[2024] UGSC 18

## 5 THE REPUBLIC OF UGANDA,

## IN THE SUPREME COURT OF UGANDA AT IGMPALA

## (CORAM: TI BATEMWA - EKI R I KU B I NZA, CH I BITA, MUSOKE, MUSOTA, MADRAMA, JJSC)

## CIVIL APPEAL NO. 14 OF 2023

#### (ARtStNG FRoM CoURT 0F APPEAL CtVtL APPEAL N0. 110 0F 2017)

# (ARrSrG FRoM HCT - 01 - CV - N0. 043 0F 2005)

- r. rsMA HAKTRT) - 2. MTLToN BEGUMA) - 3, SADRESS ruRYASHEMERERWA} APPELLANTS

#### VERSUS

## THE ATToRNEY GENERAL AND 31 oTHERS) RESPONDENTS

#### JUDGMENT OF CHRISTOPHER MADRAMA IZAMA, JSC

- ?0 25 This is a second appeat against the Judgment of the Court of Appeat detivered by Mugenyi, J. A, with the concurrence of Kiryabwire, J. A and Kasule, AG JA on the l6th December, 2021 in Civit Appeat No. 110 of 2017. The Court of Appeal. dismissed the appetlants appeaI in the Court of AppeaL with costs in the Court of AppeaL and the High Court. ln the judgment, the Court of Appeat uphel.d the trial court decision that the suit commenced by the appettants is time barred. Secondty and coroltary to the issue of the suit being time barred, the Court of Appeal. hetd that the appettants and the peopte they represent were neither lawful nor bona fide occupants of the suit property. The appettants were originatty settted on the tand (suit property) by the Government of Uganda and were not even customary owners as defined under the Land Act. - 30 The appettants were aggrieved by the dismissal of their appeal and appeated to the Supreme Court on the fo[towing grounds of appeal. namety:

I

- ⁵ 1. The [earned Justices of appea[ erred when in resolving the appeat, they refused or ignored to consider grounds 10 and 4 which the appeLtants had raised and argued. - 2. The [earned Justices of appeal erred when they uphetd the triaL court's decision and hetd that the appell.ants'suit was time barred. - 3. The learned Justices of appeal erred when they uphel,d the triat court's decision and hel.d that the appetlants were neither customary tenants nor lawfut or bona fide occupants on the suit [and. - 4. The learned Justices of appeal erred when they hetd that the appettants were evicted in1992 and that they re-occupied the land in 2001. - 5. The [earned Justices of appeal. erred when they reLied on extraneous matters and not the evidence on record in arriving at their decision. - 6. The learned Justices of appeal erred when they fail.ed to discharge the duty of property evatuating the evidence on record. - The appet[ants pray that the appeal is attowed with the orders sought in the pLaint and that the decision of the Court of Appeat and High Court be set aside and the respondents be ordered to pay the costs of the appeat in this court, the costs in the Court of AppeaI and in the High Court. 20

At the hearing of the appeal, learned Senior Counsel Mr. James Mukasa Sebugenyi appeared for the Znd - 12tn and l4rh - 31't Respondents. He atso appeared jointty with the Attorney General for the 1't and ]3th Respondents. The Attorney General was represented in Court by the learned State Attorney Mr. Mark Muwonge hol.ding brief for the [earned State Attorney, Ms Judith Kabanyoro, the resident state attorney of Mbarara. The appetlants were represented by [earned counseI Mr. Vincent Mugisha appearing together with [earned counsel Ms Pearl Mugisha. The Superintendent of Prrsons from the Legat Department of Uganda Prisons Ms May Kobusingye was atso present in court on behatf of Uganda Prisons. 25 30

CounseI for the parties addressed the court by way of written submissions which had been filed, atbeit tate, and with the leave of court, the tate fiting was vatidated and judgment reserved for detivery on notice. 35

⁵ The background to the appeat is that the appettants acting on their own behatf and in a representative capacity for 523 other pl.aintiffs, commenced an action in the High Court against the respondents. Their claim cottectivety against the respondents were jointty and severatty for a dectaration that the suit property betongs to them as ptaintiffs and the 523 other ptaintiffs they represent, secondty that the Government of Uganda is not entitted to deprive the ptaintiffs of the suit [and without compensation. They chattenged the transfer of the suit land to the 32"d defendant as fraudulent and sought an order for cancettation of the certificate of titte issued to the 32"d defendant who is the Uganda Land Commission. They sought the remedies of speciat, exemptary and general damages, interest and costs of the suit. 10 15

The suit was heard by 0jok J and the foLtowing issues were set for determination of the suit in the High Court namety;

- 1. Whether or not at the time the pl.aintiffs were evicted the tand betonged to Government. - 20 - 2. Whether the ptaintiffs suit is time barred - 3. Whether the ptaintiffs suit is res judicata. - 4. Whether the ptaintiffs have been previousty compensated in respect of the suit Land. - 5. Whether the ptaintiffs and the persons they represent had any recognised interest in the suit tand at the time they were evicted. - 6. Whether the 2nd -3,|'t defendants were attowed by Government to use the suit land. - 7. lf so, whether the Government had capacity to give them such permission.

l

- ⁵ 8. whether the certificate of titte in the names of the 32"d defendant was procured by fraud - 9. What are the remedies avaitabte to the parties?

As far as is retevant to the matter before this court, the [earned triat Judge of the High Court after considering the assertion of the ptaintiffs that they were evicted from the suit property in the year 2004 and they fil.ed the suit in time in 2005 and within the timitation period of 12 years, evatuated the evidence adduced and hetd that the pLaintiffs were evicted in the year 1992 and therefore the suit was time barred because it was fited more than twetve years after the said eviction contrary to section 5 of the Limitation Act cap 80 which prescribes a period of twelve years within which to fil.e a suit for recovery of [and. This was corottary to the issue of whether the suit property betonged to the Government or the Government was a trespasser occupying the suit property and committing the continuous tort of trespass 10 15

- and the suit was not time barred. As a matter of fact, the triat court found that the Government had committed no trespass. The court found, from a review of witness testimonies and exhibits, that the pl.aintiffs were evicted in the year 1992 but they came back and forcibty reoccupied the suit property in the year 2004. lt is in the year 200L that they were arrested and forcibty 20 - removed from the suit property. Secondty, (and in the alternative) the learned triat Judge hetd that if the suit was not time barred, the suit property beLonged to Government which had commenced the process for obtaining titl.e through survey and other procedural steps way back in the 1970s. 25 - The ptaintiffs were aggrieved and appealed to the Court of AppeaL. 0n appeat, the issue before the Court of Appeat, inctuded the issue of whether the [earned trial. Judge erred in finding whether the suit was time barred and this was addressed on the basis of ground 11 of the appeal that was resotved first. The resotution of ground 11 of the appeaI had the effect of resotving the other grounds of appeal on a point of [aw. 30

## ⁵ Submissions of Counsel on grounds 2, 3 and 4 of the appeaI

## Ground 2

# The learned Justice of Appeat erred in law when they uphetd the court's decision and heLd that the suit was time barred.

The appetlant's counsel submrtted that the suit was not time barred and the tearned Justices of the Court of Appeat erred in law to upho[d the ruIing of the Hrgh Court to that effect. He contended that the appettants started staying on the suit land around the 1960s. Some of the appettants came on the said Land through Government programs, others were brought on the suit [and pursuant to an agreement that was signed between the Kaba[e King and the Tooro King and were retocated on the suit land due to congestion, The appettants were Later evicted from the suit tand by the respondent and they were to be compensated and resettled as can be discerned from Civil Suit No. 207 of 1993 between Turyamureeba Ben and 132 Others vs the Attorney General; and Civit Suit No. 1022 o12001; Amos Bakaine, Moses Turyagumanabo & 354 Ors vs the Attorney General & WUWA. 10 15 20

The appel.tant's counseI contended that the first respondent did not do his part of the bargain but instead gave the suit land to the 2nd up to the 31't defendants and a document to that effect was submitted to court. When the appeltants were not compensated by the first respondent, some of the appeltants f ited a suit after they had teft and some re-entered their land and settl.ed there unti[ 2004 when the first respondent evicted them forceful. Ly. Some of the appeLl.ants were arrested, charged and the case against them dismissed. Furthermore, it was submitted that the appettants were evicted in the year 2004 and not in 1992.

The appettants'counsel contended that the Justices of the Court of AppeaL noted that the impugned decision of the trial. court invoked sections 3 and 6 of the Civit Procedure and [imitation (Miscettaneous provisions) Act before concluding that "ordinarity timitation would not bar an action based on continued trespass by the Government on the suit Land...".

- 5 He submitted that the suit was not time barred because the appettants were not compensated by the first respondent and on top of that, the respondent permitted other peopte to use the land in order to grab the same from the appettants with Local. Government support thereby breaching the law on computsory acquisition of [and. Actions of the respondent of evicting the - 10 appeltants from the suit [and and permitting the 2nd to the 31't respondents to use the Land amount to a continuous tort by the Government. Counsel contended that the appettants therefore continued using their [and untiI 2004 when the first respondent evicted them forcefutty whereupon the ptaintiffs decided to fite a suit as they did, in the year 2005.

# 1s Ground ³

# The learned Justices of appea[ erred when they uphetd the trial. court's decision and held that the appettants were neither customary tenants nor lawful nor bona fide occupants on the suit tand.

20 The appel.l.ants' counseI submitted that the term bona f ide occupant has two meanings. That it f irstLy refers to a person who, before the coming into force of the 1995 Constitution, had occupied or improved certain [and, without being chatlenged by the owner of the Land or his or her agent as defined under section 29(2)(b) of the Land Act.

25 30 That untike a lawful occupant, a bona fide occupant is deemed to have entered the tand without the consent of the owner and that he or she is essentiatty a trespasser or a squatter. Atthough the term bona fide is used to describe the occupier, there is no requirement that he or she must have entered the Land in good faith. Therefore, the motive of the occupant at the time of entry into the [and is immateriaI and the 12 years' period of occupancy corresponds wrth the timitation period of 12 years for recovery of tand. The law provides that the bona fide occupant or his or her predecessor in titte must have occupied the land unchattenged by the registered owner for a minimum period of 12 years.

The appettants' counsel submitted that the term "chattenge" has various meanings and includes Laying of a ctaim to or demanding as a right. lt al.so 35

⁵ includes forma[[y questioning the Legatity of some act. lf within the requisite 1Z-year period, the registered owner sues the occupier for trespass, that woutd constitute sufficient chaltenge. Eviction of the occupier is atso ^a chaLLenge. Further, the appe[tants' counseI submitted that the period of Limitation may be extended up to 30 years under section 2l('lxd) of the Limitation Act and there is no provision in the Land Act for extension. That the term "bona fide occupant" onty appties to a person who had been in 10

occupation for a period of 12 years or more before the coming into force of

The appel.tants' counsel submitted that the second meaning of a bona fide occupant is a person who had been settled on [and by Government or its agent inctuding a [oca[ authority in terms of section 29(2)(b) of the Land Act. Under this definition, there is no requirement that the person must have settted on the land for a particutar minimum period to quatify as a bona fide occupant. That this was to protect innumerable peopte settted on land by Government or LocaI Authorities. 15 20

the 1995 Constitution.

The appel.tants' counsel retied on Articte 26(2) of the Constitution for the proposition that it prohibits Government from computsory acquisition of [and untess the specified conditions in the articte are satisfied. From the facts, the appettants stayed on the suit [and in 1960s and were unchattenged

- by Government unti[ 1992 when Government had them evicted and atso offered the appetl.ants compensation. Further, the conditions under which Government may computsoril,y take over land inctude, the necessity of the land for publ.ic use, the interest of defence, publ.ic safety, pubtic order, pubtic moral.ity or pubtic heatth. Secondty the acquisition of the land must be under 25 - a law which provides for inter a/za a right of access to courts by persons aggrieved by the acquisition. 30

The appel.tants had tived on the suit property since the 1960s unchal.tenged by Government. ln 1992, the appettants were evrcted from the suit property. That the appettants had been on the suit land as bona fide occupants for over 12 years before the promutgation of the Constitution of the Repubtic of

⁵ Uganda 1995. Finatl.y, that the Court of Appeat erred to rute that they were not bona f ide occupants of land but mere licensees.

## Ground 4

# That the learned trial Justices of appeat erred in law when they hetd that the appeltants were evicted in1992 and that they reopened the tand in 2004.

- The appettants'counseI submitted that the appettants were evicted from the suit land in 2004 after they had occupied it in 1960s. That by the time the appettants were evicted, the suit land betonged to the appettants and not the Government. Further that the tand that belonged to the Government was onty 650 hectares which the Government had delineated, gazetted and set 10 - aside for Rwimi Prison under the Prisons (DectarationXNo.2) lnstrument, Sl. 304-2. That the [and outside the gazetted land betonged to the appettants and not the Government. The Appellants' counsel submitted that in the premises, the learned Justices of the Court of Appeat erred to uphol.d the decision of the triat court. 15 - Further, the appettants' counseI submitted that there is no Legal. frame work existing in Uganda to guide evictions and demoLitions. They retred on Jin Satrose Ayuma & 11 Ors Vs. Registered Trustees of the Kenya Railways Staff Retirement Benefits Scheme and 3 Ors; Petition 65 of 2010. Where Justice Lenaola, stated that the widespread forced evictions without adequate safeguards such as notice and compensatron for executron of pubtic interest works required adequate eviction laws to be enacted to protect the interests of the evictees. 20 25

The Appel.tants' counsel submitted that in Uganda, the land tenure system acknowtedges that there are peopLe who have settted on either public tand or private land who deserve protection. The protection of such peopte shoutd not in any way be tagged to whether they have proprietary interest in the [and or whether they are squatters or trespassers. Counsel further relied on Muhindo James & 3 Ors vs. AG Miscettaneous Cause No. 127 of 2016 where Justice Ssekana cited Port El.izabeth Municipal,ity Vs. Various 30

Occupiers (2005) 0) SA217 (cc) 55 for the proposition that it was not 35

⁵ material for the appetlants to have had titl.e to the land for their rights against forcibte evictions to be respected. Counsel prayed that ground 3 be resotved in the aff irmative.

## l"t, l3th and 32nd respondents'submissions in reply

ln repl.y Counsel for the 1st, 13th and 32nd respondents submitted that the resotution of grounds 2 and 4 have the combined effect of disposing of the entire appeal because they are interretated. This is because hat the Court of Appeats decision that the suit was time bared was dependent on the ^finding of fact that the appeLl.ants were evicted in1992.

The respondents' counset submitted that the duty of a second appetlate court is to re-evatuate whether the first appettate court property executed its duties of re-appraising the evidence and drawing its own inferences from such evidence. Counsel relied on the proposition rn Henry Kifamunte vs Uganda; SCCA No. '10 of 1997, that "on a second appeat it is suff icient to decide whether the first appel. Late court in approaching its task, apptied or fail.ed to appl.y such principtes." Further in Etizabeth Natumansi vs Jotty Kasande, SCCA No. l0 of 20'15, the Supreme Court hetd that: 15 20

> where factuaI f indings have been made by the triaI court and aff irmed by the f irst appeL[ate court, the second appeLtate court, tike this one, must be carefuI not to rnterfere with those findings untess the court is satisfied that the findings were devoid in evidence on the record or that they were so gLaringty erroneous that the findings by the triaL court were perverse.

The Triat Court based its decision that the suit is time barred on Section 5 of the Limitation Act, Cap. 80 in respect of the timitation of actions for recovery of Land and section 3 of the Civit Procedure and Limitation (Miscettaneous Provisions) Act, Cap72 in respect of the timitation of actions to recover damages for a tort. Monica Mugenyi JA, re-evaluated the evidence adduced by the parties in respect of when the appettants were evicted from the suit [and and affirmed the finding of the triat court that it was in 1992. She found that the issue revotved on a question of fact. Further the respondents counse[ submitted that appettants argued that they had 30

- ⁵ entered the suit land pursuant to an agreement between the kings of Kabale and Tooro. They argued that the suit was not time barred because they were not compensated yet the Government attowed the 2"d - 3l't respondents to use the suit Land in 2008. The respondent contends that the appettants did not produce any evidence to prove that they were indeed not originatl.y - evicted in1992. ln the premises, the Court of Appeat property resotved the question of when the appettants were evicted from the suit [and. Further, the first appettate court heLd that there was no evidence adduced by the appetlants to prove that their parents had acquired the land under an arrangement between the King of Kabale and the King of Tooro. 10 - The Court of Appeat re-eva[uated the evidence of six witnesses. These inctuded the second appeal. as PW6 on the areas on Kisanga A and B which was found to be engineered evidence. The court considered the evidence of an amended pl.aint disctosing Kisanga LCl, Rwimi parish, with no evidence of division as Kisanga A and Kisanga B. This is the property from which the 15 - appettants were evicted from in 1992. That the evidence of eviction was corroborated by DW6 (Jackson Kamanzi) a retired superintendent of prisons who had worked at Rwimi Prisons between 1989 and 2002. This was further supported by the testimony of DW14 that some peopte were evicted in 1987 and the rest were evicted in 1992. Finatl.y, there was evidence of DW 20 - 12 that the evictees who forcefutly returned to the suit [and in 2004 were evicted by the potice within a few days. 25

0n the submission of the appeltants that there is no [egaL framework guiding evictions and demotitions in Uganda. The respondents' counsel submitted that the Kenyan authority cited was decided under the legal. framework of Kenya. Secondty, the appettants were evicted by the Uganda Government and resettted in Bugangaizi and there was no need to fottow the procedure for computsory land acquisition since Government was not acquiring the land anew.

Further the respondents' counseI submit that the appettants were approbating and reprobating when it comes to the issue of when they were evicted from the suit Land. They submitted that they were evicted from the 35 ⁵ land in 1992 and onty to come back in 2004. That the re-entry of the land in 2004 was onty meant to reinstate their cause of action. The Rwimi prisons however reputsed them before they coutd settte on the [and.

That from the ongoing anatysis, the Court of Appeal. cannot be fautted for finding that the appettants suit was barred by time as it was instituted in 2005. They prayed that grounds 2 and A be resotved in favour of the respondents.

ln repty to ground 3 of the appeat, the respondents'state that that the appettants cannot introduce the ground of lawful or bona f ide occupants in this court as the same was not raised in the lower courts. They submit that the appel.tants did not address court on the ctaim that the Court of Appeat erred when it hel.d that the appetlants were not customary tenants. The respondents therefore invited court to find that the appettants'abandoned the ctaim that they were customary tenants.

The l't, l3th and 32nd respondents'however submitted on the other grounds for compteteness. 0n the allegation that the appettants were customary tenants, the Hon. Lady Justice Mugenyi, JA underscored the fact that land claimed to have been acquired in accordance with the custom of the community as stipuLated under Section 3(1) of the Land Ac't, Cap. 227 as amended and cited Kampala District Land Board & Anor. Vs. Venansio Babweyaka & Ors, SCCA No. 2 of 2007. The Learned Justice then observed that save for the unsubstantiated ctaims by some of the appel.l.ants' witnesses that their parents had been given land under some sort of arrangement by two cuttura[ leaders, no evidence whatsoever was adduced to prove that any such arrangement existed. That PW1 during cross examination conceded that his parents were relocated on the suit [and under a Government program. That the same concession was made in paragraph 1 of Exhibit DlA, which stated that they occupied the tand as earty as 1968 when Government was giving tand to [andtess people that had Land probtems. 20 25 30

- ⁵ Mugenyi, JA concl.uded that the appettants were atlowed on the suit tand by Government so they cannot ctaim to have acquired the suit Land in accordance with the customary principtes and practices of the community where the land is situated as to qual'ify as customary tenants. The respondents aver that the Court of Appeat put it right when they stated that - the incidents of customary tenure of Land rs set out in Section 3(l) of the Land Act. The Court of Appeat Laid down parameters of determining whether someone is a customary tenant. The respondents submitted that the dominant requirement from the law and the materiats that Court of Appeat relied on in arriving at its decision is that the person ctaiming to be ^a 10 - customary tenant must have acquired the land in question in accordance with the customs of the area in which the land is situate. That the court upon re-evatuating of evidence adduced by the appel.tants found that they had not proved that they had acquired it from or in accordance with the customary principl.es' and practices of the Tooro community. 15 - Court found that the appettants were simpty licensed by Government to use the suit land and were subsequentty evicted by Rwimi Government Prison that rightfutty taid a ctaim to the [and, that therefore court was justified in its finding that the appeltants were not customary tenants. 20

The appetLants' fautt the appettate court for finding that they were not bona fide occupants of the suit [and. They submitted that it is the ]'t time the appetlants are pursuing this Line of argument since it was not argued in the High Court and the Court of Appeat. That the issue of whether the appettants coutd have been lawful or bona fide occupants was introduced by the Court of Appeal after the court found that they were not customary tenants. lt's 25

the respondents' submission that the appellants cannot introduce this argument when the same was not raised in the lower courts. 30

The appel.l.ants had argued that they had uninterrupted occupation from 1960s to 1992. This atlegation is untrue. The evidence on record is to the effect that they tried to evict the appettants from the [and in 1973 and ¹⁹⁸¹

before they were eventuaLty successfulty evicted from the suit land in1992. The respondents submit that from the foregoing it is evident that the Rwimi 35

⁵ Prison authorities contested the occupation by the appettants and they cannot claim bona fide occupancy because their occupation was contested.

The respondents further submit that the appettants were retying on ^a provision that was in the Land Bitt and subsequentty removed from the Act and this was a deIiberate decision not to inctude it and that the appetLants' submission shoutd be disregarded on the said provision.

They further submit that the learned Hon. Lady Justice of the Court of Appeat noted that for a person to claim bona fide occupancy, he or she must have occupied and util.ized the tand in question unchatlenged for a minimum of 12 years before the promutgation of the 1995, Constitution. They conctude that the courts finding that the ctaimants were not lawful or bona fide occupants is unassaitabl.e. That the court correctty apptied the law to the facts. That the appel.tants got on to the land as [icensees that Government attowed them to stay on the tand and in 1992 exercised its right as the

[andowner to evict and resettte the appettants in Bugangaizi, Kibate District.

That it cannot be that the appel.tants were lawful or bona fide occupants on the suit [and. ln any case the appettants were estopped from raising this argument before this court having faited to pursue it in the lower court. They prayed that this ground is resotved in the negative. 20

## The 2-l2th and 14-3l"trespondents'submissions in repty

- CounseI for the respondents submitted that the Court of Appeats decislon that the suit was time bared was premised on the f indrng that the appettants were evicted in1992. They submit that in the courts Lead judgment the Hon. Lady Justice Monica Mugenyi resolved ground 11 which invotved a point of Iaw. 25 - 30 ln their repLy submissions of the 2nd to 12th and 14th - 31st Respondents, raised the same points as submitted by the other respondents submissions I have set out above. Further, the 2nd - 12th and the 14th - 31't respondents'counseI atso submitted that grounds 2 and L are intertwined and its outcome woutd resotve the appeat in its entirety. I have caref utty considered the

⁵ submissions and they are simitar to previous submissions of the 1't, 'l3th and 32nd respondents and I see no need to repeat them here.

Simitarty, the submissions on ground 3 are similar and advance the same points as the submissions of the f irst, l3th and the 32nd respondents that ^I have set out above.

The above submissions reftect the pretiminary points of Law which ought to be decided first and its outcome witl determine whether I shoul.d consider the rest of the grounds. 10

Further the respondents counset submitted that in tight of Jin Satrose Ayuma & 11 Ors Vs. Registered Trustees of the Kenya Raitways Staff Retirement Benefits Scheme and 3 Ors; Petition 65 of 2010, that there is no [aw governing evictions and demotitions in Uganda, the respondents position is that the Kenyan authority cited was decided within the Kenyan [ega[ framework. Secondty, they contend that since the appetlants were evicted by Government from the suit [and, the Government was only expected to resettte them on another piece of Land which it did when it settted them in Bugangaizi. That there was therefore no need to fottow the procedures of computsory tand acquisition since it was not acquiring the [and anew. 15 20

Therefore, regarding grounds 2 and 4 the respondents submit that the appettants were approbating and reprobating when it come to the time when they were evicted. That the appeltants submitted that they were evicted from the land in 1992 and onty to come back in 2004 because they were not compensated by Government. CounseI observed that the inconsistence by the appettants is evidence that they were evicted from the

suit land in 1992. That the re-entry of the Land in 2004 was onty meant to reinstate their cause of action. The Rwimi Prisons authorities however reputsed them before they coutd settte on the Land. 30

That from the ongoing analysis, the Court of Appeat cannot be fauLted for finding that the appettants suit was barred by time as it was instituted tn

⁵ 2005. They prayed that grounds 2 and 4 be resotved in favour of the respondents.

## Ground 3.

ln repl.y to ground 3 of the appeat, the respondents' counsel submitted that the appeltants having not pursued their ctaim on the footing that that they were lawfu[ or bona frde occupants in the lower court, the issue cannot be introduced at the Supreme Court levet.

The above notwithstanding, the learned counsel for the respondents submitted that the court should make a finding that the respondents under this ground abandoned their cl.aim of being customary owners of the suit property. Further the respondents counset submitted that the learned Justice of the Court of Appeal. Mugenyi, JA considered the definition of a customary [and owner under section 3 (1) of the Land Act and concluded that because the appel.tants were settted on the Land by the Government of Uganda, they coutd not be customary owners of the suit property. Secondty they did not acquire the property in accordance with the customs of the community as provided for under section 3 (1) of the Land Act.

Further, the respondent's counsel submitted that the appeltants did not address the ctaim that the Court of Appeal erred when it hetd that the appeltants were not customary tenants. The respondents assert that this was a deLiberate omission and invited court to find that the appettants' abandoned the cl.aim that they were customary tenants.

The appettants were lrcensed by the Government of Uganda to settte in the area where the suit property is situated in terms of section 29 (4) of the Land Act and coutd not be lawful or bona fide occupants. The appettants were evicted in 1992 before the promutgation of the Constitution and coutd also not be bona fide or lawful occupants. The acquired the land as [icensees and the Government in1992 exercised the right to evict them.

ln rejoinder the appel,tants' counsel submitted on the repty of the respondents to ground 2 of the appeat as fotlows: That the appel. Lants

- ⁵ started staying on the surt land around the 1960s. Some came on the suit Land through Government programmes, others were brought on the suit land through an agreement signed between the Kabate King and the Tooro King and they were re[ocated to the suit land due to congestion. That the appettants were later evicted from the suit land by the 1't respondent and - they were to be compensated and resettled as shown Civil, Suit No. 207 of 1993;Turyamureeba Ben and 132 vs. Attorney GeneraI and Civil, Suit No. 1022 of 2001 Amos Bakaine, Moses Turyagumanabo & 354 Ors vs. Attorney General & WUWA. That the 1't respondent did not perform his part but gave the suit land to the 2nd -31't respondents and a document to that effect was submitted in court. That some of the appeLtants who were not compensated re-entered their land settLed untit they were evicted in 200L. They were 10 15

forceful. Ly evicted, arrested, charged and the case dismissed according to the testimony of DW1.

The appettants' counsel reiterated submissions that the appetlants were evicted in 2004 and not in1992. Further counseI reiterated submissions that the law of limitation under the Limitation Act and the Civit Procedure and Limitation (Misceltaneous Provisions) Act, does not appty to the continuing tort of trespass where the cause of action accrues afresh on each further day of continuation of the trespass. 20

- Further the appel.tants' counsel submttted in rejoinder that the suit was not time barred because the appettants were not compensated by the 1't respondent and more so the first respondent permitted other peopte to use the said [and in order to grab the same from the appettants with the [oca[ Government support thus breaching the laws on computsory acquisition of 25 - [and. Further, the appel.tants continued to use the suit [and untit 2004 when the 1't respondent forcefutty evicted them and they fited a suit in 2005. 30

ln rejoinder to the respondents' counsel submissions on ground 3, the appettants counsel reiterated submissions in the main and submitted that a bona fide occupant has two meanings. One meaning is derived under the

1995 Constitution as an occupier who has been in occupation for 12 years before the coming into effect of the 1995 Constitution and the other meaning 35

⁵ is under sectron 29(2)(b) of the Land Act and is a person who had been settted on the Land by Government or its agent inctuding a [oca[ authority. Whether a person settted by Government or locaI authority, there is no requirement for a minimum period of occupation. CounseI reiterated eartier submissions on the issue. As a question of fact the appel.l.ants counsel submitted that the appeltants having Iived on the suit [and unchattenged since 1960s before their eviction in1992. it means that they occupied the suit [and for 12 years before the coming into force of the 1995, Constitution. That secondty the appeltants settled on the suit land through Government programmes, agreements between the cultural leaders and some bought from peopte that had been staying on the [and. 10 15

ln rejoinder the appettants counsel submitted that the court erred to conctude that the appetlant did not fatl under the ambit of customary owners or that of bona fide occupants but that they were licensees occupying [and under the [icense of Government.

ln the premises, the appetlants had been on the suit land as bona fide occupants for which the 1't appetlate court erroneousty ruted that they were not. 20

ln rejoinder to submissions of the respondents' counsel on ground 4, the appettants counseI reiterated submissions that the appetlants were evicted

from the suit land in 2004 and that the suit land was outside the Land gazetted for the Rwimi prison and it betonged to the appeLtants. That the triat Judge erred to hotd that the suit land betonged to the Government at the time the appettants were evicted in 2004. 25

ln the premises, the appettants pray that the appeaL is aU.owed and the decision of the lower courts set aside and substituted with a judgment atLowing the appetlants ctaim granting the reLiefs they sought in the High Court wrth costs of three counsel. as the matter has been handted by three law firms on behal.f of the numerous appet[ants.

## ⁵ Resolution of the points of law of a Preliminary nature

I have carefutty considered the appettant's appeat, the submissions of counsel and the points of [aw. I have also considered the grounds of appea[ as framed in the memorandum of appeat.

Ground 2 of the appeal is on whether the Court of Appeat erred to uphotd the finding of court that the suit was time barred and this is based on the ^finding that the cause of action for recovery of tand arose in 1992 when the appettants were evicted. The fact that the suit was fited in 2005 after ¹² years etapsed from 1992 is not in controversy. What is in controversy is when the cause of action arose, whether in 1992 or 200{t. lf the cause of action arose in2004, then the action is not time barred. lf it arose in1992, then the cause of action is time barred. Corottary to the above is the issue of what the cause of action was. Was it an action for recovery of tand? An action for compensation for deprivation of land or an action for the tort of 10 15

trespass? Ground 4 of the appeal deats with a question of fact as to whether the cause of action arose in 1992 or 2004. Grounds 2 and 4 were therefore properl.y addressed together by att the respondents. 20

ln relation to ground 3, the question is whether the learned Justice of the Court of Appeat erred to hotd that the appettants were neither customary tenants nor bona fide occupants of [and. This deats with the status of the

- appetlants before their eviction in1992 or 200L and therefore is a material finding and can be handted together with grounds 2 and 4 of the appeat which address the question of whether the action of the appetlants was barred by timitation. The import of the ground is that as bona fide occupants, the appetlants assert a right to the land as its owners and assert that the 25 - respondents are trespassers and that the trespass is a continuing tort thereby bringing the action within the statutory period within which an action can be fited. 30

There are three other grounds of appeat; namety, grounds 1, 5 and ⁶ 0bjection was taken by the respondents to ground six for offending the

rutes of court. I need not consider this ob.lection before first considering the 35

⁵ point of [aw. Ground 5 al.ieges that the learned Justices used extraneous materiats in arriving at their decision. The basis of the materiat finding of whether the cause of action arose in 1992 necessarity invotves an evatuation of fact and is lawful on a second appeat and this partiatty resotves ground 5 of the appeat because the question of whether the suit was time barred resotved the dispute and the Court of Appeat uphetd the f indings of fact on the issue of when the cause of arose.

^Iwitt therefore try grounds2, lt, and 3 of the appeat first. This is because an issue which has the effect of disposing of the whole suit on a point of law ought to be tried f irst. I wou[d consider the appeaL on the issue of whether the suit was time barred when it was f iLed, which is a point of [aw, f irst. This is a rute of procedure founded on Order 15 rute 2 of the Civi[ Procedure Rules which provides that:

2. lssues of Law and issues of fact

Where issues both of law and of fact arise in the same suit, and the court is of opinion that the case or any part of it may be disposed of on the issues of law onLy, it shaIL try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact untiI after the issues of law have been determined.

A suit whrch is barred by Law shoutd not be heard as trial of fact on the merits of the case under such a circumstance woutd be futite. lt saves the parties and the court time and it atso saves the parties costs if the issue is handl.ed as a pretiminary issue whose outcome woutd determine whether the court woutd try other issues or not. ln this case the issue of the suit being barred by section 5 of the Limitation Act cap 80 was not of ^a preLiminary nature and it coutd onl.y be resotved after considering the evidence on the question of when the eviction of the appettants took ptace. ln Western Steamship Co. Ltd vs Amaral Suthertand Co. Ltd 0914) 2 KB 55 it was hel.d that an order for the trial of a preliminary point of law should not be made where there are facts in dispute and if made may be set aside. 25 30

ln lsmail Serugo v KCC & Attorney-General Constitutional Appeat No. 2 of 1998 Oder JSC hel.d that: 35

⁵ the point of law must be one which can be decided fairty and squarety, one way or the other on the facts agreed or not in issue on the pteadings and not one which wiL[ arise if some fact or facts in issue should be proved.

The above principte echoes what was hetd in N. A. S Airport Services Ltd v the Attorney General of Kenya n959] E. A.53, at page 58, where the East African Court of Appeat per Windham JA hel.d that the object of the rute is expedition and the point of law must be one which can be decided: 10

> fairty and squarely, one way or the other, on facts agreed or not in issue on the pteadings, and not one which witl not arise if some fact or facts in issue shoutd be proved...

- There was a major fact in issue as to whether the ptaintiffs were evicted in 1992 or 2004 and the triat of the issue of limitation depended on a disputed fact as to when the cause of action arose. A statute of Iimitation ousts the jurisdiction of a court to hear or try a suit. Where the issue of timitation of the suit is dependent on facts in issue as to when the cause of action arose 15 - as in this appeal., those facts shoutd be evatuated and decided before considering any other issue to avoid wasting a [ot of time and effort on detiberations on other matters over which the court may lack jurisdiction, if the cause of action is time barred. ln lsmail Serugo v Kampata City Council, & Attorney Generat; Constitutionat Appeat No. 2 of 1998, Mutenga JSC hetd 20 - that that a distinction shouLd be made between an objection to pleadings on the ground that it discl,oses no cause of action under Order 7 ru[e ]l of the Civit Procedure Rules and an objection on a point of law on the ground that the suit is not maintainabte under 0rder 6 rute 29 of the Civil. Procedure Rules. There are two rutes involved. These are 0rder 6 Rul.e 28 and Order ⁶ - Rute 29 of the Civil. Procedure Rules which provides as foltows: Rute 28: 30

Any party shatl be entit[ed to raise by his or her pteading any point of [aw, and any point so raised sha[. be disposed of by the court at or after the hearing, except that by consent of the parties, or by order of the court on the appLication of either party, a point of [aw may be set down for hearing and disposed of at any time before the hearing.

⁵ A point of law raised in pteadings may be disposed of by the court at the hearing or after taking evidence. Further, Order 6 rule 29 of the Civit Procedure Rutes provides that:

> lf , in the opinion of the court, the decision of the point of [aw substantial.ty disposes of the whoLe suit, or of any distinct cause of action, ground of defence, setoff, counterctaim or reply therein, the court may thereupon dismiss the suit or make such other order in the suit as may be just.

ln other words, a point of Law that substantiatl.y or whotty disposes of the suit, shoutd be tried first.

15 2Q Order 6 ru[e 29 of the CiviL Procedure Rules proceeds from the assumption that the pteadings disc[ose a cause of action and therefore the point of Law is taken under Order 6 rute 28 after admitting the evidence. Where a point of law is tried after hearing or after taking the material evidence, it proceeds on the premises that the suit is not maintainabte. ln Nurdin Ati Dewji & others v G. M. M Meghji & Co. and 0thers (1953) 20 EACA 132 the East African Court of Appeat hetd that the [earned triaI Judge erred to reject the ptaint when there was an objection to the suit on a point of law and the f inal result was that the Learned Judge rejected the ptaint not on the ground of an inherent defect in the ptaint but because he thought that the suit was unmaintainabte.

ln the circumstances of this appeat, the issue is whether after taking the evidence the High Court decided that the suit is not maintainabte on the basis of the facts showing that the cause of action arose in1992 and not 2004. The suit was fited in 2005 out of time for an action to recovery land. The law is not controversiaI and the issue is whether the finding of fact is supported by the evidence. Can the Supreme Court try this issue as ^a question of fact and [aw? Depending on the outcome of the issue, there may be no need to resotve other issues is this court uphotds the f inding that the cause of action for recovery of land arose in 1992 and therefore the suit is barred by statute. 25 30

⁵ For this reason, it is necessary in terms of appropriate procedure to first determine the issue of [imitation of the causes of action as it affects the jurisdiction of the court to try any other issue or issues. The fact that ^a statute sets a period wrthin which a suit shoutd be tried from the time the cause of action arises goes to jurisdiction of the court. The lack of jurisdiction of a court to enlarge a period set by Legisl.ature within which an action can be brought from the trme the cause of action arouse was considered in Makula lnternational Ltd Vs Cardinat Nsubuga and Another (Civit Appeat No. 4 of 1980 n9821 UGSC 2 (8 April.1982). The Supreme Court of Uganda which was the highest appettate court in Uganda then considered 62 (1) of the Advocates Act Cap 267 taws of Uganda which provides that. 10 15

> Any person affected by an order or decision of a Taxing Officer made under this Part of the Act or any reguLations made under this Part of this Act may appeaL within 30 days to a Judge of the High Court who on that appeal may make any order that the Taxing Officer might have made.

- A person affected by a decision of the Taxing Officer may appeal to the High Court within 30 days to a Judge of the Hrgh Court. The relevant issue before court was whether courts have jurisdiction to enlarge the time prescrrbed by section 62 ('l) of the Advocates Act for a party aggrieved by a Taxing Officer's decision to appeal out of the prescribed time. The Supreme Court 20 - at page 17 of the judgment that: 25

Atthough this issue was not raised in the High Court or before us, it is well estabtished that a court has no resrduaI or inherent jurisdiction to entarge ^a period of time [aid down by statute. See Osman v. United Indra lnsurance Co. Ltd [1968] E. A, 102 at p. 104 and Pritan Kaur v, RusseL & Sons Ltd. [1973] I ALt E. R. ⁶¹⁷ al p. 622. Consequently, Manyindo J's order extending the time within which to appeal', severaL months after the expiry of the statutory period, was made without jurisdiction. lt is a nuLlity and must be set aside. lt foLtows, therefore, that the appeaL which was heard by Khan, Ag. J, was incompetent.

This decision was not overruted by the more recent Supreme Court decision in Sitenda Sebatu vs. Sam K Njuba and another Etection Petition Appeal, No. 26 of 2006. ln the above appeat, the trial Judge dectined to make an order to extend time within which to serve the notice of presentation of an election 5f

⁵ petition which had been fited out of time. The triat Judge retied on section 62 of the Parliamentary Etections Act 2005 which provided that:

> Notice in writing of the presentation of petition accompanied by a copy of the petition shalL, within seven days after the fiting of the petition, be served by the petitioner on the Respondent or Respondents, as the case may be.

10 The Supreme Court noted that the provision is repeated in the rute 6 (1) of the Partiamentary ELections (ELection Petition) Rules and the same rutes under ru[e 19 atlows the court to extend time. lt provides that:

> The court may of its own motion or on application by any party to the proceedings, and upon such terms as the Justice of the case may require, enlarge or abridge the time appointed by the rules for doing any act if, in the opinron of the court, there exists certain special circumstances as make it expedient to do so.

Further the Supreme Court further stated that

Rute 6 of the Partiamentary Elections (ELection Petition) RuLes, therefore, is neither ultra vires nor superfluous. lt is in conformity with the said statutory mandate. Consequent[y. the discretion under rute 19 for entarging the time "appointed" for service of the notice, is appticabte to ru[e 6. AccordingLy, in respectfuL disagreement with the Learned triaL Judge and Justice of Appeat, we found that the triaI court had jurisdiction to hear and determine the AppeILant's appLication for extension of time.

There is no statutory provision attowing any court to entarge the time prescribed by section 5 of the Limitation Act except for the law providing for exemptions from the law and any faiture to file an action within time on account of disabitity. The period of the disabil.ity may be exempted in computation of the period prescribed by the Limitation Act within which to 25

fiLe the action. 30

> For the above reasons, I am competted by the Law to first deal. with ground 2 of the appeal which is atso intertwined with ground 3 of the appeal as the issue of whether a person is a bona fide occupant depends on how Long he or she occupied the Land before the promulgation of the 1995 Constitution of the Repubtic of Uganda under the Land Act. Further relevant is ground 4

⁵ on a question of fact as to whether the appettants were evicted in 1992 or 200t+.

ln Birkett v James n97712 Atl. E. R. 80] per Lord Edmund - Davis at pp 815 - 816 the purpose of statutes of Limitation are set out as:

Statutory provisions imposing periods of [imitation within which actions must be instituted seek to serve severaL aims. ln the first place, they protect defendants from being vexed by state ctaims retating to long-past incidents about whrch their records may no longer be in existence and as to which their witnesses, even if they are stit[ avaiLabte, may wetl have no accurate recoLtection. Secondly, the law of [imitation is designed to encourage pLaintiffs to institute proceedings as soon as it is reasonabty possible for them to do so; though in this context one shouLd recall the pertinent observation of Selters LJin Cartledge v E Jopling & Sons Ltd ([1961] 2 Atl. ER 482 at 485, [1962] 1 0B 189 at 195): 10 15

The courts have discouraged detay in seeking redress and so has legislation but on the other hand there has been no encouragement given toprecipitate litigation. lt is undesirable for workmen to be encouraged to keep their eyes on the courts.'

Thirdty, the law is intended to ensure that a person may with confidence feel that after a given time he may regard as finatty ctosed an incident which might have led to a ctaim against him, and it was for this reason that Lord Kenyon described statutes of [imitation as 'statutes of repose' (per Dattas CJ in Tolson v Kaye ((1822) 3 Brod & Bing 217 at223)).

The legislature must be taken to have sought-and achieved-a proper balance between a// these competing interests in enacting that, if actions areto be heard at att, they must be instituted within the various specified periods from the accruaI of the cause of action. lnstead of imposing a uniform period of [imitation, the [egislature in its wisdom has considered that some actions need to be instituted within periods considerably shorter than others, and sometimes changes its mind as to the proper length of those periods.

35 What is critical in the appeal before us is to determine from the pteadings what the cause of action was. CLearty the grievance of the ptaintiffs in the ptaint was against eviction from their [and and for recovery of [and and in the atternative for faiture to compensate them for deprivation of [and. I have

⁵ carefutty considered paragraph 4 of the ptarntiffs amended ptaint which avers that:

> the plaintiffs claim against the defendants jointLy and severaLly is for dectaratrons of right, speciaL, generaL, exemplary damages and canceL[ation of the certificate of titIe in the names of the 66'h defendant and the facts constituting the cause of action are as hereunder:

Further the ptaintiffs aver in paragraph 19 as far as remedies are concerned that they seek for judgment against the defendants for:

- (a) A dectaration that the suit [and betongs to the ptaintiffs and the 523 persons they represent. - (b) ^AdecLaration that the Government is not entitled to deprive the pLaintiffs and the 523 persons they represent of the property before they are adequatety compensated for it. - (c) ^AdecLaration that the certificate of titte in respect of the suit Land regrstered in the names of the 66th defendant was procured by fraud. - (d) An order directing cancetlation of the said itt gotten certificate of titte by the 66th defendant. - (e) An order that the defendants pay the ptaintiffs and the persons they represent specia[ damages of shil.l.ings 1,035,001,600/= as prayed for in paragraph ¹⁴ above. - (0 An order that the defendants pay to the plaintiffs and the persons they represent generaI damages as prayed for above in paragraph 15. - (S) An order that the defendants pay to the plaintiffs and the persons they represent exemplary damages as prayed for in paragraph 16 above. - (h) An order that the defendants pay interest on (e), (f) and (g) at the rate of 25% per annum from the date of judgment titt futt payment. - (i) An order that the defendants pay the pLaintiffs and the persons they represent the costs of the suit. - (j) An order that the defendants pay the ptaintiffs and the persons they represent interest on (i) at the rate of 25% per annum from the date of the taxation of the bi[[ of costs tiL[ fuL[ payment.

Further to the above averments, it is pertinent to set out some of the important averments of the ptaintiffs

## ⁵ 7, 8, 9 and 10 as well as 1'l of the pLaint as fottows:

- 7. ln 1992 prison warders of Rwimi Government Prison acting in the due course of their emptoyment and in the service of the Government of Uganda attempted to drive the ptaintiffs and the 523 peopte and their famities away from the said land on the mistaken betief that the said Land beLonged to the Prisons Department. - 8. The pLaintiffs and the other 523 peopte and their famiLies resisted.

9. Again on 20th January 2004 Prison Warders from the said Rwimi Prison and from the RegionaL Prison Headquarters and poticemen from Kabatore PoLice Station acting in the course of their emptoyment as servants, agents or employees of the Government of Uganda invaded the homes of the pLaintiffs and the other 523 peop[e aforementioned, set abtaze the homes and vandatised the properties of the said persons, arrested some of them and later reLeased them without any charge and they were evicted from the said lands.

- 10. The pLaintiffs and the rest of the 523 persons whose benefit this suit is brought have since January 20,200L being hounded from their said respective pieces of land and are now Leaving miserabte lives as beggars together with members of their famities at Burambira, Rugendabara, Kasese and others have scattered and gone to other places in Uganda in search of food and work to earn a [iving and they are living in very deptorab[e conditions. - 11. Numerous attempts to regain possession of their respective pieces of land have been frustrated by the prison authorities who have in the course of their employment as servants, agents or employees of Government deployed armed prison warders with orders to chase away, shoot and kiLt, the ptaintiffs and the other 523 persons aforesaid and members of their families if they try to regain possession of their [and or if they try to harvest their crops or to cuttivate or maintain their pLantations." 25 30

The p[aintiffs ctearty asserted that there was an attempt to evict them from their Land tn 1992 which they resisted. Subsequentty, there was another attempt in the year 200L whereupon they were evicted as eviction succeeded. The cl.aim for damages stemmed from the atteged eviction in 2004. 0n the question of fact, the learned triat Judge of the High Court hetd

as fottows:

"From the evidence as adduced I note that, land was added to Rwimi under ban of the Nationat Service by Uganda Land Commission by the Ministry of Mineral and Water Resources in 9/2/1973. Another was scheduted for'lAth March 1973 as per ANNEXTURE "B" to the witness statement of AtLan 0keL[o

⁵ Attempts were made to resettle the squatters as per the letter dated 9112/1981 addressed to the Commissioner of Prisons, Western Region from the acting district Commissioner, Kabarole as testified by DW B and DW 12.

> There is a letter dated 2B'h/3/1992 on the eviction of encroachers from Mpokya to be kept from entering Rwimi Prison farm land written by Tom R. Butime, Minister of State for lnternal Affairs.

> Reference was made in a correspondence to the effect that peopl.e were evicted from Nsonja and Kisanga and this was done peacefuL[y, save for Nsonja that was under the forest and game reserves. The letter was addressed to the District Executive Secretary by RC lll Chairperson Rwimi sub County, Chief Rwimi.

I find from the evidence submitted that the suit [and has atways had encroachers. An attempt was made to evict the same in 1987 and there was another.... in 1992. ... The evictees instituted CiviI suits to have their ctaims settted and some were compensated and other are sti[[ being compensated and this was stated by DW 3, DW B, DW 9, DW 11, DW 12 and DW 1. 15

I aLso find that the Government started the process of tegaLLy owning the suit [and in the 1970s when instructions to survey were issued as per the testimonies of DW 2. DW 4, and DW 7. There are atso various correspondences as tendered in exhibits that prove that the land betongs to the Government and not to the ptaintiffs. The ptaintiffs were therefore evicted off Land that betonged to the Government at atI materiaI times." 20 1C

The learned triat Judge then went on to try the issue of whether the suit commenced by the pl.aintiffs/appettants to this appeal was time barred. Retying on the evidence adduced by the defence witnesses which incl.uded that of DW 1, DW 3, DW 6, DW I, DW 9, DW 10, DW 11, DW 13 and DW 14, the triat Judge conctuded that the pl.aintiffs were evicted in 1992 and that is when they teft the suit property. The learned triat Judge noted that the eviction on which the ptaintiffs base their ctaim is that of 2004. From the evidence the ptaintiffs forcefully occupied the Land from which they were evicted within a weeks' time because they were considered trespassers. ln other words, the learned triat Judge found that the respondents were in possession of the suit property by the time the appettants became trespassers in the year 2004 and they were evicted when they attempted to re-enter the tand.

⁵ The learned Justices of the Court of Appeat atso considered the evidence on record. Particutarly ground '11 in the Court of AppeaL was to the effect that:

## 'the leamed triat Judge erred in law and in fact when he hetd that the ptaintifPs suit was time barred whereas not.'

Mugenyi, JA considered the assertion of the appettants who were the pl.aintiffs, that the cause of action accrued in the year 2004 when they were evicted from their respective pieces of [and. The learned Justice of the Court of Appeat stated as fottows: 10

"the amended plaint sought a declaration that the suit Land be[ongs to the appettants and the 523 persons they represent, the suit before the trial court was indeed an action for the recovery of [and within the precincts of section 5 of the Limitation Act. lt shoutd have been instituted within 12 years from the accruaI of the cause of action. The question as to whether or not the appeltants were indeed evicted in 1992 so as to render their suit is time barred is a question of fact that must primarily be estabtished to the required standard of proof by cogent evidence." 15 20

The learned Justice of the appeaI who wrote the [ead judgment with the concurrence of the other Justices of appeat thoroughty evatuated the evidence on record by reviewing the testimonies of the witnesses of the p[aintiff as weL[ as the testimonies of the witnesses of the defendants. The learned Justice of the Court of Appeat conctuded as fo[l'ows:

3s

"as can be deduced from the foregoing discourse, the appetlant's evidence was neither cogent nor credibte. lt was materiaLty rebutted by the defence evidence thus raising doubts as to the credibiLity of the appettant's cLaim. lt wi[[ suffice to observe here that even if it were true that the first appellant had indeed been evicted from one part of Kisanga as he claimed, having been compensated for that eviction his retocation to another part of the same vittage onty to seek fresh compensation for his eviction there from smirks of bad faith. SimiLarty, DW 3 also testified that at the time of the eviction, the Appeltant "had atready sotd the land and moved to another ptace". His evidence was not impeached in cross examination. ln fact, the assertion of the third appettant having left was not ⁵ addressed at att. Why then woutd such a person ctaim compensation for an eviction exercise that happened after she had teft the suit [and?

> The unretiabrtity of the appeL[ant's evidence woutd [end credence to the conclusion I do draw that the eviction of 311 persons from Kisanga vi[[age and the present suit Land being in the same viILage are no coincidence, rather, exhibit D ¹ A and the supportive testimonies of DW 1, DW 3, DW 6 and DW 14 att point to the 1992 evictions from Kisanga viLlage having been in retation to encroachers on Rwimi Prisons land and the persons so evicted are the present appetlants. lndeed, whereas Mitton Begumisa and Sadress Turyashemererwa both co-signatories exhibit D 1A, are the second and third appeltants in this case, Gadson Kamuhangire and John Nkubito other signatories therefore, are listed as Nos ]14 and the 290 respectively on the list of appellants in the Originat Ptaint....".

The learned trial. Judge and the first appetLate court were satisfred that the appel.tants were evicted from the surt [and in 1992. Both courts reached concurrent f indings of fact after thoroughty considering the testimonies of the witnesses as weL[ as the exhibits admitted on record.

As far as second appeals to the Supreme Court are concerned, the Supreme Court has previously considered whether it coutd interfere with concurrent findings of fact of the trial court and the first appeat court in Kifamunte Henry vs Uganda; (Criminat Appeal. No. 10 of 1997) [1998] UGSC 20, (15 May 1998). The Supreme Court hel.d that it is the Court of Appeal., as a first appetl.ate Court which has a duty to evatuate the evidence under the then rute 29 (1) of the Court of Appeat Rutes (now rute 30 (1) of the revised Judicature (Court of Appeal. Rutes) Directions. The Court of Appeal. may atso take additionaI evidence under the said rules. Having establ.ished that the Court of Appeat re-evatuated the evidence and subjected it to exhaustive scrutiny, the Supreme Courl rnter ala hel.d that: 25 30

> 0nce it has been estabLished that there was some competent evidence to support a finding of fact, it is not open, on second appeaI to go into the sufficiency of that evidence or the reasonabLeness of the finding. Even if a Court of first instance has wrongly directed itsetf on a point and the court of first appettate Court has wrongLy hetd that the triaI Court correctLy directed itse[f, yet, if the Court of first appeal has correctty directed itself on the point, the second appeLlate Court cannot take a different view R. Mohamed AII Hasham vs. R (194'l) 8 E. A. C. A.93.

On second appeal the Court of Appeal is precluded from questioning the findings $\mathsf{S}$ of fact of the trial Court, provided that there was evidence to support those findings, though it may think it possible, or even probable, 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. vs. Hassan bin Said (1942) 9 E. A. C. A. 62. 10

These principles have also been applied in civil appeals in the Supreme Court and one illustration is in **Uganda Breweries Limited Vs Uganda** Railways Corporation; Supreme Court Civil Appeal No 6 of 2001, where Oder JSC held that:

- In the instant case, I have no doubt that the Court of Appeal, as the first appellate court 15 lived up to its task as set out in rule 29(1) of the Court of Appeal Rules and as explained in cases such as - *Selle and Another Vs Associated Motor Board Co. Ltd.* (supra). *Pandya vs Republic* (supra); *Charles B. L. Bitwire vs Uganda* (supra) and *Kifamunte* Henry vs Uganda (supra); Cognlan vs Cumberland (1898) L. Ch.704. (CA); Watt Thomas vs Thomas (1947) AC. 484 (H. L.); Abdul Hamid Saif vs Alimohamed Slidem 20 (1955) 22, EACA 270; Trevor Price & Anor vs Raymond Kelsall (1957) EA 752 and Peters vs Sunday Post Ltd. (1958) EA 424. There would therefore be no basis for this Court to interfere with the Court of Appeal's finding of fact and law. - In Nalumansi v Kasande & 2 Ors (Civil Appeal No. 10 of 2015) [2017] UGSC 21 25 (10 July 2017) Prof Lillian Tibatemwa – Ekirikubinza, JSC further reiterated the principles applied by the Supreme Court in considering whether to interfere with findings of fact where the trial court and the first appellate court have reached concurrent findings of fact and stated that: - It is a trite principle of law that where factual findings have been made by the trial 30 court and affirmed by the first appellate court, the second appellate court, like this one, must be careful not to interfere with those findings unless the court is satisfied that the findings were devoid of support in evidence on record or that they are so glaringly erroneous that the findings by the trial court were perverse. 35

I have examined the record and both the trial Court and the first appeal court thoroughly subjected the evidence to fresh and exhaustive scrutiny ⁵ and their conctusion that the eviction of the appettants was make in 1992is supported by the various witnesses referred to above.

Secondty the question of whether the appettants were occupants whose land was trespassed on by the respondents coutd not be answered in any other way other than that of the triat Judge that upon re-entering the Land in the year 2004, they became trespassers and were evicted. This deal.t with both the issue of trespass and eviction.

Finatty, I have considered the issue of the appe[lant's status on the land before eviction. The appettants on a question of fact were evicted before the 1995 Constitution of the Repubtic of Uganda came into force and articte 237 (8) of the Constitution could not confer on them any status of bona fide occupants as the operating words were that:

(8) Upon the coming into force of this Constitution and untiI Parliament enacts an appropriate law under ctause (9) of this article, the lawfuI or bonafide occupants of maito tand, freehold or leasehold land shatl enjoy security of occupancy on the Iand.

The occupant must have been on the [and at the time of promulgation of the Constitutron as an occupant but not as an evicted person. The appeLLants were evicted in 1992 and the Constitution of the Republic of Uganda came into force on the 8th of October, 1995. A bona fide occupant envisaged under articte 237 (8) of the Constitution shoutd be an occupant of maito [and, freehol.d or leasehol'd tand. A bona fide occupant does not refer to, on the face of it, an occupant of pubLic [and under the Publ.ic Lands Act. Secondty, the retationship between the bona fide occupant and the registered land owner was to be determined by Partiament within two years of enactment of the Constitution. This is ctear under articte 237 (9) of the Constitution which provides that: 25 30

> (9) Within two years after the first sitting of Partiament eLected under this Constitution, Partiament shaLL enact a Law-

> (a) regutating the retationship between the tawful. or bonafide occupants of tand referred to in ctause (B) of this article and the registered owners of that [and;

⁵ (b) providing for the acquisition of registrable interest in the Land by the occupant

No registered owner was referred to as being the registered owner with land where the occupants were occupying at the time the Constitution of the Repubtic of Uganda was promulgated on the 8th of October 1995. lt is onty atteged that some of the respondents; i.e. the 32nd and 66th respondents, subsequentty got registered.

The law governing the relationship between a bona fide occupant of registered land and the registered owner of the land was enacted under the Land Act 1998. Section 29 (2) ot the Land Act cap 227 provides that.

(2) "Bona fide occupant" means a person who before the coming into force of the Constitution-

(a) had occupied and utitised or devetoped any land unchatlenged by the registered owner or agent of the registered owner for twetve years or more; or

(b) had been settted on tand by the Government or an agent of the Government, which may inctude a locaI authority.

(3) ln the case of subsection (2)(b) z0

> (a) the Government shatl compensate the registered owner whose land has been occupied by persons resettted by the Government or an agent of the Government under the resettLement scheme;

(b) persons resettled on registered Land may be enabted to acquire registrabte interest in the land on which they are sett[ed; and

(c) the Government shatl pay compensation to the registered owner within five years after the coming into force of this Act.

(4) For the avoidance of doubt, a person on land on the basis of a licence from the registered owner shatl not be taken to be a lawful or bona fide occupant under this section.

(5) Any person who has purchased or otherwise acquired the interest of the person quatified to be a bona fide occupant under this section shatl be taken to be a bona fide occupant for the purposes of this Act.

⁵ Ctearty a litera[ reading of the above section leads to the inevitabLe conctusion that there has to be a registered owner before the concept of bona fide occupant under articte 237 (8) of the Constitution and section 29 (2) of the Land Act Cap 227 can be discussed. The intention of [egistature was to work out the retationship between the registered owner of land and the bona fide occupant declared to enjoy security of occupancy by articLe 237 (8) of the Constitution.

ln any case an untawful eviction gives rise to a cause of action for recovery of land within 12 years from the time the cause of action arose. Where it is a tort of trespass ownership must be estabtished. The conctusion of the [ower courts that the appettants where not customary tenants and were settted on land by the government resotves this ditemma. ln fact, 29 (3) of the Land Act onty envisages a situation where an occupant is settted by the Government on someone's registered [and. ln terms of section 29 (2) (b) which the appettants refer to, the government indeed settted them on pubtic Land but they were evicted in 1992 before the promutgation of the ¹⁹⁹⁵ constitution and they fetl outside the ambit of articte 237 (8) of the Constitution in terms of a guarantee of security of occupancy under that articte. Further the artic[e refers to occupants of maito [and, freehotd [and and leasehotd under the category of which the appettants did not fatt. 20 15

Further I note that the cause of action under which the appeltants proceeded is averred to have arisen in the second eviction of 2004 when the appettants temporarity occupied the suit property but were promptty evicted. From the facts they reoccupied the property about 12 years after they had been evicted in 1992 The lower courts hetd that they were trespassers. Secondty an action for recovery of compensation was atteged to arise from the 2004 event rather than from the 1992 event which occurred under the 1967 Constitution of the Republ,ic of Uganda. An action for compensation for deprivation of land coutd have proceeded from the 1992 eviction but the appetlants admitted that peopte were compensated. They 25 30

did not particularise those persons who were not compensated and their 35

action was founded on another cause of action where they were $\mathsf{S}$ trespassers in 2004.

In the circumstances the learned trial Judge and the learned Justice of the Court of Appeal found that the land belonged to the Government at the time of the incident of 2004.

- In the premises, I find that grounds 2, 3 and 4 of the appeal have no merit. I 10 would disallow this grounds and affirm the finding of fact that the appellants were evicted in 1992 and their action in the High Court was barred under section 5 of the Limitation Act, cap 80, the action having been commenced after 12 years from the time the cause of action arose. - On the outcome of grounds 2, 3, and 4 of the Appeal, I would dismiss the 15 appeal with costs.

Dated at Kampala the $16$ day of April 2024 20 Christopher Madrama Izama Justice of the Supreme Court Delivered by the Rya<br>(6th April 2024

## THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPATA CIVIL APPEAL NO. 14 OF 2023

## 1. ISMA HAKIRI

I

## 2. MILTON BEGUMISA

3. SADRESS TURYASH EM ERERWA: : : : : : : : : : : : : : : : : : : : : : :APPELLANTS

## VERSUS

## ATTORNEY GENERAL AND 31 OTHERS:::::: RESPONDENTS

(Appeal from the decision of the Court of Appeal (Kiryabwire and Mugenyi, ilA and Kasule, Ag. JA) in Civil Appeal No. 110 of2017 dated 16h December, 2021)

## CORAM: HON. LADY JUSTICE PROF. LITLIAN TIBATEMWA - EKIRIKUBINZA, JSC HON. MR. JUSTICE MIKE CHIBITA, JSC HON. LADY JUSTICE ETIZABETH MUSOKE, JSC HON. MR. JUSTICE STEPHEN MUSOTA, JSC HON. MR. JUSTICE CHRISTOPHER MADRAMA IZAM& JSC

## JUDGMENT OF ELIZABETH MUSOKE, JSC

I have had the advantage of reading the judgment of my learned brother Madrama, JSC. For the reasons he has given therein I agree with him that this appeal should be dismissed with costs.

| Dated at Kampala this | Yt-.' | day of r\$pe.r7 2024. | | |-----------------------|-------|------------------------|--| | | | | | | | | | |

Elizabeth Musoke

Justice of the Supreme Couft

# THE REPUBLIC OF UGANDA

## IN THE SUPREME COURT OF UGANDA

#### AT KAMPALA

(Coram: Tibatemwa-Ekirikubinza; Chibita; Musoke; Musota; Madrama; $\prod$ . S. C.)

#### CIVIL APPEAL NO: 14 OF 2023

#### **BETWEEN**

#### **ISMA HAKIRI**

MILTON BEGUMISA ::::::::::::::::::::::::::::::::::::

SADRESS TURYASHEMERERWA

#### AND

ATTORNEY GENERAL & 31 ORS ::::::::::::::::::::: RESPONDENTS

[An appeal from the decision of the Court of Appeal at Kampala (Kiryabwire and Mugenyi JJA and Kasule, Ag. JJA) in Civil Appeal No. 110 of 2017 dated 16^th December, 2021]

#### **JUDGMENT OF CHIBITA, JSC.**

I have had the advantage of reading in draft the judgment prepared by my learned brother, Justice Madrama, JSC. I agree with him that this appeal should be dismissed. I also agree with the orders he has proposed.

Dated at Kampala this ....................................

Jke Diff<br>Justice Mike J. Chibita JUSTICE OF THE SUPREME COURT

## ⁵ THE REPUBLIC OF UGANDA

## IN THE SUPREME COURT OF UGANDA AT KAMPALA

ICORAM: TIBATEMWA. EKIRIKURINZA; CHIBITA; MUSOKE; MUSOTA; MADRAMA, JJSC. I

## CIVIL APPEAL NO. 14 OF 2023

#### BETWEEN

#### ISMA HAKIRI 1

#### MILTON BEGUMA 2

#### SADRESS TURYASHEMERERWA :: :: ::: : : : : APPELLANTS 3

#### AND

#### THE ATTORNEY GENERAL AND 31 OTHERS::::::::: RESPONDENTS

[Appeal arising from the ludgment of the Court of Appeal of Uganda in Ciuil Appeal No.11O of 2O17 before (Kasule, Kiryabutire and Mugengi, JJA) dated 1grt, December, 2O21 at Kampala.l

#### JUDGMENT OF TIBATEMWA-EKIRIKUBINZA. JSC.

I have had the benefit of reading in dra-ft the judgment of my learned brother, Hon. Justice Christopher Madrama Izama, JSC. 25

I concur with his analysis and conclusions. I also concur with the orders he has proposed.

As the rest of the members on the Coram agree, this appeal fails and it is hereby dismissed with costs to the Respondents.

Yr1 Dated at Kampala this ....../.a day of \$^f. 2024.

tI-it" PROF. LILLIAN TIBATEMWA-EKIRIKUBINZA JUSTICE OF THE SUPREME COURT.

#### THE RTPUBLIC OF UGANDA

## IN THT SUPREME COURT OF UGANDA AT KAMPALA

### CIVIL APPEAL NO. 14 OF 2023

## [CORAM: EKIRIKUBINZA TIBATEMIVA; CHIBITA, MUSOKE, MUSOTA & MADRAMA; JJSCI

### 1. ISMA HAKIRI

l

#### 2. MILTON BEGUMISA

#### 3. SADRESS TURYASHEMERERWA : : : : : : : : : : : : : : : : : : APPELLANTS

#### VERSUS

### THE ATTORNEY GENERAL AND 31 OTHERS ::::: RESPONDENT

(Aising from Ciuil Appeal No. 110 of 2017 and Ciuil Suit No. 0043 of 2005)

#### JUDGMENT OF STEPHEN MUSOTA, JSC

I have had the benefit of reading in dra-ft the judgment by my brother Hon. Justice Christopher Madrama, JSC.

I agree with his analysis, conclusions and the orders he has proposed.

Dated this f 6YQ. ay of 4)/ ²⁰²⁴

-d'";1Ml)

Stephen Musota JUSTICE OF'THE SUPREME COURT