Wakilii

Kiwanuka v Micro Finance Centre Limited and Another (Civil Appeal 159 of 2014)

Court of Appeal · [2023] UGCA 355 · 2023 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Civil appeal and cross-appeal from a High Court (Commercial Division) decision on an application to review a mortgage under the Mortgage Act 2009
Decision
Appeal allowed; mortgage over the suit land declared void for lack of spousal consent; cross-appeal dismissed

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Cited — treatment unverified cited in 1 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

The Court of Appeal held that an order conclusively determining the parties' rights under the Mortgage Act is a decree appealable as of right under section 66 of the Civil Procedure Act, so no leave was required. It upheld the finding that the appellant was the 2nd respondent's wife, holding that non-registration does not invalidate a Mohammedan marriage and prolonged cohabitation evidenced a valid marriage. The court held that the discretion under section 36 of the Mortgage Act does not authorise courts to sanction illegality; spousal consent under section 39 of the Land Act is mandatory. The mortgage over the matrimonial home, created without spousal consent, was declared void. Appeal allowed; cross-appeal dismissed.

Facts

In February 2012 the 1st respondent lent a debtor company UGX 280,000,000 secured by a legal mortgage over three properties, including land at Kiwatule registered in the name of the 2nd respondent. The 2nd respondent had affirmed a statutory declaration that he was unmarried, and the company was authorised to pledge the property as security. When the debtor company defaulted, the 1st respondent advertised the sale of the suit property. The appellant, claiming to be the 2nd respondent's wife, applied to the High Court under sections 34, 35 and 36 of the Mortgage Act to review and void the mortgage on the ground that the suit property was a matrimonial home mortgaged without her spousal consent. She had married the 2nd respondent at Nateete Mosque in 1986 in a Mohammedan ceremony, lived in the property since 1991, and raised nine children there. The trial court found she was the wife and that no spousal consent had been obtained, but declined to void the mortgage because the situation arose from the 2nd respondent's fraud. The appellant appealed; the 1st respondent cross-appealed against the finding of marriage.

Issues

  1. Whether the appeal was competent despite being filed without leave of the trial or appellate court.
  2. Whether the appellant proved that she was the wife of the 2nd respondent so as to have locus standi.
  3. Whether the suit property was a matrimonial home protected by spousal consent requirements.
  4. Whether the trial court erred in declining to declare the mortgage void after finding that no spousal consent was obtained.

Orders

  • Civil Application No. 01 of 2014 (objection seeking to strike out the appeal for want of leave) dismissed.
  • Appeal allowed; orders of the trial court set aside and substituted with a declaration under section 36(1)(a) of the Mortgage Act that the mortgage over the suit land is void for lack of spousal consent.
  • Cross-appeal dismissed.
  • Costs of the appeal and cross-appeal together with costs in the court below to be paid by the 2nd respondent.

Key headnotes

Civil Procedure — Right of Appeal — Decisions under Special Statutes — Section 66 Civil Procedure Act
Where the High Court makes an order conclusively determining the rights of the parties on a matter brought under a special statute that creates no right of appeal, the order is a decree appealable as of right to the Court of Appeal under section 66 of the Civil Procedure Act unless appeal is specifically excluded by special legislation.
Family Law — Mohammedan Marriages — Validity Independent of Registration
Non-registration of a Mohammedan marriage does not render it invalid; under sections 2 and 16(a) of the Marriage and Divorce of Mohammedans Act validity is governed by the rites of the parties' religion, and a valid marriage may be presumed from prolonged cohabitation and reputation even without formal proof.
Evidence — Proof by a Single Witness — Sufficiency of Credible Affidavit Evidence
The Evidence Act does not require any particular number of witnesses to prove a fact; a single credible witness deposing to facts within personal knowledge can prove a fact, and contradictory evidence of another party does not prejudice such evidence.
Evidence — Affidavits — Hearsay — Order 19 Rule 3 Civil Procedure Rules
In a matter that is not an interlocutory application, affidavit evidence must be confined to facts within the deponent's own knowledge; a deponent's account of an inspection conducted by another person is hearsay and incompetent to rebut admissible evidence.
Land & Property — Family Land — Spousal Consent — Mandatory Requirement under Section 39 Land Act
Spousal consent to the mortgage of a matrimonial home is mandatory under section 39 of the Land Act, and the Mortgage Act did not repeal this requirement; a mortgage of a matrimonial home created without spousal consent is void.
Banking & Finance — Mortgage Act Section 36 — Scope of Court's Discretion to Declare a Mortgage Void
The discretion conferred on a court under section 36 of the Mortgage Act to decline to declare a mortgage void does not license the court to disregard clear provisions of law or sanction an illegality, such as a mortgage of a matrimonial home executed without mandatory spousal consent.
Civil Procedure — Appellate Interference with Discretion — Failure of Justice
An appellate court may interfere with a trial court's exercise of discretion where the trial court misdirected itself and as a result reached a wrong decision, or where it is manifest that the trial court was clearly wrong and there was a resulting failure of justice.

Legislation cited (20)

  • Mortgage Act No. 8 of 2009 s.3
  • Mortgage Act No. 8 of 2009 s.5
  • Mortgage Act No. 8 of 2009 s.6
  • Mortgage Act No. 8 of 2009 s.34
  • Mortgage Act No. 8 of 2009 s.35
  • Mortgage Act No. 8 of 2009 s.36
  • Mortgage Act No. 8 of 2009 s.2
  • Land Act Cap. 227 s.39
  • Land Act Cap. 227 s.38A(4)
  • Civil Procedure Act Cap. 71 s.66
  • Civil Procedure Act Cap. 71 s.2(c)
  • Civil Procedure Rules S.I. 71-1 Order 19 Rule 3
  • Civil Procedure Rules Order 44 Rule 1
  • Marriage and Divorce of Mohammedans Act s.2
  • Marriage and Divorce of Mohammedans Act s.8
  • Marriage and Divorce of Mohammedans Act s.16(a)
  • Marriage and Divorce of Mohammedans Act s.16(d)
  • Evidence Act Cap. 6 s.101(2)
  • Judicature (Court of Appeal Rules) Directions S.I. 13-10 Rule 30(1)
  • Judicature (Court of Appeal) Rules S.I. 13-10 Rule 102

Cases cited (16)

  • Attorney General Vs Sietco (No.4) [1971] EA 50
  • Pius Niwagaba v Law Development Centre (Civil Application No. 18 of 2006)
  • Aisha Kiwanuka v Micro Finance Centre Ltd & Imam Kiwanuka (Civil Application No. 169 of 2014)
  • Makula International Ltd v Cardinal Nsubuga & Another (Civil Appeal No. 4 of 1981)
  • Joseph Bayego v Registrar of Titles (Civil Appeal No. 20 of 1994)
  • Seyani Brothers & Co. Limited v Simbamanyo Estates Limited (Civil Application No. 06 of 2009)
  • Fredrick Zaabwe v Orient Bank Ltd (Civil Appeal No. 4 of 2006)
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Momtaz Begum v Anowar Hossain (Civil Appeal No. 139 of 2003)
  • Ntambala Fred v Uganda (Criminal Appeal No. 34 of 2015)
  • Hajat Nuriyat Memetebikulwa Kiwanuka v Micro Finance Support Centre & Anor (Civil Suit No. 466 of 2013)
  • Tropical Africa Bank Limited v Grace Were Muhwana (Civil Appeal No. 0004 of 2011)
  • Banco Arabe Espanol v Bank of Uganda (Civil Appeal No. 8 of 1998)
  • Global Capital Save 2004 Ltd v Alice Okiror & Anor (Civil Appeal No. 151 of 2012)
  • Mbogo and Another v. Shah (1968) E.A. 93
  • Uganda Development Bank Vs National Insurance and Another, SC Civil No. 28.95 (unreported)
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