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Kithende & 2 Ors v Wilsmer[suing through her lawyer attorneys muhindo & Bwambale [2020] UGSC 50

Supreme Court · 2020 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second civil appeal from a Court of Appeal decision dismissing an appeal against a High Court judgment in a suit for recovery of land and buildings purchased with donor funds
Decision
Appeal dismissed; judgments of the Court of Appeal and High Court in favour of the respondent upheld

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Holding

On a second appeal, the Supreme Court dismissed the appellants' appeal. It held that the respondent had purchased Plot 3 Rubaga Road from the administrator of the registered owner's estate, not a wrong party, and donated it to an NGO; the 1st and 2nd appellants fraudulently incorporated the 3rd appellant company and transferred the property into its names without the donor's consent. The Court upheld concurrent findings of fact, confirmed the respondent's locus standi as the donor and purchaser, held the suit was not time-barred because fraud postpones limitation and recovery of land carries a 12-year period, and declined to disturb the damages award. Costs were awarded to the respondent throughout.

Facts

The 1st appellant met the respondent in Europe and a memorandum of understanding was signed between the 1st and 2nd appellants and the respondent to construct hostels for needy students in Kasese under the Kithende Project (KITHOP). An NGO, Kithende Hostels Project, was registered in 1995, with the 1st and 2nd appellants as chairman and general secretary. The respondent purchased Plot 3 Rubaga Road in September 1994 from Sherali Bandali Jaffer (an administrator of the registered owner's estate) for USD 50,000 and donated it to the NGO in November 1995, retaining proprietary conditions. The 1st and 2nd appellants instead incorporated the 3rd appellant as a company limited by guarantee in January 1996 and, without the respondent's knowledge or consent, transferred the donated property into the 3rd appellant's names in February 1996. They also acquired land at Rwentutu using donor funds. The respondent, through her attorneys, sued in 2007 for recovery of the properties, a declaration, a permanent injunction, an account, and damages, alleging the funds were misappropriated for the appellants' personal benefit.

Issues

  1. Whether the Court of Appeal failed to properly evaluate the evidence concerning the respondent's purchase of Plot 3 Rubaga Road, and whether the respondent acquired the land from a party with no right to sell.
  2. Whether Plot 3 Rubaga Road was fraudulently transferred into the names of the 3rd appellant.
  3. Whether the respondent had locus standi to sue the appellants.
  4. Whether the respondent's suit was barred by limitation.
  5. Whether the respondent could lawfully hold the position of Coordinator/Advisor of the NGO.
  6. Whether the respondent, as a foreigner, could own customary land and whether appointing her attorneys as trustees of the Rwentutu land was lawful.
  7. Whether the burden of proof was wrongly shifted to the appellants and whether the special and general damages were proved.
  8. Whether the 1st appellant forged the 2nd appellant's signature on the memorandum and articles of association of the 3rd appellant.

Orders

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

Key headnotes

Civil Procedure — Appeals — Grounds not raised in the memorandum of appeal — Rule 102 Court of Appeal Rules
An appellate court cannot be faulted for failing to pronounce itself on an issue that was not raised as a ground in the memorandum of appeal; however, a second appellate court may invoke its inherent powers to determine such an issue where it is a matter of law that the court cannot overlook.
Civil Procedure — Second Appeal — Concurrent findings of fact
A second appellate court ought to be slow to interfere where concurrent findings of fact have been made by the trial court and confirmed by the first appellate court, and may alter them only where there is strong evidence on record showing the findings are manifestly erroneous.
Evidence — Fraud — Pleading and standard of proof
Fraud must be specifically pleaded and strictly proved and cannot be left to be inferred from the facts; the standard is higher than the balance of probabilities but below proof beyond reasonable doubt.
Civil Procedure — Locus Standi — Direct interest in the subject matter
A person who has a direct interest in a matter has locus standi to bring an action where that interest is being adversely affected, and the existence of other contributors does not deprive a donor and purchaser of land of standing to question how her donation was handled.
Civil Procedure — Limitation — Postponement for fraud and recovery of land
Where an action is based on the fraud of the defendant, the limitation period is postponed under section 25 of the Limitation Act and time runs from when the fraud is discovered; actions for recovery of land carry a twelve-year limitation period and claims for a permanent injunction are exempt from the six-year period.
Land & Property — Sale of land — Capacity of vendor — Purchase from an administrator of an estate
A purchaser who buys land from a duly appointed administrator of the deceased registered owner's estate does not acquire the land from a wrong party, and the principle nemo dat quod non habet does not invalidate such a transaction.
Damages & Quantum — Appellate interference with awards of damages
An appellate court should not interfere with an award of damages made by a trial court unless the award is based on an incorrect principle or is manifestly too low or too high.

Legislation cited (13)

  • Registration of Titles Act Cap. 230 s.92
  • Registration of Titles Act Cap. 230 s.146
  • Limitation Act Cap. 80 s.3(1)
  • Limitation Act Cap. 80 s.3(6)
  • Limitation Act Cap. 80 s.25
  • Civil Procedure Rules Order 1 rule 8
  • Non-Governmental Organizations Registration Regulations SI 113-1 reg.13(c)
  • Constitution of Uganda Article 237(c)
  • Land Act s.40
  • Evidence Act Cap. 6 s.57
  • Trustees Incorporation Act Cap. 165
  • Judicature (Court of Appeal Rules) Directions SI 13-10 Rule 102
  • Non-Governmental Organizations Act

Cases cited (14)

  • Molly Turinawe and Others v Eng. Ephraim Turinawe (Civil Appeal No. 10 of 2018)
  • Bogere Moses and Another v Uganda (Criminal Appeal No. 1 of 1997)
  • Davy v Garrett (1878) 7 Ch D 473
  • Musisi Dirisa v Sietco (Civil Appeal No. 24 of 1993)
  • John Sanyu Katuramu and 49 Others v Attorney General (Constitutional Application No. 1 of 2016)
  • Mugume Benjamin and 5 Others v Attorney General and Another (Constitutional Application No. 1 of 2015)
  • General Parts (U) Limited and Haruna Ssemakula v Non-Performing Assets Recovery Trust (NPART) (Civil Appeal No. 09 of 2005)
  • Gabula Bright Africa v Uganda (Criminal Appeal No. 19 of 1993)
  • Tropical Africa Bank Ltd v Grace Were Muhwana (Civil Appeal No. 04 of 2011)
  • Phillips Vs. Coping, (1934) 1 KB 15
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Hilda Wilson Namusoke and 3 Others v Owalla's Home Investment Trust (E.A Ltd) and Commissioner Land Registration (Civil Appeal No. 15 of 2017)
  • Grace Asaba v Grace Kagaiga (Civil Appeal No. 14 of 2014)
  • Administrator General v Bwanika James and Others (Civil Suit No. 7 of 2003)
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