Nelson Ocaya Marie v Kamenge Deudonne and Others (Civil Appeal No. 8 of 2023) [2026] UGSC 16 (21 April 2026)

THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA Coram: Tuhaise, Chibita, Musoke, Madrama E Mugenui, llSC CIVIL APPEAL NO. 08 OF 2023 NELSON OCAYA MARIE APPELLANT VERSUS 1. KAMENGE DEUDONNE 2.IOHN P. KABAYO 3. HOUSING FINANCE BANK LTD RESPONDENTS (Appeal ngainst the decision of tlv Court of Appenl in Cit il Appeal No. 158 of 2015 before Buteera DCl, Bamugenrereire I Musota, JIA delitered on 9th Jnnuary,2023) )udgment of Percy Night Tuhaise, ]SC. I have had the benefit of reading in draft the |udgment prepared by *y learned brother, Hon. Justice Christopher Madrama, |SC. I agree with his analysis, decision and conclusions. Decision of Court Since all members of the Coram agree with the lead judgement, this appeal is allowed with the orders as proposed in therein. Dated at Kampala, this d l!90", * (_ 2026. Percy Night Tuhaise ]ustice of the Supreme Court rJ"-O..,r }\ THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA CryIL APPEAL NO. (}8 OF 20/23 (coRAM: TUHNSE;CHIBITA; MUSOI(E; MADRAMA; MUGENYI; JJ. S.C) NELSON OCAYA MARIE : : : : : : : : : : : : : : : : : ; : : : : : : : : : : : : : : : : : : : APPELLANT Ir'ERSUS I(AMENGE DEUDONNE JOHN P. I{ABOYO : : : : : : : : : : : :: : :: : : : : ::: : : : : : : : : : : :: : :: : :: RESPONDENTS HOUSING FINAIVCE BANK LTD (Appeal from the CourA of Appeal's declslon ln CACA JVO. I58 ol 2015 (Hon. Buterc, DcJi Hon. Bamugemetcl"e and Hon. Mllsotd., JIA) dated. Ogth Janudry, 2023) JUDGMENT OF MIKE CHIBITA, JSC I have had the benefit of reading in draft the judgment prepared by my learned brother, Christopher Madrama, JSC and I agree with his reasoning and his conclusions. lalso agree with the orders he has proposed. al LL .l-.day of 2026 Dated at Kampala this....... on. u stice Mike Chibita SUPREME COURT JUSTICE OF THE NELSON OCHAYA MARIE::::::::::::::: APPELLANT VERSUS 1. KAMENGE DIEUDONNE 2. JOHN P. KABAYO 3. HOUSING FINANCE BANK LTD:::: : ::: :: : ::: : ::: : : : :: : :RESPONDENTS (Appeal from the decision of the Court of Appeal (Buteera, DCI; Bamugemereire and Musota, JJA) dated I January 2023 in Civil Appeal No. 158 of2015) CORAM: HON. LADYJUSTICE PERCY NIGHTTUHAISE, JSC HON. JUSTICE MIKE J. CHIBITA, JSC HON. LADY ]USTICE ELIZABETH MUSOKE, JSC HON. MR. JUSTICE CHRISTOPHER MADRAMA IZAMA, JSC HON. LADY JUSTICE MONICA K. MUGENYI, JSC JUDGMENT OF ELIZABETH MUSOKE, JSC I have had the advantage of reading the judgment of my learned brother Madrama, ISC and I concur with his conclusion, the reasons for the same, and with the orders he has proposed. ,oa€ .2ffi* Dated at Kampala this . day of.. Elizabeth Musoke lustice of the Supreme Court THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA CIVIL APPEAL NO. 08 OF 2023 10 15 20 25 30 THE REPUBLIC OF UGANDA, IN THE SUPREME COURT OF UGANDA AT KAMPAI.A (C0RAM:TUHAISE, CHIBITA, MUS0KE, MADRAMA, MUGENYI JJSC) CIVIL APPEAL NO 08 OF 2023 NELSON OCAYA MARIE} APPELLANT VERSUS 1. KAMENGE DEUDONNE} 2. JoHN. P KABAYo) 3. HOUSING FINANCE BANK LTD) ............RESP0NDENTS (Appeal from Court of Appeal's declsion rn CACA N0 /58 ot 2015 (Hon. Butera, DCJ, Hon. Bamugemereire & Hon. Musota, JJA) dated 912023) JUDGMENT OF CHRISTOPHER MADRAMA IZAMA, JSC This is a second appeal chaLl.enging the judgment of the Court of Appeal which uphetd the High Court's dismissaI of the AppetLant's suit in HCCS No. 465 of 2012. The AppeLtant, Ne[son 0chaya Marie, disputes the findings of the lower courts concerning the ownership and subsequent transactions retated to Land initiatty registered in his name, described as LRV 2035 Fotio 18 Pl.ot 7 Martyrs Lane Ntinda (hereinafter ref erred to as "the suit property"). The facts are that the AppeLtant fited a suit in the High Court in which he averred that in 2004, he engaged Patrick Kasulu, a property agent, to identify a purchaser for the suit property. FoLLowing Kasutu's advrce, the Appettant vacated the premises to faci[itate inspection and surrendered the certifrcate of titte. 0n 11'h May 2004, the 1'' Respondent (Kamenge Deudonne, hereinafter "Mr. Kamenge") expressed interest in the property and requested the Appettant to appty for an extension of the lease which had expired. The Appettant compLied and provided the apptication letter to Mr. 1 5 5 Kamenge, who undertook to pursue the apptication. Thereafter, Mr Kamenge became unreachabte. The Appettant subsequentty discovered that a fresh grant, described as LRV 3293 FoLio 4 Ptot 7 Martyrs Lane Ntinda, had been rssued in his name. This was fottowed by a serres of entries on the titte: a transfer to Mr. Kamenge. a subsequent transfer to the 2"d Respondent (John P. Kabayo, hereinafter "Mr. Kabayo"), and eventuatty, the registratton of a mortgage in favour of the 3'd Respondent (Housing Finance Bank Ltd, hereinafter "HFB"). 0n 3Oth August 2012.HFB advertised the suit property for sate by publ.ic auction. The Appettant then instituted tegat proceedings in the High Court against the respondents chaLtenging the first transfer for fraud and subsequent transfers for want of bona fides and the suit was dismtssed, as was his subsequent appeat to the Court of Appeat agarnst the dismissal. The appeLtant further appeaLed to the Supreme Court consequentLy on 15 grounds of appeat that: 10 15 30 l. The Court of Appeat erred in law when it faited to determine whether or not the Appetl.ant had sotd the suit [and to Kasu[u as atteged by the 'l't Respondent. 2. The Court of Appeat erred in law and faited to property evaluate the evidence in not finding the purported sale by Kasutu to the I't Respondent as ittegal.. 3. The Court of Appeal. erred in law and fail.ed to properly evatuate the evidence in not finding the 1't Respondent's evidence on the aLteged sate agreement and atLeged transfer between Kasutu and Appel.Lant contrary to his defence hence fatsehoods. 4. The Court of Appeat erred in law and faiLed to properLy evatuate the evidence in not finding the impugned transfer (Exh P4) ittegat 5. The Court of Appeat erred in law and fact in faiting to hotd the ]'t Respondent tiabte to prove that the Appettant executed the impugned transfer (Exh. Pa). 2 20 25 5 Representation 15 20 25 30 6. The Court of Appeat erred in law and faited to property evaluate the evidence in not finding the 'l't Respondent's evidence on the impugned transfer (Exh. Pa) contrary to his defence hence falsehoods. 7. The Court of Appeat erred in law and faited to property evatuate the evidence when it held that the Appettant executed the impugned transfer (Exh. P4) 8. The Court of Appeat erred in law and fai[ed to property evatuate the evidence in finding the decl.ared consideration of Shs. 440,000,000/= rn the transfer (Exh. P2) as true whereas not. 9. The Court of Appeat erred in law and faited to properly evatuate the evidence in not finding the impugned dectared constderation of Shs. 440,000,000/= contrary to law thus condoning an ittegatity. 10.The Court of Appeat erred rn Law when it hetd that itLegatity ought to have been raised in the triaI Court. 11. The Court of Appeat erred in [aw when it faited to f ind and adjudge the impugned mortgage void for il.tegal.ity. 12.The Court of AppeaL erred in Law in faiIing to nul.tify, inva[idate and or canceI the impugned transfer to the lutRespondent, rmpugned transfer to the 2"d Respondent and 3'd Respondents' impugned mortgage on account of ittegatity. 13.The Court of Appeat erred in law and faited to property evaluate the evidence when it hetd that the l't Respondent's transfer is not fraudutent. 14.The Court of AppeaL erred in law and fai[ed to property evatuate the evidence when it hetd that the 2nd Respondent's transfer is not fraudutent. 15.The Court of Appeal. erred in law and fail.ed to properl.y evaluate the evidence when it hetd that the impugned mortgage is not fraudutent. 10 3 5 When the appeal was catled for hearing, learned counsel Mr. Atex Candia appearing jorntty with [earned counseL Mr.0undo David Wandera represented the appel.Lant. The 3'd Respondent was represented by learned counsel Mr. Richard Bwayo. The first and second respondents were not rn court neither were their Advocates in court. There was evidence that the respondents had atL been served and the matter proceeded ex parte under Rute 96 of the Rules of Court. lt was noted that the 2nd and 3'd Respondents had f iLed written submissions. The appel.l.ant's counseI adopted their written submissions as their address in the appeaL. lt is noted that the 1st Respondent, Mr. Kamenge, did not fiLe submissions in time and a rejoinder to submissions were made without his written submissions which was subsequently frLed when judgment was in draft stage. lwiLL not refer to these submissrons for vioLating the ru[es of farr triaI and which were fited out of time without leave of court. I have in the circumstances considered the wrrtten submissions of the Appettant, the 2nd Respondent, and the 3'd Respondent, atong with the Appettant's rejoinder. From the grounds of appeat, the Learned counsel set out the fottowing issues as being the issues for determination by this Honourabte Court: 1. Whether the Court of Appeat erred in law and fact by faiting to determine if the Appettant soLd the suit [and to Patrick Kasutu, and the Legatity of the purported sate by Kasutu to the l't Respondent 2. Whether the Court of Appeat erred in law and fact concerning the burden of proof, execution, and legatity of the transfer of the suit property to the l't Respondent (Exhibit P4). 3. Whether the Court of Appeat erred in [aw and fact concerning the declared consideration for the transfer from the 1't Respondent to the 2nd Respondent (Exhibit P2) and its tegatity 4. Whether the Court of Appeat erred in taw by hotding that ittegatity, particuLarl.y concerning the mortgage, ought to have been raised at 10 l) 20 25 30 4 lssues for Determination the triaL court, and in faiting to determine the aLteged itl'egaLities concerning al'[ impugned transactions. 5. Whether the transfers to the l't Respondent and 2nd Respondent, and the mortgage to the 3'd Respondent, are vitiated by fraud. 6. Whether the 3'd Respondent can vatidty claim the protection of a bona f ide mortgagee for vaLue without notice. 7. What remedies, if any, are avaitabte to the parties. Submissions of Counset: lssue 'l: Whether the Court of Appeat erred in law and fact by faiting to determine if the Appettant sotd the suit land to Patrick Kasutu, and the tegatity of the purported sate by Kasutu to the I't Respondent (arising from grounds 1, 2, 3) (a) Submissions of the Appettant: with regard to grounds 1, 2 and 3, learned counsel for the Appetl.ant, submitted that the Court of Appeat fail.ed to determine the pivotal. question of whether the AppeLtant had sol.d the suit property to Kasutu, as asserted by the 1't Respondent. This issue, though pteaded and submitted upon in the lower courts, was not resol.ved by the Court of Appeat which confined its ana[ysis primarily to the atleged forgery of a srgnature on a later transfer. Counsel ctted Tumushabe & Anor vAnglo- African Ltd & Anor, SCCA No. 7/99, f or the principle that failure to reso[ve a materia[ issue constitutes an error of [aw. The Appettant contended that the burden of proving the atteged sate to Kasutu rested squarety on the l't Respondent, who affirmed it, pursuant to the principl.e in Black's Law Dictionaryand Patel v Spear Motors, SCCA No. 4/9l.Counsel argued that the 1't Respondent fail.ed to discharge this burden for several reasons: the Appettant's testimony denying the sate to Kasu[u was unchattenged in cross-exam i nalton (Mpagr Godfrey v Uganda, SCCA No. fi/A,he 1't Respondent faited to ca[[ Kasutu as a material witness, teading 10 15 20 25 30 5 5 5 to an adverse inference (Nicholas Roussos v Vrrani & anor, SCCA No. 9/9A', the 1't Respondent's oral testimony regarding the sate to Kasu[u Lacked the purported sate agreement and transfer instrument in KasuLu's favour, renderrng it inadmissibte under Sections 58, 63, and 91 of the Evidence Act; the 1't Respondent's testimony was inadmissibte hearsay under Section 59 of the Evidence Act, as he was not a percrpient witness and faited to catl Kasutu to corroborale (Presidential Election Petition No. //06 Kizza Besrgye vs EC & Anol, and the 1't Respondent's testrmony contradicted his own pteadings and contained materiaI inconsistencies concerning the documents Kasutu attegedty showed him, thereby offending 0rder 6 Rute 7 of the Civit Procedure Rutes and warranting rejection (Kasifa Namusisr v Ntabazi, SCCA No. 4/0A Katunde & Anor v Uganda Railways Corporation, SCCA No. 12/9A. Consequentty, the Appel.tant argued that since Kasutu did not purchase the suit property, he had no beneficiaI interest to sett to the l't Respondent. The purported sale by Kasulu, in his capacity as owner, therefore contravened Section 59 of the Registration of TitLes Act (RTA) and was a nul.Iity, as per Shariff Osman v Mulangwa, SCCA No 38/95. (b) Submissions of the 2nd Respondent: with regard to grounds 1, 2 and 3, learned counset for the 2nd Respondent submitted that the Appettant had sanctioned the sate of the suit property through his agent, Patrick KasuLu, effectivety making an offer to the wortd at targe. This was evidenced by the Appettant surrendering his Certif rcate of Titl.e, apptyrng for the extension of the expired lease, and meeting with Mr. Kamenge to ensure the property was in a saleable condition The 2nd Respondent acquired the Land from the 1't Respondent, who had, in turn, acquired it from the AppeLLant's agent. The 2nd Respondent asserted that he is a bona fide purchaser for valuable consideration without notice of any defect in the 1't Respondent's titLe and did not engage in any fraudutent activity. He contended that the Appel.Lant's grounds of appeaL were superftuous. 6 10 15 20 25 30 (c) Submissions of the 3'd Respondent: For the 3'd Respondent, the 3'd Respondent's counsel acknowledged that Grounds 1, 2,3, 4, 5, 6, and 7 pertained to the crrcumstances under which the 1't Respondent acquired his interest from the AppeLtant. The 3'd Respondent stated that these circumstances were not within its direct knowLedge, save f or their adjudication in the Hrgh Court proceedings. However, the 3'd Respondent submitted that the lower courts'crucra[ f inding, which it supported, was that the AppetLant empowered Patrick Kasutu to seL[ his Land by providing him with the expired Dupticate Certificate of Titte and vacant possession. By reLinqurshing controI and subsequentl.y signing documentation for Lease renewa[, the Appettant bore a higher burden to prove fraud. (d) Rejoinder of the Appettant: The Appettant, in rejoinder, rejected the 2nd Respondent's contradictory assertions that Kasulu sotd the property as the Appettant's agent and that the Appettant had atready sotd the Land to Kasu|'u. CounseL argued that a Litigant cannot adopt such rnconsistent positions, citing the principle of approbation and reprobation in Express Newspaper Plc V News (U.K) Ltd fi990J 1 WLR /320 and other authorities. The Appettant atso hrghtighted that the sate agreement (Exhibrt D1) factuatLy showed Kasutu did not setl as the Appel.tant's agent. Addressing the 2nd Respondent's argument concerning the Appe[tant's alteged indoLence in not checking on his titl.e for eight years, the AppetLant countered that fraud is a question of fact attributabl.e to the transferee, and a ptaintrff's atleged inaction does not negate it Furthermore, the Limitation Act prescribes a 12-year period for land recovery, which the Appettant adhered to, and no law condemns action within this period as "indoLence." The Appel.tant emphasized that atteged indotence is not a recognized [ega[ defence in an action to recover Land based on fraud The AppeLLant al.so pointed out that the 3'd Respondent's counseI argued on behatf of the ]st and 2"d Respondents without instructions, contrary to Regul.ation 2(l) of the 10 15 20 30 7 5 5 (a) Submissions of the Appeltant: The Appettant submitted that the [ower courts erred in Law by hol.ding that he bore the burden of proving that his signature on the transfer instrument (Exhibit P4) was forged. Counsel argued that the onus lay upon the 1" Respondent, who affirmed that the Appettant signed the document in his presence, consistent wrth the principLe that "proof lies upon him who affirms," and Section 66 of the Evidence Act. Counsel. retied on Aziz Kasujja v Nakakande, SCCA No. 63/98, which states that the party retying on a disputed signature must prove rts authentrcrty, and Senkungu & 2rs v Mukasa, SCCA No. /7/4,for the principte of peculiar knowtedge. The Appettant meticutousty presented severaI facts to demonstrate that he did not sign Exhibrt P4 and that the 1't Respondent's testimony was fatse: the 1't Respondent's account of a meeting where the Appettant attegedly signed P4 prior to 11th May 2004 contradicted his own Written Statement of Defence (Paragraph 5(xir)), which mentioned only one meeting on 'l1th May 2004 for the lease extension letter, making the testimony a fatsehood offendrng 0rder 6 RuLe 7 of the CiviL Procedure Rules (Kasrfa Namuslsi v Ntabazi, supra). The Appettant's consistent deniaL of signing P4 and the 1't Respondent's fai[ure to cross-examine him on this crucial point [ed to an inference of acceptance of the AppeLtant's version. Further, the Appel.tant pointed out that the 1't Respondent's testimony that P4 was signed and detivered to him prior to 11th May 2004 directty contradicted Paragraph 5(xiii) of his own Written Statement of Defence, 10 15 20 25 30 8 Advocates (Professionat Conduct) Regutations, thus rendering such arguments nuttities. lssue 2: Whether the Court of Appeal. erred in law and fact concerning the burden of proof, execution, and tegatity of the transfer of the suit property to the I't Respondent (Exhibit P4) (Grounds 4.5, 6,7) 5 which stated that Kasutu provided the disputed transfer to the I't Respondent afterlltn May 2004. The Appettant noted that proof of execution of an attested document (P4) requires the attesting witness (Katamba) to testify, which did not occur, nor did Kasutu, Denis, or Smrth, who were al.tegedty present, testify (Sectrons 67 & 68 of the Evidence Act). The AppeLtant highl.ighted that Exhibit P4 stated a consideration of Shs. 71,000,000/= paid to the Appettant, which the Appeltant denied receiving, and the I't Respondent admitted was not paid, thus making the stated consideration false and offending Section 92(1) of the RTA (Betty Kizito v Kanonya & Ors, SCCA No. 81 fhe Appettant aLso stated that Katamba's purported attestation was false as she did not witness the Appettant signing, violating Section i47 of the RTA (Zaabwe v 2rient Bank & Ors, SCCA No a/1A. The transferor on Exhibit P4 was stated as "0chaya Netson Narie X," an imposter who was not the registered proprietor, contravening Sections 59 and 92(l) of the RTA. Lastl.y, the certif icate of titte for LRV 3293 Fotio 4 was issued on 18'h October 2004, yet the 1't Respondent ctaimed P4 was signed in May 2004, demonstrating an impossibil.ity. (b) Submissions of the 2nd Respondent: White not specificaLty detaiLing arguments on the execution of P4, the 2nd Respondent's defence of his own titte retied on the 1't Respondent's precedrng acquisition from the AppetLant's agent By asserting that the Appetlant had sanctioned the sate through Kasulu, the 2"d Respondent impIicitLy defended the vatidity of the chain of titte, which wou[d inctude the transfer to the 1't Respondent. He reiterated his status as a bona fide purchaser. (c) Submissions of the 3'd Respondent: SimiLar to the 2nd Respondent, the 3'd Respondent did not directl.y address the specif ics of the execution of Exhibit P4. lts submissions generatty supported the findings of the lower courts that no fraud was proved in respect to the l't Respondent's acquisition of his interest, which he then Lawful.ty transferred to the 2nd Respondent 10 15 20 25 9 30 5 (d) Rejoinder of the Appettant: The AppeLl.ant's re1oinder addressed the 2nd Respondent's general arguments about Kasulu acting as the Appettant's agent, which indirectl.y supported the vatidity of the first transfer. The Appettant reaff irmed that the 2nd Respondent's assertions were contradictory and that rnaction on the Appeltant's part did not validate fraud. The AppeLtant's reloinder also reiterated that the 3'd Respondent's counsel argued on behatf of the lstand 2"d Respondents without proper instructions, rendering their arguments nuLt lssue 3: Whether the Court of Appeat erred in law and fact concerning the dectared consideration for the transfer from the I't Respondent to the 2nd Respondent (Exhibit P2) and its tegatity (Grounds 8, 9) (a) Submissions of the Appettant:The Appettant submitted that the Court of Appeat erred in finding the actuaI consideration paid by the 2nd Respondent to the l't Respondent was Shs. 440,000,000/=. He contended that the true consrderation was Shs. 525,000,0001=, as stated in the sate agreement (Exhibit D3) annexed to the 1't Respondent's defence. The Appetlant argued that decLaring Shs. 440,000,000/= on the transfer instrument (Exhibit P2) constituted an itlegatity, as Section 92(1) of the RTA mandates that the true consideration must be stated (Betty Kizito v Kanonya & 2rs, supra). The Appettant hrghtrghted several points: the I't Respondent's defence, by annexing D3, incorporated Shs 525,000,000/= as the actuaL consideration (NPART v Kapeeka Coffee Works & anor, SCCA No. 8/0/): lhe 2'd Respondent's testimony that no other agreement varied D3 contradicted the lower courts'finding of a varied consideration; the oraI evidence of the ]'t and 2nd Respondents, to the effect that the Shs 85,000,000/= acknowtedged as paid in ctause l(b) of D3 was not paid, was inadmissibte underSection 92 of the Evidence Act (Kasifa Namuslsi v Ntabazl, supra, Sarkas Law of Evldence, cited in HCCS No. /3 of 2003 Hima Cement Ltd v Cairo Banl) 10 15 20 25 30 10 5 Furthermore, the Appel.tant argued that the [anguage of cl'ause 1(b) in D3 indicated an immediate payment of Shs. 85,000,000/=, untike ctause 1(a) which contemplated future payment, and that a post-dated cheque woutd not amount to payment until honoured (Abdallah v R fi970J E.A 657, CACA No. 9/01 Kyagalanyi Coffee Ltd v Tomusange).Ihe Appel.lant noted that the atteged bounced cheque was never tendered in evidence, nor its detaits accounted for, rendering oraI evidence concerning it inadmissibte under Sectrons 58 and 63 of the Evidence Act. He concluded that the narrative about the bounced cheque was fabricated. (b) Submissions of the 2nd Respondent: The 2nd Respondent argued that the Appetlant lacked locus standito question the sate agreement between the 'l't and 2nd Respondents due to the doctrine of privity of contract, crting Dunlop Pneumatic Tyre Co Ltd Vs Selfridge & Co Ltd fi915J AC 847.He stated that white the initiat agreed price was Shs. 525,000,000/=, the property was uttimatel.y soLd for Shs. 440,000,000/= fottowing a mutuat agreement to revise the price downwards, with the batance intended to be covered by a post-dated cheque. He submitted that the Court of Appeat uphetd the trial. court's finding that the consideration was Shs. 440,000,000/= and found no intention to defraud the Government of stamp duty, thus no iLlegality was proven regarding the price reduction. (c) Submissions of the 3'd Respondent: The 3'd Respondent supported the concurrent findings of the High Court and Court of Appeal., specifical.[y that no itl.egatity was proved regarding the reduction of the purchase price from Shs. 525,000,000/= to Shs. 440,000,000/= by the l't and 2nd Respondents. (d) Rejoinder of the Appetlant: The Appettant, in rejoinder, contended that the 2nd Respondent's argument on locus standi was misconceived. He ctarified that he was not suing the 2nd Respondent in contract or seeking contractuaI remedies. Instead, he was utitizing Exhrbit D2 (D3 in the Appettant's main submission) to demonstrate ittegaIity and fraud by 10 15 20 25 30 11 5 lssue 4: Whether the Court of Appeal. erred in taw by hotding that ittegaLity, particutarty concerning the mortgage, ought to have been raised at the triat court, and in faiting to determine the atl.eged ittegal.ities concerning atl impugned transactions (Grounds 10, 11, 12) (a) Submissions of the Appettant:The Appettant submitted that the Court of AppeaL erred in hotding that the tegatity of the mortgage ought to have been raised at the triaI stage, and by farting to render a specific determinatron on the Legatity of the impugned transfers and mortgage. He argued that thts was an error of law because he had, in fact, raised the issue of ittegatities at triaL in hisAmended Ptaint (paragraphs 4 and 5(h)and retiefs (a), (b), (c)) and in his written submissions. Furthermore, the Court of Appeat had granted leave to raise additional points of itlegatity during the hearing of the appeat, but subsequent[y dectined to determine them. The Appel.Lant emphasized the weLt-estabtished principl.e that an iLtegatity can be raised at any stage of the proceedings, incLuding on appeat, citing NSSF & anor v Alcon /nternational, SCCA No. /5/09, Lutalo v 0.1ede. SCCA No /5/?, and Ham Enterprises Ltd & Ors v Diamond Trust Bank & Anor, SCCA No. 13/2/, all holding that "a court of law cannot sanction that which is iItegat." The Appettant further contended that, based on the principLe tn Macfoy v United Africa Co. Ltd fi96U 3 All ER /169, a void act is a nuLtity, and anything t2 10 15 20 25 30 comparing the consideration stated therein with that in the transfer instrument (Exhrbit P2). He reiterated that comparing considerations does not amount to enforcing a contract, and the doctrine of privity of contract, as artrcutate d in National Socral Securrty Fund & Anor v Alcon lnternational Ltd, Civil Appeal No l5/0?, applies to rights and obtigations under a contract, not the use of a document as evidence of iLtegatity. The Appeltant reiterated his arguments concerning rl.tegatrty in the dectared consideratron. 5 founded upon it is equatty void. He ciled Slnba (K) Ltd & 4 Ors v Uganda Broadcasting Corporatron, SCCA No. 314 and Lutalo v 01ede, supra, where subsequent transfers were nutLified due to underl.ying itlegatitres. Consequentty, the Appel.tant argued that since the 'l't Respondent's transfer was ittega[, nut[, and void ab initlo, lhe 2nd Respondent's transfer and HFB's mortgage, which fol.Lowed, were automaticatly void ab rnrtio. He added that the 2nd Respondent's transfer was independentty ittegat, f urther vitiating his titte and, by extension, HFB's mortgage. (b) Submissions of the 2nd Respondent: The 2nd Respondent addressed Ground 10-12 by arguing that he was a bona frde purchaser of the suit land for vatuabte consideration without any notrce of any defect in the I't Respondent's titLe and did not engage in any frauduLent activity. He contended that the Appettant, by sanctioning the sal.e through KasuLu, who was the AppetLant's agent, had authorrzed the sate. He stated that the 3'd Respondent's mortgage interest was derived bona f ide f rom the 2nd Respondent's titl.e, fol.lowing a search conf irmrng no encumbrances. The 2"d Respondent emphasized that for a subsequent transferee to be protected under Section 165 of the RTA, they must be a bona frde purchaser, proving good faith, due consideration, and no notice of fraud, aLl. of which he c[aimed to have met. He asserted that he conducted thorough due ditigence. f inding the titLe unencumbered, and had no knowl.edge of the Appetl.ant's invotvement. He concluded that hrs titte was not obtained through fraud and that the Court of AppeaL had adequateLy resotved the al.Leged fraud. (c) Submissions of the 3d Respondent:The 3'd Respondent submitted that the Court of Appeat property re-evaluated the evidence and correctly uphetd the triaI court's finding that no fraud or rttegatity was pteaded or proved agarnst the 3'd Respondent concerning its mortgage. The 3'd Respondent noted that the atteged rttegatity associated with its mortgage was first raised by the Appettant in the Court of Appeat and was not attributed to the 3'd Respondent, though it acknowtedged that iLtegatity can 13 10 15 20 l> 30 5 be raised at any stage (Makula lnternational Ltd vs. His Eminence Cardinal Nsubuga, SCCA No.4 of l?81). lt further contended that no fraud was particutarized against the 3rd Respondent in the Amended Ptaint, contrary to 0rder 6 Rute 3 of the Civit Procedure Rul.es. The 3'd Respondent aff irmed that its mortgage was property executed, citing its search report (Exhibit D4), the Mortgage Deed (Exhibit P7), and the undisputed Certificate of Titte (Exhibit P6). (d) Rejoinder of the Appetl.ant: The Appettant reiterated that the 3rd Respondent's counsel argued on behatf of the l't and 2nd Respondents without rnstructions, which shoutd render their arguments nu[t. He countered the 3'd Respondent's assertion that ittegatrties were not attributabte to HFB by emphasizrng that iLtegatity need not be directty attributed to the mortgagee; if ittegatity is proved against the lst or Znd Respondents (through whom HFB ctaims), the mortgage stands vitiated, as ittegatity renders an act void, and anything founded upon it cannot stand (Macfoy v United Africa Co. Ltd, Sinba (K) Ltd & 4 Ors v UBC, Lutalo v O.1ede). The Appettant further argued that fraud and itlegatity are exceptions to generaI pteading rules, and that if evidence points to fraud (such as DW3's testimony), the court wit[ determine it, even if not initiatty pteaded, citing Lutalo v Ojede and Uganda Railways Corporation SCCA No. 7/9 lssue 5: Whether the transfers to the l't Respondent and 2nd Respondent, and the mortgage to the 3'd Respondent, are vitiated by fraud (Grounds 13, 14,',t5) (a) Submissions of the Appettant: The Appeltant detaited the fraudutent conduct of the 'l't Respondent (Mr. Kamenge), def ining f raud as encompassing deceit, dishonesty, and perversion of truth, as per Zaabwe v 9rient Bank & 2rs, supra. He alteged that Mr. Kamenge purchased the suit property from Kasutu knowing Kasutu was not the registered proprietor, faLsel.y asserted that KasuLu had purchased from the AppetLant, Lied about 10 15 20 25 30 1,4 the Appettant signing the transfer instrument (P4) rn his presence, and that Mr. Kamenge's agent fil.ted in fatse consideration, fatse attestation, and an imposter transferor on P4, aLl. imputabLe to Mr Kamenge (Zaabwe v Orient Bank & Ors, supra, Nalima v Rebecca Musoke, CACA No. 12/8A. Ihis conduct, the Appettant submitted, constituted fraud. Regarding the 2nd Respondent's (Mr. Kabayo's) fraud, the AppetLant atleged that Mr Kabayo fal.sety ctaimed to have issued a post-dated cheque for Shs. 85,000,000/= which bounced, fatsety asserted that the purchase price was reduced from Shs. 525,000,000/= to Shs. 440.000,000/= without a vatid variation agreement, and fatsel.y dectared Shs. 440,000,000/= as consideration rn the transfer instrument (P2). This pattern, the Appettant argued, demonstrated fraud through deceit and dishonesty. The Appettant then addressed HFB's (3'd Respondent's) atteged fraud and the defence of bona fide mortgagee. He argued that fraud unravets everything (Fam /nternational v Hamid, supra) and vitiates at[ transactions, thus Mr. Kabayo's mortgage stood vitiated untess specif icalty protected. He further al.leged direct fraud by HFB, noting DW3's testimony indtcating that HFB conducted a search on the security in June 2011, before Mr. Kabayo purportedl"y approached HFB for a Loan in August 2011. This, the Appettant submitted, suggested a cunning and premeditated manoeuvre indicative of fraudutent intent. (b) Submissions of the 2nd Respondent: The 2nd Respondent maintained that he was a bona fide purchaser forvalue without notice, imptying that his titte could not be impeached for fraud, which the AppetLant had faiied to attribute to him. He asserted that he acquired good titl.e because he was not party to any fraud and paid vaLuabte consrderation of Shs. 440,000,000/= to the lst Respondent, with both parties uLtimatel.y agreeing to this purchase prrce He stressed that the Court of Appeat had distinctLy and eLaboratety resotved 10 15 20 25 30 15 5 the questions retating to aLteged fraud and conc[uded that the Appel.tant faited to prove hrs case (c) Submissions of the 3d Respondent: The 3'd Respondent submitted that the Court of AppeaL property re-evatuated the evidence and correctty conctuded that no fraud was committed by the 2"d Respondent. lt argued that Sections 64 (paramountcy of registered proprietor's estate), 136 (notice of fraud), and 176 (protection of registered proprietor agarnst ejectment) of the RTA perfectty protected the 2nd Respondent's interest. ll cited Davld Sejjaka Nalima vs. Rebecca Musoke, SCCA No 12 of 1985, and Kampala Bottlers Limrted vs. Damanico (U) Ltd, SCCA No.22 of 1992, regarding the meaning and proof of fraud, stating that no fraud, actuaI or constructive, coutd be attributed to the 2nd Respondent or, by impIication, the 3'd Respondent. The 3'd Respondent argued that the tegat princrptes for Ground 14 (Mr. Kabayo's f raud) were equatl.y appticabte to Ground 15 (HFB's fraud), contending that its mortgage coutd not be impeached as it advanced money to the 2nd Respondent through a bona fide transaction for value. lt atso submitted that the atl.eged contradictions in DW3's evrdence regarding the mortgage application date were not materia[ and coutd be reso[ved by reviewing the documentation. (d) Rejoinder of the Appetlant: The AppeLtant reiterated his contention that the 3'd Respondent's counse[ argued on behaLf of the ]'t and 2nd Respondents without instructions. Addressing the 3'd Respondent's argument that fraud against it was not particutarized, the Appettant asserted that the fraud attributed to HFB in his main submission was based on evidence adduced during the trial. by HFB's sote witness (DW3), which coul'd not have been particu|'arized in the pl.aint. He reiterated that courts have power to determine fraud even if not pl.eaded, provided there is evidence. lssue 6: Whether the 3'd Respondent can validty claim the protection of a bona fide mortgagee for vatue without notice (Ground l5 continued) 16 10 15 20 25 30 (a) Submissions of the Appettant: The Appettant argued that the ptea of a bona fide mortgagee for vatue without notice is tegatl.y untenabte under Sections 176(c) and l8l of the RTA where the mortgagor's tit[e was procured through fraud. He submitted that the sote statutory protection for a mortgagee is under Section'176(a) (against the mortgagor), and that Sections 176(c) and 181 protect only a "bona fide transferee/purchaser for vatue without notice." He cited Viranl v Nlcholas Roussos, supra, Senkungu & Ors v Mukasa, supra, and Nallma v Rebecca Musoke, supra, stating that "where the p[ea of bona fide transferee/purchaser faits, no transaction can pass titLe to anyone." The Appeltant contended that a mortgage is merely a security for a Loan (Houslng Finance Bank & anor v Edward Muslsi, SCCA No. 2214, not a transfer or sate of [and, as DW3 for HFB admitted. He argued that the invatidation of the mortgage due to Mr. Kabayo's fraud does not invaIidate Mr. Kabayo's loan obLigation, and HFB retains the right to recover from Mr. Kabayo persona[ty (Formula Feeds Ltd & Ors v KCB Bank, SCCA No. 13/02A. The Appettant asserted that extending the protection of Sections 181 and 176(e) of the RTA to mortgagees would be tantamount to amending the RTA, which fatts outside the Court's jurisdiction (Kuwe v Vader, SCCA No.2/02. Thus, the A.ppettant conc[uded that HFB's ptea of bona fide mortgagee was untenabte, and the impugned mortgage was automaticatty void/vitiated by the mortgagor's (Mr. Kabayo's) fraud (b) Submissions of the 2nd Respondent: The 2"d Respondent made no specif ic submissions on the vatidity of the 3'd Respondent's claim as a bona fide mortgagee, other than generatty supporting the 3'd Respondent's position that its mortgage interest was derrved bona fide from the 2nd Respondent's titte (c) Submissions of the 3'd Respondent: The 3'd Respondent argued that white the issues framed at triaI referred to a "bona fide mortgagee," the concurrent findings of the High Court and Court of Appeat merety stated that no fraud or itLegaIity had been proved against it, and these courts did 17 10 15 20 25 30 5 5 not purport to redefine the [aw. However, the 3'd Respondent further submitted that Section I of the RTA defines a "proprietor" to inctude a mortgagee, imptying that it woutd not be "far-fetched to describe a mortgagee against whom fraud has not been proved as 'bona fide' in the IiteraI sense and within the meaning of a'proprietor'under Section ] of the RTA." lt cited Black's Law Drctlonaryfor lhe definition of "bona fide." The 3'd Respondent argued that considering the definition of "proprietor" under the RTA, which includes a mortgagee, ascribing the concept of "bona f ide mortgagee for vaLue without notice" is conceivabLe. lt contended that a transferee under Section 176 becomes a proprietor, and since "proprietor" inctudes a mortgagee, the [atter can atso be appropriate[y referred to as a "bona fide mortgagee for vatue without notice of any fraud." The 3'd Respondent cited Section 8(i) of the Mortgage Act, 2009. stating that a mortgage has effect as security onty, but the mortgagee has "at[ the powers and remedies in case of defautt by the mortgagor and be subject to aLl. the obLigations conferred or impLied in a transfer of an interest in Land subject to redemption," suggesting that a mortgagee possesses power to transfer an interest in [and under Limited circumstances, acting as a "donee of the power to setl upon defautt." (d) Rejoinder of the Appetl.ant: The Appettant rebutted the 3'd Respondent's argument that a mortgagee is a proprietor for purposes of protection under Section 176 of the RTA. He contended that HFB coul.d not adopt two rnconsistent stands on the same facts (approbating and reprobating). The Appettant reiterated that a mortgage is not a transfer in [aw, rt is merety security for a loan and represents a subservrent interest dependent on the mortgagor's tille (SCCA No. 22/0 Housing Finance Bank & anor v Edward Muslsl, SCCA No. 13/020 Formula Feeds Ltd & Ors v KCB Ban/4. lf the mortgagor loses titte, the security is [ost. He stressed that Sections 176(c) and 181 RTA ctearty refer to a transferee who derives interest by purchase, and a mortgage is not a transfer or purchase. 18 10 15 20 25 30 Consideration of the Appeal.: I have carefu[[y considered the grounds of appeal, the submissions of counset, the record of appeal and the law genera[ty. The appettant's appeal. is a second appeal and the rote of this Court is primaril'y to address matters of law where it is al.teged that the Court of Appeat erred in its determination and therefore our role is to ascertain whether the first appellate court proper[y re-eva[uated the evidence and apptied the correct Legat principtes. (See Kifamunte Henry v Uganda SCCA No. l0 of /997, Rule 31 of the Judicature (Supreme Court Rules) Directions. ln Kateeba and 3 ?thers vs Mugyenzi and 2 Others SCC,4 No. l0 of 2023, [2025J UGSC 6 (2/ Feb 2025),it was various[y stated that the "entry point" for a civil appeal in the Supreme Court must, in essence, be a matter of law or a fundamentaL l.egaI principLe that has been misappIied or disregarded by the lower appeltate court. Mugenyi JSC, stated that the Supreme Court can entertain "matters of law or mixed law and fact," and etaborated on what amounts to a "question of [aw" on second appeat. A question of law arises where the first appel.late court "reneged on its duty to subject the evidence to fresh scrutiny or, having done so, misdirected itsel.f on a point of law in its re-evatuation of the evidence". Further "where the conctusions (inctuding findings of fact) arrived at by the first appeLl.ate court are not supported by the evidence," this is a question of law A departure from established legal. principtes and evidentia[ rutes that guide first appetl.ate courts in their re-evatuation of evidence becomes a question of law and not fact. The question of whether the suit property was sotd to the first respondent by one Kasulu as an agent of the appeltant or fraudutentty is a question of fact but fai[ure to consrder the evidence in this respect and determine the 10 15 20 25 30 19 5 5 issue is a question of [aw. This appears to be the pivotaI question affecting subsequent matters for determination in this appeat. lssue 1: Whether the Court of Appeat erred in law and fact by faiting to determine if the Appetl.ant sold the suit [and to Patrick Kasutu, and the tegatity of the purported sale by Kasutu to the ]'t Respondent (Grounds 1, 2, 3) The Appettant's counsel meticutousty argued that the Court of Appeat's omission to determine whether the appettant sotd the suit property to Kasulu constituted an error of [aw, rel.ying on Tumushabe & Anor v Anglo- African Ltd & Anor. I agree that the issue is a materiaL issue, pLeaded and raised by the parties, which required a distinct resoIutron. The High Court considered the generaI issue of whether the 1't defendant's titte to the suit [and was obtained by fraud. ln reso[ving thrs issue, the triaL court deatt with the basis of issue 1 as one of the particutars of fraud which was phrased as: Purporting and eventually transferring the sult property into the Pt defendants name usrng a forged slgnature on the transfer form.The |lal court hetd that the burden was on the appettant to prove the forgery. But the appettant never catted a handwriting expert to do this. The appettant had denied signing the transfer whrte the first defendant asserted the contrary. The Court of Appeat's joint consideration of grounds 1-6, wrth a focus on forgery of P4, did not adequatety address the foundationat question of the aLLeged sate to Kasutu The burden of proving that the Appel.l.ant sotd the suit property to Kasutu lay squarely on the l't Respondent, who aff rrmed this fact (Patel v Spear Motors, supra) The AppeLtant highIrghted signif icant weaknesses in the ]st Respondent's attempt to discharge this burden. The unchaLtenged testimony of the AppeLtant denying the sate, coupted with the 1't Respondent's faiture to cal.[ KasuLu as a cruciaI witness (teading to an adverse inference as per Nicholas Roussos v Virani & anofi, severely undermines the l't 10 15 20 25 30 20 5 Respondent's assertion. Furthermore, the 1't Respondent's retiance on oral testimony regarding an atleged sate agreement and transfer to Kasu[u, without producing these documents, avoided the best evidence rute under Sectrons 58, 63, and 91 of the Evidence Act. The use of hearsay evidence from Kasu[u, uncorroborated by KasuLu himsetf, is atso probtematic (Kizza Besigye vs EC & Anott. Most criticatty, the Appettant pointed out contradrctions between the l't Respondent's pLeadings and his oral testimony, which, as hetd tn Kasifa Namusisi v Ntabazi, supra, suggesls fatsehood. The 2nd Respondent's submrssion that the AppeLtant "sanctioned the sate through his agent Kasu[u" is directLy chatLenged by the Appetl.ant as contradictory to the idea that the Appetlant had already sol.d to Kasul'u, a ctear instance of "approbation and reprobation." I need to emphasrse that the exhibits reveaL f acts that cannot be contradicted by oral. testimonies. Exhrbit P6 which is the certificate of titl.e of the suit property is described as LRV 3293 Fotio 4 Ptot 7 Martyr Avenue Kampata is a lease titl.e with a term of 37 years with effect from ]'t May 2004. What is cruciaI is that it disctoses that the registered proprietor was registered on 15th 0ctober 2004 with the names of the appeltant under instrument number 341686. The next registered proprietor is the first respondent who was registered on 2nd December 2004 under instrument 2t 10 20 30 15 lf, as the evidence strong[y suggests based on the Appettant's submission, no sale occurred between the Appettant and Kasu[u, then Kasutu acqutred no Legat or beneficiaI interest in the suit property. Consequentty, his purported sate of the property to the l't Respondent, in hts capacity as owner, woul.d be vold ab initlo and contrary to Section 59 of the RTA, which makes a certificate of titte conclusive evidence of ownership. lt was cruciaI for the first Respondent to adduce evidence of the alteged sate agreement to show that he was satrsfied with the fact that the proprietor who is the appetl.ant had sold hrs interest to the setler and there was no danger in buying from an "unregistered proprietor" (Mr. Patrick Kasutu). number 3L91311. There is absolutety no where that Mr. Kasutu is registered on the titl.e. 0n the other hand, exhibit D1 about LRV 2032 Fotio 18 relates to the suit property and is an agreement for the sate of the surt property executed by Patrick Kasutu as the setter and sotd to the first respondent for a sum of Uganda shittings 71,000,000. The agreement is dated 20th of April 2004 and states that the selter is the owner of the surt property having bought it from the appetlant. The issue of the forgery of the transfer instrument can onty be narrowed down to the question of whether the appetl.ant facititated the transfer from himsetf to the first defendant who bought from one Patrick Kasutu. lt however remained critical to prove the atteged sate between the appel.l.ant and Mr. Kasutu. The transfer form used to transfer from Ochaya Netson Marie to Kamenge Dieudonne is undated and has an X written where the transferor was supposed to sign. lt is purported to be srgned by the appettant in the presence of one Katamba, who was never catted as a witness to prove this. The appeLLant stated that the signature was not his. The 1't Respondent's testimony was riddted with contradictrons. ln the premises, the cruciaI issue is whether the appettant after testifying that the signature on the undated transfer deed was not his signature, had the burden to further prove this. His testimony is ctear that he did not setL the property nor did he sign a transfer instrument. lt is by inference that the transfer instrument exhibit P4 that he exhibited was not his document and he did not know how it was signed. Katamba who witnessed the signature never testif ied. Orat testrmony coutd be adduced as to the circumstances of the execution and these were successful.ty chatLenged by bringing out contradictions. Firstty, Kasu[u and Katamba were not calted on the cruciaI issue. Secondty, the 1't Respondent referred to a sate agreement between the appeLLant and Kasutu which agreement, he never produced. The first Respondent did not witness the sate agreement. Both lower courts rested their judgment in f inding that the burden was on the appeU.ant to prove that 22 10 15 20 25 30 5 5 his signature was a forgery and that he ought to have brought a handwrtting expert to prove the signature was not his. Where a person testifies that a signature on a document rs not his or hers, the burden of proof typicatty shifts to the party asserting the authenticity of the signature. Where, as the appetLant does, a party ctaims that the signature is forged, the burden is on the party trying to enforce the document or the party who benef its from its vaLidity to prove that the signature is genuine. There are severaI statutory provisions on this issue. The Evidence Act Cap 8 Laws of Uganda 2023 has provisions we can consider in favour of the appettant. Section 101 states the general burden of proof that. 'l01. Burden of proof. (1) Whoever desires any court to give judgment as to any LegaI right or tiabitity dependent on the existence of facts which he or she asserts must prove that those facts exist. 10 15 20 25 30 (2) When a person is bound to prove the existence of any fact, it is said that the burden of proof [ies on that person. The generaI burden was on the appeLl.ant to prove that he did not sign the transfer instrument. That he did not sel'[ the property to Kasutu. He testif ied that he did not sign the transfer instrument and the signature on the instrument was not his. His knowtedge was that he had not executed it and therefore even if the signature resembted his, the burden shifted to the l't respondent to prove that the signature was genuine. The appetlant could prove his signature but how coutd be prove that the signature was not his other than saying that he did not sign the document. Further section 102 of the Evidence Act provides that: 102. 0n whom burden of proof Lies. The burden of proof in a suit or proceeding Lies on that person who wou[d fait if no evidence at at[ were given on either side. 23 5 The evidence of the appeltant was that he never sotd the property to Kasutu and he never signed the transfer instrument. lf this is believed, the 1't defendant/respondent woutd fait if rebuttaL evidence was not adduced on his behatf to prove that the signature on the transfer form was that of the appetLant Further the particutar fact that it is the appettant who signed the transfer form lay on the ]'t defendant and this is augmented by the provisions of section 103 of the Evidence Act which states that: 103. Burden of proof as to particutar fact. The burden of proof as to any particuLar fact [ies on that person who wishes the court to betieve in its existence, unless it is provided by any law that the proof of that fact shaLt tie on any particu[ar person. ln addition, the Evidence Act provides for modes of proof. These are specificaLty catered for under sections 66, 67 and 72 of the Evidence Act. Section 66 states that: 66. Proof of signature and handwriting of person aLleged to have signed or written document produced. lf a document is alleged to be signed or to have been written who[Ly or in part by any person, the signature or the handwriting of so much of the document as is atleged to be in that person's handwriting must be proved to be in his or her handwriting. Section 66 of the Evidence Act is not very helpful in that the appetlant asserts that the signature is not his. This put the burden on the lstdefendant to prove that it is. Further section 67 requires any document required to be attested to be proved by at least one attesting witness. Section 67 states that: 67. Proof of execution of document required by taw to be attested. lf a document is required by law to be attested, it shat[ not be used as evidence untiL one attesting witness at [east has been catled for the purpose of proving its execution, if there is an attesting witness aLive, and subject to the process of the court and capabLe of giving evrdence 24 10 15 20 25 30 72. Comparison of signature, writing or seaI with others admitted or proved. (1) ln order to ascertain whether a signature, writing or seaI is that of the person by whom it purports to have been written or made, any signature, writing or seal admitted or proved to the satisfaction of the court to have been written or made by that person may be compared with the one which is to be proved, aLthough that signature, writing or seaI has not been produced or proved for any other purpose. (2) The court may direct any person present in court to write any words or figures for the purpose of enabting the court to compare the words or figures so written with any words or figures al.leged to have been written by that person. (3) This section appIies also, with any necessary modifications, to finger impressions. The burden was not on the appettant to prove that he did not write, but was on those who asserted that he did sign to have the signature compared for that purpose.ln Brown vs Rolls Royce Ltd fi?60J l All ER 577Lord Denning at p 581 - 582 made a distinction between a tegal burden such as the burden 25 25 30 s The transfer document was not duty proved for want of an attesting witness. It was therefore erroneous to shift focus on whether the appettant proved forgery because it cou[d not prove that the signature ts not his. The document coutd not be used in evidence unless an attesting witness was produced to prove due execution. The appetl.ant did not want to vatidate the 10 instrument but to assert that it was not his. Last but not least, the burden on the appeU.ant was to show that he did not sign the transfer document. The burden shifted on those who benef itted from the transfer to show that it was the signature of the appettant. This is comptex in tight of the fact that the appel.Lant had the burden to prove fraud He did this by setting out the 1s fact of how he gave his titl.e and lease for extension but he did not setl it to Kasulu Patrick. lt was not only about the forgery. The forgery is conctuded by stating that he did not srgn any transfer instrument and the signature on the transfer document was not his. This had to be tested by those asserting that it the signature was hrs, shifting evidentiaL burden of proof. Section 72 20 of the Evidence Act deats with his situation and states that: 35 10 20 25 30 35 My Lords, the difference between the judges of the Court of Session turned on the onus of proof. The malority of them (the Lord President (Lord Ctyde), Lord RusseL[ and Lord Sorn) thought that the burden was on the appeLtant to prove that the respondents were negLigent and that, looking at the case at the end of the day, the appellant had not discharged that burden. The minorrty (Lord Carmont) thought that, once the appettant proved that the respondents had not foLtowed the common practice of the trade in supptying barrier cream, the burden shifted to the respondents so that they wouLd not escape Liabitity untess they proved (not as a mere probabiLity but as matter of reasonabte certainty) that, even if they had adopted the common practice and supptied barrier cream, it wouLd have done no good. This difference of opinion shows how important it is to distinguish between a legal burden, properly so catled, which is imposed by the law itsetf, and a provisional bu rden which rs raised by the state of the evidence. fh,e legalburden in this case was imposed by Law on the appettant. ln order to succeed, he had to prove that the respondents were negtigent and that their neg[igence caused the disease: see Bonnington Castings v Wardlaw (11956] 1 All ER 615 at pp 618, 621; [1956] AC 613 at pp 620, 62t4) by Lord Reidand by Lord Tucker. ln order to discharge the burden of provtng negligence, the appetlant proved that "barrier cream is commonly supptred by emptoyers to men doing such work as the [appeLtant] was do ing." This was a cogent piece of evidence and raised no doubt a ?resumption" or a "prima facie'case, in this sense, that, if nothrng more appeared, the court mrght well infer that the respondent were negligent. and rn that sense it put a burden on the respondents to answer it. But this was only a provisional burden which was raised by the state of the evidence as it then stood. (Emphasis mine) The appel.l.ant had raised a prima facie case that he did not seLl. the property to Mr. Patrick Kasutu and that he had not executed the transfer instrument exhibited as exhibit P4. The similarity in the signature on the transfer instrument does not water down the appeLtant's testimony because a good forger can do a convincing job. The evidential. burden shifted on the lst 26 of proof and a provisrona[ (or evidentiat) burden which arises from the state of the evidence. He stated that. 15 5 Respondent not only to prove that he bought the property from Patrick Kasutu who had a val.id sate agreement with the appettant, but atso to authenticate in evidence the sate agreement through one attesting witness and further to show that the purported signature on the transfer instrument was not forged. lfind that the Court of Appeat erred in faiting to make a definitive finding on the atteged sate to Kasutu. Given the overwhetming evidence of contradiction and [ack of proof from the 1't Respondent, the assertion that the Appe[tant soLd the suit property to Kasulu was not substantiated. Therefore, the subsequent purported sate by Kasutu to the jst Respondent woutd be wrthout right and il.tegal. as it was not a sate by the registered proprietor. No sate agreement was produced to show that Kasulu bought from the registered owner as to make him the equitabte owner. Further, the 1't respondent bought when the property was in the names of the appel.l.ant and onty reties on a transfer document which was not proved to the tegaL standard as authentic. Grounds 1, 2, and 3 have merit and I would attow them. lssue 2: Whether the Court of Appeat erred in law and fact concerning the burden of proof, execution, and tegatity of the transfer of the suit property to the l't Respondent (Exhibit P4) (Grounds L,5,6,7) The Appettant correctty argued that the burden of proving that he signed Exhrbrt P4 rested upon the 1't Respondent, who affirmed the signature, not on the Appel.tant who denied it. This is in Line with Sectron 66 of the Evidence Act and the principLe in Aziz Kasulja v Nakakande, supra.The lower courts' misdirected themsetves on the burden of proof as stated above and this was an error of [aw. The Appettant presented competling arguments demonstrating that the 1't Respondent's evidence regarding the execution of Exhibit P4 (the transfer 10 15 20 25 30 27 5 instrument) was fundamentatty ftawed and unreIiabte. The atLeged meeting at which the Appettant purportedty signed P4 prior to 11'h May 2004 directty contradicted the 1't Respondent's own Written Statement of Defence, which stipul.ated a singte meeting on 11th May 2004 soteLy for the lease extension Letter. This departure from p[eadings Leads to doubt regarding the truthfutness of the l'r Respondent's case (Kaslfa Namuslsi v Ntabazi, supra). The Appettant's deniat of signing P4 was not chatlenged or discredited through any cross-examination on his testimony that he did not sign the transfer instrument exhibit P4. Further, the Appettant demonstrated that the consideration of Shs. 71,000,000/= stated on Exhrbit P4 was admittedty not paid to him by the 1't Respondent, rendering it a faLse dectaration. The attestation by Katamba was not proved and cannot be retied on in evidence (section 67 Evidence Ac). The appel.l.ant's counseL submitted that it was impossibte for the Appettant to sign a transfer for a title (LRV 3293 Fotro 4) in May 2004 when it was onty issued in October 20014. I do not agree as transfers coutd have been executed in anticipation of Lease renewat which the appeltant had apptied for but the point is that there was no lease interest to transfer in May 2004 but onty an anticipated [ease interest the appeLl.ant had apptied for. The appeltants case does not rest on this aspect of the evidence. ln tight of my judgment above, the Court of Appeat's finding that the Appettant executed the impugned transfer (P4) is not supported by any 10 15 20 25 30 28 Furthermore, the Appettant hightighted that the 1't Respondent's account of receiving the transfer instrument (P4) from the Appettant before llth May 2004 contradicted his own pteading that Kasutu provided P4 to him afterllth May 2004. The faiLure to caLL the aLl.eged attesting witness (Katamba) or other purported attendees (Kasu[u, Denis, Smith) to prove the execution of P4, an attested document, is a significant omission, offending Sections 67 and 68 of the Evidence Act. admissibte evidence and cannot stand as it constitutes an error of [aw. I woutd in the circumstances, attow grounds 4, 5, 6, and 7 of the appeat. lssue 3: Whether the Court of Appeat erred in taw and fact concerning the dectared consideration for the transfer from the 1't Respondent to the 2nd Respondent (Exhibit P2) and its tegatity (Grounds 8, 9) The Appel.tant's chaltenge to the stated consideration of Shs. 440,000,000/= in Exhibit P2, is on the basis that the true consideration was Shs. 525,000,000/= as per Exhrbrt D3. Thrs raises a question of iltegatity concerning [aws on revenue cottection. Additionatty, section 92(1) of the Registration of Titles Act Cap 240 Laws of Uganda 2023 requires the true consideration to be stated. (Betty Kizito v Kanonya & Ors, supra).ln Betty Kizito vs Davrd Kizito & Ors, (supra), the issue f ramed by the Supreme Court for consideration in that appeal. was whether conceaLrng of the true consideration amount to fraud. The court held, interalla, that fraud is a question of fact and the facts must be strictl.y proved. Secondl.y, facts constituting fraud must be ctearty and conctusivety estabLished. They found that the respondent had conceated the true consideration and status of the property. The registered [and in question had two houses but he stated that it was undeveLoped. The first dectaration was made to the Commissioner Land Registratron in the Land transfer form. The Supreme Court found that the transfer form which stated a lower figure than the true consideration was conceatment of materiaI particuLars. I find that section 91 (1) of the RTA cap 240 laws of Uganda 2023 deal.s with the form of transfers. Transfers for money considerations shalt be in one of the forms in Schedute 8. The words in the Eight Schedule of the Act are " the sum of money. The conceaiment of the true amount of money is an offence and the 1't respondent woutd be tiabte to pay the batance in revenue not pard (if any) due to under dectaration. Under declaration is atso evidence of dishonesty 29 10 15 20 25 30 5 5 The 2nd Respondent argued that the Appettant lacked locus standi due to privity of contract. However, as the Appettant correctty rebutted, his chatlenge is not based on enforcing the contract between the I't and 2nd Respondents, but on estab[ishing rttegatity in the chain of titl.e that affects his proprietary interest. The Appetl.ant pointed out severaI rnconsistencies: Exhibit D3, annexed to the I't Respondent's defence, indicated Shs.525,000,000/= as the consideration. The 2nd Respondent's own testimony that no other agreement varied Exhibit D3 directty contradicted the lower court's findrng of a varied consideration The oraI evidence from the 1st and 2nd Respondents, claiming that the Shs. 85,000,000/= acknowtedged as paid in clause'l(b) of Exhibit D3 was not paid, directty contradicts the written terms of the agreement and is inadmissibl.e under the parole evidence ru[e (Section 92 of the Evidence Act), as correctty argued by the AppeLLant citing Sarkas Law of Evidence. The 2nd Respondent's explanation that a post-dated cheque was issued for this amount, in anticipation of securing the futt Shs. 525,000,000/=, and that the 1'r Respondent later agreed to accept Shs. 440,000,000/=, does not reconcite with the ctear wording of ctause 1(b) of Exhrbit D3 nor the mandatory requirement of stating the true consideration. Furthermore, the absence in evidence of the atleged bounced cheque and tack of detaits surrounding where it was banked cast serious doubts on this narrative. Therefore, if the true consideration for the transfer between the 1't and 2nd Respondents was indeed Shs. 525,000,000/=, then the dectaration of Shs. 440,000,000/= on Exhibit P2 coutd constitute fraud against the revenue authority. I woul.d however note that Uganda Revenue Authority is not a party and payments of stamp duty are ordinarily based on vatuation of the property by the Government Valuer. Nonethetess, the 2nd Respondent's submissions, whil.e attempting to exptain the discrepancy, do not fuLty resoLve the conf Lict with the written agreement and the statutory requirement. ln the premises, I wouLd a[[ow grounds 8 and 9 of the appeat. 30 10 15 20 25 30 5 lssue 4: Whether the Court of Appeat erred in taw by hol.ding that ittegatity, particutarty concerning the mortgage, ought to have been raised at the trial court, and in faiting to determine the al.teged ittegatities concerning atl impugned transactions (Grounds 10, ll, 12) The Court of AppeaL's judgment on the issue was as fo[[ows lndeed, the tegal.ity of the mortgage was not addressed at the trial. though the assertion that the tegatity of the mortgage ought to have been raised at trrat, where it rmpIred a bar to its consideration on appea[, was an error. lt rs a welt-settted principLe of [aw, as held in Makula lnternational Ltd V Cardinal Nsubuga & Anor, supra, NSSF & anor v Alcon lnternatronal, supra, and Lutalo v 01ede, supra,thal an ittegatity, once brought to the attention of the court, cannot be ignored and can be raised at any stage of the proceedings, incLuding on appeat. I wit[ however consider the appettant's submissions on itlegaLity and deat with rt on the merits, The Appet|'ant submitted that if the transfers to the l't Respondent (Exhibit P4) and from the 1't Respondent to the 2nd Respondent (Exhibit P2) are vitiated by fundamentaL iLlegatities and fraud, then, in accordance with the Macfoy v United Africa Co. Ltdprinciple, anything founded upon these void acts woutd itsel.f be void. This principLe must be put in its proper context if juxtaposed against a competent legat principte of bona fide purchase without notice of fraud which may gain protection of court. Further the term ittegatity shoutd not be used loosely but shoul.d be contextualized as a breach of the statutory law. The concept of ittegatity has been apptied by this Court in Srnba (K) Ltd & 4 Ors v Uganda Broadcasting Corporation, supra and Lutalo v O1ede, supra. ll posits that if the root transactions were 31 10 15 20 25 30 I do not see how the tegatity of the mortgage came to be an issue since it was not in issue at the triaL court save for the ctaim of fraud as against the mortgagee 3'd respondent which claims of fraud were not proved as I have earlier found in resotving the other grounds of appeat. 5 ittegaL, then the Znd Respondent's titl.e and, consequentLy, the 3,.d Respondent's mortgage derived therefrom, wou[d be equal.Ly tainted. The 2nd Respondent's submitted that the Appettant "sanctioned the sate" through Kasutu, which forms the basis of the 2nd Respondent's ctaim to a valid chain of titte having bought from the 1'' respondent who was a registered proprretor. I have carefutty considered ground 10, 11 and 12 and it discloses a serious point of law of general or pubtrc importance as the facts show that the second respondent bought from a registered proprietor and the 3'd respondent is a mortgagee who lent money on the strength of a registered proprietorship. ln Sinba (K) Ltd and 4 Ors vs Uganda Broadcasting Corporation [2015] UGSC 21 (29 Oct 2015), the issue of itLegatity that was advanced was that the sate of the property contravened the Uganda Broadcasting Corporation Act. Supreme Court heLd inter atia as foLtows. Further, and most importantLy, as Kakuru JA rightty stated, in my opinion, even if he found that the 5'h Appellant was a bona fide purchaser for vaLue wrthout notice, he wouLd sti[L have ordered for the canceLlation of the transfer to her names. This is because the consent judgment and decree having been annutled on account of iLtegatity, there was no property transfer. Cl.earLy the above decrsion is based on its own pecutiar facts which speak for themsetves. The attegation was sate in contraventron of a section of an Act of Parl.iament which was overruted by the High Court. 0n appeal. to the Court of Appeat the parties purported to resotve the matter by consent judgment and the consent decree was annulted on account of ittegaLity. From the facts in this appea[, the first respondent was registered on the 2nd of December 2004. The 2"d Respondent bought from the first respondent and was registered on the 13'h of May,200B about 4 years later. An encumbrance 10 15 20 25 30 32 5 of Stanbic Bank by way of a mortgage was registered on the 13th of May 2008 and reteased on22nd August 2011. Another mortgage of the third respondent was registered on the 22nd of August 2011. There was no other encumbrance by way of a caveat when the transactions of the 2nd and 3'd Defendant took ptace and rt is incumbent upon this court to weight the tension between a bona fide purchaser for value and the doctrine apptted from the decision in Macfoy vs United Africa Co Ltd(supra) reLied on by the appel.Lant. ln Macfoy v United Africa Co. Ltd fi96lJ 3 All ER //69, lhe Privy Council addressed the effect of detivering a statement of ctaim during the long vacatron in Sierra Leone, specificat[y whether such an act was a nul.tity or merely an irregutarity. The facts are that the United Africa Co. Ltd (ptaintiffs) issued a writ against B.L. Macfoy (defendant) for goods supptied. The pl.aintiffs served the writ during the [ong court vacation and the defendant faited to fite a defence within the altowed time, which began running after the court vacation ended Judgment was then entered in defautt of appearance and the defendant rnrtratty apptied to set aside the judgment based on having a good defence on the merits, treating the judgment as regutar. But on appeat to the West Afrrcan Court of Appeal, the defendant for the first time argued that the deLrvery of the statement of ctatm in the long vacation was a nuttrty, making atl subsequent proceedings void. The issue was whether delivering a statement of claim in the long vacation, in breach of the rutes rendered the proceedings a nul.l.ity or void or mereLy an irregutarity and therefore voidabte. It was noted that an act that is "incurabty bad" and "automaticatty nut[ and void without more ado" requires no court order to set it aside, and any subsequent proceeding founded on it is also bad. 0n the other hand, a voidabLe act rs an act that is "not automaticatl.y void" and is an "irregularity which may be waived". lt is not to be avoided unless a court order sets it aside, and the court has discretion on whether to do so. lt remains good and can support subsequent actions untiI avoided. The Privy CounciI hetd that 33 10 15 20 25 30 5 the del.ivery ol the statement of ctaim rn the long vacation was an irregutarity, making the act voidab[e and not a nutl.ity. This ludgment estabtished a general statement of law that a void act cannot be vatidated and a voidabte act can be vatidated. lt does not appty to the circumstances of this appeal.. A key test for distinguishing between void and voidable acts is whether the other side coutd have waived the ftaw or taken a fresh step after knowing about it. lf the defendant had deLivered a defence knowing the statement of cLaim was filed in vacation, they couLd not [ater ctaim no statement of ctaim had been detivered, indicating it was only voidabte. Since the statement of ctaim was voidabte but not avoided, it became effective at the end of the long vacation, and the time for defence began to run. Consequentty, the judgment signed rn defautt of defence was atso voidabte, not void. Further the decisron to set aside a voidabte judgment is a matter of the court's discretion and the West African Court of Appeat rightty exercrsed its discretion by refusing to set aside the judgment because the defendant knew the statement of ctaim was delivered in vacation, did not appiy to set it aside for irregutarity, al.Lowed judgment to go by defautt, and rnrtiatly sought to set aside the judgment based on the merits of the defence rather than its nul'tity. The appeaI was dismissed. To be more specific, the decision in Macfoy vs UnrtedAfrica Co Ltd(supra) ctearty is distinguishab[e from the facts of the instant appeal., where the issue of a bona fide purchaser for vatue was not consrdered. ln Makula lnternational Ltd V Hrs Eminence Cardnal Nsubuga & Anor and Macfoy v United Africa Co. Ltd, white it has concepts of what are "void" and "voidabte" acts and rttegatity brought to the attention of court, the judgment does not directl.y address the specific controversy of whether an il.Legal.ity, when proven against an origina[ fraudster, can vitiate the titl.e of a bona fide purchaser for value who had no notice of a defect in titte fhe Makula lnternational Ltdts oflen quoted for the principl.e that "a Court of law cannot 10 15 20 25 30 34 5 sanction that which is iLtegaL" and that "ittegatrty, once brought to the attention of the court, overrides at[ questions of pteading", this generaI principte does not specificatty delve into the aspect of titLe transfer to a bona fide purchaser fottowing an ittegaI act by a previous owner. Ihe Macfoy case, on the other hand, distinguishes between void and vordabte acts, stating that a void act is "incurabty bad" and "automaticatLy nutt and void," meaning "every proceeding which is founded on it is atso bad and incurabty bad". This suggests that if the originaI fraudu[ent act rendered the titte transfer void ab initro, lhen in theory, no vaIid titte could have been passed on, even to a bona fide purchaser. The aspect of being void ab initio, is retated to the sate of goods doctrrne of Nemo dat quod non habet rute or no one can grve a better titLe than they have 0f court where there is no titl.e, there is none to pass. lf the origrnal fraudster had a vordlille due to ittegatity, they tikety had nothing to pass on. However, there are exceptions to the rute under the SaLe of Goods Act. Simitarty, there are statutory provisrons to consider under the Registration of Tittes Act before dec[aring that a transfer or mortgage nu[[ and void ab initio. It is further necessary to specify the type of ittegatity in question whether it is based on fraud, theft or statutory prohibrtion. ln Sinba (K) Ltd, it was statutory prohibition. Some iLLegaLities might render a transaction void, whil.e others might onl.y make it voidable. The competing doctrine rs bona f ide purchaser for value without notice which doctrine dissociates from the original. transaction and depends on its apptication on concepts like "notice" whether actuat, constructive, or imptied of the iLlegatity, fraud or theft Section 160 (c) of the RTA Cap 240 Laws of Uganda 2023, an action for recovery of Land may Lie agarnst a person regtstered as proprretor of that land through fraud or as agarnst a person deriving otherwise than as a transferee bona fide for value through a person so regrstered through fraud. ln my interpretation the phrase person deriving otherwrse than as a transferee bona fide for value inctudes a person deriving titl.e itlegatty. 10 15 20 25 30 35 Therefor no action for recovery of land may be brought agalnst the bona fide purchaser who had no notice of the fraud of the registered owner. Further based on the general protection of bona fide purchasers under Section 165 of the Registration of TitLes Act (RTA), a bona fide purchaser for vatuabte consideration of [and under the operation of the Act is protected even if a previous proprietor in their chain of titte was registered through fraud or error, or derived from someone registered through fraud or error or otherwise than as a transferee for bona f ide for vatue. Section 165 of the RTA expticitty states: "Nothing in this Act shatl be so interpreted as to Leave subject to an action of e.lectment or to an actron for recovery of damages as aforesaid or for deprivation of the estate or interest in respect to which he or she is registered as proprietor any purchaser bona fide for vatuabLe consideration of Land under the operation of this Act, on the ground that the proprietor through or under whom he or she claims was registered as proprietor through fraud or error or has derived from or through a person registered as proprietor through fraud or error; and this app[ies whether the fraud or error consists in wrong description of the boundaries or of the parceLs of any land or otherwise howsoever." What is materia[ being that the registered owner is deprived of tegal. ownership un[awfuLly. Section 165 establ.ishes the principte of indefeasibitity of titte under the Torrens system which advances the idea that the Register book has the conctusive evidence of titte. This is supported by section 59 of the RTA which treats the registered proprietorship in the register book as conc[usive evidence of titl.e. GeneraLty, a person who purchases [and for vatuabte consideration and registers their interest, without notice of any fraud or error in the previous dealings, obtains an indefeasibl.e titte. The purpose is to provide security and certainty in tand transactions, aLl.owing purchasers to rety on the register. This supports business and commerce and does not put an onerous burden on potential buyers as to discourage investments. The key elements of section 165 of the RTA are that: 10 15 20 25 30 36 5 Reference to a bona fide purchaser for vatuabte consideration without notice refers to a person who buys the property, pays vatuabte consideration, and acts in good faith without knowLedge of any defect in the setter's title. Secondty, such a person is protected against an action for ejectment or damages and cannot be sued for the recovery of the [and or for damages, even if a previous registration in the chain of titte was procured by fraud or erTor. The protection apptres irrespective of whether the root tit[e was obtained through fraud or error This is so whether the fraud or error consists in wrong description of the boundaries or of the parcels of any land or otherwise howsoever. Section 64(1) of the RTA atso provides that the estate of a registered proprietor is paramount and it protects the proprietor except one registered through fraud. lt proves that the estate of the registered proprietor is paramount "except in the case of fraud". This means that the indefeasibiLity of titte is not absotute. lf the current registered proprietor acquired the titLe through lheir own fraud, their tit[e is defeasib[e. This is reinforced by Section 76 which states that "Any certifrcate of titte, entry, removaI of encumbTance, or canceltation, in the Register Book, procured or made by fraud, shatt be void as agarnst a[[ parties or privies to the fraud." lt is cruciaI to note that peopte who are not protected are those who are parties or privies to the fraud and not third parties who have no notice of the fraud. Reconciling Sections 6tt,76 and 165 of the RTA Cap 240: The key distinction in the sections lies in who committed the fraud and whether the current purchaser had notice. lf the purchasers committed fraud, their trtte is voidabte (or "void as agarnst atl parties or privies to the fraud" as per S 76). Section 165 does not protect them in this scenario because their own act vitiates their cl.aim to being "bona fide." 10 15 20 25 30 37 5 lf the fraud was committed by a prevrousproprietor in the chain of titLe, and the current purchaser acquired the titte genuineLy for va[ue and without notice of that previous fraud, then the current purchaser's titte is protected by Section '165. The Act makes of paramount importance, the stabil.ity and certainty of the register for innocent purchasers Case Law in support of Section 165 RTA,/bona fide purchasers: Generatty, the doctrine of bona fide purchaser for va[ue without notice protects individuats who acquire property in good faith. for vatuabl'e consideration, and wrthout actuaI or constructive knowtedge of any existrng ctaims or defects in the titl.e of the setler. Thrs principte aims to foster reliance on the land register as conclusive evidence of ownership and simptify property transfers. Case law in summary disctoses that, for a purchaser to successfutty claim bona fide status, they must prove the foltowing: that they hol.d a certificate of tit[e, that they purchased the proprietorship in good faith, that they had no knowtedge of the fraud, that they paid valuabte consideration for the property, that the vendor had an apparent vatid titte and that they were not invoLved or privies to the fraud. Secondty, in the context of the Registration of Tittes Act, "Fraud" means actuaI fraud or dishonesty, not merety constructive fraud. lt must be specifical.l.y pteaded and proved to a standard hrgher than a mere balance of probabitities, though not beyond reasonabte doubt. Further, fraud has to be attributed to the registered proprietor either directLy or through his or her agent. lf a purchaser's suspicions are aroused and they detiberateLy refrain from making inquiries for fear of discovering the truth, fraud may be imputed to them. Whil.e mere knowl.edge of an unregrstered interest is not, by itsetf, fraud, it can become fraud if accompanied by a wrongf ul. intention to defeat that interest. 10 15 20 25 30 38 5 The burden of proving that a purchaser made the purchase bona fide for vatue and has the defence rests on the party asserting it. There is a tension between the ittegatity and nuLLrty of a titte and the doctrine of bona fide purchaser for vatue wrthout notice The core tension arises when the root of the titte is inherentty defective due to il.l.egatity or when a transaction is a nuttity, even if the subsequent purchaser ctaims to be bona frde. The decision in Sejjaaka Nalima v. Rebecca Musoke fi986J UGSC 16 (/h Nov 198) hightights the tension. The trial. court found that letters of administratron obtained f rauduLently and without jurisdiction cou[d not form a good root of titl.e, thus nutlifying subsequent transfers even to a bona fide purchaser. White the Court of Appeal. reversed this specific statutory interpretation, the undertying principte of a "nuttrty" is a recurring theme. The Court of AppeaL emphasized that the RTA's provisions generalty prevaiI over other inconsistent [aws, but acknowtedged that fraud can go "behind the register". Uttrmatety, tn Sejjaaka Nalima, the appelLant's tit[e was impeached due to imputed fraud from their agents, who were aware of the prior irregutarities. 10 15 20 25 30 The appeat in Fredrick J.K. Zaabwe v. Orient Bank Ltd & Ors [2007J UGSC 2l strongty emphasizes that ittegatity or nuttity can defeat even a registered tit[e, irrespective of the bona fide purchaser defence. ln Zaabwe vs 2rient Bank(supra) the Supreme Court held that a power of attorney used by the agent for their own benefit, and not the principaL's, was outside the scope of authority and coutd not bind the principat. This rendered the mortgage inval.id. The Court expticitty stated that an agent cannot act for themseLves to the detriment of the principat. Secondty the bank was found to have had knowl.edge or constructive notice of the fraud because it was aware the property belonged to the appettant and not the borrowing company, and it faited to disctose the purpose of the [oan to the appettant. This knowledge tainted the transaction with fraud. Last but not Least the element of iLtegatity was considered. lt was hetd that non-compLrance with mandatory 39 5 provisions of the RTA, such as Section 148 (now section 132 RTA Revised edition 2023) regarding signatures in Latin character and stating capacity, rendered the mortgage invalid. The court considered this a "substantive provision of the [aw, not a mere technicaIity". Most retevant, it was establ.ished that the bank had notice of the defect in title and did not quatify to be a bona fide purchaser for vatue without notice. The existence of a caveat on the titte at the time of sate to a third party the third party coutd not ctaim to be a bona frde purchaser without notice, as the caveat provided ctear notice of a dispute. The Supreme Court ultimatety declared the mortgage and subsequent transfer to the third party "nu[[ and void and of no [ega[ consequence" due to the fraud and itlegatities. lt strongty rejected the argument that technica[ities shoutd be disregarded if doing so wou[d lead to injustice, stating that properadherence to the [aw is essentiaI for depriving a person of their property. ln the circumstances of this appeat, there was no caveat and no notice of a defect in titte on the part of the 2nd Respondent neither was there a notice of any defect on the part of the 3'd respondent. ln Grindlays Bank (Uganda) Ltd v. Uganda Bottlers Ltd fi996J UGSC 32 ]Vh May, 1996)lhere is a ctear emphasrs that the registered proprietor's titte is unimpeachabte except on grounds of f raud. lt reiterates that mere irregutarities in regrstration are not sufficient to defeat titte untess they amount to fraud. 0n the other hand, where an invatid appointment of a receiver (not comptying with the Mortgage Act) can render the sate of Land nut[ and void. Therefore, Iike Sinba (K) lld breach of a statutory provisron is considered a f undamenta[ [egat defect, which though not directLy attributabl.e as fraud on the part of the transferee, can lead to nuttity of the transaction and inva[idate a registered trtte. ln Kampata Bottlers Ltd. v. Damanico (U) Ltd; Supreme Court Civil Appeal No. 22 of /992, the Supreme Court heLd that fraud must be "attributabte to the transferee" erther drrectl.y 10 15 20 30 40 5 or by necessary imptication. Secondty the burden of proving fraud ts stricter than a mere batance of probabiLrties. The court declined to f ind fraud against the registered proprietor where the al.teged fraud was attributed to third- party officiats (City Councit, Land 0ffice) and not directty to the transferee, untess the transferee had taken advantage of that wrongful act. This set a higher bar for imputing fraud to the registered proprietor simpty due to third-party irregul.arities. The precedents, particutarly Zaabwe, demonstrate that white the RTA provides strong protection to registered proprietors, this protection is not absolute when the underlying transaction is fundamentatl.y fLawed due to rltegatrty or fraud. The question woutd be whether the fraud taints the root of the titl.e. lf the initiat transaction that leads to registration is tainted by fraud, and this fraud can be "brought home" to the registered proprietor (either directty or through notice/constructive notice to their agents), their tit[e can be impeached. Further, beyond f raud, some itLegal.ities are considered fundamentaI and these include the ittegatity of non-comptiance wrth statutory requirements or breach of a statutory provision which can render a transaction a "nuttity" ab rnitio. A nut[ transaction means that no vatid trtte was ever passed, regardtess of good faith or consideration, thereby defeating any subsequent registration. Zaabwe powerf utl'y ittustrates this, where inval.id executron of the mortgage and the use of the power of attorney beyond its tegat scope [ed to the mortgage and subsequent transfer being dectared nutl and void though an eLement of notice of the ittegatity was imputed on the bank. The purchaser shoutd demonstrate that he or she and his/her agents conducted thorough investigations, not onty of the register but atso of the land and the vendor's authority. Faiture to conduct such due diLigence, especiatLy when suspicious circumstances exist (e.9., occupation by "ittegat occupants," missing documents, discrepancies), can Lead to a finding of constructive notice of fraud, thereby defeating the bona fide purchaser 47 10 15 20 25 30 5 defense Frazer v Walker fi967J I AC 569, fi967J / All ER 649 (Privy Council), is a case from New Zeatand which affirms the principte of immediate indefeasibitity. The Privy Councit hetd that a bona fide purchaser who registers their interest obtains an indefeasibte titte, even if the instrument they registered was based on a forged document, as long as they were not party to the fraud. The focus is on the act of registration and the good faith of the current registered proprretor The facts of the appeal were that the appeltant and hrs wife were registered owners of farm land subject to a mortgage which stitt had outstanding sums owing. The appettant's wife, on her own behatf and of the appel.[ant, borrowed 83,000 from the second respondents on the security of a mortgage over the suit property. She rnserted in the mortgage a forged signature of the appetlant's and her genuine signature which was witnessed by a cIerk at her sotrcitor's office. The second respondents paid the €3,000 partty in discharge of the existrng mortgage and partty to her solicitors. 0n 21't Juty 1961, the mortgage memorandum was registered at the Land registry off ice together with a discharge of the previous mortgage. No payment of principaI or interest was made and on 26rh 0ctober'1962, the second respondents sol.d the property to the frrst respondent in exercise of their power of sate. ln November 1962. the transfer by the second respondents (the mortgagees) to the first respondent was registered. The respondents acted in good faith throughout. ln an action by the first respondent for possessron, the appetl.ant counter-ctarmed, on the ground of forgery of his signature to the mortgage, for dectaratrons that his interest in the Land had not been affected by the mortgage and that the mortgage was a nultity. He counter-ctaimed for an order to canceI the retevant entries or memoriats in the Land transfer register. 0n appeal from dismissat of his counter-ctaim, it was hetd that the registration was effective to vest titl.e in a registered proprietor notwithstanding that he acquired his interest under an instrument that was vord, and accordingty, as atso because the counter- c[aim against the f irst respondent was a proceeding for the recovery of [and 10 15 20 25 30 35 42 5 and was barred by s 63, the counter-ctaim faited against the first respondent. This decision is persuasive and reinforces interpretation of section 165 of the RTA. At 655 the Privy CounciL hetd that: Frrst. in foLtowing and approving in this respect the two decisions in Assets Co Ltd v Mere Roihi, and Boyd v l,lelhngton Corpn,lheir Lordships have accepted the general principte, that registration under the Land Transfer Act, 1952, confers on a registered proprietor a titLe to the interest in respect of which he is registered which is (under s 62 and s 63) immune from adverse claims, other than those specif icatty excepted. ... ln the circumstances of this appeat, the fraud alteged was the fraud of Kasulu transferrrng titte on the forged signature of the appettant to the first respondent. The second respondent did not have notice actuaL or 43 10 15 20 25 30 35 The powers of the registrar under s 81 are significant and extensive (see /ssefs Co Ltd case). They are not coincident with the cases excepted in s 62 and s 63. As wet[ as in the case of fraud, where anygrant, certificate, instrument, entry or endorsement has been wrongfuILy obtained or is wrongfuLty retained, the registrar has power of cancettation and correction. From the argument before their [ordships it appears that there is room for some difference of opinion as to what preciseLy may be comprehended in the word "wrongfuLty". lt is clear, in any event, that s 81 must be read wrth and subject to s /83 with the consequence that the exercise of the registrar's powers must be limtted to the pertod before a bona frde purchaser, or mortgagee, acquires a trtle under the latter section. (Emphasis added) Under the Uganda Registration of Trttes Act, specifical.ty Section 165, an ittegatity (inctuding fraud or error) committed by a predecessor in titLe wiLl. generaLl.y not vitiate the titl.e of a bona fide purchaser for va[uabLe consideration without notice. The Act is designed to protect the integrity of the land register and provide security to innocent purchasers who rety on rt. The exception to indefeasibitity appties when the current registered proprietor is invotved in or privy to the fraud. 5 constructive of any fraud when he purchased the property about four years later from the I't respondent. No f raud is attributabl.e to the 2nd Respondent and by extension to the third respondent Regarding the mortgage, white the formal requirements could be catled to question, one can stil.L prove an equitabte mortgage by deposit of title as the bank lent the money to the mortgagor and no prejudice was suffered by the proprietor or the bank. The bank, can in the crrcumstances, enforce an equitabte mortgage and recover rts money if the titl,e has not yet been redeemed. ln General Parts (U) Ltd and Ors v. Non-Performing Assets Recovery Trust; [2006J UGSC 3 (14h March 2006), lhe Supreme Court estabtished that a mortgage instrument that faits to meet the formal requirements for proper execution and registration as a legal mortgage under the Registration of Tittes Act does not, by that faiture atone, render the entire security arrangement a nuttrty ab inrtlo, provided that the essential etements for the creatron of an equitable mortgage are present. Specificatty, where there is a deposit of titte certifrcates by the registered proprietor with a ctear intent to create a security, an enforceabl.e equitabLe mortgage is created under Section 129 of the Registration of Tittes Act, irrespective of the defects in the attempted [ega[ mortgage. The facts in General Parts (U) Ltd and Ors v. Non-Performrng Assets Recovery Trustwere that the appettants chattenged the enforceabitity of an equitabLe mortgage, citing "l.egaL shortfalts in respect of the Powers of Attorney." Their primary contentions were that: 1. There were no registered powers of attorney granted to the I't appetlant to validate the creation of an equitabte mortgage. 2. The unregistered powers of attorney granted to the 'l't appeltant were not intended for securing the existing indebtedness (overdraft), but rather for a fresh borrowing that drd not materiatize 44 10 15 20 25 30 5 3. The deposit of titte certificates by the 1't appeltant or its Managing Director coutd not create an equitabLe mortgage without dul.y registered powers of attorney for that specif ic purpose. 10 The Supreme Court, uphetd the finding that an equitabLe mortgage was enf orceab[e between the parties, despite these at[egations regarding formal requirements. The pertinent points were that the Supreme Court affirmed that an equitabte mortgage of Land can be created by the deposit of a titLe certificate by the registered proprietor with the intent to create a securrty, as provided by Section 129 of the Registration of Tittes Act. Secondly, Hajj Haruna Semakuta (the 2"d appettant) was both the registered proprietor of the land and the Managing Director of the l't appetLant. The Court arrived at the conctusion that from crrcumstantiaI evidence, he was the person who deposited the titLe certificates as security. Therefore. he coutd not ctarm to have deposited them soLety as Managing Director and not as the registered proprietor, and his status as a non-borrower was irretevant to the creation of an equitabl.e mortgage by deposit of titte. Thirdty, the Court found that the security was indeed for the repayment of the 1't appettant's restructured toan (the overdraft), and not for an unapproved fresh loan The powers of attorney granted by the 2"d appeLl.ant were to enabte the 1't appellant to execute the intended tegat mortgage in the context of restructurrng the overdraft. The stiputation that the powers wouLd be irrevocabte until repayment of "moneys borrowed thereunder" was construed in the context of the restructured overdraft. Fourthl.y, whil.e rt was acknowLedged that the parties intendedlo create a legat mortgage, the failure to property execute the necessary instrument (which woutd inctude vaIid signatures and other formaI requirements for registration) merety rendered the security an equitable mortgage by virtue of Section 129 of the Registration of Tittes Act. The Court had previousty observed in Civil. Appeat No. 5 of i999 that the mortgage document was not proved to have been "vatidty executed." However, this faiture in formaI execution did not render the undertying equitabte mortgage nu[[ and vord ab initio lnslead, 15 20 30 25 5 the deposit of titte deeds with the intent to create security was suffrcient to estabIish an equitabte mortgage, which is recognized and enforceabLe in l'aw. The powers of attorney were seen as enabling instruments f or a legal mortgage, but not as components for lhe creation or validation of the equitab[e mortgage itsetf. Lastty, on this issue, the Supreme Court conctuded that the 2"d appeltant deposited the titte certifrcates with the intent to create security for the restructured Loan, and despite the faiture to properLy execute a [ega[ mortgage, an enforceabLe equitabl.e mortgage was created. The atleged "shortfatts" regarding powers of attorney were not substantiated as they did not negate the creatron of the equitabte mortgage by deposit of titte. ln the premises, the faiture to compLy with the formaI requirements for a registered mortgage, incLuding aspects of proper execution, did not inval.idate the equitabl.e mortgage because the core etements for its creation (deposit of titte with intent to secure a debt) were present and proven. For emphasis, section 129 of the RTA whrch was the retevant law rn 2008 provided that. 129 Equ itabte mortgage (1) Notwithstanding anything in this Act, an equitable mortgage of Land may be made by deposit by the registered proprietor of his or her certificate of titte with intent to create a security thereon whether accompanied or not by a note or memorandum of deposit subject to the provisions hereinafter contained. (2) Every equitabte mortgage as aforesaid sha[L be deemed to create an interest in [and. (3) Every equitabte mortgagee shaL[ cause a caveat to be entered as provided for by section 139. This provision is augmented by the Mortgage Act Cap 239 Laws of Uganda 2023 whrch provides under section 2 (5) that. 10 15 20 30 46 25 5 10 15 20 25 30 (5) Notwithstanding subsection (4), unregistered mortgage shatl be enforceabLe between the parties. Therefore, faiture to compl.y with formal requirements of Latin character etc. does not render a mortgage invalid and a mortgage may be valid and enforceabte between the parties by deposit of deeds and lending on the strength of that. ln the crrcumstances, I wou[d find that grounds 10, i1 and 12 of the appeal are without merit and I woutd disatlow them. lssue 5: Whether the transfers to the I't Respondent and 2nd Respondent, and the mortgage to the 3'd Respondent, are vitiated by fraud (Grounds 13, '14,15) Fraud, as defrned in Zaabwe v Orient Bank & Ors, supra, involves actual dishonesty, deceit, perversion of truth, or trickery. The Appetl.ant particuLarrzed numerous acts of f raud against both the l't and 2nd Respondents. Against the 1't Respondent, the altegations rncLude knowingl.y purchasing from Kasulu who was not the registered proprietor, false assertions about the Appettant setting to Kasutu, Lying about the AppeLtant signing P4 in his presence, and the agent's fatsifications on P4 regarding consideration, attestation, and the imposter transferor. lf proven, these acts ctearly demonstrate deceit and dishonest conduct, which is imputab[e to the 1'l Respondent. The 2nd Respondent, in his defence, generatty asserted his bona fide purchaser status, but did not directly address or refute the specific altegations of fraud against the i't Respondent, which woutd affect the Legitimacy of the l't Respondent's titte from which the 2nd Respondent subsequent[y derived interest. 47 5 Against the 2nd Respondent, the Appettant aLl.eged fatse cLaims about issuing a bounced cheque, misrepresenting the price reduction, fatsety ctaimrng to have paid Shs. 440,000,000/= as the futt price, and faLseLy decLaring this amount on P2 These attegations, if true, indicate deLiberate misrepresentation and dishonesty aimed at gainrng advantage, which woul.d constitute fraud. The 2nd Respondent's ctaim to be a bona fide purchaser, white a defence, does not automaticatty negate these specif ic atlegations of fraudutent conduct by him. The 3'd Respondent's submission that no fraud coutd be attributed to the 2"d Respondent reties on generaI principtes of proof of fraud, but it does not specificaLty address the detai[ed rnstances of atteged fraudutent conduct articutated by the Appettant Against the 3'd Respondent, the Appetlant al.l.eged drrect fraud based on the timing discrepancy in DW3's testimony (search in June 20,l1 before toan apptication in August 201'l). WhiLe the 3'd Respondent characterized thrs as a non-material rnconsistency, the Appeltant argues it points to a pre- meditated or irregular conduct. Fraud need not be directty pLeaded if evidence emerges during trial. to support it, provided parties have an opportunity to address il (Lutalo v Ojede, Uganda Rallways Corporation, supra).lf the chain of titl.e teading to the mortgage is found to be tainted by fraud (by the l't and 2nd Respondents), then the mortgage itsel.f woutd be vitiated Given my findings in grounds 10, l'1, and 12, the 2nd Respondent quaLifies to be a bona f ide purchaser for vatue and white fraud was proved agarnst the I't respondent thrs drd not vitiate the titte of the 2nd Respondent nor the mortgage of the 3'd respondent. The issue of the 2nd Respondent under dectaring the consideration is a fraud not as against the transferee in titte but against Uganda Revenue Authority and re[ates to coLlection of Revenue and not impeachment of titte. I woutd hotd that grounds 13, 14 and l5 of the appeaI are without merit and I woul.d disattow it. 48 10 15 20 25 30 5 10 15 ln 25 30 lssue 6: Whether the 3d Respondent can vatidty ctaim the protection of a bona fide mortgagee for value without notice (Ground 15 continued) The Appel.tant argued that Sections 176(c) and 181 of the RTA (before revision of the [aws of Uganda) provide protectron specif icaLty to a "transferee bona fide for vatue" or a "purchaser bona fide for vatuabLe consrderation" from a proprietor registered through fraud, and that a mortgagee does not fatl within this protected category. A mortgage, under Section 8 of the Mortgage Act 2009, operates as security onty and does not transfer an interest in [and. I have carefulty considered the arguments and find that my resotution of grounds 10,11,12,13, and 14 of the appeaI resotves ground 15 of the appeat. I find that ground'15 has no merit and is disaLl.owed as against the 2nd and 3'd respondents. lssue 7:What remedies, if any, are availabte to the parties. Given the findings that the transactions Leading to the registration of the I't Respondent is tainted by fraud, and by ittegal.ities, the remedies witL fotl.ow the findings as against the l't respondent. Mesne Profits: The Appetl.ant ctaimed mesne profits at the rate of Shs. 1,500,000/= per month from 2nd December 2004 untrt vacant possession, a figure he testified was uncha[tenged during cross-examination. This claim coutd have been properly leveled against the 'l't Respondent who deprived the appel.l.ant of the [and together with one Patrick Kasutu who is not a party and therefore no order can be made against him Neverthetess, the evidence is ctear that Patrick Kasu[u did not have untawful possession as the premises were handed over to him by the appeLtant for marketing purposes. Mesne profits are awarded where the ptaintiff succeeds in proving that the defendant was in untawful possession of the premises (See Ministry of Defence vs Ashman and .Another fi993J 2 EGLR l0Z. h he 49 a 5 premises the ptaintiff is entitled to compensation for deprivation of [and and not mesne profits. lnterest: The award of interest is discretionary under Section 26 of the Civit Procedure Act. The interest sought on the decretaL sums shoutd be reasonabte and justif iabl'e under the circumstances. Costs: Costs generatly foLtow the event, meaning the successful party is awarded costs, untess there is good reason to order otherwise (Kivumbi v AG, SCCA No. 6/ll There is no reason to order otherwrse in the instant appeat. I have carefutty considered the grounds of appeal, the submissions of learned counsel for atl partres, and the retevant taw, I f ind substantia[ merit in grounds 1 - 9 of the appeaI against the 1't respondent and partialty on the case of under declaration rn grounds B and 9 of appeal. against the 2nd Respondent. Grounds 11,12,13,14, and 15 of the appeal substantiatty fait. Therefore, I woul.d issue the foLlowing orders '1. The appeaI is attowed as against the first respondent in grounds 1, 2, 3, 4, 5, 6, 7, 8, and 9, and 10 lt is onty attowed partiaLty as a decl'aration of under dectaration of the consideration of the sa[e between the l't 10 15 ,( 50 20 30 General Damages: The Appetlant prayed for Shs. 200,000,000/= against the I't Respondent for inconvenience, expense, and mentaI anguish. This Court has the power to assess damages in [ong-standing cases, as in Zaabwe v Orient Bank, supra, to prevent further protracted titigation. The Appetl.ant has endured signif icant hardship and LegaI battLes over a protonged period due to the fraudutent transactions concerning hrs Land. The accusations against him by the 1't Respondent, aLLeging he rectaimed Land after sel.l.ing it, have undoubtedl.y caused mental anguish. I 5 respondent and the second respondent as against the 2nd Respondent in grounds 8, 9 and 10 of the appeat. 2. The judgment and orders of the Court of Appeat in Civit Appeat No.'158 of 2015 are hereby set aside and shatt be substituted by this judgment. 3. Further, the judgment and orders of the High Court in HCCS No.465 ot 2012 are hereby set aside and substituted by this judgment. 4. Judgment is entered for the Appetlant (Ptarntiff in HCCS No. 455 of 2012) against the l't Respondent and the second respondent onty partiatty to the extent rn this judgment as fottows: 15 a lt is declared that the purported transfer of the suit property comprised in LRV 3293 Fol.io 4 Pl.ot 7 Martyrs Lane Ntinda to the 1st Respondent (Kamenge Deudonne) was iLtegal, fraudulent, nuLL and void. o. lt is declared that the purported transfer of the suit property from the 1't Respondent to the 2nd Respondent (John P. Kabayo) is protected by sections 160 (c) and 165 of the Registration of Titles Act Cap 2t+0 laws of Uganda, 2023. c. lt is dec[ared that the mortgage registered on the suit property by the 3'd Respondent (Housing Frnance Bank Ltd) is vatid as an equitabte mortgage and enforceabte as between the parties thereto. o The 1st Respondents shal.l pay to the Appetl.ant compensation for deprivation of Land in the sum of Uganda shittings 525,000,000/ (Five Hundred and Twenty-Five Mittion onty) being the price at which he sotd it to the 2nd Respondent. e The 1't Respondent shatl pay to the Appetlant general damages of Shs. 150,000,000/= (0ne Hundred Frfty MitLron Shittrngs) for fraud, inconvenience and [oss of registered proprietorship. r lnterest shatt appty to the decretat sums for compensation for deprivation of Land and general damages at the court rate of 6% 20 30 51 10 I 5 per annum from the date of the ludgment of the High Court titt payment in fuLt. g The Appettant is awarded the costs of this appeal. and in the courts betow, to be paid by the 1't, Respondent. n The 2nd Respondent sha|'[ pay to Uganda Revenue Authority stamp duty based on the undectared transfer consideration of Uganda shil.l.ings 85,000,000/= to be assessed by Uganda Revenue Authority , This judgment shatt be served on the Commissioner General Uganda Revenue Authority by the Registrar of this Court. I The appeal against the 3'd respondent stands dismissed with each party to bear his/its own costs. 15 Signed by at Kampa|'a the iTth of Aprrl. 2026 20 Christopher Madrama lzama Justice of the Supreme Court s**J 1fi{, }\q9 a*Sot h^{ aDaG SC 52 10 ) THE REPUBLTC OT UGANDA THE SUPREME COURT OF UGANDA AT I{AMPALA (Coram: Tuhaise, Chibita, Musoke, Madrama & Mugenyi, JJSC) CIVIL APPEAL NO.8 OF 2023 BETWEEN NELSON OCHAYA MARIE APPELLANT AND 1. KAMENGE DEUDONNE 2. JOHN P. KABAYO 3. HOUSTNG FTNANCE BANK (U)LTD RESPONDENTS (Appeal from the decision of the Court of Appeal (Buteera, DCJ; Bamugemereire & Musota, JJA) in Civil Appeal No. 158 of 2015) Civil Appeal No. 8 o12023 JUDGMENT OF MONICA K. MUGENYI, JSC I have had the benefit of reading in draft the judgment of my learned brother Madrama, JSC in this Appeal. I agree with his findings and the conclusion therein that the Appeal substantially succeeds, and do abide the declaration and orders issued in the terms proposed. /1lQC Dated and delivered at Kampala this ..o{:t..: day of .. 2{)A4 14025- ( Monica K. Mugenyi Justi ce of the Supreme Court 2 Civil Appeal No. 8 of 2023 I