Unpacking the law on bonafide purchasers for value without notice of fraud

Unpacking the law on bonafide purchasers for value without notice of fraud
1.0 Introduction.
Background

The recent, well in time, decision by the Kenyan Supreme Court in Petition No.08/2021, Dina Management Limited versus Country Government of Mombasa & 5 Others has re-ignited the debate among litigants, counsel, the bench, jurists, owners of registered land, owners of interests in registered land and all stakeholders in land-related commercial transactions, including financial institutions on the consequences of any attempt to underscore the importance of the principle of indefeasibility of title and the doctrine of bonafide purchaser for value, while at the same time, battling the proliferation of the various forms of fraud committed in the acquisition of title to land. The Kenyan Supreme Court ruled that; to invoke and or benefit from the doctrine of the bonafide purchaser for value, the party seeking to rely on the doctrine must prove that the title to the property was in the first place rooted in the law.

There must be proof that the title was lawfully issued, meaning that the process that was followed before the issuance of the title and leading to its creation must have been within the confines of the law. It is quite apparent that this approach by the Kenyan Supreme Court has widened the scope of due diligence expected of a purchaser from merely proving an apparent valid title to now proving the legality of the process leading to the issuance of the title. The ruling has raised the bar on the level and extent of due diligence expected of a prospective buyer or other interest dealer in registered land, extending the investigation to an inquiry into the root of the title. In essence, the judgment requires the prospective buyer to search or investigate the entire history of the land. The buyer would be expected to investigate the title's history commencing with the initial allocation of the land, regardless of the length of the history and the prior transfers. This is akin to the deed system that applied before the Torrens system came into force. See Mubiru J in Adrabo versus Madira HCCS No. 24/2013.


The decision has also reignited the debate on how far the courts can go in construing provisions of the law governing registered land in a manner transcending the limits hitherto created by the Torrens System, by expanding the scope of inquiry or due diligence that must be made or caused by the purchaser, if they are to benefit from the doctrine of a bonafide purchaser for value without notice as a defence, once their title becomes a subject of proceedings intended to impeach or cause cancellation of their registration as proprietors thereof.


In Uganda, the principal legislation governing the acquisition of an interest in registered land is the Registration of Titles Act Cap 230. The courts have over time set varying standards and thresholds to be satisfied by a person invoking the doctrine of bonafide purchaser for value without notice as a defence to allegations of fraudulent acquisition.  The benchmark was set by Okello J. An (as he then was) in Sir John Bageire vs. Ausi Matovu CACA No.07 of 1996, on page 26, who, while emphasising the value of the land property and the need for thorough investigations before purchase held that; " Lands are not vegetables that are bought from unknown sellers. Lands are valuable properties and buyers are expected to conduct thorough investigations of the land and the sellers before purchase.” 


The question of what amounts to thorough or sufficient investigations or due diligence expected of a purchaser is one of fact. As a result, courts have variously construed due diligence and set varying standards that have transcended the initial due diligence envisaged under the Torrens system and the Registration of Titles Act. This has extended to requiring purchasers to verify the authenticity of instruments and instrument numbers upon which a title was created. Konde Mathias Similar V. Byarugaba Moses HCCS No. 66/2007 at page 10. Some of the thresholds introduced by the courts are almost rendering the provisions of the RTA superfluous and reverting to the deed system. In the absence of a clear guide, each case is determined by its peculiar facts. Litigants and all stakeholders are thus left in the realm of uncertainty.

The Legal and Enforcement Mechanism

The Constitutional Framework

The principal source of law regarding ownership of property in Uganda is the Constitution. Article 26 (1) of the constitution provides for the right of every person to own property whether individually or in association with others. This of course includes acquiring title to the land including public land.  See; Katureebe CJ (as he then was) in Amooti Nyakaana vs. NEMA & 6 Others Constitutional Appeal No. 05/2011. Property in the context of Article 26 (1) of the constitution was defined by the  Supreme Court to include land or landed property. Phillip Karugaba vs. AG Constitutional Appeal No. 1/2004.

The right to ownership of land is thus recognised by the constitution and such title cannot be impeached nor can an owner be deprived of their land except by the law. Not even the courts of law are permitted to render decisions and orders having the effect of depriving an owner of the land, save where such owner has been afforded a hearing. This is the import of the decision in; Carol Turyatemba vs AG Constitutional Petition No. 16/2006.
The constitutional protection will of course not be invoked in aid of an owner whose title is sought to be impeached on account that he/she fraudulently procured their registration on the title or acquired the interest through fraud. In such circumstances, it is incumbent on the owner whose title is under challenge to demonstrate that they lawfully acquired title to the land.

The Kenyan Supreme Court while construing Article 40 of the Kenyan Constitution (which is the equivalent of Article 26(1) of the Constitution of Uganda) held the provisions of Article 40 of the Constitution entitling every person to the right to property do not extend to any property that has been found to have been unlawfully acquired. See; Petition No.08/2021 Dina Management Limited versus Country Government of Mombasa & 5 Others.

The Statutory Framework

The principal statute governing the acquisition of an interest in registered land, sanctity of title, impeachment of title and grounds thereof as well as the doctrine of bonafide purchaser for value without notice is the Registration of Titles Act Cap 230. See: Western Highland Creameries Ltd & Anor v Stanbic Bank Uganda Ltd & 2 Ors (CIVIL SUIT NO 462 OF 2011).

Indeed, under Section 2 of the Act, it is provided that save as is expressly stated otherwise in the Act or any other written law, the Act in so far as it related to land registered thereunder shall reign supreme. See the recent decision of the Supreme Court in Silver Byaruhanga vs. Fr Emmanuel Ruvugwaho & another Civil Appeal no. 09/2014.

In as far as fraud and bonafide purchaser for value without notice is concerned, common law and equity cannot be invoked in the face of clear provisions of the Act. Barclays Bank V. Gulu Millers (1959) EA 541. The title of a registered proprietor can only be impeached on account of fraud as envisaged under section 176 (c) of the RTA. The common law doctrine of notice is thus inapplicable. This is the import of section 136 of the RTA.

The Enforcement Mechanism

Any action challenging the proprietorship of an owner of registered land on account of fraud requires investigation and determination by the High Court. It is ordinarily the appropriate court vested with the jurisdiction. See section 177 of the RTA.

Hitherto, there was a debate as to whether the Commissioner's land Registration could cancel a title on account of fraud in the exercise of his/her statutory mandate under section 91 of the RTA. That debate has since been settled by the Supreme Court in Hilda Wilson Namusoke & Others Versus Owalla Home Investments Limited SCCA No.15/2017 where the court confirmed that the primary jurisdiction in any claim for cancellation of a title on account of fraud is vested in the High Court and that the Commissioner for Land Registration is not competent to adjudicate claims arising from alleged fraud.

However, for the high court to invoke its jurisdiction, the person seeking to impeach the title on account of fraud must have filed a proper suit per the law's governing procedure. It appears that the recommended procedure is by an ordinary suit by way of ordinary plaint. In SCCA No. 22/93 Hannington Waswa & Anor versus Maria Onyango Ochola, it was held that the applicable procedure of seeking to cancel a certificate of title and challenging the actions of the Respondents on account of alleged fraud, misrepresentation, illegality and forgeries was to file an ordinary suit by ordinary plaint. See Order 4 (1), Order 6 (3) and Order 7 (1) of the Civil Procedure Rules.

Therefore, save in exceptional circumstances, See; Sinba (K) Limited & Others Versus UBC SCCA No.04/2014, where the action was commenced using the special procedure under Section 34 of the Civil Procedure Act, which prescribes a Notice of Motion in a suit arising out of execution proceedings, attempts to prove fraud through applications by Notice of Motion for example through judicial review applications have been rejected by the Courts on the ground that fraud is such a serious allegation that it cannot ordinarily be proved through affidavit evidence. Yahaya Walusimbi versus Nakalanzi Justine & Others Court of Appeal Civil Application No. 386 of 2018.

The Law Procedure and Practice Relating to Fraud as a Ground for Impeachment of a Title to Registered Land and the Doctrine of Bonafide Purchaser for Value without Notice

Fraud and Bonafide Purchaser under the Deed System

Before the adoption of the Registration of Titles Act, the applicable law and practice was the deed system which was applicable by common law. See HCCS No. 24/2013 Adrabo versus Madira. Under the deed system, confirming ownership of land required one to check the documents transferring title to the land, for several prior transactions. At the time, even though a person appeared to be the owner of the land, the purchaser was not entitled to rely on the registry and had to confirm that the person selling the property was the rightful owner of the property. See. Adrabo versus Madira(Supra).

The burden was therefore quite high on the prospective purchaser who had to investigate the entire history of ownership of the subject land to ascertain whether the current owner and his / her predecessor in title had acquired the title lawfully. The foregoing appears to be the position adopted by the Kenyan Supreme Court in Dina Management Limited versus the Country Government of Mombasa & 5 Others.

The decision has raised the bar on the level and extent of due diligence expected of a prospective buyer or other interest dealer in registered land, extending the investigation to an inquiry into the root of the title. In essence, the ruling requires the prospective buyer to search or investigate the entire history of the land. The buyer would be expected to investigate the history of the title commencing with the initial allocation of the land, regardless of the length of the history and the prior transfers. This is akin to the deed system that was applied before the Torrens system came into force. See. Mubiru J in Adrabo versus Madira HCCS No. 24/2013.

Fraud and Bonafide Purchaser under the Torren system

Under the Torrens System, a purchaser does not need to search back the previous transfer. He/ she can rely on whatever name is reflected on the Land Title at the Land Registry. If the title deed shows a person as the owner, the purchaser can by section 59 of the Registration of Titles Act buy the property from that owner without worrying about how that person became the owner. This is premised on the principle that the register is everything; Souza Figuiredo& Co. V. Moorings Hotel Limited (1960) EA926.


Under the Torrens System, security of title is based on the four principles; indefeasibility (cannot be impeached), registration (title is by registration), the curtain principle (abolition of notice or exhaustive inquiry), and assurance (compensation upon detrimental reliance). Its key feature is that it captures all interests in a property, including transfers, mortgages, leases, easements, covenants, and other rights in a single Certificate of Title which, once registered with the Commissioner of Land Registration, is guaranteed correct by the State. See HCCS No. 24/2013 Adrabo versus Madira.

In other words, the register is conclusive evidence of ownership. There would thus be no need for a purchaser to search behind or beyond the Certificate of Title to ensure proven ownership of the land, Narsensio Begumisa and Ors v Eric Tibebaga (Civil Appeal No. 17 of 2002) [2004].

Under the principle of indefeasibility, a title that is indefeasible cannot be defeated, revoked, or made void. The person who is registered as proprietor has a right to the land described in the title, good against the world. Narsensio Begumisa and Ors v Eric Tibebaga (Civil Appeal No. 17 of 2002) [2004]. The concept of indefeasibility is, however, not defined in the Registration of Titles Act. It was however explained in Frazer v. Walker [1967] AC 569 as connoting “the immunity from attack by an adverse claim to the land or interest in respect of which he is registered, which a registered proprietor enjoys. See; also Adrabo versus Madira.


There are, of course, a limited number of exceptions to this principle of indefeasibility and these are listed in sections 64, 77, 136 and 177 of The Registration of Titles Act; which essentially relate to fraud or illegality committed in procuring the registration. See HCCS No. 24/2013 Adrabo versus Madira; See also Lawrence Kitts V. Bugisu Co-operative Union SCCA No.15/2004. Other exceptions such as tenancies, licences, bona fide or lawful occupants as prescribed under the Land Act Cap 227; Babigumira v Magezi (supra)

Fraud and the Sanctity of a certificate of title

The certificate of title issued under the RTA is conclusive evidence that the person named in the certificate as proprietor is possessed of the estate in the land described in the certificate. See section 59 of the RTA Cap. 230. Such a certificate of title can only be impeached for fraud. It is otherwise sacrosanct. Narsensio Begumisa and Ors v Eric Tibebaga (Civil Appeal No. 17 of 2002) [2004] UGSC 18 (22 June 2004).

The import of section 59 of the RTA is that the person named as the proprietor has in law interest in or power to appoint or dispose of the land described in the certificate or has the estate or interest described therein. The estate described is a right of ownership and power to dispose of the property in the manner deemed fit by the owner. See; Madrama J (as he then was) in HCMA No. 538/2013 Babigumira v Magezi.

However, a person seeking to rely on the certificate of title must prove that the particulars therein are in tandem with the land on the ground, to which it purports to relate. This is clear from the wording of Section 59 of the RTA, which expressly stipulates that the certificate "shall be received in all courts as evidence of the particulars therein set forth and of the entry thereof in the Register Book.

It follows therefore that the inviolability of a certificate of title is circumscribed in as much as it is confined to the particulars in the certificate. The court, therefore, cannot receive the certificate as evidence of particulars, which are not outlined in it. Narsensio Begumisa and Ors v Eric Tibebaga (Civil Appeal No. 17 of 2002) [2004] UGSC 18 (22 June 2004).

Impeachment of title on account of Fraud

One of the astounding grounds for cancellation of a certificate of title is fraud. Section 176 (c) of the RTA lists fraud as one of the statutory grounds upon which an action for recovery of land or ejectment of a registered proprietor and cancellation of their certificate of title can be found. Western Highland Creameries Ltd & Anor v Stanbic Bank Uganda Ltd & 2 Ors (CIVIL SUIT NO 462 OF 2011).

Pleading & proving fraud, the burden and standard

It is a mandatory requirement of the law that where the cause of action against the proprietor is founded in fraud, the fraud must be strictly pleaded and the particulars set out in the plaint. See; Order 6 Rule 3. SCCA No. 22/93 Hannington Waswa & Anor versus Maria Onyango Ochola; See CACA No. 185/2018 Registered Trustees of the Hindu Union versus Kagoro Epimarc & Others applying Kampala Bottlers Ltd v Damanico (U) Ltd (Civil Appeal 22 of 1992) [1993] UGSC.

The rationale for fraud and related claims is that fraud is a serious allegation which must be specifically pleaded and proved, the standard of proof being higher than the usual balance of probabilities in civil matters but not so high as to require proof beyond a reasonable doubt. See: Hajji Abdu Nasser Katende vs Vithalidas Haridas & Co. LTD Court of Appeal (Civil Appeal NO. 84 of 2003) also citing Kampala Bottlers Ltd v Damanico (U) Ltd.

Additionally, for a party to plead fraud in the registration of land, the party must first plead and prove that the fraud was attributable to the transferee. This is the import of section 176 (c) of the Registration of Titles Act. Kampala Bottlers Ltd v Damanico (U) Ltd. The Supreme Court went on to further state that fraud must be attributable either directly or by necessary implication, i.e. the transferee must be guilty of some fraudulent act or must have known such act by somebody else and taken advantage of such act. See; Civil Appeal 22 of 1992 Kampala Bottles Ltd v Dananico (U) Ltd.

The position of the law in Uganda and as established by the highest appellate court in, Kampala Bottles Ltd v Dananico (U) Ltd allegations of fraud/illegality are not causes of action for recovery of land in the circumstances where such allegations are not made out against the transferee in title in the plaint. Western Highland Cremaries Ltd V. Stanbic Bank (U) Ltd HCCS No. 462/2011. Fraud must therefore not only be specifically pleaded but must be specifically proved. In matters of fraud, the burden lies first on the claimant or party who asserts that the transaction was tainted with fraud to adduce evidence to that effect and the standard is as stated herein above. See;  Senkungu & 4 Ors v Mukasa (Civil Appeal No. 17 of 2014) applying sections 101, 102, 103 and 106 of the Evidence Act.

Meaning of fraud 

Fraud is not defined by the Registration of Titles Act but has been defined by numerous legal authorities. Kerr in the Law of Fraud and Mistake 5th edition part 1 page 1: states that civil courts of justice have always avoided hampering themselves by defining or laying down as a general proposition what constitutes fraud. Fraud is infinite in variety with the ever-dynamic operations of mankind. Thus Kerr defined fraud in the contemplation of a civil court of justice to include all acts, omissions, and concealments which involve a breach of legal or equitable duty, trust or confidence, justly reposed, and are injurious to another, or by which an undue or unconscientious advantage is taken of another. All surprises, tricks, cunning, dissembling and other unfair ways are used to cheat anyone. Senkungu & 4 Ors  v Mukasa (Civil Appeal No. 17 of 2014).

Fraud in all cases implies a willful act on the part of anyone, whereby another sought to be deprived, by illegal or inequitable means, of what he is entitled to. Fredrick. J.K. Zaabwe vs. Orient Bank Ltd & Others SCCA No. 141 of 2006.

The argument that the term fraud as it appears in the Registration of Titles Act means actual fraud has been rejected as constituting a narrow construction. The meaning has been expanded and held as encompassing fraudulent conveyance schemes that can be affected without a false representation. Such fraudulent conveyances typically involve a transfer to a close relative, a secret transfer, a transfer of title without transfer of possession or grossly inadequate consideration. Senkungu & 4 Ors v Mukasa (Civil Appeal No. 17 of 2014).

Fraud as opposed to mere suspicion

Fraud is a very serious allegation and must be proved beyond mere suspicion. In David Sejjaka Nalima v Rebecca Musoke (Supra), the court highlighted some of the considerations in detecting fraud “..... It is well settled that fraud means actual or some act of dishonesty. Where there are a series of subsequent transfers, for the title of the incumbent registered proprietor to be impeachable, the fraud of the previous proprietors must be brought home to him... A fraud by persons from whom he claims does not affect him unless knowledge of it is brought home to him or his agents. The mere fact that he might have found out the fraud had he been more vigilant and had made further inquiries which he omitted to make does not itself prove fraud on his part. But if it 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 ascribed to him...”

Fraud being a serious allegation, means that the person alleging must prove actual fraud which means dishonesty of some sort but not constructive fraud. Fraud can be participatory i.e. where one participates in fraudulent dealings. It can also imputed on a person i.e. where he or she was aware of the fraud and he or she condoned it, or benefited from it or used it to deprive another person of his rights. In short, all those who participated in the fraudulent transaction and who had knowledge of it are privy and have notice of fraud. See Katende Vs. Haridas & Co. Ltd (supra).

Fraud and illegality

There is confusion surrounding the question of whether fraud is an illegality for purposes of impeachment of a certificate of title or whether the two are distinct grounds under the law. The decision by the Supreme Court in NSSF versus Alcon appears to suggest that fraud is an illegality. However, the Supreme Court in Hilda Wilson Namusoke & Others Versus Owalla Home Investments Limited SCCA
No.15/2017 held that fraud is an illegality but a special form of illegality.

The case of Hilda Wilson Namusoke & Others Versus Owalla Home Investments Limited is of great help in differentiating fraud and illegality. Relying on the definition in the Black’s Law Dictionary, 9th Edition Page 185, Illegality was defined to mean; i) an act that is not authorised by law, ii) the state of not being legally authorised, iii) the state of condition of being unlawful. Fraud on the other hand was defined to mean the concealment or false representation through a statement or conduct that injures another who relies on it in acting.

The court further held that not every illegality is rooted in fraud. Some unauthorised actions may be a result of ignorance of the law. The Court went on to elaborate on transactions that may be illegal but not necessarily fraudulent, namely; the court was that of sale of land prohibited under Section 39 of the Land Act, transfer of a freehold title to a non-citizen prohibited under Section 40 of the Land Act which may be done in ignorance of the law but not necessarily fraudulent. And that not every illegality is imbued with fraud. Fraud is an illegality handled differently from other examples of unauthorised actions but illegality doesn’t necessarily include fraud. 

Fraud and the Defence of a Bonafide purchaser for value Without Notice
The only instance where the subsequent transfers/transferees can be protected is under Section 181 of the Registration of Titles Act; that is if they were bonafide purchasers for value without notice. Senkungu & 4 Ors v Mukasa (Civil Appeal No. 17 of 2014.
Section 181 provides: Nothing in this Act shall be so interpreted as to leave subject to an action of ejectment or an action for recovery of damages as aforesaid or for deprivation of the estate or interest in respect to which he or she is registered as proprietor any purchaser bona fide for valuable consideration of land under the operation of this Act, on the ground that the proprietor through or under whom he or she claims was registered as proprietor through fraud or error or has derived from or through a person registered as proprietor through fraud or error; and this applies whether the fraud or error consists in a wrong description of the boundaries or of the parcels of any land or otherwise howsoever”.

The doctrine of bonafide purchaser is therefore creature of statute. The concept of a bona fide purchaser for valuable consideration without notice is enunciated in Section 176 (c) and 181 of the Registration of Titles Act. The effect of the sections is that once a registered proprietor has purchased the property in good faith.

The doctrine of bonafide purchaser is therefore a creature of statute. The concept of a bona fide purchaser for valuable consideration without notice is enunciated in Section 176 (c) and 181 of the Registration of Titles Act. The effect of the sections is that once a registered proprietor has purchased the property in good faith, his title cannot be impeached on account of the fraud of the previous registered proprietor. Therefore a bona fide purchaser obtains a good title even, if he purchases from a proprietor who previously obtained it through fraud. Ndimwibo & Others versus Ampairwe (Supra). Whether a Purchaser is a bonafide purchaser for value without notice is a question of mixed fact and law. Ndimwibo & Others versus Ampairwe.

Section 181 of the RTA does not define a bona fide purchaser. A bona fide purchaser is however defined in Black’s Law Dictionary 8th Edition page 1291 as one who buys something for value without notice of another claim to the property and without actual or constructive notice of any defects in or informalities claims or equities against the seller’s title, one who has in good faith paid valuable consideration for a property without notice of prior adverse claims.”
The doctrine can only be invoked by a person who is a registered proprietor of the land. It is not applicable where there are competing unregistered interests. Section 181 of the RTA confers protection upon a registered proprietor. Therefore, until the purchaser is registered as proprietor of the land, the statutory protection is not available. Ndimwibo & Others versus Ampairwe, “It appears clearly to us that the doctrine of the bonafide purchaser for value without notice is a statutory defence available only to the person registered as proprietor under the RTA. It is not an equitable remedy although its history stems from the common law. It would not even qualify as a remedy for it is only a defence, by a person registered as proprietor under the RTA.” The doctrine of bona fide purchaser for value is a legal defence, the party putting up such a defence has the burden of proving it. See: David Sejjaka vs Nalima Musoke Supreme Court (Civil Appeal No. 12 of 1985). See Aketa Farmers & Millers Ltd V. Turyamureeba HCCS No. 241/2006.

The doctrine is a complete defence to allegations of fraud and once it succeeds, the title of the proprietor is protected. Hajji Abdu Nasser Katende vs Vithalidas Haridas & Co. LTD Court of Appeal (Civil Appeal NO. 84 of 2003). The law is that a bona fide purchaser of a legal estate for value without notice has an absolute, unqualified and answerable defence against the claims of any prior equitable owner. The burden to establish or prove the plea lies on the person who sets it up. It is a single plea and is not sufficiently made out by proving purchase for value and leaving it to the opposite party to prove notice if he can. Ndimwibo & Others versus Ampairwe.
For one to seek the protection of Section 181 (supra), he/she must prove that he/she is a bona- fide purchaser. The purchaser must act in good faith, ought to have given due consideration and purchased the land without notice of the fraud. Such notice covers both actual knowledge and constructive notice of the fraud and not merely notice. Section136 of the RTA. See also Senkungu & 4 Ors v Mukasa Civil Appeal No. 17 of 2014.

  • A bonafide purchaser buys in good faith, and honesty, without fraud, collusion or participation in wrongdoing. Daniel Sempa Mbabali vs W.K Kiiza and others (1985) HCB.

    Conditions Precedent for Bonafide Purchaser

    The conditions precedent to be proved by a party asserting the defence of a bonafide purchaser for value without notice were highlighted in the case of Hajji Abdu Nasser Katende vs Vithalidas Haridas & Co. Ltd, Court of Appeal No. 84 of 2003. “It suffices to describe a bonafide purchaser as a person who honestly intends to purchase the property offered for sale and does not intend to acquire it wrongly.
Such notice of fraud can also be imputed on the registered proprietor i.e. Decisions made by his agents, such as lawyers, donees of powers of attorney or auctioneers on his instruction must bind him. It is therefore not enough for a person pleading bonafide purchaser for value without notice to claim not to have known of the fraud if the same was known or ought to have been known by his agent. See; Katende Vs. Haridas & Co. Ltd (supra).

Therefore, for a purchaser to successfully rely on the bonafide doctrine, he /she must prove the conditions precedent set in the case of HANNINGTON NJUKI VS WILLIAM NYANZI H.C.C.S NO. 434 /1996. The conditions are;
  • He holds a certificate of title
  • He purchased the property in good faith,
  • He had no knowledge of the fraud,
  • He purchased it for valuable consideration,
  • The vendor had the apparent title,
  • He purchased without notice of any fraud,
  • He was not a party to the fraud.
The questions to answer here are:
Did the purchaser purchase the suit property in good faith?
If there was fraud in his registration as proprietor, would he deliver good title at law from transactions arising out of such fraud?
Did he know about such fraud?
Can fraud be brought home to him or his agents? See Ipolito Semwanga v Kwizera & Ors CIVIL SUIT NO. 61 OF 2005.

Conclusion

From the foregoing analysis, it is apparent that in the absence of a set standard for the determination of what facts would constitute fraud, or what would amount to sufficient due diligence to enable a defendant to invoke the defence of bonafide purchaser for value without notice of fraud, each case would have to be considered based on its peculiar facts. The bar and the bench must nevertheless be cautious in their approach to guard against rendering the provisions of the RTA especially those on sanctity of a certificate of title superfluous. This has the potential of relegating the Torrens system and reverting to the deed system, hitherto applicable at common law.

Authored by

Jackline NatukundaAssociate Partner
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