Wakilii

F.L Kaderbhai & Anor. vShamsherali Zaver Virji [2010] UGSC 20

Supreme Court · 2010 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second appeal to the Supreme Court from a Court of Appeal decision reversing the High Court in a civil suit for breach of an agreement for sale of property
Decision
Appeal dismissed; Court of Appeal decision that the Powers of Attorney conferred power of sale on the agent affirmed

The full judgment

Read the complete, verbatim text of this judgment.

Sign in to read the full judgment

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions — always read the source judgment before relying on it.

Holding

The Supreme Court dismissed the appeal. It held that the Settled Land Act 1925 referred to in Clause 9 of the Powers of Attorney was that of the United Kingdom, since the appellants were resident in and executed the documents in England and the only country named was Great Britain; under the contra proferentem rule any ambiguity was construed against the appellants who drafted them. No conflict of laws arose, as the agent's powers over Ugandan property had simply to comply with Ugandan law. The Justices of Appeal properly relied on Halsbury's Laws of England as an admissible treatise under the Evidence Act. The appellants' failure to cross-appeal the trial judge's finding on Exhibit P3 was also fatal.

Facts

The 1st and 2nd appellants, together with Gulamabbas Rajbhai Kapacee, owned property on Nasser Road, Kampala as tenants in common. In 1992 the 1st appellant gave the respondent a Power of Attorney to repossess the property under the Expropriated Properties Act 1982, which the respondent did. In May 1994 each appellant executed identically worded Powers of Attorney appointing Shabeer Kapacee to manage their interests; the third co-owner did likewise. On 27 May 1994 Shabeer Kapacee, purporting to act for all three owners, signed a memorandum of agreement selling the property to the respondent for US$110,000, of which the respondent paid US$55,000 on execution. The appellants later refused to deliver transfer documents, asserting that the Powers of Attorney did not include power to sell. The respondent sued for specific performance, liquidated damages and costs. The dispute turned on whether Clause 9 of the Powers of Attorney, referring to powers of a tenant for life under the Settled Land Act 1925, conferred a power of sale.

Issues

  1. Whether the Settled Land Act 1925 referred to in Clause 9 of the Powers of Attorney is that of the United Kingdom.
  2. Whether the absence of an express choice of law clause gave rise to a conflict of laws, requiring the law of Uganda to be applied because the suit property was situate in Uganda.
  3. Whether the Justices of Appeal erred by relying on Halsbury's Laws of England, rather than formal proof, to establish the powers conferred by the Settled Land Act of the United Kingdom.
  4. Whether the powers of sale conferred on a tenant for life by the Settled Land Act of the United Kingdom were applicable to the suit property, which was not settled land.
  5. Whether the appellants were required to file a cross-appeal in the Court of Appeal against the trial judge's finding on Exhibit P3 before they could challenge it.

Orders

  • Appeal dismissed.
  • Costs of the appeal awarded to the respondent here and in the two courts below.

Key headnotes

Statutory Interpretation — Reference to Foreign Statute in a Document — Identifying the Applicable Jurisdiction
Where a private document refers to a named statute without specifying the country, the statute is taken to be that of the jurisdiction with which the document and its makers are connected; residence of the makers, place of execution, and the only country named in the document determine its identity.
Construction of Documents — Contra Proferentem Rule
An ambiguity in a document is construed against the party who drafted it; a maker of a Power of Attorney who later alleges that a clause is meaningless bears the responsibility of giving the clause meaning rather than having it disregarded.
Conflict of Laws — Lex Situs — Agent's Powers over Property in Uganda
No conflict of laws arises where the powers granted to an agent over property situate in Uganda must in any event be exercised in compliance with Ugandan law; a foreign statute referenced in a Power of Attorney merely describes the powers conferred and is not imported as the governing law of the property.
Proof of Foreign Law — Admissibility of Legal Treatises
Under section 59(e) of the Evidence Act the opinions of experts expressed in a treatise commonly offered for sale may be proved by production of the treatise; Halsbury's Laws of England is such a treatise and, being notorious and reliable, requires no formal proof of the law of England it states.
Appeals — Cross-Appeal — Necessity of Challenging an Adverse Finding
A party who has not cross-appealed against, or made submissions challenging, a lower court's finding cannot have that finding overturned on appeal; the failure to cross-appeal denies the appellate court jurisdiction to disturb the finding, which must remain standing.

Legislation cited (6)

  • Evidence Act s.36
  • Evidence Act s.59(e)
  • Evidence Act s.91
  • Settled Land Act 1925 (UK) s.38
  • Settled Land Act 1925 (UK) s.72
  • Expropriated Properties Act 1982
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.