Court name
HC: Land Division (Uganda)
Judgment date
6 February 2018

Mukiibi & 2 Ors v Uganda Moslem Supreme Council (Civil Appeal-2016/) [2018] UGHCLD 6 (06 February 2018);

Cite this case
[2018] UGHCLD 6
Coram
Masalu-Musene, J

THE REPUBLIC OF UGANDA

IN THE HIGHC OURT OFUGANDA

AT  MPIGI

CIVIL APPEAL NO.  004 OF 2016

(Arising from  Mpigi Chief Magistrate’s Court  Civil suit No. 108 of 2008)

(Formerly  Nakawa HCCS NO. 104 OF 2002)

  1. HARUNA MUKIIBI
  2. UMAR KATAMBA
  3. MOHAMED TEBUSWEKE::::::::::::::::::::::::::::::APPELLANTS

VERSUS

UGANDA MOSLEM SUPREME COUNCIL:::::::::::::::::::RESPONDENT

 

BEFORE:  HON. JUSTICE  WILSON MASALU MUSENE

 

JUDGMENT

 

The Appellants, Haruna Mukiibi, Umar  Katamba and Mohammed Tebusweke  being dissatisfied with the judgment of the Chief Magistrate Mpigi appealed to this court.  The Respondent is Uganda Muslim Supreme Council.

The grounds of appeal were:-

  1. The learned Trial chief magistrate erred in law and fact when she held that the suit land lawfully belongs to the respondent whose Title Deed  had been cancelled by Commissioner land registration for fraud by concealment of appellants’  prior  customary  tenancy  on same land who are in physical occupation of the suit land.
  2. The learned Trial Chief Magistrate erred  in law  and fact when she held that the respondent never fraudulently registered and acquired  Title  Deed for plot 13  Mawokota Block 40 at Bujuuko  Mpigi (Exhibit P5), in total disregard of appellants’ evidence of fraud adduced against  Respondent on record.
  3. The learned trial Chief Magistrate erred in law and fact when she heavily over relied and based her decision on oral  evidence of PW3-Hajji Abubaker Ssebufu Magala without  reasons , whose  hear say evidence was never corroborated at all.
  4. The learned trial Chief Magistrate erred in law and fact when she failed to properly address her mind on strong defence evidence of DW4  (Nyonzima Vincent) and  erroneously  misconstrued it in favour of Respondent.
  5. The Learned  trial chief Magistrate erred  in law and fact when she failed to decide from the evidence on record  which of the two land titles in issue  of the appellants of Plot 51  Mawokota Block  40 at  Bujuuko Mpigi  (Exhibit D5 ) and that of the Respondent  of Plot 13  Mawokota Block  40 at Bujuuko Mpigi (Exhibit P5)  was fraudulently  procured  a key factor for decision in the case before her.
  6. The learned trial Chief Magistrate erred in law and fact when she failed to properly evaluate, scrutinize and upraise the evidence on record hence hastily arriving at a wrong  conclusion.
  7. The  Learned trial chief Magistrate erred in law and fact  when she allowed the Respondents’  submission  that were  based on issues not agreed upon at  conference scheduling hence arriving at a wrong decision
  8. The learned trial Chief Magistrate erred in law and fact when she failed or ignored to consider all written submissions of appellants on record especially on an illegality and arrived at a wrong conclusion.

The Appellants were represented by M/s Semuyaba , Iga and co. Advocates, while the Respondent was represented by M/s Ssekaana Associated Advocates and consultants. 

Both sides filed written submissions. Before I go into detailed submissions, I wish to re-instate the Law as far as the duty of the first Appellate court is concerned.    It is now settled law that as a first Appellate court, this Court has to re-evaluate the evidence in the lower Court and subject it to fresh and exhaustive scrutiny  and draw its own inferences and conclusions.  However, t has to bear in mind that it neither saw or heard witnesses testify, and due allowance has  to be  given in that respect.  See  Banco Arabe Espanel vs Bank of Uganda, SCCA NO. 8  of 1998 .

Ground  No. I

The learned Trial chief magistrate erred in law and fact when she held that the suit land lawfully  belongs to the respondent whose Title Deed  had been cancelled by Commissioner land registration for fraud by concealment of appellants’  prior  customary  tenancy  on same land who are in physical occupation of the suit land.

 

Counsel for the Appellants submitted that whereas Haji Galiwango Mahmood (PW4)  and Sheikh Muhamad Kibanga, Haji Musa Ssonko,  and Hajj Abubaker Ssebuwufu  Magala purported to represent the Uganda Muslim Supreme Council (U.M.S.C).that they  did not have the mandate or power of Attorney to represent U.M.S.C., and that there was no evidence to show that they were elected Muslim leaders.  He challenged Hajji Galiwango Muhammood as a Muslim leader in Bujjuuko  he therefore submitted that Hai Galiwango Muhamood had no locus standi,  and that Uganda Muslim Supreme Council  should have sued  through an authorized representative.

Counsel for the appellant subtitled at length on the issue of locus standi,  quoting  over  10 cases  and repeating that of Auto Garage vs Motokov [1971] E.A 314 about  cause of action.

Counsel  for the Appellants  then added  that Haruna Mukiibi, Umar Katamba and Muhamud Tebusweke were born and raised on the land in dispute by their father who was a customary  tenant.  Counsel  submitted that it was the father of  Haji Asuman Mukiibi,  who constructed the school and  Mosque .  he concluded that it was the customary  tenancy of the Defendants over which Uganda  Muslim  supreme Council acquired their title Deed  known as Plot 13  Mawokota  measuring  8.21  hectares  issued on 28.1.1992  and marked exhibit  DII in the lower court.  Counsel  for the  appellant added that  that Title Mawokota  Block  40  Plot 13  at Bujjuuko was cancelled, by  the commissioner for land registration as Uganda Muslim supreme Council did not disclose that there was a customary tenant with developments.  Counsel also added that upon cancellation of Respondent’s  first certificate of title, the Respondent became a trespasser  on the land  in dispute   up todate.  He therefore prayed that issue No 1 be  answered in the  negative against  the Respondent. 

Counsel  for the Respondent in reply  submitted that the trial chief magistrate properly  evaluated  all the evidence on record after appreciating   the History of the land in question, which was given to the  Muslim  Community in Uganda as way back as 1900.   Counsel for the  respondent  referred to a letter dated 1939- exhibit PI, whereby the land in dispute was given to Muhamedans  (Muslims).

He added that the Respondent, Uganda Muslim Supreme council acquired  interest as a successor in title for all Muslim property  in Uganda.  Further  submissions were that the evidence of PWI on pages 6-9 of the record of proceedings was clear as he   was the  former  secretary  general who was conversant  with matters of Muslim land in Uganda. 

Counsel  added that the grandfather of the  appellants  (Kutta  Kulimuki) was  the first  Imam  who  was not born in Bujuuko  but came after the  land was given  to the Muslims by the Crown Government.  Reference was also made to the testimony of hajji Ssebufu Magala.  PW111,  who confirmed  that he was a cousin to the Appellants and that they are all grand children  of Sulati Kutta Kulimuki.  Counsel for the Respondent added that according to the testimony of Hajji  Ssebufu  Magala, he  grew up on the land knowing that the same belonged to all  Muslims  (Muslim  community) and that the land was never sub-divided  to the beneficiaries of  the late  Kutta Kulimuki as it did not belong to them.  Counsel for the Respondent also referred to the testimony of PWIV,  who father Hassan Mukasa  was one of the founders of  Bujuuko  UMEA  primary school  and a mosque.

 

He added that some of the documents under Exh P.2  include licence for  Temporary   occupation  of land dated 6.6.1947, receipts for payment of dues dated 1961,  Kabaka   Government  receipts  dated 31/12/1961  and receipts for payment of UMEA dues dated 22.2.1963  and 4.9.1963.

Reference was also made to the letter dated  4th October, 1996   confirming that Bujjuuko  UMEA Primary School is a Government aided School under the Proprietorship  of Uganda Muslim Supreme Council.

Counsel for the Respondent concluded that on the basis of the oral evidence  on record, together with the documentary evidence, the trial  Magistrate properly  found and held that the  suit land comprised in Block 40 Plot 13  is owned by the Respondent for and on behalf of the Muslim community  under its  umbrella  organization-Uganda  Muslim supreme council.

 

I have carefully considered   the  submissions from both  sides as far as ground one of appeal is concerned. 

I have also studied  the proceedings and  Judgment of the lower court.  My findings are the detailed submissions of counsel for the appellants about locus standi of the Respondent did not arise in the lower court and are therefore un called for.  Secondly, those submissions are  un called for because the dispute    isnot  about who is the rightful  person representing Uganda  Muslim supreme Council, but rather  who owns the land in dispute  as between appellants and Respondent.

 

I shall refer to the evidence on record   .

PW1,  Sheikh Muhama Kibanga  was a former Secretary General of the  Plaintiff UMSC  between  1994-1996  and gave a background of this land.  He testified that Muslims  (Muhamedans) were given 10 square  miles of land within Buganda  in the 12 counties of Buganda.  That in every county in Buganda, Muslims got about 10-20  acres of land by the Crown Government to the Muslim  Community  in Uganda.  The list of  land is set out in Exh  dated 13-1-1939.  The land  has a mosque  and the school is owned by Uganda  Muslim Education Association.  PW1  as the secretary general was involved in processing of  the Certificate of title. 

When cross examined  Sheikh Muhamad Kibanga  stated  that he  was honourably retired  from  Uganda Muslim supreme council.

PW11 Hajji Musa SSonko  aged 80  years testified that he is a resident of Bujuuko  and all his life time  since childhood  he had known this land to belong to the Muslims.  On this  land, there is a mosque and school  and he was  among the people who started the school.  He   gave the history of different mosques  which have been on this land from a mosque made of grass reeds, then tins and then one of mud and  wattle.  During  the initial stages, the  Imam/Mwalimu was Sulait Kutta  Kulimuki Mukiibi  (the Defendant’s  grandfather) who was  not a born in the area (Bujuuko)  but only  came after the land was given to the Muslims by  Crown government .  he stated that, he knows the defendants’ father  Asuman  Mukiibi as a farmer  and later a businessman and he was an Assistant/Deputy  Imam.  He testified that the  Imaam at the time was Sowedi Gyagenda  and that Asuman Mukiibi was an uncle  to Sowedi  Gyagenda  and all of them were working for the  for Muslim Community.  That during  cross examination, he further  stated that Kutta Kulimuki had two sons Asuman  Mukiibi and Saad Katende.  That  Sowedi  Gyagenda was not buried on this land and was returned to his ancestral  land at Butambala.

PW111 was Hajji Abubaker Ssebufu Magala  aged 70 years  testified that he is a  son  of  the late Saad Katende who was a brother to Asuman Kato Mukiibi  (the Defendants’ father).  This  witness confirmed  that he was a cousin  to the defendants and they are all  grandchildren of sulait  Kutta Kulimuki.  He confirmed  that his father Saad  Katende  used to call people  for prayers (Muazin) at this mosque  . He equally  grew up  on this land and he  knows that this land belongs to all Muslims  (Muslim Community).  PW111 further  testified that this land has never been sub-divided  among all the beneficiaries of the late Kuttakulimuki  because  it did not belong to him. Their  grandfather  (Kuttakulimuki ) and his  sons Asuman  Mukiibi and Saad katende  were buried on this land but currently  other  members  do not bury  their relatives on this land.  The school  on the land belongs to Uganda Muslim Education Association (UMEA) .  he also  confirmed that this land has never belonged to his family  of Kuttakulimuki but the Muslim community  at Bujuuko. 

PW4 Hajji Galiwango  Mahmood aged 54  a resident of Bujuuko, testified  that  he is a representative  of Muslim  of Bujuuko  at Uganda Muslim supreme council and he is  the Chairman  of Muslims at the mosque.  He testified that he has grown up on this land knowing this land to belong to the Muslims.   His father  Hassan Mukasa was one of the  founders  of the  primary school   (Bujuuko UMEA  Primary school) and  a Mosque.  The documents  in support  of his evidence about ownership  of the mosque  and school were  collectively  tendered in court as Exh P2. (includes letter, pay slips since 1960”s) for the Appellants (Defendants in the lower court).

DW1, Haruna  Mukiibi in his evidence  in chief  given in Court  that he was  52 years  of age and was born and  raised  on this  suit land  adding that  his late  father  acquired the suit land  in  1913 and consistently stayed on same land as customary tenant till his death. 

DW2 Sgt  Katamba Umaru gave his evidence in court on 12.2.2015  and said he was 44 years  old and that he was born and  raised on the suit land of his father who was a customary  tenant on it and that he was born on suit land in 1970  and has ever since stayed on  suit land  to date.  DW3  Tebuswekke Mohamed gave his evidence in Court on 19.2.2015  and told court that he was born  on suit land, raised and continues to stay on suit land, he added that he was born in 1959, he told  court that his late father Hajj Asuman Mukiibi was a customary  tenant on suit land. 

 

My findings   and holding as far as the testimonies on record are concerned is that the witnesses of the Respondent  were consistent in the lower Court that the land in dispute from time immemorial, belongs to Uganda Muslim supreme council.  The names could have changed over the years but  the Principal ownership   by Uganda Muslims or Muhamedans as the case may be is the same.

 

I found the evidence of PW4, Galiwango Muhammod very  instructive and it was supported by other  witnesses for the Respondent.

 

He testified  that his father, Hassan Mukasa was one of the founders of the primary School  (Bujuuko UMEA)  and  produced  documents in the lower Court, in support of ownership of the mosque.  PW4 also  testified as to how they applied for a Certificate of title in the names of Uganda  Muslim supreme council in 1993.  He added that when the same was cancelled, investigations were carried and the title was re-instated a detailed letter  marked Exhibit  PII  by Sarah Kulata Basangwa,  Commissioner, for land Registration, dated 11.2.2014  is reproduced here below  to confirm the testimony of PW4 in the lower court.  

            “Ministry of Lands, Housing 

     and Urban Development

P.O BOX 7096

Kampala, Uganda

 

The Registration of titles  Act  (Cap ,230)

And

The Land Act (Cap 227)

Lease hold  Register  volume 2672, Folio 3  Plot 13  Mawokota  Block 40 at Bujuuko, Mpigi

 

Notice of intention to effect changes  in the Register

 

TO:  Mukiibi  Haruna and Namakula Aisha  Sarah

Administrator and Administratrix   of the estate of the late Hajj Asumani Kato

C/O P.O BOX  10387

Kampala

 

The office  is in  receipt of a complaint from Uganda Muslim supreme council to the effect that you unlawfully and fraudulently acquired a Certificate of title in respect of the above land which lawfully belong to the Uganda Muslim supreme council.

 

The complaints  further state that the land had earlier been grabbed by your late father Hajji Asuman Mukiibi, who had even acquired  a Certificate of title to the subject land.  When Uganda Muslim supreme council complained, his title was subject to cancellation and the subdivision that created Plot 51 and 52  was cancelled and plot 13   reinstated, which entire plot belonged to Uganda Muslim supreme Council;  to which they possess your certificate of title  LRV 2672 Folio 3.

 

This office  conducted an investigation into the complaint and confirmed from the survey and mapping Department that indeed the sub division of plot 13  that resulted into Plot  51, 52 and 53  was cancelled  and thus Plot  13  reinstated.  Therefore, by the time  you obtained your title, there was no land available for  the district land Board to allocate to you, since  the sub division from which  your title  arises had been cancelled and the land  reinstated  to the  complainants whose lease term is still running.

Hence, your title was merely  superimposed on an existing title  and since  there cannot be double titling on land, your title is  therefore subject to cancellation.

 

NOW THEREFORE pursuant to S. 91 of the Land Act, Cap 227 you are hereby given notice that I intend to have the Register rectified by cancelling your above mentioned Certificate as having been issued in error.

 

You should respond to this notice within 21 days  from the date of service on you  hereof  and let me know if  there are any objections to my proposed  action.  You are required to surrender  back to this office the duplicate Certificate of title in your possession for cancellation.

 

You are also invited for a public hearing on the  4th March, 2014  at 8:30  a.m in  my office where your objections, if any will be heard.

 

By copy of this notice, the complainants are required to attend the hearing with all their documents pertaining to the ownership of this land.

 

Dated this……day of……………………….2014.

 

 

Sarah Kulata Basangwa

Commissioner Land Registrar

 

c.c        Uganda Muslim supreme Council

C/O Ssekaana Associated Advocates & Consultants

P.O BOX  70075

Kampala”

 

 

And indeed  the re-instated certificate of title is marked exhibit P5 , running 1st December, 1995 for  44 years.  It is  in respect of the land in dispute.        

The other   witnesses who  impressed this Court and even the lower court is PW3,   Sebufu  Magala, a cousin of the appellants now, and also a grandson to late Kutta kulimuki.  PW3  confirmed in the lower Court, contrary to what his cousins the appellants stated, that the land belonged to  Uganda Muslim   Supreme Council and they never shared the same as descendants  of Kutta Kulimuki .

That evidence of PW3, Ssebufu Magala  therefore tore in pieces  the testimonies of  DW1,  Haruna  Mukiibi, DW2 Katamba  Umar  and DW3  Mohamed Tebusweke.

 

Furthermore, to Crown the evidence of Uganda Muslim Supreme council’s ownership of the land in dispute was the testimony of DW4  Vincent  Niyonzima; a Registrar of titles. He stated   on page 44 of the record of proceedings as follows:

On 11/11/1998 Uganda Muslim Supreme Council was Registered upon grant of  afresh lease  by the Uganda land commission.  This followed  amalgamation of  Plot 51, 52 and  53  to re-instate the previous plot 13.  According to the records, I have an area  schedule to show how the three plots  were amalgamated.  Reinstatement was done by surveys and plot 13 re-instated……”

 

I find the above testimony in tandem with the letter of the commissioner for land Registration, Sarah Basangwa Kulata, which I have quoted in this Judgment. 

 

In the circumstances, and in view of what I have outlined, I find and hold that the land in dispute   was properly decreed for the Respondent; Uganda Muslim Supreme Council by the chief Magistrate.

Ground No one of appeal therefore fails.

 

Ground 2.

The learned Trial Chief Magistrate erred  in law  and fact when she held that the respondent never fraudulently registered and acquired  Title  Deed for plot 13  Mawokota Block 40 at Bujuuko  Mpigi (Exhibit P5), in total disregard of Appellants’ evidence of fraud adduced against  Respondent on record.

Counsel for the Appellant defined what   fraud  and added that according to the evidence of  DW1,  Haruna Mukiibi  Nasser, his father’s family settled  on the disputed land as customary tenants and applied for lease.  He also added that the mosque was constructed by DW1’s  father in 1913.  Counsel therefore submitted that  Uganda Muslim supreme council  forcefully  took over the mosque in 1996.  Using a court  interim order.

It was further submitted that Uganda Muslim supreme council used  to form fraudulent intention to acquire  the disputed land and that exhibit P5   shows that the land was divided into three plots.  Counsel also maintained that the cancellation of the title  before re-instatement  was a manifestation of fraud.  He added  that the Respondent  misrepresented to the  commissioner that the land in dispute   had no customary  tenants.  Counsel  further made reference to the testimony  of DW4,  Niyonzima  Vincent, adding that Uganda Muslim supreme council  cannot use  an illegal title to counfer  upon themselves ownership of the suit land.

He referred to the case of Active Automobile spares LTD vs Crane  Bank LTD & Rajesh, SCCA NO. 21  of 2001,  it was held that Courts will not condone or  enforce an illegality. 

Counsel for the appellants concluded that there should be an investigation into the two titles exhibit P5.  (for Respondent)  and Exhibit D5( for  Appellants)

 

In reply , Counsel for the Respondent submitted that the trial Chief Magistrate properly  evaluated the evidence and that the registration of the Respondent on the Certificate of title arose  from the fact  that they owned  the land in dispute.

Counsel further  submitted that when the Respondent’s lease was cancelled, they challenged the same as per exhibit  P3.  And  that when the Chief  Administrative Officer  investigated together with  the commissioner land registration, it was instead found that the land title of Hajji Asuman Kato  Mukiibi be cancelled and the commissioner surveys  and mapping  streamlines  the position of survey  on the ground to avoid   over lapping surveys  and  titles  over the same piece of land.  Counsel for the Respondent added  that  the Respondent then applied for a fresh  lease  of  44  years  which was  granted  effective  1.12.1995.  In addition, the Respondent  acquired  another Certificate of title for the said land on 11.11.1998 and  it was  the title Exhibited as P5.  

Counsel for the Respondent reiterated that the Respondent’s  Certificate of title was obtained  under such   a transparent  manner  and no  acts of fraud could be seen  through the documentary evidence.  He made reference to the  record of proceedings on pages 19-20, whereby no fraud  was proved  as far as the acquisition of the Respondents’  title which is valid for  44 years is concerned. 

Counsel for the Respondent wondered why the appellants who were aware of the Respondent’s  certificate of title over the disputed went ahead also to acquire  another Certificate when the case was still in  Court in 2010.

 

I have again considered the submissions on the issue of alleged fraud  by the Respondent is concerned.  As counsel for the Respondent submitted,  this Court  wonders how and why the appellants were dealing  or  registering the land in dispute  in 2010 when the case was already  in Court.  One wonders who infact had fraudulent intentions if not the appellants in such circumstances.  The Appellants knew the case was still pending  in court  and they went  ahead to have the same land Registered in their names,  purportedly as  holders of letters of administration.

In my view, those were double standards on the  part of the appellants who did not go to equity  with clean hands.  The exercise of rejoining three plots  51,52, and 53  to go back to plot 13 Block 40  was  explained by Appellants’ own  witness in the  Lower court, DW4,  Mr. Vincent  Niyonzima a Registrar of titles.  DW4  stated on page 42  of the proceedings:-

Plot 13  came first  in time.  It is in the names of Uganda  Muslim Supreme Council , Bujuuko.  It  came in existence in the year 1992.  On the 23rd  January.”

 

During cross-examination, DW4  informed  Court  that the title for Plot  51  which was registered in different name ceased to exist  when it was found out that the department involved in the exercise misdirected the parties.  He added  that the Respondents lease title of  1998  was still existing when  the Appellants were issued  one running from 1-9-2010.

DW4, Mr. Niyonzima concluded that the Plaintiffs’ (now  Respondents)  were the first applicants and their lease was to run for  44 years.  The logical conclusion is that since Uganda  Muslim Supreme Council were the first to apply, then they could not  be said to have been fraudulent.   Under  Section 176 (c ) of the Registration of titles Act,  a Certificate of title can only  be impeached for fraud  upon clear proof  through documentary evidence and not mere unsubstantiated statements.  I therefore agree with the   submissions of counsel for   the Respondent  that the allegations of fraud set out in written statements  of defence have  not been proved at all.  The trial chief Magistrate properly evaluated the evidence and found no merit in the allegations of fraud.

In  Mainiha Saw Milling Co. Ltd vs Waino Timber Company LTD [1962] AC 101, Lord  Buchmaster defined fraud as some act of dishonest.  In Kampala Bottlers vs Damaniaco Uganda LTD, SCCA NO. 22 of 1992 , Wambuzi  C.J. as he then was, held that fraud  must be attributed to the transferee either  directly or  by necessary  implications.  His Lordship added that the transferee must  be guilty of some fraudulent actions/acts or must have known of such  act by somebody  else and taken advantage of that act.  In the  present   case,  it has not been proved that the  Uganda Muslim Supreme Council (transferee) was  aware  of how the land Departments of mapping and surveying registered the land in appellant’s names.  Those were technical  people as clearly brought  out in the evidence of DW4,  Niyonzima  and so Uganda  Muslim Supreme Council could not be blamed for  whatever  mistakes or errors made.

I therefore  agree  with  the trial chief  Magistrate that the plaintiff  (Now  Respondent)  were not liable for fraud  in the acquisition of their title for their original land of  Plot 13  Block 40. 

I accordingly  do hereby dismiss  ground  2 of  appeal. 

 

Ground  No. 3

The learned trial Chief Magistrate erred in law and fact when she heavily over relied and based  her decision on oral  evidence of PW3-Hajji Abubaker Ssebufu Magala without  reasons , whose  hear say evidence was never corroborated at all.

 

This ground has already been covered when I handled  ground  1  of appeal.  Counsel for  the respondent submitted that the appellants did not lead any evidence  to show how they acquired the land in dispute, other than all stating that they  were born on the same.  However, and as indeed PW3, Hajj Sebuwufu Magala  testified, and being a cousin of the appellants, stated that the disputed land was not Ancestorial land.  PW3  added that the rest of the family /beneficiaries of the estate of the late Sul\aiti Kuttakulimuki  have not claimed ownership of the said land and that the appellants cannot  claim that it belonged to their  late grandfather as if it devolved onto  their father  only  without considering other beneficiaries .  PW3  emphasized that the land belonged  to the Muslim community in the area.

 

I also agree with the submissions of counsel for the Respondent that the Appellants cannot claim  ownership of the  20 acres of land given to   the Muslim community  by the colonial government simply  because their grandfather was doing  religious missionary  work  .  On the  land.  And this was brought  out in the testimonies of PWI,  sheikh  Muhamad Kibanga  and PW2,  Hajji Musa  Ssonko  who was aged 80 years.  Reference  was made to exhibit  PI dated 13.1.1939.

 

So PW3,  Hajji Sebuwufu  Magala  only corroborated the evidence of PWI,  PW2 and PW4,  and so, appellant’s  counsel cannot claim that the trial Magistrate over relied on the same.

Ground  3 of appeal is accordingly  rejected.

 

Ground No. 4

The learned trial Chief Magistrate erred in law and fact  when she failed to properly  address her mind on strong defence evidence of DW4  (Nyonzima Vincent) and  erroneously  misconstrued it in favour of Respondent.

 

Some of these grounds of appeal are repetitive as the testimony of DW4 Vincent Niyonzima has been touched on as far as evaluation of evidence is concerned. 

The submissions that the trial  Chief  Magistrate  misdirected  herself on the same  cannot  stand.  On page 45  of the proceedings,  DW4  stated :-

The  Commissioner   Land Registration  wrote  to the Ag. Commissioner mapping and surveys  seeking clarification on  Plot 13  land at Bujuuko.  Feed back was that, referring  to  copy of  area scheduled dated 6/2/2008 that by that copy Plot 51 and 52  were forming plot 13.  This statement was very unclear and ambiguous.  Further  clarification was  sought and response was in a letter dated 16/10/2013  by Joseph  Kakooza.  It affirmed that sub division of plot 13  that had resulted into creation of plots  51,52, and 53  was cancelled and Plot 13  was thus re-instated.” 

 

From the above testimony  and other  evidence on record, it is clear that the certificate of title applied for and granted to  Haruna  Mukiibi and Namakula aisha sarah as administrators of the late Asuman Kato Mukiibi on 15.4.2011  was not  done  in good faith.  It was done to defeat the Respondent’s  title issued  earlier in 1998 and the appellant’s  had already seen that title when it was exhibited  in Court.   The question to be resolved here is who was fooling who? Or who was trying to defeat the earlier  registered interest of who?  It is  clearly the appellants to blame as clarified  by DW4, Niyonzima.

 

When the commissioner land Registration sought  clarification on plot 13  and plot 51 Block  40 as per exhibit P14 A, the Commissioner  Surveys  replied to the letter  and they confirmed that the second  title of the Defendants  (now  appellants) was indeed placed on the Plaintiff’s  title  (now  Respondent) and  that the two could not exist at the same time.  Indeed they cancelled the said Title on the area schedule and the original   Plot 13  was re-instated.  

In the premises,  I find no  fault on the part of the trial chief Magistrate that   she  erroneously  misconstrued the evidence of DW4,  Niyonzima Vincent  to favour  the Respondent.  Ground 4 of appeal is  therefore rejected.

 

Ground 5 

The Learned  trial chief Magistrate erred  in law and fact when she failed to decide from the evidence on record  which of the two land titles in issue  of the appellants of Plot 51  Mawokota Block  40 at  Bujuuko Mpigi  (Exhibit D5 ) and that of the Respondent  of Plot 13  Mawokota Block  40 at Bujuuko Mpigi (Exhibit P5)  was fraudulently  procured  a key factor for decision in the case before her.

 

 

The issue of alleged  fraud  has already been discussed and resolved in favour  of Respondent  under  ground  3.

 

Ground 6 

The learned trial Chief Magistrate erred in law and fact when she failed to properly evaluate, scrutinize and upraise  the evidence on record hence hastily  arriving at a wrong  conclusion.

This ground  which is about evaluation of evidence by the trial Chief Magistrate has also been covered

 

Ground  7

The  Learned trial chief Magistrate erred in law and fact  when she allowed the Respondents’  submission  that were  based on issues not agreed upon at  conference scheduling hence arriving at a wrong decision.

 

First of all, on page 5 of the Judgment of the trial chief Magistrate, the issues  agreed upon by  both  parties  were stated  as follows:

 

  1. Whether  the disputed land belongs to the  Plaintiff.
  2. Whether the Plaintiff fraudulently  acquired  lease/title to the disputed land
  3. Whether the Defendants have any legal protectable interest on the land
  4. What are the remedies?

 

Then the trial  Magistrate went on to state the reasons why  Judgment delayed but appreciated  the submission of both advocates and  .  In the body of the lower Court judgment,  she referred to the submissions and witnesses on both  sides.  I therefore find no merit under this ground of appeal and the same is hereby rejected.

 

Ground  8

The learned trial Chief Magistrate erred in law and fact  when she failed or ignored to consider all written submissions of Appellants on record especially on an illegality and arrived at a wrong  conclusion

This ground is more less repetitive, argumentative and not  substantiated.  I  would have expected  counsel for the appellant to  state that he submitted on such and such point of  law or evidence but it was ignored.  One cannot  under   blanket cover  that all his submissions were ignored and in the earlier grounds I have touched on the issue of locus  standi.  The Constitution of this country  under Article  126 (2) (e)  emphasizes  substantive Justice as opposed to technicalities.  The main contention in this case was whether  the land in dispute  is for the appellants or for Uganda  Muslim Supreme Council.  And that has been addressed.  O. 43  r 2  of the civil procedure  Rules provides  that the appellant shall not,  except by leave of the court,  urge or be heard in support of any  ground  of objection not set forth in the  memorandum of appeal.  So since  there was no ground  on illegality set out as a distinct ground of appeal,  then  ground  No. 8 of appeal is misplaced and is hereby rejected.

 

Having  rejected all the grounds of appeal, and  for the reasons given, I do hereby dismiss  the appeal.

 

Secondly, I do hereby direct the Registrar of titles  to cancel  the title  comprised in  Block  40 Plots  51,52 and 53  as it was issued when the earlier  title in respect of Block  40 Plot 13  in Respondents names  over the same land  was and is still subsisting.

 

Thirdly, I pronounce that the land in dispute belongs to the  Respondents,  Uganda Muslim supreme Council.

 

Finally, in view of the long time this case has taken, and since the Appellants  are Muslims and therefore  part  of  the fraternity  who constitute  Uganda Muslim  Supreme Council,  then I shall exercise  this Court’s discretion not to condemn  them in costs.

 

I order that each party meets their own costs.

 

 

………………………..

W. Masalu Musene

Judge

06/02/2018