interest.

The allegations of fraud were raised in paragraphs 7 and 8 of the plaint as follows:

“7. Alternatively the plaintiff wi1l contend that the defendant became the
registered proprietor of the land in question through fraud and as such his title
cannot be maintained in law.

PARTICULARS OF FRAUD

(a) On Or around the 5th day of January, 1982 one Dick Sengowami Semanda
claiming to be the Administrator of the estate of the late
Professor Latimer Musoke caused Chief Registrar of Titles to enter hi name on
the resister as the proprietor of the said land

(b) On or around the 29th day of April, 1982 the said Dick Sengomwami Semanda
purported to transfer the said land to one Lameka Nteyafa Sendaula although
the said Dick Sengomwami Semanda knew or ought to have known that he
had no lawful authority to effect such transfer.

18
 (c) On or around the 29th day of December, 1982, the Defendant became the
registered proprietor of the said land when he knew or ought to have known
that the said transaction was fraudulent.

8. The Defendant knew or ought to have known that the plaintiff was One of the
lawful executors/ executrix of the estate of the registered
proprietor of the land in question in as such as he plaintiff’s application for
grant of probate was duly advertised in the “Uganda Times”
of the 3rd day of October, 1980, pursuant to an order of this Honourable Court.
A Photostat copy of the said advertisement is attached herewith and marked
“B”.”

The appellant denied these allegations in paragraphs 5 and 6 of his written statement of
defence where he pleaded,

“5. As to Para 7 of the amended plaint the Defendant avers that he had no
knowledge or Notice of any fraud and he avers that at all material times he
was a bona fide purchaser for value and he contends that his title is good and
protected by law.

6. In answer to para 8 of the amended plaint the Defendant avers that he has no
knowledge of the said newspaper and that no copy thereof has been served on
him as alleged in the plaint.”

In his judgment the learned trial judge found that Semanda obtained letters of administration
from the Mengo Court by fraud. In this connection, he said,

“It was shown in evidence and it was not contradicted by the defence that the
plaintiff’s intention to apply for probate and administration of the estate of the late

19
 Professor Latimer Musoke was made public as it was advertised in Uganda Times
newspaper and it appeared in the issue of that paper dated 3rd October, 1980, (Exhibit
P.11). About seven months later this court granted probate to her (Exhibit P.11).
Accordingly, Dick Sengomwami Semanda must be presumed to have known and
noticed that fact. In acting the manner in which be did his intention was clearly to
defraud the plaintiff of the property. It was the plaintiff’s evidence which was not
contradicted by the defence that Dick Sengomwami Semanda, to whom the letters of
administration were granted, was not a son of the late Professor Latimer Musoke, as
claimed, as he was neither named nor listed in his will.”

The 1earned judge found that Sendaula to whom Semanda transferred the suit property was
not a bona fide purchaser for value. In his judgment, the trial judge said,

“According; to the evidence it cannot be maintained that Sendaula obtained the house
as a bona fide purchaser for Value. In Exhibit P.VI he claimed to have been the
registered proprietor of the house in question in 1979. In Exhibit P. XIV, he posed as a
son of one L. Sendaula and yet when he transferred the property to the defendant
(exhibit P. xv) he posed as a son of one Eriabu Mpagi. One cannot pose or claim to be
a son of two different fathers in transactions such as these unless one has a fraudulent
intent.”

On the evidence before him, I am of the opinion that the learned trial judge was justified in
finding that both Semanda and Sendaula obtained title to the suit property through fraud.
Indeed both of these findings were not seriously challenged in this appeal.

However, the learned trial judge appears not to have adequately dealt with the issue whether
the appellant was a bona fide purchaser for value without notice of the fraud of Semanda or
Sendaula. In his judgment the trial judge referred to the appellants defence when he said,

20
 “It is the claim of the defendant in case that he bought the house from Lameck
Nteyafa Sendaula as a bona fide purchaser for valuable consideration.”

After holding that the determination of this issue depended on statutory interpretation of the
relevant statutes he concluded that the appellant could not be protected after the letters of
administration had been annulled for just cause.

While, therefore, the learned trial judge appears to have had this issue in mind, he did not
make a specific finding whether the appellant was guilty of fraud and was therefore not a
bona fide purchaser for value whose title could be protected by law. He may have found it
unnecessary to deal with the issue in detail since he based his decision on the reasoning that
the annulled letters of administration could not become a good root of title to a bona fide
purchaser for value even without notice.

This being a first appeal this court has power under rule 29(1) (a) of the Rules of the court to
re-appraise the evidence and draw its own inferences of facts. It is well settled that an appeal
to this court from a trial in the High Court is by way of retrial, and this court has the duty to
reconsider the evidence, evaluate it itself and draw its own con1usions while bearing in mind
that it has neither seen nor heard the witnesses and making due allowance for this. See Selle
V. Associated Boat Company 1968) E.A. 123 at page 126.

Before I examine the evidence which was adduced on the issue whether the appellant was a
bona fide purchaser it is necessary, in my view, to consider the doctrine of bona fide
purchaser under our law. This common law doctrine is provided for under S.189 of the
Registration of Titles Act. The section however does not define who is a bona fide purchaser,
but merely provides for his protection.

There is a dearth of Ugandan or East African authorities on this section. However, in the case
of Robert Lusweswe V. G.W. Kasule &Another Civil suit No. 1010 of 1983 (unreported).

I had occasion to consider this section and Said,

21
 “The effect of this section is that once a registered proprietor has purchased the
property in good faith his title cannot be impeached on account of
the fraud of the previous registered proprietor. A bona fide purchaser therefore obtains
a good title even if he purchases from a proprietor who previously obtained by fraud.

However, before a purchaser can claim the protection of S. 189 of the Registration of
Titles Act, he, must act in good faith. If he is guilty of fraud or sharp practice he will
cease to be innocent and therefore lose the protection. An action against him under
Section 184 (c) of the Act which provides in relevant parts as follows:

“184. No action of ejectment or other action for recovery of any land shall lie or be
sustained against the person registered as proprietor under the provisions of this Act
except in any of the following cases –

(a)
(b)
(c) the case of a person deprived of any land by fraud as against a person
deriving otherwise than as a transferee bona fide for value from or through a
person registered through fraud;

(d)

(e)

and in any case other than as aforesaid the production of the registered
certificate of title or lease shall be held in every court to been an absolute bar
and estoppel to any such action against the person named in such document as
the grantee, owner, proprietor or lessee of the land there in described an law or
equity to the contrary notwithstanding.”

As regards the sanctity of the register, I said,

“Therefore while the cardinal rule of registration of titles under the Act is that a
register is everything the court can o behind the fact of fraud on of the transferee See
Olinda De Souza Figueiredo V. Kassamali Nanji (1962) E.A. 756 Harshad Ltd V.

22
 Globe Cinema Ltd & others (1960) E.A.1046, Re Malo (1964) E.A. 731, Wainiha
Saw milling CO. Ltd V. Wainone Timber Co. Ltd (1926) AC. 101, Gibbs V. Messer
(1891) A.C. 248 64 T.L.Rep. 237 Assets Co. Ltd V. Mere Roihi & others. (1905)
A.C.176, 92.T.L.Rep. 397.”

The next question to consider is the meaning of fraud as used in the Act. It I think well settled
that fraud means actual fraud or some act of dishonesty. In Wainiha Saw milling co. Ltd V.
Wainone Timber Co. Ltd. (1926) A.C 101, Lord Buckmaster defined fraud, at page 106, as
follows:

“Now, fraud clearly implies some act of dishonesty. Lord Lindley in Assets Co. V.
Mere Roihi (1905) A.C.176., states, “Fraud in these actions i.e. actions seeking to
affect a registered title means actual fraud, dishonesty of some sort not what is called
constructive fraud – an unfortunate expression and one very apt to mislead, but often
used for want of a better term to denote transactions having consequences in equity
similar those which flow from fraud.”

Where there are a series of subsequent transfers, for the title of the incumbent registered
proprietor to be impeachable, the fraud of the previous proprietors must be brought home to
him. In Assets Co. Ltd V. Mere Roihi & others (supra) Lord Lindley said,

“Further it appears to their Lordships that the fraud which must be proved in order to
invalidate the title of a registered proprietor for value whether he buys from a person
claiming under a title certified under the Native Lands Act must be brought to the
persons whose registered title is impeached or to his agents. A fraud by persons from
whom he claims does not affect him unless knowledge of it is brought home to him or
his agents. The mere fact that he might have found out the fraud had he been more
vigilant and had made further inquiries which he omitted to make does not itself prove
fraud on his part. But if it be shown that his suspicions were aroused and that he
abstained from making inquiries for fear of learning the truth, the case is very
different and fraud maybe properly ascribed to him.”

The respondent maintains that there was adequate circumstantial evidence to saddle the
appellant with fraud. It was submitted that the appellant knew of the respondent’s

23
unregistered interest through the advertisement in the newspaper of her intention
to apply for probate, and secondly, through M/S Musoke & Co. Advocates who were acting
for both appellant and Sendaula. But the appellant contended that mere knowledge of
unregistered interest was insufficient to clothe him with fraud. He relied on section 145 of the
Registration of Titles Act which provides,

“Except in the case fraud, no person contracting or dealing with or taking or

proposing to take a transfer from the proprietor of any registered land, lease or
mortgage shall be required or in any manner concerned to inquire or ascertain the
circumstances in or the consideration for which such proprietor or any previous
proprietor thereof was registered, or to see to the application of any purchase or
consideration money, or shall be affected by notice actual or constructive of any trust
or unregistered interest, any rule of law or equity to the contrary notwithstanding and
the knowledge that any such trust or unregistered interest is in existence shall not of
itself be imported as fraud.”

I agree that the object of this section and indeed the entire Act is to save persons dealing with
registered proprietors from the trouble and expense of going behind the register in order to
satisfy themselves of its validity, and thus simplify and expedite the process of transfer of
title. But the section cannot be called in aid in cases of fraud. The section stipulates that mere
knowledge of unregistered interest cannot of itself be imputed as fraud. Therefore, in my
view, where this knowledge is supported by other circumstances it may amount to fraud.

In John Katarikawe V. William Katwiremu & Another, Civil Suit No 2 of 1973 (unreported)
the High Court, while dealing with S.145 of the Act, said,

“Although mere knowledge of unregistered interest cannot be imputed as fraud under

the Act it is my view that where such knowledge is accompanied by a wrongful
intention to defeat such existing interest that would amount to fraud. In the absence of
a statutory definition of fraud I would adopt the definition in a similar Kenyan Statute
which defines fraud as “fraud shall on the part of a person obtaining registration
include a proved knowledge of the existence of an unregistered interest on the part of

24
 some other person, whose interest he knowingly and wrongfully defeats by such
registration.” I take this view because I doubt whether the framers of the Act ever
intended to encourage dishonest dealings in land such as manifest in this case.”

This decision was approved by this court in the case of Marko Matovu & others V.
Mohammed Sseviri & Another, Civil Appeal No. 7 of 1978 (unreported). The brief facts of
the case were that the appellants applied for a lease on 17/10/73 and after inspection of the
land by the local land Committee on 21/11/75, they were offered a lease on 27/7/76, which
they accepted on 10/10/76, and paid the prescribed fees. When they went to survey the land,
they found that the first respondent had already surveyed it for himself and had started
fencing. The first respondent obtained title on 2.9.76. The appellants instituted the suit for
cancellation of that title on the ground that it was obtained by fraud and in breach of the rules
of natural justice. The trial Judge held that there was something fishy about the respondent’s
application but he refused to find that the irregularities amounted to fraud, and gave judgment
for the respondent.

On appeal, the appellants contended, inter alia, that the learned judge erred in law and in fact
in holding that fraud had not been proved. The court of Appeal found that the evidence
showed that the respondent’s application was deliberately back-dated to support the view that
the inspection of this land was carried on 21.11.75. It also
found that there was an attempt to falsify the dates on the respondent’s application and other
documents were destroyed and replaced by others obtained by underhand means. Further
there was evidence to show that the respondent was assisted by some agents of the Land
Commission to defeat the appellants’ right to title of which the respondent was fully aware.
The court also observed that the Commission had entertained another application on the same
land on which the appellants were the customary tenants without giving them a hearing. In
allowing the appeal, the court said,

“Not only was that unfair play but also fraud. It is fraud if, as it was held
in Katarikawe v. Katwiremu & Another, Civil Suit No. 2 of 1973, a person
procures registration to defeat an unregistered interest on the part of another person of

25
 which he is proved to have had knowledge.”

In the present Case it was not disputed that the respondent was the widow of Late Prof.
Musoke who was the registered proprietor of the suit property, and that she obtained probate
in respect of this property from the High Court before the appellant became the registered
proprietor of the property. The notice in the newspaper
about her intention to apply for probate was notice to the whole world and therefore the
appellant may be said to have had knowledge of it. On being granted probate, the respondent
acquired a registrable interest in the property and could have lodged a caveat to protect her
interest. However, I do not think that notice in the newspaper was sufficient by itself to give
the appellant actual notice of her interest in the property at the time he purchased it, unless it
was supported by other evidence.

It was contended for the respondent that M/S Musoke & Co. Advocates were acting on behalf
of Sendaula and the appellant, and that since the advocates knew of the unregistered interest
of the respondent and the fraud of Sendaula that knowledge must be imputed on the
appellant. It is common ground that M/S Musoke & Co. Advocates were acting on behalf of
Sendaula. It is also well established from the evidence that by the time, the advocates
prepared the sale agreement of the suit property between Sendaula and the appellant, they
were aware of the respondent’s interest in the property and the alleged fraud of Sendaula.
However, there is no direct evidence to show that they were acting for the appellant in this
transaction. Counsel for the
appellant submitted that the advocates were not acting for the appellant.

There were no other advocates except Musoke & Co. who were involved in the purchase and
transfer of property from Sendaula and the appellant. Musoke & Co. Advocates prepared the
Memorandum of Agreement, and witnessed both signatures of Sendaula and the appellant.
The same advocates received the first instalment of the purchase money of Shs. 900,000/=
from the appellant on behalf of Sendaula for clearing off the mortgage on the title. The
advocates also witnessed the signatures of Sendaula and the appellant on the transfer. In his
evidence the appellant did not deny or admit that the advocates were acting for him but he
admitted that they witnessed the Memorandum of Agreement. On this evidence it seems to

26
me that the advocates
were acting for both parties to this transaction.

If the advocates were acting for the appellants as well, could notice of the respondents’
unregistered interest and of the fraud of Sendaula be imputed on the appellant? It seems to me
that where a purchaser employs an agent, - such as advocate to act on his behalf the notice he
receives, actual or constructive, is imputed on the purchaser. And similarly where the
advocate acts for both parties any notice he acquires is ordinarily imputed on both parties.
There is an exception to the principle where the agent deliberately defrauds the purchaser.

In their book, The Law of Real Property 3 rd Edn. at p.129, Megarry and Wade write as
follows:

“If a purchaser employs an agent such as a solicitor any actual or constructive notice
which the agent receives is disputed to the purchaser. The basis of this doctrine is that
a man who empowers an agent to act for him is not allowed to plead ignorance of his
agent’s dealing. Thus where a solicitor discovered an equitable mortgage on the title
was deceived by a forged receipt into believing that the mortgage had been
discharged, the purchaser had imputed notice of mortgage and was bound by it:

Jared v. Clements (1903) 1 Ch. 428.”

The doctrine of imputed notice seems to have been provided for in S.3 of the Conveyancing
Act 1882 which was considered in the case of Bakeman & Another v. Hunt and Others (1904)
2 K.B. 550, where , Stirling L.J. said, at page 540:

“It was however contended that Eliot had not actual but constructive notice that full
amount had not been paid. This was sought to be made out as follows: It was said that
when Harrison appealed to Line to execute a transfer to Elliot he must be taken to
have been acting as Elliot’s solicitor, and that if an independent solicitor had been
employed by Elliot and had made the like application he would have discovered the
truth, and consequently that Elliot was brought within the terms of the Conveyancing
Act 1882, S.3 sub- S.l

27
 which provides that “ a purchaser shall not be prejudicially affected by notice of any
instrument fact or thing unless … (iii) in the same transaction with respect to which a
question of notice of the purchaser arises it would have come to the knowledge of his
solicitor or other agent, as such, if such inquiries and inspections had been made as
ought reasonably to have been made by the Solicitor or other agent”

The Conveyancing Act 1882 is a statute of general application and is therefore applicable in
this country by virtue of the order-in-Council 1902, and the Judicature Act 1967.

There was other evidence from which appellant’s notice of fraud could be inferred. In his
own evidence, the- appellant stated,

“Sendaula’s brother approached me and told me about the land and the house. I told
the brother to tell Sendaula to come to my office. I asked Sendaula to go to the house.
It was a Saturday we met a Mr. Ochiti. He asked if I was a lawyer. I told him I wanted
to buy the land. I asked him to allow me to
inspect the house. I inspected the house. I also asked him in what capacity he was
there. He told me that he was a tenant and that their lease would expire at the end of
December, 1983.

The following day I went to make a search. I looked at the register. I found that the
registered owner was Sendaula.”

It may be that the appellant had no duty to inquire as to whose tenant Mr.Ochiti was, but the
fact that he asked the tenant in what capacity he was occupying the house when the purported
landlord, Sendaula, was with him was very strange. In view of the fact that Sendaula had
obtained the title to the land by fraud, it is possible that Sendaula and Ochiti did not know
each other. It should also be noted that the appellant did not go further to ask Ochiti who was
his landlord. Instead he went to investigate the title at the Land Office. It is reasonable to
infer from the appellant’s conduct that his suspicions were aroused but that he feared to learn

28
the truth from the tenant, by inquiring from him who was his landlord. Had he done so he
would have definitely found out that Ochiti’s landlord had been Prof. Latimer Musoke. As
Lord Lindley said in Assets Co. Ltd. V. Mere Roihi (supra) where the purchaser’s suspicions
are aroused but he abstains from making inquiries for fear of learning
the truth, fraud may be properly ascribed to him.

In the case of Lusweswe v. Kasule (Supra) the plaintiff was the registered proprietor of two
plots of land, Plot 120 and Plot 121 (Mailo Register Kyadondo Block 249 at Gaba). He built
a residential house on Plot 120 with a drive-in- passing through Plot 121, and both plots were
enclosed in one compound. The first defendant forged a transfer to himself and got registered
as the proprietor of Plot 121. He then transferred to the second defendant who took
possession of both plots and leased the house on Plot 120, still registered in the name of the
plaintiff, to an Embassy. The plaintiff sued the defendants for an order cancelling their
certificates and reinstating his name on
the register, on grounds of fraud. The second defendant pleaded that he was a bonafide
purchaser for value.
It was held that the circumstantial evidence adduced was incompatible with the second
defendant being a bona fide purchase and was only consistent with fraud. The court took into
account the occupation of Plot 120 by the second defendant when he had purchased only Plot
121, his apparent failure to inquire from the neighbours the ownership of the two plots and
his failure to open up the boundaries of the two plots.

The last piece of evidence relied on by the respondent to prove fraud on the part of the
appellant was the cheque issued by the appellant to pay the balance of the purchase price.
When cross-examined on this matter the respondent stated,

“I have forgotten my account Nos. in Grind lays Bank. One is in my names and the
other is in the names of my child. I operate both accounts. I deposit as well as
withdraw. David Kasoma is my child. He is 6 years old. He cannot sign a cheque. I
signed the cheque. The cheque was signed by me in the names of Kasoma.”

29
Counsel for the respondent argued that the cheque was a forgery. Although it may not be
possible on the evidence to find whether the cheque was a forgery or not, I am of the view
that it was extremely strange that the appellant signed in the name of his minor son, instead of
signing for him or in his own right as a signatory. If his son could not sign any cheque, then
the appellant must have been the signatory. This unexplained strange conduct may be seen as
an attempt by the appellant to conceal the fraud.
While the burden of proving the case lies on the plaintiff, it is well settled that the onus of
establishing the plea of a bona fide purchaser lies on the person who sets it up. It is a simple
plea and is not sufficiently made out by proving purchase for value and leaving it to the
plaintiff to prove notice if he can. In Pilcher V. Rawlins (1872) 7 Ch. App. 259, Sir, James
L.J. said at P.268,

“I propose to apply myself to the case of a purchaser for valuable consideration

without notice obtaining upon the occasion of his purchase and by estate, some right,
some legal advantage, and according to my view of the established law of this court.
Such consideration without notice is an absolute unqualified, unanswerable to the
jurisdiction of this court. Such a purchaser
where he has once put in that plea may be interrogated and tested to any extent as to
the valuable consideration which he has given in to show the bona fide or mala fides
of his purchase, and also the presence or absence of notice; but once he has gone and
has satisfied the terms of the plea of purchase for valuable consideration without
notice, then according to my judgment, this court has no jurisdiction whatever to any
thing more legal advantage which he has obtained whatever it may be. In such a case
a purchaser is entitled to hold that which without breach of duty, he has had conveyed
to him.”

In a later case, Wilkes V. Spooner (1911)2 K.B. 473, the same principle was reiterated by
Farwell L.J. when he said at P. 480.

“The onus in such cases of showing absence of notice lies I think on the defendant. It
was held in the court of Appeal in Attorney General V. Bishosphated Guano Co.
(1879) 11 Ch. D. 327 (at p. 337 that under such circumstances it is not a case of a

30
 defence that the defendant is a purchaser for value, and then a reply that the defendant
is a purchaser for value without notice, the onus of proving which is on the
defendant.”

In view of the evidence I have considered regarding the conduct of the appellant, I am unable
to find that he succeeded in establishing that he was a bona fide purchaser for value without
notice of the fraud of the previous registered proprietors through whom he derived title. On
the contrary there was, in my view, sufficient circumstantial evidence to saddle him with
fraud. That being so, the appellant cannot claim the protection of S. 189 of the Registration of
Titles Act.

The last ground of appeal is that the learned trial judge erred in law in holding that the
effective protection afforded to the appellant under S.189 of the Registration of Titles Act
would have left the respondent without a remedy. Mr. Kiingi submitted that the respondent
could sue Semanda or Sendaula for recovery of damages under S.186 of the Act. Mr. Mulira
replied that the respondent was entitled to have left the respondent without a remedy. Mr.
Kiingi submitted that the respondent could sue Semanda or Sendaula for recovery of damages
under S. 186 of the Act. Mr. Mulira replied that the respondent was entitled to have
sentimental feelings considered instead of monetary compensation as alternative remedy.

This complaint arises out of the finding by the trial judge when he said,

“Further it cannot be maintained that the annulled letters of administration fro just
cause can yet become a good source or root of title to a bona fide purchaser with or
without notice. It would seem to me inconsistent or contradictory in application of the
provisions referred to above, that after the letters of administration which in this case
originated the purported transfers of the house in question having been annulled for
just cause the defendant who derived title from or through Sendaula whom as I have
found was registered as proprietor of the house through fraud, is protected, whereas
the plaintiff who was defrauded is to be deprived of the house.”

As I have held, the trial judge misdirected his mind on this issue, but for the reasons I have
given, his error caused no failure of justice. However, there is nothing in that passage to
indicate that the trial judge found that the respondent would have no remedy of compensation

31
which is available under S. 186 of the Act. Nor was the question of sentiments considered or
relevant.
I therefore find no merit in this ground of appeal.

For these reasons, I would dismiss this appeal with costs. The trial judge made an order
directing the Chief Registrar of Titles to reinstate the names of Rebecca Musoke and John
Kazoora as proprietors of the suit property. With respect I think this order was erroneous
because these names had never been entered on the register and therefore could not be re-
instated. The proper order would have been to direct the
Chief Registrar to reinstate the name of Prof. Latimer Musoke on the register as prayed in the
plaint. I would confirm the orders made by the trial judge, subject to this variation.

Dated at Mengo this 10th day of November 1986

B. J. ODOKI
JUSTICE OF APPEAL

32
 IN THE COURT OF APPEAL
AT MENGO CORAM:
WAMBUZI CJ, LUBOGO AG. J.A. AND ODOKI J.A.) CIVIL APPEAL
NO.12 OF 1985 BETWEEN
DAVID SEJJAAKA NALIMA::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPELLANT AND
REBECCA MUSOKE:::::.::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT Appeal
from the Judgment and order of the High Court of Uganda at Kampala (Ouma Ag. J) dated
26th September 1984.
in
Civil Suit No. 486 of 1983)

JUDGMENT
I have had the opportunity of reading in draft the judgment of Odoki J.A. I agree with him
and the orders made therein.

David L.K. Lubogo

Ag. Justice of Appeal

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