[2025] UGCA 210

#### THE RE BLIC OF UGANDA

#### IN THE COURT OF APPEAL F UGANDA HOLDEN AT FORTPORTAL

[Coram: Dr. F. Zeija,DCJ, ^borion - Bar ish aki, E. N am b ay o, J J A. l

#### CIVIL AP L NO. 0F 0094 0F 2015

- 1- KIIZA LUKA - 2, BALUKU STEPHEN - 3. KAMADI BENSON - 4. JULIANA TEMBO - 5. SWALLEH MUHINDO - 6. SSEKIMPITWAHA - 7, iIWESIGE SADRAK - 8. JUMA TEMBO - 9. P MUSEMAKWELI - 10. KATO SIMON - ,I,I. BAHEMUKA DAVID - 12. TUKWASIBWE ONANI - 13, KAGISHA ABEL - 14, KABUGHO REHEMA - 15. NUWAGABA MASIDIUA - 16. MUGISHA ROBERT - 17. TURYAHIKAYO ROBERT - 18. MUGISHA ROBERT - 19. BURAKA B R - 20. RWAMAFA BITURESO - 21. MUSIMENTA GRACE - 22. OAUDA BALUKA - 23. RICHARD BURANGA - 24. YOLEDI MUHINDO - 25. GEORGE MUTAGHOMOKA - 25. MUNIHIRA OANIEL

#### VERSUS

,I. KITSWAMBA SUB COUNTY LOCAL GO

#### RN|llENT . RESPONDENIS

2. KASESE DISTRICT LAND BOARD

(An appeal aising from the decision of the h Coulof Uganda at Forl Poflal (Batema, J,) dated January

29, 201 5 in Civll Sult No. 005 of 201 3)

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. APPELLANTS

# JUDGMENT OF DR. FLAVIAN ZEIJA DCJ

111 This is an appeal against the decision of Honourable Justice Batema N D A in Civil Suit No.0005 of 2013 delivered 01 January 29,2015 in the High Court of Uganda at Fort Portal. The subject of the briginal suit was plots of land at Rugendabara Township, in Kitswamba Subcounty, Kasese District (the suit land), in a market area comprised of shops and lockups

#### Background

- 12) The appellants filed the original surit seeking a declaration that the suit land belongs to them, a declaration that the apflroval for issuance of a customary certificate of the suit land to the 1st respondent by the 2M respondent is fraudulent and illegal, an order cancelling and or nullifying tne s{id approval, damages, an injunction and costs of the suit. - t3l ln their plaint, the appellants contended that they are members of Rugendabara Town United Traders Cooperative beneficial owners, in poss ty Limited. That they are each customary and CSS of individual and distinct plots of land at Rugendabara Township, which they developed into lockup shops and individually operate business from. n - l4l The appellants fu(her avened th the 1\$ respondent (Kitswamba Subcounty Local Government) through a resolution dated August 31, 2011, without consulting the appellants as customary and bfneficial owners in possession of the suit land, resolved to sell it off. Further that, the 1'r respondent applied for a Customary Certificate and the 2no respondent (Kasese District Land Board) under minute KDLB 04/2013(3)(G)(31) approved the {pplication. I. - tsl lt was the appellants' contention that the 1il respondent has never owned the suit land and that the resolution intended to compulsorily acquire and dispossess the appellants without following dispossession, he constitutional legal procedures for such


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- 161 ln its written statement of defence, the 'ls respondent denied the allegations and raised a preliminary objection that the plaint disclosed no cause of action, - l7l When the matter came uO for hea{nO on 29'h January 2015, the trial Judge struck out the suit for disclosing no cause oflaction and stated that the claim called for Judicial Review, hence this appeal.

### Grounds of Appeal

- l8l Being dissatisfied with this decisiqn, the appellants filed the present appeal with the following grounds; - i. The learned trial Judge elred in law in coming to the conclusion that the appellants'sul'f was a subject of iudicial review and in striking the suit out for disclosing no cause of action without first affording the appellants an opportunity to be heard. - The learned trial Judge erred in law and fact in holding that the appellants'suif disc/osed no cause of action and therehy arrived at a wrong decision which occasioned a miscarriage of iustice. - The learned trial Judge erred in holding that the appellant's complaint in their suit called for judicial review and not a civil suit and the decision to strike out the suit out for not disclosing a cause of action against the respondent was erroneous in law. - t91 The appellants sought orders that; - The appeal be allowed. - The ruling and orders of the High Court be set aside and the case be remitted to the High Court for trial \$n its merits before a different Judge. I - The respondents pay the costs of this appeal.

# Representation

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[10]At the hearing, appellants were lepresented by Mr. Cosma A Kateeba of KRK Advocates and the respondents b[ ur. Kiriaghe Samuel of MRK Advocates. Both parties filed conferencing notes which were adopted as their legal arguments.

# Duty of the first appellate court

[11] lt is now settled that the duty of a first appellate court is to re appraise the evidence on record and draw its own infelences. Rule 30 (1) of the Judicature (Court of Appeal Rules) Directions Sl 13-10 provides that;

1) On any appeal from a decision \$f lhe High Courl ading in the exercise of its original jurisdiction, the coun may:

a) Reappraise the evidence and dral inbrences of fact...

It was held in the case ol Kifamunte Henry vs Uganda (Supreme Court, Criminal Appeal No.10 of 1997) that the first appellate court has a duty to review the evidence of the case and to reconsider the rpaterials before the trial judge. The appellate Court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it.

[12] During the hearing, Mr, Kateeba ipformed Court that the parties had agreed thatthe matter be refened back to the H ig h Court for trial on its merits. The court reserved their decision on the matter. This bourt reserves the right to agree to the consent or not and will exercise its duty to rerappraise the evidence on record and draw its own inferences.

### Preliminary objection

[13] Counsel fortherespondents(Mr. Kiriaghe),raisedanobjectionastothecompetence of the appeal against the 2no respondent. Counsel submitted that on the record of appeal appears an amended ptaiht at pages 151o27 filed on the 19t of September 2Q14, by which the 2no respond4nt (Kasese District Land Board) was added as a defendant to the suit. That it was not clear from the record whether leave to add the 2d respondent was evergranted by court. Counsel submitted that the amended plaint is illegally on the court record as was filed without leave of court

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[14] Counsel for the appellano .on.{.0 to the objection and the 2na respondent was stuck off this appeal with costs to 2no respondenl.

# Consideration oftheAppeal ^I

[15] All the grounds of appeal are simi ar and can be determined under the third ground

Groundthree: ThelearnedtrialJudgeerredinholdingthattheappellant'scomplaint in their suit called for judicial review and not a civil suit and the decision to strike out the suit for not disclosing a cause of action against the respondent was erroneous in law.

### Appellants' submissions

- [16] ln the conferencing notes, Counlel for the appellants submitted that the appeal is premised purely on questions of l{w namely; i) whether the appellant's suit disclosed a cause of action, ii) whether the pppellant's complaint was only amenable to judicial review, iii) whether the learned tritl Judge was correct to strike out the appellant's suit without affording them an opportrJnity to be heard, - [17] Counsel relied on the decision in futo Garage & Others vs Motokov [1971] EA 314 to state that the essential elemenls needed to show a cause of action in any suit are; i) the plaintiff enloyed a right, ii) tfe riSht has been violated and, iii) the defendant is liable. Further that in determinin( whether or not a suit discloses a cause of action, the court must look at the plaint and its attachments, if any. - [18] Counsel submitted that the aplellants' suit was properly before court. That the matte/s suitability for judicial review did not take it out of the purview of the ordinary civil procedure through a suit. Flrther that, the High Court is enioined with powers under Section 33 of the Judicattrre Act to grant remedies in a claim properly before it. And that the kial Judge ought lo have determined the mafter rather than abdicate its powers on the ground that the it should have been brought as a judicial review not as a civil suit. - [19] Finally, Counsel submitted that Article 28 and 44 (c) of the Constitution provides

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for the right to a fair hearing. H er, the suit was determined on the opinion of the trial Judge. That the parties were nol given any opportunity to be heard contrary to the rules of naturaljustice, Couns{l prayed that the appeal be allowed, and the orders of the lower court be set aside.

### Respondents' Submissions

- [20] ln reply, Counsel for the respofdent submitted that the learned trial Judge was justified in striking out the suit. llhat the allegations made by the appellants were merely speculative and cannot b| said to establish a cause of action. Further that, the resolution passed by the subl county was yet to be implemented and the claim was filed prematurely. - [21] Counsel fortherespondentfurthefstatedthattherecordshowsthatthesuitlandwas public land used as a market, thalthe sub county only gave lock ups to some traders but this was not a transfer of ownership of land.

## Determination of the appeal

- l22l This appeal is hinged on the following questions; i) did the plaint disclose a cause of action, ii) did the matter's suitabllitV for Judicial Review take it out of the purview of the ordinary civil procedure, iii) ttere the parties given an opportunity to be heard, and iv) was the trial Judge justified in striking out the suit. - t23l The ruling ofthe trial Judge strik ^gout the suit is on page 72 of the record of appeal 'l

#### Court Summary

#### Ruling

^Iread the file. The sub-county flassed a resolution which is yet to be implemented This would call for Judicial RevLw anO not a Civil Suit.

I strike this suit out for disclosin[ no cause of action.

Sgd (Batema N. D. A) Judge 29/01/2015

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as reproduced below;

124) ln the Supreme Court decision of Attorney General vs Major General David Tinyefuza, Constitutional Appeal No 1 of 1997, Wako Wambuzi CJ (as he then was) cited with approval the following statement from Mulla's Code of Civil Procedure'.

> "A ceuse ol action means every fact which il traversed, it would be necessary for the pleintilf to prove in order to suppotT his right to a judgment of the Courl. ln other words it is a bundle of facts which, taken with the law applicable to them gives the plaintill a right to claim relief against the defendants. lt must include some acf done by the delendant since lhe absence of such an act" no cause of action can possibly accrue...."

Further in Narottam Bhatia & Al of 2009) [2010] UGSC z, xiru! must be alleged in the plaint to ^d and one must also look at the pll nother v Boutique Shazimi Ltd (Civil Appeal 16 rba JSC (as she then was) stated that such facts lecide that the cause of action has been disclosed aint and annexures thereto.

t25l From the preliminaries above, thlis Court shall consider the original plaint dated 20'h February 2013 and the annexulps attached. ln plaint, the appellants claimed that they were each customary and beneficial owners in possession of individual and distinct pieces or plots of land at Rugendabara Township which they developed into lockup shops and in which they ihdividually operate business. ln paragraph 3 of the plaint, the appellants sought, inlpr a/ra, "a declaration that the suit land belongs to and is the property of the individ[al plaintiffs".

The facts pleaded were that thrpugh a resolution of the sub county dated August 31, 2011 , without consulting the appellants, the respondent resolved to sell off the suit land to a willing purchased.


Page 7 of 10 - [26] A copy of the resolution found on page 19 of the record of appeal indicates the subject of the correspondence as, "RESOLUTION ON SELLING THE RUGENDABARA MARKET PLOT' lt is therefore safe to conclude lhal the subject of the suit was a market with lockups. For historical context, all Land under the Land :ed in the Government as public land, Under this ic land under customary tenure was at sufferance. e 1995 Constitution of Uganda and the Land Act, r Mailo, freehold, leasehold and customary forms r the Government at the coming into force of the Constitution, remained public land held in trust under the Diskict Land Boards (see; Section 60 of the Land Act, Cap.236) Reform Decree, 1975 was vesl legal regime, occupation of publ With the coming into force of th 1998 land was to be held unde of land tenure. Land in use b1 - l27l ln addition, Section 1('l) of the Markets Act, Cap.94 (the operating law at the time suit was filed) provided tha administration of a district; (b) a or maintain a market. I no person or authority other than- (a)the rnunicipal council; (c) a town council, shall establish

lndeed, the record of appeal d Page 50-51 contains a 1994 invitation from the Kasese District Administration for tenders to rent markets, among which included the Rugendabara/Mukikongo T/Centre Market at Kitswamba, Fu(hermore, Page 52-53 of the record of appeal cdntains a report dated 2nd February 1995 addressed to the District Urban Officer, ese District Administration on the construction committee of Rugendabara Ma et and the list of traders who were given lock-ups and lhose who intended to start constructrng lock-ups. Some of whom included the present appellants

t28l lt seems to me that the trial Juilge was alive to all the above. On page 71 of the record of proceedings, when the matter was called for hearing on the 28rh August 2014, the trial Judge stated thal;

"This matter can be best sofued by suing the District Land Board by way of


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Judicial Review. Ihis suif can also be best heard conclusively by adding the District Land Board as a party"

It has already been established the amended plaint as such it that the court was never properly moved to admit s improperly on the record

I29l From the foregoing, in applyi (Supra), I do not find that the pl right had been violated and th purposes, the law did not permi market at that. The appellant's resolution was yet to be imple the suit land was the district lan the principles in Auto Garage -vs- Motokov int showed the appellants enjoyed a right, that the t the respondent was liable. For all intents and customary ownership of land in an urban area, a rights had not been violated on account that the nted and the controlling authority responsible for board which was not party to the suit.

Moreover, in Tororo Cement ²ol 2001\ [2002] UGSC 24, 0d than a cause of action is discl amendment. The trial judge has cause of action is disclosed no nullity. I also find that the ple such the appellants cannot sus hearing. . Ltd v Frokina lnternational Ltd (Civil Appeal r JSC, opined that if all three elements are present and any defect or omission can be put right by iscretion to allow such an amendment. Where no mendment can be allowed because the plaint is a ings afforded the opportunity to be heard and as in the claim that they were denied a right to a fair

l30l On whether the matter was su out of the purview of the ordina appellants were incapable of o all the reasons already outlined ble for Judicial Review and was therefore taken civil procedure, I find that it did not. Rather, the aining the remedy sought from the respondent for hrough the plaint filed.

Therefore. the trial Judge was j cause of action. I have no reas stified in striking out the plaint for not disclosing a to fault him


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Be that as it may, the parties ag that the case be remitted back to the trial court for determination of the rights of the parties on the land and that it was dismissed prematurely. I am of the considered view that this is not a solution to this dispute. The party in charge of the dispr institution of the suit the 1,1 respc in charge of the disputed land is (1.t respondent) is no longer in [ted land has since changed. While at the time of [ndent was in charge of the disputed land, the party now Rugendabala Town Council. The Sub County charge of the disputed land. lt makes no sense to litigate this matter with a party lhat is no longer in charge of the land. Should the Town Council attempt to dispose of the land, then the parties can decide their course of action dependrng on whether they have certain rights or not. The prayer to remit the case back to the lovrrer court is accordingly overluled

# Decision of Court

l31l On the whole, I find no merit in all the grounds of the appeal. The decision of the trial Judge is upheld and this appeal is disallowed with costs to the second respondent.

| Dated at Fort Portal this | 2025<br>day of | |---------------------------|----------------------| | | | | | FLAVTAN ZE JA (PhD) | | | DEPUTY CHIEF JUSTICE | | | | | | | | | | | | |

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#### THE REP BLIC OF UGANDA

#### IN THE COURT OF APPEAL F UGANDA HOLDEN AT FORTPORTAL

lCoram: Dr. F. Zeia, DCI borion-Barishaki E. Nambayo, JIA. J

#### CIVIL APPEA NO. OF OO94 0F 2015

- 1. KIIZA LUKA - 2. BALUKU STEPHEN - 3. KAMADI BENSON - 4. JULIANA TEMBO - 5. SWALLEH MUHINDO - 6. SSEKIMPI TWAHA - 7. MWESIGE SADRAK - 8. JUMA TEMBO - 9. P MUSEMAKWELI - 10. KATO SIMON - 11. BAHEMUKA DAVID - . I2. TUKWASIBWE ONANI - 13. KAGISHA ABEL - 14. KABUGHO REHEMA - 15. NUWAGABA MASIDIUA - 16. MUGISHA ROBERT - lT. TURYAHIKAYO ROBERT - I8. MUGISHA ROBERT - 19. BURAKA B R - 20. RWAMAFA BITURESO - 21. MUSIMENTA GRACE

APPELLANTS

22. DAUDA BALUKA

23. RICHARD BURANGA

24. YOLEDI MUHINDO

25. GEORGE MUTAGHOMOKA

25. MUNIHIRA DANIEL

VERSUS

### 1. KITSWAMBA SUB COUNTY LOCAL OVERN MENT RESPONDENTS

# 2. KASESE DISTRICT LAND BOARD

(An appeal arising from the decision o the High Coult of Uganda at Fott Portal (Batema,

J,) dated January 29, 75 in Civi/ Suit No. 005 of 2013)

# JUDGMENT F ESTA NAMBAYO JA

I have had the benefit of reading in Flavian Zeija, DCJ. I agree with hi disallowed with costs to the 2"d Res draft the Judgment of my Learned Brother, Dr finding and conclusion that this appeal be ondent.

Dated at Fort Portal this day ^f 6"r"- 2ozs ^E ^Nam bayo G-

JUS CE OF APPEAL

## THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA HOLDEN AT FORTPORTAL

[Coram: Dr. F. Zeija, DCJ, Cheborion-Barishaki, E. Nambayo, JJA.]

## CIVIL APPEAL NO. OF 0094 OF 2015

- 1. KIIZA LUKA - 2. BALUKU STEPHEN 10 - 3. KAMADI BENSON - 4. JULIANA TEMBO - 5. SWALLEH MUHINDO - 6. SSEKIMPI TWAHA - MWESIGE SADRAK 15 - 8. JUMA TEMBO - 9. P MUSEMAKWELI - KATO SIMON - 11. BAHEMUKA DAVID - 12. TUKWASIBWE ONANI 20 - 13. KAGISHA ABEL - KABUGHO REHEMA - 15. NUWAGABA MASIDIUA - 16. MUGISHA ROBERT - 17. **TURYAHIKAYO ROBERT** 25 - **18. MUGISHA ROBERT** - 19. **BURAKA B R** - 20. **RWAMAFA BITURESO** - 21. **MUSIMENTA GRACE** - 30 22. DAUDA BALUKA - 23. **RICHARD BURANGA** - 24. YOLEDI MUHINDO - 25. **GEORGE MUTAGHOMOKA** - 26. MUNIHIRA DANIEL

**VERSUS**

$1$ | Page

**APPELLANTS**

### 1. KITSWAMBA SUB COUNTY LO 2. XASESE DISTRICT LAND BOARD GOVERNMENT RESPONDENTS

(An appeal arising from the decision oflthe HiOh Court of Uganda at Fort PorTal (Batema, J,) dated January 29, 2O15 in Ciuil Suitl No. OO5 of 2O13)

### JUDGMENT OF RION BARISHAKI. JA

¹⁰ i have had the benelit of reading in d agree with him that the Appeal has no 2"d respondent the judgment of Dr. Flavian Zeija, DCJ and ^I erit and should be disallowed with costs to the

Dated at Fort Portal this ?dL y of ... .. 2025

\-

15 Chc rion Barishaki

### JUS OF APPEAL

2l