Wakilii

Horizon Coaches Ltd v Edward Rurangaranga & another (Civil Appeal 14 of 2009)

Supreme Court · [2011] UGSC 2 · 2011 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second appeal from the Court of Appeal confirming a High Court judgment in a land dispute
Decision
Appeal dismissed; judgment, orders and damages of the High Court (as confirmed by the Court of Appeal) upheld

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Holding

The Supreme Court dismissed the second appeal. Lack of cause of action, being a question of mixed law and fact, could not be raised for the first time on appeal; in any event the first respondent had a cause of action by virtue of an unexpired lease. Procuring registration of a certificate of title to defeat an unregistered interest amounts to fraud, and the concurrent findings of fraud against the appellant were upheld. The first respondent, holding a subsisting lease, was a tenant by occupancy protected by Article 237(8) of the Constitution and section 31 of the Land Act. The orders cancelling the title, returning the land and awarding damages were confirmed.

Facts

Uganda Transport Company became registered proprietor of Plots 24-30 Mbaguta Road for a bus depot. The adjoining Plots 32-40, owned by the Ankole District Administration (later Mbarara Municipal Council) and used as a public bus station, were held under a statutory lease; in 1992 the council subleased space on Plots 32-40 to the first respondent for 20 years, who developed it. Following transfers of Plots 24-30 from UTC to Mukwano Enterprises and then to the appellant, on 26 October 1995 the suit land (Plots 32-40) was added to the appellant's certificate of title under the guise of correcting a 40-year-old error, and the appellant was registered as proprietor of the enlarged parcel. In November 1995 the appellant evicted the respondents and destroyed the first respondent's developments and stock. Mukwano Enterprises denied selling Plots 32-40 to the appellant. The respondents sued for recovery of the land, damages and costs, alleging fraudulent inclusion of the plots through connivance with lands officials.

Issues

  1. Whether the issue of lack of cause of action could be raised for the first time on appeal.
  2. Whether the appellant obtained registration of the suit land by fraud.
  3. Whether the remedies granted to the respondents by the trial court were properly confirmed.

Orders

  • The preliminary objections are overruled.
  • The appeal is dismissed.
  • Costs of this appeal and of the courts below awarded to the respondents.

Key headnotes

Civil Procedure — Cause of Action — Raising the point for the first time on appeal
Lack of cause of action is a question of mixed law and fact that must be raised at the earliest opportunity in the pleadings and canvassed at trial, and cannot ordinarily be raised for the first time on appeal.
Land & Property — Registration of Title — Fraud — Defeating an unregistered interest
Procuring registration of a certificate of title in order to defeat an existing unregistered interest in land amounts to fraud, and a proprietor who participates in such fraud cannot rely on the protection of a bona fide purchaser for value without notice.
Land & Property — Statutory Leases — Tenants in Occupancy — Protection after abolition of statutory leases
The abolition of statutory leases to urban authorities by Article 285 of the Constitution did not extinguish the rights of tenants in occupancy; a tenant holding a subsisting lease is protected as a tenant by occupancy under Article 237(8) of the Constitution and section 31 of the Land Act, whether characterised as a lawful or bona fide occupant.
Land & Property — First Appellate Court — Concurrent findings of fact on fraud
Where two lower courts make concurrent findings of fraud based on agreed and unchallenged evidence, a second appellate court will not disturb those findings absent any challenge to the underlying evidence.

Legislation cited (11)

  • Constitution of Uganda 1995 art.237(8)
  • Constitution of Uganda 1995 art.285
  • Land Act Cap 227 s.29
  • Land Act Cap 227 s.29(4)
  • Land Act Cap 227 s.31
  • Land Act Cap 227 s.95(4)
  • Constitution (Consequential Provisions) Act Cap 1 s.2
  • Supreme Court Rules r.14
  • Supreme Court Rules r.83
  • Supreme Court Rules r.83(3)
  • Supreme Court Rules r.98(b)

Cases cited (11)

  • Christine Bitarabeho v Edmund Kakonge (Supreme Court Civil Appeal No. 4 of 2000)
  • R vs Secretary of State for Social Services (1989) 1 ALL ER 1047
  • Kenya Commercial Bank Ltd vs Osebe (1976 - 1985) EA 205
  • Estate Shamfi Visram vs Bhati 1965 EA 789
  • Porbhubhau Morarj vs Jaghabhai Mororji (1958) EA 277
  • Tanganyika Farmers vs Nyamwezi Development Coop Ltd (1960 EA 620
  • Alwo Abdulahman Sagatah vs Abed Ali (1961) EA 767
  • Derran vs Harid as (1949) 16 EACA 35
  • Kampala District Land Board and Another vs National Housing and Construction Corporation [2005] EA 69
  • Figueired Vs Moorings Hotel (1960) EA 26
  • Grosvenor Vs Rogan Kamper (1974) EA 446
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.