Court name
Supreme Court of Uganda
Judgment date
22 June 2004

Narsensio Begumisa and Ors v Eric Tibebaga (Civil Appeal-2002/17) [2004] UGSC 18 (22 June 2004);

Cite this case
[2004] UGSC 18

IN THE SUPREME COURT OF UGANDA

HOLDEN AT MENGO

CORAM: ODER, TSEKOOKO, KAROKORA, MULENGA & KATO
JJ.S.C

CIVIL APPEAL NO. 17 OF 2002
BETWEEN

1. FR. NARSENSIO
BEGUMISA ]
2. B.
NTIMBA
]
3. D.
KOMUNDA
]::::::::::::::::APPELLANTS
4. E.
KAMONDO
]

AND

ERIC TIBEBAGA :::::::::::::::::::::::::::::::::: RESPONDENT

(Appeal from the judgment of the Court of Appeal
(Mpagi-Bahigeine, Berko and Engwau JJ.A.) at Kampala, in Civil Appeal No.
47/2000,

dated 2nd July 2002).

JUDGMENT OF MULENGA JSC.

This appeal originates from a suit that the respondent filed in the High
Court in 1997, to recover four adjacent pieces of land from
the four appellants.
I will refer to the pieces together as the "suit land". In the suit, the
respondent alleged that in 1995, the
appellants unlawfully trespassed upon and
divided the suit land among themselves, and severally continued to utilise it
without his
consent. He claimed that the suit land is part of an
8-hectare-parcel of land comprised in Kinkizi Block 53 Plot 9, and described
as
"Land in Muruka Masya, Kirima sub-county", of which he is registered proprietor,
under the Registration of Titles Act (RTA).


His case was that he
bought that parcel of land as a customary holding from two persons who were
migrating from the area. In 1965,
he applied for a registered title of the land.
The adjudication committee and the government surveyors respectively verified
and
surveyed the land, after which he was granted a certificate of freehold
title, Exh.P1, in 1972. In their joint defence, the appellants
pleaded that they
were rightful customary owners of the suit land, which was different from, and
was located about 2-3 kilometres
away from the land described in the certificate
of title. They also pleaded that the respondent owns an un-surveyed 2-acre-piece
adjacent to the suit land, but denied trespassing upon it. The 4th
appellant, together with the 1st appellant who claims through him, in
addition pleaded res judicata in respect of the pieces in their
possession. They claimed that the same had been subject matter of a suit between
the respondent
and the 4th appellant, which suit was finally
determined in favour of the latter.


The learned trial judge decided
that the suit land belongs to the respondent and made an order for evicting the
appellants and permanently
restraining them from trespassing on it. He awarded
the respondent general damages in the sum of shs. 16,000,000/= with interest
and
costs. The appellants appealed to the Court of Appeal, which granted them leave
to adduce additional evidence, before hearing
the appeal. Consequently, the
evidence before the Court of Appeal was in two parts, namely, evidence adduced
during the trial and
additional evidence taken by a Commissioner appointed by
the Court of Appeal for that purpose. It is useful to first note the background
to the additional evidence, as the decision of the Court of Appeal virtually
turned on the manner in which that evidence was obtained.


The trial
court based its decision mainly on the certificate of title, Exh.P1, which the
respondent relied on as proof of ownership
of the suit land. Being convinced
that the certificate did not relate to the suit land, the appellants, in
addition to appealing
to the Court of Appeal, complained to the police that the
respondent had used that certificate to fraudulently deprive them of the
suit
land. In the course of investigating that complaint, the police engaged the
services of a surveyor from the Lands and Surveys
Department at Rukungiri, to
ascertain the locations of the land described in the certificate of title and
the suit land. The surveyor
visited the area and made a report indicating that
the two were separately located. On strength of that report, the appellants
applied
to the Court of Appeal for leave to adduce additional evidence. The
court granted the leave. It ordered that the additional evidence
be taken by a
commissioner, who may if necessary, visit locus in quo. With the consent
of both parties, it appointed the High Court Registrar the Commissioner.
Following the appointment, the Commissioner
recorded evidence from four
witnesses and received exhibits. He conducted the proceedings in the presence of
the parties and their
advocates, partly in his office in Kampala, and partly at
the locus in quo. His report, comprising oral and documentary evidence
from the witnesses and notes of his observations at the locus in quo were
submitted to the Court of Appeal, and constituted a supplementary record of
appeal.


After hearing the appeal, the Court of Appeal held that the
additional evidence was worthless because it was obtained in breach of
the rules
of natural justice, and was adduced in furtherance of a conspiracy to deprive
the respondent of the suit land. The court
noted summarily that the trial
judge's judgment was amply supported by the evidence adduced at the trial, and
accordingly dismissed
the appeal. Hence the appeal to this Court. The memorandum
of appeal to this Court contains one general ground of appeal, namely
that:
-

"The learned... Justices of Appeal erred in law and fact in that they
failed to adequately evaluate and scrutinize the evidence adduced
as a whole
with the view to coming to their own conclusion as the 1st Appellate
Court and thereby prejudiced the Appellants"



Six other
complaints are listed as consequences of that failure, which allegedly
prejudiced the appellants. They are, however, more like arguments and
illustrations in support of the principal ground of appeal. I will consider
them
as such.

The appellants' Advocates filed written submissions under r.93 of the Rules
of this Court. The main thrust of the submissions is that
the Court of Appeal
failed in its duty as a first appellate court, to scrutinise the evidence
closely and to base its decision on
pleadings, the framed issues, the evidence
as a whole and the grounds of appeal. They argue that if the court had done so
properly,
it would have concluded that the land described in Exh.P1 comprised in
Block 53 Plot 9, and located in Muruka Masya, is different
from the suit land
that is un-surveyed, unregistered and located in Muruka Kijubwe, Block 59. It
would also have found that the appellants
are customary owners of the suit land,
and have not trespassed upon it or on the respondent's land. The Advocates
criticise the Court
of Appeal for misdirection on several issues. According to
them, the court misconstrued the role of the Commissioner by wrongly proceeding
as if the appeal was against his report, rather than against the judgment of the
trial court. Secondly, they argue that there was
no rational basis for either
the court's finding that there was a conspiracy to deprive the respondent of his
land, or for its holdings
that the additional evidence was obtained in breach of
rules of natural justice, and that the Commissioner and the witnesses before
him, were biased. In the alternative, they submit that even if there had been
any bias it was not necessarily fatal to the appellants'
case. Thirdly, the
Advocates argue that the unwillingness, expressed by Berko JA, to invalidate the
respondent's certificate of title
was misplaced since invalidation of the
certificate was not in issue. The appellant's contention was that the
certificate does not
relate to the suit land. At the hearing in this Court, Mr.
Babigumira, counsel for the appellants, responding to submissions for
the
respondent, mainly stressed that no prejudice was caused to the respondent by
the surveyor's report as the respondent and his
counsel, were present when the
Commissioner received and recorded the additional evidence and cross-examined
the witnesses.

Mr. Makeera, counsel for the respondent, made oral submissions at the hearing
of the appeal, having failed to lodge a written reply
in time. His starting
point was that the Court of Appeal rightly took into account the decision of the
trial court, which had heard
the witnesses and seen their demeanour. He
submitted that the Court of Appeal was under no legal obligation to re-appraise
the whole
evidence although it had the discretionary power to do so. In support
of that proposition, learned counsel relied on the wording
of r.29 of the Rules
of the Court of Appeal, which provides that when determining a first appeal, the
court "may re-appraise the evidence". In his view, failure to invoke the
discretionary power thereby given is not a fatal error. He contended however,
that in the instant
case the Court of Appeal had amply re-appraised the evidence
and rightly rejected the additional evidence. He supported the holding
that the
additional evidence was obtained in breach of the rules of natural justice
because the surveyor's report, which was the
basis of the evidence, depended on
the appellants' information alone, without any in-put from the respondent.
Learned counsel described
the surveyor's evidence that the certificate did not
relate to the suit land, as utterly unreliable because, according to him, the
surveyor did not have the blue print when he visited the land. The learned Berko
JA., gave the lead judgment with which the other
members of the Coram concurred.
Apart from summarily re-stating the respective cases of the parties and a brief
comment on a remark
by one witness at the trial, the learned Justice of Appeal
did not refer to, let alone re-evaluate the evidence adduced at the trial.
He
focussed his attention virtually on the additional evidence only. He even hardly
evaluated that. He separately reviewed the evidence
of three witnesses and
separately decided to reject each. He did not reject the evidence because it is
false, but because he thought
that the first two witnesses obtained theirs
improperly, and that the third testified to support the appellants' conspiracy.
On the
evidence of the surveyor who made the report, the learned Justice of
Appeal concluded -

"In my view, the evidence of Mr. Nyakikura Stanley, PW1, which is the
bed-rock of the appellants' case, deserves no credit as it was
obtained in
flagrant breach of natural justice and the learned Commissioner ought not (to)
have attached any importance to it."

Of the CID officer who conducted the investigations, he said -
"
Like PW1, PW2 never met the respondent during his investigation and did not
collect statement from him. Even though he said that
he did not know where the
disputed land was, nevertheless, he confirmed that the disputed land was what
the first appellant had shown
to him. In my view, such a one sided investigation
should not carry any weight with any court of law and ought to have been
rejected
by the Commissioner with the contempt it deserved."
The third
witness, a Senior Staff Surveyor, testified inter alia that upon
discovery that the land described in the certificate of title issued to the
respondent did not tally with the land he applied
for, the assistant registrar
wrote to him requesting him to return the certificate but the respondent
refused. The learned Justice
of Appeal commented on that evidence thus -

"If indeed an error was detected as far back as the 1970's, then it is
strange that no action was taken beyond the mere letter asking
the respondent to
return the title. According to the evidence of this witness the original land
title issued to the respondent ...is
still at the land office and has never been
cancelled. If that is the truth ... how can the respondent be accused of forging
a land
title? In my view the claim by the Lands and Surveys Department that
the land title was issued in error cannot be true. This clearly lends
support to
the respondent's conspiracy theory that the Appellants conspired to take the
land from him.
At the locus in quo the Respondent tried to show the
Commissioner a print where a mark-stone
had been removed, but the
learned Commissioner was not prepared to listen to him. Instead the Commissioner
referred to the evidence
of PW1 and PW3, which I have found to be unreliable."
(emphasis is added)

These excerpts tend to support the criticism that the learned Justice of
Appeal misconstrued the role of the Commissioner. The Commissioner
did not make
findings. He had no power to reject evidence with or without contempt, nor to
attach importance to it or not. His role
was to record oral evidence, receive
exhibits and note observations at the locus in quo; and to submit the
record to the court, for the court to make its findings thereon. That is what he
did. I will consider the concerns
for which the learned Justice of Appeal
criticised and rejected the additional evidence later in this judgment. It
suffices here,
to observe that the learned Justice of Appeal allowed his
perceptions of the alleged breach of rules of natural justice and the conspiracy
theory, to obscure the necessity for him to weigh the evidence as a whole on its
merit. In the circumstances, I am unable to agree
with Mr. Makeera's view that
the Court of Appeal amply evaluated any of the evidence before it. That leads me
to consider counsel's
novel proposition that the court was under no legal
obligation to re-evaluate the evidence in view of r.29 (1) of the Court of
Appeal
Rules 1996, which provides -

"29. (1) On any appeal from a decision of a High Court acting in the
exercise of its original jurisdiction, the Court may -

(a) re-appraise the
evidence and draw inferences of fact;
and
(b) in its discretion, for
sufficient reason, take additional evidence or direct that additional evidence
be taken by the trial court
or by a commissioner."
(emphasis is
added)


I notice the slight change from the wording of the otherwise identical
predecessor to that rule, i.e. r.29 (1) of the Court of Appeal
for East Africa
Rules, 1972, which provided that " the Court shall have power, (a) to
re-appraise evidence..".
In my view, however, that change did not alter the
purport of the rule. By either wording, the rule declares the court's power to
re-appraise evidence, rather than imposes an obligation to do so. The legal
obligation on a first appellate court to re-appraise
evidence is founded in the
common law, rather than in the rules of procedure. It is a well-settled
principle that on a first appeal,
the parties are entitled to obtain from the
appeal court its own decision on issues of fact as well as of law. Although in a
case
of conflicting evidence the appeal court has to make due allowance for the
fact that it has neither seen nor heard the witnesses,
it must weigh the
conflicting evidence and draw its own inference and conclusions. This principle
has been consistently enforced,
both before and after the slight change I have
just alluded to. In Coghlan vs. Cumberland
(1898) 1 Ch. 704, the Court of Appeal (of England) put the matter as follows
-

"Even where, as in this case, the appeal turns on a question of fact, the
Court of Appeal has to bear in mind that its duty is to
rehear the case, and the
court must reconsider the materials before the judge with such other materials
as it may have decided to
admit. The court must then make up its own mind, not
disregarding the judgment appealed from, but carefully weighing and considering
it; and not shrinking from overruling it if on full consideration the court
comes to the conclusion that the judgment is wrong ....
When the question arises
which witness is to be believed rather than another and that question turns on
manner and demeanour, the
Court of Appeal always is, and must be, guided by the
impression made on the judge who saw the witnesses. But there may obviously
be
other circumstances, quite apart from manner and demeanour, which may show
whether a statement is credible or not; and these
circumstances may warrant the
court in differing from the judge, even on a question of fact turning on the
credibility of witnesses
whom the court has not
seen."


In Pandya vs. R
(1957) EA 336, the Court of Appeal for Eastern Africa quoted this passage
with approval, observing that the principles declared therein
are basic and
applicable to all first appeals within its jurisdiction. It held that the High
Court sitting on an appeal from a Magistrate's
court had -

"erred in law in that it had not treated the evidence as a whole to
that fresh and exhaustive scrutiny which the appellant was entitled
to
expect"

The principle behind Pandya vs. R (supra) was
subsequently stressed in Ruwala vs. R (1957) EA 570, but
with explanation that it was applicable only where the first appellate court had
failed to consider and weigh the evidence.
More recently, this Court reiterated
that principle in Kifamunte Henry vs. Uganda, Criminal Appeal No.
10/97 and Bogere Moses & Another vs. Uganda,
Criminal Appeal No. 1/97. In the latter case, we had this to say -

"What causes concern to us about the judgment, however, is that it is
not apparent that the Court of Appeal subjected the evidence
as a whole to
scrutiny that it ought to have done. And in particular it is not indicated
anywhere in the judgment that the material
issues raised in the appeal received
the court's due consideration. While we would not attempt to prescribe any
format in which a
judgment of the court should be written, we think that where a
material issue of objection is raised on appeal, the appellant is
entitled to
receive an adjudication on such issue from the appellate court even if the
adjudication be handed out in summary form...
In our recent decision in
Kifamunte Henry vs. Uganda we reiterated that it was the duty of the
first appellate court to rehear the case on appeal by reconsidering all the
materials which
were before the trial court and make up its own mind....
Needless to say that failure by a first appellate court to evaluate the
material
evidence as a whole constitutes an error in
law."



Accordingly, I would hold that the Court of Appeal
erred in law in failing to evaluate both the initial and the additional
evidence,
and that it is incumbent on this Court to re-evaluate the evidence as
a whole, which I now proceed to do.

Although at the trial eight issues were framed from the pleadings, I think
the crucial questions for this Court to answer in this
appeal, are -

> Is ownership of the suit
land, or any part of it, res
judicata?
> Does the certificate of
title, Exh.P1, relate to the suit land or any part of
it?
> Have the appellants or any of them
trespassed on the suit land?


Is ownership of the suit land res judicata?
The
defence of res judicata is a bar to a plaintiff whose claim was
previously adjudicated upon by a court of competent jurisdiction in a suit with
the same defendant
or with a person through whom the defendant claims. In the
instant case, the 1st and 4th appellants pleaded that
defence in respect of the parts of the suit land they possess, contending that
the 4th appellant had recovered them from the respondent in Civil
Suit No.99/64, and had sold one to the 1st appellant. The respondent
did not deny the suit. He testified that in 1964 he lost part of his land at
Kijubwe, to the 4th appellant in a court case, and that subsequently
the 4th appellant sold that land to the 1st appellant.
However, he maintained, that the land he lost to the 4th appellant
was not part of the suit land because it had been excluded from his land that
was surveyed after he applied for title
in 1965. On this issue, the respondent
relied only on his oral testimony.

The 4th appellant testified that in 1964, he bought from one
Sendegeya, the parts of the suit land occupied by the 1st appellant
and himself, about one-quarter of a kilometre from his home. At that time, the
respondent was already settled on a bordering
piece of land. During that same
year, the respondent encroached upon it. He sued the respondent in the
Magistrate's court. While
the suit was still pending, the respondent applied for
a land title, and the adjudication committee recommended the application.
The
4th appellant appealed against the committee's decision because of
the suit pending in court. According to him, because of that appeal,
the
respondent's land was not surveyed. The suit lasted from 1964 until 1976 when,
(after a trial, an appeal and a re-trial), the
trial court decided that the land
belonged to the 4th appellant. In support of his evidence, the
4th appellant produced as Exh.D1, copy of the Kirima Magistrates
Court judgment in Retrial of Civil Suit No.99/64, dated 30.11.76. The
respondent's appeal in Kabale Chief Magistrate's Court, Civil Appeal No. MKA
130/76, was dismissed on 17 August 1978. In 1982, the
4th appellant
sold about one-half of that land to the 1st appellant, retaining the
other half for himself. The 1st appellant also testified that in
November 1982 he bought a piece of about 4 acres of land at Rwakarengyero
village, Karubanda sub-parish,
Kijubwe parish, from the 4 appellant who retained
an adjoining piece. He cultivated the land and gradually built semi-permanent
houses.
He started construction of a permanent house in 1990. The respondent's
land was separated from his own by the portion retained by
the 4th
appellant.


According to Exh.D1, the 4th appellant was plaintiff in
Civil Suit MKA 99/64, suing the respondent for recovery of land at
Rwakarengyero.
The plaintiff (4th appellant) claimed that he purchased the land
in dispute from Sendegeya. The defendant (respondent) claimed he
bought the same
partly from one Kanyarwanda and partly from Sendegeya, and that he successfully
litigated on it against one Nyirakigwene.
Sendegeya testified in support of the
plaintiff. The court found that the land in dispute was in Rwakarengyero
village, while the
land, which the defendant (respondent) bought from
Kanyarwanda and litigated with Nyirakigwene, was in the adjoining
village
of Karubanda. It held that the whole land in dispute was lawfully sold to the
plaintiff (4th appellant) by Sendegeya. It
is unnecessary to go into all the
reasons that led the court to its decision, as it is not in dispute that the
judgment is binding
on both the respondent and the 4th appellant. However, I am
constrained to refer to a contradiction, which to my mind discredits
the
respondent's assertion that the suit land in the instant case is different from
the land in dispute in the earlier suit. According
to Exh.D1, the respondent
claimed in the earlier suit that he had a registered title over the land in
dispute, and that he had deposited
the certificate of title with Commercial Bank
at Kabale. This is a very material contradiction of his evidence in the instant
case,
that the land disputed in the earlier case was excluded from the land over
which he obtained title, and that it is not part of the
suit land. Further, I
also note from Exh.D1 that the respondent sought to rely on a falsified
document. The court found that the
sale agreement, which the defendant
(respondent) produced to prove purchase of the disputed land from Kanyarwanda,
was forged because"
the words showing what is on the land and where it extends
were added on later on by a different author"; i.e. subsequent to the
signing
and witnessing of the agreement. That, to say the least, raises grave doubts on
the respondent's credibility as a witness.
All that notwithstanding, however,
the learned trial judge held that the subject matter of the dispute in the
earlier suit was not
the same as the suit land in the instant case. He came to
that conclusion as follows -

"According to the Magistrate .... in Civil Suit No.99 of 1964 ... the land
in dispute in that case was the land the plaintiff originally
bought from
Raphael Kanyrwanda. According to the plaintiff that land is not in dispute in
this present suit. The plaintiff under
cross-examination said:


'This land I bought from Raphael Kanyarwanda is not in dispute. Part of it is
included in this land title. Part of it is what Elias
Kamondo took in the other
case. The land I bought from Baragakanwa is included in this land title.'
Earlier the plaintiff testified that:


'That part of the land which had been won by Elias Kamondo was not included
in the land title as surveyed'. In these circumstances the subject matter of
the dispute in the earlier suit is not the same as in the present suit and
therefore
is not res judicata."


Clearly, the learned
trial judge misconstrued the evidence as to what land was in dispute in the
earlier suit, and in my opinion,
this was because he only considered the
respondent's assertion as a given. If he had also considered the evidence of the
4th appellant
and the judgment of the Magistrate's court, he would have realised
that the land which the 4th appellant had sued for, and which
the court had
adjudicated upon in his favour, was the land he had purchased from Sendegeya,
not the land the respondent had bought
from Raphael Kanyarwanda. It is
noteworthy that during both the trial in the High Court and the taking of
additional evidence, the
respondent did not indicate the location of the 4th
appellant's other land, which allegedly was excluded from the survey, and is
not
part of the suit land. On the sketch the Commissioner drew at the locus in quo,
the land claimed by the respondent encompasses
more than the land occupied by
all the appellants, save for a small portion to the north-western extreme, far
from the boundary with
the respondent's undisputed land. That portion however,
was not identified as the subject of the earlier suit.

In view of all the
foregoing, I find that the subject matter in Kirima Court Civil Suit No.99/64
was land at Rwakarengyero village,
Kizhubwe parish, in Kirima, which the
4th appellant purchased from one Sendegeya, and that it is that part
of the suit land in the instant case, which is in possession of
the
1st and 4th appellants.

Does the Certificate of Title Exh.P1 relate to the suit
land?

The first three issues framed at the trial clearly
indicated that that the relation of the certificate to the suit land was in
issue.
They were: whether -

> the disputed land is
situated at Kijubwe and not Masya;
> the
certificate Annexure "A" ...relates to the disputed land;
and
> the disputed land has any title deed
at all.

Surprisingly, the learned trial judge did
not consider if it was proved that the suit land was "titled". In his judgment,
he proceeded
on the premise that the suit land was "titled land" without
dispute. Thus on the first issue he held -

"On the evidence before me I am satisfied that the plaintiffs titled
land over which this dispute has arisen
is situated in present day Kijubwe
parish and not Masya."
(emphasis is added) In answer to the second and
third issues, which he recast as 'whether the disputed land has title and if
so what title',
he just said -

"I have already found as a fact that the plaintiffs land has a
certificate of title.
That title can only be impeached for fraud .... The
plaintiff on the evidence before court cannot be held responsible for his
certificate of title bearing reference to Block 59 rather
than say 53.
On
this evidence I find that fraud on the part of the plaintiff has not been
proved. Therefore in answer to the second issue I find that the plaintiffs
land has a certificate of title namely Kinkizi Block 53 Plot 9."

(emphasis is added ).


With due respect to the learned trial
judge, he made those findings without taking into consideration all the material
evidence. He
appears to have considered the respondent's evidence with only such
of the evidence for the appellants as was compatible with the
respondent's case,
and to have overlooked the rest. I have to consider the evidence as a
whole.

The respondent produced two exhibits in support of his claim of ownership of
the suit land. Exh.P1 is a certificate of title issued
under the RTA on 20.1.72
to Erick John Tibebaga, the respondent, as the proprietor of freehold estate in
land registered as Kinkizi
Block 53 Plot 9, measuring 8.0 hectares and described
as Land in Muruka Masya Gombolola Kirima. Exh.P2 is a cyclostyled form headed
"Adjudication Committee Certificate No.9". The form indicates, inter alia
-
> that the respondent applied for adjudication of his land at
Rwakarengero village, Kijubwe Mukungu, Muruka Masya; and

> that the adjudication committee visited the land on 25.2.65, decided
that the respondent had bought that land and was recognised
as its customary
owner; and recommended that the land be surveyed.

The respondent testified that his land was located on Rwakarengero hill, in
Kijubwe Parish. He explained that at the time he applied
for and obtained the
title, the hill was in Masya Parish (Muruka), but subsequently Masya Parish was
split into two new parishes,
named Masya and Kijubwe. His land is located in
Kijubwe, though the certificate of title still bears the name of
Masya.


Several witnesses testified for the appellants. Both the
1st and 4th appellants testified in person as to their
acquisition of the parts of the suit land in their possession. However, no
substantial
evidence was adduced to prove the acquisition by the 2nd
and 3rd appellants of the part of the suit land in their possession.
The 2nd appellant's son testified on his behalf as his attorney,
virtually to reiterate the pleaded defence. The 3rd appellant did not
testify. Other evidence adduced was to show that Exh.P1 did not relate to the
suit land. It will suffice to summarise
the three most pertinent pieces of that
evidence, namely: Exh.D3; and the testimonies of DW5 and DW6.


Exh.D3
is a certificate of title issued to one Arisen Tibenderana on 9.5.69, as
registered proprietor of freehold title over land
registered as Block 59 Plot
13, and described as Land in Muruka of Kizubwe in the Gombolora of Kirima.
As I understand it, the relevance of that evidence is to show that contrary
to the respondent's explanation, Kijubwe was in existence
as a Muruka, and was
designated Block 59, as early as 1969. Though not conclusive, that suggests that
if land in Kijubwe was registered
in 1972, it would not be registered in Block
53; nor would it be described as Land in Muruka Masya as in Exh.P1. If
the certificate issued to the respondent in 1972 related to his land in Kijubwe,
it would have shown the land to
be registered in Block 59, and to be described
as Land in Muruka Kijubwe. DW6, Bwogi Lawrence, Assistant Commissioner
for Surveys and Mapping, gave technical evidence, describing the professional
skills he
used to locate Block 53 Plot 9 on two types of maps. His finding was
that the land registered as Block 53 Plot 9 is located in Masya
parish and not
in Kijubwe parish. DW5, Yusuf Kagumire, a former Chief Registrar of Titles,
testified that in 1975 he wrote to the
Assistant Registrar of Titles, Kabale,
directing him to survey the respondent's land. He gave the directive because,
following complaints
to him, and after examining office records, he had
concluded that the respondent's land had not been surveyed, and that the
certificate,
Exh.P1, was issued to the respondent in error. Copy of the letter
dated 25th April 1975, and produced as Exh.D4 reads -"Kigezi
- Block 53 Plot 9.

Following a discussion held in my office on the 24th day of
April 1975 between Mr. Akankwasa of Hunter and Greig, and Kagumire regarding the
above matter, we formally agreed as
follows:-

(1) That
Tibebaga's land has never been surveyed as he has always maintained and that a
wrong title was issued to him in
error.
(2) That
you ask the District surveyor to survey Tibebaga's land following the boundaries
which were ascertained by the former adjudication
committee held in March
1965.
(3) That
as soon as Tibebaga's title is ready, he will cause the title which was formerly
issued to him in error to be produced in exchange
of the new one
- as he
alleges to have deposited the same in the
Bank.
(4) That
there is no need of calling on an adjudication committee again as this might
cause new difficulties etc.

The above proposals are acceptable to me and you may proceed
accordingly."

Clearly, the three pieces of evidence are
relevant and very material to the issue: whether Exh.P1 relates to the suit
land. However,
in his judgment, the learned trial judge did not allude to any of
that evidence in answering the issue. The only evidence of DW5
and DW6 that he
considered was that both witnesses testified that Exh.P1 appeared on the face of
it, to be a genuine certificate
of title. He also misdirected himself on DW6's
evidence in the judgment, where he misquoted the witness to have said that Block
53
Plot 9 was in Kijubwe parish. The record shows that the witness said at least
twice, that his finding was to the contrary, i.e. that
the plot was located in
Masya parish and not Kijubwe parish.


The respondent had the
burden to prove his ownership of the suit land. For that purpose, he opted to
rely principally on the certificate
of title, Exh.P1. It is trite that a
certificate of title issued under the RTA, is conclusive evidence that the
person named in the
certificate as proprietor, is possessed of the estate in the
land described in the certificate. See section 59 of the RTA Cap. 230
(formerly
s.56 of Cap.215: 1964 Ed.). As the learned trial judge observed, such
certificate of title can only be impeached for fraud.
It is otherwise
sacrosanct. Accordingly, on the face of it, by producing Exh.P1, the respondent
proved conclusively that he is proprietor
of a freehold estate in an
8-hectare-parcel of land registered as Kinkizi Block 53 Plot 9, which is
described in the certificate
as Land in Muruka Masya Gombolora Kirima.
Section 59 of the RTA expressly stipulates that the certificate -

"shall be received in all courts as evidence of the particulars
therein set forth
and of the entry thereof in the Register Book"
(emphasis is added).

In my view, it follows that the inviolability of a certificate of title is
circumscribed in as much as it is confined to the particulars
in the
certificate. The court therefore, cannot receive the certificate as evidence of
particulars, which are not set forth in it.
For that reason, and particularly in
view of the defence, the respondent also had to show that the particulars in
Exh.P1, relate
to the suit land on the ground. He fell far short of doing that.
He did not show, and I have not found, any nexus between his application
for
title and the certificate he obtained. The most significant gap is the lack of
any independent evidence to prove the respondent's
assertion that the land,
which the adjudication committee verified as his, was surveyed, let alone to
show that Exh.P 1 was issued
on strength of a survey of that land. The remark by
Berko JA, that the respondent tried to show the Commissioner a print where a
mark-stone had been removed
and the latter did not listen, cannot be a
substitute of such proof. I must emphasise that the inviolability of a
certificate of title
under the RTA is hinged on a survey that determines and
delimits the land to which the certificate relates.


The evidence for
the appellants, on the other hand, goes a long way to show that Exh.P1 does not
relate to the suit land. I attach
particular reliance on the evidence of PW5 and
PW6 who were independent professional witnesses. I find that their evidence is
credible.
In my view, PW5, as Chief Registrar of Titles, had no reason in 1975
to want the respondent's land to be surveyed and a fresh certificate
to be
issued to him, as intimated in Exh.D4, other than because he was satisfied that
it was necessary to rectify an error made in
the issuance of Exh.P1. Secondly,
there is no evidence to contradict PW6's unchallenged professional evidence that
the land to which
the certificate relates is not in Kijubwe parish, but in
present Masya parish. Anyone conversant with the system of land registration
would appreciate the significance of that evidence. Indeed, the learned trial
judge tacitly acknowledged that Exh.P1 did not relate
to the suit land when he
observed that the respondent "cannot be held responsible for his certificate
of title bearing reference to Block 59 rather than say 53".
This is a slight
slip because the certificate refers to Block 53 rather than 59. Nevertheless,
the observation shows that the trial
judge realised that the particulars in the
certificate do not tally with the suit land. In holding nevertheless that the
certificate
related to the suit land, the learned trial judge took Exh.P1 as
proof that the respondent was proprietor of land comprised in "Block
59" and
located "in Muruka Kijubwe", when those particulars were not set forth in the
certificate. Neither section 59 of the RTA
nor any other law permitted him to do
so.

Notwithstanding the scathing criticism directed at it by the Court of Appeal,
the additional evidence further supports my conclusion
that Exh.P1 does not
relate to the suit land. It suffices to highlight only its pertinent aspects.
Nyakikuru Stanley, the surveyor
whose report sparked off the process of calling
additional evidence, explained how he went about locating the land registered as
Kinkizi Block 53 Plot 9, and the suit land, using blue prints from the office
and undisputed certificates of title of neighbouring
registered land. He
testified that he located and opened the boundaries of Block 53 Plot 9, and
established that it was in Masya
parish, thus corroborating DW6's evidence. The
same witness also testified that he visited the suit land shown to him by one of
the
appellants. Using the blue print for Block 59 and opening the boundaries of
adjacent land registered as Block 59 Plot 28, he established
that the suit land
was not surveyed, and that it was located in Block 59 in Kijubwe parish. The
significance of that evidence lies
in the elementary principle of the land
registration system under the RTA, namely that a certificate of title relates to
only one
parcel of land. The evidence of DW6 and the surveyor established that
the particulars set forth in the certificate of title, Exh.P1,
relate to a
specific parcel of surveyed and registered land located in present Masya parish,
and not to the suit land. The Court
of Appeal criticised the surveyor for
visiting the two locations in absence of the respondent, but it is obvious that
the presence
of the respondent would not have made any difference. It is not
suggested that he visited or was shown the wrong land. Upon the Commissioner's
visit to the locus in quo, the respondent by his counsel said he had no
interest in the surveyed and registered land in Masya parish. Instead, he
confirmed the
suit land to be that which the appellant had shown to the
surveyor. Caleb Mwesigwa, Senior Staff Surveyor's main evidence was on
the error
in the issuance of Exh.P1 and the attempt to rectify it. He testified that soon
after it was issued, the land office discovered
an error. Asked what the error
was, he replied -

"The error was that the land described in the title did not tally with
the land which belongs to Mr. Tibebaga."

He narrated what was done upon discovery of the error, starting with the
Chief Registrar of Titles' instructions in Exh.D4 to survey
the respondent's
land. He produced correspondence that ensued, pursuant to the instructions. Two
of the letters indicate why the
instructions were not carried out and the error
remained unrectified. In one dated 31.10.79 to the District Surveyor, the
Assistant
surveyor wrote -"When I went to survey Tibebaga's land, I called
the members of the former adjudication committee,... four of them came and in
addition
.... Chiefs and his neighbours were all present.

(1) On the
land he has no permanent boundary, he changes boundary from time to
time.
(2) He does
not agree with his neighbours over the boundary, he wanted to enclose some
portions of his
neighbours.
(3) The
members of the former adjudication committee showed me the true boundary, but he
disagreed with
them.
(4) The court
gave ruling on this land in favour of the interested parties, and Mr. Tibebaga
disagreed with the court's
boundaries.

(5)I did not survey the
land because Mr. Tibebaga's land had no boundaries possible for surveys..."
In the last of the exhibited letters dated 7.11.79, the District
Surveyor responding to the Commissioner's several letters said -

"Before I could reply I wanted to talk to Mr. Tibebaga because three
surveyors have been to the site and failed to carry out the survey
because he
disagreed with his neighbours. Some of the reports of the surveyors who have
been to the site are attached for your information.

Mr. Tibebaga reported to this office on... 5th November 1979 and I asked
him to provide me with transport to go and see whether I
can do the survey
myself because he claims that the surveyors who went there did not want to do
his work."

This evidence corroborates that of PW5. In addition, contrary to the
observation by Berko JA, that no action was taken beyond the mere letter
asking the respondent to return the title,
this evidence tends to show that
efforts to rectify the error were frustrated by lack of co-operation from the
respondent.


As I mentioned earlier in this judgment, the Court of
Appeal gave two main grounds for rejecting all the additional evidence, namely
that the evidence was obtained in breach of natural justice and that it was in
furtherance of conspiracy to deprive the respondent
of his land. With the
greatest respect to the learned Justices of Appeal, I find those grounds
untenable, if not misconceived. The
alleged breach of rules of natural justice
is that the CID officer did not invite the respondent to make a statement and to
be present
when the officer and the surveyor visited the land under
investigation. I am not aware of any rule of natural justice that requires
an
investigator of a criminal offence to invite the suspect to be present for
viewing potential evidence or compilation of the investigation
report. The
criticism would have made some sense, if the respondent was prosecuted without
prior opportunity to respond to the accusation,
or if a court had acted upon the
surveyor's report without giving the respondent a hearing. As it happened,
however, the surveyor
gave evidence before the Commissioner. The respondent had
opportunity and used it to cross-examine him and to be heard on that evidence.
In my view, what the learned Justice of Appeal called "one sided investigation"
caused no prejudice to the respondent.

The learned Justice of Appeal gave no reason for accepting the conspiracy
theory. I can only surmise that, he derived it from the
evidence that in October
1985, the respondent was attacked by a gang of people and forced to flee from
his home and land. The appellants
confirmed that evidence but denied having
participated in the attack. In my opinion, however, whether they participated or
not, it
is farfetched to deduce that even the professional witnesses, together
with the correspondence they produced dating back to the 1970's,
were part of
the conspiracy. The evidence clearly shows that far from seeking to deprive the
respondent of his land, the Department
sought to rectify an error and ensure
that he obtains title to his own land. In my view, with due respect, the
conclusion by the
Court of Appeal that it "is not true" that the certificate was
issued in error is against the weight of evidence. The error is glaring.
The
certificate of title, Exh.P1, does not relate to the suit land. It was issued to
the respondent in error because it relates to
land for which he did not apply.
Much as I agree with the trial judge that the respondent cannot be held
responsible for that error,
I do not accept that he can take advantage of the
error and use the certificate to prove ownership of land to which the
certificate
does not relate. I am satisfied that, having regard to the evidence
as a whole, the concurrent decision of the courts below is wrong.
I should
observe in passing, however, that the respondent must bear responsibility for
his failure to heed the proposals in Exh.D4
to rectify the error. Because of
that failure, he now holds a certificate of title for land in which he
admittedly has no interest,
and his land over which he wanted registered title,
remains unregistered. I agree that invalidation of the certificate of title that
Berko JA was unwilling to order was not in issue. Short of rectification by the
Registrar of Titles, an invalidating order can only
be in a suit by the owner of
the land to which the certificate relates.

The Court of Appeal upheld the trial court decision that the suit land
belongs to the respondent and that the appellants trespassed
on it. The
remaining question, although the respondent did not canvass it, is whether this
Court should uphold the decision of the
lower courts though the respondent does
not have a certificate of title over the suit land. According to the
Commissioner's sketch
made at the locus in quo, in addition to the piece
that everyone admitted belongs to the respondent, the land he claims to own
includes the suit land, a piece
in possession of the Parish local administration
and another in possession of one Kagashanga. The Parish and Kagashanga were not
party to the original suit and so the land in their possession is not subject of
this appeal. I have already found that the land
in possession of the 1st
and 4th appellants was subject of Civil Suit No.99/64, in which
a competent court decided that the land belonged to the 4th
appellant. The 1st appellant claims part thereof through him. I would
therefore hold that the defence of res judicata set up by the two
appellants in respect of that land ought to succeed. Lastly, I find that the
respondent did not adduce sufficient
evidence to prove that he has any superior
right over the land in the possession of the 2nd and 3rd
appellants. Consequently, I would hold that the respondent failed to prove that
he was owner of the suit land or any part of it and/or
that the appellants
trespassed on the suit land or any part of it.

In the result, I would allow this appeal and set aside the judgments and
orders of the courts below, and substitute an order dismissing
the respondent's
suit. I would award to the appellants costs in this Court and in the courts
below.


JUDGMENT OF ODER, JSC

I have had the advantage of reading in draft the judgment of Mulenga, JSC; I
agree with him that the appeal should succeed.

As Tsekooko, Karokora and Kato JJ.S.C agree the order of the court shall be
as proposed by Mulenga, JSC.

JUDGMENT OF KAROKORA, JSC:

I have had the advantage of reading in draft the judgment prepared by my
learned brother, Mulenga, JSC, and I agree with him that
this appeal should
succeed. 1 also agree with the orders he has proposed.

JUDGMENT OF TSEKOOKO, JSC:

I have had the benefit of reading in advance the judgment prepared by my
learned brother, Mulenga, JSC, and I agree that this appeal
should succeed. I
also agree with the other orders he has proposed.

JUDGMENT OF C.M. KATO, JSC.


I have had the advantage of reading the judgment of my learned brother,
Mulenga, JSC in draft. I agree with him that this appeal should
be allowed with
costs to the appellants.

Dated at Mengo this 22nd day of June
2004.