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Kaumba v Dabule (Civil Appeal 3 of 2018)

Supreme Court · [2024] UGSC 43 · 2024 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second civil appeal from the Court of Appeal affirming a High Court judgment in a suit for removal of a caveat
Decision
Appeal dismissed; concurrent findings that the suit property did not form part of the deceased's estate upheld and the cancellation of the special certificate of title affirmed

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Holding

On a second appeal, the Supreme Court dismissed the appeal and upheld the concurrent findings that the suit property did not form part of the deceased's estate. Although registered on a special certificate of title, the deceased held only the legal estate as trustee for the respondent, her husband and the prior registered proprietor, who had given her a power of attorney merely to manage the property while he was in exile. The court found an implied or constructive trust, so on the deceased's death the legal title devolved to her legal representative for the respondent's benefit; the property was not being recovered from the estate, the removal-of-caveat suit was not time-barred, and the appellant had no beneficial interest supporting a caveat.

Facts

The respondent purchased the suit property (Plot 21 Kampala Road, 'Slow Boat') in 1976 and was registered as proprietor. Before fleeing into exile in 1979 he deposited the duplicate certificate of title with a bank and gave his wife, Jane Kogere Wiltshire, a power of attorney to manage his properties. While managing the property she reported the duplicate title lost and obtained a special certificate of title, becoming registered as proprietor in 1981. She died in 1986. The respondent later obtained letters of administration to her estate to rectify the register and restore his name. When the appellant, the deceased's biological son and the respondent's stepson, lodged a caveat as a beneficiary in 2008, the respondent sued in his personal capacity for removal of the caveat. The High Court found the property did not form part of the estate, ordered cancellation of the special certificate and vacation of the caveat; the Court of Appeal affirmed.

Issues

  1. Whether the suit property formed part of the estate of the deceased registered proprietor, or was held by her as trustee for the respondent.
  2. Whether the deceased was lawfully or correctly registered as proprietor on the special certificate of title.
  3. Whether the respondent, as administrator of the deceased's estate, was barred by approbation and reprobation from asserting personal ownership of the suit property.
  4. Whether cancellation of the special certificate of title was lawful where fraud was not pleaded, the registered proprietor was not sued for recovery of land, and the remedy was allegedly time-barred.
  5. Whether the appellant held a caveatable beneficial interest in the suit property.

Orders

  • The appeal is dismissed.
  • Two-thirds of the costs in the Supreme Court are awarded to the respondent.
  • The orders of the Court of Appeal, including the order as to costs, are affirmed.

Key headnotes

Registration of Titles — Power of Attorney — Donee Cannot Acquire Beneficial Ownership for Self
A donee of a power of attorney acts as agent of the donor and cannot use the power to acquire the donor's land for the donee's own benefit; registration obtained on the strength of such a power gives the donee only legal title held in trust for the donor.
Equity and Trusts — Implied and Constructive Trusts — Registered Proprietor as Trustee
Where a registered proprietor holds title without consideration and the circumstances show the property was entrusted for management on another's behalf, equity imposes an implied or constructive trust so that the registered proprietor holds the legal estate as trustee for the true beneficial owner.
Trusts — Devolution on Death of Trustee — Property Held in Trust Not Part of Estate
Property held by a deceased person as trustee does not form part of that person's estate; on the trustee's death the legal estate devolves on the personal representative who succeeds as trustee for the benefit of the beneficiary.
Limitation — Trust Property — No Limitation on Beneficiary's Action and Restoration of Legal Title
Under section 19(1) of the Limitation Act no period of limitation applies to a beneficiary's action to recover trust property; where a beneficial owner already in possession seeks only to have the legal title restored, the cancellation of an erroneous registration is not a recovery of land under section 176 of the Registration of Titles Act and is not time-barred.
Pleadings — Representative Capacity — Approbation and Reprobation
A plaintiff who sues in a representative capacity must plead it under Order 7 rules 4 and 9(2) of the Civil Procedure Rules; a party who sues in his personal capacity asserting his own title is not approbating and reprobating merely because he is also administrator of a related estate.
Registration of Titles — Conclusiveness of Title Subject to Trust and Illegality
Although a certificate of title is conclusive evidence of ownership, that conclusiveness does not protect a registration obtained without lawful transfer or by irregular process, and a court of equity may order cancellation to restore the true proprietor where the registered proprietor held only as trustee.

Legislation cited (46)

  • Registration of Titles Act s.46(4)
  • Registration of Titles Act s.59
  • Registration of Titles Act s.64
  • Registration of Titles Act s.70
  • Registration of Titles Act s.139(1)
  • Registration of Titles Act s.142
  • Registration of Titles Act s.144
  • Registration of Titles Act s.146
  • Registration of Titles Act s.147
  • Registration of Titles Act s.147(1)(b)
  • Registration of Titles Act s.148
  • Registration of Titles Act s.167
  • Registration of Titles Act s.176
  • Registration of Titles Act s.177
  • Registration of Documents Act s.14
  • Registration of Documents Act s.17
  • Succession Act s.2(a)
  • Succession Act s.25
  • Succession Act s.50(c)
  • Succession Act s.67
  • Succession Act s.180
  • Evidence Act s.41
  • Evidence Act s.63
  • Evidence Act s.64
  • Evidence Act s.67
  • Evidence Act s.68
  • Evidence Act s.75
  • Evidence Act s.76
  • Evidence Act s.114
  • Limitation Act s.5
  • Limitation Act s.19(1)
  • Land Act s.91
  • Trustees Act s.2
  • Trustees Act s.18(2)
  • Judicature Act s.11
  • Civil Procedure Rules Order 6 rules 1 & 7
  • Civil Procedure Rules Order 7 rule 4
  • Civil Procedure Rules Order 7 rules 6 & 7
  • Civil Procedure Rules Order 7 rule 9(2)
  • Constitution article 26
  • Constitution article 28
  • Constitution article 44(c)
  • Constitution article 79
  • Constitution article 132(2)
  • Constitution article 247(a)
  • Supreme Court Rules rule 2(2)

Cases cited (18)

  • Kampala Bottlers Ltd v Damanico (U) Ltd (1990-1994) EA 140
  • Jonah Senteza Kanyerezi v Chief Registrar of Titles (Miscellaneous Cause No. 919 of 1997)
  • Ismail Dabule v Georgia Pantelakis (Civil Appeal No. 2 of 1989)
  • Georgia Pantelakis v Jane Wiltshire Kogere (Civil Suit No. 64 of 1985)
  • Imperial Bank of Canada vs Beglay (1936) 2 All EA 367
  • Fredrick Zaabwe v Orient Bank Ltd (Civil Appeal No. 4 of 2006)
  • in Re Edwards (1958) Ch. 168 CA
  • Boyes v Gathure (1969) EA 385
  • Teja Singh v Isher Singh (1957) EA 654
  • Sanyu Lwanga Musoke v Yakobo Ntale Mayanja (Civil Appeal No. 59 of 1995)
  • Makula International Ltd v Cardinal Nsubuga [1982] HCB 1
  • Livingstone Sewanyana v Martin Aliker [1992] IV KALR 118
  • Turyatemba v Attorney General (Constitutional Petition No. 4 of 2006)
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Bryant Powis and Bryant vs La Banque Du Peuple (1893) AC 170
  • Lloyd vs Grace, Smith & Company [1912] AC 716
  • Percy vs Glasgow Corporation [1922] AC 299
  • Hussey vs Palmer [1972] 3 ALL ER 744
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