Mulewa & 14 Others v Western Uganda Importers & Distributors Limited & Another (Civil Appeal 2 of 2020)

Supreme Court · [2020] UGSC 58 · 2020 Appeal Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Second appeal to the Supreme Court from a decision of the Court of Appeal which, as first appellate court, upheld the High Court's dismissal of the appellants' civil suit over land.

Decision

Appeal dismissed; the concurrent findings of the High Court and Court of Appeal that the appellants are trespassers with no proven interest in the suit land stand.

The full judgment

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Holding

The Supreme Court, sitting on second appeal, dismissed the appeal. It held that the consent judgment between the appellants and the 1st respondent was rightly set aside because it was tainted by illegality on its face: counsel signed for the 1st respondent without authority, and the 2nd respondent, though a party to the suit, was excluded. As a second appellate court it would not re-evaluate the whole evidence absent a failure by the first appellate court, and it found none. The concurrent findings that the appellants failed to prove customary ownership and failed to prove fraud against the registered proprietor to the required standard were upheld.

Facts

The appellants sued the respondents claiming to be customary owners of land at Kirembe/Kamaiba in Kasese District, occupied since the 1940s. They sought a declaration that the 1st respondent's leasehold title (registered in 1983 over Busongora Block 13) was obtained by fraud and was invalid, that the 2nd respondent who purchased part of the land in 2002 was not a bona fide purchaser, and consequential orders of eviction, damages, mesne profits and an injunction. The 1st respondent counterclaimed as registered proprietor. A consent judgment purportedly entered between the appellants and the 1st respondent in April 2015 was later recalled and set aside on the ground that counsel signed without authority and the 2nd respondent, a party, had been excluded. The High Court dismissed the suit, finding the appellants failed to prove any interest or fraud, and allowed the 1st respondent's counterclaim. The Court of Appeal upheld that decision.

Issues

Whether the lower courts erred in upholding the setting aside of the consent judgment entered between the appellants and the 1st respondent.
Whether the Court of Appeal erred in disregarding the mediation consent entered before the Principal Judge.
Whether the Court of Appeal failed to re-evaluate the evidence and erred in upholding the trial judge's finding that the appellants failed to prove their customary tenancy.
Whether the 2nd respondent purchased the suit land without notice of the appellants' alleged interests.
Whether the appellants proved ownership of the suit land prior to the registration of the 1st respondent.
Whether the visit to the locus in quo was properly conducted.

Orders

Appeal dismissed.
Costs to the respondents in this Court and in the courts below.

Key headnotes

Civil Procedure — Consent Judgments — Setting Aside for Illegality

A consent judgment that is tainted by illegality on its face — such as being signed by counsel lacking authority to represent a party, or executed without the involvement of a party to the suit — may be recalled and set aside, and such illegality overrides questions of pleadings.

Civil Procedure — Second Appeals — Duty of the Second Appellate Court

On a second appeal the Supreme Court is not required to re-evaluate the whole evidence and will interfere with the conclusions of the first appellate court only where that court misapplied or failed to apply the principles governing re-evaluation of evidence.

Land & Property — Registered Title — Fraud — Standard of Proof

Allegations of fraud against a registered proprietor must be proved strictly to a standard higher than the balance of probabilities ordinarily applied in civil matters; irregularities in the leasing and registration process do not by themselves establish fraud.

Land & Property — Registration of Titles Act — Defeating Unregistered Interests

Under sections 64 and 77 of the Registration of Titles Act a registered proprietor holds the land except in the case of fraud, and a person who procures registration in order to defeat the unregistered interests of others is guilty of fraud; the claimant alleging such fraud bears the burden of proving it.

Land & Property — Customary Tenure — Proof of Interest

A claimant asserting a customary interest in land must prove how and when the interest was acquired and must demonstrate occupation, including at the locus in quo; a failure to establish these matters defeats the claim of customary ownership.

Legislation cited (6)

Registration of Titles Act s.64(1)
Registration of Titles Act s.77
Civil Procedure Act s.98
Companies Act s.53(1)
Companies Act s.50(1)
Evidence Act Cap 6

Cases cited (5)

Attorney General v James Mark Kamoga & Another (Supreme Court Civil Appeal No. 8 of 2004)
Kampala District Land Board v Vanansio Babweyaka & Others (Supreme Court Civil Appeal No. 2 of 2007)
Banco Arabe Espanol v Bank of Uganda (Supreme Court Civil Appeal No. 8 of 1999)
Kifamunte Henry v Uganda (Supreme Court Criminal Appeal No. 10 of 1997)
Fredrick Zaabwe v Orient Bank & 5 Others (Supreme Court Civil Appeal No. 4 of 2006)

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