Kassam & Another v Kassam & Another (Civil Appeal 10 of 2006)

Supreme Court · [2008] UGSC 23 · 2008 Appeal Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Second civil appeal from a Court of Appeal decision that reversed a High Court judgment

Decision

Appeal dismissed; Court of Appeal's finding of fraud and revocation of the power of attorney upheld

The full judgment

Read the complete, verbatim text of this judgment.

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Holding

The Supreme Court dismissed the appellants' appeal against the Court of Appeal's finding that the first appellant fraudulently transferred registered land to her father. The Court held that a certificate of title is conclusive evidence of ownership under the Registration of Titles Act, that the disputed plots were not partnership property because a partnership cannot own registrable land, and that the power of attorney did not authorise the attorney to transfer the donor's interest to third parties. Effecting the transfers after revocation of the power of attorney and while ownership was in litigation was clear evidence of fraud. Additional evidence could not be introduced on a second appeal through written submissions.

Facts

The parties are members of one Ugandan Asian family, expelled from Uganda in 1972, who abandoned two properties: Plot 3 De Winton Road and Plot 51 Kampala Road. The first respondent was the sole registered proprietor of Plot 3 and held a 50% share in Plot 51, with the appellants' late father holding 25%. Under the Expropriated Properties Act 1982, the owners granted the first appellant powers of attorney in 1990 to repossess and manage the properties. A dispute arose over accounting for rents, and the powers of attorney were revoked in May 1994, with notice of revocation published in November 1994. In 1995 the respondents sued for recovery of the properties and an account. During the trial, the first appellant transferred 50% of Plot 3 and 25% of Plot 51 into her father's name, and the transfers were registered. The respondents amended their plaint alleging fraud. The High Court dismissed the suit and upheld the appellants' counterclaim, finding the transfers not fraudulent and the powers of attorney not legally revoked. The Court of Appeal reversed, holding the transfers fraudulent and the powers of attorney revoked.

Issues

Whether the transfers of the suit properties by the first appellant to her father were vitiated by fraud.
Whether the suit properties were partnership property such that the first appellant was entitled to transfer them.
Whether the power of attorney authorised the first appellant to transfer the donor's interest in the properties to third parties.
Whether the power of attorney had been validly revoked before the transfers were effected.
Whether the first appellant acted in collusion with her father in effecting the transfers.
Whether additional evidence could be admitted on a second appeal through written submissions.

Orders

Appeal dismissed.
Orders of the Court of Appeal confirmed.
Costs of the appeal and of the two courts below awarded to the respondents.

Key headnotes

Land & Property — Registered Land — Conclusiveness of Certificate of Title

Under the Registration of Titles Act a certificate of title is conclusive evidence of ownership of registered land, and the estate of the registered proprietor enjoys paramountcy; registered interests stand unless displaced by evidence properly adduced at trial.

Commercial Law — Partnership — Ownership of Registrable Land

A partnership cannot own registrable land; only individual members of a partnership can be registered as proprietors, whether solely or jointly. Property registered in individuals' names is not partnership property where no partnership is named, no partnership deed exists, and no evidence of partnership ownership is adduced.

Land & Property — Fraudulent Transfer of Registered Land

Effecting a transfer of registered land into a third party's name after the power of attorney authorising the transferor has been revoked, and while ownership of the property is the central issue in pending litigation, is clear evidence of fraud.

Contract Law — Power of Attorney — Scope of Authority

A power of attorney to repossess and manage property does not authorise the attorney to vest or transfer the donor's interest in that property to a third party; a transfer to anyone other than the donor is unauthorised and ineffective.

Civil Procedure — Second Appeal — Admission of Additional Evidence

On a second appeal the Supreme Court has no discretion under Rule 30(1) of its Rules to take additional evidence, and fresh evidence cannot be introduced through written submissions; admitting such evidence would also offend the right to a fair hearing.

Civil Procedure — Appeals — Enlargement of Grounds Without Leave

An appellant cannot enlarge the grounds of appeal by subdividing written arguments into subheads, which amounts to introducing fresh grounds of appeal without leave of the Court.

Legislation cited (7)

Expropriated Properties Act 1982
Registration of Titles Act s.55
Registration of Titles Act s.56
Registration of Titles Act s.59
Registration of Titles Act s.64
Constitution of Uganda Article 28(1)
Rules of the Supreme Court r.30(1)

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.