[2002] UGSC 50

#### THE REPUBLIC OF UGANDA

# IN THE SUPREME COURT OF UGANDA AT MENGO

(CORAM: ODER, TSEKOOKO, MULENGA, KANYEIHAMBA AND KATO JJ. S. C.)

# CIVIL APPEAL No. 16 OF 2002

# **BETWEEN**

| 1. | KAMPALA DISTRICT LAND BOARD | | |----|-----------------------------|------------------| | | | . APPELLANTS<br>. | | 2. | GEORGE MITALA | | | | AND | | | 1. | VANANSIO BABWEYAKA | | | 2. | EDWARD KIZITO | | | 3. | ROBERT TUMUSIIME | RESPONDENTS | | 4. | ROBERT KIKOMEKO | | | 5. | SENGENDO SSEMPALA | | | 6. | APOLLO NABEETA | | | | | |

[Appeal from the judgment of the Court of Appeal at Kampala (Mukasa-Kikonyogo, DCJ, Okello and Twinomujuni JJ. A) dated 6^th August, 2002 in Civil Appeal No.20 of 20021

### JUDGMENT OF TSEKOOKO, JSC

This is a second appeal arising from the judgment of the Court of Appeal which allowed an appeal by the Respondents against the decision of the High Court. The facts of the case may be simply stated: -

$\mathbf{1}$

The fj-rst appeliant t-]E: Lr6,-LlL,l, l.1-l,Lr admi nistration and Li]. Str]-Ct. is a bodlz 1998, and managemenL corporaie creaied u::der is responsible for of land in Kanpala

The respondents, who are some of the twenty origrnaf piaintrffs at the trial , were occupants of a plot of land situate at Ndeeba in the suburb of the City of Kampala, Kampala District, and described as plot lA2B block 7 Ki-buga, hereinafter referred to as the "suit land.'t . On 8th November, 2OAO, the 1"t appellant allocated the suj-t land to the 2nd appellant for ^a lease. A formal l-ease was subsequently offered to the latter. He accepted the 1ease offer and was on 20/17/2000 registered as the proprietor of the suit land. A Certificate of Title in respect thereof was accordingly issued to him.

The respondents who felt aggrieved by the leasing sued the appellants jorntly and severally seeking, inter a1ia, declarat j-ons that the respondents were bona fide/1awfu1 occupants and,/or customary owners of the suiL fand; that the 1"t appellant wrongfully leased the sui-t land to the 2"d appellant and that the latter obtained the lease thereof wrongfully, unlawfully and fraudulently.

Both appellants filed their respective Written Statements of Defence. in which they denieo the respondents' claim.

c

,

After pleadings i-n the High Court were closed, Katutsi, J, held a scheduling conference at which facts agreed upon wel:e recorded as follows: -

- 7. The 6 pTaintlffs are occupants of the sur t PL ^-^^^rl-1, vL"L ot . - 2. Second defendant is the registered proprietor af the suit property described as LeasehoTd Vo7.2B7 Fofio 9 BTock 7 Pl-ot 7028 at /Vdeba. - 3. The first defendant is tfte statutorv owner of the su"1 t property -

Thereafter 21- sets of documents for the respondents were admitted in evidence.

None was admitt.ed for the 1"t appellant but "photocopies of drafts for compensation for a77 the pTaintiffs " were admitted as exhibit DI for the second appellant.

This was followed by the framing of five issues Lhis way:

- 1. Whether the occupants of plaintiffs are tl:e suit 7and. 7awfu7 or bonafide - 2 the Whether the plaintiffs are customary owners of suit Land. - to of Whether the suj t Land was avaiLabTe for Teasing the second defendant at the time af the grant -1. ease. 3 - the Whether the second defendant obtained certificate of title 7awfu77y. 4

⁵. -Remedr es .

It should be noted \_L edSe wd. S an assue. that although the plaint alleged t.hat the regist.ered fraudulenLly, fraud was not made

The suit was fixed for hearing on I/Ll/2001. Apparent\*1y the hearing did not take p1ace. Somehow, on 3L/L0/20a1 counsel for the respondents filed their written submissions. The 2"d appellant filed hls written submissions on 7/71-/200]. which was followed by the writ. Len submisslon of the 1st appellant whj-ch was f iled on 5/71,/2007.

The learned trial judge del-ivered his brief judgment on 2l/72/2a0L. In it, he alluded to section 30 (1) of the Land Act, 1998. He then stated:

nThere is no evidence on record nor is it agreed that pTaintiffs were persons occupying the Tand by virtue of the repealed Taws mentioned abowe.

?here is no evidence nor rua s it conceded or argued tJrat the pTaintiffs entered upon tl:e sujt property with the corsent of the registered owner. There is no evidence to suggest that the pTaintif f.s were customary tenants whose tenancy had not been discfosed or compeasated for by tJ: e registered owner. In

short t}:ere is nothing on pTaintiffs under the ambit the Land Act, 1-99{" record to of section bring the 30 (1) ot

The learned judge then briefly discussed who is a "bona fide occupant " in terms of S . 3 0 (2) of the Act . ThereafLer he held that. Ehe respondenLs were not bona fide occupanLs. So he answered the first and second issues in t.he negative. In consequence he answered the third and fourLh issues in the affirmative.

It is a litt1e puzzling t.hat the learned tri-al judge fixed a date for hearing evidence, bul he apparently cancelled that. and relied on document.s. He then decided the suit on basis that there was no evidence.

In the Court of Appeal there were eight grounds of appeal . The sewent.h ground of appeal complained that the judge erred when he decid.ed the case against the respondents without affording them proper hearing.

Okel1o, J. A, delivered the lead judgment with which the other Justices of Appeal on the panel agreed. At page 7 of his judgment, the learned . Tustice of Appeal Iamented the conduct of the trial by the trial judge in these words :

nAt tlre scheduling conference held on 25/9/200L, admitted facts were recorded. Documentary evidence was received and issues for determination of tjre court were franed. Thereafter the case was set

down for hearing on 1/71/200J-. Eowever, the promised hearing was not conducted, thus shutting out oraL evidence. CounseT for both parties and the triaT court appear to have agreed that the framed issues couTd be determined on tj:e 7aw (SiC. ) admitted facts and the documentary evidence received a7one. CounseT for both parties then tiTed written submissions which were foTTowed by the j udgment of tJ:e Court. No oraT evidence was called.

I think that was a flaw. The judgarent of the trial judge indicated that tfiose jssues could not have fairTy been determined without oraT evidence. lhe trial judge remarked in iris judgment on severaf occasions that there was no evidence to prove this or that. This shortcoming couTd have been avoided had the promised hearing been conducted.

The Tacking evidence could probabTy have been adduced- . Learned counse-I. for the appeTTants made half-hearted complaint before us about this point and abaadoned it. He even abandoned ground 7 which was on the point. Z therefore cannot pursue the point any further

This means that the learned Justice of Appeal held that there was a mistrial .

I cannot comprehend why the learned trial judge did not hear oral evidence on l/ll/200A. If Lhere was change of heart by any party about adducrng oral evidence,

this should have been recorded. In his lamentation about absence of evidence to prove certain points, as quot.ed earlier, the learned Justice of Appeal does not blame it on failure by any party to adduce evidence. Could this hawe been due to the inexperience of the trial judge and advocaLes in the implementation of the new rules of order XB of CP Rules which had come into force in 1998? There is no ready .."\*"/. However r can certainly say that. by the time the trial judge wrote his judgement he was aware that material evidence should have been adduced to enable him decide the case on merit. I thj-nk that at t.haL sEage it would have been prudent for the trial- judge to have stopped wri-ting the judgment. He should have asked the parties to adduce evidence or give reasons for not doing so. Fai-1ure to do so rendered the trial a mistrial .

In spite of the misgivings which the Court of Appea} had about the conduct of the trial , the court did not order a retrial but decided the appeal on merits and reversed the decision of the tri-a1 judge. It can be said that. in normal c j-rcumst.ances, where a trial is conducted properly, t.he Court of Appeal would be ^justif ied j.n deciding t.he merit.s of the appeal on the basis of whatever material there was on t.he record. But. the trial in this case was fundament.ally defective.

The appellants filed the following grounds of appeal .

- n1 The Tearned ,Justices of AppeaT erred in Law when they heTd that the occupation of the suit Tand by the respondents without any Tease or Ticence from the controTTing authority constituted their customary right of occupancy - - 2. The Tearned 'Justices of AppeaT erred in 7aw and fact when they heTd the respondents to be customary owners of tJ:e suit Tand without evidence to prove the customs appTicabTe. - 3. The Tearned Justices of AppeaT erred in fact when they heTd that tfie respondents had occupied the suit Tand or bought it from those who had occupied it unchaTTenged for 40 years. - 4. The Tearned Justices and fact when they District Land Board the sui t 7and. of AppeaT erred in 7aw heTd that the KampaTa had no authority over - S. The Tearned . Tustices of AppeaT erred in 7aw when they held that the procedure prescribed in the Land ReguTations, S.l. No.1-6 of 2001-, was applicabTe to the aTTocation of the suit .l.aad.

E 6. The and had Tearned. Tustices fact when they not been pleaded of Appeal erred in 7aw relied on fraud which and strictTy prove. "

It is obvj-ous that most, if not al-I, the obj ecLions i-n the above grounds of appeal hinge on evidence partly contained in the documents admj-t.ted at the scheduling conference and partly on speculatlon about missing oral evidence which was never given because of the procedure adopted by Lhe tri-al court.

In the 1j-ght of whaL I have pointed out above and of the order I intend to propose, it is not desirable to discuss the written submissions filed by boEh sides.

In be my oplnr-on adduced to t.his is ^a es t.abl i sh case where oral evidence should claims of each of the parti-es.

I would therefore a11ow this appeal , seL aside the decisions and orders of the two courts bel-ow except. orders made during scheduling conference. I would order that the trial of the suit should proceed by recording whatever oral evidence each party may wi-sh to adduce. The scheduling conference which was held on 26/9/2001, should form the basj-s of the resumed trial . The case should be remitted back to the High Court for Lhat. purpose.

Considering that which has 1ed to is t.he error of Lhe t.riaf court order that each ir thi ^s decision, I would

party bears its own costs here and in the Court of Appeal. The costs in the trial court should abide the results of the resumed trial.

Dated at Mengo this the day of Decembro 2003.

J. W. N. Tsekooko JUSTICE OF THE SUPREME COURT eritha for 150 Appellenic<br>Wease for 2nd Appelleni Mr. N. Ne Ms. J. Mukasa $\left\langle \right\rangle$ Mr. Mulium<br>And Mirk $raly$ $\overleftrightarrow{\mathbf{y}}$ Kaningizig porden

# THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT MENGO

(CORAM: ODER, TSEKOOKO, MULENGA, KANYEIHAMBA AND KATO, $JJ. S. C.)$

### CIVIL APPEAL NO.16 OF 2002

### **BETWEEN**

1. KAMPALA DISTRICT LAND BOARD

2. GEORGE MITALA

**::::::::::::::::: APPELLANT**

### AND

- 1. VINANSIO BABWEYAKA - EDWARD KIZITO - 3. ROBERT TUMUSIIME - 4. ROBERT KIKOMEKO - 5. SENGENDO SSEMPALA - 6. APPOLO NABEETA

**::::::::::::::: RESPONDENTS**

(Appeal from the judgment of the Court of Appeal at Kampala (Mukasa-Kikonyogo, DCJ, Okello and Twinomujuni, JJ. A.) dated 2/5/2002 in Civil Appeal No. 6 /8/ 2002)

### JUDGMENT OF ODER, JSC

I have had the advantage of reading in draft the judgment of my learned brother, Tsekooko, JSC. I agree with him that the appeal should be allowed and that the decision and orders of the Court of Appeal and of the High Court should be set aside. The case should be remitted to the High Court for completion of the trial. I also agree with orders for costs as proposed by Tsekooko JSC.

Since the other members of the Court also agree, the orders of the Court shall be as proposed by Tsekooko JSC.

Dated at Mengo this....................................

A. H. O. ODER

JUSTICE OF SUPREME COURT

### IN THE SUPREME COURT OF UGANDA

### AT MENGO

### (CORAM: ODER, TSEKOOKO, MULENGA, KANYEIHAMBA, KATO JJSC)

### CIVIL APPEAL NO. 16 OF 2002

### **BETWEEN**

| KAMPALA DISTRICT LAND BOARD | | |-----------------------------|----------------------------------| | GEORGE MITALA | } ::::::::::::::::::::: PPELLANT | | | |

### AND

| | VANANSIO BABWEYAKA | | |----|--------------------|-------------------| | | EDWARD KIZITO | | | | ROBERT TUMUSIIME | | | 4 | ROBERT KIKOMEKO | <b>RESPONDENT</b> | | 5. | SENGENDO SSEMPALA | | | 6. | APOLLO NABEETA | |

(Appeal from the judgment of the Court of Appeal (Mukasa-Kikonyogo, DCJ, Okello and Twinomujuni JJ. A) at Kampala dated 6^th August 2002 in Civil Appeal No. 20 of 2002.

### JUDGMENT OF MULENGA JSC.

I have had the benefit of reading in draft the judgment of my brother Tsekooko, JSC. I agree with him that the appeal should be allowed. I also agree with the orders he has proposed.

Dated at Mengo this ....................................

J N Mulenga JUSTICE OF THE SUPREME COURT

### THE REPUBLIC OF UGANDA

### IN THE SUPREME COURT OF UGANDA AT EMNGO

#### ODER, TSEKOOKO, MULENGA, KANYEIHAMBA, KATO, (CORAM: $J. J. S. C.$

### CIVIL APPEAL NO. 16 OF 2002

### **BETWEEN**

1. KAMPALA DISTRICT LAND BOARD 2. GEORGE MITALA ] :::::::::::::::::: APPELLANTS

### AND

1. VANANSIO BABWEYAKA 2. EDWARD KIZITO 3. ROBERT TUMUSIIME ] :::::::::::::::::::::::::::::::::::: 4. ROBERT KIKOMEKO 5. SENGENDO SSEMPALA 6. APOLLO NABETA

(Appeal from the judgment of the Court of Appeal at Kampala (Mukasa-Kikonyogo, D. C. J., Okello and Twinomujuni, J. J. A.) dated 6^th August, 2002, in civil Appeal No. 20 of 2002).

### JUDGMENT OF KANYEIHAMBA, J. S. C.

I have had the benefit of reading in draft the judgment of Tsekooko, JSC. I agree with him that the appeal should be allowed. I also agree with the orders he has proposed.

Dated at Mengo this 17 day of December, 2003.

anythanka

JUSTICE OF THE SUPREME COURT

### THE REPLBLIC OF UG.\\D.\

# I\ THE SLIPRE}II- COL'RT OF LG.|\DA

# .\T \lt.\(;o

## (CO R{vI : OD E R, TE SE KOO KO, NIULE NGA, I.i\$iYE IH-\\IBA L{TO JJ. S. C)

### CIYIL APPEAI NO. 16 OF 2OO2

### BE't'\\ t\_1.\

| I | I{\\IPAIA DISTRICT t. A.r\D BO-{RD } | | |---|-------------------------------------|--------------------------------------| | 2 | GEORGE NIIT. AI--A, | ):::::::::::::::::::::::: APPELL{\TS | | | | A\D | | I | !'.{r\ANSIO B-{BWEYAI\$ | t<br>r | | ? | EDW"{RD KIZITO | ) | | 3 | ROBERT TUllUSII,vtlE | ) | | | ROBERT KIKONIEKO | RESPO\DENTS<br>l | | | | |

(-A.ppeal from the judgment of the court of . A.ppeal (Nlukasa-Kikonyogo, DCJ, Okello and Twinomujuni JJ. A) at Kampala dated 6th August,2002 in Civil Appeal No. 20 of 2002.

) )

### JUDGIII. INT OF C. NI. I\-\TO JSC

SENGENDO SSE}IP.{LA .{POLt,O N.\BEETA

5 6

I have had the advantage of reading the judgrnent of my brother Tsekooko, JSC, in draft. I agree with him that this appeal should be allowed. I also agree with the orders he has proposed. I would allow the appeal.

Dated at Mengo this . / 1 day of .).r4. 00i "fuc

d, c.rrfrio JLST'ICF- OF THE SL'PRE}IE COT'RT'