[1987] UGCA 2

## IN THE COURT OF APPEAL

## AT MENGO

MANYINDO, V-P, LUBOGO, AG. J. A. & ODOKI J. A.) (CORAM:

# CIVIL APPEAL NO.4 OF 1987

#### **BETWEEN**

SHEIKH MOHAMMED LUBOWA....................................

$AND$

in

KITARA ENTERPRISES LTD....................................

(Appeal from the judgment of<br>the High Court (Kato J.) dated<br>19th day of June, 1986.

High Court Civil Suit No.129 of 1986)

# JUDGMENT OF MANYINDO, V-P

This is an appeal against the judgment of Kato, J. delivered on 12.6.86 in respect of a land dispute between the parties. The case has a somewhat chequered history and its facts are a little involved. The respondent company filed the suit in the High Court against the appellant and one NAKIBULE for an Injunction restraining the appellant and Nakibule from evicting the respondent from the land comprised in Block 245 Plot 212 situate at Kisugu, Kampala which land was the subject matter of the suit.

The respondent's case was that they had purchased the disputed land from Nakibule (who was then second defendant) while the appellant's defence was that he was the registered proprietor of the same and that the respondent was a trespasser as he

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was putting up houses on that land without the consent of the appellant. In his defence the appellant counterclaimed the eviction of the respondent as well as general damages for the alleged trespass.

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The case was put before Karokora, J. for hearing. It is not clear when that was as the record of the proceedings before Karokora, J was not made part of the record of this appeal. We were informed by counsel for the appellant at the hearing that the record of the proceedings before Karokora,J disappeared after he had delivered his decision on 28.3.83 hence appellant's inability to file same in this appeal.

That decision was entitled "Ruling". I must say I find that title not only misleading but quite improper. What actually happened was that Karokora, J heard the suit on its merits. It is stated in his "Ruling" that when the case came up for hearing. both counsel for plaintiff and the defendants "consente. to calling no evidence." The only evidence relied on was the appellant's certificate of Title for the disputed land which certificate was put in evidence by counsel for the appellant with consent of the counsel for the respondent.

Thereafter the counsel made their submissions which were based almost entirely on law. It seems clear to me therefore that Karokora, J should have delivered a judgment and not a Ruling.

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io make matters worse, instead of deciding the issues that had been framed for determination, the learned judge, at his own behest, merely allowed the respondent to file a reply to the appellant's counterclaim, adding "At this juncture, there is no remedy available."

VJe were informed, by counsel for the appellant from the bar that although some stops were taken by his client to appeal against that Ruling, the appeal was abandoned when the case file disappeared from the High Court so that it became impossible to prosecute the appeal.

I

**K**

Respondent company. its merit,., the appellant, after abandoning the intended appeal, proceeded to defend the suit as filed by the V As already pointed out it was heard by Kato,J. At the hearing before Karokora,J > the respondent had withdrawn the suit against the second defendant - Nakibule so that at the trial As that Ruling had not decided the suit on before Kato,J the suit was between the parties to this appeal only.

non-At the hearing, the respondent company was not represented although its counsel as well as its Managing Director had been duly served with the **I** hearing notice. Kato,J therefore granted the appellant's request and dismissed the respondent's suit for prosecution under Order 9 rule 19 of the Civil *\** Procedure Rules.

*-Z.*

The trial thus proceeded on the counterclaim only.

At the end of the trial Kato,J held that there trespasser. the respondent had valid Agreement "by the appellant to sell the disputed land to the respondent and that, therefore, the respondent Company was on the disputed land lawfully (with appellant's consent) and not as a He accordingly dismissed the appellant'^s was a counterclaim but without costs, as not appeared at the trial.

Four grounds of appeal were filed and argued on behalf of the appellant by his counsel, Dr.3empebwa. They are stated thus:-

- he held that the Respondent was not a trespasser on the disputed land contrary to the weight of evidence. "1\* The learned trial judge erred in law when - 2. The learned trial judge erred both in law and fact when he held that the Respondent was on the disputed land with **r** the consent of the Appellant. - The learned trial judge erred in both law and fact in holding that there was a valid and executed agreement by the Appellant to sell the disputed land to the Respondent. **3., f-** - 4. The learned trial judge's decision I was very much against the weight of evidence available on record."

I must confess my inability to appreciate the impact of the fourth ground of appeal.

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- 4 -

It is time . appellant or his counsel is unable for one reason or another, to prepare specific grounds of appeal in They would then be filed later in the form of an amended Memorandum of Appeal. a "light-weight" ground that should normally "be used as a "holding" ground of appeal to be filed in a provisional Memorandum of appeal where an

In his judgment was the registered owner of the land. I should here As far as the first ground is concerned it seems clear to me that in order to prove the alleged perhaps point out that under section 56 of the Regii' stration of Titles Act (Cap 20J) a Certificate of trespass, it was incuiubont on tne appellant to prove that the disputed land indeed belonged to him, that the respondent had entered upon that land and that that entry was unlawful in that it was made without his permission or that the respondent had no claim of right or interest in the land. the learned trial judge easily found that the appellant registration is to be regarded as conclusive evidence of title. That finding was, therefore, in favour of the appellant.

was entry. So on that land. Entry to the disputed land was not disputed by the respondent. It was averred in their plaint that they had entered the disputed land, put up a fence thereon and proceeded to construct two houses The appellant led evidence, including that of Mr,. Katende and Dr. Senpebwa whose firm representing him, which clearly proved the the appellant also vzon on this point.

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by the respondent. There was of course also the right or interest in that land. As far as trespass judgment that that issue would have been The real question was, therefore, whether the appellant had consented to his land being used question whether the respondent had acquired some was concerned, the learned trial judge stated in his

"probably simpler to resolve

if both parties had been heard"

lie then went on to consider the testimony of Dr. Sempebwa which showed that acting on the instructions the land. The latter had then offered to buy the land from the appellant but had failed to pay the agreed price or part thereof. The learned judge held that: of the appellant, his firm had written and sent a notice to the respondent asking them to quit

> "The plaintiff's (respondent) presence agreement had been reached. The plsintiff having been permitted to stay on the land under the contract of sale, he (sic) cannot be referred to as a trespasser". on the land cannot therefore be said to *ⁱ* have been wrongly or unlawful after that

open respondent for an order for specific performance of the contract - the payment of the contract sun. He said.;- "So long as the contract is still subsisting the plaintiff cannot He was of the view that the only remedy to the appellant would have been for him to sue the

be properly called a trespasser."

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- 6 -

As far as consent was concerned the With respect, I think the learned trial judge misdirected himself both in their plaint the respondent company did not claim that they had entered the land pursuant to any Agreement they had entered into with the appellant. on the facts and the law on this point. appellant had certainly not given it when the respondent moved on to the land and started to develop it. Sven

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done with the consent of the appellant. The appellant testified that he never allowed the respondent to enter the land. Indeed in paragraph 4 of their plaint the respondent company claimed that they filed the suit because the appellant had threatened to "foi'cibljr evict" them from the disputed land. In my opinion had the leai'ned trial judge directed himself properly on this evidence he would have corae to the conclusion that the entry was unlawful as it was not

It is remarkable that although the respondent had entered the disputed lend on the strength of a 5 purported sale and transfer of same to them by Nakibule they withdrew the case against him and then did not even bother to call him as a witness. It follows, • therefore, that the respondent did not wish to rely on that purported transfer.

It is also significant that by the time the respondent approached counsel for the appellant for the purpose of negotiating a sale and purchase agreement of the disputed land, the respondent's suit was already in court. company entered the negotiations after realising that they had no claim of interest in the land? J-3 it not reasonable then to assume that the respondent

As far as the law is concerned, the first question is whether the alleged Agreement of sale and purchase would have validated the original entry which ⁱ was clearly unlawful. In my opinion it could not. Assuming that there was a valid Agreement then the The learned trial judge does not seem to have appreciated this point. illegal occupation and, therefore, trespass would have ceased only at the signing of that Agreement.

possession of same. is complete and it continues until it can be shown that the trespasser has acquired a valid interest in the land which entirles him to continued occupation or This brings me to the question whether there was in fact a legal contract of sale. This point is important because once it is proved that the original entry was unlawful (as was the case here) then trespass

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**iI**

The evidence of Prof. Sempebwa clearly showed It seems to proposed sale, but that the respondent did not pay the consideration - the purchase price. me that the purported Agreement was merely an attempt to regularise the illegal occupation on the part of 4 the respondent. It was a case of a trespasser trying to obtain title under an Agreement which failed for < want of consideration. that both parties were interested in effecting the

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In He would thus have held that the respondent were trespassers throughout. ray judgment had the learned trial judge directed himself properly he would have held that there was no valid sale on even a contract of sale.

The learned trial judge did not 'bother to much easier had he assessed the damages lest he was held to be wrong on the issue of trespaas as it has turned out to be the case. As it is, I would allow this appeal, set aside the judgment of Kato,J substitute a finding that the respondent were guilty of trespass and remit the case to the trial judge to assess the general damages. As for costs I would order that the appellant shall have the costs of the appeal as well as costs incurred in the suit in uhe lower court. assess damages in view of his finding that^thsre was no trespass. In my view it would have made matters

Bated at JAengo this day of 1937.

S. T. KANYINDO VICE-PRESIDENT

> / *!*

#### IN THE COURT OF APPEAL

#### AT MENGO

( Coram: Manyindo V-P. Lubogo Ag. J. A & Odoki J. A )

## CIVIL APPEAL NO. 4 OF 1987

#### **BETWEEN**

SHEIKH MOHAMMED LUBOWA::::::::::::::::::::APPELLANT

$AND$

KITARA ENTERPRISES LTD ::::::::::::::::::RESPONDENT

(Appeal from the judgement of the High Court (Kate J.) dated 19th June 1986

in

Civil Suit no. 129 of 1986)

JUDGM NT OF LUBOGO AG. J. A

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I have had the opportunity of reading in draft the judgment of Manyindo V-P.

I agree with it and I have nothing to add.

$D. L. K.$ LUBOGO AG. JUSTICE OF APPLAL.

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#### IN THE COURT OF APPEAL

#### $AT$ MENGO

(Coram) Manyindo V-P, Lubogo Ag. J. A. & Odoki J. A.)

CIVIL APPEAL NO. 4 OF 1987

BETWEEN

SHEIKH MOHAMMED LUBOWA ::::::::::::::::::::::: APPELLANT

$AND$

$\mathcal{C} \subset \mathcal{S}$

KITARA ENTERPRISES LTD :::::::::::::::::::::::: RESPONDENT

(Appeal from the judgment of the High<br>Court (Kato J.) dated 19th June 1986

$\verb"in"\,$

Civil Suit No. 129 of 1986)

JUDGMENT OF ODOKI J. A.

I had the benefit of reading in draft the judgment for by the learned Vice President and I agree with it and the orders proposed by $\ensuremath{\text{him}}\xspace$ .

Dated at Mengo this. $\mathcal{S}^{\mathcal{N}}$ ... $\mathcal{F}^{\bullet}$ of $\mathcal{F}^{\bullet}$ . $\bullet \bullet 1987.$

$520$ ODOKI

JUSTICE OF APPEAL.

**MANA**

AT MENGO

J. A.) (Coram: Manyindo, V. P., Luboge, Ag. J. A., Odoki,

### CIVIL APPLICATION NO.1/8?

# BETWEEN

RASHID KIEIRIGE APPELLANT

## AND

DR. A LUBEGA RESPONDENT (Appeal from a Judgment of the High Court of Uganda at Kampala (Mr. Kityo,J.) dated 21st June, 1983)

#### RULING OF LUBOGO AG. J. A.

This is an application for restoration of the appeal which was withconsent\* Originally there were two applicationSmade namely for restoration of the appeal and extension of time to appeal under Rules 67 and 4(3) respectively of the Court of Appeal rules. The application by Notice of Motion was supported by affidavit sworn by Miss Kadaga the applicant's consel in which she stated that Mr. C. Kateeba of Katende & Sempebwa 8c Co. Advocates acted without instructions when he withdrew the application; that Mr Y. Nsambu acted negligently in the preparations of the record of appeal, and thirdly that there were seious points of law in the appeal which ought to be adjudicated upon by this court. Counsel for the respondent did not appeai although he was served. The application was thus heard exparte. Counsel confined herself to issue of extension of time. drawn by the former counsel of the applicant without the applicant's

I am mainly concerned here with the withdrawal of appeal and the inportant points of law. In her submission counsel for the applicant stated that the application was withdrawn by mistake and not by fraud and for that reason the application should be reinstated under the provisions of Rule 67(3) of this court's rules.

The historical background of this application for restoration

/2

ears to be that in April 1986 Mr. Kateeba applied successfully for 4 adjournment on behalf of the applicant on the ground that he was not ready to proceed as he had no time to prepare the case since he was instructed. On July, 18th 1986, counsel sought for another adjournment in order to enable him to consult with the applicant. This application was refused whereupon counsel for the applicant said,

> "In the circumstances I would ask for leave of this court to with draw this application."

Leave to withdraw the application was granted. It appears from the foregoing that counsel's intention was to ask for an adjournment in order to consult his client and when the application was refused he acted on his own and asked for withdrawal of the application for which he had no instructions from the applicant.

In this regard I would like to refer to A. P. C. Lobo & Another v. Saleh Salim Dhiyebi & Others (1961) E. A. 223. In that case the appellants who were farmers sued the respondents as personal representatives. At the trial, the second and third respondents were by consent released from attendance. Evidence having been given in support of the claim the first respondent was called for the defence. He said that neither he nor the other respondents knew anything of the case. The respondent's counsel then sought an adjournment to call the other two respondents to say that nól they had given instructions for the defence. The adjournment was refused and the magistrate thereupon entered judgment for the appellants. On appeal to the High Court it was held that the trial magistrate should not have given judgment without ascertaining that the respondents advocate had clased his case. Against this decision both parties aprealed to E. A. Court of Appeal. O'Connor, P. said,

> "An advocate who appears for a client in a contested case is retained to advance or defend his client's case and not his own. This he must do strictly upon instructions and with a scrupulous regard to professional ethics. Remembering that he is an officer of the court and owes a duty to the court as well as to his client he must never knowingly mislead the court as to the facts or the law."

It appears to me that Mr. Kateeba was not advancing his client's

$\cdots \qquad \cdots \qquad \cdots \qquad \cdots \qquad \cdots$ $\cdot\cdot\cdot$ stensible or apparent authority of the advocate (see Hansraj Ranma'i hah *v.* Westlands & General Stores Properties Ltd, and Another (1965) . A. 642.

As regards serious points of lav/ counsel submitted that litigation started 25 years ago in the now defunct Buganda Principal Court up to .ov/ passing through various courts of law. Probably, the argument on ihis issue would be jurisdiction or some other matters relevant to this :ase.

I would therefore, allow the application to restore the appeal. Josts to abide the result of the appeal.

DATED this *>..* day of 1987.

David 1. K. Lubogo, AG. JUSTICE OF APPEAL.