Mugabi v Attorney General (Civil Appeal 12 of 2017)

Supreme Court · [2018] UGSC 70 · 2018 Appeal Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Second civil appeal from the Court of Appeal

Decision

Appeal dismissed; the decisions of the Court of Appeal and High Court stand.

The full judgment

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Holding

Dismissing the second appeal, the Court held that although the Court of Appeal found the Registrar of Titles breached his statutory duty by removing the appellant's caveat and registering the transfer without notice, the appellant had no cause of action or entitlement to compensation under the Registration of Titles Act: the evidence showed he had defaulted on the secured loan and sold the suit property, retaining no caveatable interest. Fraud, though pleaded, was not strictly proved and could not be discerned merely from scrutiny of evidence. The Court of Appeal's reliance on the unpleaded in pari delicto principle was an error infringing the right to fair hearing, but that single successful ground could not save the appeal.

Facts

The appellant was the registered proprietor of mailo land at Kibuga Block 29 Plot 112, Mulago Hill, developed with two semi-detached houses and boys' quarters. In August 2001 he and James Barya borrowed UGX 14,700,000 from Charles Ekemu, depositing the certificate of title and blank signed transfer forms as security, on terms providing for sale of the property on default after valuation. The appellant later lodged a caveat to protect his interest. After the borrowers defaulted, the property was sold by private treaty to Wycliffe Birungi without the agreed valuation and without notice to remove the caveat, and was later resold to Radio Paidha. The Registrar of Titles removed the caveat and registered the transfer to Birungi without notifying the appellant. The appellant's claim to the Registrar for compensation for want of notice was declined, and he sued the Attorney General in vicarious liability. The High Court upheld the Registrar's decision and the Court of Appeal dismissed his appeal, leading to this second appeal.

Issues

Whether the Court of Appeal erred in not allowing the appeal after finding the Registrar of Titles breached his statutory duty under section 140 of the Registration of Titles Act to notify the caveator before removing the caveat.
Whether the Court of Appeal misdirected itself by deciding the appeal on the unpleaded principle of in pari delicto, which the parties were not given a chance to address.
Whether the appellant had a cause of action against the respondent in vicarious liability and was entitled to compensation under the Registration of Titles Act.
Whether fraud on the part of the Registrar of Titles was established on the evidence.

Orders

Appeal dismissed for lack of merit.
Each party to bear its own costs.

Key headnotes

Civil Procedure — Pleadings — Decision founded on unpleaded issue raised by the court

An appellate court errs in law where it founds its decision or relief on a point or principle that was neither pleaded nor placed before the trial court, and on which the parties were given no opportunity to be heard; such a course infringes the right to fair hearing.

Land & Property — Registration of Titles — Caveats — Duty to notify caveator before removal

The Registrar of Titles breaches his statutory duty where he removes a caveat and registers a transfer of the land without first giving the caveator the notice required under the Registration of Titles Act.

Land & Property — Registration of Titles — Compensation under section 178 — Cause of action

A person who has himself defaulted and sold the suit land, retaining no caveatable interest, has no cause of action and cannot claim compensation for deprivation of land under section 178 of the Registration of Titles Act, notwithstanding a procedural breach by the Registrar.

Evidence — Fraud — Requirement of specific pleading and strict proof

Fraud must be specifically pleaded and strictly proved; it cannot be established merely by discerning it on a close scrutiny of all the evidence adduced.

Civil Procedure — Second appeal — Role of the Supreme Court

On a second appeal the Supreme Court is not required to re-evaluate the evidence as a first appellate court would; it is sufficient to decide whether the first appellate court applied the relevant principles properly.

Legislation cited (14)

Registration of Titles Act, Cap 230 s.140(1) and (2)
Registration of Titles Act, Cap 230 s.141
Registration of Titles Act, Cap 230 s.145
Registration of Titles Act, Cap 230 s.168
Registration of Titles Act, Cap 230 s.178
Registration of Titles Act, Cap 230 s.59
Registration of Titles Act, Cap 230 s.139
Registration of Titles Act, Cap 230 s.99
Registration of Titles Act, Cap 230 s.92
Registration of Titles Act, Cap 230 s.14
Registration of Titles Act, Cap 230 s.186
Registration of Titles Act, Cap 230 s.191
Registration of Titles Act, Cap 230 s.193
Constitution of Uganda Article 44(c)

Cases cited (11)

Masembe v Sugar Corporation and Another (Civil Appeal No. 1 of 2000)
Kifamunte Henry v Uganda (1997) EA 72
Scott v Brown [1892] 2 QB 724
Taylor v Chester (1869) LR 4 QB 309
Makula International Ltd v His Eminence Cardinal Nsubuga & Anor (Civil Appeal No. 4 of 1981)
Fang Min v Belex Tours & Travel Ltd (Civil Appeal No. 6 of 2013)
Interfreight Forwarders (U) Ltd v East Africa Development Bank (Civil Appeal No. 33 of 1992)
Oriental Insurance Brokers v Transocean (Civil Appeal No. 55 of 1995)
Attorney General v Paul Ssemogerere and Zachary Olum (Constitutional Appeal No. 3 of 2004)
Frederick Zaabwe v Orient Bank and 2 Others (Civil Appeal No. 4 of 2006)
Farm International Ltd & Ahmed Farah v Mohamed Hamid Farih (Civil Appeal No. 16 of 1993)

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