[2023] UGCA 4

### THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

#### CTVIL APPEAL NO. 21 OF 2OL4

(Aising from H. C. C. S No. 0024 of 2O1O)

5 ASABA JAIDTN : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : APPELLANT

#### VERSUS

#### 1. TEGRAS BYEITIMA

# 2. KUGONZA FRAITKLIN : : : : : : : : : : : : : : : : : : : : : : : : : : : : RESPONDENTS 3. RAJAB RUGADYA

# CORAM: HON. JITSTICD E,LIZAB,EIH MUSOKE, JA HON. JUSTICT CATHERINE BAMUGTMEREIRE, JA HON. WSTICE STEPHEN MUSOTA, JA

#### JUDGMENT OF HON. JUSTICE STEPHEN MUSOTA, JA 15

#### Background

The Appellant filed H. C. C. S No. 0024 of 2010 in Masindi High Court against the l"t and 2"d Respondents, the 2"d Respondent being a police officer and son of the l"t Respondent, for trespass having forcefully ploughed his gardens and evicted him from his customary land. In response to the suit, the l"t and 2"d Respondents pleaded that the l"t Respondent had purchased land including the suit land from Rajab Rugadya and had since surveyed and processed a certificate of title. After scheduling conference, court ordered the District staff Surveyor to open boundaries of the lst Respondent's certificate of title. When the surueyor opened the boundaries on 24th Page 1 of 12 20 25

August 2OLl, the Appellant claimed that the 1"t Respondent had sun/eyed more than what he had purchased from Rajab Rugadya (3ra Respondent) and filed M. A No. 057 of 2010 to amend his plaint for purposes of adding Rajab Rugadya as a co-defendant and seek cancellation of the certificate of title on the ground of fraud. Court allowed the application and the 3'd Respondent was added as codefendant but rejected the appellant's prayer to amend his plaint to seek cancellation of title for fraud and advised the appellant to file a separate suit.

On 2"d March 2OL2, the Appellant appeared in court as PWl to testify in H. C. C. S No. OO24 of 2O1O but just after taking oath, the defence counsel objected to the hearing because Rajab Rugadya, who had been added as a co-defendant and was present in court had not been senzed with summons to lile a defence and a plaint to enable him file 10

his written statement of defence since it had been scheduled before he was added as a defendant. A new plaint with summons to the 3.d Respondent was filed in court and served on Rugadya Rajab and he filed his defence. 15

After several adjournments, the suit came up for hearing on L2t:" November, 2O12. Court ordered both parties to file submissions on the sunieyor's report and it was on that basis that the court delivered ^ajudgment and dismissed the suit with costs. 20

The Appellant was dissatisfied with the decision of the court and filed this appeal on the follo\*ing grounds;

- 1. The learned trial Judge erred in law when he decided the case against the Appellant without affording him proper hearing. - 2. The learned trial Judge erred in law and in fact when he declined to proceed with adducing of evidence and ended up giving a judgment not based on any evidence. - 3. The learned trial Judge erred in law and in fact when he relied on a survey report that had not been exhibited in court as evidence. - 4. The learned trial Judge erred in law and in fact when he compelled the appellant's counsel to make submissions before hearing the case. - 5. The learned trial Judge erred in law and in fact when he held that the Respondents had not trespassed on the Appellant's land.

#### ¹⁵ Representation

At the hearing of the Appeal, Counsel T\rgume Moses appeared for the Appellant while Counsel Kituuma Magala and Counsel Kagolo Friday Robert appea.red for the Respondents.

# Appellant's submissions

Counsel submitted that under Article 28 of the Constitution, a person is entitled to a tair hearing in determination of civil rights and obligations. Counsel argued that there was no hearing at all in this case and the Appellant was condemned unheard. The Appellant should have been given an opportunity to present his evidence regarding his customary interest in the suit land. Counsel relied on 20 25

the decision in Kampala Dlstrlct Land Board & Anor Vs Vanaslo Bamweyaka & 5 others s.c.c. A No. 16 of 2oo2 in which the Supreme Court, while ordering a re-trial, held that a trial in which no evidence was recorded from witnesses was fundamentally defective. The trial court's judgment is based on a report of the District Land Surveyor that was made and filed on the orders of court. That the said District Land Surueyor was neither called in court to testify and exhibit his report nor was the report admitted in court as an exhibit.

Counsel argued that the procedure adopted by the trial Judge of admitting the suruey report without following the right procedure of admitting exhibits in court was irregular and occasioned ^a miscarriage of justice. 10

### Respondent's submissions

In reply, the Respondent's counsel raised a preliminary objection stating that the Appellant's counsel omitted to extract a decree under Rule 87 (1) of the Judicature Court of Appeal Rules Directions and as such, failed to take an essential step in prosecuting the Appeal and that the Appeal ought to be struck out. Counsel relied on the decision in The Executrlx of the estate of the Late Christine Mary Namatornt Tebalfuklra & another Vs Noel Grace Shallta Stananzi Supreme Court Civil Applicatlon No. O8 of 1988 in which it was held that no Appeal lies to this court until the decree Appealed from has been extracted. 15 20

Counsel submitted that the learned trial Judge determined the suit after giving the parties an opportunity to be heard. That upon opening of the boundaries by the District Staff Surveyor, the Appellant applied to amend his plaint and the amendment was granted. The Appellant testified on oath and after the report on opening of the boundaries on the suit land, the Judge gave both parties an opportunity to submit on the report and gave a ruling.

Counsel argued further that the Appellant had a burden of proof to prove the existence of his customar5r ownership which burden of proof he failed to discharge.

# Appellant's reJoinder

In reply to the preliminary objection raised by the Respondent, counsel submitted that the authorities relied on by the Respondent are distinguishable from this case and under Rule 87(1) of the Rules of this court, a decree is not a legal requirement to lodge an appeal. The case of Executrlx of the Estate of the late Chrlstlne Mary Namatovu Tebalfuklra & another Vs Noel Grace Shallta Stananzi Supreme Court Ctvtl Appllcatlon No. O8 of 1988 relied on by the Respondent's counsel was decided before the promulgation of the 1995 Constitution and the passing of the Judicature (Court of Appeal Rules) Directions.

Counsel argued that extraction of a formal decree is no longer a requirement in the institution of an Appeal and it is a mere technicality which does not take away the right of the parties to be

Page 5 of 12

heard on the merits of the Appeal in light of Article L26(21 (e) of the Constitution.

# Consideration of the appeal

5 I have carefully examined the submissions of both counsel and the authorities relied on.

This being a first Appeal, we have a duty to reappraise the evidence and draw inferences of fact under Rule 3O of the Judlcature (Court of Appeal Rules) Directions. See also the casea of Pandya v. R [1954 EA 336 and Klfamunte Henry v. Uganda SCCA No. 1O of

10 1997 on the duty of a first appellate Court to re-appraise the evidence and come to an independent conclusion.

The Respondent's counsel raised a preliminary objection that the appellant's counsel omitted to extract a decree under Rule 87 (1) of the Judicature Court of Appeal Rules Directions and as such, failed to take a.n essential step in prosecuting the Appeal and that the

Appeal ought to be struck out.

Rule 87(U of the Judicature (Court of Appeal Rules) Directions provides;

# 87. Contents of record of appeal

20 (1) For the purpose of an appeal from the High Court, in its oiginal jurisdiction, the record of appeal shall, subject to subn de (3) of this rule, contain copies of the following doqtments-

> (a) an index of all the doct tments in the record with the numbers of the pages at which theg appear;

(b) a statement showing the address for seruice of the appellant and the address for seruice furnished by the respondent and, as regards anA respondent who has not furnished an address for seruice, then as required by rule 78 of these Rules, his or her last known address and proof of seruice on him or her of the notice of appeal;

(c) the pleadings;

(d) the trial judge's notes of the hearing;

(e) the transcript of any shorthand notes taken or anA other notes ¹⁰ howsoeuer recorded at the tial;

> (fl the alfidauits read and all doct tments put in euidence at the hearing, or if those doqtments are not in the English language, certified translations of them;

(g) the judgment or reqsoned order;

¹⁵ (h) the order, if ang, giuing leaue to appeal;

(i) the notice of appeal; and

0 anA other documents necessary for the proper determination of the appeal, including ang interloantory proceedings which maA be directly releuant.

²⁰ From the above Rule, a decree is not mentioned as part of the contents of a Record of Appeal. I note that a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of the pleadings, and which if argued as ^a

Page 7 of 12 preliminary point, may dispose of the suit. (See Muklsa Biscuit Manufacturlng Co. Ltd v. west End Dlstrlbutors Ltd [19691 EA 6961.

I agree with the appellant's argument that the case of tnecutrlx of

5 the Estate of the late Chrlstine Mary Namatornr Tebalfuklra & another Vs Noel Grace Shalita Stananzi Supreme Court Ctvit Applicatlon No. O8 of 1988 was decided in 1988 long before the Court of Appeal Rules were put in place. The preliminary objection raised by the Respondent is therefore overruled for reasons that the Appellant's Record of Appeal complied with Rule 87(1) of the Rules of 10

this court.

I now proceed to resolve the issue of whether the Appellant was accorded a proper hearing by the learned trial Judge.

I have considered the submission of the Appellant and the Respondent on this issue. I have also considered the provisions of Article 28 of the Constitution on the right to a fair hearing. It provides; 15

(1) In the determination of ciuil rights and obligations or ana criminal charge, a person shall be entitled to a fair, speedg and public hearing before an independent and impartial court or tibunal established bg law.

The Constitution further provides in Article 44 that it is prohibited to derogate from the right to a fair hearing.

44. Prohibition of derogation fro\* partiatlar lutman rights and freedoms.

Notwithstanding angthing in this Constittttion, there shatl be no derogation from the enjogment of the fottowing rights and. freedoms-

(a) ...

- (b) ... - (c) The right to fair heaing;

At the trial court, the Appellant filed a suit against the [st 21d lnd Respondents for trespass and in their written statements of defence, the l"t and 2"d Respondent's pleaded that the l"t Respondent had purchased the suit land from one Rajab Rugadya (3.a Respondent) and had processed a certificate of title. After scheduling of the case was completed, the trial Judge ordered that the District Staff Surueyor for Masindi opens boundaries of the l"t Respondent's certificate of title. When the surveyor opened boundaries, the report showed that the l"t Respondent had surveyed more than what was purchased from the 3.d Respondent and the Appellant filed an application vide Misc. Application No. 057 of 2OLO to add the 3'a Respondent as co-defendant and seek cancellation of the certificate of title on grounds of fraud. 10 t5 20

Court allowed Misc. Application No. 057 of 2010 in part and the 3'a Respondent was added as a co-defendant but declined to grant the Appellant's prayer to amend his plaint seeking for cancellation of the

title. The trial Judge advised the Appellant to file a separate suit as the intended amendment would introduce a new cause of action.

On 2"d March 2012, the Appellant appeared in court as PWl and after taking oath, the defence counsel objected to the hearing because the 3'd Respondent, who was the 3'd defendant at the trial court, and was present in court had not been serued with summons to file a defence

and a plaint to enable him file his written statement of defence.

A new plaint with summons to the 3.d Respondent was filed and served on the 3'd Respondent and he filed a defence. After several adjournments, the suit c€une up for hearing on 12th November 2Ol2 and court ordered that both counsel make submissions on the sunreyor's report and on the basis of those submissions, court delivered a judgment, from which this appeal emanates.

From the above background, it appears to me that the learned trial Judge made a decision based on the District Land Surveyor's report without hearing the case on either side or giving an opportunity to the Appellant to call his witnesses to prove his customary ownership on the land. In addition, the survey report was improperly admitted as the District Land Surveyor did not appear in court to tender in the report or give any evidence on the report under Order 14 of the Civil Procedure Rules. 15 20

It is my considered view that the Appellant was not accorded an opportunity to be heard as envisaged under Articles 28 and 44 of the Constitution. I therefore set aside the decision and orders of the High Court in H. C. C. S No. O24 of 2OLO.

I would have ordered a retrial of H. C. C. S No. O24 of 2OlO to accord both parties an opportunity to present their case before court. However, at the trial court when the Appellant was advised by the trial Judge to file a separate suit for cancellation of title on grounds of fraud, the Appellant went ahead and filed Civil Suit No. 0OO3 of 2or2 against the l"t and 3'd Respondents seeking among other orders, cancellation of the certificate of title for the suit land at Block 49 Plot 4, Masindi. A decision was made in that case and an Appeal Iiled in this court vide Civil Appeal No. 19 of 2022 and the same was heard and is pending judgment on notice.

I take judicial notice of the fact that this dispute was liled in ^a separate suit, heard and determined and an Appeal filed in this court and is pending judgment on notice.

This appeal is therefore allowed, the orders of this court shall abide the findings of this court in civil Appeal No. 19 of 2022 Tegras Byeitima and another Vs Asaba Jaiden. 15

I so order.

Dated this @oay of 0UAvL 2'T

Stephen Musota JUSTICE OF APPEAL

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# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA CIWL APPEAL NO. 21 OF 2OL4

ASABA JAIDEN::::::::::::::::::::::::::::::::::::::::::::::::::APPELLANT

### VERSUS

### 1. TEGRAS BYEITIMA

#### 2. KUGONZA FRANKLIN

### 3. RAIAB RUGADYA::: :::: r::: ::: : : ::: :: : :: RESPONDENTS

(Appeal from the decision of the High Court of tJganda at Masindi dated before Ochan, J. dated 4 February, 2012 in Civil Suit No. 024 ot'2010)

# CORAM: HON. LADY JUSTICE ELIZABETH MUSOKE, JA HON. LADY JUSTICE CATHERINE BAMUGEMEREIRE, JA HON. MR. JUSTICE STEPHEN MUSOTA, JA

# JUDGMENT OF ELIZABETH MUSOKEI JA

I have had the advantage of reading in draft the judgment prepared by my learned brother Musota, JA, and I agree with it. For the reasons which he gives I would allow the appea! and make the order he has proposed.

Since Bamugemereire, JA also agrees, the Court unanimously allows the appeal and enters judgment for the appellant on the terms stated in Musota, JA's judgment.

# It is so ordered.

| Dated at Kampala this | o* | . day of | J6" | 2023. | |-----------------------|----|----------|-----|-------| | | | | | | | | | | | |

Elizabeth Musoke Justice of Appeal

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA CIVIL APPEAL NO 21 OF 2014

#### CORAM: HON. LADY JUSTICE ELIZABETH MUSOKE, JA HON. LADY JUSTICE CATHERINE BAMUGEMEREIRE, JA HON. MR. JUSTICE STEPHEN MUSOTA, JA

ASABA JAIDEN ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

1. TEGRAS BYEITIMA

2. KUGONZA FRANKLIN .................................... 3. RAJAB RUGADYA

(Appeal arising from the decision of the High Court of Uganda at Masindi in HCCS No. 24 of 2010)

#### JUDGMENT OF CATHERINE BAMUGEMEREIRE, JA

I have had the privilege of reading in draft the Judgment of my learned brother Stephen Musota, JA. I agree with the reasoning, decision and orders made.

Dated at Kampala this. 05 day of ... January ....... 2022

**Catherine Bamugemereire Justice of Appeal**