Kassam and Others v Kassam and Another (Civil Application 24 of 2008) [2009] UGSC 41 (22 October 2009)

Full Case Text

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## REPUBLIC OF UGANDA

## IN THE SUPREME COURT OF UGANDA **AT MENGO**

#### **CORAM:** ODOKI, CJ., TSEKOOKO, KANYEIHAMBA, **KATUREEBE AND OKELLO, JJ. SC.**

# **CIVIL APPLICATION NO. 24 OF 2008**

### **BETWEEN**

- $1.$ **MUMTAZ KASSAM** - $2.$ MOSHIN KASSAM (AS ADMINISTRATOR .......: APPLICANTS OF THE ESTATE OF THE LATE SHERALI KASSAM

#### AND

1. **EBRAHIM KASSAM** $2.$ **AKILA KASSAM :::::: RESPONDENTS**

[Application arising from the decision of the Court (ODOKI, CJ., TSEKOOKO, MULENGA, KANYEIHAMBA, AND

KATUREEBE, JJ. SC.) DATED 11th November, 2008 in Supreme Court Civil Appeal No.10 of 2006]

## **RULING OF THE COURT**

Mumtaz Kassam (1stapplicant) and Moshin Kassam (2nd applicant) instituted a notice of motion under Articles $126(2)(e)$ , $131(1)$ and 14(1) of the Constitution; sections 7 and 39 of the Judicature Act

$\mathbf{1}$

and Rules 2(2), 35 and 42 of the Rules of this court. By the notice, the applicants pray for two main orders, namely -

I . ........that........ Court .....recalls its judgment dated llth

2 November, 2008, so as to alter it and /or correct errors in it. that........... Court alters its findings that effecting transfer in August, 1995 was clear evidence of fraud.

We do not appreciate the relevance of the provisions of the Constitution and of the Judicature Act quoted in the motion. In our opinion the law under which this type of application can be entertained by this Court is in Rules 35(l) and or Rule 2 (2) of the Rules of this Court: See Non-performing Assets Recovery Trust Vs General Parts (U) Ltd (Supreme Court Civil Application No.l0 of 2000) cited by the applicants. Counsel for the applicants recognized this and that is why in their written arguments they emphasize that we should recall and correct our judgment under the former rule or in the altemative we could exercise our inherent power under the latter rule.

The six grounds in support ofthe application are couched thus:

That this Honourable Court made an accidental slip to the effect that the effecting in August 1995 when the (1" I

Applicant) was aware of the cancellation of the Power of Attorney in September 1994 and when the ownership of the same properties were the Central issue in a court case is clear evidence offraud.

- 2 That the disputed findings offact made by this Honourable Court would have been dffirent d certain matters had been drawn to their direct attention during the hearing. - 3 That the disputed findings of law made by the Honourable Court would have been dffirent d Counsel for the (1" Applicant) had addressed the Court regarding the said findings. - That Court was misled to overlook thefact that the Powers of Attorney were not registered and that the (l't Applicant) acted honestly under the mistaken belief that she was lawfully authorized to transfer the property. 4 - 5. That through accidental slip or omissions, this Honourable Court made erroneous findings of fact which are not borne out by the Court Record.

# 6. That it is just and equitable that the finding of the court with regard tofraud be altered.

The first applicant swore an affidavit in support of the motion. In reply a Mr. Joseph Luswata, a partner in the firm of Sebalu & Lule, Advocates, swore an affidavit in opposition to the application.

Parties lodged written statements of their arguments through their respective counsel, Messrs. Kampala Associated Advocates for the applicants and Messrs. Sebalu & Lule, Advocates, for the respondents.

The first four grounds of the notice of motion are somewhat imprecise and cover a wide scope. Because of the wording in which those grounds are couched, it is necessary to give the full background to the application.

We should mention now that Justice J. N. Mulenga (JSC - Rtd) who was on the panel has since retired.

### BACKGROUND

The parties to these proceedings are Ugandans of Asian origin and are close blood relatives, their respective fathers being brothers and

sons of one KASSAM, a common patriarch. Like many other Uganda Asians, these were expelled from Uganda in 1972 by the military Government of Iddi Amin. They abandoned real properties in Uganda. These included plots No. 3, De Winton Road, and No.51, Kampala Road (suit properties). The lst respondent at the time of the expulsion was the sole registered proprietor of Plot 3, De Winton Road, and held a 50%o share in plot 51, Kampala Road. The second respondent and the late father of the first applicant each owned 25Yo of the same property.

In 1982, the Uganda Parliament enacted the Expropriated Properties Act, 1982 whose objectives were, inter alia, to enable former owners to repossess their abandoned properties. Subsequently by powers of attomey dated 20fi June, 1990 the owners of the two suit properties appointed the first applicant their Attorney to, inter alia, repossess and manage those properties. She repossessed the properties. In the course of her management of the properties, a dispute arose between her and the first respondent. The respondents later claimed that she failed to account for funds collected from the properties.

It appears that in May, 1994, the powers of attorney granted to the l't applicant were revoked. On 24h and 28m November, 1994, the l't respondent advertised a notice of the revocation in the New

Vision newspaper which prompted the l't applicant to react in an article in the same paper denying service on her of notice of the revocation. She further contended that the first respondent's notice was malicious and designed to, inter alia, cause confusion among tenants. Copies of the advertisement were produced during the trial and marked as exh. P5.

Early in 1995, the respondents instituted a suit against the first applicant claiming for recovery of the suit properties and for an account of funds received by her in the course of her management of the same. A defence was filed. On27t'rc1995, the statement of defence was amended.

After the hearing of the suit had commenced before Kityo J. (RIP) the first applicant caused a transfer of 50%o interest in Plot 3 De Winton Road and 25o/o in Plot 5l Kampala Road, to be transferred into the names of her father, Sherali Ahmed Kassam. He was registered as proprietor of those interests. This prompted the respondents as plaintiffs to amend their plaint so as to claim that the transfer was fraudulent and set out particulars of the alleged fraud. In response the applicants as defendants further amended their written statement of defence and added a counterclaim. The first applicant denied liability and averred that the power of

attorney had not been validly terminated and contending that the respondents had consented to the transfer. Kityo J passed away. Byamugisha, J; as she then was, took over the case and heard it de novo. After evidence had been adduced, Counsel for both sides filed written submissions which are on the record of appeal. In those submissions, counsel for the respondents (as plaintiffs) made lengthy submissions on the questions of validity of the Powers of Attorney, their scope, and revocation as well as on fraud. Counsel for the applicants made replies to those submissions.

In her judgment Byamugisha, J. concluded that the powers of attorney "were not legally revoked" and that the transfer of property to the father of the (l't applicant) was not fraudulent. Implicit in that finding is the fact that the powers of attorney were actually revoked though not according to law.

The Learned Judge dismissed the suit. She upheld the counterclaim. The respondents appealed to the Court of Appeal. As in the trial court, in the Court of Appeal counsel for both sides filed written submissions wherein each discussed the scope of the powers of Attorney, the revocation of those powers and the issue of fraud.

The lead judgment in the Court of Appeal was given by Twinomujuni, JA. His Judgment shows that after studying the record of appeal and the lengthy written submissions of each side, he concluded that the principal question to be determined was "whether the transfers carried out by the (1't applicant) on plot 5l Kampala Road and plot 3 De llinton Road in August 1995 in favour of her father was done fraudulently in collusion with him ".

The learned Justice of Appeal analysed the evidence and answered the question in the affirmative holding that the powers of attomey were revoked and the transfer was fraudulent. The applicants' appealed to this Court.

It is pertinent to mention that the first two original grounds of appeal in this Courtwere formulated as follows:

- l. The learned Justices of Appeal erred in law and fact in holding that the transfers carried out by the first appellant on plot No. 5l Kampala Road and on plot No.3, De Winton Road, in favour of her father, Sherali Kassam, were nullified on account offraud on the part ofthe l" appellant. - 2. The learned Justices of Appeal erred in law and in fact in holding that the transfers carried out by the first appellant on

plot 51 Kampala Road and on Plot 3 De Winton Road in favour of her father, Sherali Kassam were done fraudulently in collusion with him.

Clearly in these grounds, the applicants raised the issue of whether the transfer of the suit properties was done fraudulently. Subsequently in their lengthy written submissions in support of the appeal, before us, counsel for (the applicants) modified and expanded the three grounds of appeal into six described as subheads "A" to "F" the majority of which concerned whether the powers of attorney given to the I't applicant were or were not valid at the time when she caused the suit properties to be transferred to her father.

We considered the submissions and evidence on the record and concluded that the power of attorney had been terminated and that the transfer was fraudulent because the I't applicant caused the transfer while aware that the donors of the power had effectively revoked it and also because when the transfer was made, the two proprieties were a subject of a live dispute in a suit which was in court where she was a party to that suit. In this application the applicants seek to have that judgment modified or altered.

Messrs. Kampala Associated Advocate who represented the applicants lodged written arguments. Likewise Messrs Ssebalu & Lule, Advocates, who are for the respondents lodged written arguments.

In spite of the wordings of grounds 2,3, and 4 set out in notice of motion and already produced in this ruling, in their written arguments, counsel for the applicants did not ask Court to reverse its decision of llft November 2008. What the applicants are seeking to be corrected are the Court's reference to fraud and perceived consequences which may flow from the findings of fraud. Counsel submitted that the reference in the judgment to "fraud" constitute an elror arising accidentally overlooking the consequences of those references. Counsel also rely on the definition of "fraud" in Osborn's Concise Law Dictionary (/h Edition) to the effict that "the obtaining of material advantage by unfair or wronglful meansl it involves obliquity. It involves the making of a false representation knowingly or without belief in its truth or recklessly" for the view that the acts of the 1" applicant were not fraudulent because she did not benefit from the transfer. Be that as it may, Counsel for the applicants summarized what they want this court to do in their rejoinder submissions thus:-

l0 "Att the Application seeks therefore, is that imputations offraud be replaced by an alteration of the judgment, to state that legally, the revocation of the Power of Attorney was valid and effective and that the transfers were therefore invalid and that given the honest (but wrong) belief of the l" Applicant, this did not amount to fraud in view ofthefact that she honestly believed she had the authority to effect the transfers. By doing this, the Court will not have changed the outcome of the Appeal (hence this is not a disguised appeal as the Respondents claim), but will have corrected the imputations of fraud which the Respondents are referring to as "crime" and which they are using to commence Criminal proceedings. "

The respondents opposed the application because there was nothing in the judgment to suggest that there is any matter the court inadvertently omitted to consider or whose consequences the Court would have wished to prevent. Learned counsel referred to the various parts of the lead judgment to show that the court did consider every relevant aspect of the appeal and its consequences before it concluded that the transfer was done fraudulently.

It is evident from the submissions of Counsel for the applicants, that the genesis of the application is the threat by the respondents to initiate criminal proceedings against the first applicant.

Certainly the submission is not quite in consonance with the contents of grounds 1,2,3, and 4 appearing in the notice of motion.

## We would first quote the provisions of Rules 2(2) and 35.

2(j) "Nothing in these Rules shall be taken to limit or otherwise affect the inherent power of the Court------to make such orders as may be necessary for achieving the ends ofjustice or to prevent abuse ofthe process ofany such Court and that power shall extend to setting aside judgments which have been proved null and void after they have been passed; and shall be exercised to prevent an abuse ofthe process ofthe Court caused by delay"

## Rule 35 reads this way -

35(l) "A Clerical or arithmetical mistake in any judgment of the Court or any error arising in itfrom an accidental slip or omission may, at any time, whether before or after the iudgment has been embodied in an order, be corrected by the Court, either on its own motion or on an application of any interested person, so as to give effect to what was the intention of the Court when the Judgment was given.

2 An order of the Court may at any time be corrected by the Court, either of its own motion or on the application of any

interested person, if it does not correspond with the order or judgment it purports to embody or, where the iudgment has been corrected under sub rule( l ), with the iudgment as so corrected. "

The two rules and similar other rules have been considered and applied by this Court, its predecessors and courts from other jurisdictions to determine similar applications. See RANIGA VS JIVRAJ (1965) EA. 700 and Non-Performing Assets Recovery Trust Vs General Part (Ug) Ltd Supreme Court Civil Application No.8 of 2000 (NPART case). In the former case, the East Africa Court of Appeal considered the slip rule [Rl3(2) of the Eastern Africa Court of Appeal Rules, 19541 which is substantially similar to the present Rule 35(2) and held, inter alia, that a slip order will only be made only where the Court is fully satisfied that it is giving effect to the intention of the Court at the time when judgment was given, or, in the case of a matter which was overlooked, where it is satisfied beyond reasonable doubt as to the order which it would have made had the matter been brought to its attention.

This holding by the Court has been repeatedly applied subsequent other applications. ln The applicant relies on the NPART case in support of their application. The applicants there prayed for the following orders (which are not dissimilar from the ones prayed for in this application).

(l) That this Hon. Court exercise its inherent powers and set aside part of its judgment dated 21312000 in so far as it allowed the appeal of Respondent in Civil appeal No 5 of 1999 on the basis that the legal mortgage executed between the Respondent and Uganda Commercial Bank and registered as Instrument No. KLA t48gg24 on 22"d August, 1991 which was the subiect matter of the dispute betvveen the parties was not properly uecuted.

- (iil THAT the Court finds that there was no evidence on which it could base to hold that the said mortgage deed was not sealed as sealing a mortgage is a question of fact and the said issue offact was not tried. - (iiil THAT the Court instead makes an order that Civil Appeal No. S of 1999 be dismissed with costs, or in the alternative, that the order it made in the said appeal be varied.

The grounds on which the application was based as follows:

- "(i) THAT ot the commencement of hearing H. C. C. S. No.j86 oJ 1993out of which C. A. C. A. No. 20 of 1998 arose and out of which eventually S. C. C. A No. S of 1999 arose issues for determination of the Court were framed but the validity or due execution of the suit mortgage was not framed as an issue since the said validity was not contested. - (iil THAT d the issue of the validity or due execution of the mortgage had been raised evidence would have been adduced to resolve the said issue since execution is a matter offact. - (iii) THAT the Supreme Court made a finding of law on fact which had not been raised or tried by the first court and hence it ts in the interest of justice that this Honourable Court exercises its inherent powers to revisit its findings in order to achieve the ends ofjustice and to prevent abuse of the process Court.

(iv)

Now the applicants rely on the following passage appearing at page I I of the ruling of the Court in the NPART case in support of their contention that we should alter our judgment. The passage reads thus:-

"It is necessary however to clarify a point made in the RANIGA's case. What is envisaged in the expression in the case of a matter which was overloolced. In our view what is envisaged is a matter which the court could have lawfully looked at or acted upon, when deciding the appeal. It must be a matter which was available, or implicit in the record of appeal or a matter which is necessarily and clearly consequential in the dectsion of the court on the appeal. It cannot be a matter which was not in evidence, or which does not follow from findings of the appeal. "

We would point out that though this passage does not help the applicant's case, in this passage the Court explained a point decided by the East Africa Court of Appeal in RANIGA case (supra) in which the court applied its rule 13 (2) substantially similar to our Rule 35 (2) to rectifu an obvious omission or elror.

The facts in the Raniga case, were that a decree for possession, arrears of rent and mesne profits was passed against the appellant. He appealed against that decree to the East Africa Court of Appeal. Before lodging the record of appeal, the appellant applied to that court for stay of execution pending the determination of the appeal. Stay was granted on terms that he makes certain payments to the respondents. Although the appeal was eventually successful, appellant's counsel failed or omitted to ask the court to vacate the stay order and to make an order for the refund of the money which the appellant had paid. The Court of Appeal judgment was embodied in a formal order. Subsequently the appellant successfully applied for altemation of the formal order, so as to provide for the refund of the money paid by him because the refund was really giving effect to the intention of the Court. The refund was an obvious consequential effect of the decision of the Court.

We would also refer to the case of Zaituna Kawuma Vs. George Mwa Luyum - Supreme Court Civil Application No.3 of 1992 (Unreported), where after a decision of the predecessor to this Court, an application was made for an order for refund of purchase price that was paid under a sale agreement which agreement was held on appeal to be null and void. The court granted the

application and ordered for the refund of the purchase price money because as the court put it -

"As the contract was null and void an order should be made for repayment of the purchase price. The respondent cannot have his house back...........and at the same time retain and enjoy the purchase price paid by the applicant."

Clearly the order for the refund of the purchase price is directly consequential to the Supreme Court's decision that the sale agreement was null and void.

This court reviewed and relied on these two decisions, among others, in its decision, to dismiss the application in the NPART case because the orders sought were not consequential upon the decision of the court when it determined that appeal. In other words, the orders sought would not put the intention of the court into effect.

We have studied all the relevant materials in the present application and have considered the written submissions of both sides. It has not been proved to our satisfaction that we erred or made wrong findings of fact or in law which we have to alter or correct. We are not persuaded that we made any error or slip or

mistake which we should rectifu, so as to give effect to our intention. There is no dispute that the transfers were effected. There is no dispute that the l't applicant caused the transfer to her father to be effected. There is no dispute that the transfer was made after the respondent had revoked the power of attorney given to the l't applicant. It is claimed that the powers were unregistered so they had no effect and yet the 1'l applicant herself acted on same. Be it noted that the question of non-registration of the powers of attorney was ably raised and discussed in the Court of Appeal. In our judgment we agreed with the reasoning of that Court. There is no dispute that the transfer was effected when there was already in Court a suit to seffle a dispute about the same suit property. These were the findings of the Court. So where is the error or accidental slip or mistake to be corrected? There is none. No circumstances have been proved to require the application of the principles of equity.

In our view the application has no merit and must fail.

Before we take leave of this matter, we are constrained to observe that this case which has taken over ten years to be resolved in the Courts, has now been finally and conclusively determined. There must be an end to litigation in a particular matter, We therefore urge the parties, who are members of the same family, to accept

the final decision of the Court in this case and desist from engaging in further unnecessary litigation relating to this dispute.

The application is dismissed. As parties to the dispute are close relatives, in our opinion the interest of justice will be best served by making no order as to costs.

Dated at Mengo this day of ... day of ... d. de.d. 2009. **B. J. ODOKI CHIEF JUSTICE** J. W. N. TSEKOOKO JUSTICE OF THE SUPREME COURT G. W. KANYEIHAMBA JUSTICE OF THE SUPREME COURT milia lumbre **B. M. KATUREEBE** JUSTICE OF THE SUPREME COURT G. M. OKELLO JUSTICE OF THE SUPREME COURT tails for Applicants egawa for Respondents20 a delivered in presence of the