Court name
HC: Land Division (Uganda)
Case number
Civil Appeal 2059 of 2016
Judgment date
1 December 2016

Pule and Anor v Salongo and 4 Others (Civil Appeal 2059 of 2016) [2016] UGHCLD 87 (01 December 2016);

Cite this case
[2016] UGHCLD 87
Coram
Namundi, J

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

(LAND DIVISION)

CIVIL APPEAL NO. 2059 OF 2016

  1. PULE BONIFACE
  2. TURYASINGURA ELIAS      ::::::::::::::::::::::::::::::::::::: APPELLANTS  

VERSUS

  1. SALONGO CYRUS KIGGUNDU
  2. SAMUEL WANTANTANTEKIWOMBOJJO
  3. BETTY ZIZINGA NAMAGANDA ::::::::::::::::::::::::::::: RESPONDENTS
  4. RITAH MUGENYI
  5. PATRICK LULE  

BEFORE: HON. MR. JUSTICE GODFREY NAMUNDI

JUDGEMENT

This appeal arises from the Judgement and Orders of the Magistrate Grade I His Worship E.F. Palodi sitting at Nabweru Chief Magistrates’ court, dated 13th September 2013.

This was in respect of Civil Suit 28/2013.  The same suit was a consolidation of Civil Suits 28/2013, 29/2011, 35/2011, 50/2010 and 52/2011.  The record indicates that in all the above suits the Defendants were the same namely Pule Boniface and Turyasingura Elias and Kasirye Livingstone (Kasirye apparently never participated in the proceedings).

The Respondents in this Appeal were individually Plaintiffs in the five suits referred to above.  After the consolidation, the trial Magistrate collectively referred to them as Plaintiffs.  The record indicates that Respondent No. 2 Sammuel Wantate Kiwombojjo testified as PW2, Respondent 5 as PW5, Respondent 3 Betty Namaganda as PW7 and one Festo Sebaduka testified as an agent of Respondent 4.   

The Judgment dealt with each of the interests of the Respondents who were recognised by both parties as Registered proprietors of the suit property.  The said Plaintiffs in those suits referred to above sued seeking for, Eviction Orders against the Defendants, a Permanent Injunction restraining the Defendants from further trespass, General Damages, Exemplary damages and costs.

The Defendants contested the suits on grounds of limitation, lack of cause of action and that the leases by the Plaintiffs were wrongly obtained by the Plaintiffs in connivance with Buganda Land Board.  The trial Magistrate entered Judgment in favour of the Plaintiffs but ordered that they should compensate the Defendants for their Developments on the suit land.

The Defendants who are now Appellants being dissatisfied with the Judgement appealed to this court and filed Eleven (11) grounds of Appeal.  Ground 11 was however abandoned by counsel for the Appellants.

The grounds for consideration are:

  1. The trial Magistrate errered in law and fact when he only dealt with Civil Suit 28/2011 instead of all the consolidated suits as had been ordered by Court.
  2. The Trial Magistrate erred in law and fact when he ignored the pleadings on court record regarding grand and went ahead to hold that the Appellants never pleaded fraud thereby declaring the Plaintiffs’ titles good titles.
  3. The trial Magistrate erred in law and fact when he ruled that the Respondents did not prove issues 1 and 2 on balance of probabilities and went ahead to grant them remedies instead of dismissing the suit.
  4. The trial Magistrate erred in law and fact when he made a finding that the Respondent among other findings misled and colluded with Buganda Land Board officials in obtaining their Certificates of Title but went ahead to hold that they held good titles.
  5. The trial Magistrate erred in law and fact when he took General Damages and compensation as the same thing and went ahead to award inadequate compensation to the Appellants.
  6. The Trial Magistrate erred in law and fact when he ordered that the Appellants be compensated without specifying who was to compensate them.
  7. The Trial Magistrate erred in law and fact when he ignored the Preliminary objection raised against the case filed by Samuel Wantate Kiwombojjo which he should have dealt with first.
  8. The Trial Magistrate erred in Law and Fact when he included in the Judgment Land that belonged to the Appellants that was not in Issue before Court.
  9. The learned Trial Magistrate erred in law and fact when he denied the Appellants costs after making finding that the Respondents had not proved their case on a balance of probabilities.
  10. The learned Trial Magistrate erred in law and fact when he failed to properly evaluate the evidence on record – thus arriving at a wrong decision.

There is no dispute that an Appellate court is mandated to evaluate all the evidence in the trial court and may arrive at its own conclusions.  Ref: JK Zaabwe Vs Orient Bank & 5 Ors (2007) HCB.  The court of course had no opportunity to see and observe the demeanour of the witnesses.

Counsel for the Appellant dealt with grounds 1, 2 and 4 together.  He has submitted that the Trial Magistrate ignored the pleadings in Civil Suit 50/2010 – Betty Namaganda Vs Turyasingura that alluded the fraud in the statement of Defence.  Further that among the issues framed at the trial was:

Whether the procedures followed by the Plaintiffs in acquiring the leases were proper.

It is submitted that if the Trial Magistrate had considered all the files he would have known that the appellants pleaded fraud in their pleadings.  He therefore erred in law to find that the Respondents’ titles were genuine.

For the respondents it was submitted that the record as it stands now shows that all suits were consolidated and considered.  This is so because all the different parties were placed together in the Judgment and all their issues considered.  It is further submitted that fraud should have been specifically pleaded and an issue based on fraud should have been framed. 

Further that even when the Magistrate made a finding of irregularities, he fell short of stating that there was fraud.  In any case, it is submitted, if there was any prayer for cancellation of the Respondents’ Titles, it should have been by way of a counter claim.  Reference was made to the Case of Siraji Bageya Vs Ochieng David Appeal 130/09

I have considered the submissions in respect of the grounds 1,2,and 4 and the replies by the Respondents’ counsel.

Firstly, regarding ground No. 1 that the Magistrate did not consider the other consolidated claims other than those in Civil Suit 28, I had earlier in my introduction dealt with the background to this Appeal.  I clearly outlined the fact that the files were consolidated and that the individual Plaintiffs gave their evidence at the hearing of the suit.  The proceedings bear this out and it is wrong for the Appellants to claim otherwise.

Regarding claims of fraud, both parties agree that the Respondents are the registered proprietors of the suit land.  Section 59 RTA clearly provides the Certificate of Title as conclusive evidence of ownership.  It is trite that fraud must be specifically pleaded and must be strictly proved. 

A look at the Defences on record reveals that the allegations of fraud are missing therein.  In Civil Suit 50/2010 alluded to, the claim is in the Defence with no specific prayers for cancellation of the titles.  There was no counter claim laying out the claim and making specific instances of fraud and prayers for cancellation.

It is therefore not surprising that the Magistrate made no finding in that respect.  An evaluation of the evidence does not also indicate that evidence of fraud was adduced by the Defendants/Appellants.

I accordingly find no merits in grounds 1, 2 and 4 of the appeal and they are dismissed accordingly.

It is also my considered view that instead of listing a litany of perceived or real errors in the Judgment of the trial Court, the Appellant should have relied on ground No. 10 of the appeal which would have dealt with the various errors of Judgment or procedure complained of.

It reads:

(10)  The learned Trial Magistrate erred in law and fact when he failed to properly evaluate the evidence on record thereby arriving at a wrong conclusion.  

It is submitted under this ground (which submission I find to be repetition of grounds 1 and 2) that the Magistrate should have found that there was fraud – since he found that the Plaintiffs did not prove their case on a balance of probabilities.

That instead he went ahead to award remedies that conflicted with his findings.

For the Respondents it is submitted that it is wrong for Counsel for the Appellants to seek to amend the Memorandum of Appeal thru’ submission when he had the opportunity to apply formally for amendment of the Memo of Appeal.

With due Respect to counsel for the Appellant.  I must agree with counsel for the Respondents.  The prayers in ground No. 10 are rejected.

The evaluation of the evidence by the Magistrate was based on the material availed to him.  The claim of the Plaintiffs was based on the premise that they were registered owners of the suit land with Certificates duly issued to them. 

The Defendants claim of interest in the suit land was that they were sitting tenants on the suit land.  That they were accordingly lawful occupants protected by Section 29 of the Land Act.

The evidence on record especially that of John Kyewalabye Male and that of Patrick Katumba and that of Levy Zimbe is very instructive.  The Ministry of Works had a lease with the Buganda Land Board that expired and the said Ministry clearly indicated it had no further interest in the land. 

The Appellants were employees of the Ministry of Works and at the sufferance of their Employers.  They were licencees and cannot claim protection under Section 29 of the Land Act.

The evidence of the witnesses referred to above is that the land reverted to the Buganda Land Board who treated the same as vacant land.  The evidence of the Appellants is that they paid money to a Company known as KK which both Kyewalabye and Zimbe deny as having had no mandate to deal with the land outside Makindye Division.

The Appellants themselves admit they were employees of the Ministry of works and cannot turn around and claim they had Bibanja on that land.            

I am constrained to find that given the above background and evidence, the trial Magistrate was even wrong to find that the Appellants had an interest in the land and were entitled to any remedies from either Buganda Land Board or from the Respondents.

Grounds 3,5,6,7,8 and 9 of the Appeal are therefore unsustainable and I dismiss them.

I find this appeal devoid of merit and dismiss it accordingly.

I substitute the orders made by the Magistrate and order as follows:

  1. The Respondents are entitled to the suit land and should have quiet enjoyment of the same without disturbance from any party subject to the lease arrangements with Buganda Land Board.
  2. The Respondents are to have vacant possession of the suit land on delivery of this Judgment.
  3. The orders for compensation are cancelled as they were not called for.
  4. Each party will meet their own costs of this Appeal.

Dated at Kampala this .................. day of ........................., 2016.

 

 GODFREY NAMUNDI

JUDGE.

 

 

 

 

 

 

 

1/12/16

 

Namuswe Veronica for the Respondents.

1st and 5th Respondents present.

4th Respondent represented by Sebaduka Festo.

Appellants present.

Counsel for the Appellants reported indisposed.

 

Court: Judgement delivered in open court.

 

 

 

Godfrey Namundi

Judge.

Date: 1st December, 2016