THE REPUBLIC OF UGANDA
IN THE SUPREME COURT OF UGANDA
(CORAM: ODER, TSEKOOKO, MULENGA, KANYEIHAMBA AND KATO
CIVIL APPEAL No. 16 OF 2002
1. KAMPALA DISTRICT LAND BOARD ]
2. GEORGE MITALA
[Appeal from the judgment of the Court of Appeal at Kampala
(Mukasa-Kikonyogo, DCJ, Okello and Twinomujuni JJ.A) dated 6th
August, 2002 in Civil Appeal No.20 of 2002]
JUDGMENT OF TSEKOOKO, JSC
This is a second appeal arising from the judgment of the Court
of Appeal which allowed an appeal by the Respondents
decision of the High Court. The facts of the case may be simply stated:
The first appellant is a body corporate created under the Land Act, 1998,
and is responsible for administration and management of
land in Kampala
The respondents, who are some of the twenty original plaintiffs
at the trial, were occupants of a plot of land situate at Ndeeba in
of the City of Kampala, Kampala District, and described as plot 1028 block 7
Kibuga, hereinafter referred to as the "suit
land". On 8th November, 2000, the
1st appellant allocated the suit land to the 2nd appellant for a lease. A formal
lease was subsequently
offered to the latter. He accepted the lease offer and
was on 20/11/2000 registered as the proprietor of the suit land. A Certificate
of Title in respect thereof was accordingly issued to him.
who felt aggrieved by the leasing sued the appellants jointly and severally
seeking, inter alia, declarations that
the respondents were bona fide/lawful
occupants and/or customary owners of the suit land; that the 1st appellant
the suit land to the 2nd appellant and that the latter
obtained the lease thereof wrongfully, unlawfully and fraudulently.
appellants filed their respective Written Statements of Defence in which they
denied the respondents' claim.
After pleadings in the High Court were
closed, Katutsi, J, held a scheduling conference at which facts agreed
upon were recorded
as follows: -
1. The 6 plaintiffs are
occupants of the suit
2. Second defendant is the
registered proprietor of the suit property described as leasehold Vol.287 Folio
9 Block 7 Plot 1028 at Ndeba.
first defendant is the statutory owner of the suit
Thereafter 21 sets of documents
for the respondents were admitted in evidence.
None was admitted for the 1st
appellant but "photocopies of drafts for compensation for all the plaintiffs"
were admitted as exhibit
DI for the second appellant.
This was followed
by the framing of five issues this way: -
1. Whether the plaintiffs are
lawful or bonafide occupants of the suit
2. Whether the plaintiffs are
customary owners of the suit
3. Whether the suit land was
available for leasing to the second defendant at the time of the grant of
4. Whether the second defendant
obtained the certificate of title
should be noted that although the plaint alleged that the lease was registered
fraudulently, fraud was not made an issue.
The suit was fixed for hearing
on 1/11/2001. Apparently the hearing did not take place. Somehow, on 31/10/2001
counsel for the respondents
filed their written submissions. The 2nd appellant
filed his written submissions on 1/11/2001 which was followed by the written
of the 1st appellant which was filed on 5/11/2001.
trial judge delivered his brief judgment on 21/12/2001. In it, he alluded to
section 30(1) of the Land Act, 1998.
He then stated:
"There is no evidence on record nor is it agreed that plaintiffs were
persons occupying the land by virtue of the repealed laws mentioned
is no evidence nor was it conceded or argued that the plaintiffs entered upon
the suit property with the consent of
the registered owner. There is no evidence
to suggest that the plaintiffs were customary tenants whose tenancy had not been
or compensated for by the registered owner. In short there is
nothing on record to bring the plaintiffs under the ambit
of section 30 (1) of
the Land Act, 1998"
The learned judge then briefly
discussed who is a "bona fide occupant" in terms of S.30 (2) of the Act.
Thereafter he held that the
respondents were not bona fide occupants. So he
answered the first and second issues in the negative. In consequence he answered
the third and fourth issues in the affirmative. It is a little puzzling that the
learned trial judge fixed a date for hearing evidence,
but he apparently
cancelled that and relied on documents. He then decided the suit on basis that
there was no evidence.
In the Court of Appeal there were eight grounds of
appeal. The seventh ground of appeal complained that the judge erred when he
the case against the respondents without affording them proper
Okello, J.A, delivered the lead judgment with which the other
Justices of Appeal on the panel agreed. At page 7 of his judgment, the
Justice of Appeal lamented the conduct of the trial by the trial judge in these
"At the scheduling conference held on 25/9/2001, admitted facts were
recorded. Documentary evidence was received and issues for determination
court were framed. Thereafter the case was set down for hearing on
1/11/2001. However, the promised hearing was
not conducted, thus shutting out
oral evidence. Counsel for both parties and the trial court appear to have
agreed that the framed
issues could be determined on the law (S.C.) admitted
facts and the documentary evidence received alone. Counsel for both parties
filed written submissions which were followed by the judgment of the Court. No
oral evidence was called.
I think that was a flaw. The judgment of the trial judge indicated that
those issues could not have fairly been determined without
oral evidence. The
trial judge remarked in his judgment on several occasions that there was no
evidence to prove this or that. This
shortcoming could have been avoided had the
promised hearing been conducted. The lacking evidence could probably have been
Learned counsel for the appellants made half-hearted complaint before
us about this point and abandoned it. He even abandoned ground
7 which was on
the point. I therefore cannot pursue the point any
This means that the learned Justice of
Appeal held that there was a mistrial.
I cannot comprehend why the learned
trial judge did not hear oral evidence on 1/11/2001. If there was change of
heart by any
party about adducing oral evidence,
this should have
been recorded. In his lamentation about absence of evidence to prove certain
points, as quoted earlier, the learned
Justice of Appeal does not blame it on
failure by any party to adduce evidence. Could this have been due to the
inexperience of the
trial judge and advocates in the implementation of the new
rules of Order XB of CP Rules which had come into force in 1998? There
ready answer. However I can certainly say that by the time the trial judge wrote
his judgement he was aware that material evidence
should have been adduced to
enable him decide the case on merit. I think that at that stage it would have
been prudent for the trial
judge to have stopped writing the judgment. He should
have asked the parties to adduce evidence or give reasons for not doing so.
Failure to do so rendered the trial a mistrial.
In spite of the
misgivings which the Court of Appeal had about the conduct of the trial, the
court did not order a retrial but decided
the appeal on merits and reversed the
decision of the trial judge. It can be said that in normal circumstances, where
a trial is
conducted properly, the Court of Appeal would be justified in
deciding the merits of the appeal on the basis of whatever material
there was on
the record. But the trial in this case was fundamentally
The appellants filed the following grounds of appeal.
1. The learned Justices of Appeal erred in law when they held that the
occupation of the suit land by the respondents without any lease
or licence from
the controlling authority constituted their customary right of
2. The learned Justices of Appeal erred in law and fact when they held the
respondents to be customary owners of the suit land without
evidence to prove
the customs applicable.
3. The learned Justices of Appeal erred in fact when they held that the
respondents had occupied the suit land or bought it from those
who had occupied
it unchallenged for 40 years.
4. The learned Justices of Appeal erred in law and fact when they held
that the Kampala District Land Board had no authority over the
5. The learned Justices of Appeal erred in law when they held that the
procedure prescribed in the Land Regulations, S.l No.16 of 2001,
to the allocation of the suit land.
6. The learned Justices of Appeal erred in law and fact when they relied
on fraud which had not been pleaded and strictly
It is obvious that most, if not all, the
objections in the above grounds of appeal hinge on evidence partly contained in
admitted at the scheduling conference and partly on speculation
about missing oral evidence which was never given because of the
adopted by the trial court.
In the light of what I have pointed out above and
of the order I intend to propose, it is not desirable to discuss the written
filed by both sides.
In my opinion this is a case where oral
evidence should be adduced to establish claims of each of the parties.
would therefore allow this appeal, set aside the decisions and orders of the two
courts below except orders made during scheduling
conference. I would order that
the trial of the suit should proceed by recording whatever oral evidence each
party may wish to adduce.
The scheduling conference which was held on 26/9/2001
should form the basis of the resumed trial. The case should be remitted back
the High Court for that purpose.
Considering that it is the error of the
trial court which has led to this decision, I would order that each party bears
its own costs
here and in the Court of Appeal. The costs in the trial court
should abide the results of the resumed trial.
JUDGMENT OF ODER, JSC
I have had the advantage of reading in draft the judgment of my learned
brother, Tsekooko, JSC. I agree with him that the appeal should
be allowed and
that the decision and orders of the Court of Appeal and of the High Court should
be set aside. The case should be
remitted to the High Court for completion of
the trial. I also agree with orders for costs as proposed by Tsekooko JSC.
Since the other members of the Court also agree, the orders of the Court
shall be as proposed by Tsekooko JSC.
JUDGMENT OF MULENGA JSC.
I have had the benefit of reading in draft the judgment of my brother
Tsekooko, JSC. I agree with him that the appeal should be allowed.
I also agree
with the orders he has proposed.
JUDGMENT OF KANYEIHAMBA, J.S.C.
I have had the benefit of reading in draft the judgment of Tsekooko, JSC. I
agree with him that the appeal should be allowed. I also
agree with the orders
he has proposed.
JUDGMENT OF C. M. KATO, JSC.
I have had the advantage of reading the judgment of my brother Tsekooko,
JSC, in draft. I agree with him that this appeal should be
allowed. I also agree
with the orders he has proposed. I would allow the appeal.
Dated at Mengo this
17th day of