Court name
Supreme Court of Uganda
Judgment date
10 November 2003

Justine EMN Lutaya v Stirling Civil Engineering Company Ltd (Civil Appeal-2002/11) [2003] UGSC 39 (10 November 2003);

Cite this case
[2003] UGSC 39



Coram: Oder, Tsekooko, Mulenga, Kanyeihamba, Kato JJ.S.C.

CIVIL APPEAL No.11 of 2002



(Appeal against the whole decision of the Court of Appeal (Okello,
Mpagi-Bahigeine, Engwau, JJ.A.) at Kampala dated 25.7.01, in Civil


Justine E.M.N.Lutaya, the appellant, sued Stirling Civil Engineering Co.
Ltd., the respondent in the High Court, claiming damages
for trespass on land
comprised in mailo Register Kyaggwe Block 191 Plot 34 at Bwawanya, "the suit
land". The High Court dismissed
her suit, and subsequently the Court of Appeal
dismissed her first appeal. She now appeals to this Court.

appellant purchased the suit land in 1981, for purposes of stone quarrying. She
was registered as sole mailo owner of the suit
land on 16 June '81. In 1984, she
granted a lease of the suit land for 49 years, to Timber and Tools Ltd., "TT
company", in which
she was a shareholder. Her son Mulangira Lutaya, Karia and
the said Karia's father were also shareholders in TT Company. By virtue
of its
shareholding, TT Company was non-African. The lease was registered as an
encumbrance on the mailo title. TT Company was to
carry out the quarrying
business on the suit land. However, owing to insecurity in the area at the time,
TT Company did not move
onto the land immediately. In 1988, Mulangira Lutaya
discovered that the respondent was carrying out quarrying operations on the
land, excavating stone, gravel and murram, for road construction. The respondent
had entered onto the land, without the appellant's
consent or knowledge.
Mulangira Lutaya tried to stop the respondent's operations, but in vain. He
instructed advocates to take out
court action. Two suits were taken out in the
name of TT Company as lessee. The first, Civil Suit No.M39/88, was filed in the
Magistrate's Court at Mukono. That court granted an injunction restraining
the respondent but the respondent apparently ignored it.
The second, Civil Suit
No.475/91, was filed in the High Court, but appears not to have been pursued.
Initially, when contacted, the
respondent contended that it entered upon the
suit land and carried out the said operations under licence given by one Ruth
who it took to be the owner of the land.

In the meantime,
Ruth Sirimuzawo instituted in the High Court, Civil Suit No.897/88, against the
appellant, TT Company and two others.
In its judgment dated 10 June '94, the
High Court held that the appellant was the lawful owner of the suit land. It
also declared
that no leasehold title ever vested in TT Company, because the
agreement to lease, was made before obtaining the Minister's consent.
to that judgment, the respondent agreed to negotiate with the appellant on what
it should pay for the materials it had
excavated from the suit land.
Unfortunately, no agreement was reached. In May '95, the appellant decided to
commence the suit from
which this appeal emanates.

In the plaint, she pleaded that she was the registered proprietor of a mailo
estate in the suit land and that a lease she had granted
to the lessee company
was nullified. She prayed for, inter alia, general, exemplary and
aggravated damages for trespass, and for the value of materials excavated from
the suit land, as well as for
interest and costs. The respondent, while
admitting that it carried out the operations complained of under licence of Ruth
pleaded that the appellant suffered no loss, and in the alternative
that she had no capacity to institute the suit, and that she
was precluded from
suing, while the suits by TT Company on the same matter, were still pending. At
the trial, five issues were framed
for determination, but the suit was
eventually decided on the first two, which were framed thus:

1. whether the suit land belongs to the plaintiff;

2. whether the defendant trespassed on the plaintiffs

The trial court answered both issues in the
negative. The first appeal was on 11 grounds of appeal, but the Court of Appeal
it on one ground only. It held that notwithstanding her ruling, on a
preliminary objection, that the plaint disclosed a cause of
action, the learned
trial judge, after hearing evidence, rightly found that the appellant had no
cause of action, and so lacked the
capacity to sue. She was not bound by the
holding on the preliminary objection, which was based on an assumption that the
of facts in the plaint were true. According to the Court of Appeal,
the holding that the appellant lacked capacity to sue, was enough
to dispose of
the appeal.

The appeal to this Court is on four substantive grounds.
What purports to be a fifth ground is a verbatim reproduction of the grounds
appeal that were preferred in the Court of Appeal. It is an attempt to amplify
the fourth ground, which attempt grossly offends
r.81(l) of the Rules of this
Court. I shall not consider it as a ground of appeal. In brief, the four grounds
are that The learned Justices of Appeal erred

1. - in failing to
re-evaluate and appreciate all the evidence in the trial court and subject it to
fresh and exhaustive scrutiny and for
those reasons came to an erroneous
conclusion that the appellant had no locus
2. - in
holding that a joint owner cannot sue on her own in
3. - when
they held that the appellant was a joint owner of the suit

and failed to deduce that for
the period under consideration the

appellant was the sole
registered owner; and

4. - when they disposed of
the appeal on one ground only and failed to consider and make a finding on all
the other grounds in the Memorandum


At the hearing of the appeal, Mr. Lule, counsel for
the appellant, chose to address the Court on the case generally, without
his submissions on the lines of the grounds of appeal. He criticised
the Court of Appeal for upholding the trial court decision,
that the appellant
had no locus standi to sue, when the trial had proceeded on the premise,
that she had a cause of action. He submitted that this denied the appellant fair
trial. His core submission, however, was that the holding that the appellant did
not have capacity to sue, was a result of misdirection
on the appellant's cause
of action. He pointed out that the court based its decision on the fact that the
appellant filed the suit
when she was no longer owner of the suit land, but
erroneously failed to appreciate that she was entitled to sue in respect of
committed while she was the mailo owner of the suit land. He submitted
that apart from a minor typing error in the plaint, the rest
of the record
clearly showed that the appellant's suit was restricted to the trespass
committed when she was the registered mailo
owner. Counsel indicated that early
in the trial he had drawn the trial court's attention to the minor error in
paragraph 3 of the
plaint where it reads, "plaintiff is the registered
proprietor" and asked court to amend it to read, "plaintiff was the registered
proprietor". He maintained that, all along the respondent knew this. In the
notice before suit, which the respondent admitted in
the statement of defence,
it was clearly stated that the appellant had already transferred her interest in
the suit land.

Mr. Lule also contended that throughout the material
time, the appellant had legal possession of the suit land, and was therefore,
entitled to sue for trespass on it. He argued that since the lease she had
granted was of no legal consequence as declared by the
High Court in Civil Suit
No. 897/88, TT Company did not at any time, have lawful possession of the suit

Mr. Mutaawe, counsel for the respondent, submitted that the
grant to the TT Company was lawful and was still subsisting, as is evident
its registration as an encumbrance on the certificate of title annexed to the
plaint. Counsel argued that upon granting that
lease, the appellant parted with
possession of the suit land, and could not sue for trespass on it. He further
submitted, that the
fact that TT Company filed the two suits, against the
respondent, in regard to the same subject matter, confirmed that it, and not
appellant, was in possession of the suit land from the commencement of the lease
in 1984.

I should observe at the outset, that Mr. Lule's assertion
that the record clearly shows that the plaintiffs suit related to only the
trespass that occurred while she was mailo owner, is not entirely accurate.
True, the record confirms that, in the notice before
suit, which notice was
admitted in the statement of defence, the respondent was informed that the
appellant had already transferred
the land. The record also confirms that during
submissions on the preliminary objection on the appellant's capacity to sue, the
counsel asked the trial court to amend the plaint in paragraph 3 by
substituting "was the registered proprietor" for "is the registered
For reasons not apparent on the record, however, the amendment was not effected.
Elsewhere, the record does not support
Mr.Lule's assertion. There is where it
appears that the appellant's claim is restricted to damage to her reversionary
interest only,
and where it appears to extend to trespass committed after she
transferred the suit land. Thus, it is averred in paragraphs 5 and
7 of the
plaint, respectively, that -
"5...the defendant also continues to
exploit the plaintiffs land depleting the stone, gravel, and murram
and "7...the plaintiff.....has incurred and
continues to incur extensive financial loss by being deprived of the income
from the murram, gravel, aggregate and other stone products from
the rock excavated and blasted."

Secondly, part of the prayer in the
plaint relates to materials taken after she transferred her title. Thirdly, the
appellant's counsel
has not been consistent in his submissions on the
appellant's locus standi. In this appeal, he is assertive that the
appellant sued as the mailo owner who was in legal possession during the
material period,
because the purported lease was a nullity. During the
preliminary objection in the trial court, he contended, and was upheld by the
learned trial judge, that the appellant was suing for damage caused to her
reversionary interest in the suit land. That position
appears to me to be tacit
acceptance that TT Company was in possession during the material period. In the
Court of Appeal, counsel
was equivocal on the issue. In the written submissions,
he made the point that after the High Court decision in Civil Suit No,897/88
declaring the lease a nullity, and dismissing Ruth Sirimuzawo's adverse claim,
all interest in the suit land was vested in the appellant.
However, the main
thrust of the submission was that the Court of Appeal should uphold the trial
court's preliminary finding that
the appellant sued in respect of her
reversionary interest.

The foregoing may well have led, or substantially contributed, to
overshadowing of the real question in controversy, and to its remaining
unresolved in the end. I should add, however, that the framing of the
issues also did not help. The issues were unnecessarily focused on ownership of
the suit
land, without a time frame, or identification of the trespass under
consideration. It is obvious that in answering the first two
issues in the
negative, namely that the suit land does not belong to the appellant, and that
the respondent did not trespass on the
appellant's land, the trial court focused
on the time when the suit was filed, rather than the time when the trespass was
In upholding the trial court decision, the Court of Appeal reiterated
that the appellant had ceased to be sole owner of the suit
land. Both courts
held that the appellant had no capacity to sue because she was not the owner of
the suit land when she filed the
suit. Neither court considered the appellant's
capacity to sue for the trespass committed while she was still the owner of the

Whether or not this resulted from the misleading aspects
in the pleadings and submissions of the appellant's counsel, which I have
indicated, and/or from inadequate framing of issues, in my view upon proper
evaluation, the real question for determination is discernable
from the jungle
of pleadings. The appellant came to court, by way of a suit in trespass, to
recover against the respondent, damages
as compensation for unauthorised
exploitation of her land, over a period. The respondent admitted the
exploitation, but disputed
the claim for compensation, mainly on the ground that
no cause of action had accrued to the appellant as she had not incurred loss.
According to the respondent, the appellant having leased out the suit land, she
was only entitled to rent due from the lessee, and
was not deprived of earnings
from quarry business. As I have indicated, the courts below did not consider the
dispute from that perspective.
I think therefore, that it is necessary and
appropriate for this Court to consider the appellant's claim in respect of the
and exploitation that occurred before she transferred the suit land.
I proceed to do so.

Trespass to land occurs when a person makes an unauthorised entry upon land,
and thereby interferes, or portends to interfere, with
another person's lawful
possession of that land. Needless to say, the tort of trespass to land is
committed, not against the land,
but against the person who is in actual or
constructive possession of the land. At common law, the cardinal rule is that
only a person
in possession of the land has capacity to sue in trespass. Thus,
the owner of an unencumbered land has such capacity to sue, but
a landowner who
grants a lease of his land, does not have the capacity to sue, because he parts
with possession of the land. During
the subsistence of the lease, it is the
lessee in possession, who has the capacity to sue in respect of trespass to that
land. An
exception is that where the trespass results in damage to the
reversionary interest, the landowner would have the capacity to sue
in respect
of that damage. Where trespass is continuous, the person with the right to sue
may, subject to the law on limitation of
actions, exercise the right immediately
after the trespass commences, or any time during its continuance or after it has
ended. Similarly
subject to the law on limitation of actions, a person who
acquires a cause of action in respect of trespass to land, may prosecute
cause of action after parting with possession of the land.

For purposes of the rule, however, possession does not mean physical
occupation. The slightest amount of possession suffices. In Wuta-Ofei v
(1961) 3 All E.R.596, at p.600 the Privy Council ...put it thus
"Their Lordships do not consider that, in order to establish
possession, it is necessary for the claimant to take some active step
relation to the land such as enclosing the land or cultivating it. The type of
conduct which indicates possession must vary with
the type of land. In the case
of vacant and unenclosed land which is not being cultivated, there is little
which can be done on the
land to indicate possession. Moreover, the possession
which the respondent seeks to maintain is against the appellant who never had
any title to the land. In these circumstances, the slightest amount of
possession would be sufficient."
In two leading authorities in East
Africa, it was held that a person holding a certificate of title to land, has
legal possession
of that land. In Moya Drift Farm Ltd v Theuri
(1973) E.A. 114, the Court of Appeal for East Africa considered the issue in
light of Kenyan statutory provisions. The trial court
had dismissed a suit by
the registered proprietor of land, on the ground that at the time of the
unlawful entry complained of, the
proprietor was not in possession. On appeal,
counsel for the proprietor argued that while the decision may have been in
with the English law, it was inconsistent with s.23 of the
Registration of Titles Act of Kenya. In his judgment, Spry, V.P. said
at p.115
"I find this argument irresistible and I do not think it is necessary
to examine the law of England. I cannot see how a person could
possibly be
described as 'the absolute and indefeasible owner' of land if he could not cause
a trespasser on it to be evicted. The
Act gives a registered proprietor on
registration and, unless there is any other person lawfully in possession
such as a tenant,
I think that title carries with it legal possession; there

He noted that s.23 of the Kenya statute was similar to s.56 of the
Registration of Titles Act of Uganda, and said -

"I think the decision in Moya's case represents what the law should be
in Uganda. It is an authority. I therefore, hold that a person
holding a
certificate of title has, by virtue of that title, legal possession, and can sue
in trespass."

Mr. Mutaawe submitted that both Moya's case
(supra) and United Cultivated case were wrongly decided, and
he invited this Court not to follow them. He contended that the latter case was
inconsistent with s.61 of
the RTA of Uganda, as well as the current protection
the Constitution accords to untitled but legitimate and bona fide
occupants of land. With due respect, I do not agree with counsel's
contention. I do not see any inconsistency between the decision
in United
Cultivate's case
(supra), and the provisions of s.61 of the RTA, or Art.
237 Clause (8) of the Constitution. The import of the decision in that case,
in Moya's case (supra), is that in absence of any other person
having lawful possession, the legal possession is vested in the holder of a
of title to the land. In the event of trespass, the cause of action
accrues to that person, as against the trespasser. I do not think
that it is
necessary in this judgment, to examine in any detail the protection given to
legitimate and bona fide occupants of land by the said statutory and
constitutional provisions to which counsel referred. Clearly, the provisions are
not intended
to protect a trespasser, which the respondent was. I would
therefore, hold that Moya's case (supra) and Uganda
Cultivate's case
(supra) still correctly reflect the law.

In the instant case the courts below did not make clear findings on
possession of the suit land at the material time. In particular,
the Court of
Appeal did not advert to the link between capacity to sue in trespass, and
possession of the land trespassed on, though
counsel on both sides addressed it
on the issue. The appellant in the instant case, was sole registered mailo owner
of the suit land
from 16 Aug. '81, until 27 April '95. During that period she
was its absolute and indefeasible owner. As long as no other person
was lawfully
in physical possession, she had legal possession of the land, with the capacity
to sue in trespass. It is in that connection,
that counsel for the respondent
forcefully argued that during the material period, the appellant was not in
possession of the suit
land. He submitted that TT Company had the legal
possession of the suit land by virtue of the 49 years lease granted to it in
and continued to have it, as long as the lease continued to be registered
on the certificate of title.

According to the evidence, TT Company,
never acquired physical possession of the suit land. It sought to do so, through
court action
that I referred to earlier in this judgment. However, despite
obtaining from the Chief Magistrate's court an order of injunction
against the
respondent, it did not succeed to gain physical possession. That leaves for
consideration, whether by virtue of its registered
lease, the company had legal
possession of the suit land. The circumstances surrounding the lease were not
subject of much evidence
in this case. However, in the judgment of the High
Court in Civil Suit No.897/88, which was produced in evidence as Exh.D3,
J., as she then was, found that the lessee was a non-African
company, and that it did not obtain the Minister's consent prior to
agreement, as was required by law. The learned judge held that therefore,
"the property did not vest in the company but reverted"(sic) to
the appellant. As those facts were apparently undisputed, I agree with the
holding, because these facts rendered the purported
lease an illegality under
the Land Transfer Act (Cap.202), which the court cannot overlook. In the instant
case, the learned trial
judge observed that in the earlier suit, the court made
no order to cancel the lease, and she seems to have placed significance on
continued appearance of TT Company's name on the certificate of title, as
lessee. In my view, however, the omission, by the court
in the earlier suit, to
order cancellation of the lease, and the continued appearance of the company
name on the register as lessee,
did not legalise or validate the lease. It was
illegal and therefore, void ab initio. The purported lessee could not
derive any lawful benefit or right from the illegal grant or contract. It
follows therefore, that apart
from failing to secure physical possession, TT
Company did not acquire legal possession of the suit land either. In the
I find that while the appellant was still the registered mailo
owner, no other person was in lawful possession of the suit land.
In his
submissions Mr. Mutaawe urged this Court not to interfere with the concurrent
finding of the trial court and first appellate
court that the appellant had no
right to sue. With due respect, I think that argument might be more persuasive
but not necessarily
binding, in regard to a concurrent finding of fact. The
holding in question was on a legal point, and as I have already indicated,
was erroneous. On the authorities I have cited, I would hold that, by virtue of
her certificate of title, the appellant had legal
possession of the suit land,
and therefore, the capacity to sue in trespass.

There was no serious
dispute on the respondent's trespass on the suit land. Earlier in this judgment,
I described the trespass that
the appellant complained of, and which the
respondent admitted. However, I am constrained to briefly comment on the
findings of the
courts below for clarity, in view of the order I intend to
propose. The trial court held that trespass was not proved to the required
standard. The principal ground for this holding appears to be that the appellant
failed to show in pleadings or to prove by evidence,
the date when the cause of
action arose. The court made no reference to the respondent's virtual admission
of the trespass. On the
other hand, the Court of Appeal held that the admitted
trespass was of no legal consequence, because the appellant did not have the
capacity to sue at the time she filed the suit.

In a suit for tort, the date when the cause of action arose is particularly
material in determining if the suit was instituted in
time. The commencement
date is also material where, in a continuing tort such as unlawful detention,
the duration of the tort is
a factor in the assessment of damages. In other
continuing torts, that date is of little significance. If it is outside the time
limit, such part of the continuing tort as is within the time limit, is severed
and actionable alone. Trespass to land is a continuing
tort, when an unlawful
entry on the land is followed by its continuous occupation or exploitation.
Proof of such continuous unlawful
occupation, is sufficient proof of trespass,
even if the date it commenced is not proved. With due respect to the learned
trial judge,
she erred in holding that in the instant case, trespass was not
proved to the required standard. Given that the trespass was admitted,
there was
no legal requirement for further proof. But as it is, there was sufficient proof
by the uncontradicted evidence of the
appellant and her witnesses, that between
1988, when Mulangira Lutaya first discovered the trespass, and April 1995, when
the appellant
transferred the suit land, the respondent continued the quarrying
operations without the appellant's consent.

I also respectfully
disagree with the holding by the Court of Appeal, that the admitted trespass was
of no legal consequence. Upon
the respondent committing the trespass while the
appellant was the owner of the suit land, there accrued to the appellant, a
of action, which she retained as a chose in action. She did not
forfeit that chose in action when she subsequently transferred the suit
land, as appears to be implicit in the judgment of the Court of Appeal.

In view of all the foregoing, I am satisfied that ground 1 ought to

Although counsel did not advert to the other grounds, in their respective
addresses to this Court, I have to consider them briefly,
because they were not
expressly abandoned. Grounds 2 and 3 are complaints of little significance to
the merits of this case. In the
leading judgment, Okello J.A. erroneously stated
that at the time of instituting the suit, there were three registered mailo
of the suit land, including the appellant. In reality, however, there
were only two, namely Mulangira Lutaya, and Pradip Karia. The
certificate of
title shows that only those two were registered as proprietors on 27.4.95 under
Instrument No.MKO54813. The holding
by the Court of Appeal that the appellant
was a joint owner, and that she could not sue in respect of the suit land on her
own, was
a factual error. However, it was an immaterial error which did not go
to the root of the court's decision.

Ground 6 offends r.81 (1) of the
Rules of this Court, for failure to specify the points alleged to have been
wrongly decided. In my
view, the ground as framed cannot succeed. It is not
sufficient to simply complain that a ground of appeal was not considered. If
lower appellate court decides a point wrongly because of omitting to consider a
ground of appeal, the proper way to frame the ground
for the next appeal, is to
specify the point so wrongly decided as a result of the omission. What is more,
omitting to consider and/or
decide on a ground of appeal per se, is not
an error. While an appellate court has a duty to consider all grounds of appeal
before it, it is not obliged in every case,
to make findings and decisions on
each ground. It is lawful for an appellate court to omit deciding any ground of
appeal if it is
satisfied that the appeal is properly disposed of by the
decision on any other ground, or grounds. If, in the instant case, the Court
Appeal was correct to hold that the appellant had no cause of action or capacity
to sue, its decision would be upheld, notwithstanding
the omission to consider
the other grounds of appeal. However, I am constrained to say that it is
preferable for an intermediate
appellate court, to make its findings on all
material grounds of appeal, so that the final court of appeal gets advantage of
views on all aspects of the case. That leads me to another matter, which I
should comment on, before taking leave of this appeal.

The learned
trial judge made no finding on what remedy she would have awarded to the
appellant if the suit had succeeded. It appears
that the practice of a trial
court making such findings has fallen into disuse. I think, that is a
regrettable trend, which ought
to be reversed. Undoubtedly the practice has the
advantage of saving time, and of ensuring that the assessment of the appropriate
remedy is done by the trial judge who heard the evidence first hand. Although
under S.8 of the Judicature Statute, 1996, this Court
has power to make the
award, which the trial court could have made, circumstances may require that in
the interest of justice, a
case be remitted back to the trial court for such
assessment. In my opinion, the circumstances of the instant case are regrettably
such. Neither at the hearing of this appeal, nor in the trial court, did counsel
for either party make submissions on the issue of
remedy. The evidence
pertaining to the appropriate remedy, was not evaluated by the trial court.
Indeed, part of it, in form of a
valuation report, was not received because of
the trial judge's inexplicable refusal of a brief adjournment to enable the
to pay stamp duty due on that report.

For the reasons I
have indicated, I would allow this appeal, and set aside the judgments of the
High Court and the Court of Appeal.
I would instead enter a judgment for the
appellant on her claim for trespass on, and exploitation of the suit land, by
the respondent,
while she was the registered mailo owner thereof. I would remit
the case to the High Court for assessment of the appropriate remedy,
and order
that the court rehears and receives from either party, all admissible evidence
that will enable it to reach a just decision.
Finally, I would award to the
appellant, costs of this appeal and in the courts below.


I have had the advantage of reading in advance the judgment just delivered by
my learned brother Hon. Mr. Justice Mulenga, JSC. I
agree with the judgment and
the orders he has proposed. Since the other Hon. Justices of the Supreme Court,
Tsekooko, Kanyeihamba
and Kato JJ.S.C also agree with him, the orders shall be
as proposed by Mulenga, J.S.C


I have had the advantage of reading in advance the judgment which my
learned brother the Hon. Mr. Justice Mulenga, JSC, has delivered.
I agreed with
the judgment and the orders he has proposed.


I have had the benefit of reading in draft the judgment of my learned brother
Mulenga, J.S.C, and I agree with him that this appeal
ought to be

I also agree with the orders he has proposed. I would award to the appellant
costs of this appeal and in the courts below.


I have had the advantage of reading draft judgment of my brother Mulenga,
JSC. I agree with his findings that this appeal should be

I would allow it with costs to the appellant.

Dated at Mengo this 11th day of November