[2024] UGSC 41

# THE REPUBLIC OF UGANDA

# IN THE SUPREME COURT OF UGANDA AT KAMPALA

Coram: Mwondha; Tibatemwa-Ekirikubinza; Tuhaise; Chibita; Musoke, JJSC

# CIVIL APPEAL NO. 10 OF 2022

DR. DAVID KAGGWA..................................

#### VERSUS

AUDREY MUSIIMENTA....................................

(Appeal against the Judgment and Decree of the Court of Appeal in Civil Appeal No. 195 of 2017 before Hon. Justices Cheborion, Musota and Madrama, JJA., delivered on the $1^{st}$ day of March, 2022.)

# JUDGMENT OF PERCY NIGHT TUHAISE, JSC

This is a second appeal arising from the judgment of the Court of Appeal which upheld the decision of the High Court in Civil Suit No. 78 of 2011 and substantially dismissed Civil Appeal No. 195 of 2017.

### **Background of the appeal**

The Respondent, Audrey Musiimenta, was the registered proprietor of land comprised in Kyadondo Block 221, Plot 772, land at Nalyako (the suit land). In 2002, she borrowed a sum of Uganda Shillings (UGX) $4,000,000/$ = (four million) from Emily Migyisha to facilitate her travel to

$\mathbf{1}$

the United States of America (USA). She executed a transfer form and hancled over the duplicate certificate of title to the land to Emily Migyisha. Upon her return to Uganda, the Respondent found ongoing construction on the suit land. She discovered that the land title had been transferred into the names of Emily Migyisha and John Junior Sekindi and later sold to Dr. David Kaggwa, the Appellant. The Appellant had taken over possession of the land and his agents were constructing on it'

,

The Respondent filed Civil suit No. 78 of 20'.l1against Emily Migyisha (1't Defendant), John sekindi (2n.r Defendant), John Junior sekindi (3^t Defendant), Dr. David Kaggwa 14tt' Defendant/Appellant) and the Commissioner Land Registration (5ttr Defendant) for recovery of the suit land, damages for trespass to land, damages for fraud, a permanent injunction, cancellation of title and costs of the suit.

The Respondent's evidence was that she fully paid back the 1't Defendant a sum of united states Dollars (USD) 2,735; that she had executed the transfer forms as security in the event that she defaulted in her obligations towards the 1il Defendanu and that, uPon Payment, the transfer forms were supposed to be destroyed and the certificate of title handed back to her through her sister Mrs. Grace Mubangizi'

The 1,t Defendant's evidence was that the Respondent sold the land to her at UGX 6,000,000f = (six million); that she transferred the land into her names and those of ]ohn Junior Sekindi, her son; that she and the 2"'i Defendant sold the land to the 4th Defendant, Dr. David Kaggwa; and that transaction was not a loan. she never received any money as alleged from the Respondent, since the

The Appellant,s evidence was that he purchased the land from the 1't and 2"d Defendants who were the registered proprietors'

The plaint in paragraph 2 (b) indicated that fohn Junior sekindi (3"t Defendant) was a minor. However, he was not served with summons as provided under order 32 rule 3 (4) of the Civil Procedure Rules, and his minority was not proved. Court was therefore not in position to appoint ^aguardian nd litem for him, and the suit was dismissed against him.

The learned trial fudge found that the transaction between the Respondent (Plaintiff) and 1,t Defendant was a money lending agreement and not a sale; that the registration of the Emily Migyisha and john Junior sekindi on the title was procured by fraud and did not confer good title to the suit property upon them; that the 4th Defendant is not a bona fde purchaser for value without notice of fraud; and that he did not acquire any interest in the suit land from the 1.'t and 2"d Defendants that can be protected by law. Court ordered as follows:-

- 1. The 4th Defendant is declared to be in [esPass on the suit property comprised in Kyadondo Block 221 Plot772' - 2. The 4th Defendant shall pay general damages to the Plaintiff in the sum of U. Shs. 30,000,000/=.

- 3. The 4th Defendant shall within 14 days of this Judgment, vacate the suit property failing which, he will be liable for eviction by the plaintiff. - 4. A permanent iniunction doth issue against the 1't, fnd 6nd z[tn Defendants collectively restraining them from trespassing onto the suit property. This particular order to apply to the 4th Defendant at the expiration of the 14 daYs. - 5. An order clirecting the 5th Defendant to cancel the names of Emily Migyisha and John Junior sekindi from the register and reinstate that of the Plaintiff. - 6. An order of general damages against the 1st and 2nd Defendants in the sum of U. Shs. 100,000,000/=. - 7. Costs of the suit to be met by the "Isttzna and 4th Defendants.

The Appellant was dissatisfied with the decision of the learned trial Judge. He filed an appeal to the Court of Appeal against the Respondent only'

of the six grounds of appeal lodged at the Court of Appeal, the Appellant only successfully challenged the trial Court's award of general damages of UGX. 30,000,000 against the Appellant. The decision of the learned trial Judge was essentially upheld, and the appeal was substantially dismissed with the Appellant to Pay three quarters of the costs.

The Appellant then lodged this appeal to the Supreme Court, on the following grounds:-

1. The first Appellate Court erred in law and fact when their Lordships failed in their role as a first Appellate Court to properly reevaluate the evidence on record and came to a wrong conclusion by dismissing the Appeal.

$\cdot\quad\cdot$

2. The first Appellate Court erred in law when their Lordships impeached the Appellant's interest in the suit land and dismissed the Appeal on account of;

a) The finding that the transaction between the $1^st$ Defendant and the Respondent was a money lending transaction.

b) The $1^{st}$ and $2^{nd}$ Defendants to have fraudulently transferred the suit land into their name.

c) The suit land was transferred to the $1^{st}$ and $2^{nd}$ Defendant without the consent of the Respondent.

d) The $2^{nd}$ Defendant's interchanging of his names.

3. The 1^st Appellate Court erred in law when their Lordships upheld the finding of the High Court that the Appellant was a trespasser on the suit land.

4. The 1^st Appellate Court erred in law when their Lordships upheld the finding of the High Court that the Appellant had no interest protected by law in the suit land.

5. The 1^st Appellate Court erred in law when their Lordships upheld the orders of the High Court, thereby unjustly enriching the Respondent.

6. The 7,t Appellate Court etred in law when it failed to caution itself on the blooil/family relationship between the Plaintiff, and the 1st, 2ad and 3d Delenilants before upholiting the ilecision of the trial coutt.

# Representation

At the hearing of this appeal, Mr. Simon Kiiza represented the Appellant while Mr. Paul Rutisya appeared for the Respondent'

The parties filed written submissions'

### Submissions

Ongroundl,learnedCounselfortheAppellantsubmittedthatitwas erroneous for the trial Judge to declare the Appellant (4tt'Defendant in the plaint) a tresPasser when no such remedy was prayed against him' He argued that the Court of Appeal denied the Respondent general damages simply because she did not pray for them; and that' since there was no declaration of trespass in the plaint sought against the Appellant' it was erroneous for the Court of Appeal to uphold the finding that the Appellant was a tresPasser.

Secondly, Counsel submittecl that the Respondent could not have sustained a cause of action in trespass against the Appellant' simply because the evidence adduced by the Respondent at the trial was inconsistent with the principles which govern the tort of tresPass' counsel submitted that, had the Court of Appeal endeavored to fulfill its duty as afirstappellatecourt,itwouldhavefoundthattheRespondentcouldnot

sustain a cause of action in trespass since she had lost both physical and legal possession of the suit land, that she was not the registered proprietor, and that the Appellant's entry on the land was not unlawful. Counsel relied on the case of |ustine E. M. N. Lutaya vs stirling Civil Construction Limited, Supreme Cowt Civil Appeal No. 11 of 2002 to support his arguments.

In reply, learned Counsel for the Respondent cited the case of Father Narsensio Begumisa and 3 others Vs Eric Tibebaga Supreme Court Civil Appeal]l7 of ?]C/|/};VC/0,aIKALR 236, in which the obligations of the first appellate court were explained. He submitted that the evidence of the trial court was subjected to fresh and exhaustive scrutiny by the Court of Appeal.

Counsel submitted that the Respondent, in her pleadings, particularized the instances of trespass and specifically sought relief against the Appellant based on the pleadings; that the trial court and the Court of Appeal were therefore well within their mandate in making orders relating to trespass against him; and that their findings should remain intact.

with regard to trespass, Counsel submitted that the finding of the court of Appeal was to the effect that the transfer of the suit ProPerty was done without her consent; that the suit land was for all intents and purposes the property of the Respondent, but she was only fraudulently denied ownership of the same by the nefarious and cunning actions of the 1't and - 2na Defendants; that the registration of Emily Migyisha and John Junior Sekindi on the title was without consent of the Respondent, who was the registered proprietor on the suit land, and thus, they could not have passecl on better title than they had obtainecl; and that therefore, the entry of the Appellant on to the suit land was unlawful'

onground2(a),theAppellant,sCounselsubmittedthatinevaluatingthe evidence, the trial court found that the transaction between the Plaintiff and the 1't Defendant was a money lending transaction' and then went ahead and invalidated the Appellant's acquisition of the suit land on this account. Counsel contended that this was an error of la.w which was upheld by the Court of Appeal. He argued that whatever transaction the Plaintiff and the 1,t Defendant entered into could not affect the interest of the Appellant who was a skanger to the transaction'

secondly, Counsel argued that the finding on the nature of the transaction between the Plaintiff/Respondent and the 1't Defendant was in breach of ^acelebrated and long upheld doctrine of prittity of contract. He contended that the issue as to the nature of the transaction between the Plaintiff and the l,tDefenclant coultl only be resolved between the said two parties, and its consequences could not legally be extended to the Appellant's acquired equitable interest in the suit land' According to Counsel' the Appellant could only suffer any consequence of the breach of the purported money lentling transaction only if he was a Party to it' but he was not. He relied on the case decision in Halal shipping company Ltd

this submission. vs securities Bremer Allegemeine & Another [1955] 1 EA 694 to supPort

Counsel further submitted that, as Per section 181 of the Evidence Act, the Respondent, and not the 1't Defendant, bore the burden to prove that the transaction was indeed a loan, which she miserably failed to discharge; that even her claim to have repaid the sum of USD 2,735 through Peter Katende Mukiibi (the 1't Defendant's son) was not proved'

In reply, Counsel for the Respondent submitted that the transaction was ^amoney lending one and not a sale of land, and that the Appellant rightly pointed out in his submissions that he was a stranger to that particular transaction and thus woulcl be conskained to delve into the details of the same. He pointed out in his submissions that the 1't and 2nd Defendants who were privy to the transaction tlid not appeal the decision of the trial court that found the transaction to be one of money lending'

On ground 2 (b), (c) & (d), the Appellant,s Counsel submitted that the Appellanf s decision to purchase the suit land was based on the fact that the 1,t and 2n.t Defendants were the registered proprietors of the suit land at the time, within the meaning of section 59 of the Registration of Titles Act which gives a registered proprietor of land absolute ov.'nership of the lancl; that, therefore, it is not fraud to take advantage of their legal rights when doing the purchase. He cited the case decision in Midland Bank Trust Ltd vs Green (No.l) (1981) 1 AC 5L3 where it was held that it is not fraud to rely on legal rights conferred by Act of Parliament. According to Counsel, it was therefore an error on the part of the lower courts to hold thatthel.tand2n.lDefendants,fraudulentacquisitionofthesuitland vitiatedtheAppellant,sacquiredequitableinterestinthesuitlandsince itisalongtime-recognizeclprinciplethatfraudmustbeattributedtothe transferee.

Counsel submitted that the instrument of transfer signed by the RespondentwasanexPressauthorization/consenttotransferthesuit land, that the purported default on the part of the 1't Defendant notwithstanding, the Responrlent, in signing the transfer' was exercising her powers vested in her under section 92 of the Registration of the Titles Act. Counsel contended that it is the Respondent who handed over the duplicatecertificateoftitletothel'tDefendant'thatitistheRespondent whosignedthetransferform,whichfacilitatedthetransferofthesuitland into the names of the l't and 2na Defendants' who' by virtue of being registered proprietors, sold the suit land to the Appellant' According to Counsel, there was no evicience to show that the Appellan: was aware of the Responclent's intention to sign a transfer and handing over the duplicate certificate of title to the 1't Defendant as security for a loan'

Counsel further submitted that, regarding the 2"d Defendant's interchanging names, naturally it is a mother who knows the identity and paternity of her children; that there was no justification or reason for the Appellant to doubt the 2n'r Defendant's identity given by his own biological mother, as testifietl in court by the 1't DefendanU and that it is only the 1,t and 2.d Defendants who knew the truth of their identity and whattheywereuPtoindealingwiththesuitlandinthemannertheydid. In reply, Counsel for the Respondent submitted that it is a conceded fact that the land was fraudulently transferred into the names of the 'ls and 2nd Defendants; that the Appellant cannot now seek to benefit from their mistleed as he was aware of the manner in which the parties came on to the title. He argued that the Appellant,s lack of curiosity as to why the purported seller was changing names at every turn is a clear indication that he was not a bonn fidc purchaser of the suit land, and the fraud could be attributed to him'

Counsel also submitted that it was never the intention of the Respondent to have the suit land transferred into the names of the lst and lnd Defentlants; that section 92 of the Registration of Titles Act has no bearing on the issue, as the purpose of signing of the transfer form was never intencled to effect the transfer of the property under a sale agreement, but as additional security; and that, regarding the 2"d Defendant's interchanging of his names, the Court of Appeal was extremely clear that the interchanging of the 2n.t Defendant,s names was executed in bad faith and with the intention to defraud the Respondent'

onground3,CounselfortheAppellantsubmittedthattheRespondent never prayed for a declaration for trespass against the Appellant' the consequence of which is that jutlgment was given based on an unpleaded matter; that a iudgment based on an unpleaded matter is a nullity as was

## .heldinSinba(K)Ltd&4othersVsUgandaBroadcastingCorporation, Supreme Court Civil Appeal3 of 201-4)'

Counsel also submitted that the issue as to whether or not the Appellant was a trespasser was never an issue as reflected in the joint scheduling memorandum; that what the parties expressly agreed upon was that the Appellant purchasecl the suit land from the 1"t and 2nd Defendants; and that this ruled out the possibility of the Appellant being a trespasser since he entered the suit land by virtue of the agreed purchase'

In reply, Counsel for the Respondent reiterated his submissions on the issue of whether or not the Appellant is a trespasser on the suit land.

On ground 4, Counsel for the Appellant submitted that the Appellant purchasecl the suit land and paicl valuable consideration to the 1st and 2nd Defendants who were at the time the registered proprietors. He argued that though the Appellant had not transferred the suit land into his name, upon purchase and Payment of consideration, he in law became an equitable owner. He argued that an enforceable contract of sale confers an equitable interest on the purchaser of the land as was held in Lysaght vs Edwards (187612 Ch.499; ancl in Walsh Vs Lonsdale (1882) 21 Ch' ⁹ where it was held that equity looks on, " ns done tolich ought to be done" . According to Counsel, it was therefore erroneous on the part of the trial courtand,subsequently,theCourtofAppealtoholdthattheAppellant clid not acquire any interest protectable at law, even when it was an agreed fact that the Appellant purchased the suit land'

-- In reply, Counsel for the Respondent relied on the case of David sejakka Nalima Vs Rebecca Musoke, Court of Appeal Civil Appeal No' 12 of 1g85 where it was held that the effect of section 181 of the Registration of Titles Act is that once a registered proprietor has purchased the ProPerty in good faith, his title cannot be impeached on account of the fraud of the previous registered proprietor. Counsel submitted that a bona fide purchaser for value without notice of fraud therefore obtains a good title even if he purchases from a proprietor who previously obtained the property by fraud.

Counsel further submitted that the registration of Emily Migyisa and John sekindi on the title was without consent of the Respondent who was the registered proprietor on the suit land, and that, thus, they cannot have passed on better title than they had obtained, that, therefore, the Appellantacquirednointerestinthesuitland. Hecontendedthatthe series of name changing should have aroused the Appellant's doubt as to the ownership; anrt that this amounted to actual notice of the fraud, that the Appellant was negligent ancl cannot claim to be a hona fde purchaser for value without notice of the fraud.

on ground 5, Counsel for the Appellant submitted that in the instant case the Respondent last knew of her land when it was empty capable of being used as security for a sum of UGX 4,000,000/= (four million)' only to return and find a three storied building on the same land; that she hurriedly filecl a suit, recoveretl the land, and immediately evicted the ' Appellant ancl all the tenants, put her own tenants' and started collecting rent; and that the Court of Appeal termed the Appellant as a victim of circumstances without remedying the victim' According to Counsel' the saidcourtoughttohaveexerciseditsciiscretiontoawardaremedy'which could cure the loss by ordering the Appellant to Pay the current market value of the suit land without developments'

Inreply,theRespondent,sCounselprayedthatthisCourtfindsthatthere was no unjust enrichment of the Respondent' but rather' that the Court of Appeal ensured that she was not deprived of her ProPerty which was fraudulentlytransferredfromher. HesubmittedthattheAppellantisa trespasser who now seeks to benefit and unjustly enrich himself from the fraudulent acts of which he was very well aware of'

On ground 5, Counsel for the Appellant submitted that' the evidence led atthetrialwasthatthePlaintiflandthelst,2ndand3'dDefendantswere related by blood, the 1,t Defentlant being the plaintiff,s mother in-law, the 2n,j defendant being the Plaintiff's husband and the 3'd Defendant being the Plaintiff's and the 2nd Defenclant's biological son, as well as PW2 Mrs' GraceMubangizi,beingthePlaintiff,sbiologicalsister;thattheparties were all relatives except the Appellant who was the only stranger' According to Counsel, these circumstances could have been brought about by the very 1't and 2nd Defendant, in connivance with the RespondentwhowasatthetimebasedintheUnitedStatesofAmerica but was able to detect what was going on regarding the suit land' Counsel ' contended that, had the Court of Appeal cautioned itself on the said blood relationship and the conduct of the parties, the only witness being ^a relative as well, it could have interpreted the events in light of ^a determining perspective, that is, the aspect of close kindred of all parties' and decided in favour of the Appellant who was the only stranger in the whole saga, which would have saved him from the great loss'

In reply, Counsel for the Respondent submitted that the Appellant's negligence shoulcl not be visited on the RespondenU and that had he carried out the necessary due diligence and taken note of the actual notice of the fraucl that was apparent on the Certificate of Title, he would not have purchased the suit land. According to Counsel, the Appellant can recover the loss he claims to have suffered from Emily Migyisha and John Junior Sekindi who sold to him the land unlawfully, in order to recover the purchase price and the value of the develoPments he carried out on the suit land, by instituting civil or criminal proceedings against them. Counsel contended that the Appellant cannot claim that he is a victim of circumstances merely because the other parties are the Respondent's relatives, since, despite them being relatives, as a buyer he should have carried out the requirecl due diligence since anyone is capable of defrauding others despite being blood related'

The Appellant prayed that this appeal be allowed and the judgment of the High Court and the Court of Appeal be set aside, and the suit be dismissed with costs. The Respondent on the other hand prayed that this appeal is dismissed with costs and the Judgement and Orders of the Court of Appeal are upheld.

## **Resolution of the Appeal**

This Court is alive to its role as a second appellate court, as set out in Rule 30 (1) of the Judicature (Supreme Court Rules) Directions SI 13-10; and as held in Kifamunte Henry Vs Uganda, Supreme Court Criminal Appeal No. 10 of 1997, that :-

"On a second appeal, a second appellate court is precluded from questioning the findings 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."

I will be guided by the foregoing principle in the resolution of this appeal.

## Grounds 1, 2, 3 and 4

Grounds 1 and 3 are somehow similar, while some of the issues arising from grounds 2 and 4 overlap, and/or relate to those in grounds 1 and 3. I will therefore consider the 4 grounds together to avoid repetition.

In ground 1, the Appellant faults the learned Justices of Appeal for failure to re-evaluate the evidence on record regarding trespass, leading to a wrong conclusion and consequent dismissal of the appeal. He similarly faults the learned Justices of Appeal, in ground 3 of the appeal, for 'upholding the finding of the High Court that the Appellant was ^a trespasser on the suit land.

In ground 2, the Appellant faults the Court of Appeal for impeaching his interest in the suit lancl and dismissing the appeal on account of the finding that the transaction between the l't Defendant and the Respondent was a money lending transaction; that the 1st and 2nd Defendants fraudulently transferred the suit land into their name; that the suit land was transferred to the 1't and 2"d Defendant without the consent of the Respondent; and that the 2nd Defendant interchanged his names'

In ground 2 (a), the Appellant argues that he was no'; privy to the agreements between the 1't and 2n,l Defendants and the Respondent, that regardless of whether their transaction was sale or not, the outconre could not affect him. The Respondent, on the other hand, argues that there was never an intention to sell the lantl, and that she repaid the loan she borrowed from the 1"t Defendant. She claimed she handed over the title as collateral. At the trial, the 1't Defendant argued that it was a sale.

In ground 2 (b), (c) and (c1), the Appellant argues that, regardless of the evidence indicating that the 'l\* and 2"a Defendants fraudulently transferred the suit land into their names without the consent of the Responden! and the court finding on the 2"d Defendant's interchanging of his names, his (the Appellant) interest in the suit land should not have been impeached, since he fully paid the purchase price for the land to the 1't and /ncl Psfgncl6nf5.

of title. - on grouncl 4, the Appellant faultecl the first appellate court for upholding the finding of the High Court that the Appellant had no interest protected by law in the suit land. The Responrient, on the other hand' maintained that the Appellant was not a hona fde purchaser for value without notice since he failed to question the obvious frauds apParent on the certificate

In determining the question of whether the Court of Appeal correctly reevaluatetl the evidence on record as a first appellate court regarding trespass, the rule to consider is Rule 30 (1) of the Judicature (Court of Appeal Rules) Directions SI 13-10 which provides that-

- .t)onnnyappealfromgdecisiottoftlwHighCourtactingintluexercix of its originnl juisdiction, tlu court ruay; - a) Renppraise the ertidence and drnp inferences offact'

As was held in Uganda Breweries Limited Vs Uganda Railways Corporation, Supreme Court Civil Appeal No' 6 of 2001' re-evaluation of evidence on appeal is a question of style' The Court of Appeal in its appellate jurisdiction has the discretion to make its own independent findings.

The Appellant's argument, on grounds 1 and 3 of this appeal is' first' that theResponclent,inherplaint,didnotseektheremedyoftrespassagainst him, and that, as such, it was erroneous for an order of trespass to be issued against him when in fact it hacl not been prayed for; and' secondly' that the court finding that he was a trespasser was contrary to the requirements of the tort of trespass. The Appellant, in addition, argued that the issue as to whether or not the Appellant was a trespasser was never an issue in the joint scheduling memorandum.

The Respondent's position, on the other hand, is that she specifically sought the relief of trespass against the Appellant in her pleadings, that the trial court and the first appellate court were therefore well within their mandate in making orders of trespass against him, and that their findings should remain intact.

The plaint in Civil Suit No. 78 of 2011, at pages 10 to 13 of the record of appeal indicates as follows:-

"3. The plaintiffs claim against the Defendants jointly and severally is for recovery of land comprised in Kyadondo Block 221 Plot 772, damages for trespass to land, damages for fraud, a permanent injunction, cancellation of title and costs of the suit.

. . . . . . . .

9. The Plaintiff shall aver and contend that the 4^th Defendant insofar as he claims to have purchased the property from the $2^{nd}$ Defendant or any of them is a trespasser on to her land without any colour or claim of right.

Particulars of trespass on the part of the 4^th Defendant.

a) Illegally entering onto and permitting persons to enter onto and remain on the suit property on the strength of an unlawful purchase of the same from the $1^{st}$ and $2^{nd}$ Defendants.

b) Illegally causing the construction of a multi storied building on the suit property."

Finally, in the same plaint, at page 15 of the record of appeal, the plaintiff prayed for judgment against the defendants together with:-

$(a)$ ....................................

$\cdot \cdot$

- $(b)\ldots\ldots\ldots\ldots$ - (c) a permanent injunction against the Defendants collectively restraining

them from trespassing onto the suit property."

The foregoing excerpts from the plaint clearly show that, not only did the Respondent plead and set out particulars of trespass against the 4^th Defendant in the plaint, trespass was also raised as the cause of action and prayers against the Defendants, who included the Appellant.

Therefore, based on the foregoing, the Appellant's submissions or arguments that the learned Justices of Appeal upheld an order of the High Court that was not prayed for would not stand.

The Appellant argued, in the alternative, that even if the Respondent had prayed for trespass, she would have failed to prove that there was actually trespass, that, as such the first appellate court and the trial court were not justified to declare him a trespasser when the ingredients for the tort of trespass where not satisfied. ' The ApPellant, in his submissions, highlighted acts he considered unjustifiable and constituting of trespass, namely' entering upon the land in possession of another, remaining on such land' and placing any material object upon the land. He also highlighted factors which must be proved for the Plaintiff to succeed in an action for trespass to land' namely,thatthesuitlandbelongedtoher;thattheDefendanthadentered upon if and that entry was unlawful in that it was made without permission or that the Defendant had no claim or right or interest in the suit land. According to his submissions, there is ample evidence on record that, at the time of filing the suit, the Respondent was no longer the registered proprietor of the suit land; that she had lost both legal and physicat possession of the suit land; and that the Respondent did not therefore meet the first test'

The Appellant also arguecl that his entry on the suit land was by virtue of thepurchasebetweenhimandthel'tand2"dDefendants;thatwhileitis true the Appellant entered onto the land' at the time of entry' the Respondent was not in any possession' He further argued that his entry onto the suit land could not be unlawful simply because he claimed interest in the suit land as a purchaser of the suit land' He argued that he became an equitable owner of the suit land and could therefore not trespass on his own land; that the tort of trespass is committed not against the land but against the person who is in actual or constructive possession of the land.

. TheRespondent,ontheotherhand,basedhercontentionsonthefinding of the Court of Appeal that the Respondent was fraudulently denied ownership of the land by the actions of the 1't and 2nd Defendants which the Appellant was aware, or got notice, of; and that the transfer of the suit property was done without her consent'

The lower courts' concurrent findings on the issue were based on the adduced evidence on record which shows the Appellant purchased the landfromEmilyMigyishaandJohnJuniorSekindi. Atthetime,therewas a caveat on the title lodged by a John Lwalanda' Though |ohn lunior SekindiandJohnLwalandaweretwodifferentpeople,theAppellant never bothered to inquire why the seller's particulars were different on the title and on the payments. The 2nd Defendant (John Lwalanda) was found to have acted fraudulently by impersonating John ]unior sekindi, the actual proprietor. Thus, the 2nd Defendant who sold the land to the Appellant was not a registered proprietor on the suit land'

The Court of Appeal accordingly found as follows on Page XXIV line ¹⁷ of the Record of APPeal:-

,,Tlw Appetlant carried out n search and found tlwt tlrc lanrl ruas registered in the nanrc of Eruily Migislw nntl lohn lunior Sekindi' The person ruho tifted ttu cnpeat tons Ltoalantla lohn nnd Lwalanda l. Tlw series of name clwngingshouldlnuearousedtlwAppellant'sdoubtostotlrcorunership but lu toas negligent and cannot in nry uieto, clairu to fu a bona fde purchaser fur ualue tpithout notice of tlu frnud'"

' It is clear from the adduced evidence on record that the Appellant ignored thefraudthatwasapparentonthecertificateoftitleandproceededtobuy theland. TheAppellantcommencedhistransactionwithEmilyMigyisha and Lwalanda John. A certificate of title was Presented to him showing the registered proprietors to be Emily Migyisha and John Junior Sekindi' The title showed an encumbrance of a caveat lodged by Lwalanda John' The Appellant paid the money to Lwalandalohn who took on the identity of John Junior sekindi. The sale aSreement indicates that he went ahead withthetransactiononconditionthatthecaveatwasremovedbuthe ignored to question why the names on the certificate of title were not the sameaSthoseofthepersonwhowaspresentinghimselfasaseller. The Appellant ignored the fraud that was apparent on the certificate of title' The law protects a bonn1trle purchaser for value without notice' but the Appellant in this case had notice which he ignored' By not probing such important issue which was apparent on the title, he put himself out of the bracket of bonn fde Purchasers.

Thus,basedontheatlducedevidenceonrecord,muchastheAppellant paid consideration for the suit land, it is evident he had notice of the fraudulent changing of names between the registered proprietor' the ca?eatorand the Person to whom he paid the money' The learned Justices of Appeal were therefore right to find that the Appellant was not a bona fdepurchaserforvaluewithoutnoticeofthefraud,thathehadnolegal interest on the suit land; and to consequently uphold the findings of the HighCourtandimpeachtheAppellant,stitletothesuitland. Sincethe

Appellant was found not to have any interest protected by law' he became ^atrespasser in that respect, and the lower courts correctly held so.

Thus, in that connectiory I would hold that the learned Justices of Appeal properly evaluated the evidence on record when deliberating on issues of whetherhewasabonafrlepurchaserforvaluewithoutnotice;whetherhe was a trespasser on the suit land; and whether his interest on the land was protected under the law; or whether his title to the land was impeachable. ^Iwould not fault the learned fustices of Appeal for upholding the decision of the trial court that the Appellant was not a bona f de purchaser for value without notice, and accordingly a trespasser on the suit land whose title was impeachable under the law'

Grounds 1,,2,3 and4 of this appeal therefore fail'

In ground 5, the Appellant faulted the leamed Justices of Appeal for upholdingtheordersoftheHighCourttherebyunjustlyenrichingthe Respondent. The Appellant contends that he built a three storied building on the suit land; that he was declared a tresPasser and was evicted from the suit land; and that the Respondent is currently receiving rent from tenants she put in the builcling. He also contends that court took note of him being a victim of circumstances, but never gave him a remedy. It was his preposition that at least court should have ordered him to pay the current market value of the suit land without developments'

The Appellant's Counsel submitted that at common law a party as ^a general rule will not be allowed to unjustly benefit from another. He relied on the case of Fibrosa Spolka Akcyjna Vs Fairbaim Lawson Combe Barbour Ltd [1943] AC 32, where Lord Wright in this famous passage had this to say:-

"It is clear that any civilized system of Law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit, that is, to prevent a man from retaining the money of, or some benefit derived from, another which it is against conscience that he should keep. Such remedies in English Law are generically different from remedies in contract or in tort, and now recognized to fall within a third category of the common law which has been called quasi-contract or restitution $\dots$ "

The area of quasi-contract or restitution at common law has evolved from its generalized beginnings into a formidable area of law to plug deficiencies that may arise in relation to transactions between people and especially so in contract.

In "Chitty on Contracts" Vol. 1 28th Edition, Sweet and Maxwell, at paragraph 30-016, the tests to be met for unjust enrichment are set out as follows:-

"... The principles of unjust enrichment requires first, that the Defendant has been 'enriched' by the receipt of a 'benefit', secondly that the enrichment is 'at the expense of the claimant', and thirdly that the retention of the enrichment be 'unjust' ..."

It was not disputed that the Appellant built a three storied house on the land. However, the evidence that the Respondent is collecting rent from tenants in the builtiing is fresh evidence from the Bar and' since this Court's leave was not sought, it will not be considered'

Inherpleadings,theRespondentdidnotclaimthebuildingonthesuit lancl, neither were any orders made awarding her the building' In order to recover the Respondent's land, the trial court ordered the eviction of the Appellant and for the Responclent to be registered on the land title.

The adduced evidence on record shows that the Appellant transacted with the 1,r anci 2nd Defendant whom the trial court found sold him land through fraudulent means, ancl that he had notice of the fraud. There is nothing on record to show that the Appellant made any claim in the suit against 1,t and 2"d Defendant, or that he took action against them for defrauding him. The record shows that the Appellant's first and second appealswereagainsttheRespondentonly,andthattheotherDefendants at trial did not appeal against the findings of the High Court'

In his written statement of defense, the Appellant' who was the 4th Defenclant at the trial court, prayed that the suit be dismissed with costs. InthememorandumofappealfileclattheCourtofAppealtheAppellant prayed that the appeal is allowed; that the iudgment and orders of the HighCourtbesetasideandbesubstitutedwithanorderdismissingthe Respondent'ssuit;andthattheRespondentbeorderedtopaythecostsof this appeal ancl the costs in the lower court' His Counsel' in his submissions, prayed that this Court orders the Respondent to pay the market price of the land.

The Appellant did not litigate on issues concerning his investment on the suit land. He rather focused on the suit land, which the lower courts concurrently held to be the property of the Respondent' This resulted in the matter of his developments on the land not being considered by court'

Itisnowsettledlawthatcourtscannotgivereliefbeyondtheprayermade in the plearlings, that founding a court decision or relief on an unpleaded matter or an issue not properly placed before it for determination is an error of law. [n the case of Ms' Fang Min V Belex Tours and Travel Ltd' SCCA No. 05 of.2O1r3, consolirlatecl with Crane Bank Ltd V Belex Tours andTravelLtdSCCANo.lof2014thisCourtsetasidethereliefsfor recovery of land, cancellation of a certificate of title and a loan, plus ruesne profits awarded by the Court of Appeal which were not prayed for in the plaint without amenrlment of the plaint. This is supported by Rule 102 (c) oftheRulesoftheCourtofAppealwhichthisCourtheldtobemandatory in Mohamed Mohamed Hamid Vs Roko Construction Ltd Supreme Court Civil APPeal No.1 of 2003'

I would, in that resPect, decline to grant the prayers made by the Appellant's Counsel in his submissions to this Court made under ground 5 of this aPPeal'

Ground 5 of this aPPeal fails'

onground6,theAppellantarguedthatthefirstappellatecourtfailedto caution itself on the blood/family relationship between the plaintiff, and the 1,t, 2nd and 3'a Defendants before upholding the decision of the trial court. He argued that the Respondent anci the 1st' 2nd and 3'd Defendants are relatives, and that there is a possibility they connived to stage-manage his predicament' The Respondent, on the other hand' argues that the Appellant was not diligent in his transaction' and his negligence should not be visited on her.

The record of this appeal clearly indicates in paragraph 2 of the plaint that there was a family relationship between some of the parties in the suit at High Court, that is, that:-

" 2. Tlrc '!il Defendnnt is a fenrale adutt lJgnndnn belieped to be of sound mind wrd tlrc ntotlrcr and grandnrotler of tle 2ud and 3'd Defendants respectiuely'

- a) Ttre 2'd Defendnnt is a nnle ndult Ugandan belieped to be of sound mind nndtlusonnndfatlurofttrc'l'tnntl3'dDefendantsrespectiuely' - b)The3,dDefendnntisannlechild/minorofAmericatdescentandtlw son of the plaintiff and tlrc 2ud Defendant ' ' ' ' ' '"

The relationships between the parties was clearly spelled out in the plaint andwaswithintheknowledgeoftheAppellantduringthetrialandthe firstappeal. TheRespondentwasnotsecretiveaboutherrelationtothe parties. The Appellant did not challenge the pleaded relationship' let alone attribute it to the fraud at the trial. Similarly, when he lodged the appeal at the Court of Appeal, the grounds of appeal for court's consideration did not cover the stated relationship or its relevance to the fraud. Secondly,theAppellantneverappealedagainstthel'tand2"d Defendants at the Court of Appeal, which implies that hc had no issue

againstthem. Hethereforehasnobasistoquestionthedefendant's ' relationship to the Respondent at the final stage of the case'

^Ihave considered the Appellant's Counsel's submissions that the iustice of this case demands that this Court, being the last appellate court, cast ^a last look at the justice of the case, giving credence to the points of concern aselucidatedandexpoundedupon,andreachajustifiableconclusionthat the Appellant is entitled to the suit land'

Rule 98 of the Rules of this Court state that:-

## "98. Arguments at hearing

At tlrc heaing of an aPPeal-

(a) no party shall, tpithout tle leape of tlu coutt, argue that the decision of tlrc Court of Appeal should be reuersed or uaied except on ^a ground specifed in tlw memoranduru of appeal or in a notice of tossappeal, or support tlrc decision of tlrc Court of Appeal on any ground notreliedonbyttutcourtorspecifedinanoticegiuenunderruIe 88 of tluse Rulesi'

The memorandum of appeal filed at the Court of Appeal shows that the Appellant did not raise any ground of appeal regarding the parties' relationship. Since gtound 5 of this appeal was not a ground for consideration at the Court of Appeal, it would be erroneous for this Court to address it for the first time.

Ground 6 of the aPPeal fails.

In conclusion, since all the grounds of this appeal have failed, the appeal has no merit and it is accordingly dismissed.

Costs in this Court are awarded to the Respondent.

Dated at Kampala this.................................... .2024. $\ldots$

> pethiaise . . . . . . . . . . . . . . . . . . . Percy Night Tuhaise **Justice of the Supreme Court**

Delivered by the Registra

South<br>Ry<br>relielen ### THE REPUBLIC OF UGANDA

### IN THE SUPREME COURT OF UGANDA AT KAMPALA

[CORAM: MWONDHA; TIBATEMWA-EKIRIKUBINZA; TUHAISE; CHIBITA; MUSOKE, JJSC.

### CIVIL APPEAL NO. 10 OF 2022

### **BETWEEN**

DR. DAVID KAGGWA..................................

#### AND

### AUDREY MUSIIMENTA....................................

(Appeal against the Judgment and Decree of the Court of Appeal in Civil Appeal No. 195 of 2017 before Hon. Justices Cheborion, Musota 15 and Madrama, JJA., dated 1^st March, 2022.)

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

I have had the opportunity to read in draft the judgment of my learned sister, Hon. Justice Tuhaise, JSC and I agree with her that 20 the appeal fails and ought to be dismissed with costs.

I have however found it prudent to emphasize the duty of a purchaser of land to conduct due diligence and the related legal principle of willful blindness as a form of fraud in land sale transactions.

The facts are well articulated in my learned sister's judgment. I will therefore only reproduce specific facts to give context to my ensuing discussion.

The Respondent's case at trial was that she borrowed money from Emily Migisa and handed over to her as security, a duly signed 30

**TEMWA** 10 JUN 202

transfer form but without the names of transferees, as well as a duplicate certificate of title to the suit land. The Respondent further testified that it was agreed that after paying back the money, Emily Migisa would destroy the transfer form and hand back the title to the Respondent's sister but this was not done. Instead, Emily Migisa fraudulently filled out her name and that of John Junior Sekindi (the Respondent's son) to indicate that the Respondent had sold the suit land to them.

The Respondent then filed a suit in the High Court against Emily Migisa, Sekindi, and David Kaggwa seeking recovery of the land, damages, and cancellation of the Appellant's name on the title.

On the other hand, in her defence, Emily Migisa testified that the transaction in issue was a sale and this explained why she was in possession of the transfer form and duplicate certificate.

The case for the Appellant was that he bought the suit land from persons who were the registered owners of the property (Emily 20 Migisa and John Junior Sekindi) and paid up all the consideration. However, he was surprised to see the Respondent suing for trespass and evicting him from the suit land.

The Trial Court found in favour of the Respondent and held that the transaction under scrutiny was a loan agreement rather than a land 25 sale.

In carrying out her duty of evaluation of all the evidence presented by the parties, the Trial Judge took judicial notice of the practice in Uganda where those who lend money sometimes require borrowers to sign transfer forms as security of payment or recovery.

The contestation as to whether the transaction was a loan or a sale was resolved based on the credibility of witnesses. This was because neither party had documentary evidence to prove their side of the story. There was neither a sale agreement to prove the alleged sale and neither a loan agreement to prove that this was a loan.

The Trial Judge found that Emily Migisa was not a credible witness on the premise that she gave false testimony regarding the transfer process of the suit land from the Respondent's ownership into her own name and that of John Junior Sekindi. The Jadge found that


$\overline{2}$

the Respondent had handed over a blank signed transfer form and not one which indicated that she had transferred the land to Emily Migisa and John Junior Sekindi. Given the falsehoods in Emily Migisa's testimony, regarding a material aspect, the Trial Judge was guided by the renowned principle that when a witness lies on a material point, his other evidence may be rejected.

On the other hand, the Judge made a finding that the Respondent was an honest and credible witness.

The Trial Judge also held that David Kaggwa (the Appellant) was not a *bonafide* purchaser for value without notice.

The Court of Appeal upheld the findings of the Trial Judge. First, 15 that the transaction was a loan agreement and not a sale. Secondly, that the Appellant before this Court was not a bonafide purchaser for value without notice.

In my Judgment I concentrate on the holding by both lower courts that the Appellant before us does not qualify as a bonafide 20 purchaser for value without notice.

And the question I answer is: considering the circumstances under which the Appellant acquired the property in issue, could it be said that he was a bonafide purchaser for value without notice?

It is an agreed fact that the Appellant bought land from a person who 25 was introduced to him as Lwalanda Sekindi Junior who was the 2^nd defendant at trial. The sale agreement between the Appellant and the vendors indicated that one of the sellers was John Junior Sekindi alias Lwalanda John. The impugned transfer form carried the name of John Junior Sekindi. 30

It is on record that the Appellant testified that he was introduced to a one "John Lwalanda Sekindi Junior" who revealed that he uses different sets of names. It is with this individual that the Appellant negotiated the purchase of land. This very fact of name changes should have, as found by the lower courts, aroused suspicion in the

mind of the Appellant.

**TEMW N JUN 202** $-1 - E$ The Appellant's failure to question the discrepancies amounted to lack of due diligence and placed him outside the protection granted to a bona fide purchaser for value without notice.

I now move on to expound the principle of willful blindness. This doctrine imputes subjective knowledge of an illegal activity onto a buyer who deliberately avoids learning about the facts that would bring to light the illegality or fraud. In such instances, a buyer becomes aware of suspicious circumstances that would taint the transaction but chooses to remain ignorant or avoids investigating further. In other words, such a party closes their eye to the high probability that an illegality exists.

I reiterate the *ratio* in a recent decision of this Court - Israel Lwanga vs. Leonard Mubiru & 3 Ors¹ - where I held that the omission or failure to exercise due diligence by a purchaser or their agent can be regarded as 'willful blindness' and is thus a form of fraud. In the

- Israel Lwanga case, the Appellant's agent did not carry out due 20 diligence before purchasing the suit land. The Appellant's agent had knowledge that the title was in another person's name and not the seller. This would naturally have led the Appellant's agent to inquire more about the seller's authority to sell the land but he ignored to do so. The omission to make necessary inquiries amounted to willful 25 - blindness.

In a similar vein, in the case before us, the Appellant's failure to question the discrepancies in the relevant names is tantamount to having closed his eyes to the high probability that an illegality existed and consequently, the fraudulent acts of the persons he bought the land from is visited on him.

Arising from the above discussion, the Court of Appeal was correct to decline grant of the Appellant's prayer not to impeach his title since fraud unravels everything.

¹ SCCA No.18 of 2022.


$1.7 - C$


### THE REPUBLIC OF UGANDA

## IN THE SUPREME COURT OF UGANDA AT KAMPALA

# CORAM: (MWONDHA, TIBATEMWA-EKIRIKUBINZA, TUHAISE, CHIBITA, MUSOKE, JJ. SC)

DR. DAVID KAGGWA ..................................

### **VERSUS**

# AUDREY MUSIMENTA ....................................

(An appeal against the judgment and decree of the Court of Appeal in Civil Appeal No. 195 of 2017 before Cheborion, Musota and Madrama, JJA)

### **JUDGMENT OF FAITH MWONDHA, JSC**

I have had the opportunity of reading to read in draft the judgment of my learned sister Percy Night Tuhaise, JSC. I concur with her analysis, decision and the orders proposed therein that, the appeal would be dismissed.

### **Decision of Court:**

Since all Justices of the Coram concur with the decision in the lead judgment, the appeal fails and it is accordingly dismissed with the orders as proposed therein.

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

Minerare

**Faith Mwondha** Justice of the Supreme Court.

Delivered by the Registran

# THE REPUBLIC OF UGANDA

# IN THE SUPREME COURT OF UGANDA

### AT KAMPALA

## CORAM: MWONDHA, TIBATEMWA-EKIRIKUBINZA, **TUHAISE, CHIBITA, MUSOKE; JJ. SC.**

### CIVIL APPEAL NO: 10 OF 2022

DR. DAVID KAGGWA ::::::::::::::::::::::::::::::::::

#### **VERSUS**

AUDREY MUSIIMENTA ::::::::::::::::::::::::::::::::::::

[An Appeal from the decision of the Court of Appeal (Cheborion, Musota and Madrama, JJA) in Civil Appeal No. 195 of 2017 dated 01^st March 2022]

### **IUDGMENT OF CHIBITA, ISC**

I have had the benefit of reading in draft the judgment of my learned sister Tuhaise, ISC.

I agree with her decision that this appeal be dismissed and the orders she has proposed.

Dated at Kampala this .................................... $m$ 2024

**JUSTICE OF THE SUPREME COURT**

selvered by the

# THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA CIVIL APPEAL NO. 10 OF 2022

DR. DAVID KAGGWA: : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : :APPELLANT

### VERSUS

## AUDREY MUSIIMENTA: :: : : : : : : : : : : : : : : : : : : : : : : : : ::: : : : : : : RESPONDENT

(Appeal from the decision of the Coutt of Appeal (Cheborion, Musota and Madrama, IJA) in Civil Appeal No. 195 of 2017 dated ln March, 2022)

# CORAM: HON. LADY JUSTICE FAITH MWONDHA, JSC HON. LADY JUSTICE PROF. LILTIAN TIBATEMWA - EKIRIKUBIilZA, JSC HON. LADY JUSTICE PERCY NIGHT TUHAISE, JSC HON. MR. JUSTICE MIKE CHIBITA, JSC HON. LADY JUSTICE ELIZABETH MUSOKE, JSC

# JUDGMENT OF ELIZABETH MUSOKE, JSC

I have had the advantage of reading the judgment of my learned sister Tuhaise, JSC. For the reasons she has given therein I agree with her that this appeal should be dismissed with costs.

Dated at Kampala this 2-D::. day of...... ..2024.

Elizabeth Musoke

Justice of the Supreme Court

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