Wakilii

Kalule v Nassozi and Another (Civil Appeal No. 29 of 2014)

Court of Appeal · [2017] UGCA 142 · 2017 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Second appeal from a High Court decision that had reversed a Grade One Magistrate's Court judgment in a land dispute
Decision
Appeal allowed; High Court judgment set aside; appellant declared owner and to be registered as proprietor of the disputed land

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal held that the deceased father had given the disputed two acres of registered land to the appellant as a gift inter vivos in 1945, together with the certificate of title, and had done everything necessary to vest ownership in him. Applying equitable principles and Art.126(2)(e) of the Constitution, the Court found the appellant acquired an equitable interest good against the world and ranked pari passu with a purchaser under s.167 of the Registration of Titles Act. The land therefore did not form part of the deceased's estate. The first appellate judge had wrongly required signed transfer forms and failed to re-evaluate the evidence. The appeal was allowed and the appellant ordered to be registered as proprietor.

Outcome

Appeal allowed; High Court judgment set aside; appellant declared owner and to be registered as proprietor of the disputed land

Facts

The appellant and second respondent are brothers, sons of the late Daudi Banalekaki, who was the first respondent's husband and the registered proprietor of two pieces of land at Kamuli, Kireka, Kyadondo. In 1945, when the appellant was seven years old, his father gave him two acres comprised in Block 230 Plot 35, moved him there with his grandmother, and handed him the certificate of title. The appellant, born outside wedlock, lived on and used the land continuously from 1945, while his father lived on separate land. The father died intestate in 1978, and administration vested in the Administrator General. The appellant continued using the land undisturbed until 1996, when he sought to transfer it into his name and discovered the Administrator General had distributed it as part of the estate after the respondents objected. He sued. The trial magistrate found for him, but the High Court reversed, holding a verbal gift of registered land was not recognised absent executed transfer forms.

Issues

  1. Whether the appellant acquired an equitable interest in the disputed registered land by virtue of a gift inter vivos from his deceased father.
  2. Whether the first appellate judge failed to properly re-evaluate the evidence as required of a first appellate court.
  3. Whether the disputed land formed part of the deceased's intestate estate.
  4. Whether the appellate judge erred in awarding general damages and costs to the respondents.

Orders

  • The disputed land, Kyadondo Block 230 Plot 35 at Kamuli, was given to the appellant George William Kalule by his father Banalekaki as a gift inter vivos and does not form part of the deceased's estate.
  • The appellant is entitled to be entered in the Register as proprietor of the said land.
  • The Commissioner for Land Registration is ordered to enter the name of the appellant on the register of titles as proprietor of Kyadondo Block 230 Plot 35 at Kamuli.
  • Each party to bear their own costs in this Court and the courts below.

Rules and key headnotes

Gifts Inter Vivos — Registered Land — Completion Where Donor Has Done All Within His Power
Where the donor of registered land has done everything within his power according to the nature of the property to vest the interest in the donee, including delivering the certificate of title and placing the donee in possession, the gift is complete in equity and will not fail merely because a transfer has not been executed or the donee registered as proprietor.
Equitable Interest — Vesting Order — Right of Donee to Registration under Registration of Titles Act s.167
A person who has acquired an equitable interest in registered land as a gift inter vivos but is unable to secure a transfer because the donor has died ranks pari passu with a purchaser and may apply under section 167 of the Registration of Titles Act to have the land vested in his name.
Intestate Estate — Property Disposed of Inter Vivos Excluded from Estate
Land that a deceased gave away as a completed gift inter vivos during his lifetime does not form part of his intestate estate and cannot lawfully be distributed by the Administrator General as part of that estate.
Second Appeal — Duty to Re-evaluate Evidence Where First Appellate Court Failed to Do So
Although a second appellate court is generally precluded from questioning findings of fact where supported by evidence, it is duty bound to reappraise the evidence itself where the first appellate court failed to properly re-evaluate the evidence on record.
Statutory Interpretation — Registration of Titles Act s.92 — Application to Post-Mortem Transfer of Inter Vivos Gift
Section 92 of the Registration of Titles Act does not govern a situation where land given as a gift inter vivos is required to be transferred to the donee after the death of the donor, and should not be interpreted to deny the donee registration in such circumstances.

Legislation cited (7)

Cases cited (9)

  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • R. Mohammed All Hasham vs. R. (1941) 8 E.A.C.A.93
  • Bogere Moses v Uganda (Criminal Appeal No. 1 of 1997)
  • In Re Fry Deceased [1946] CH.312
  • Midland Bank Executor and Trustee Company Ltd v Rose [1949] CH 78
  • Re Rose: Rose v Inland Evenue Commissioners [1952] CH 499
  • Pennington v Waine [2002] 1 WLR 2075
  • Macedo v Beatrice Stround [1922] AC 330
  • Mascall v Mascall [1984] 50 P and CR 119

Full judgment

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

Kalule v Nassozi and Another (Civil Appeal No. 29 of 2014) [2017] UGCA 142 (15 September 2017)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.