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Aketa Farmers & Millers Ltd & Anor vs VYAS Chinton (Civil Appeal No. 230 of 2018)

Court of Appeal · [2020] UGCA 55 · 2020 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Civil appeal from a High Court ruling allowing a third party's application for review and setting aside the judgment in HCCS No. 241 of 2006
Decision
Appeal allowed; review ruling set aside, original High Court judgment reinstated, and respondent's freehold title cancelled

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Holding

The Court of Appeal allowed the appeal, holding that the review judge wrongly set aside the High Court judgment in HCCS No. 241 of 2006. The respondent's freehold title was registered on 25 January 2013, after the judgment of 7 December 2012, and so could not constitute newly discovered evidence affecting that judgment, nor confer a right to be heard. The subsequent transfers were made in breach of a temporary injunction and were illegalities that could not be condoned. Lodging a caveat did not amount to contempt. At most the review judge should have ordered a fresh hearing rather than conferring ownership on the respondent. The original judgment was reinstated and the freehold title declared null and void.

Facts

In 1972 the second appellant and his brother purchased leasehold land (LRV 446 Folio 22 Plot 19 Mackenzie Vale, Kampala) which was later vested in the Departed Asians Property Custodian Board and repossessed in 1995, then given to the first appellant. After a registry file went missing, the title was fraudulently registered in the names of Kanubhai Patel and transferred to Turyamureeba Milton. The appellants sued in HCCS No. 241 of 2006 and obtained a temporary injunction restraining Turyamureeba. In December 2012 Mugenyi J found the registrations fraudulent and ordered cancellation in favour of the second appellant. However, in breach of the injunction, Turyamureeba had transferred the land to Busingye and Ruyondo (2008), who sold to the respondent (2009), who later obtained a freehold title registered on 25 January 2013. The respondent, not a party to the suit, applied to review and set aside the judgment. Luswata J granted the review, finding the respondent an aggrieved party denied a hearing. The appellants appealed.

Issues

  1. Whether the appellants' appeal was incompetent on the ground of unpurged contempt of court arising from lodging a caveat.
  2. Whether the trial judge erred in setting aside the judgment in HCCS No. 241 of 2006 by relying on a freehold certificate of title that did not exist at the time judgment was delivered.
  3. Whether a third party not party to the main suit could properly obtain review of the judgment under section 82 of the Civil Procedure Act and Order 46.
  4. Whether the trial judge erred in re-evaluating evidence and conferring ownership of the suit property on the respondent in a review application.

Orders

  • The preliminary objection on contempt of court is overruled.
  • The ruling in High Court Miscellaneous Application No. 333 of 2015 is set aside in its entirety.
  • The judgment of the High Court in HCCS No. 241 of 2006 dated 7 December 2012 is reinstated.
  • FRV 1360 Folio 8 Plot 19 Mackenzie Vale Kampala Kyadondo is declared an illegality, null and void, and the Commissioner Land Registration is directed to cancel it.
  • The appellants' appeal succeeds with costs of the appeal in this court and in the lower court.

Key headnotes

Review — Newly discovered evidence — Evidence that did not exist at time of judgment
A certificate of title issued after delivery of judgment cannot constitute the discovery of new and important matter of evidence under section 82 of the Civil Procedure Act and Order 46 rule 1(1)(b), as it could not have been within any party's knowledge or produced at the time the decree was passed.
Review — Standing of third party — Person aggrieved
A third party who is not a party to a suit may apply for review only where a decision has been pronounced which wrongfully deprives him of something or wrongfully affects his title; where the title relied upon arose only after judgment, no such grievance affecting that title exists.
Review — Scope of jurisdiction — Re-evaluation of evidence and conferral of ownership
A court conducting a review may not re-evaluate evidence and confer ownership of property on a stranger to the suit; where new and conflicting interests emerge, the proper course is to order a fresh hearing rather than to determine ownership on affidavit evidence.
Land tenure — Distinction between leasehold and freehold — Conversion under Article 237(5)
Leasehold and freehold are distinct tenures under the Land Act; a freehold title registered for the first time after judgment is a fresh grant and cannot be treated as a continuation of an earlier leasehold interest absent evidence of registration of that lease.
Dealings in breach of court order — Illegality — Effect on derivative title
A transfer of land made in defiance of a subsisting temporary injunction is an illegality which the court will not condone, and a title derived through such an illegal dealing cannot be used to defeat a lawful judgment in the transferor's suit.
Caveats — Whether lodging caveat constitutes dealing or contempt
Lodging a caveat under section 139 of the Registration of Titles Act is a statutory remedy forbidding registration of interests and is not itself a dealing in, wasting, transferring or damaging of land; it does not breach an order restraining dealings in the property and does not constitute contempt of court.
Appellate review of discretion — Review decisions
An appellate court will not interfere with the exercise of a lower court's discretion on review unless satisfied that the court misdirected itself, acted on matters it should not have, or failed to consider relevant matters, thereby arriving at a wrong conclusion.

Legislation cited (24)

  • Civil Procedure Act (Cap 71) s.82
  • Civil Procedure Act s.98
  • Civil Procedure Rules Order 46 rule 1(1)(b)
  • Civil Procedure Rules Order 46 rule 2
  • Civil Procedure Rules Order 46 rule 6
  • Civil Procedure Rules Order 9 rule 12
  • Judicature Act s.33
  • Constitution of the Republic of Uganda Article 28(1)
  • Constitution of the Republic of Uganda Article 40
  • Constitution of the Republic of Uganda Article 44(c)
  • Constitution of the Republic of Uganda Article 26
  • Constitution of the Republic of Uganda Article 126(2)(e)
  • Constitution of the Republic of Uganda Article 237(5)
  • Registration of Titles Act (Cap 230) s.139
  • Registration of Titles Act s.59
  • Registration of Titles Act s.70
  • Registration of Titles Act s.178
  • Registration of Titles Act s.181
  • Land Act (Cap 227) s.1(p)
  • Land Act s.1(s)
  • Land Act s.3
  • Penal Code Act (Cap 120) s.103(c)
  • Penal Code Act s.107(1)(i)
  • Court of Appeal Rules rule 30(1)(a)

Cases cited (18)

  • Mansukhal Ramji Karia & Crane Financing Co. Ltd v Attorney General (Civil Appeal No. 20 of 2002)
  • Apollo Wasswa Basudde and Others v Nsabwa Ham (Civil Appeal No. 288 of 2016)
  • Housing Finance Bank and Another v Edward Musisi (Miscellaneous Application No. 158 of 2010)
  • Kampala Bottlers v Damanico (U) Ltd (Civil Appeal No. 22 of 1992)
  • Attorney General and Uganda Land Commission v James Mark Kamoga and Another (Civil Appeal No. 8 of 2004)
  • Mohan Musisi Kiwanuka v Asha Chand (Civil Appeal No. 14 of 2004)
  • Peters v Sunday Post Limited [1958] 1 EA 424
  • Mbogo and Another v Shah [1968] 1 EA 93
  • Mbogoh v Muthoni and Another [2006] 1 EA 174
  • Re Nakivubo Chemists [1979] HCB 12
  • Ex parte Sidebotham, In re Sidebotham (1880) 14 Ch D 458
  • Attorney General of Gambia v N'jie [1961] AC 617
  • Ladak Abdulla Muhammad Hussein v Griffiths Isingoma Kakiiza and Others (Civil Appeal No. 8 of 1995)
  • Bostel Brothers Ltd v Hurlock [1948] 2 All ER 312
  • Phoenix General Insurance Co of Greece SA v Administratia Asigurarilor de Stat [1987] 2 All ER 152
  • Makula International Ltd v His Eminence Cardinal Nsubuga and Another [1982] HCB 11
  • Belvoir Finance Co Ltd v Harold G Cole & Co Ltd [1969] 2 All ER 904
  • Mercantile Credit Co Ltd v Hamblin [1964] 1 All ER 680
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