THE REPUBLIC OF UGANDA
IN THE SUPREME COURT OF UGANDA
(CORAM: ODOKI CJ, KATUREEBE, OKELLO, TUMWESIGYE
AND KISAAKYE, JJ.SC)
CIVIL APPEAL NO 14 OF 2009
HORIZON COACHES LTD} :::::::::::::::::::::::::::::::: APPELLANT
2. MBARARA MUNICIPAL COUNCIL ::::::::::::::: RESPONDENTS
[Appeal from the decision of the Court of Appeal at Kampala (Mpagi-Bahigeine, Kitumba and Byamugisha JJA) dated 11 August 2008 in Civil Appeal No 34 of 2007]
Appeal-recovery of land, damages and costs of the suit-bonafide purchaser-cause of action-fraud-setting aside of the judgment and the decree-dismissal of a suit with costs-notice of appeal out of time-lack of parties-rules 14 and 83 of the supreme court rules-dominus litis-leave of court-rule 98 of the supreme court rules-locus standi-propriety rights
JUDGMENT OF ODOKI, CJ
This is an appeal from the decision of the Court of Appeal dismissing the appellant’s appeal and confirming the judgment and orders of the High Court in a land dispute between the parties. The appeal raises important issues relating to the protection accorded to tenants in occupancy on urban statutory leases which were revoked by the Constitution and the defeasibility of a certificate of title on ground of fraud.
The facts as agreed in the lower court were as follows. As from 1st March 1995, Uganda Transport Company Ltd (UTC) became the registered proprietor of Plots 24 – 30 Mbaguta Road, comprised in LRV 357 Folio 15, measuring 1.109 acres. It was for the purposes of a bus depot/garage.
Since 1995 the Ankole District Administration (later succeeded by Mbarara Municipal Council (2nd Respondent) was the owner of the land adjoining the said bus depot/garage, described as Plots 32 – 40 Bishop Wills Road/Mbaguta Street, measuring 0.826 acres. It was for the purpose of a public bus station. Infrastructure was developed thereon.
In 1993, the 2nd respondent got a statutory lease over all the public land including the suit land in the whole area of its jurisdiction. It was also the controlling authority with power to allocate and grant leases over such land. By a lease agreement dated November 1992, the 2nd respondent let to the 1st respondent a space on the said plots 32 – 40, marked M50 for a period of 20 yeas. The 1st respondent developed the space. On 13 September 1995, upon transfer from UTC, Mukwano Enterprises Ltd, (the 4th defendant at the trial) was registered as the proprietor of the said LRV 356 Folio 15, area 1.109 acres. On 24 October 1995, Mukwano Enterprises Ltd executed a transfer and applied to transfer LRV 357 Folio 15, area 1.109 acres to the appellant.
On 26 October 1995 at 3.00 p.m, under Instrument No 27434 the suit land (i.e. Plots 32 – 40) was entered on the certificate of title for LRV 357 Folio 15 (until then having only plots 24 – 30) and the area was changed from imperial metric and increased to 0.783 hectares (1.935 acres). On the same day at 3.30 p.m, the appellant was under Instrument 274864, registered as proprietor of the whole land and Charles Muhangi, a Director of the Appellant, immediately collected the certificate of title. On 25 November 1995, the appellant evicted the respondents and destroyed the 1st respondent’s developments and property.
The respondents brought the suit in the High Court seeking recovery of the land, damages and costs of the suit. The appellant in its defence pleaded that it was a bona fide purchaser from Mukwano Enterprises (the 4th defendant). The Attorney General (1st defendant) in his defence pleaded that the Registrar of Titles added the suit land to LRV 357 Folio 15, by way of correcting an error after 40 years. The 4th defendant in its defence denied ever owning the suit land or selling and transferring it to the appellant. The respondents contended that the inclusion of plots 32 – 40 was fraudulent as a result a conspiracy with Lands Officials and the appellant together with Mukwano Enterprises.
The trial judge in the High Court found that there was fraud, entered judgment for the respondents and made the following orders:
“1. Judgment is entered for the plaintiffs.
2. The title held by Horizon Coaches Ltd shall be cancelled so that it retains Plots 24 – 30 Mbaguta Road only.
3. The rest of the plots 32 – 40 Mbaguta Road shall revert to the plaintiff.
4. The 1st plaintiff’s lease from the 2nd defendant still subsists.
5. The 1st, 2nd and 3rd defendants shall pay the 1st plaintiff as follows:
Shs.10,000,000/= for embarrassment by the high handed eviction.
(b) Shs.80,000,000/= for the value of the buildings and stock in trade.
(c) The 1st, 2nd, and 3rd defendants shall pay to the 1st plaintiff Shs.50,000,000/= mesne profits.
6. The 1st, 2nd and 3rd defendants shall pay to the 2nd plaintiff Shs.25,000,000/ mesne profits.
7. The 1st, 2nd and 3rd defendants shall pay to the plaintiffs costs of the suit.
8. The 2nd defendant shall pay the 4th defendants costs.”
The appellant appealed to the Court of Appeal against the judgment and orders of the High Court on several grounds. The Court of Appeal dismissed the appeal. The appellant has now appealed to this Court on the four grounds.
Grounds of Appeal:
The learned justices of the Court of Appeal erred in law when they held that the issue of cause of action in this case could not be raised on appeal.
The learned Justices of the Court of Appeal erred in law when they held that the appellant had obtained the suit property fraudulently without reevaluating evidence as the first appellate Court.
The learned Justices erred in law when they held that the suit property be returned to the 1st respondent.
The learned Justices erred in law erred in law when they confirmed the remedies granted to the respondents.
The appellant prayed for the appeal to be allowed, and the judgment and decree of the Court of Appeal to be set aside with orders that;
The judgment, decree and orders of the High Court be set aside and the respondents suit be dismissed with costs.
The respondents pay the costs of the Court of Appeal and costs of this appeal.
The respondents filed a notice of grounds for affirming the decision of the Court of Appeal. The additional grounds were framed as follows:
“1 The notice of appeal was served out of the time without proper extension.
2. Other parties, namely the Attorney General, Waiswa Moses and Mukwano Enterprises Ltd, affected by the decree appealed from were not made parties to the appeal.”
The appellant was represented by Mr. John Matovu and Matovu Advocates, while the respondents were represented by Mr. Paul Byaruhanga Advocates. Both parties filed written submissions.
Learned counsel for the appellant argued grounds 1 and 2 separately and grounds 3 and 4 together. He started by arguing ground 2 followed by grounds 3 and 4 together and finally argued ground 1.
I propose to consider ground 1 first followed by ground 2 and finally grounds 3 and 4 together.
Preliminary Objections by the Respondent:
Before I consider the grounds of appeal, I wish to deal with the preliminary objections that were raised by counsel for the respondent. The first objection was that the record of appeal did not conform to rules 14 and 83 of the Rules of this Court in that on many pages, the lines were not numbered and that the index and pagination did not agree. Furthermore, the order of documents, rulings and judgment was confused. He submitted that a lot of materials which were not part of the record were included in the record and the whole record was difficult to follow. It was his prayer that the record be struck out and the appeal dismissed.
The second objection was that the appeal lacked parties as three of the parties namely the Attorney General, Waiswa Moses, t/a Twidha and Twiza Auctioneers and Mukwano Enterprises Ltd who were defendants in the trial Court were omitted from the appeal.
In reply, counsel for the appellant submitted that the complaint about the contents of the record of appeal could not be a ground for striking out the appeal as the Court has power under rule 83(3) of the Rules of the Court to exclude any documents from the record on application. He contended that no such application had been made, nor had it been shown that the respondents had been prejudiced by the record.
As regards the contention regarding lack of parties, a counsel for the appellant submitted that the Rules of the Court do not provide that all persons served with the notice of appeal must be made parties to the appeal. He argued that the law was that an appellant is dominus litis and cannot be forced to sue any person against his will. Learned counsel also contended that the notice of appeal was served out of time and that the matter was argued in the Court of Appeal.
I agree with counsel for the respondent that the record of appeal was not properly prepared in accordance with the Rules of Court. However, counsel of the appellant indicated in his written submissions that the respondents would seek leave of the Court under Rule 98(b) of the Rules of the Court to raise the two preliminary objections. No such leave was sought and obtained to make the objections. Therefore, the objections are incompetent. Moreover, it has not been shown that any prejudice has been caused to the respondents. I therefore find no merit in the preliminary objections and would overrule them.
Ground 1: Lack of Cause of Action:
The complaint in ground 1 is that the learned Justices of the Court of appeal erred in law when they held that the issue of cause of action in this case could not be raised on appeal. Learned counsel for the appellant referred to the leading judgment of Mpagi-Bahigeine JA, where she stated,
“Regarding ground 1, as to the lack of cause of action it was never pleaded nor raised during the trial ……… Learned counsel has now raised it in his submissions. It is well established that the issue of lack of cause of action being a question of law and fact ought to be raised at the earliest opportunity and on pleadings.”
Learned counsel argued that the decision of this Court in Bitarabeho vs Kakonge SCCA
No 4/2000 on which the learned Justice of Appeal relied was distinguishable from the present case in that