IN THE HIGH COURT OF UGANDA AT KAMPALA
CIVIL APPEAL NO. 103 OF 1998
(Arising from Original Civil Suit No. 457 of 1997 of the Chief Magistrates Court of
Mengo at Mengo)
GASTER LULE :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPELLANT
VICTORIA HARDWARE & TOOLS LIMITED::::::::::::::: RESPONDENT NO.1
BUYAYA TECH1NICAL SERVICES LIMITED ::::::::::::::::RESPONDENT NO.2
BEFORE: THE HONOURABLE MR. JUSTICE FMS EGONDA-NTENDE
2. The appellant contended that according to the agreement of sale, the Respondent No. 1 undertook to introduce the appellant to the local council officials and the Buganda Land Board, the controlling authority, for the land in question. The Respondent No. 1 failed to do this, and when the appellant approached the Buganda Land Board, seeking a lease over the suit property, he discovered that the Respondent No. 2 was seeking a lease over the same property from Buganda Land Board. The Buganda Land Board deferred to making a decision on either application until the dispute between the parties was resolved by a court of law.
3. As against the Respondent No. 2, the appellant contended in his plaint that it had committed acts of trespass on the suit land, and had acted fraudulently with the Respondent No. I to deprive the appellant of the suit land. The appellant sought as against the Respondent No. 2 a declaration that the appellant was the lawful owner of a kibanja in dispute, and a permanent injunction restraining it from entering or taking possession of the kibanja in question.
4. The Respondent No. 1 did not enter an appearance or a defence in the court below and the trial proceeded in its absence. The Respondent No. 2 opposed the action in the court below, and in its defence asserted that the Respondent No. 1 had never owned the suit land at any one time. At all material times one Grace Wilson Kalemba Lumala who was the registered proprietor thereof had owned this land. In 1996 the said Lumala had sold his interest in the suit land to the Respondent No.2 who continued with development of the suit property.
The Appellant produced four witnesses and the Respondent No.1 produced three witnesses in support of their respective cases. The learned trial magistrate in a carefully written judgement evaluated the evidence adduced in support of each agreed issue and arrived at the conclusion that the suit property had previously been owned by Grace Lumala who had transferred his interest to the Respondent No.2. The appellant, the trial magistrate concluded, had not acquired any interest in the suit property, as the Respondent No.1, from whom it claimed title, had no title to pass on. The relationship between the Respondent No. 1 and Grace Lumala had been that of mortgager and mortgagee.
6. The appellant set forth 7 grounds of appeal. At the hearing of the appeal, learned counsel for the appellant, Mr. Wilfred Niwagaba, told court that he would argue grounds 1, 3 & 4 together, and grounds 2 & 5 jointly. I will set out grounds 1, 3 & 4 first.
7. “1. The learned Trial Magistrate erred in law and fact in finding that by 5th July 1996 and by the end of December 1996, Grace Wilson Kalemba Lumala was the rightful owner of the suit land, and thereby arrived at a wrong decision, occasioning a miscarriage of justice.”
9. “4. That the Learned Trial Magistrate erred in law and fact in finding that the First defendant could not pass on any good title to the Plaintiff, and thereby arrived at a wrong decision, occasioning a miscarriage of justice.”
10. Mr. Niwagaba Wilfred, learned counsel for the appellant, submitted that the said grounds related to ownership of the suit property. As at the 5th July 1996 the trial court erroneously found that this property belonged to Lumala, while in the evidence, according to Exhibit P9, it belonged to the Respondent No. 1. He submitted that the trial court never reviewed the evidence of the plaintiff on this matter and did not give any reasons for disregarding it. The evidence of PW 1 and PW2 clearly showed that the Respondent No. 1 was the owner of the suit property at the material time in its unregistered form. He further submitted that the contradictions between the testimony of DW1 and DW2, as to how and when DWI came to know DW2, show that the Respondent No.1 sold the land in dispute to Respondent No.2.
Mr. Niwagaba argued that the role of Mr. Lumala was only to sign a recommendation for he was the person in whose names the expired title was held. Mr. Niwagaba referred to exhibit P8, which was a transfer form signed by DW2 in favour of Respondent No.1 dated in 1992. The testimony DW3 confirms that the local council officials recognised the Respondent No. I as the owner of the land in dispute. The learned trial Magistrate ignored evidence of possession by the Respondent No.1 between 1992 and 1996. As the Respondent No.1 had not entered a defence, it must be taken that it had admitted the allegations set out against it in the claim. Counsel referred to the decision of British Tutorial College 1965 EA 323 in support of this submission. [I was unable to trace this decision at the citation provided.]
12. Arguing grounds 1 and 5, Mr. Niwagaba submitted that the trial magistrate basically relied on lease extensions on the question of acquisition of good title. This was contrary to the