Bamugye v Tropical Africa Bank Limited (Civil Appeal No 48 of 2007)

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

On first appeal, the Court of Appeal held that the power of attorney relied upon by the trial Judge (Exh. P9) related to a different property (Block 265, Plot 77) and the power of attorney concerning the suit property (Block 20, Plot 254) was never produced on the record. As documents must be proved by primary evidence under the Evidence Act, the absence of the relevant instrument was fatal to the respondent's claim that it held the suit property as security. The Court found no valid legal mortgage was created over the suit property by the appellant and that liability remained with the mortgagor company. The appeal succeeded.

Outcome

Appeal allowed; High Court judgment set aside and respondent directed to return the appellant's title free of mortgage or pay its current market value.

Facts

The respondent bank sued M/s Absimina Enterprises Ltd and two directors, including the appellant, for recovery of Ug. Shs. 218,981,290 arising from an overdraft facility. The appellant was sued as a director and signatory to the company account. He set aside a summary decree entered against him, filed a defence denying being a director or signatory, and counterclaimed for the return of his title to Kibuga Block 20, Plot 254 (Busega), which the bank held as security. The appellant alleged he had given his title to George Mayanja, who wrongly mortgaged it to the bank for the company's loan. The bank contended the appellant had voluntarily executed a power of attorney and acknowledged the debt. The trial Judge held the appellant was not personally liable but had lawfully mortgaged his land via a power of attorney (Exh. P9) and could not recover the property. On appeal, the Court found the power of attorney relied upon related to a different property and the relevant instrument for the suit property was never on the record.

Issues

1. Whether the land comprised in Kibuga Block 20, Plot 254 was lawfully mortgaged to the respondent by the appellant.
2. Whether the trial Judge properly evaluated the evidence in concluding that the appellant mortgaged the property by a Power of Attorney.

Orders

• Appeal allowed.
• Judgment and orders of the High Court set aside.
• Respondent ordered to return the appellant's title free of the mortgage, or if sold, to pay the current market value of the property.
• Costs awarded to the appellant in this Court and the Court below.

Rules and key headnotes

Legislation cited (11)

• Registration of Titles Act Cap 230 s.114
• Registration of Titles Act Cap 230 s.141
• Registration of Titles Act Cap 230 s.146(1)
• Registration of Titles Act Cap 230 s.148
• Registration of Titles Act Cap 230 s.154
• Registration of Titles Act Cap 230 s.156
• Evidence Act Cap 6 s.61
• Evidence Act Cap 6 s.63
• Evidence Act Cap 6 s.64
• Judicature (Court of Appeal Rules) Directions SI 13-10 r.30(1)
• Constitution of Uganda Article 134(2)

Cases cited (9)

• General Parts (U) Ltd v NPART (Supreme Court Civil Appeal No. 5 of 1999)
• Fredrick Zaabwe v Orient Bank Limited and 5 Others (Supreme Court Civil Appeal No. 4 of 2006)
• Olinda De Souza Figueiredo v Kasamali Nanji [1962] EA 756
• Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
• Pandya v Republic [1957] EA 336
• Bogere Moses and Another v Uganda (Supreme Court Criminal Application No. 1 of 1997)
• Kakooza v Uganda (Criminal Appeal No. 3 of 2008)
• Mugema Peter v Mudiobole Abedi (Election Petition Appeal No. 30 of 2011)
• Bryant, Powis and Bryant Ltd v La Banque du Peuple [1893] AC 170

The original judgment as reported. Read the original PDF before relying on any passage.