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Bukenya and Another v Nalweyiso (Civil Appeal No 106 of 2015 and 178 of 2014)

Court of Appeal · [2022] UGCA 362 · 2022 Preliminary Objection Upheld ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Civil appeal from a High Court ruling on review/setting aside of a consent order, with consolidated appeals
Decision
Appeals and underlying High Court proceedings struck out as a nullity; refund of UGX 90,000,000 with interest ordered to the 1st appellant

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Holding

The Court of Appeal upheld a preliminary objection that the 2nd appellant, Kampala Archdiocese Land Board, was not an incorporated legal entity and therefore lacked the capacity to sue, be sued, or enter into agreements or consent orders. A non-existent person cannot maintain or defend an action, rendering the related proceedings a nullity ab initio. As the 1st appellant's claim derived from title held through the non-existent 2nd appellant, it could not stand alone and fell away. The appeals and the underlying High Court applications were struck out. The Registered Trustees of Kampala Archdiocese were ordered to refund the UGX 90,000,000 paid by the 1st appellant with interest.

Facts

The 1st appellant applied for and obtained a lease offer from the 2nd appellant, Kampala Archdiocese Land Board, and made a part payment of UGX 90,000,000. The 2nd appellant terminated the lease offer, prompting the 1st appellant to apply for judicial review seeking prerogative orders. The parties entered into a consent order reinstating the lease offer and allowing the 1st appellant to pay the balance of UGX 75,000,000 within four months. The respondent then applied to stay execution and to review or set aside the consent order. The trial judge found the respondent to be a kibanja occupant on the suit land, giving rise to the appeal. On appeal, it was not in contention that the 2nd appellant was not registered or incorporated as a legal body under the Trustees Incorporation Act, and accordingly lacked the capacity to enter into the lease offer or consent order.

Issues

  1. Whether the 2nd appellant, Kampala Archdiocese Land Board, had locus standi to institute or defend legal proceedings given that it is not a legally incorporated body.
  2. Whether the proceedings instituted by and involving the unincorporated 2nd appellant were a nullity.
  3. Whether the 1st appellant's claim, founded on title derived from the 2nd appellant, could stand independently.

Orders

  • The 2nd appellant's appeal struck out for lack of locus standi.
  • The appeals as well as the rulings and orders in the two High Court applications struck out.
  • Appeal dismissed for lack of merit.
  • No order as to costs both in the Court of Appeal and the High Court.
  • The 1st appellant to vacate the suit land if in occupation.
  • The Registered Trustees of Kampala Archdiocese to refund UGX 90,000,000 paid by the 1st appellant with simple interest at 12 percent per annum from date of payment until payment in full.

Key headnotes

Legal Personality — Capacity to Sue and Be Sued — Unincorporated Associations
An unincorporated association that has not been conferred legal personality by statute has no capacity to sue or be sued, and cannot enter into agreements or consent orders; only corporations sole, corporations aggregate, individuals, or statutorily recognised associations possess such capacity.
Locus Standi — Proceedings by or against a Non-Existent Person — Nullity
A non-existent person cannot maintain or defend an action; once the court is aware that a party is non-existent, the proceedings involving that party are a nullity ab initio and cannot be allowed to proceed.
Locus Standi — Court May Raise Point of Law of Its Own Motion
Where a party lacks locus standi, a court may, of its own volition, raise and determine that point of law in the interests of justice and to avoid a miscarriage of justice.
Mailo Land — Kibanja Interests — Overlapping Interests under the 1995 Constitution
A registered proprietor of a mailo holding cannot lease out land occupied by a kibanja holder and may only lease land not so occupied; a kibanja holder's interest is limited to the physical boundaries of the kibanja, reflecting the overlapping interests created by the 1995 Constitution.
Scope of Judicial Review — Acts of State versus Private Disputes
Judicial review relates to acts of the State and not to disputes between private persons; a party with a private grievance should proceed by way of plaint rather than judicial review.

Legislation cited (11)

  • Civil Procedure Rules O.11 r.1(a)
  • Rules of the Court of Appeal r.30(1)
  • Rules of the Court of Appeal r.101
  • Registration of Titles Act s.59
  • Registration of Titles Act s.101
  • Evidence Act s.16
  • Evidence Act s.19
  • Evidence Act s.28
  • Evidence Act s.110
  • Trustees Incorporation Act Cap 165
  • Constitution of the Republic of Uganda 1995

Cases cited (9)

  • Mohan Musisi Kiwanuka v Asha Chand (Civil Appeal No. 14 of 2002)
  • Bogere Moses v Uganda (Criminal Appeal No. 1 of 1997)
  • Kilamunte v Uganda (Criminal Appeal No. 70 of 1997)
  • Fr. Narcensio Begumiso & Ors v Eric Tibebaaga (Civil Appeal No. 17 of 2002)
  • Oryem Richard v Uganda (Criminal Appeal No. 22 of 2014)
  • Dharamsy Morarji & Sons Ltd v Suman Naresh Karo (Civil Appeal No. 41 of 1995)
  • The Fort Hall Bakery Supply Co. v. Frederick Muigai Wangoe [1959] EA
  • The Taff Vale Railway Company v. The Amalgamated Society of Railway Servants [1901] A.C. 425
  • Salomon vs. Salomon [1897] A.C.22
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.