[2017] UGCA 148

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA **CIVIL APPEAL NO. 231 OF 2013**

#### (ARISING FROM HCT CIVIL APPEAL NO. 68 OF 2011)

### ARISING FROM BUS-OO CV-CS-NO. 320 OF 2007

### **BUSHENYI- ISHAKA TOWN COUNCIL:::::::::::::::: APPELLANT**

#### **VERSUS**

#### 1. MANFRED MUHUMUZA

- 2. MERCY MUHUMUZA - **3. MARTIN MUHUMUZA:::::::::::::::::::::::::::::::::::**

#### **CORAM:**

- 1. HON. MR. JUSTICE S. B. K. KAVUMA, DCJ - 2. HON. MR. JUSTICE RICHARD BUTEERA, JA - 3. HON. LADY JUSTICE CATHERINE BAMUGEMEREIRE, JA \

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#### THE JUDGMENT OF COURT

#### **Background**

This is a second appeal from the Chief Magistrate's Court of Bushenyi in Bushenyi District.

The respondents, Manfred Muhumuza, Mercy Muhumuza and Martin

Muhumuza who are Administrators and Administrix to the estate of $20$ their late father, Emmanuel Muhumuza, filed a suit against the appellant in the Chief Magistrate's Court Bushenyi vide Civil Suit No. 320 of 2007 claiming general damages for trespass to land, profits and costs of the suit.

- 25 The respondents alleged that when their father, the late Muhumuza Emmanuel died in 1996, the appellant wrongly took over their late father's estate without Paylng any comPensation to them. The respondents protested and as a result, the appellant released part of the land and withheld the rest without any comPensation to them. - 30 On the other hand, the appellant contended that the takeover of the land was lawful and that compensation for the developments on it had been made. The Appellant further contended that the suit was time barred. - The Chief Magistrates' Court of Bushenyi held in favor of the 3s respondents and ordered the appellant to pay shs. 45 million as general damages with interest at the rate of rzo/o fromthe date of filing the suit until payment in full and costs.

Following the decision of the lower Court, Bushenyi- Ishaka Town Council appealed to the High Court of Uganda at Mbarara vide Civil 40 Appeal No. 68 of zou but the appeal was dismissed with costs, hence

this Appeal.

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The grounds of the appeal are as follows;

1. That the learned trial judge erred in law and fact and ^a miscarriage of iustice was occasioned when he failed to appreciate that the family of the respondent received compensation for developments on the land

z. That the learned trial Judge erred in law miscarriage of justice was occasioned to a \(

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appreciate the land in issue actually belonged to Government, and not the ResPondents.

- 3. That the learned trial Judge erred in law and fact and ^a miscarriage of justice was occasioned when he wrongfully held that the Respondents'suit was not time barred. - 4. That the learned trial Judge erred in law and fact and ^a miscarriage of justice was occasioned when he failed to properly evaluate all the evidence before him thereby arriving at erroneous decision dismissing the Appeal. (sic)

### Renresentations

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Tibaremwa Mwebaza Principal State Attorney (Counsel for the 60 appellant) appeared for the appellant and Obed Mwebesa (Counsel for the respondent), appeared for the respondents.

#### Issues ,

The appellants field conferencing notes and laid down the issues for determination as;

- 1. Whether the land in issue belonged to the respondents'family or the Government. 65 - z. Whether the respondents' family was com - 3. Whether the plaintiffs' suit was barred by - 4. Remedies to the parties.

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### Submissions

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## Issue No. t

75 Counsel for the appellant cited Article 237 of the Constitution of uganda Lgg5which states that land in Uganda belongs to citizens of Uganda and shall vest in them in accordance with the land tenure systems provided under the Constitution'

Counsel submitted that, the above law was a departure from the law in place at the time of the alleged acquisition of the land in issue. The ry67 Constitution did not provide for ownership of land by citizens, neither did the same law spell out the forms of land tenure especially the customary land tenure sYstem.

Counsel for the appellant further submitted that neither the plaintiffs' pleadings before the r't court, nor the relevant submissions before all

85 lower courts disclose the basis of the alleged claim of ownership of the land in issue. He contended that even if it was based on customary ownership, still the law on the tenure ownership is in place and very clear.

Counsel relied on Sectio n 24 (r) of the Public Lands Act 1969 which so states that;

> (r) "Subject to the provisions of subsection (S) of it shall be lawful for persons holding by to occupy without grant, lease or controlling authority any un alienated public the Commission, if, rt

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(.) The land is not in an urban area; and

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(b) No tenancy or other right of occupancy has been created in resPect of it"'

Counsel for the appellant noted that the Land Reform Decree 1975 and the Public Lands Act 1969 operated side by side until they were repealed by Section 99 of the Land Act, 1998'

He submitted that it was clear from the foregoing legislation, that for the respondents to have a valid claim of customary ownership over the land in dispute, they had to prove thaq

- 105 a) No tenanry or other right of occupancy over the land was in existence; certainly the appellants' evidence that the land in dispute belonged to Government and that the respondents' family were compensated for the developments cannot be simply wished away. - 110 b) Secondly, ownership of land by customary tenure had to be recognized and regulated by custom- and in the instant case; the respondents have not established their ownership by custom'

Counsel referred to Section l(z) and 4(r) and (z) of the Land Reform Decree t975 to show that customary tenure was not ownership of land or any interest or estate in the land at all'

He further relied on Secti on 24 of the Public Lands Act 1969 and Section 5 of the Land Reform Decree, to support the above and urged court to be mindful of the prohibition of in urban areas, without written permission of the prescri ⁱ

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L20 Counsel submitted that, even if the respondents' claim of ownership was premised upon customary tenure, still the claim would be misconceived and bound to fail because such occupancy of the land without the consent of the prescribed authority would be in breach of Section 5(r) of the Land Reform Decree'

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t25 Counsel for the appellant prayed that the court finds that the respondents did not own the disputed land'

#### Issue z

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Regarding the second issue, counsel for the appellant submitted that evidence on the record which remained unrebutted indicates that the respondents' family was compensated for developments on the land.

He submitted that at law, the interest of the respondent's family was restricted to developments on the land and not the land itself, and therefore, compensation for the developments was paid.

### Issue 3

- On the third issue, counsel for the appellant referred to Section 5 of the Limitations Act, Cap 8o of the Laws of Uganda which provides that no action shall be brought by any person to recover land after the expiration of twelve years from the date on which the right of action accrued to him/her or if it first accrued to some person through whom 135 - ¹⁴⁰ he/she claims to that person.

Counsel referred to the case of

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No. z5 of 1996 where Court held that "...statutes of limitations are in their nature strict and inflexible enactments. Their overriding purpose 14s is entered rei publicae ut sit finis litium, meaning that litigation shall be automatically stifled after fixed length of time, irrespective of the merits of the Particular case."

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while still discussing the submissions of counsel for the appellant, it is important that the gist of the meaning of the latin maxim is not lost in translation. ,Interest rei publicae ut sit finis litium' in short means that it is in public interest that litigation comes to an end'

Counsel submitted that, the respondents' action would have been within time if filed between r99o-2ooz. He added that the respondents did not plead disability as required by law and therefore, the court ought to have dismissed the suit or rather reiected the plaint under Order 7 rule u of the Civil Procedure Rules'

He further referred to Section u (r) of the Limitation Act which states that no right of action to recover land shall be deemed to accrue unless the claimant is in possession of the land. Counsel cited Section u(z) which provides:

"(z) Where a right of action to recover land has accrued and thereafter, before the right is barred, the land ceases to be in adverse possession, the right of action shall no deemed to have accrued, and no fresh right of be deemed to have accrued until the land into adverse possession."

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Counsel further noted that S.16 of the Limitation Act provides for the extinction of the right of the respondents to file the suit after the expiry of the limitation period.

He added that the trial Judge based his decision to dismiss the ground 170 of appeal under provisions of S.22 (1) (a) of the Limitation Act provides for instances when a fresh action accrues and provides:

> "(1) Where there has accrued any right of action (including a foreclosure action) to recover land or any right of a mortgagee of personal property to bring a foreclosure action in respect of the property and—

> > (a) the person in possession of the land or personal property acknowledges the title of the person to whom the right of action has accrued; or

(b) in the case of a foreclosure or other action by a 180 mortgagee, the person in possession of the land or personal property or the person liable for the mortgage debt makes any payment in respect of it, whether of principal or interest, the right shall be deemed to have accrued on and not before the date of 185 the acknowledgment or payment."

For a fresh action to accrue, counsel submitted that the bad to be either acknowledgment or part payment, and therefore, $\epsilon_{\rm sh}$ action could accrue.

1eo He submitted that there was no such acknowledgment, and also, acknowledgment would not be imagined in view of the governing legislation at the time.

Counsel further submitted that the z"d condition would be available if there was a foreclosure or other action under a mortgage.

1ss He argued that there was no basis whatsoever to conclude that a right of action accrued in r99o.

### Issue 4

On remedies to the parties, counsel for the appellant prayed that the Appeal be allowed, the judgment in the lower court be quashed, and 2oo all the orders there under be set aside. Costs of the appeal and those in

### Respondents' submissions

the lower court were also prayed for.

Counsel for the respondents filed conferencing notes in resolution of the issues. He made submissions relying on the Grounds of Appeal in his reply, unlike counsel for the appellant who submitted relying on the framed issues.

On ground one relating to compensation for the developments on the said land, counsel submitted that there was no evidence to prove that the respondents were comPensated.

2LO He submitted that although the evidence of Byabagambi, the Town Clerk, was that there were to t t

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2L5 Counsel contended that the evidence in court was that the late Muhumuza was not compensated and this evidence was not rebutted.

He further contended that the law requires the appellant to prove his allegations that the late Emmanuel Muhumuza was compensated for the suit land. He cited Section ror of the Evidence Act which is to the effect that whoever asserts a fact must prove it exists. It was the appellant's duty to prove that compensation had been paid.

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He further argued that it was a grave contradiction on the part of the appellant to turn around and say the land in issue did not belong to the respondents' family.

Counsel submitted that in zoor, the appellant declined to compensate the respondents for the retained land prompting the respondents to 225 sue

On the fourth ground of Appeal, counsel for the respondents submitted that the trial Judge considered all the evidence on court record which he re-evaluated before arriving at the decision as he did.

Counsel for the respondents then prayed that the appeal be dismissed with costs. 230

In reioinder, counsel for the appellant submitted that the the late Muhumuzaby not complaining for over 14 years

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manifestation that he had been compensated. He contended that the z'd respondent's evidence on record was sufficient on the matter.

## Courts consideration of the Appeal

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The duty of a z"d Appellate Court is well outlined in both written and case law. It has been held that, on a second appeal the Court of Appeal is precluded from questioning the findings of fact of the trial Court, 240 provided that there was evidence to support those findings, though it may think it possible, or even probably, that it would not have itself come to the same conclusion; it can only interfere where it considers that there was no evidence to support the finding of fact, this being a question of law: R v Hassan bin Said (r94e) 9 E. A. C. A. 62.

# ²⁴⁵ Section 7z of the Civil Procedure Act provides:

- r. Except where otherwise expressly provided in this Act or by any other law for the time being in forcer iD appeal shall lie to the court of Appeal from every decree passed in appeal by the High Court, on any of the following grounds, namely that - a) the decision is contrary to law or some usage having the force of the law; - b) the decision has failed to determine some material issue of law or usage having the force of the law;

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²⁵⁵ c) a substantial error or defect in the provided by this Act or by any other time being in force, has occurred

possibly have produced error or defect in the decision of the case upon the merits."

# 260 In the case of Lubanga Vs Ddumba Civil ApPeal No. ro of 2orr [zor6J UGCA n, it was held that;

,,First, as is the case with Rules 66(z) and 86(r), this Rule [i.e. 3z(r)] being a subsidia.y legislation must be interpreted and applied in compliance with and subiect to the substantive law which is Sections 7z(r) and; j4 of the Civil Procedure Act, in the case of ^a second civil appeal to this Court, and Section a5(r) of the Criminal Procedure Code Act, in the case of ^a second criminal appeal to this Court. The substantive law, whether civil or criminal, enioins that the grounds of appeal in a second appeal must be. on points of law."

We shall rely on the case of Mitwalo Magyengo v Medadi Mutyaba, Supreme Court Civil Appeal No. rr of 1996, which was a second z7s appeal of a civil nature involving a dispute over kibanfa land, and it was held that;

> "section Z+b) [now Section Zz(r)l of the Civil Procedure Act preludes second appeals that based on grounds of points of law, but based on findings of fact or mixed law

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It was further held thaq

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"An appeal on a point of law arises when the Court, whose decision is being appealed against, made a ftnding on the case before it, but got the relevant law wrong or applied it unongly in arriving at that finding..."

"A question of law is about what the correct legal test is, as contrasted with a question of fact, which is concerned with what actually took place between the parties to the dispute. When the issue is whether the facts satisfy the legal test, then a question of mixed law and fact arises. Where on a second appeal in a Civil Cause, the grounds of appeal are not of law but are of findings of fact or mixed law and fact, and then such grounds are wrong in law and are either abandoned by the appellant or are struck out by Court."

Upon examination of the appellant's Memorandum of Appeal all the four grounds assert that the first Appellate Court erred in law and in fact in reaching the decision. 300

We note that grounds r and 2 were not based on points of required. Throughout the submissions on each of the appeal, counsel for the appellant submitted on of mixed fact and law. Only ground 3 raised a point of \ as of I

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In ground r, counsel for the Appellant argued that the first Appellate Court erred when it failed to appreciate that the family of the respondents received compensation for develoPments on the land. In ground 2, counsel submitted that the learned trial fudge erred in law and fact and a miscarriage of justice was occasioned when he failed to appreciate the land in issue actually belonged to Government, and not the respondents. Essentially, these complaints were questions of fact.

In ground 3, counsel for the appellant submitted that the trial Judge wrongfully held that the respondents' suit was not time barred. He further submitted that the trial Judge misapplied Section 22 (r) of the Limitation Act, and thus reaching a wrong decision.

Section zzO of the Limitation Act provides:

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- (r) "\{here there has accrued any right of action (including ^a foreclosure action) to recover land or any right of ^a mortgage of personal property to bring a foreclosure action in respect of the propefty and - - (a) The person in possession of the land or personal property acknowledges the title of the Person to whom the right of action has accrued; or - 325 (b) In case of a foreclosure or other action by " mortgage, the person in possession of the land or property or the person liable for the makes any payment in respect of it, t

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^a principal or interest, the right shall be deemed to have not before the date of the or payment." ³³⁰ accrued on and

> The law clearly stipulates that where any right over land accrues and there is an acknowledgment of the right, then a new right of action accrues. Therefore, the actions of the appellant returning part of the land to the respondents, indicates that they acknowledged the

The limitation period therefore began to run in 1999. The suit was filed in zoo4 five years after part of the land was returned to the respondents. The respondents' action was, therefore, brought within 340 the time allowed by the law.

Accordingly Ground No.3 covered in issue 3 fails.

respondents'right over the suit land.

It should be further noted that it was the duty of the appellant to prove that compensation had been paid to the respondents and that the suit was time barred. The first Appellate Court found that;

³⁴⁵ "In the instant case, since the Appellant alleged that the Respondents had been comPensated it was its duty to prove the same to the trial Court, which it failed to do. trial Court therefore rightly found that the not been compensated."

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We found no evidence and do find that the appellant failed to prove that compensation to the respondents had been made and that the suit was time barred.

We agree with the first Appellate Court that the respondent had not been compensated, and we find that the court properly re-evaluated the evidence before it.

In the result, this Appeal fails and is therefore dismissed. The High Court Judgment in Civil Appeal No. 68 of 2011 is hereby upheld.

We so order. Signed and dated at Kampala this. 2017

HON. MR. JUSTICE/S. B. K. KAVUMI DEPUTY CHIEF JUST/CE

CHARD BUTEERA

**JUSTICE OF APPEAL**

achneer

HON. LADY JUSTICE CATHERINE BAMUGEMEREIRE

JUSTICE OF APPEAL 16 Tumulairme fu 10 spinker.<br>1 Indoembre 11 Jours 1418

## THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA CIVIL APPEAL NO.231 OF 2013 (ARISING FROM HCT CIVIL APPEAL NO.68 OF 2011) ARISING FROM BUS - 00 - CV - CS - NO.320 OF 2007

BUSHENYI-ISHAKA TOWN COUNCIL ::::::::::::::::::::::::::::: APPELLANT $\mathbf{1}$

$VS$

#### 1. MANFRED MUHUMUZA

# 2. MERCY MUHUMUZA

3. MARTIN MUHUMUZA ...................................... **RESPONDENTS**

#### **DECREE**

This Appeal coming up for hearing before Hon. Justices **S. B. K. Kavuma**, DCJ, Richard Buteera, JA and Catherine Bamugemereire, JA on the 28^th day of June 2017 in the presence of **Christine Tumuhairwe**, Counsel for the Respondents and **Tibaremwa Mwebaza**, Counsel for the Appellant.

#### **IT IS HEREBY ORDERED** as that:

- a) That this Appeal fails and is therefore dismissed - b) That the High Court judgment in Civil Appeal No.68 of 2011 is hereby upheld.

Given under my Hand and the Seal of this Honourable Court this $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$

**REGISTRAR**

Drawn and filed by: M/S. Niwagaba & Mwebesa Advocates Plot No.32 – Lumumba Avenue Padre Pio House - 1^st Floor P O Box 6714 **KAMPALA**