Wakilii

Kithende Kalibogha and 2 Others v Eleanora Wilsmer (Civil Appeal No. 03 of 2019)

Supreme Court · [2020] UGSC 64 · 2020 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second civil appeal to the Supreme Court from a judgment of the Court of Appeal which dismissed the appellants' appeal against a High Court judgment.
Decision
Appeal dismissed; judgments and orders of the Court of Appeal and the High Court upheld.

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Holding

On a second appeal, the Supreme Court held it could not disturb concurrent findings of fact supported by evidence. The respondent validly purchased Plot 3 Rubaga Road from an administrator of the vendor's estate and donated it to an NGO; the 1st and 2nd appellants fraudulently incorporated the 3rd appellant and transferred the donated property into its names without her consent. As the purchaser and donor whose interest was interfered with, she had locus standi, and other donors' existence did not defeat it. The limitation defence failed because fraud postpones time, recovery of land carries a twelve-year period, and injunctions are exempt from the six-year bar. The forgery and damages findings were upheld. Appeal dismissed with costs.

Facts

The 1st appellant met the respondent in Europe and signed a memorandum of understanding with the 1st and 2nd appellants for the construction of hostels for needy students in Kasese under the Kithende Project (Kithop). An NGO, Kithende Hostels Project, was registered to carry out these charitable purposes, with the 1st and 2nd appellants as chairman and general secretary. The respondent financed the project with donor funds. She purchased Plot 3 Rubaga Road in 1994 from an administrator of the vendor's estate and donated it to the NGO on conditions, without signing transfer forms. In 1996 the 1st and 2nd appellants incorporated the 3rd appellant, a company limited by guarantee, and transferred the donated property into its names without the respondent's knowledge or consent. The respondent, through her attorneys, sued for recovery of the land and buildings, a declaration that the suit properties did not belong to the appellants, a permanent injunction, an account, and damages. The High Court found for the respondent and the Court of Appeal dismissed the appellants' appeal, leading to this second appeal.

Issues

  1. Whether the respondent acquired Plot 3 Rubaga Road from a party without title 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.
  4. Whether the respondent's suit was barred by limitation.
  5. Whether the respondent was a member of the NGO's executive committee.
  6. Whether the respondent, as a foreigner, could own or donate the customary land at Rwentutu and whether the appointment of her attorneys as trustees was lawful.
  7. Whether 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

  • The appeal is dismissed.
  • Costs of the appeal in the Supreme Court and the courts below awarded to the respondent.

Key headnotes

Civil Procedure — Second Appeals — Concurrent Findings of Fact
On a second appeal the court is precluded from questioning the findings of fact of the lower courts provided there was evidence to support them; it may interfere only where it considers there was no evidence to support the findings, that being a question of law.
Civil Procedure — Appeals — Grounds Not Raised in the Memorandum of Appeal
An appellate court cannot be faulted for failing to determine an issue that was not raised as a ground in the memorandum of appeal, but the court may exercise its inherent powers to determine a matter of law that it cannot overlook.
Land & Property — Sale of Land — Capacity of Vendor
A purchaser who acquires land from an administrator of the registered owner's estate does not acquire from a wrong party, and the nemo dat principle is not infringed.
Evidence — Fraud — Pleading and Standard of Proof
Fraud must be specifically pleaded and strictly proved to a standard higher than the balance of probabilities but below proof beyond reasonable doubt; it may be established by documentary and circumstantial evidence on the record.
Civil Procedure — Locus Standi — Interference with Proprietary Interest
A person whose direct proprietary interest in land has been adversely affected has locus standi to sue, and a donor does not lose standing to enforce the conditions of a donation merely because other donors may also have contributed.
Civil Procedure — Limitation — Postponement for Fraud and Recovery of Land
Under section 25 of the Limitation Act the limitation period is postponed where the action is based on fraud, and time runs from discovery of the fraud; actions for recovery of land carry a twelve-year period and claims for a permanent injunction are exempt from the six-year bar.
Damages & Quantum — Appellate Interference with Award
An appellate court will not interfere with a trial court's award of damages unless the award is based on an incorrect principle or is manifestly too high or too low.

Legislation cited (13)

  • Registration of Titles Act Cap. 230 s.92
  • Registration of Titles Act Cap. 230 s.146
  • Civil Procedure Rules Order 1 rule 8
  • Limitation Act Cap. 80 s.3(1)
  • Limitation Act Cap. 80 s.3(6)
  • Limitation Act Cap. 80 s.25
  • 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 r.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
  • 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)
  • Musisi Dirisa v Sietco (Civil Appeal No. 24 of 1993)
  • 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 v Copping [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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