Wakilii

Kaderbhai v Shamsherali (Civil Appeal 10 of 2008)

Supreme Court · [2010] UGSC 37 · 2010 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second civil appeal from the Court of Appeal, which had reversed the High Court's dismissal of a suit for breach of an agreement for sale of land
Decision
Appeal dismissed; the Court of Appeal's decision in favour of the respondent stands

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. Where the appellants, resident in England, inserted a reference to the Settled Land Act 1925 in their Powers of Attorney without naming a country, and the only country mentioned in the documents was Great Britain, the Court of Appeal did not err in treating the Act as that of the United Kingdom; any ambiguity was construed against the appellants as drafters under the contra proferentem rule. No conflict of laws arose because the agent's powers over Ugandan land had to comply with Ugandan law and none conflicted. Halsbury's Laws of England was admissible to prove the foreign law under section 59(e) of the Evidence Act, and the trial judge's unchallenged finding that a power of attorney authorised sale stood absent a cross-appeal.

Facts

The first and second appellants, together with a third co-owner, held property on Nasser Road, Kampala as tenants in common. The first appellant appointed the respondent under a Power of Attorney to repossess the property from Government under the Expropriated Properties Act 1982, which the respondent successfully did. The appellants, then resident in England, each later executed a Power of Attorney in favour of one Shabeer Kapacee to manage their interests; clause 9 conferred on him the powers of a tenant for life under the "Settled Land Act 1925 (as amended)". On 27 May 1994 Kapacee 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 then refused to deliver transfer documents, contending that the Powers of Attorney did not authorise sale. The respondent sued for specific performance, liquidated damages and costs. The High Court dismissed the suit; the Court of Appeal reversed, holding that clause 9 conferred power of sale.

Issues

  1. Whether the Settled Land Act 1925 referred to in clause 9 of the appellants' Powers of Attorney is that of the United Kingdom.
  2. Whether the application of the Powers of Attorney to land situate in Uganda gave rise to a conflict of laws.
  3. Whether the Justices of Appeal erred by consulting Halsbury's Laws of England to establish the powers conferred by the Settled Land Act of the United Kingdom on a tenant for life.
  4. Whether the powers of sale conferred by the Settled Land Act of the United Kingdom on a tenant for life were applicable to the suit property.
  5. Whether the appellants were required to file a cross-appeal in the Court of Appeal to challenge the trial judge's finding on Exhibit P3.

Orders

  • Appeal dismissed.
  • Costs awarded to the respondent in this Court and in the two courts below.

Key headnotes

Construction of Documents — Powers of Attorney — Contra Proferentem Rule
An ambiguity in a document is construed against the party who drafted it; where the authors of a Power of Attorney refer to a statute without naming the country to which it belongs, that reference is construed against them and may be taken to be the law of the country in which they resided and executed the document.
Conflict of Laws — Lex Situs — Powers of Attorney over Land in Uganda
Powers granted to an agent over land situate in Uganda must be exercised in compliance with Ugandan law; no question of conflict of laws arises where none of the powers conferred conflicts with the laws of Uganda, a reference to foreign legislation serving only to describe the powers given to the agent rather than to import that foreign law.
Proof of Foreign Law — Admissibility of Legal Treatises
The contents of foreign law may be proved by production of a treatise commonly offered for sale under section 59(e) of the Evidence Act, an exception to section 36; works such as Halsbury's Laws of England are so notorious and reliable that courts may rely on them without formal proof.
Appeals — Cross-Appeal — Findings Not Challenged
A party who wishes to overturn an adverse finding of the trial court must challenge it by cross-appeal or clear submissions; a finding not so challenged remains standing, and an appellate court has no jurisdiction to pronounce upon it.

Legislation cited (6)

  • Evidence Act s.91
  • Evidence Act s.59(e)
  • Evidence Act s.36
  • 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.