[2003] UGSC 48

### 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 | | | |----|-----------------------------|----------------------------------------------------------------------------|--------------| | | | $\overbrace{\cdots\cdots\cdots\cdots\cdots\cdots\cdots\cdots\cdots\cdots}$ | APPELLANTS | | 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 first appellant is a body corporate created under the Land Act, $1998, and$ is responsible for administration and management of land in Kampala District.

The respondents, who are some of the twenty original plaintiffs 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 1028 block 7 Kibuga, hereinafter referred to as the "suit $8$ ^th November, 2000, the 1^st land". On appellant allocated the suit land to the $2^{nd}$ appellant for a lease. A formal lease was subsequently offered to the latter. He accepted the lease offer and was on 20/11/2000 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 jointly and severally seeking, inter alia, declarations that the respondents were bona fide/lawful occupants and/or customary owners of the suit land; that the $1^{st}$ appellant wrongfully leased the suit land to the $2^{nd}$ 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 denied the respondents' claim.

$\overline{2}$

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

- 1. The 6 plaintiffs are occupants of the suit property. - Second defendant is the registered proprietor of 2. the suit property described as leasehold Vol.287 Folio 9 Block 7 Plot 1028 at Ndeba. - The first defendant is the statutory owner of the 3. suit property.

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

None was admitted for the 1^st appellant but "photocopies of drafts for compensation for all the plaintiffs" were admitted as exhibit DI for the second appellant.

This was followed by the framing of five issues this $way: -$

- 1. Whether the plaintiffs are lawful or bonafide occupants of the suit land. - Whether the plaintiffs are customary owners of the $2.$ suit land. - Whether the suit land was available for leasing to 3. the second defendant at the time of the grant of lease. - 4. Whether the second defendant obtained the certificate of title lawfully.

5. Remedies.

\

It should be not.ed that alrhough the plaint alleged Ehat. the lease was regist.ered fraudulently, fraud was not made an issue.

The suit was fixed for hearing on t/)\_t/2001. ApparenEly t.he hearj-ng did not Lake p1ace. Somehow, on 3t/1,0/}OOL counsel for the respondents filed their wriEten submissions. The Znd appellant filed his written submissions on L/LL/2OOt which was followed by the written submission of t.he lst appellant, which was filed on s/Lt/2007.

The learned trial judge delivered 2]-/t2/200L. In it, he alluded to his brief judgment on section 30 (1) of t.he Land Act, 1998. He then stated:

',fhere is no evidence on record nor is it agreed thaE plaintiffs were persons occupying the Tand by virtue of the repeaJed laws mentioaed abowe.

There is no evidence nor was it conceded or argued that the pTaintiffs entered upon the suit property with the coDsent of the registered owner. There is .no evjdence to sugrgest that, the pTaintiffs were customary tenaats whose tenancy had not bEen disc-Losed or conpensated for by the regist,ered owner. fn

short there is nothing on plaintiffs under t}le a.rnbit Ehe Land Act, 1998,, record to of secCion bring the 30 (7) ot

The learned judge then briefly discussed who is a "bona fide occupant" in terms of S.3O (2) of the Act. Thereafter he held that. the respondents were not. bona fide occupants. So he answered the first and second issues in the negat,ive. In consequence he answered the third and fourt.h issues in the affirmative.

It is a 1ittle puzzling thaE the learned trial judge fixed a date for hearing evi-dence, but he apparently cancelled that, and relied on document.s. He then decided the suiE on basis thaE there was no evidence.

In Ehe Court, of Appeal there were eighE grounds of appeal . The seventh ground of appeal complained that, t.he judge erred when he decided the case against the respondents without affording t.hem proper hearing.

Oke11o, iI . A, delivered the lead judgment with which the ot.her rTustices of Appeal on the panel agreed. At. page 7 of hj-s judgment., the learned . TusLice of Appeal lamented the conduct of t.he trial by Lhe t.ria] judge j.n Ehese words :

nAt the scheduling conference &el,d on ZS/9/2OOL, adnitted facts were recorded. Docunenlary evidence t+as received and issues for determinatlon of the court rere f rarned. Thereafter the case was set

down for hearing on 1/11/2001. However, the promised hearing was not conducted, thus shutting out oral evidence. Counsel for both parties and the trial court appear to have agreed that the framed issues could be determined on the law $(S, C)$ admitted the documentary evidence facts and received alone. Counsel for both parties then filed written submissions which were followed by the judgment of the Court. No oral evidence was called.

I think that was a flaw. The judgment of the trial judge indicated that those issues could not have fairly been determined without oral evidence. The trial judge remarked in his judgment on several occasions that there was no evidence to prove this or that. This shortcoming could have been avoided had the promised hearing been conducted.

lacking evidence could probably have The been adduced. Learned counsel for the appellants made half-hearted complaint before us about this point and abandoned it. He even abandoned ground 7 which was on the point. I 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 $1/11/2001$ . If there was change of heart by any party about adducing oral evidence,

this should have been recorded. In his lamentation about absence of evidence to prove certain points, as quoted earlier, the learned Justice of Appeal does not blame it on failure by any party to adduce evidence. Could this have been due to the inexperience of the trial judge and advocates in the implementation of the new rules of Order XB of CP Rules which had come into force in 1998? There is no ready answer. However I 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 I think that at that stage it would have on merit. been prudent for the trial judge to have stopped writing the judgment. He should have asked the parties to adduce evidence or give reasons for not doing so. Failure to do so rendered the trial a mistrial.

In spite of the misgivings which the Court of Appeal 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 trial judge. It can be said that in normal circumstances, where a trial is conducted properly, the Court of Appeal would be justified in deciding the merits of the appeal on the basis of whatever material there was on the record. But the trial in this case was fundamentally defective.

The appellants filed the following grounds of appeal.

- u7. The learned . Tustices of Appeal erred in law when Ehey held that the oecupation of the suit Tand by the respondenEs without any . Lease or Ticence f rom the cont.rolTing authority constituted their customary right of occupancy. - 2. The Jearned r. Tustices of Appeal erred in law and fact, when they held the respondents to be customary owners of Ehe suit l,and without evidence to prove the custorns applicable. - 3. The J,earned rlusCices of Appeal erred in when they hel,d that the respondents oceupied the suit tand or bought it those who had occupied it unchalTenged 40 years. fact had from for - 4. The learned Justices and fact when they DistricE Land Board the suit J.and. of Appeal erred in 7aw held that the Kampala had no authori ty over - 5. fhe . Learned . Tustices of Appeal erred in law when they heJ.d that the procedure prescribed in the Land Regulat,ions, S.l No.76 of 200L, waa appTicable to Che a-Ll,ocation of the suit land. #### 6. The Tearned ,. Tustices and fact when Ehey had not been pJeaded of AppeaT erred in Law re-Zied ol2 f raud which and strictLy prove.

It is obvious that. most., if noE all, Ehe objections in the above grounds of appeal hinge on evidence partly contained in the documents admit,ted at the scheduling conference and part,ly on speculation abouE. missing oral evidence which was never given because of the procedure adopted by the trial court.

In the light of what I have pointed out above and of the order I intend to propose, it is not desirable t.o discuss the wriLten submissions filed by both sides.

In be my opinion adduced to Ehis is ^a establish case where oral evidence should claims of each of the parties.

I would therefore allow this appeal , seE aside the decisions and orders of Ehe two courLs below except orders made during scheduling conference. I would order t.hat the trial of the suj.t should proceed by recording whatever oral evidence each party may wish Lo adduce. The scheduling conference which was held on 26/9/200L should form the basis of the resumed Erial . The case should be remit.ted back Eo the High Court for that. purpose.

Considering that which has led Lo is ttre error of the Lrial court would order that each it thi ^s decision, I

I I 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. 17th day of Second 2003.

J. W. N. Tsekooko JUSTICE OF THE SUPREME COURT

Mr N. Neritha for 182 Appellant<br>Mrs J. Mukaza for 182 Appellant<br>Jus & Appellant Tresent Mr. Mulimbura Hos de<br>And Mr Kanngiera Hos de<br>Ith Respondent Dre Fut mento delivere

## 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**

KAMPALA DISTRICT LAND BOARD

GEORGE MITALA

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

AND

- 1. VINANSIO BABWEYAKA - EDWARD KIZITO - 3. ROBERT TUMUSIIME - 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} | | | |--|------------------------------|------------|--| | | | DDLI I ANT | |

**GEORGE MITALA** $2.$

## }

## AND

| | VANANSIO BABWEYAKA | | | |----------------|-------------------------------------|----------------------------------------|--| | | EDWARD KIZITO | | | | | ROBERT TUMUSIIME<br>ROBERT KIKOMEKO | | | | $\overline{4}$ | | :::::::::::::::::::::::::::::::::::::: | | | | SENGENDO SSEMPALA | | | | | 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

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

### 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 **EXAMPLE 21 RESPONDENTS** 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 .................................... ............ 2003.

upahamba

KANYFIHAMBA JUSTICE OF THE SUPREME COURT

## THE REPUBLIC OF UGANDA

## IN THE SUPREME COURT OF UGANDA

## AT MENGO

## (CORAM: ODER, TESEKOOKO, MULENGA, KANYEIHAMBA KATO JJ. S. C)

### CIVIL APPEAL NO. 16 OF 2002

#### BETWEEN

KAMPALA DISTRICT LAND BOARD } 1. **GEORGE MITALA** $2.$ **}::::::::::::::::::::::: APPELLANTS**

## AND

| | <b>VANANSIO BABWEYAKA</b> | | |----|---------------------------|-------------------------------------------| | | <b>EDWARD KIZITO</b> | | | 3. | <b>ROBERT TUMUSHME</b> | | | | ROBERT KIKOMEKO | <b>}::::::::::::::::::::::RESPONDENTS</b> | | 5. | SENGENDO SSEMPALA | | | | APOLLÓ 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 $\mathcal{N}$ : No. 20 of 2002.

## JUDGMENT OF C. M. KATO, JSC.

I have had the advantage of reading the judgment 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.

day of December 2003. Dated at Mengo this

C. M. KATO JUSTICE OF THE SUPREME COURT