THE REPUBLIC OF UGANDA

IN THE SUPREME COURT OF UGANDA

AT MENGO

(CORAM: MANYINDO, D.C.J., ODER, J.S.C., KAROKORA, J.S.C)

CIVIL APPEAL NO. 53 OF 1995

BETWEEN

1. ISMAIL JAFFER ALLIBHAI

2. KASSAMAL JAFFER ALL IBHAI
3. BAHADURARALI JAFFER ALLIBHAI ….………….. APPELLANTS

AND

1. NANDLAL HARJIVAN KARIA

2. VICTORIA MOTORS LTD …........................................RESPONDENTS

Appeal from the judgment of the High Court at

Kampala (Ntabgoba P.J.) dated 2/5/95,
in H.C.C.S. NO. 348 of 1991).

JUDGMENT OF ODER, J.S.C.

This is an appeal from the judgment of the High Court of Uganda at Kampala
dated 2/5/95, in which the learned trial principal judge (P.J.), dismissed the appellants
High Court Civil suit No 348/91 against the respondents.

The brief facts of the case are that the three appellants, who are brothers, were the
registered proprietors of land and building comprised in lease-hold Register Volume 693,
folio 15, Plot No. 37, Jinja Road, Kampala (hereinafter referred to as 'the suit property").
The suit property was Lease-hold of 90 years commencing on 1/4/68, and was
jointly owned by the three appellants as tenants in common from 2/12/69, when
they were registered as such.

In 1972, the 1st respondent apparently purchased the suit property from the
appellants but, due to the expulsion of Asians from Uganda in that year, the transaction was
not complete. After the expulsion of Asians from Uganda the suit property was taken over
by the Departed Asians Property Custodian Board hereinafter referred to as "the Board"),
apparently, under the provisions of Decree No. 27 of 1972 as amended by Decree No. 29
of 1972 and Decree No. 27 of 1973.

Thereafter, the Board transferred the suit property to the 1st respondent who was
subsequently registered as the proprietor thereof on 4/12/80.

All the three appellants and the 1st respondent were at the material time Citizens
of Uganda of Asian origin. That fact notwithstanding, the three appellants left Uganda in
1972 and settled in Canada, but the 1st respondent remained and stayed in Uganda throughout.
On 22/2/82 the 1st respondent transferred the suit property to the 2nd respondent, a limited
liability company registered in Uganda. On 22/4/82, the 2nd respondent was registered as
the proprietor of the suit property.

The appellants instituted the suit against the respondents, beginning with their original
plaint 20/3/91. The plaint was emended twice, the final one being dated 8/3/93. The main
grounds of the appellants claim were stated in the following paragraphs of the second
amended plaint:-

"6. By an agreement dated 19/5/72, the plaintiffs appointed the 1st Defendant to be
their Broker to sell, amongst other things, the premises at a Commission of 2%
for a sum of Shs 1,300,000/= (one million three hundred thousand shillings).
The same agreement also gave the first Defendant the right to purchase the premises
for a sum of Shs. 1,274,000/= (one million two hundred seventy four thousand
shillings). A photo-stat copy of the said agreement is attached herewith and marked
Annexture "c".

"7. On the 1st day of June, the 1st Defendant introduced to the Plaintiffs a purchaser of
the premises at the sum of Shs 1,300,000/= (0ne million three hundred thousand
shillings) and an agreement of the same date was signed. A photo-stat copy of the
said agreement is attached herewith and marked Annexture "c".

"8. Although the name of the purchaser was not indicated in the said agreement the
1st Defendant disclosed it in his letter dated the 27th of December 1972; as being
Gomba Mansions Ltd. A Photo-stat copy of the said letter is attached
herewith and marked Annexture "E". The Plaintiffs will adduce further
evidence at the trial to show that before they left Uganda by the first week of
November 1972, the said Gomba Mansions Ltd. had concluded a deal to
sell the premises to Kassam Motors Ltd., and not to the 1st Defendant.

"9. The Plaintiffs will contend at the trial that a contractual relationship
arose between themselves and the said Gomba Mansions Ltd., which superceded
the 1st Defendant’s right to purchase the premises as per the agreement dated the
19th day of May, 1972.

"10. Further and in the alternative but without prejudice to the foregoing the
plaintiffs contend that the 1st Defendant having failed to exercise his option to
purchase the premises by the 7th day of May, 1972. (Annexture "A") his right lapsed
and was not entitled to purchase the premises after the said date.

"11. In the further alternative but without prejudice the foregoing the plaintiffs contend
 that their offer to sell to a purchaser introduced by the 1st Defendant lapsed when
the full purchase price was not paid by 31st day of December 1972, as per Clause
1 of the agreement dated the 1st day of June 1972 (Annexture D") and/or performance
of such agreement became frustrated by operation of law.

"12. In or around 1973, acting under the provisions of Decree 27 and/or 29 the Departed
Asians Property Custodian Board took over possession of the premises on
the assumption that they were abandoned property.

"13. In 1980, the 1st respondent caused the Departed Asians Property Custodian Board
to transfer the premises to him on the ground that he had purchased the same from
the plaintiffs and he became the registered proprietor as per Instrument No. 208272
of 4th December, 1980.

"14. The plaintiffs will contend at the trial that the 1st Defendant acted fraudulently in
obtaining registration of a transfer of the premises in his favour.

PARTICULARS OF FRAUD

The 1st Defendant acted fraudulently in that:-

(i) Knowing that the premises had been purchased from the plaintiffs by Gomba
Mansions Ltd., or any other person, he falsely made representation to the
“Departed Asians Property Custodian Board to the effect that he had
purchased the premises himself as a result of which the Board executed a
transfer in his favour."

(ii) He wrote or caused to be written false documents to establish a claim to the

premises.

(iii) He caused his name to be registered on the Register of Titles when he knew he had
right to do so since he was aware that the plaintiffs as Uganda Citizens
were the only entitled to execute a transfer in his favour.

(iv) He acted in such a way as to knowingly defraud the plaintiffs of their property or the
proceeds of sale therefrom.

“15. In 1982, the 1st Defendant sold the premises to the 2nd Defendant, who became the
registered proprietor as per Instrument No. 211853 of the 22nd day of April, 1982.

“16. The plaintiffs will contend at the trial that the 2nd Defendant acted fraudulently in
obtaining registration of transfer of the suit premises in his favour.

PARTICULARS OF FRAUD

The Defendant acted fraudulently in that it:

(i) Submitted to the Registrar of Titles valuation report which it knew to have been
forged.

(ii) He caused the transfer to be effect into its names without proper valuation by the
Government valuer having been made.

(iii) Forged or caused to be forged the signature of Mr. Okello to be affixed on the
document which was submitted to the Revenue Office and to the Chief Registrar
of Titles.

(iv) Forged or caused to be forged the signature of Mr. Paul Bakasharuhanga to be

affixed on the application for consent to Transfer Form.

(v) Forged or caused to forget the signature of Mr. Stephen Oringo to be fixed on the
Valuation Report.

“17. Further and in the alternative the plaintiffs will contend that in as much as the
premises and have been vested in the Departed Asians" Property Custodian
Board. Whether lawfully or otherwise, which executed the transfer to the 1st
Defendant the 2nd Defendant" Title which traces its root to the Departed Asians"
Property Custodian Board was nullified under the provisions of Section 1 of the Expropriated
Properties Act, 1982.

“18. The plaintiffs will further contend that the purported expropriation of
their premises by the Government of Uganda was contrary to the provisions of
Articles 8, 13 and 20 of the Constitution of Uganda and therefore any law or act
transaction arising therefrom in null and void."

The plaint then prayed for several declaration and orders. The respondents “w.s.d. made
general denials and specifically denied any fraud as alleged in the plaint or at all. The
learned Principal Judge summarized the respondents" case as pleaded therein as follows:-

(i) That at all material times, i.e. during the whole of 1972, when the 1st defendant
purchased the suit property from the plaintiffs the plaintiffs were Ugandan
Citizens.

(ii) The 2nd Defendant was a bona fide purchaser for valuable consideration without
notice of any defect in the title of the 1st Defendant.

(iii) That the reason why no name of the purchaser was disclosed in exhibit P.3
(Annexture "D" to the plaint) was because it was designed to include the 1st
Defendant" as buyer 'as at the time all prospective buyers so far then approached
only shown a keen interest to purchase but nothing had Concretized."

(iv) That if the allegations were true that Gomba Mansions Ltd., had concluded a
 deal to sell the suit property to Kassam Motors Lt., it was only because Gomba
Mansions Ltd., finding itself unable to raise or risk money to buy the suit property,
indulged in speculative business to make quick gains out of the difference
between sale and purchase prices, which sale price could ultimately be paid by
Kassam Motors Ltd., "situation of which the first Defendant was neither aware nor
was party to an existence of which therefore, could not be attributed to him."

(v) That the option to purchase given to the 1st Defendant was of a concurrent
nature "and he was not to be excluded until a third party had actually performed the purchase
contract fully as to make it binding between the buyer and the seller."

(vi) That the plaintiffs have misconstrued the terms of the sale agreement and that the first
Defendant and the plaintiffs mutually contracted that the option to him to buy
would lapse by 31st December 1972, not 7th June, 1972. That the plaintiffs , in
accepting that position, received and accepted part payment of the purchase money well
beyond 7th June, 1972.

(vii) That the 1st Defendant was all along ready and willing to pay the balance of the
purchase price but he could not find the plaintiffs so as to pay them.

And he discharged his obligation under the contract when he paid to the Departed
Asians" Property Custodian Board, who represented to him that they were the
successors in Titles to the suit Property by virtue of the Expropriation Laws
(Decree) then in force.

(viii) That the transfer to him and registration in his name of the suit property in 1980.
"was the culmination of a long struggle by the 1st Defendant and transfer to him was
made after the most careful scrutiny by the Custodian Board."

The above is a summary of the case for the respondents as stated in their w.s.d.
They then prayed for dismissal of the suit; a refusal to grant the declarations sought by the
appellants; and for damages to be awarded to the 2nd respondent for loss of
profits in its business as a result of the suit.

Eleven issues were framed and agreed at the commencement of the trial. They
were:-

1. Whether the Certificates of purchase issued to Victoria Motors ltd., was fraudulently
issued. This was answered by the learned Principal Judge in the negative.

2. Whether Nandlal Karia fraudulently obtained transfer of the suit property. This
was also answered in the negative.

3. Whether the suit property was bought by Gomba Mansions Ltd., and later by
Kassam Motors Ltd. The answer was that neither Gomba Mansions Ltd., nor Kassam
Motors Ltd. bought the suit property N. H. Karia was the purchaser.
4. Whether the letter from Ishani Mitha and signed by M.K. Mohammed and attached to
the w.s.d. was a forgery and if so, whether it was forged by N.H. Karia. About
this issue the learned Principal Judge, said that it did not assist in determining the case
because such forgeries as there might have been could not change the legal factors,
namely that the 1st respondent was the purchaser of the suit property; that he
purchased well ahead of the Amin's Decrees of 1972 and 1973 affecting and
prohibiting the transfer of Departed Asians" Properties; that therefore, the
provisions of the Expropriated properties Act, 1972, did not affect the first or
second respondents' titles; and that although the Departed Asians" Property Custodian
Board wrongly took over the suit property, s long as it become trustee of the
appellants in respect of that purchase price.

5. Whether N.H. Karia lied to the Departed Asians "Property Custodian Board it was
answered that the first respondent did not lie to the Board that he had paid the
full purchase price to the Board. He actually paid the price to the Board in
consideration whereof the Board transferred to him the suit property over which
the Board had assumed responsibility.

6. Whether Karia bought the property from the Custodian Board of from the Allibhais’.
the answer was that Mr. Karia Bought the property from the appellants so what the
Custodian Board was created he was already the owner of the suit property holding
an equitable title; and on payment of the balance of the full purchase price he
would automatically be entitled to being registered as proprietor of the legal (as
opposed to equitable) Estate.

7. Whether Karia was entitled to be registered as owner of the suit property. The
learned Principal Judge's answer to this issue was in the affirmative. On the basis of
payment of the full purchase, Karia, who became the equitable owner on 1/6/72,
would become the legal owner, entitled to be registered as proprietor.

8. Whether Karia obtained registration of the suit property through fraud, the learned
Principal Judge's answer was thus that it was not necessary to consider the alleged
forgeries in detail, because even if there was any and even if they may have
been committed by the 1st respondent this would not change the learned
Principal Judge's earlier decision that the contract was concluded and based on
exhibit P.3 on 1/6/72 etc. Needless to say, the first respondent may have committed
the number of forgeries he was alleged to have committed but in view of the above
findingssuch forgeries were inconsequential to this case.

9. Whether Victoria Motors ltd., purchase was fraudulent. The learned principal
Judge does not appear to have expressly answered this issue. But in view of his
findings on other issues on fraud and others his answer to issue No. 9 would appear
to be in the negative.

10. Whether Victoria Motors Ltd., Title is invalid by reason of fraud. The Learned
 Principal Judge's answer would appear to be in the negative as in issue No. 9.

11. Whether the Allibhais are entitled to possession of the suit property. Again, no
specific answer was given but it would appear that in view of the learned Principal
Judge's findings on, and answers to, other issues, his answer to No. 11 would be in
the negative.

In the end, the learned principal Judge declined to make the declarations sought by the
appellants in their prayers in the plaint, and dismissed the suit with costs. Hence this appeal.
Twenty six grounds of appeal were set out in the Memorandum of appeal. In his
submission Mr. Peter Mulira, learned Counsel for the appellants, argued many of them
together. So did Mr. Godfrey Lule, learned Counsel for the respondents in his reply.

Ground one complained that the learned trial Judge erred in law and fact when he
held that the first respondent was the purchaser of the suit property. Mr. Mulira
submission under this ground also covered grounds four, six, seven, ten, eleven, twelve,
fourteen, sixteen, and nineteen.

Ground four was an alternative ground. It complained that the learned trial
Judge erred in law and fact in not holding that the interest in the suit property passed to
Kassam Motors Ltd., to the first respondent.

Ground six was that the learned trial Judge erred in law and fact in holding that the
first respondent had an option to purchase after a sale to Gomba Mansions Ltd., had been
concluded.

Ground seven complained that the learned trial Judge erred in law and fact when
he applied the principle of disclosed principal to the facts of this case.

Ground ten complained that the learned trial Judge erred in Law and fact when he held
that Kassam Motors Ltd., did not purchase the suit property when there was evidence on record
that they did so and only backed out after learning that the property was sold to him before the
Appellants were fully paid by gomba Mansions Ltd.

Ground eleven was that the learned trial Judge erred in law and fact when he held that
Kassam Motors Ltd., never paid the sum of Shs. 200,000/= when there was sufficient evidence
that he did so.

Ground twelve complained that the learned trial Judge erred in law and fact when
he held that Abdul Shamji could not have sold the suit property to Kassam Motors ltd.
Ground fourteen was that the learned trial Judge erred in law and fact when he held that
neither Gomba Mansions Ltd., not Kassam Motors Ltd., were purchasers of the suit
property.

Ground sixteen was that the learned trial Judge erred in law and fact when he held that the
defendants" Title was not impeachable.
 And ground nineteen complained that the learned trial Judge erred in law and fact
when he held that the institution of this suit was a storm in a tea cup, since the Appellants
allegation was that Gomba Mansions Ltd., was the purchaser who disclaimed the fact
of having purchased the suit premises.

In my view all these grounds, except ground sixteen, relate to the crucial issue
of who purchased the suit property from the appellants. Was it the first respondent, Gomba
Mansions Ltd., or Kassam Motors Ltd? Ground sixteen, however, appears to be more
concerned with fraud. I will consider it under that issue.

Hereinafter, Gomba Mansions Ltd., and Kassam Motors Ltd., are referred to as
GML and KML respectively.

In his submission Mr. Mulira referred to the evidence of Kassamali Allibhai, the
2nd appellant (PW) about the appointment by the appellants of the 1st respondent as
their sole agent to sell the suit property for them. The appointment was done by a letter dated
19/5/72, written by the 2nd appellant to the 1st respondent. The letter, attached to the plaint
as Annexture "c" as admitted in evidence as exhibit P2. According to the learned Counsel
the main points in Exhibit P2, were that the sale price was to be Shs 1.3m/=; and the
respondent as the sale agent was to receive 2% of the sale price or to sell for Shs.
1,274,000/= if he purchased the suit property. The 1st respondent was thus given an
option to buy the suit property. Exbt. P2 also stated that the authority it gave to the 1st
respondent was valid and irrevocable up to 7/6/72 at 4.30 p.m.

The option to purchase was at first denied by the 2nd appellant in his evidence,
alleging that it wasinserted in by the 1st respondent. But the 2nd appellant subsequently
changed his evidence and owned up the contents of Exhibit. P2 including option to the
1st respondent to purchase. This must be the true position, because paragraph 6 of the
plaint clearly stated, inter alia, that "the same agreementalso gave the 1st Defendant the
right to purchase the premises at Shs 1,274,000/=." Mr. Mulira also conceded that such an
option was offered to the 1st respondent.

Mr. Mulira then contended that the time limit stated in Exhibit. P2 meant either that if no
buyer was found by 1/6/72, the agreement would lapse, or that the 1st respondent's
option would also lapse. He had to find a buyer or but the suit property himself within the
given period. As it happened, the learned Counsel contended, the 1st respondent found a
purchaser as shown by his letter dated 1/6/72, addressed to the 2nd appellant(Exbt. P3 and
Annexture "D" to the plaint) The name of the purchaser was not disclosed in that letter,
which was countersigned by the 2nd appellant, indicating acceptance of the terms of offer and sale
of the suit property. Exbt. p3, Mr. Mulira said, contained the agreement of sale
between appellants and an undisclosed principal. However , it was contended, the agreement
did not prove that he 1st respondent exercised the option to purchase price was shs.1.3m/= and
not shs 1,274,000/=, which would have been the case if the 1st respondent was the
purchaser, the price offered to the 1st respondent was the purchaser, it was contended, came
after the appellants had left Uganda.
 Mr. Mulira submitted that exbt.P3 revealed that the purchaser was a third party,
whose identity was not disclosed in that document.

It was the 1st responded dated 27th/11/72, (Exbt P9) addressed to the appellants that
the purchaser was disclosed as GML. It was contended that this letter (Exbt P9), copied to
GML, was the 1st respondent's first revealed to the purchaser's identity as being GML,
although it was written after 7/11/72 when according to the 2nd appellant's evidence, the
appellants left Uganda.

The second documentary evidence which, according to the appellants, shows that
GML was the purchaser was Shamji's Affidavit, shown in London on 16th/4/92, (Exbt.
P45). That Affidavit, Mr. Mulira submitted, also indicated that before paying for it GML
sold the suit property to KML through the 1st respondent.

Another documentary evidence showing that it was GML who purchased the suit
property, it was contended, was a letter dated 16/9/72, (Exbt. P46) from M/S Kazzora &
Co Advocated to KML demanding payment by the letter to GML of Shs. 1,250,000/=,
being the outstanding of the price of the suit property sold at KML by GML. The letter was
copied to GML. The Affidavit of one of the directors of KML, Agar Bharwani, sworn on
11/9/91, (Exhbt. 21) Mr. Mulira contended, proved this to Gomba Mansions Ltd. as full
purchase price of the suit property. Bharwani stated in paragraph 5 of the Affidavit:-

"That in or around July the Company bought the property from M/S Gomba
Mansions/Gomba Motors Ltd."

In paragraph 6 he said:-

"The said M/s Gomba Mansions Ltd Gomba Motors Ltd, bought the property from
Ismail Jaffer Allibhai, Kassamali Jaffer Allibhai and Bahadurali but were not
registered yet".

All this, Mr. Mulira contended, was irrefutable evidence that the original purchaser of the
suit property was GML, who resold it in a speculative manner to KML. In the whole
transaction, the 1st respondent gained Shs. 100,000/= plus 2% of Shs. 26,000/= which
would be shared by the 1st respondent and Shamji of GML.

In view of the evidence referred to the above, it was contended, it was wrong for
the learned Principal Judge to have found, as he did, that the purchase by GML and KML
did not go through and that it was the 1st respondent who purchased the suit
property on the ground that :-

(a) He had an option do so;

(b)The receipts for the deposit of Shs. 200,000/= (Exbt. P5 and Exbt. P6) were in
his names, and
 (c)Even if there was no option the 1st respondent as broker or agent for an
undisclosed principal could be held to have been his own principal.

Mr. Mulira argued that the option lapsed when it was not exercised on 7/6/72; that mere
payment of money by the 1st respondent as an Agent did not confer on him interest in or
Title to suit property.

Regarding the point of an undisclosed principal the learned Counsel submitted that
the case of: Harper & Co. V.Vigers Brothers (190), 2 KB 549 and the text book
"Bowstead on Agency" 14th Edn page 355, on which the learned principal Judge relied,
did not justify the decision that the 1st respondent, as an agent for an undisclosed
principal, had a right to acquire the suit property in his own tight. The case Harper & co.
(supra) and the passage the referred to by the learned Principal Judge from Bowstead
at page 355 (supra), it was said, concerned the liability of an agent whether he
contracts as the agent for an undisclosed principal or for disclosed principal. Applied to
the instant case, the learned Counsel contended, it did not mean that when the 1st
respondent did not disclosed the principal; he was entitled to take the suit property.

Mr. Mulira however, conceded that at the execution of the agreement dated
1/6/72, the equitable interest in the suit property passed to the purchaser, but the contended
that as the 1st respondent was not the purchaser, the equitable property could not have passed to
him. It passed to GML or KML who, according to the appellants, were purchasers of the suit
property. In the circumstances, it was contended the learned principal Judge to have found
that the property in the suit property passed on to the 1st respondent on conclusion of the
contract, Exhbt. P3 on 1/6/72 and all the evidence available pointed to the fact that it was the
1st respondent who purchased to suit property. Mr. Mulira, infact, said that the letter
finding was misdirection on the facts.

On the question of the whether the suit property was purchased, Mr. Lule, for the
respondent's submitted that the answer was evidence from the plaint Paragraph 6 of the
plaint stated that the 1st respondent was appointed to find a buyer; paragraph 7 said that the
purchaser was introduced by the 1st respondent; and paragraph 8 shows that the
appellants" understanding was that accompany called GML and KML purchased the
property. The learned Counsel submitted that as far as the point of sale alone was
concerned the plaint and evidence showed that the suit property had been sold. If there was
sale, Mr. Lule posed the question, what was the position or status of the vendors in relation
to the suit property?

On this, Mr. Lule contended that after they had sold the suit property, the vendors,
the appellants, ceased to have any proprietary interest in it, because they had transferred
that interest to the purchaser.

The next question which arose from there, the learned counsel asked, was when
did property in the immovable suit property pass? Mr. Lule submitted that the learned
trial principal judge was correct of sale of removable property passes to the purchaser,
and holds as a trustee for the purchaser. The legal Title, on the other hand, remains
with the vendor until transfer is effected. The equitable Title which passes to the
purchaser is considered to be superior to the vendor's legal Title, which is extinguished on
payment of the purchase price by the purchaser.

In my view the law regarding passing of property following a contract of sale of

an immovable property as stated by the learned trial principal Judge is correct.
Moreover Mr. Mulira, the appellants learned Counsel so conceded.

In the authoritative works Titled: the law of Real Property, by R.E.

Mergerry and H.W.R. wade, 3rd Edn, to which the learned Principal Judge referred, the
legal position is stated on page 582 as follows;-

(a) The purchase as owner: If the purchaser is potentially entitled to

equitable remedy to specific performance, he obtains an immediate equitable interest in
the property contracted to be sold: for he is or soon will be, in a position to call for it
specifically. It does not matter that the date for completion, when the purchaser may pay
money and take possession, has not yet arrived: equity looks upon that as done which
ought to be done, and from the date of contract the purchaser becomes owner in the eyes of
equity (he cannot, of course, become owner at law until the land is conveyed to him by
deed). This equitable ownership is as has been seen, a proprietary is as has been seen, a
proprietary interest, enforceable against third parties, though it must be registered to
protect it against purchasers.

(b) The vendors as trustee: As between the parties to it, the contract creates a
relationship of trustee and beneficiary: The vendor is said to be trustee for the purchaser
and the purchaser to be beneficial owner. The vendor must therefore manage and
preserve the property with the same care as is required of any other trustee, until it is
finally handed over to purchaser. The principle that property passes to the purchaser at the
conclusion of a contract of sale and the vendor becomes a trustee of the purchaser is
strengthened by the principle that risks also pass to the purchaser. As page 583 of
Megarry and Wade (supra) it is stated:-

(c) Risk passes:-

Since in equity the property at once belongs to the purchaser the risk also passes
to him at once. Thus if a house has been sold and is, without fault of the vendor
destroyed by fire before completion, the purchaser must nevertheless pay the full
purchase-money and take the land as it is”.

On the question of when property passes Mr. Mulira under ground five of the
appeal, criticized the learned trial Principal Judge as having erred to have applied the
provisions of Section 19(1) of the sale of goods Act to the instant case. With respect
I think that the learned Principal Judge referred to that section of the sale of Goods Act
merely for purposes of compression and did not apply it as such. He was merely drawing an
analogy.
 In my view, he relied on and applied the legal principal on sale of real property to
which I have referred.

Who then was the purchaser of the suit property from the appellants? I have
already referred to the submission by Mr. Mulira for the appellants" in this regard, to the
effect that the suit property was purchased by GML and KML and not by the 1st
respondent.

The respondents" case, however, is to the contrary. Their pleading, evidence, and
the submission of their learned Counsel, Mr. Godfrey Lule, are that it was the 1st respondent
who purchased the suit property from the vendors. Mr. Lule submitted that the contract
of sale between the appellants and the 1st respondent consisted of a number of documents,
namely, Exhbts. P2, P3, P4, P5, P6, and P8.

I will now proceed to consider the relevant documentary and other evidence in this
regard. By his letter dated 19/5/72, which wrote to the 1st respondent, the 2nd appellant
appointed the 1st respondent to sell or buy the suit property as the agents of all the vendors
(the appellants). The sale price was to be Shs. 1.3m/= and the 1st respondent was to receive
a commission of 2% immediately a sale agreement was made between the appellants and the
purchaser. Exhbt. p2 also gave the 1st respondent an option in the following terms:-

Also you have right to purchase above property for you sum Shs. One million two
hundred seventy four thousands only."

As I have alluded to it earlier, the plaint and the 2nd appellant's evidence confirms
this.

The 1st respondent replied to Exhbt. P2 by his letter dated 1/6/72 (Exhbt. P3),
setting out to the 2nd appellant the terms of the contract between the appellants and the 1st
respondent. By Exhbt. P3 the 1st respondent was in effect accepting what, in my view, was an
offer made by the 2nd appellant in Exhbt. P2. Due to its importance, and because it is
not too long, some of the contents of Exhbt. P3 are reproduced here below. Further
because, in my view, it was the document which contained the terms of the contract of
sale, I will set out most of its contents.

In it the 1st respondent said:-

On behalf of my client the intended purchaser I do offer to purchase the above property
on the following terms and conditions.

1. The purchase price to be Shs 1,300,000/= (shillings one million and three hundred thousand
only). The shs. 200,000/= (shillings two hundred thousand only) to be paid
on acceptance of this offer by you on behalf to the vendor. The balance price be paid by
31st December, 1972.
2. The property has been leased to Messrs. Kassam Motors E.A. Posts &
Telecommunications and other six tenants and the total monthly rental income from
the whole property is shs 25, 000/=

3. The possession of the whole property subject to existing tenancies to hand over the
purchaser on payment of full purchase price. Until payment of full purchase price
the vendors of the property to pay ground rent of Shs 4,000/= per monthly rental
Income to purchaser for purchaser's benefit. The said net amount of Shs. 4.000/=
shall be paid at the end of every month commencing from 1st June 1972, rent.

4. Ground rent, assessment rates, insurance premiums and all expenses in connection
to the above property shall be paid by the vendors until the date of delivery of
possession and thereafter the purchaser will pay the same.

5. All legal expenses for drawing the sale agreement and transfer to the above including
stamp Advocate's costs to be paid by the purchaser except release of existing mortgage
and brokerage charges of Mr. H.N. Karia will be paid by the vendors. The above
purchase price is free from any encumbrance at all, the purchaser will pay the balance
of mortgage amount of approximately Shs. 156,689.75 to Jubilee Insurance Co., Ltd
and what ever amount paid by the purchaser to get the said mortgage released shall be
deducted from the purchaser to get the said mortgage released shall be deducted from the
purchase price.

Yours Faithfully,
Karia.

I ACCEPT YOUR ABOVE OFFER

Signed (by Kassamali Allibhai).

For registered proprietor of the above Plot.
I accept and consent to the above as purchaser.
As a Broker on behalf of purchaser.
Signed (by N.H. Karia)"

The underlined words were added by Karia (the 1st respondent) in hand writing.

In this evidence, the 2nd appellant (PW) conceded that the 1st respondent signed the
document in two capacities as a broker on behalf of purchaser, and as a purchaser.

It is clear evidence Exhbt. P.3 that the deadline of 4:30 p.m. 7/6/72, for payment of
the purchaser price, which had been stipulated in Exhbt. P2 was extended to 31/12/72. This
meant therefore, that the 1st respondent had time up to 31/12/72, in which to pay the
appellants for the suit property, whether he sold it to somebody else or exercised his
option to purchase.

Then on 7/6/72, the 2nd appellant wrote to the 1st respondent Exhbt. P4 in response
to Exhbt. P3. It said:-

Further to your letter of 1st June we like to draw your attention that there exists a
second mortgage of Mr. Rajabali Hanji for Shs 150,000/= (shillings one hundred fifty thousand
only) raised on 10th April 1972, and is being registered immediately by the party
concerned.

We hereby authorise you to deduct the said amount plus all other expenses in
releasing the second mortgage from the purchase price of the above property."

In his evidence, the 2nd appellant at first said that the 2nd paragraph of Exhbt.
P4. was not typed on his type writer and that it was a photocopy trick. But, almost in the
same breath, he changed and said that it was a true copy of the original, admitted that he signed
the letter, and accepted its contents.

7/6/72, the 2nd appellant signed for himself and on behalf of his other two brothers
(the 1st and 3rd appellants) a receipt (Exhbt. P.5) for Shs. 100.000/=

The receipt said:-

"Received from Mr. N.K. Karia cheque No. 160177 towards the sale of
Plot No. 37, Jinja Road, Kampala. Shs one hundred thousand only part
payment total Shs. 100,000/=".

This receipt was followed by a letter dated 12/6/72, (Exbt. P6.) from 1st
respondent forwarding to the 2nd appellant a cheque for shs. 74,000/=.

The letter said:-

Re Plot No. 37 - Jinja Road, Kampala

Further to my letter of 7th June 1972, enclosed herewith please find the cheque No.
160188 of Shs. 74,000/= (Shillings seventy four thousand only) being the payment as follows:

1. T h e p a y m e n t a s p e r a g r e e d t e r m s a n d conditions Shs 100,000/=.

2. Less my brokerage commission of 2% on the sale of Shs 1,300,000/=

Shs 26, 000/=

Total due to you Shs. 74,000/=

Yours faithfully,

N.K. KARIA."

On receipt of this letter, the 2nd appellant wrote at the bottom:-

 "Shs 13,000/= cheque No. 160189 refunded towards the commission account
and to pay the same amount on receiving the full purchase price.

Signed 12/6/72"

In his evidence the 1st respondent explained about these two payments. He said that
the first payment, evidenced by Exhbt. p5, was payment towards purchase of the suit property.
The second payment by Exhbt. P6, also part payment for the same purpose, was in the amount of
shs. 74,000/=, because he deducted his agreed commission of shs. 26,000/= being 2% of the
purchase price of Shs. 1, 300, 000,/=. But he refunded to the 2nd appellant Shs 13,000/= from
the commission of Shs. 26,000/= which he (the 1st respondent) had deducted. This was
done at the 2nd appellant's request. The two men agreed that the other half of the
commission should be paid at the end of the transaction.

The next important document in this regard was Exhbt. P8. This was a letter dated
29/6/72, and written by the 1st respondent to the 2nd appellant, informing the letter that the
1st respondent was making arrangement to finalise and conclude the whole transaction. The
2nd appellant should, therefore immediately make available ground rent receipt.

It said:-
"RE PLOT NO. 37, JINJA ROAD, KAMPALA

With reference to the agreement dated 1st June 1972, regarding the above property please
note that we are making agreement to finalise and conclude the sole transaction by the end
of July 1972, and therefore you are requested to call upon me immediately with current ground-
rent receipt of the above Plot on receipt of this letter. The ground rent receipt is required
to enable the purchaser to apply for the necessary consent to transfer the property. Please do
bring the plans of the above property when you come to see me. You are also requested to
bring letters to Mortgages certifying the amount due under each Mortgage."

This letter clearly shows that by 29/6/72, the purchaser was by anxious to have the
transaction completed by end of July.

Thus far, the identity of the purchaser had, apparently, not yet been revealed
expressly in any of the documents.

The 1st respondent however, said in his testimony that it was the 2nd appellant
who approached him, asking whether he, the 1st respondent, had buyers for the suit property
or whether he would himself but it. Thereafter the 2nd appellant gave the 1st respondent
an option either to buy or sell the suit property. Theythen entered into agreement provided
that he (the 1st respondent) should receive a commission even if he wasthe buyer because
as a property dealer he bought and sold property as his business. He said that it was he who
bought thesuit property and made part payment of its purchase price by exhbt. P5 and P6
in 1972. But the property was not transferred into his names because he failed to meet
the 2nd appellant. People were not meeting. There was confusion and people were
leaving Uganda due to Government orders for Asians to leave Uganda within 90 days. Asians
were frightenedfor their lives and soldiers were arresting some of them. The land Office
was closed. The 2nd appellant did not sign the transfer document in respect of the suit
property. The 1st respondent went to the 2nd appellant's house becausehe wanted the suit
property transferred, but the latter was not there. He did not receive any reply to Exhbt. P8
asking for ground rent receipt, nor the ground rent he had asked for.

The 1st respondent further said that he later met the 2nd appellant at the
Immigration Office, where Asians went for verification of their Citizenship status.
On that occasion, the 2nd appellant assured the 1st respondent that the former would remain
in the country and finalise the transaction, but he did not do so.

When apparently, the 1st respondent could not thereafter trace or reach the 2nd
appellant, he wrote to the appellants Exhbt. P9. demanding a refund of the part payment he
had made for the suit property. In that letter he also demanded, as the purchaser, payment by
the vendors of the accumulated rent for Shs. 4,000/= per month, which had been agreed in
clause 3 of the agreement (Exhbt. P3).

In his evidence the 1st respondent said that the total rent collected by the appellants
from tenants then occupying the suit property was Shs. 25,000/= the 2nd appellant was
also occupying the suit property as his tenant.

In his evidence, the 2nd appellant (PW1) at first insisted that the sum of Shs
4,000/= per month agreed in clause 3 Exhbt. P3 as payable to the purchaser by the vendors until
payment of the full purchase price, was interest payable on the part payment of Shs.
200,000/= but he afterwards, conceded that it was rent, not interest.

Exhbt. P9 the letter which the 1st respondent said he wrote to all the three appellants
as vendors of the suit property said:-

"Re: Plot No 37, Jinja Road L.R.V. 610

Folio 15

As per our agreement dated 1st June, 1972, you failed to pay rent for Shs. 4,000/= per
month as mentioned in paragraph 3 of agreement. Total rent is Shs 28,000/=

Send Shs 28,000/= as per agreement and return Shs. 200,000/= (two hundred
thousand) which is payable by under the above agreement. As it is not possible to obtain a
new consent on the names of purchaser Gomba Mansions Ltd., in this matter owing to
new regulations. I shall be such obliged if you would return deposit money with the rent of
Shs. 28,000/- total shs. 228,000/= within 30 days from the date hereof."

Exhbt. P9 contained the first mention of GML as the purchaser of the suit property.
But was GML the purchaser? The appellants" case was based on the premise that GML was.

The second document which mentioned GML with regard to purchase of the suit
property was Exhbt. P45. This was an Affidavit affirmed by Abdul Shamji in London on
16/4/92. He was a citizen of Asians. The Affidavit stated, inter alia:-

"3 That in the course of my business I would buy for sale or keep several
properties either in my personal name and title or for or on behalf of my companies, one
of them Gomba Mansions Ltd.

4. That most of the properties I bought or sold were handled for me, or on behalf of my
companies by property brokers or agents.

5. That one such broker or agent who handled a number of property transactions
was Nandlal Karia was also a business associate whom I trusted and we would do business
together from time to time and share the profits and or commissions.

7. That now and again in Karia would contract or handled a property on the market
both as a sales agent or a purchase and it is in the latter capacity that he would borrow
money from me if there was no ready market available but he saw good prospects for
future sale at a profit.

8. That my attention has been drawn to plot No. 37 Jinja Road, Kampala.

9. That I recall that the plot belonged to Allibhai Brothers and they asked Nandlal
Karia to sell for them at a commission basis but giving him an option to buy.

10. That in the absence of other buyers I decided to buy through my Company
Gomba Mansions Ltd., Plot No. 37 Jinja Road and another property known as Berskerville
Avenue, Kampala and accordingly funds were made available to Karia.

11. That meanwhile Kassam Motors Ltd., were also introduced By Karia and
offered to purchase the property.

12. That Kassam Motors Ltd., paid a sum of Shs. 50,000/= to Karia as a
deposit and had agreed to transfer their property at Kisugu near Tank Hill, Kampala in
part payment.
13. That Kassam Motors Ltd., failed to complete the purchase and i was informed
from Karia that he had instructed M/S Kazzora and Company Advocates to write a demand
which was signed by Mr. Peter Mulira which evoked no response.

14. That owing to political up-heaval in Uganda I had to flee the Country.

15. That it was understood between Karia and myself that upon acquisition either
in his name or in the name of any of my companies and eventual sale of Plot 37, Jinja Road,
Kampala, we would share the profits or losses.

16. That I have known Karia for along time and for this reason I maintain business
relationship with him especially regarding properties.
 17. That on my recent visit to Uganda I was informed by Karia that Plot No. 37, Jinja
Road was later registered in Karia's own name and sold to Victoria Motors ltd."

Regarding the contents of this Affidavit the 1st respondent said in cross-
examination that he knew Shamji very well and that neither GML and KML or Haji
Bagalaliwo bought the suit property. He denied that it was GML who gave the cheques
for the purchase price. It was he who paid the vendors for the suit property, he maintained. He
denied that he was lying. He however, conceded that KML paid him (1st respondent) Shs.
50,000/= for the suit property, but no agreement was made. The purchase price was Shs.
1.3m/= plus a house in Kisugu. The documents were to be prepared by Mr. Mulira of
Kazzora & Co Advocated. It was the same firm he instructed on behalf of GML to demand
KML Shs. 1.25m/=. This was done in exhbt P46. The 1st respondent also said that neither
KML nor Bagalaliwo have demanded ownership of the suit property.

On the appellant's allegation that KML bought the suit property, Mr. Lule submitted
that 1st respondent denied this in his evidence, which was consistent with Shamji's statement
in paragraph 13 of his affidavit that Kml failed to complete the purchase.

Referring to Asghar Bharani's Affidavit (Exhbt. P21) in which Bharwani, a Director of

KML, claimed that KML bought the suit property from GML around July, Mr. Lule
submitted that claim was also contradicted by Shamji's Affidavit (Exhbt. P45).

Mr. Lule also referred to Bharwani's statement (exhbt. P34) made to Ali Gade
Akida (PW5) a CID investigator. The document was put in evidence by the appellants
because of their claim that KML was the buyer of the suit property for Shs. 1.4m/=. In it
Bharwani alleged that he paid Shs. 200,000/= through Mr. John Harlow, the Manager of
Grindlays Bank ltd., into a special account. The statement goes on to say that Bharwani
subsequently deposited Shs. 1.2m/= on that account. All this money was to be paid by
John Harlow to Shamji, though Shamji had not shown him (Bharwani) the document of
Title. The Bank Manager was supposed to obtain it for him. But Bharwani left Uganda
on 17/11/72, before the suit property was transferred to KML.

Mr. Lule submitted that on such money was actually paid to Shamji because Shamji
did not say so in his Affidavit (Exhbt. P45). Other pointers that KML did not buy the suit
property were that, as already mentioned, the 1st respondent said so; and secondly, when on
his return to Uganda Bharwani found that the suit property was registered in the names of
the 2nd respondent, he did not have documents to support such a claim, as Bharwani
himself said in the statement (exhbt. P34).

On the question of who purchased the suit property from the appellants, Mr. Lule
concluded that the evidence showed his view, that neither GML nor KML bought the suit
property. That left only the first respondent as the purchaser of the suit property from the
appellants.

I accept Mr. Lule's submissions that it was the 1st respondent who purchased
the suit property from the appellants. With respect I am unable to agree with Mr.
Mulira's submissions to the contrary in this connection.

The learned Principal Judge's finding to that effect begins with his acceptance that
Exhbt. P3 was the agreement by which the appellants sold the suit property to the 1st
respondent because the latter was appointed a broker with option to buy, as stated in
paragraph six of the purchaser on 1/6/72, the date of that agreement; and that no other
purchaser was named in the agreement. He then proceeded to find that the 1st
respondent was the purchaser in the following passage of his Judgment:-

"As I have observed, Gomba Mansions Ltd., were intending purchasers, but according to
Shamji then of Gomba Mansions Ltd., Gomba mansions eventually did not purchase.
Efforts by Kassam Motors ltd., also failed after they had already paid to the first
defendant a sum of Shs. 50,000/=. Who then was the purchase? The plaintiffs who
should have contended that there was no buyer, instead contend that Gomba mansions Ltd.,
were purchasers. Imagine they have taken this line of argument because they know in
their hearts of hearts that there was contract of sale where somebody paid 200,000/= on
acceptance of the offer. (See Exhibit P5) which is a receipt of shs. 200,000/=and exhbt. P6
which is the 2nd plaintiff's acknowledge of the other half of shs.200, 000/= ………………
Now in view of the fact that Gomba Mansions Ltd did not purchase the suit property
after all and neither did Kassam Motors Ltd and yet part of the purchase money was paid
by the first defendant and receipts were issued in his name, and in view of the fact that he had
an option to purchase the suit premises, then why should anyone doubt the fact he (the first
defendant) was the purchaser? Even if the first defendant had had no option to purchase
expressly provided in the agreement however, it is possible for a broker or agent who did
not disclose his principal to be his own principal. For this proposition the case of Harper &
Co. v Vigers Brothers (1990) 2 KB.549 per Bickford J. at 500 - 561 is an authority.

Writing about an unidentified principal Bowstead on Agency, 14th Edn. at

page 355 says; when the agent acts for a principal whose existence is known but who is not
identified at the time of contracting, the agent is prima facie liable on the contract, and
the inference is that he is liable in addition to and not in substitution for the principal
(though sometimes his liability may cease on disclosure of the principal is obviously relevant
in determine whether he contracts personally, it does not seem possible to be dogmatic on
this point on the basis of the English case. But there are many cases showing that the
court will recognize a trade usage that a commercial agent e.g. a broker is personally
liable, particularly if the principal is unidentified."

The learned author then cites very many authorities in the point. All the above
information supports the decision in: Harper & co vs. vigers Brothers (supra) that an
agent, particularly a broker may turn into his own principal in a contract via-a-vis third
parties. In our instant case, therefore, all the evidence available point to the fact that it is the
first defendant who purchased the suit premises and that the property in the suit premises
passed on to him at the conclusion of the contract (i.e. Exhbt. P3) which was on 1st June, 1972.

To be precise, the first defendant's equitable interest vested in him on 1/6/72. From the,
the registered proprietors (i.e. the plaintiffs) became trustees for the first defendant who, as
soon as he paid in full the purchase money, would be entitled automatically to a transfer so as
to be registered a proprietor of the suit property."

I agree with learned Principal Judge's finding in this regard. On the evidence
available before him, he was entitled to find that the 1st respondent was the purchaser of the
suit property from the appellants. In my view, that finding was justified.

The first respondent was a property dealer, who bought and sold property as broker
either for his clients or in his own names. Shamji of GML as shown by his affidavit
(Exhbt. P45) and the 1st respondent's evidence, now and again collaborated in property
transactions. The 1st respondent would contract or handle property on the market both as a
sales agent or a purchaser. In the latter capacity the 1st respondent would borrow money
from Shamji if there was no ready market available but there were good prospects for profit
in the future. The sale agreement Exhbt. P3, I am satisfied, indicated that the 1st respondent
was acting as broker for an undisclosed principal as well as purchaser.

In law, he was entitled to act for himself as an undisclosed principal. With respect, I
am unable to agree with Mr. Mulira that the instant case is different from the case of
Harper (supra). I think that in the circumstances of this case there was no other
principal when the contract of sale was made. The 1st respondent, in that agreement in
Exhbt. P3, purported to be acting for a purchaser as if there was another purchaser, when in
fact, he was the purchaser. There was not other purchaser or principal. As such, in my view
the 1st respondent was not only reliable under the contract but was also entitled to take
the benefit of the contract, and the suit property.

The documentary evidence, Exhbts. P2, P3, P4, P5, P6, P7, and P8 and other
evidence, including that of the 1st respondent, indicate, I think, that the 1st respondent was
the purchaser. Another document Exhbt. D1 dated 6/6/72, does, infact, strengthen
the 1st respondent's case that he was dealing with a 2nd appellant as a purchaser. This
was the letter in which the 1st respondent put a condition that in case the purchase fail to
pay the purchase price buy 31/12/72, the vendors would forfeit Shs. 100,000/=. On the
left side bottom corner these words appear "I agree for the above offer for registered
proprietors of the above plot. (Signed). I accept and consent to the above as purchaser
(Signed) Karia."

Further available evidence, in my view, indicates that GML was not the purchaser
of the suit property not that KML purchased it from GML. According to Shamji's
affidavit (Exhbt. P45) he decided to buy the property through his company GML because
there were no other buyers, and he made funds available to the 1st respondent, but Shamji did
not say that his company actually bought the suit property. By 1972, when he swore the
affidavit, Shamji had been back to Uganda and had been informed by the 1st respondent that
the suit property has been registered in the 1st respondent's own name and then sold to the 2nd
respondent. Having had this information, Shamji did not, accurately, object to what had
happened to suit property If, indeed, he or his company had purchased if. Further, there is no
evidence that Shamji or his company (GML) claimed to repossess the suit property, which
he would have been expected to do if he or GML had bought the suit property. The
absence of Shamji's objection to what the 1st respondent did the suit property by having it
registered in his own names and sold it to the 2nd respondent, and the absence
over claim for repossession by GML does, in my view, re-enforce the respondent's case
that GML did not purchase the suit property and clearly disproves the appellant's claim
that GML did so.

Moreover, if GML bought and were entitled to claim the suit property, GML would
have sued the respondents to recover it; or at the very least the appellants would have joined
GML as a party to this suit. But neither this was done.

The appellants' unequivocal claim and allegations as stated in the plaint and the
evidence of Pw1 and PW 2 that GML was the purchaser on the terms contained in Exhbt.
P3, was also inconsistent with some of the appellants' action at the material time regarding
the suit property. For instance, on 1/11/72, they wrote Exhbt. P11 to M/S Jubilee
Insurance Co. Ltd., Kampala to be the collector of rent from all the tenants in the suit
property. By doing so the appellants, in my view, in effect, put the Insurance Co., to be the
caretaker of the suit property during their absence from Uganda. What they did was
incompatible with their claim the GML bought the suit property. That, however, does not
mean that even the 1st respondent did not purchase the suit property.

With regard to the allegation that KML purchased the suit property either from the
appellants or from GML, I have already referred to evidence which shows the contrary.

In the circumstance, I am satisfied that it was 1st respondent who purchased the suit
property from the appellant that it was not GML or KML who did so.

Mr. Mulira learned Counsel for the appellant, next argued grounds 2,9,
17,18,21,and 24 together. In my view, ground 16, should also considered together with
them. All these grounds appear to concern the alleged fraud on the part of the 1st and 2nd
respondents. At the trial, fraud was the subject matter of seven of the eleven issues framed.
These were issues Nos. 1, 2, 4, 5, 8, 9 and 10.

Ground two of the appeal complained that the learned trial Judge erred in law and
fact when he held that the appellants should have first proved that there was no sale to any
one else before they could claim that the first respondent defrauded them. Ground
nine was that the learned trial Judge erred in law and fact in failing to make a finding on the
forged documents referred to in evidence and in particular their effect on registration of the
first respondent. As proprietor of the suit premises. Ground seventeen complained that the
learned trial Judge misapplied the law when he held that:-

"During the course of his endeavors to get the land transferred to him and later on
the second defendant, the first defendant could have resorted to Criminal acts such as
forging documents. As I have said, however, those forgeries and false hoods cannot
change the legal factors, namely, that the first defendant was the purchaser of the suit
property, that he purchased well a head of Amin's Decrees of 1972 and 1973, affecting
and prohibiting the transfer of Departing Asians Properties; that therefore, the provisions of the
Expropriated Properties Act, 1982, did not affect the first and second Defendant's title and
that although the Departed Asians Property Custodian Board wrongfully took over the
suit property, so long as it received from the first defendant the purchase price it became
trustees of the plaintiffs in respect of the purchase price."

Ground eighteen complained that the learned trial Judge erred in law fact when he held
that if the first respondent committed any forgery or any other criminal act through the process
of transactions over the suit property that should be a matter for criminal prosecution and not
for civil proceedings. Ground twenty one was that the learned trial Judge misdirected
himself in law and fact when he held that the first respondent never committed a fraud that led
to the transfer to him of the suit property when in the same breath the learned trial Judge
continued to hold that:-

"As far as the transfer was concerned, any fraud he may have committed did no affect
the lawful transfer to him of the suit property."

In his submission under these grounds of appeal concerning fraud, Mr.

Mulira attacked the findings of the learned trial Judge on the issues relevant to fraud. I have
already stated the findings and answers in question, and it is unnecessary to repeat them
here.

The learned Counsel then referred to the definition of fraud as made by the
predecessor of this Court in the case of: David Sekajja Nalima v Rebecca Musoke,
Court of Appeal of Uganda Civil Appeal No. 12 of 1985, (unreported). In the instant case, it
was contended, Exhbt. P10 was an indication of fraud.

This was a letter dated 30/11/72, allegedly written by M/s. Ishani & Mitha
Advocates, on behalf of the appellants to the 1st respondent. The letter purported to be a
reply to the 1st respondent's letters of 29/6/72 and 27/11/72, Exhbts. P8 and P9, respectively
to the appellants. Exhbt. P10 said that as all the three appellants were Ugandans, they could
transfer the suit property to the 1st respondent; that the appellants were not in a position to
refund the deposit of Shs. 228,000/= including rent of Shs. 4,000/= under clause 3 of the
Sale Agreement (Exhbt. P3) until finalization of the bargain about the suit property. The letter
also state that plans of, and Certificate of Title to, the suit property were enclosed, that at the time
of transfer, the 1st respondent should deposit the balance of the purchase price at the
appellants' office, and that mortgage encumbrance in favour of M/s. Jubilee Insurance
Co. ltd. and Rajabali Manji would be released. The letter was allegedly signed by M.
Mohamed, for M/s. Ishani and Mitha.

Mr. Mulira contended that this letter was a forgery because the manner and style
in which it was written was below the standard of what a Lawyer would write; that the
alleged author of the letter denied in her statements to the Interpol (part of Exhbt. P25) that she
had written it because she left Uganda on 2/10/72, and has never returned since; that by the
date of the letter, the office of M/s. Ishani & Mitha in Kampala had been closed; that Law
firm had never done any work for the appellants; that Exhbts. p8 and P9 to which the letter
purported to be a reply had not been written to M/s. Ishani & Mitha Advocates and that the
letter was given to the appellants by the 1st respondent. The latter having been in his
possession, it was contended, the 1st respondent should have known that it was forged.

Another evidence of fraud, Mr. Mulira submitted was Exhbt. P31. This was a letter
allegedly written by Haji Bagalaliwo (PW6) on 5/8/72, to the 1st respondent, alleging
that Bagalaliwo had purchased the suit property from the 1st respondent for a sum of Shs.
14,500,000/= and urging the latter to give the former a Sale Agreement to facilitate
clearance from the Board to transfer the sit property to Bagalaliwo. Exhbt. P31, it is said
was a forgery, because Haji Bagalaliwo in his evidence denied that he was the author thereof.

Mr. Mulira contended that Exhbts. P10 and P31 were the principal documents which
influenced the Minister responsible for the Board to decide in favour of the 1st respondent
that he was the purchaser of the suit property. Consequently, the Minister signed the transfer dated
17/10/80, (Exhbt. P22) in favour of the 1st respondent, resulting into him being registered
as proprietor on 4/2/80. All this is borne out, it was contended, by the evidence of three
Board employees at the material time, namely, the Legal Secretary from 1975,
Joseph Sonko (DW1), the Executive Secretary from 1974, Kibwika Bagenda (DW5), and
the Legal Secretary from 1985, Ruth Namirembe Rijo (PW7).

In the learned Counsel's submission, the registration of the 1st respondent as the
proprietor was tainted with fraud in as much the decision to transfer the suit property to him
was based on Exhbts. P10 and P31. As fraud had been committed in
effecting the registration of the 1st respondent, his Title was impeachable under
section 184 of the Registration of Titles Act (RTA). The 2nd respondent's Title was also
impeachable on grounds that it originated from a person who had no Title or had voidable Title.
Mr. Mulira criticized the learned trial Principal Judge for failing to make a finding to that
effect, which was the corner stone of the appellants' case, as indicated in prayers (c) and (f) of
the plaint.

The prayers in question were:-

"(c) A declaration that the 1st Defendant acted fraudulently in obtaining a

transfer in his favour of the suit premises.

(f) An order directing the Chief Registrar of Titles to cancel the 2nd
Defendant's Title and to reinstate the plaintiffs as the registered proprietors of the suit
premises.'

Mr. Mulira urged us to grant the declarations so prayed.

In submission under these grounds concerning fraud, Mr. Lule submitted first that
there was no fraud in the formation of the contract of sale between the appellants and the
1st respondent. Although the 2nd appellant at first said that the offer to the 1st respondent
of the option to purchase as stated in Exhbts. P2 and P4 were typed in fraudulently by
someone else, he later admitted that the offer of the option was genuine.
 All the other documents relevant to the formation of the contract, it was said, were
equally free from fraud. These were Exhbts. P3, P5, P6 and P8.

Secondly, Mr. Lule submitted on whether there was fraud in procurement of the
transfer of the legal estate subsequent to the formation of the contract. He contended that transfer
of the suit property in the names of the 1st respondent was not fraudulently done, either.
In this regard, he said that on completion of the contract, property in the suit property passed to
the 1st respondent. Thereafter he was entitled to demand transfer of the legal estate, which
he did as the purchaser, and he did not do so fraudulently. It was due to him as of right.

Thirdly, it was submitted that there was no fraud in the registration of the transfer to the 1st
respondent. The evidence of Joseph Sonko (DW1) bears this out. The witness (DW1)
described how the transfer to the 1st respondent and registration thereof was done. It was
contended that Sonko's evidence indicated that transfer was properly effected. The evidence
of Alfred J. Kamuli (DW2), a retired Chief land Officer, who granted the application for
consent to transfer the suit property from the Board to the 1st respondent, also negative fraud.

Fourthly, Mr. Lule submitted that the 2nd respondent committed no fraud
when he purchased the suit property from the 1st respondent. No evidence was adduced
that such had been the case. Nor was the 2nd respondent's registration in 1982, as the
proprietor fraudulently done.

Fraud, as used n section 184, and others of our RTA, has been defined to mean actual
fraud or some act of dishonesty. In the case of David Sekajja Nalima Vs. Rebecca
Musoke (supra), to which Mr. Mulira referred, many other cases in which fraud is
defined were cited with approval. For instance: Assets Co. Ltd. Vs Mere Roihi and
others (1905) AC 176; Waikiha Saw Milling Co. Ltd. Vs Wainore Timber Co. Ltd. (1926)
AC 101.

In the: Assets Company Ltd. case (supra) the Privy Council at Page 210, referring
to Statutory provisions on fraud similar to those of our RTA, said that these sections:-

"Appear to their Lordships to show that my fraud i.e. dishonesty of some sort, not
what is called constructive equitable fraud (an unfortunate expression and one very
up to mislead but often used, for want of a better term), to denote transactions
having consequences in equity similar to those which flow from fraud. Further, it
appears to their Lordships the fraud which must be proved in order to invalidate
the Title of registered purchaser for value, whether he buys from prior registered
owner or from person claiming under a Titled certified under the Native Lands Act,
must be brought home to the person whose registered Title is impeached or to his
agents. Fraud by persons from whom he claims does not affect him unless knowledge
of it is brought home to him or to his agents. The mere fact that he might have found
out if he had been more Vigilant, and had made further inquiries which he omitted to
make does not of itself prove fraud on his part. But if it is shown that his
suspicions were aroused and that he abstained from making inquiries for fear of
 learning the truth, the case is very different, and fraud may be properly ascribed to him. A
person who presents for registration a document which is forged or has been
fraudulently or improperly obtained is not guilty of fraud if he honesty believed
it to be a genuine document which can be properly acted upon."

I agree with this interpretation of the law, which has been followed in many cases
before and since. David Sekajja Nalima (supra). One of the most recent such cases,
decided in our Court, is that of: Kampala Bottlers Vs. Damanico (U) Ltd. Civil
Appeal No. 22 of 1992, (SCU) (unreported).

Fraud must not only be pleaded (as was done in the instant case). It must also be
strictly proved. As to standard of proof the law is that allegations of fraud must be
strictly proved. Although the standard of proof may not be so heavy as to require proof
beyond reasonable doubt, something more than mere probabilities is required. See; Ratlal
G, Patel Vs. Lalji Makanji (1957) E.A. 314 at: 317 (EACA); and J.W.E. Kazzora Vs.
M.L. S. Rukuba, Civil Appeal No. 13 of 1992, (SCU) (un reported).

In the instant case the relevant grounds of appeal, in essence, criticise the findings and
holdings of the learned Principal Judge under issues 1, 2, 3, 4, 5, 8, 9, and 10 as I have already
indicated. The gist of the findings are that the 1st respondent never committed any fraud
that led to the transfer of the suit property to him, while saying at the same time that any
fraud or forgeries that may have been committed did not change or effect its lawful
transfer to the 1st respondent.

This being a first appeal this Court has power under Rule 29(1) (a) of the Rules of
this Court to reappraise the evidence and draw its own inference of fact. It is now well
settled that an appeal in this Court from a trial in the High Court is by way of a retrial and this Court
has the duty to consider the evidence, revaluate it and draw its own conclusions,
while bearing in mind that it has neither seen nor heard the witnesses, making an
allowance for this. See: Salle Vs. Associated Boat Co. 91968) EA 123 at Page 126:
Ratilal G. Patel vs. Lalji Makenji (supra) at Page 317: Yuill vs. Yuill (1945) 1, All E.R. 183
at Pages 188 & 190: The Glanni Banta (1876) 1 PD 283 at 287: Coghlan vs. Cumberland
(1891) 1 ch. 704; and Pandya vs. R. (1957) EA 336 (CA). It is with these principles in
mind that we approach our view of the learned trial Principal Judge's findings of fact.

In the instant case it is evident, in my view, that the contract of sale (Exhbt. P3 and the
supporting documentary evidence) was lawfully and properly made. The formation and
conclusion of the contract was not tainted with fraud in any way. Some allegations of
forgery were at first made by the 2nd appellant regarding Exhbts. P2, P3 and P4, but he
quickly changed his position, admitting that the documents were genuine.

The contract of sale having been so concluded property in the suit property
passed to the 1st respondent. Thereafter the appellants, in whom the legal
proprietary interest remained, became trustees of the 1st respondent for the suit property,
from whom he was entitled to demand transfer of the suit property to him on completion of
payment of the purchase price.
 As evidence shows, the 1st respondent wrote to the appellants, demanding
completion of the deal. He also physically looked for the 2nd appellant, who was acting for
himself and on behalf of his two appellant brothers. During the search, the 1st respondent met
the 2nd appellant at the Immigration Office. The former undertook to complete the
transaction, but did not. In the end the 1st respondent's efforts to have the appellants complete it
came to nothing, because, unknown to the 1st respondent, the appellants left Uganda for Canada
on 3/11/72, before transferring the suit property to him and before he had completed payment
of the purchase price.

Under Decrees 27 of 1972, as amended by Decree 29/72, and under Decree

27/73, properties of all Departed Asians vested in the Government and were managed by the
Board, first under the Ministry of Commence and subsequently under the ministry of
Finance.

Rightly or wrongly the suit property, though owed by the appellants, who were all Uganda
Citizens, was subsequently taken over under the Decrees in Question, and managed by the
Board. That notwithstanding, the 1st respondent did not give up his efforts to obtain transfer of
the suit property to him. He contacted Lawyers to take up his case with the Board. M/s
Hunter & Grieg, Advocates did so and wrote several letters to the Board. At long last,
by a letter dated 26/4/73, (Exhbt. P12) the Law firm informed the 1st respondent that they had
received the Board's acknowledgement that the 1st respondent's claim in respect of the suit
property had been registered and that action taken would be communicated to the 1st
respondent's Lawyers. Many other correspondences (Exhbt. P13) followed from M/s.
Hunter & Greig Advocates, and from the respondent himself. The 1st respondent
eventually presented his problem to President Binaisa, with whose assistance the Board
eventually accepted the 1st respondent's claim, and he was asked to pay the full purchase price
of Shs. 1.3m/=; Shs. 777,953/= (being interest at the rate of 10% of the purchase price); and
what was due to Jubilee Insurance as mortgages.

A letter dated 19/10/80. (Exhbt. P21) from the Board to the 1st respondent, in fact,
informed him that following the directive of His Excellency the president regarding the 1st
respondent's representation about the suit property, the Minister of Commerce/Chairman
of the Board had been briefed on the 1st respondent's claim, and after consultation with
the Board, the Minister had agreed to complete the sale which was started sometime during
1972. The latter then asked the 1st respondent to make the payments which I have already
referred to.

The 1st respondent paid the Board the sum of Shs. 1.3m/= on 1/10/80, and Shs.
777,953/=, on receipts exhibited as D.19 & D.2 respectively. He also paid to Jubilee
Insurance for release of the mortgage on 12/11/80, the sum of 150,545.75 and Shs.
75,275/= on receipts exhibits as D.17 and D.18 respectively.

On 17/10/80, the Minister of Commerce and the Minister of Justice/Attorney

General executed the transfer (Exhbt. P22), transferring the suit property from the Board to
the 1st respondent. An application for consent for the same purpose was prepared and
signed by J. Sonko (DW1) on behalf of the Board.

The consent was granted and signed by Alfred J. Kamuli (DW2) as Chief land
Officer. Thereafter, on 4/12/88, the 1st respondent was registered as proprietor of the suit
property.

At the trial allegations of fraudulent forgery of many documents were made by the
appellants, including the transfer document, Exhbt. P22, and the application for consent to
transfer, prepared and signed by Mr. J. Sonko (DW1) and consented to by Alfred J.
Kamuli )DW2), but at the appeal before us, their learned Counsel Mr. Mulira attacked only two
documents as having been forged and used to influence the Board to transfer and register the
suit property into the 1st respondent's names. The two documents are Exhbts P10 and P31.

In the circumstances I assume that the allegations of forgeries of other documents have
been abandoned and not made the subject of appeal.

It was contended that because the two documents were given by the 1st respondent
to the appellants, they must have been forged by him, or that he must have known that hey were
forged.

I will now proceed to scrutinise the evidence about these two documents.

Exhbt. 10 is a letter typed on a headed paper of "Ishani 7 Mitha Advocates." It is

dated 31/11/72 and purports to have originated from the Chambers of that Law firm in
Diamond Trust Building 17/19 Kampala Road, and bears a reference A/70/72.

It reads:-

"TO MR. N.H. KARIA,

P.O. BOX 1707,
KAMPALA.
(UGANDA)

Dear Sir,

Re: PLOT NO. /& JINJA ROAD - JINJA

We have been advised by our clients M/s Kassamali Jaffer Allibhai, Ismail Jaffer
Allibhai, and Bahadurani Jaffer Allibhai and mortgage M/s Jubilee Insurance Company Ltd. to
write to you in reply of your letter dated 29th June, and your letter of 27th November as
under:-

As your letter it is impossible to get the consent to transfer above property on your
client's name or your name. Our all three clients are Ugandans and they can transfer your above
property when transfer can be affected. Our three clients is not in a position to refund your
deposit of Shs. 228,000/= including rents. Also our clients agree to pay you rent of Shs.
4,000/= under clause 3 of agreement until finalising the bargain of above property.

We enclose herewith Plans of above property, Photostat copy of Certificate of

Titles, also we advise you on time of transfer you deposit balance purchase price at our office
to release you all encumbrances of M/s. Jubilee Insurance Company ltd., and second
mortgage of Mr. Rajab Nanji of Kampala as mentioned by our clients in their letter dated 7th
June, 1972.

Thanking you.
Yours Faithfully,
Signed: M.K. Mohammed
Ishani 7 Mitha

Encl:
Building Plans
Photostat Copy of the Certificate
Title.

c.c. M/s Kassamali Jaffer Allibhai P.O. Box 384

KAMPALA."

The 1st respondent testified that this letter was contended in an envelope, which he
received from the President's office in December, 1972, or early January, and that the
situation stated in the letter was familiar to him because it purported to be a reply to letters he
had written to the appellants, namely Exhbts. P8 and P9.

The 2nd appellant testified that their Lawyers (presumably) on this

matter) were Zake, Jaffer & Popat, Advocates, not M/s Ishani and Mitha, Advocates. He
said, further, that the appellants did not instruct M/s Ishani & Mitha to write it, nor did the
appellants receive a copy thereof. It was in 1991, when the 1st respondent gave a copy of
this and of other letters including Exhbt. P8 and P9, to Mohammed Kassamali Allibhai (PW2).
he also said that M/s Ishani & Mitha did not have his land documents from him and that the
1st respondent lied in that respect.

In a statement made, apparently, to Interpol by the person who allegedly signed

Exhbt. P10, malek Allibhai, but called by her median name Mohammed at the material
time, Malek denied having written or signed the letter. She said in the statement that
she worked as an Advocated in M/s. Ishan & Mitha, Advocates between April and
September 1972, before she left Uganda for Canada on 2/10/72, and that she was in
London at the time the letter was written.

According to the statement made to Interpol, a photocopy of Exhbt. P10 was shown
to Malek, and she said that the signature on the photo-copy appeared to be very close to her
signature, but that it was not her signature. She claimed that her Uganda Passport NO.
KL. 15664, issued to her in Kampala in her maiden name, Malek Sultan Kanji Mohamed,
showed that she entered London, U.K. on 3/10/72.
 The document Exhbt. P10 was examined by an analyst or handwriting expert who
also gave evidence. Allol Mutashwera Ntarirwa (PW8), a Government Analyst, testified
that he examined a photo-copy of Exbht. P10, comparing it with a specimen signature of
Malek. In the report PW8 made, Exhbt. P37, he stated the 'from letter designers and
writing characteristics, there is no evidence to shoe that the writer of Exhbt. specimens (Malek
Allibhai) wrote the questioned signature of Exhbt. 2 (Ishan & Mitha)."

To me, there appears to be one difficulty regarding the evidence and Report of this witness
(PW8). It is that the signature which he compared with the one on Exhbt. P10 was that of
"Malek Allibhai" not that of "Malek Kanji Mohamed" the person who allegedly signed Exhbt.
P10. The point was not explained by the witness. The relevant part of his evidence in
cross-examination reads:-

"I submitted an expert document on several handwritings. That is Exhbt. P37

(PW8's expert report) in photo-copy. I gave the original to Mr. Ali Gabi (PW5). But this is
the correct copy. I compared and made findings on several signatures presented to me.

In Para 1 of My Findings:

I was given photo copies to examine …………..I said there is nothing to show that
the signature of Malek Allibhai was the same as that of the one of ishani & Mitha
(compares the two) certainly I found no evidence that they were written by the same
person. The signatures were boxed (sic) by the Police before I examined them. The
letter written on 30/11/72, was compared with the letter marked 3 as to signatures thereon
reads the name of 30/11/72, signatory ends with "Mohamed." The person signing the
document marked "3" is a "Malek Allibhai" something "Mohamed" would not sign in
the same way if she was Malek Allibhai. She would sign differently.

If Mohamed signed his name differently from Malek Allibhai. But even the
letters are different. I did not find any evidence of similarity. The issue here is that the
way this document is signed and the way document "3" are signed does not tally.

Inconclusive evidence regarding signatures …………….."That is correct I was not

told when the document were written but some of them bore dates. Document "3" for
instance is 1993 document."

As this evidence, the opinion of the expert witness about the signature on
Exhbt. P10 (and others) was inconclusive. This, in my view, does not help the appellants'
case, considering that this was their witness. Regarding Malek Allibhai's Passport (Exhbt.
P25), Aligade Akida (PW5) said in cross-examination, when he was recalled, that
according to Malek's statement to Interpol, she left Uganda on 2/10/72, but PW5 could not
see it in the Passport. There was no indication of the date she left Uganda. As a
Uganda Citizen, she could leave the country and come back as necessary. The Passport
copies (Exhbt. P25) did not apparently represent the Passport as it was.
 Considering all the evidence concerning Exhbt. P10, including the style and
language in which it was written, a point which Mr. Mulira hammered so much, I am not
satisfied that the appellants have proved to the standard required of proving fraud, that the 1st
respondent forged the document or that he knew that it was forged. The 1st respondent said
that he received the document with other documents in an envelope from an Officer in
the President's office through the Post Office. Considering that at the material time the
President's Office was, apparently, involved in some matters concerning land, and that
the 1st respondent visited the President regarding such matters (as evidence shows), it is
plausible, in my view, that 1st respondent could have received the documents in question
in the manner he described.

Next Exhbt. 31 (also D.9). I have already referred to what this document says. Just
to recapitulate, it purports to be a letter written by Haji Bagalaliwo on 5/8/72, to the 1st
respondent reminding the latter of the agreement of sale to sell the suit property to the former.
In part, it says:-

"I am interested to pay you as agreed and if you can give me a sale Agreement to
get clearance from the Departed Asians' Property Custodian Board, to transfer the above
property to me.

When you agree to sell me the property the rent of the property was Shs. 25,500/=
accruing from M/s Kassam Motors and E.A. P. & T. Corporation and other 6 tenants.

I have tried to get back the document of sale from the then premises of M/s
Jobanputra & Pandya, Advocates but all my effects failed.

Yours faithfully,

Signed BAGALA-ALIWO M.M."

In his evidence, Muhamed M. Bagalaliwo (PW6) denied that the 1st respondent
had ever sold to him any building other than Plot No. 4, Ismail Road, around Mbuya. He
also denied that he wrote Exhbt. P31. He said that the signature at the bottom of the letter
just reassembled his, but he thought that it was his signature forged.

In this connection, Karia (1st respondent) said in cross-examination that Bagalaliwo

wanted to buy the suit property in 1972, but he did not do so. As far as it is relevant the
1st respondent said:-

"In my appeal to Custodian Board, I did not mention Gomba Motors or Kassam
Motors because all had gone. After both had left, I did not sell the property to any other purchaser.
Haji Bagalaliwo wanted to buy in 1972, but he did not pay. He wanted to buy it from
me if Kassam Motors had not bought. Haji Bagalaliwo did not sign any agreement."
A little later on, Karia also said:-

“Haji Bagalaliwo did not buy he saw the document only."

 Mr. John Baptist Mujuzi (DW7), a hand-writing expert, testified about Exbt. P31. He
said that he received three documents from INTERID bearing signatories of
Magid Bagalaliwo, with a request to say whether those signatures were made by the same
person. One of the documents was the original of exhbt. P31. Mujuzi made examinations
and comparison. He found agreement in letter proportion, letter designs size, writing skill and
line quality which clearly indicated that the Exbt. P31 (also exhbt. D.9) dated 5/8/76, was
signed by Magid Bagalaliwo. This witness' evidence was consistent with his report, Exhbt.
D.8.

I am inclined to believe the evidence of DW7 that exhbt. P31 was, in fact, signed by
Haji Magid Bagalaliwo, although it was dated 5/8/76. This was about four years from
1972, when the 1st respondent said that Bagalaliwo wanted to purchase the suit property
from him. My reasons for such a conclusion are as follows:-

First, because Bagalaliwo and the 1st respondent were known to each other. On 1/5/75,
the 1st respondent sold to Bagalaliwo by a written agreement of sale (exhbt. D10) a
house on Plot No. 4, Ismail Road, Mbuya.

Second, Bagalaliwo himself said in evidence that the Postal address on the letter
(Exhbt. P31) of P.O Box 4542, was theirs when he and Karia (1st respondent) used to do
business together.

Third, the evidence of J.B. Mujuzi (DW7) that Bagalaliwo signed the document was so
unequivocal.

Fourth, Bagalaliwo's denial that he signed the document had some doubts about it.
This, inter alia, is what he said:-

"The signature at the bottom just resembles mine but I think it was my
signature forged. In type writing is my name "Bagalaliwo" with the initials which I
normally put before my name, but they come after my name, which makes me
suspicious."

Fifth, Karia (1st respondent) said in cross-examination that Bagalaliwo wanted to buy
the suit property but did not pay. In my view, when Karia said that Bagalaliwo did not
buy, Karia was putting Bagalaliwo in the same category as GML and KML, who did not buy
the suit property.

Sixth, and more importantly, it appears that Exhbt. P31 was not put to Karia, that is
to say, whether it was or was not signed by Bagalaliwo. As it was the appellants' case
that the document was a forgery the burden lay on them to prove that allegation.

Seventh in his report (exhbt. P29) dated 29/1/80, to the Minister of

Commerce/Chairman of the Board regarding the suit property, Mr. Sonko (DW1) said inter
alia:-
 "It would appear from the document hereto and marked "I" that on
or about 2nd June, Karia wrote to Bagalaliwo offering to sell him the property. Mr.
bagalaliwo accepted the offer. Such was the position at the declaration of the economic
War."

In the circumstances, I think that the appellants did not prove to the required
standard that exhbt. P31 was forged. On the contrary I think that Haji Nagid Bagalaliwo did,
in fact, sign the document.

If both exhbt. P10 and P31 were not forged or at worst, they were forged but
the 1st respondent did not know that they were, then I think that Mr. Mulira's very
spirited argument (for which I must commend him) that the transfer to and the registration
in, the 1st respondent's names were fraudulently made had no merit.

Secondly, even if the two documents were forged which in my view they were not, it is
with respect, not correct to contend that they alone influenced the Board to transfer the suit
property to the 1st respondent. Many other documents were involved in supporting the 1st
respondent's claim to the suit property, leading to acceptance by the Board of the claim,
transfer and registration of the suit property in his names. The report (exhbt. 29) of Mr. Sonko
(DW1) to the Minister of Commerce/Chairman of the Board bears this out.

The report described the sale Agreement between the appellants and the 1st
respondent as contained in exhbts. P2, and P3 and other documents; it referred to the option
given to Karia to purchase; it referred to the payments made by him in Exhbts. P5 and P6
etc. The report in parts said:-

"ISSUE:

Mr. Karia now states that he had exercised the option and decided to buy the house
for himself not for a client; and therefore, asks for permission to pay the balance of the
purchase price so that he becomes the owner of the property.

OPINION:

Here again it must be first established whether there was ever a contract
creating obligations which this Board inherited from the vendors. Document "F" certainly
contains an offer to buy the property on the condition and terms set out therein. So we can
say that there was an offer to buy. Was the offer accepted? Yes it was as indicated at the
bottom of the document. Did Karia make an offer as the intended purchaser or for his client the
intended purchaser? Clearly from the opening sentence of his letter of offer he made the offer
for his client the intending purchaser. Though the client was not identified, his identity is
immaterial. What is important is if the intended purchaser was a Departed Asian could
still Karia try to request for specific performance of the contract? The answer is no
because the intending purchaser, if a Departed Asian could no longer own property in Uganda.
But Karia was different from the ordinary agent appointed for a special sale. He was an
Estate Agent by trade; as such his duties included buying and selling land however he had it even
though he had no specific buyer t the moment. In the meantime he would look for buyers. In
other words an Estate Agent plays about with land by buying and selling it. It is not
necessary for him to have a ready client at the time he buys land.

It has been established above that there was a binding contract made between
Karia and the vendors. It has also been established that Karia fulfilled his obligation by
paying the sum of Shs. 200,000/= on acceptance of the offer………… There is also a
letter written by Karia to Kassamali asking him to send ground rent receipts so as to enable
him to go ahead with the transfer, a copy of this letter is marked "J".

The transactions certainly commence wellbefore the declaration of the Economic

War and so they are out of the Economic War Laws.On the documents enclosed the
transactions appears to BE genuine…………………. I am of the opinion, therefore, that this is a
case where it would be recommended to transfer the suit property into the names of Karia on
payment of the balance of the purchase price."

Thirdly, documents supporting the 1st respondent's claim of having purchased the
suit property,other than Exhbts. P10 and P33 were in my view adequate to support the 1st
respondent's claim that the suit property should be transferred to him and registered in his
names. In other words, he did not need Exhbts P10 and P31 to convince the Board for
that purpose. I think that is what the learned Principal Judge meant be saying that the he did
not have to consider the alleged forgeries in detail because even if the 1st respondent had
committed them, they would not change the fact that the contract was concluded by Exhbt.
P3.

One final point on fraud. In judgment, the appellants' claimthat the 1st respondent
committed fraud against them is inconsistent with their claim that GML bought the suit
property. The two allegations, in my view, are mutually exclusive.

In the circumstances, I am satisfied that the transfer of the suitproperty to the 1st
respondent and his registration as the proprietor was not fraudulent. Accordingly, he
passed a clean Title to the 2nd respondent, free from fraud.The 2nd respondent's Title was
therefore, free of fraud and is impeachable.

I am also satisfied that the allegations of fraud made against the 2nd respondent in
paragraph 14 of the plaint were not proved.

Grounds 2, 9, 16, 17, 18 and 24 of the appeal therefore fail.

Mr. Mulira learned Counsel for the appellants, next argued grounds 8 and 20
together. Ground 8 complained that the learned trial Judge erred in Law and fact in holding
that the Military Regime's Expropriation Decree did not apply to the suit premises, when,
amongst other things, he at the same time held that payment of the balance of the purchase
price by the first respondent to the D.A.P.C.B. was effective to pass legal title in the
premises to him. Ground 20 stated that the learned trial Judge erred in Law and fact
when he held that the Expropriated Properties Act, 1982, did not extend to the suit
property.

Under these grounds, Mr. Mulira submitted that if the 1st respondent was the
purchaser of the suit property from the appellants, then only the equitable interest passed
to him. The legal interest vested in the Government, pursuant to the Decrees which
expropriated properties of Departed Asians, once it was shown that the owner left Uganda
pursuant to the expulsion of Asians. Consequently the suit property vested in the
Government in 1972. That being the case, it followed that section 1(2) (a) of the Expropriated
Properties Act 1982, nullified the 2nd respondent's Title. It was properly appropriated or
taken over in any other way by the Government and fell under Section 1(1) (c) of Act 9 of 1982.
Hence the Board dealt with the suit property as property vested in the Government.

Consequently, it was contended, the 2nd respondent had lodged his claim with the
Ministry of Finance as, it fact, it did by its letter, Exbt. P28 dated 16/3/83, addressed to the
Verification Committee, pursuant to Regulation of The Expropriated Properties
(Repossession and Disposal) Regulations, 1983, (S.I. 1983-6.

Regulation 8, as amended by S.I. 1983, No. 44, provides that any person who has a
claim of any interest of whatever description in any property affected by the provisions of the
Act, other than a claim for repossession or claim for compensation by a former owner,
may lodge such claims with the Verification Committee within 90 days from the
commencement of the At.

The appellants also applied for repossession of the suit property and, a Repossession
Certificate (Exhbt. P31), dated 27/3/92, was issued to them with a Certificated of purchase
on 10/3/91, which was registered on the Certificate of Title on 16/7/91, as shown by the
Title document (Exhbt. P1).

The learned Counsel further contended that the Certificate of purchase in

question had the effect of depriving the appellants of their claim for repossession.
Moreover, it was granted illegally, because it was issued after the appellants had
already lodged their claim for repossession; secondly, it was registered after a Caveat
lodged by the appellants had already been registered and of which the 2nd respondent was
fully aware; thirdly it was issued not in accordance with the provisions of section 8 of Act 9
of 1982, in that the conditions for issuing a Certificate of Purchase under sub-
section (3) was not complied with; fourthly, the Certificate of purchase was issued
before a verification exercise had been done as evidenced by Exhbt. P39 a letter dated
14/11/91, from the Ag. Secretary of the Board to the Verification Committee, advising
that the matter was being revisited in view of the appellant's claim for repossession as stated in
detail in a letter dated 12/1/91, from M/s. Mulira & Co Advocates (not exhibited in evidence).

By committing the errors complained of under ground 8 and 20 of the appeal, it

was contended, the learned Principal Judge did not answer issues Nos. 1, 9, 10 and 11, in the
affirmative, as he would have done had he not committed the errors in question. If he did so,
it was said, he would have found that the suit property vested in the Government and that
the purported sale to the 2nd respondent was invalid by reason that section 8 of Act 9 of
1982 and Regulations 7 and 8 of S.I. 1983, No. 6 were not complied with.

Section 8 of the Act empowers the Minister to make an order, inter alia that a
property be sold or disposed of where a former owner does not apply for repossession, or the
Minister is not satisfied with an application for repossession under section
3 by a former owner, or negotiation for a joint venture fails physically to return to
Uganda. Regulation 7 of S.I. 1983, No. 6 stipulates the functions of the verification
Committee as being to advise the Minister on certain matters; for instance, it should
examine and verify the authencity of each application for repossession or of claims of
any description, and the authencity of documents accompanying such applications, etc.

In reply, Mr. Lule, the respondent's learned Counsel, submitted that because the
equitable interest in the suit property had already passed to the 1st respondent, only the legal
Title thereto vested in the Government and was transferred to the Boar by operation of
sections 4 and 13 respectively of The Assets of Departed Asians Decree, 1973 (Decree 27.73) .
But the equitable interest, Mr. Lule said, did not vest in the Government, but continued to
vest in the 1st respondent because he was a Ugandan Citizen, who did not leave the Country.
Consequently, the 1st respondent retained the right to demand transfer of the legal Title to him
by the Board, who held the legal Title by operation of law; and that is what the 1st respondent
did until the transfer was made to him on completion of payment of the purchase price for
the suit property.

After Act 9 of 1982 came into force, Mr. Lule submitted, it nullified the transfer of the
legal estate in the suit property to the respondents and transferred it to the Board, but it did not
nullify the equitable interest, which was not affected by Decree 27 of 1993 and Act 9 of
1982. The purchaser of the suit property, who held only the equitable estate, therefore, had to
follow it up in the hands where the legal Title lay, namely in the Government through the
Ministry of Finance. That was why, Mr. Lule contended, the 2nd respondent and the
appellants both claimed the suit property from the Board. The appellants, the original
owners, could only claim the legal interest and the respondents the equitable estate.
The appellants were entitled to purse only the legal estate and the purchaser the equitable
estate in the suit property. For that reason, it was contended the appellants at first did not
apply for repossession but instead applied for compensation. According to the evidence of
Mohammed Allibhai (PW2), who was acting for the appellants concerning the suit
property, he changed his mind from compensation to repossession.

PW2's evidence, referred to by the learned Counsel, reads as follows:-

"I also said in 1983, I applied for compensation. Later, I changed because of the
changed Political climate. Uganda had become more acceptable place to live in."

Later on PW2 said:-

"When in 1991, I changed my mind to repossess; I inspected the Land Register

before our application."
 Mr. Lule submitted that this evidence is important because it provides an answer
to Mr. Mulira's criticism that the Ministry of Finance (The Board) did not comply with Act 9 of
1982, and the relevant Regulations. In any case, Mr. Lule contended, the appellants applied
for repossession long after the period required by Section 3 of Act 9 of 1982, had expired.

The section required that a former owner of property vested in the Government had
to apply for repossession to the Minister within 90 days from the
commencement of that Act. The Act came into force on 21/2/83, (S.I. 1983 No. 5). But
the appellants applied for repossession in 1991. This was 8 years after the Act came
into force.

Mr. Lule also pointed out that when in September 1991, the appellants, through
their Counsel M/s. Mulira & Co Advocates, were claiming for repossession of the suit
property and were asking that the 2nd respondent's Certificate of Purchase No.
033 issued on 10/3/91, (according to Exhbt. P1) be canceled, the appellants had already
instituted their suit in this case by filing the original plaint on 20/3/91.

In these circumstances, it was contended, the appellants had no locus to file the suit
against the respondent, because they were not on the register as owners of the suit property. The
legal estate was in the Government. They should therefore, have sued the Attorney
General. Further, their Caveat, entered on 4/3/91, was of no consequence, because they
had no interest in the suit property to support the Caveat. The Register was, therefore,
right to register the 2nd respondent's Certificate of purchase subsequent to the Caveat.

As I understand them, Issues Nos. 1, 9, and 10, which the appellants' learned
Counsel criticized the learned Principal Judge for not having answered in the positive did not
mention and, apparently, had nothing to do with, Decree No. 27 of 1973 and Act 9 of
1982. These issues were all concerned with the alleged fraud. This was so, inspire of
the pleading of fraud in paragraphs 12 and 13 of the plaint. I think that only issue No. 11
of the issues referred to by the learned Counsel in this connection, and issues Nos. 6 and 7
(which the learned Counsel did not include in this group of issues) raised, by implication, the
effect of Decree 27/73 and Act 9 of 1982. It was the learned Principal Judge who in his
judgment, expressly raised the question regarding the effect of Decree 27/73 and Act 9 of
1982, when he said:-

"There are some preliminary points of law which need to be examined to pave the
way for the consideration of the above issues. I have in mind: The following:

“…………………

(b) what was the effect of Amin's Decree (i.e. NO. 27 of 1972; No. 27 of 1973),
on the suit property or on the transaction between Kassamali Allibhai for his co-plaintiffs
and N. H. Karia?
(c) What was the effect of the Expropriated Properties Act, 1982 on the
suit property and the transactions over it between the Allibhai and N.H. Karia? These
points or some of them if decided may answer some of the issues framed and agreed for
determination."

The learned Principal Judge answered these questions this way:-

"What then was the effect on the 1st Defendant's Title in the suit property of Idi
Amin's Decrees on the properties of Departed Asians? The answer in my view, is that the first
Defendant had acquired the suit property on 1/6/72, before entry into force of the two Decrees,
namely, 27/72 and 29/72, since the date of their entry into force was 9th August, 1972.
Those are the Decrees which prohibited transfer by Departing Asians of their properties.

So far as is relevant to this case S. 1(a) of Decree 27/72 provide:-

“1. No person living Uganda by virtue of the provisions of the Immigration

(Cancellation of Entry Permits and Certificate of Residence) Decree, 1972, (in this Decree
referred to as the Departing Asians) may,

(a) transfer any immovable property……………..to any other person. This could
not have affected the vesting of Title of the suit property in the first defendant. And in case it
may be argued that the expression transfer "any immovable property" used in paragraph
(a) of S.1 of the Decree means transfer in the sense of transfer for registration
or physical transfer. I should point out that would not be the interpretation. The
interpretation, in my view should be so liberal as to mean sale. That would be a more
sensible interpretation in the light of the mischief intended to be cured, namely the disposal
of the Departing Asian's property with a view to frustrating Amin's aim of transferring the
economy into the hands of Ugandans as he professed. Since the first Defendant was a
Ugandan who had been declared fit to stay in the Country there would have been no
point in preventing him from having the property he had already acquired according to the
Law, he being a Ugandan in the interest of whom S.1(a) of the Decree was enacted. Besides,
what was prohibited by the section, were assets of non-Citizen Asians. Therefore the expression
'transfer any property to any person" means vest any property to any person so as to include
transfer of equitable property. To give the expression strict interpretation so as to mean
physical transfer of the property would be to defeat the purpose of the Decree in particular
or of Idi Amin's so called Economic War in general, which purpose was to transfer the
economy of the Country from non-Citizens to Ugandans."

Decree No. 27/72, was the second of the so-called Amin's Decrees' which were legislated
to deal with the consequences of the 1972 expulsion of Asians. But it was the first Decree
regarding the assets of such Asians. More specifically, Decree 27/72 was legislated to
provide for assets of non-Citizen Asians, whose entry permits and certificated of residence
had been canceled by Decree 17/72. By section 1 of Decree 27/72, Non-Citizen Asians leaving
Uganda as a result of the cancellation of their entry permits of certificates of residence were
prohibited from taking certain actions regarding their assets in Uganda. S. 1(a) prohibited
them from transferring their immovable property to any person.
The Decree came into force on 9/8/72. This was well after the equitable estate in the suit
property had already passed to the 1st respondent under the contract of sale made between him
and the appellants. The appellants who sold the suit property and the 1st respondent who
bought it from them were all Ugandan Citizens.

It would appear that Decree 27/72, as originally legislated was intended to deal only
with the assets of Non-Citizen Asians. However, by amendments, introduced by Decree
29/72, the position changed, because S. 12(3) of decree of 27/72, as amended, provided that
for purposes of sections 12, 13, 14, and 15 and expression "Departing Asians" included
non-citizens and Ugandan Citizens of Asian origin.

All the four sections were new sections, introduced by Decree 29/72. Essentially, the
sections stipulated what kind of property vested in the Government and the Board and how
the Board should take over and manage such property.

In view of the definition of "Departing Asians" made in section 12(3) of Decree

27/72 (as amended by Decree 29/72), it appears that if the suit property, left behind by the
appellants vested in the Government and the Board as provided by section 12(1) and (2) then
the appellants were "Departing Asians" under Decree 27/72 although they were Ugandan
Citizens. In the circumstances, it appears that the suit property was subject to the provisions
of Decree 27/72, as amended by Decree 29/72. However, I think that the prohibition
imposed by S. 1(a) of Decree 27/72 did not affect the 1st respondent's equitable estate in the
suit property, which he had acquired under the contract, because he was a Citizen of who
stayed in the Country. In the circumstances, therefore, I agree with the learned Principal
Judge's interpretation of the expression "transfer any immovable property" used in S.
1(a), as including sale of property resulting into passing to the buyer the equitable estate in
immovable property. To restrict the expression to transfer and registration of legal estate
in immovable property would, I think defeat the purpose of Decree 27/72 and related ones,
which were intended to transfer the economy in the hands of Ugandan Citizens.

The next finding of the learned Principal Judge which was criticized under the rounds
under consideration was also made in the context of Decree 27/72 as amended by Decree
29/72. The finding concerned Issues No. 7, namely, whether Karia was entitled to be
registered as owner of the suit property. The learned Principal Judge said:-

"This issue, too, has been amply dealt with namely, that on payment of the full purchase
price. Karia who became equitable owner on 1/6/72, would become the legal owner,
entitled to being registered as proprietor. S. 12 of Decree 29 (i.e. Declaration of Assets)
Non-Citizen Asians' (Amendment) Decree did not affect the first defendant's Title because
Plot No. 37 Jinja Road could not have vested in the Government under S.4(5) of Decree 27/72
or under S.12 of Decree 29/72 as in the first place, the property was already vested in a Citizen of
Uganda, and therefore, S.4(5) of the Decree did not apply; and secondly, as the property was not
abandoned. In this regard it is necessary to observe that both a non-Citizen and a Citizen
Asian could be regarded as a "Departing Asian" (See S.12 of Decree 29/72) if they departed such
as plaintiffs did. However the first defendant was never a Departing Asian. The
answer to issue No. 7 therefore, is in the affirmative that N.H. Karia was entitled to be
registered as owner of the suit property."

Vesting of property of Departing Asians in the Government was first

introduced by section 4(5) of Decree 27/72. It states:-

“4. (1)
(2)
(3)
(4)

(5)No person shall sell or purchase any property or business of a Departing Asian in
respect of which no information and documents have not been submitted to the
Minister in compliance with the provisions of section 2 of this Decree and hence-
forth such property or business shall vest in the Government."

In section 12, introduced by amendment by Decree 29/72, the category of vested

property was widened and the Board was brought in for the first time. At that time, the
predecessor of the Board was created by Section 8, also a new section introduced by
Decree 29/72. It was known as “The Abandoned Property Custodian Board.” Section
12 provides was widened and the Board was brought in for the first time. At that time,
the predecessor of the Board was created by section 8, also a new section, introduced by
Decree 29/72. It was known as "The Abandoned Property Custodian Board." Section 12
provide:-

"(1) Every property which vests in the Government by virtue of sub-section 5 of

section 4 of this Decree shall, without further assurance, vest in the Board.

(2) Where any property is abandoned by a departing Asian or is left in such a way that
no adequate arrangement has been made for its proper and efficient management, the
Board may, by statutory order, declare such property vested in the Board."

In the instant case, there is no evidence regarding whether the suit property vested
in the Board by virtue of sub-section (1) or sub-section (2) of section 12 of Decree 27/72
as amended. Mr. Lule appears to have conceded that the suit property was subject to the
conceded that the suit property was subject to the provisions of this Decree and its successors
namely, Decree 27/73 and Act 9 of 1982, but his point is that the contract of sale passed
the equitable estate to the 1st respondent, leaving only the legal estate in the appellants
and their successor, the Board, due to the effect of the legislation in question.

In that connection, the respondent's argument is in line with the learned Principal
Judge's findings' which I have already set out above. In his findings, the learned
Principal Judge appears to have confined himself only to the provisions of Decree 27/72 as
amended by Decree 29/72. But when he was answering issue No. 4, the learned Principal
Judge said this about the effect of the "Amin's Decree of 1972 and 1973" and Act 9 of
1982:-

"During the course of his endeavors to get land transferred to him and later on to
the 2nd defendant, the first defendant could have restored to Criminal acts such as forging
documents. As I have said, however, those forgeries and false hoods cannot change the legal
factors, namely, that the first defendant was the purchaser of the suit property;

That he purchased well ahead of the Amin's Decrees of 1972 and 1973, affecting and
prohibiting the transfer of Departing Asians' properties; that therefore, the provisions of the
expropriated properties Act, 1982, did not affect the first or second defendants' Titles and that
although the Departed Asians property Custodian Board, wrongfully took over the suit
property so long as it received from the first respondent the purchase price, it became trustee
of the plaintiffs in respect of that purchase price."

Section 4 of Decree 27/73, provided inter alia, that any assets declared by a Departing
Asian, including any property recorded in the Register Kept under section 3, and any
property left behind by any Asian who failed to prove his citizenship should, without any
further authority vest in the Government. The minister was also empowered to vest any
other assets of a Departed Asian in the Government. Decree 27/73 also created the Board
under the provisions of section 5, and set out its powers and functions in section 7, one of
which was to take over and manage all assets transferred to it by virtue of section 13 of
Decree 27/73.

The next legislation to this case is Act 9 of 1982, which was intended to provide for
the transfer of properties acquired or otherwise expropriated during the Military regime to the
Ministry of Finance and for the return to the former owners or disposal of the same by
Government, etc. The Act did not re-appeal but merely amended certain sections of
Decree 27/73. It provided in section 1(1), inter alia, that any property vested in
Government and transferred to the Board by Decree 27/73, shall vest in the Government
and be managed by the Ministry of Finance. It also provided in section 1(2) (a) as
follows:-

"(2) For the avoidance of doubt, and notwithstanding the provisions' of any
written Law governing the conferring of Title to land, property or business and the passing or
transfer of such Title is hereby declared that:

(a) any purchase, transfers and grants of, or any dealings of whatever kind in, such
property or business are hereby nullified."

Considering the purpose and the provision of the legislation concerning the properties
of Departed Asians, to which I have referred and set out in this judgment, I think that the
suit property was subject to the legislation under consideration for purposes of
management only after the registered proprietors, the appellants, had left the Country. It
vested in the Government for management by the Board under the Ministry of Finance.
Secondly I think that the suit property did not vest in the Government in its entirety.
Only the legal estate in the suit property vested in the Government. After the contract of sale,
property in the suit property passed to the 1st respondent, who obtained the equitable estate
thereto and retained it after the appellants had left Uganda. The appellants, in whom the legal
estate remained, became trustees of the 1st respondent and were under a duty as such trustees
to transfer the legal estate in the suit property to the 1st respondent on completion of payment
by him of the purchase price. It was that legal estate, in my view, which vested in the
Government.

In the circumstances, my view is that the Board was under an obligation to, and did
properly, transfer the legal estate in the suit property to the 1st respondent when he
paid the purchase price in full, as he did. Having the suit property transferred to, and
registered, in his names, the 1st respondent was entitled to, and did properly, transfer the suit
property to the 2nd respondent, as purchasers from him. In the event, I think that the 2nd
respondent obtained a good title from the 1st respondent and that its title so obtained is
unimpeachable.

Secondly, I think that section 1(2) (a) did not nullify the contract by which the
appellants sold and the 1st respondent bought the suit property for the reasons that: first
the suit property was sold by Ugandan Citizens the appellants, to another Uganda
Citizen, the 1st respondent long before the suit property was vested in the Government. The
suit property was sold on 1/6/72, the date of the contract of sale. This was over two
months before Decree 27/72, which vested the suit property in the Government, came into
force on 9/8/72. By that time it is clear from available that the parties to the
contract entered into it free from any contemplation in their minds that the suit property
could in future vest in the Government or that the appellants would be Departing Asians for
purposes of the legislation under consideration.

Thirdly, the 1st respondent, to whom the appellants sold the suit property, was a
Uganda Citizen who stayed in Uganda throughout and who was entitled to enforce the
agreement of sale.

By making a claim for compensation rather than a claim for repossession, as they
did when they first returned to Uganda, I think that the appellants appear to
have acknowledged that they had already sold the property to the 1st respondent and that
the legal estate had been properly transferred to the 1st respondent by the Board. The
nature of their claim for compensation is not known. Compensation in respect of
properties which vested in the Government is provided for in section 11 of Act 9 of 1982.

I have already set out the evidence of PW2 in this regard.

I think that the change of mind by the appellants to claim for repossession after
having previously claimed for compensation was motivated more by their feeling that Uganda'
climate had changed for the better and had become a mere acceptable place to live in than
because they were entitled to the suit property as former owners.

In the circumstances, I think that the transfer of the suit property by the Board to the
1st respondent, and by the 1st respondent to the 2nd respondent, was not nullified by Act 9
of 1982.

With regard to the appellants' Caveat I will comment only briefly. When the
appellants entered their Caveat on the Register on 4/3/91, the 2nd respondent had already
been registered as the proprietors of the suit property on 22/4/82. The 2nd respondent's
Certificate of Purchase was registered on 16/7/91. This was about three months after the Caveat
had been registered. An explanation of the reason for this action on the part of the Registrar
of Titles was given by Jonathan Tibasasa, Chief Registrar of Titles (DW8), in his evidence. He
said that the registration of the 2nd respondent's Certificate of Purchase after the Caveat
had been lodged was regular because it was a mere re-instatement of the 2nd
respondent's ownership, and not change o ownership. PW8 said that he took that
view at the relevant time after discussion with the Registering Officer. I think that DW8's
evidence provides a proper and adequate answer to the appellant's complaint that it was
unlawful to register the 2nd respondent's Certificate of purchase after their Caveat had
been registered. This is because, the 2nd respondent had already been registered
as proprietor of the suit property and the registration of the Certificate of Purchase was, in
essence, merely a repetition of that state of affairs. As far as the instant case was concerned, it
was not a registration of a transfer, or of a new proprietor which, in my view, a Caveat
lodged under section 148 of the RTA is intended to prohibit.

In the circumstances, grounds 8 and 20 must fail what I have said in respect of those
two grounds, also disposes of ground 15, which was not argued by the appellants' learned
Counsel. The ground complained that the learned Principal Judge erred when he failed to
determine the validity of the Certificate of purchase issued in favour of the 2nd
respondent.

The learned Counsel for the appellants also said nothing about grounds 22, and 26 of
the appeal. Ground 22 was that the learned trial Judge erred in law and fact when in the
face of the clear provisions of (cap. 206) he held that after the 1st day of June 1972, the
property ceased to be the appellants' property notwithstanding that the Certificate of Title
was not canceled on that date. Ground 23 complained that the learned trial Judge erred in
law and fact when he failed to grant to the appellants the prayers set out in the plaint. Ground
26 was that the learned trial Judge erred in law and fact when he dismissed the suit with
costs.

I think that these three grounds have been disposed of under the other grounds of
appeal.

For the reasons given, I would dismiss this appeal with costs to the respondents in this
Court and in the Court below.

Dated at Mengo this 17th.. day of September, 1996.

A.H.O. ODER,
JUSTICE OF THE SUPREME COURT.

I CERTIFY THAT THIS IS A

TRUE COPY OF THE ORIGINAL

E. K. E. TURYAMUBONA
DEPUTY REGISTRAR, SUPREME COURT
 THE REPUBLIC OF UGANDA

IN THE SUPREME COURT OF UGANDA

AT MENGO

(CORAM: MANYINDO, D.C.J., ODER, J.S.C., KAROKORA, J.S.C)

CIVIL APPEAL NO. 53 OF 1995

BETWEEN

1. ISMAIL JAFFER ALLIBHAI

2. KASSAMAL JAFFER ALL IBHAI
3. BAHADURARALI JAFFER ALLIBHAI ….………..……….. APPELLANTS

AND

1. NANDLAL HARJIVAN KARIA

2. VICTORIA MOTORS LTD …................................................RESPONDENTS

Appeal from the judgment of the High Court at

Kampala (Ntabgoba P.J.) dated 2/5/95,
in H.C.C.S. NO. 348 of 1991).

JUDGMENT OF KAROKORA, J. S.C.

I have had the benefit of reading in draft the judgment prepared by Oder, J.S.C. and do
concur with his reasons and conclusion and have nothing useful to add.

Dated at Mengo this .27th.. day of September, 1996.

A.N. KAROKORA
JUSTICE OF THE SUPREME COURT

I CERTIFY THAT THIS IS A

TRUE COPY OF THE ORIGINAL
……………………………………
E. K. E. TURYAMUBONA
DEPUTY REGISTRAR, SUPREME COURT
 THE REPUBLIC OF UGANDA

IN THE SUPREME COURT OF UGANDA

AT MENGO

(CORAM: MANYINDO, D.C.J., ODER, J.S.C., KAROKORA, J.S.C)

CIVIL APPEAL NO. 53 OF 1995

BETWEEN

1. ISMAIL JAFFER ALLIBHAI

2. KASSAMAL JAFFER ALL IBHAI
3. BAHADURARALI JAFFER ALLIBHAI ……..………….. APPELLANTS

AND

1. NANDLAL HARJIVAN KARIA

2. VICTORIA MOTORS LTD …...........................................RESPONDENTS

Appeal from the judgment of the High Court at

Kampala (Ntabgoba P.J.) dated 2/5/95,
in H.C.C.S. NO. 348 of 1991).

JUDGMENT OF MANYINDO, D.C. J.

I read the judgment of Oder, J.S.C., in draft. I agree that this appeal is devoid of
merit and must be dismissed. The facts of the case have been ably set out by oder, J.S.C., in his
considered judgment. As I see it, the scenario of this case is this. The first respondent was
a property speculator or estate agent. He would buy and resale property for a profit or
broker a sale contract for a principal. He was financially backed by people like Shamji, the
Managing Director of Gomba Mansions Ltd. and Gomba Motors. They would share the
proceeds of the resale or the brokerage commission as the circumstances allowed.

In the instant case the first respondent acted as his own agent. He was the
undisclosed principal. He paid Shs. 200,000/= as part payment of the purchase price,
less his commission of 21%. He then asked Shamji to provide the balance. Shamji obliged. He
made the funds available from the account of Gomba Mansions Ltd. The idea was that
the first respondent would then sell the house to Kassam Motors Ltd., at a profit of Shs
100,000/= which the first respondent would share with Shamji.The deal between the first
respondent and Shamji fell through. At about the same time the appellants fled the Country
following the expulsion of Asians by the Military dictatorship. This was before the first
respondent had paid to them the balance of the contract price.

Following the expulsion of Asians, Decree No. 27 of 1973 was promulgated by

Amin. It vested all abandoned properties in Government and then transferred them to the
Departed Asian Property Custodian Board ("the Board") for management purposes. That
Decree empowered the Board to meet all liabilities of a departed Asian. It follows that the
Board could complete a sale of property started by a departed Asian owner of the property. It was
on that basis that the first respondent approached the Board which transferred the suit property
to him. Clearly what was transferred to him was the legal interest as he had already
obtained the equitable interest on execution of the contract of sale and purchase, when he
made the initial of payment of Shs. 187,000/=.

Having transferred the equitable interest to the first respondent, the appellants
retained only the legal interest, but even that was vested in the Government and later the
Board, by Decree No. 27 of 1973. As already pointed out, the Board later transferred the
legal interest to the first respondent. It follows in my judgment that the Caveat lodged by
the appellants was of no consequence as they had no interest or estate in the property
at the material time.

There was no evidence to show that the first respondent had sold the suit property to
Gomba Mansions Ltd. Shamji stated in his evidence that it was not established that the latter
did actually receive the money. There was no evidence that the 1st respondent ever sold the
property to Kassam Motors Ltd. The houses were never exchanged; so no equitable interest
passed to either Shamji (Gomba Mansions Ltd.) or Kassam Motors Ltd. It follows in my
view, that the first respondent was entitled to the legal interest in the property. There was
no fraud in the transfer.

The default clause in exhibit D1 does not apply because:-

(a) When the appellants decided to flee the Country, they avoided
contacting the first respondent although they contacted other debtors;

(b) The first respondent could not pay the balance price to the appellants
on the due date (31/12/72), as the appellants were no longer in Uganda;

(c) The 1st respondent could not pay the money to the Board as it was established
until sometime n 1973. Even after it had been established, the Board took a long time to act
upon his request for the transfer.

In my view Act No. 9 of 1982, (the Expropriated Properties Act) did not
apply as it nullified only the legal interest of the Board and not of the appellants. The
Minister responsible for the abandoned properties was given a free hand to return any property
either to its original owner or any other claimant. The Minister chose to return the suit property to
the first respondent and his decision was not challenged. The transfer of the property to
the first respondent by the Board was in order, so was that by the first respondent to the
second respondent. It was not nullified by the Expropriated Properties Act. It seems clear
to me that the appellants were well aware of that fact hence their claim for compensation in the
first place. Their claim for repossession was an afterthought and not sustainable in law. I
would accordingly dismiss the appeal with costs to the respondents.
 As Karokora, J.S.C., also agrees the appeal is dismissed. There will be
orders for costs in terms proposed by Oder, J.S.C., in his judgment.

S.T. MANYINDO
JUSTICE OF THE SUPREME COURT.

I CERTIFY THAT THIS IS A

TRUE COPY OF THE ORIGINAL

…………………………………………….
E. K. E. TURYAMUBONA
DEPUTY REGISTRAR, SUPREME COURT