[2021] UGSC 24

#### THE REPUBLIC OF UGANDA

#### IN THE SUPREME COURT OF UGANDA AT KAMPALA

(Coram: Opio-Aweri, Tibatemwa-Ekirikubinza, Mugamba, Muhanguzi, Chibita, $JJSC$

### CIVIL APPEAL NO.16 OF 2019.

HELLENA NAMAZZI ...................................

#### **VERSUS**

#### 1. BANADDA KAYONDO KIWANUKA

2. SSEMAKULA SULAIT

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#### 3. COMMISSIONER FOR LAND REGISTRATION .......... RESPONDENTS $10$

(Appeal and cross-appeal from the judgment of the Court of Appeal at Kampala before Alfonse Owiny-Dollo, DCJ, Kakuru, Percy Night Tuhaise, JJA in Civil Appeal No. 289 of 2016 dated 22^nd November 2019)

#### JUDGMENT OF EZEKIEL MUHANGUZI, JSC

This is an appeal by Hellena Namazzi, the appellant, against the 15 decision of the Court of Appeal which dismissed the appellant's appeal against the decision of the High Court at Kampala (Masalu Musene, J) dated 20^th October 2016. There is also a cross-appeal by the 1^st and 2^nd respondents, Banadda Kayondo and Ssemakula Sulaiti, against the said decision. 20

# **Background**

The facts giving arise to this appeal as found by the two lower courts are that the appellant was the plaintiff at the High Court and contended in her plaint that she was the owner of 3.5 acres of land part of what was formerly known as Kyadondo Block 222 Plot 26 situate at Namugongo. She claimed that she purchased the land some time in 1963 from one Enoka Seremba the registered proprietor at the time.

It was her claim also that she inherited one acre of land, also part of Kyadondo Block 222 Plot 26, from her husband the late Canon Eli Sserwanga who had in 1950's purchased it from one Erisa Musoke. who had earlier obtained title from Enoka Batulabudde, the grandfather of Enoka Seremba referred to above.

The appellant did not at any time demarcate, alienate and or transfer the said parcels of land into her names or names of her deceased 35 husband's estate. She stated in her plaint that Kyadondo Block 222 Plot 26 measured 7 acres, out of which 4.5 acres belonged to her.

In 2013 the 1^st respondent obtained letters of administration of the estate of late Andereya Walabyeki, his grandfather, who had acquired title by registration from Enoka Batulabudde the 40 grandfather of Enoka Seremba. He sold the land to the 2^nd respondent who had it transferred into his own names on 22^nd November 2005. For clarity, Enoka Batulabudde was the registered proprietor of Kyadondo Block 222 Plot 26 on 15^th December 1964. This land was transferred from his name to that of Andereya 45 Walabyeki on 6^th September 2002 and subsequently to the name of the $1^{st}$ respondent on $19^{th}$ May 2005.

On 22^nd November 2005 the land was transferred to Ssemakula Sulaiti, the 2^nd respondent herein. The appellant alleged fraud against the respondents contending that the first respondent had obtained a forged succession certificate of the late Andereya Walabyeki, which he used to have the land transferred into his name and that the $2^nd$ respondent was not a bonafide purchaser for value without notice.

She sought cancellation of the instruments of transfer, and a 55 declaration that she was the owner of 3.5 acres of the suit land in her own right and the beneficial owner of the one acre of the same land

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by virtue of inheritance form her deceased husband, the late Sserwanga. The respondents denied all the allegations.

- The learned trial Judge found that the appellant's claim was 60 unsustainable and dismissed it. He also found that the 2^nd respondent was a bonafide purchaser for value without notice. It was his finding also that no fraud had been proved against the 1st respondent from the 2^nd respondent's acquired title. - The learned trial Judge went on to find that one Rex Rages Ssemulya 65 the appellant's son was entitled to 0.5 acres of the suit land from the $2^nd$ respondent as a result of an agreement between the two parties.

The $1^{st}$ and $2^{nd}$ respondents filed a cross appeal against that finding contending that the said Rex Ssemulya provided no consideration for the said 0.5 acres. They cross appealed also against the decision by the trial court not to award costs to them at the trial following the dismissal of the appellant's suit against them.

Being dissatisfied with the decision of the learned trial Judge, the appellant appealed to the Court of Appeal against the whole judgment of the trial court on 15 grounds, namely: -

- $"1.$ That the learned Judge erred in law and fact when he found that the appellant had failed to prove ownership of the claimed land whereas she has been and remains in uncontroverted occupation of the same land for over 40 years. - $2.$ The learned trial Judge erred in law and fact when he found that the appellant had not proved boundaries of her land whereas he declined, ignored and or neglected to visit the locus in quo to establish the physical location of the suit land and the way it is occupied. - 3. The learned trial Judge erred in law and fact when he failed to evaluate the appellant's evidence alongside that of the

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respondents and wrongly declared that the 1^st respondent had not been proved to have forged any document which gave him title to the suit land and was not guilty of any fraud whereas there was plenty of evidence led by the plaintiff to prove forgery and or fraud.

- The learned trial Judge erred in law and fact when he ordered $4.$ that 0.5 acres of land be transferred to a one Rex Semulya a son of the appellant in contradiction with his own finding that the appellant had not proven ownership of the suit land. - The learned trial Judge erred in law and fact when he exercised $5.$ his discretion injudiciously in awarding 0.5 acres on(sic) land to Rex Semulya who was never a party to the proceeding and in thereby arrogating to Court powers it did not have. - The learned trial Judge erred in law and fact in purporting to **6.** note observation of demeanour of a witness when he noted prejudicially and incorrectly that PW5 took 30 minutes without answering questions relating to paragraphs 4 $(k)$ & $(j)$ of his witness statement whereas no such thing happened. - The learned trial Judge erred in law and fact when he found as a 7. 105 fact that the conviction of the $1^st$ respondent of forgery had been set aside by the High Court judgment of Justice Lameck Mukasa in a criminal matter thereby refused failed/ignored to evaluate the evidence before him as a judge of Court of co-equal *jurisdiction in different cause of action of a civil nature.* - The learned trial Judge erred in law and fact when he found that 8. the appellant had failed to prove that the $2^nd$ respondent had cut her crops and was a bonafide purchaser of the suit land because no case of malicious damage to property had been reported at Police against him. - The learned trial Judge gravely misdirected himself to the 9. extreme prejudice of the appellant when he deliberately/by honest error arrogated to her witness word they not utter.

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| 120 | <b>10.</b> | The learned trial Judge erred in law and fact when he relied on<br>evidence that was never adduced on record and introduced into<br>the record statements/legal propositions that had not been<br><b>pleaded mentioned or proved.</b> | |---------------------------------------------------------------------------------------------------------------------------------------------|------------|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------| | 125 | 11. | The learned trial Judge erred in law and fact in making a finding<br>that was never based on the agreed issues or those borne out by<br>evidence such as when he found without proof that the appellant<br>was not an "official wife". | | 130 | 12. | The learned trial Judge erred in law and fact when he found that<br>if any customary marriage existed between the appellant (who<br>was 90 years at the time she testified) and Canon Serwanga such<br>marriage was illegal. | | | <b>13.</b> | The learned trial Judge erred in law and fact when he held that<br>the appellant had departed from her pleadings. | | | 14. | The learned trial Judge erred in law and fact in finding without<br><i>justification that the appellant had manufactured evidence.</i> | | 135 | <b>15.</b> | The learned trial Judge erred in law and fact when he failed to<br>evaluate the evidence on record or so wrongly evaluated it<br>hereby(sic) arriving at a wrong and unjust conclusion". | | The learned Justices of the Court of Appeal dismissed the appeal and<br>upheld the cross-appeal in respect of the second ground relating to | | |

The learned Justices of Appeal ordered that the file be returned to the High Court for hearing before another Judge to ascertain whether or not the appellant is a bonafide occupant on the suit land and if so the exact extent of her occupancy. Further, the court ordered a temporary injunction against the respondents and their 145 successors in title from evicting the appellant from the land she occupies and user until the decision of the High Court. The appellant

0.5 acres granted to one Rex Semulya.

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being dissatisfied with the decision and orders of the Court of Appeal appealed to this court on twelve (12) grounds namely: -

- That Court of Appeal erred in law and fact when it proceeded to $"1.$ 150 determine the appeal on the basis of conferencing notes notwithstanding the passionate plea by both counsel for the appellant and respondents 1 and 2 to be heard by oral or written submissions on behalf of their respective clients. - The Court of Appeal erred in law and fact when it held that the $2.$ 155 appellant's claim to be entitled to a title over her land was barred by limitation notwithstanding that she has been and remain in possession of the suit land and is due a certificate of title even by adverse possession. - The Court of Appeal erred in law and fact when it held that the 3. 160 appellant had failed to prove fraud against the $1^{st}$ and $2^{nd}$ *respondents and their title is valid.* - The Court of Appeal erred in law and fact when it held that the $4.$ appellant had not pleaded in the alternative or at all that she was a bonafide occupant of the suit land and that the trial judge in the High court had made no finding on that plea. - The Court of Appeal erred in law and fact when it abdicated its **5.** duty to determine the ground of appeal put forward that the appellant was a bonafide occupant of the land she claims and opted to send this issue back to High Court for retrial when it had power even to call evidence to resolve it - The Court of Appeal erred in law and fact when it failed to 6. evaluate the evidence on record and thereby reached an unjust decision. - The Court of Appeal erred in law and fact in holding that the $7.$ appellant needed to have letters of Administration for her late husband's estate in order to sue in respect of the one acre she claims therefrom.

- The Justices of Appeal erred in holding that the appellant's claim 8. over one acre of land from her husband was caught by limitation. - The Court of Appeal erred in law and fact in holding that the $9.$ appellant would have to seek transfer for her land of 3.5 acres from a holder of letters of Administration of the estate of Andereya Walabyeki if her action was not barred by limitation. - The Justices of appeal erred in law and fact in upholding the 10. cross-appeal on a ground that was on all fours with a ground of appeal yet went on to dismiss the appeal making no mention of this ground of appeal. - The Justices of Appeal erred in law and fact in not deciding the 11. appeal ground by ground yet went on to say it had substantially failed. - The Court of Appeal erred in law and fact in failing to find that 12. the appellant was a bonafide occupant of the suit land even after concluding that the conduct of the $2^{nd}$ respondent proved so.

She prayed that: -

- a) The appeal be allowed with orders that: - Court declares that the appellant is entitled to acquire title over $(i)$ 4.5 acres that she is occupying out of land that was comprised in Kyadondo Block 222 Plot 26 at Namugongo Busaale which was in the name of Enoka Batulabudde. - The $1^{st}$ and $2^{nd}$ respondents each acquired interest in the suit $(ii)$ land by fraud and their titles ought to be cancelled. - in the alternative, the appellant be declared the bonafide owner $(iii)$ of 4.5 acres in her occupation out of the land formerly registered as Kyadondo Block 222 Plot 26 at Namugongo Busaale which was in the name of Enoka Batulabudde.

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b) The respondents 1 & 2 pay costs of this appeal, the Court of Appeal and of the High Court.

The $1^{st}$ and $2^{nd}$ respondents cross-appealed on the following 210 grounds: -

- $u_1$ . **The learned Justices of Appeal erred in law when they ordered** for a retrial of the suit on a matter and for a cause of action that was neither pleaded nor determined by the High Court and in contradiction with their finding that there was no evidence to support such a claim. - The learned justices of Appeal erred in law when they granted a $2.$ *temporary injunction restraining the appellant from evicting the* respondent from the land despite the fact that it was not pleaded nor premised on any application and or was not a around for determination before court."

## Representation

At the hearing of the appeal, the appellant was represented by Mr. Kwemara Kafuuzi and Mr. Ivan Kusiima, learned counsel while the respondents were represented by Mr. Bamweyana Asumani, learned 225 counsel. The appellant was in court. Both parties orally highlighted on their written submissions.

# **Submissions for the appellant**

Counsel for the appellant submitted on grounds 1 and 7 separately, grounds 2, 8 and 9 together, grounds 3 and 6 together, grounds 4,5 230 and 12 together and grounds 10 and 11 together.

### Ground one

Counsel for the appellant submitted that the learned Justices of the Court of Appeal erred in law when they denied the appellant the right to be heard when the panel denied counsel to file written submissions but instead relied on conferencing notes to form their

decision. He argued that his several attempts to ask for court's leave to file written submissions were futile. He cited Caroline Turyatemba & Ors Vs. Attorney General & Anor, Constitutional Petition No. 15 of 2006, where it was held that the right to be heard is a fundamental basic right and that it is one of the cornerstones of the whole concept of a fair and impartial trial.

Further, counsel relied on Rule 28 of the Judicature (Court of Appeal Rules) Directions S 1 13 $-$ 10 that enjoins the court to hear parties by allowing their lawyers where they are represented like in this case to present arguments orally, or in writing, in support of their individual cases.

# Grounds 2, 8, and 9

Counsel for the appellant submitted that the learned Justices of the Court of Appeal erred in law when they held that the appellant's 250 claim to recover her land was barred by limitation. Counsel argued that the appellant filed a complaint with Police in 2003 when she came to know that the 1st respondent as the administrator of the estate of Andereya Walabyeki had started sub dividing and selling part of the land to the $2^{nd}$ respondent. 255

Counsel contended that the appellant's claim arose from the 1st respondent's action and not from the 1^st respondent's predecessor in title as found by the learned Justices of the Court of Appeal. He pointed out that the suit land (4.5 acres) was acquired from the registered Proprietor, the late Enoka Batulabudde through Erisa Musoke who had acquired 1 acre from Enoka Batulabudde and 3.5 acres from Seremba (Kefa Kasigira) the customary heir of Enoka Batulabudde and that none of them was a predecessor in title to the $1^st$ respondent. According to counsel, the appellant is entitled to adverse possession 265 because she has been in occupation of the suit land since the 1950s or 1960s to-date without any body's interference. Counsel argued that the appellant was in an uncontested occupation of 4.5 acres of land for over 21 years and thus an adverse possessor in this case as opposed to the Court of Appeal finding that her suit was barred in 270 law.

# Grounds 3 and 6

It was submitted for the appellant that the learned Justices of Appeal erred in law and fact when they found that the appellant had not proved fraud on the part of both the $1^{st}$ and $2^{nd}$ respondents. 275 Counsel argued that evidence was led at trial and that PW1 and PW2 clearly stated that the 2^nd respondent grew up in the same village where the appellant stays and thus knew where the appellant stayed. Further that PW1 and PW2 testified that the 2^nd respondent constructed an access road through the appellant's land and this put 280 him on notice to inquire into the appellant's interest in the land but he did not. Counsel contended that since the 2^nd respondent did not do any due diligence before purchasing the suit land this makes him a party to the fraud and consequently his title is a nullity as was discussed in David Sejjaaka Nalima Vs. Rebecca Musoke, Civil 285 Appeal No. 12 of 1985.

Counsel faulted the learned Justices of the Court of Appeal for not considering the fact that the High Court did not visit the locus in quo which was important to corroborate the evidence given in court and rule out contentious matters such as the period the appellant had stayed on the land without interruption from the former registered proprietor and subsequently the $1^{st}$ respondent.

Furthermore, counsel faulted the learned Justices of Appeal for not re-evaluating the evidence on record properly. He contended that PE 17, the Register Book from Administrator General and Public Trustee and PE 18, a copy of the Succession Register Book show that the 1^st respondent's grandfather, Andereya Walabyeki was given 3 acres under the certificate of succession No. 33248 in the estate of Enoka Batulabudde contrary to the 1^st respondent's averment that his grandfather Andereya Walabyeki had purchased 6.2 acres on 300 27/7/1934. Counsel pointed out that at the material time there was no system of land registration in Uganda describing land as Reg. No. 33248 out of FC Vol. 198 Folio 8 in 1934 because by then a Torrens system had been adopted under the Registration of Tiles ordinance of 1924. Counsel argued that the sale agreement DEIA tendered by 305 the 1st respondent was adduced fraudulently to defeat the genuine certificate of succession which was in respect of only 3 acres.

# Grounds 4, 5 & 12

It was submitted for the appellant that the learned Justices of the Court of Appeal did not evaluate evidence on record in respect of the 310 appellant's occupancy. Counsel argued that the evidence on record clearly showed that the appellant was a bonafide occupant on the suit land. He pointed out that the appellant pleaded so in her plaint and gave evidence in court to the effect that she and her family had lived on the suit land for over 30 years without contention of any 315 person. Further, that her claim was corroborated by the evidence of PW2, her 56 years old son, who testified that he was born on the suit land as well as photographic evidence of developments she had on the land. Counsel relied on Farm International Ltd. & Anor Vs. Mohammed Harrid, Court of Appeal Civil Appeal No. 16 /1993, 320 where it was held that a party did not have to expressly plead the word fraud provided he pleaded facts that revealed the existence of

fraud. He submitted that like in this case, the appellant did not have to plead bonafide occupancy for court to find so. It was counsel's view that there was sufficient evidence on record before the learned Justices of the Court of Appeal to enable them find that the appellant was indeed a bonafide occupant on the suit land and that there was no need for court to refer back the file to the High Court to determine the issue.

#### Ground 7 330

On this ground, Counsel relied on Israel Kabwa Vs. Martin Banoba Musiga, SCCA No. 52 of 1995, where it was held that a beneficiary of an estate can sue for its protection and argued that in this case also, the appellant did not require a grant in order to sue. Counsel submitted that the evidence on record shows that the appellant was a lawful widow of E. K Serwanga who purchased 1-acre of land from Erisa Musoke and therefore a rightful beneficiary of her late husband's estate.

## Grounds 10 and 11

Counsel for the appellant pointed out that ground 5 of the 340 memorandum of appeal at the Court of Appeal was substantially the same as ground 2 of the cross appeal yet in the court's decision the learned Justices of the Court of Appeal upheld the cross appeal while dismissing the appeal substantially. In his view, this ground of appeal should have succeeded but it was disallowed. Counsel prayed that 345 this appeal succeeds with costs here and in courts below.

# Submissions for the $1^{st}$ and $2^{nd}$ respondents

Counsel for the respondents raised a preliminary objection on a point of law stating that the appellant's grounds of appeal violate rule 82 of this court's Rules which provides that the grounds of

appeal shall set forth concisely and under distinct heads, without argument or narrative the grounds of objection to the decision appealed against. Counsel relied on the decision of Lord Templeman in Ashmore Vs. Corporation of Lloyd's [1992] 2 AllER 486 at pg. 488 and Simon Tendo Kabenge Vs. Barclays Bank (u) Ltd, SCCA No. 17 of 2015 and submitted that grounds 1, 2, and 12 of the appeal are argumentative and should therefore be dismissed pursuant to rule 82 of this court's Rules.

# Ground one.

Counsel for the respondents submitted that this ground is baseless 360 and should be dismissed because the appellant was accorded due hearing. Counsel pointed out that at the hearing, both parties had to present their case orally or adopt conferencing notes but that the parties chose the latter upon which court relied and the evidence on record to come to its decision. 365

## Ground two.

Counsel contended that the issue of adverse possession was not raised for determination at trial and at appeal and that it is being raised for the first time in this court.

Counsel argued that if court is inclined to consider the appellant's 370 line of argument of adverse possession, the argument is without merit because the appellant had never been in possession of the suit land until her son forced entry after filing the suit. Counsel submitted that since the two lower courts found, in fact, that the appellant was not in possession of the suit land, this court ought not to interfere 375 with it.

Counsel submitted further that the appellant did not prove ownership/purchase of 3.5 acres and that she failed to provide

evidence to substantiate the alleged 1963 agreement between her and Seremba. He added that the appellant never took the necessary 380 steps to have her interest registered and thus the alleged agreement cannot sustain a cause of action because it is barred by limitation. Counsel contended that the learned Justices of the Court of Appeal properly evaluated the evidence on record and came to the right decision that the appellant was not a *bonafide* occupant.

# Ground three.

Counsel for the respondent submitted that both in the High Court and at the Court of Appeal the appellant did not prove fraud. He argued that the evidence on record is insufficient to support the allegations of fraud against the 1^st respondent. Counsel pointed out 390 that the appellant did not adduce evidence to prove that the 1^st respondent forged or falsified the succession certificate to obtain title over the suit land as determined in the negative by Justice Lameck N. Mukasa in Criminal Appeal No. 22 of 2012.

Grounds six and twelve. 395

> Counsel for the respondents submitted that the appellant was never in possession of the suit land at the time the $2^nd$ respondent took possession of it. He pointed out that no evidence was led to prove that Seremba whom the appellant allegedly purchased the land in issue from had interest in the land which could be passed on to the appellant. Counsel further submitted that the appellant never produced primary or secondary evidence of the contents of the agreement between her and one Seremba.

It was further argued for the respondents that the appellant's evidence in respect of who she purchased land from was contradictory. He pointed out that in her testimony in court, the appellant stated that she purchased the land from Seremba in the

1960s and that the agreement was witnessed by Mulumba but that earlier on she had informed the local area committee that the land was purchased in 1948. Further counsel pointed out that she 410 testified on oath that the land was purchased during Amin's regime and that the agreement had been witnessed by Seruwagi John and Muyonjo. According to counsel, the appellant did not have regard to the sanctity of the oath administered by a court of law. He cited Gulam & Anor Vs. Jirongo [2007]1 EA 87 in this respect.

In relation to one acre of the land in issue, counsel argued that the appellant failed to prove her marriage with the late Erikana Sserwanga and also failed to account for the location of that one acre. Counsel therefore supported the learned Justices of the Court of Appeal wondering whether the appellant was the only beneficiary 420 to one acre which she allegedly inherited from her husband or that the estate of her late husband was administered and distributed in order to give credence to her claim of inheritance.

# Grounds four and five.

Counsel for the respondents submitted that both grounds are 425 argumentative and offend rule 82 of this court's Rules. He however stated that they were to be submitted on concurrently with grounds 1 and 2 of the cross-appeal. He asked court to dismiss the appeal with costs to the respondents.

### Submissions for the respondents on cross-appeal. 430

# Grounds $1$ and $2$

Counsel for the respondents faulted the learned Justices of Appeal for making orders that were not sought by the appellant. Counsel, however, supported the court's finding that there was insufficient

evidence to determine whether the appellant was in possession of 435 the suit land and the extent of her possession.

Counsel submitted that the Court of Appeal was not justified to order for a retrial and an injunction restraining the appellant from evicting the respondents from the land, which orders were not sought by the appellant in her memorandum of appeal.

Counsel relied on rule 102(c) of the Court of Appeal rules and argued that the court does not have the mandate to decide an appeal on a matter that was not in the pleadings including the memorandum of appeal. Counsel also relied on Ms. Fangmin Vs. Belex Tours & Travel

Ltd, SCCA No. 6 of 2013 and Crane Bank Vs. Belex Tours & Travel 445 Ltd, SCCA No. 01 of 2014, where Odoki, JSC, held that it was erroneous for the Court of Appeal to base its judgment on a cause of action which was neither pleaded nor argued before the court or the High Court.

#### Ground 4 450

Counsel for the respondents faulted the learned Justices of the Court of Appeal for failing to exercise their discretion judiciously and denying the respondents costs without justification.

Counsel argued that since the Court of Appeal dismissed the appeal, it ought to have awarded costs to the respondents as the successful 455 parties. In support of his argument, counsel relied on Muwanga Kivumbi Vs. AG, SCCA No. 6 of 2011, where this court held that costs follow the event unless court orders otherwise for good reason. Counsel asked court to allow the cross-appeal with costs to the respondents. 460

# Appellant's reply to the cross-appeal

On grounds 1 and 2, counsel for the appellant reiterated his submissions of the main appeal on grounds 4, 5 and 12 and added that had the Court of Appeal properly re-evaluated the evidence on record, it would have found that the appellant had pleaded and proved that she was a *bonafide* occupant on the land. He disagreed with submissions by the respondents' counsel that the Court of Appeal did not have the powers to order a retrial or to issue an injunction. He submitted that it is empowered to do so under rules 30 and 32 of the Court of Appeal Rules.

On ground 4, counsel submitted that the Court of Appeal acted judiciously when it did not award costs to the respondents because court also found that the appellant had an interest in the land.

In reply to the preliminary objection, counsel argued that the grounds of appeal do not offend rule 82 of this court's Rules because they simply pointed out a particular error made by the learned Justices of the Court of Appeal. He asked court to dismiss the crossappeal and allow the appeal with costs to the appellant.

## **Consideration by court**

This is a second appeal. This court as a second appellate court has a duty to determine whether the first appellate court properly reevaluated the evidence on record. See: Kifamunte Henry Vs. Uganda, SCCA No. 10 of 1997.

The respondents' counsel raised a preliminary objection on a point of law that grounds 1, 2, 4, 5 and 12 are argumentative and offend rule 82 of this court's Rules and that they ought to be dismissed. The grounds alleged to offend this rule were framed as follows: -

- $"1.$ 490 That Court of Appeal erred in law and fact when it proceeded to determine the appeal on the basis of conferencing notes notwithstanding the passionate plea by both counsel for the appellant and respondents 1 and 2 to be heard by oral or written submissions on behalf of their respective clients. - The Court of Appeal erred in law and fact when it held that the $2.$ 495 appellant's claim to be entitled to a title over her land was barred by limitation notwithstanding that she has been and remain in possession of the suit land and is due a certificate of title even by adverse possession. - $4.$ The Court of Appeal erred in law and fact when it held that the appellant had not pleaded in the alternative or at all that she was a bonafide occupant of the suit land and that the trial Judge in the High court had made no finding on that plea. - $$ The Court of Appeal erred in law and fact when it abdicated its duty to determine the ground of appeal put forward that the appellant was a bonafide occupant of the land she claims and opted to send this issue back to High Court for retrial when it had power even to call evidence to resolve it. - 12. The Court of Appeal erred in law and fact in failing to find that the appellant was a bonafide occupant of the suit land even after concluding that the conduct of the 2^nd respondent proved so."

Rule 82(1) of the Rules provides as follows: -

"82. Contents of memorandum of appeal."

(1) A memorandum of appeal shall set forth concisely and under distinct heads without argument or narrative, the grounds of objection to the decision appealed against, specifying the points which are alleged to have been wrongly decided, and the nature of the order which it is proposed to ask the court to make."

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Counsel for the appellant argued that the grounds simply stated in particular the error made by the learned Justices of the Court of Appeal and that they were not argumentative as argued by counsel for the respondents. In my view, the above grounds offend rule 82 of this court's rules. The grounds do not only specify the error made by court but also state the evidence allegedly ignored/ or decided wrongly by court. Be that as it may, I will proceed to determine the 525 grounds in the interest of justice. See: Kamurasi Charles vs. Accord Properties & Anor, Supreme Court Civil Appeal No. 3 of 1996.

# Ground 1.

Under this ground, counsel for the appellant faulted the Justices of the Court of Appeal for having determined the appeal when the appellants were denied the opportunity to file written submissions which denied them their constitutional right of fair hearing.

As the record indicates, when the appeal was called for hearing, court directed both counsel to adopt their conferencing notes on record. Both counsel conceded to it and filed their list of authorities 535 and judgment was reserved on notice. The record states as follows: -

"Mr. Kafuuzi: my lord, we are ready to proceed with the appeal.

Ms. Mukalazi: my lords, I am ready to proceed.

**Justice Owiny-Dollo:** where do u fall, do you fall under comprehensive legal opinion on record or you seek oral submission in which case will be put...next convenient session or you want to file fresh written submissions.

Mr. Kafuuzi: my lord, we have consulted with my learned friend and we are both comfortable with written submissions, we pray, my lord for directions.

**Justice Owiny-Dollo:** what do you have on record first?

Mr. Kafuuzi: my lord, my notes need supplementing, they need expounding at that time we were just conferencing and those were skeleton arguments.

Justice Kakuru: mr. kafuuzi you have 17 pages of legal opinion, now we are going to put how many our limit is 10 or 15.

Mr. Kafuuzi: my lord, I would pray that I be allowed an opportunity to highlight those submissions, my lord, if court looks at them they were coached as conferencing arguments, they were saying we shall prove and my lord we need to go ahead and do that.

I would humbly pray, my lord that we be given a chance to panel beat our arguments. It is very crucial, my lords. Because those were conferencing arguments, my lord.

**Justice Kakuru:** by the time you draw a memorandum of appeal you have already...by the time the Judges is...to deliver the judgment a good lawyer you have already formulated the grounds of appeal.

Mr. Kafuuzi: allow me to make one prayer, my lord, I would humbly pray that we be given a very short time and may be a limited number of pages but at least an opportunity, my lords, the best proceeding is oral if I have a chance to explain.

**Justice Kakuru:** then say we want to proceed orally.

Mr. Kafuuzi: my lord, I wouldn't want to opt for that option I would like to have this appeal today.

My lord it is a practice in this court we all file our conferencing arguments but at the time of hearing we are always given a chance to file written submissions. My lords, I pray that we be allowed to have the appeal done today.

**Ms.** Mukalazi: may it please, my lords, I am actually potentially making the same prayer. The only thing that was missing on my part is the authorities.

**Justice Owiny-Dollo**: do you have the authorities with you?

Ms. Mukalazi: yes, I do, my lord.

Mr. Kafuuzi: my lords, I concede and I pray to adopt my conferencing argument, my lord, I would also seek the leave of court to submit my authorities and that is all, my lord.

Justice Owiny-Dollo: very well then judgment will be delivered on notice."

In my view, I find that the appellant was accorded an opportunity to be heard. Counsel had an option of either adopting his conferencing notes or submitting orally or file written submissions in the next session. Counsel chose his case to be heard on that day and later adopted his conferencing notes. I would not fault the learned Justices of the Court of Appeal because along with the conferencing notes they also considered the evidence on record. I would therefore dismiss this ground.

### Grounds 2, 8 and 9.

Counsel contended that the appellant's case was not barred by limitation as found by the learned Justices of the Court of Appeal.

It is well settled law that actions to recover land cannot be brought to court after expiration of 12 years. Section 5 of the Limitation Act 595 provides that: -

### "Limitation of actions to recover land.

No action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or her or, if it first accrued to some person through whom he or she claims, to that person."

The learned Justices of Appeal found that the appellant's claim was premised on a 1963 land purchase agreement alone. Further that the

agreement could not be enforced against the seller's successors in title 12 years after it was executed.

Counsel argued that the appellant had pleaded fraud against the respondents and thus time started running when she got to know of the fraud in 2003 when the 1^st respondent subdivided the land and sold part of the land to the 2^nd respondent.

It is true that the limitation period is postponed in claims involving 610 allegations of fraud as provided by section 25(a) of the Limitation Act. It provides as follows: -

# "Postponement of limitation period in case of fraud or mistake.

Where, in the case of any action for which a period of limitation is prescribed by this Act, either—

(a) the action is based upon the fraud of the defendant or his or her agent or of any person through whom he or she claims or his or her agent;"

In the plaint filed by the appellant which is on record, the appellant pleaded fraud against the $1^{st}$ and $2^{nd}$ respondents. On this basis, I 620 find that the appellant's claim falls under the above section. The limitation period therefore started running when the appellant got knowledge of the alleged fraud. From counsel's submissions, it is stated that the appellant became aware of the respondents' fraud in 2003 and that is the period when she reported the matter to police. 625

However, the claim was brought to court in 2007, four years after she became aware of the fraud. Her claim was thus within time and therefore was not barred by the limitation under section 5 of the Limitation Act, Cap. 80. I find that the learned Justices of appeal erred in law and fact when they found that the appellant's claim to recover 3.5 acres of land was barred in law.

$22$

### 615

On the other hand, counsel for the appellant argued that the appellant had interest in the land by adverse possession. This issue was not pleaded at trial or on appeal before the Court of Appeal. Counsel raised this issue for the first time and I am unable to fault the learned Justices of the Court of Appeal.

In relation to the one acre of land, court found that the appellant's evidence was insufficient to sustain the claim. Also that it was unknown whether or not the late Serwanga's estate was ever administered by anyone under the Succession Act and whether or not it was distributed. The learned Justices advised the appellant to obtain letters of administration and pursue her claim thereafter. I have read and understood the record of appeal and I find no error in the above finding. Accordingly, grounds 2, 8 and 9 succeed in part to the extent that the appellant's claim was not barred by limitation.

## Grounds 3 and 6.

The learned Justices of the Court of Appeal were faulted for not properly evaluating the evidence on record and thus coming to the wrong conclusion that the appellant did not prove fraud against the respondents.

It is a well-known judicial principle that allegations of fraud are so serious in nature that they require to be specifically pleaded and strictly proved before a court of law. And because of its gravity, even in a civil matter, the standard of proof is above a mere balance of probabilities though not necessarily beyond reasonable doubt. See: Hilda Wilson Namusoke & 3 Ors Vs. Owalla's Home Investment Trust E. A Ltd & Commissioner Land Registration, SCCA No. 15 of 2017.

In the instant case, the appellant pleaded fraud in her plaint against the $1^{st}$ and $2^{nd}$ respondents. The particulars of fraud against the $1^{st}$ 660

respondent were that he obtained a false certificate of succession of the estate of the late Enoka Batulabudde, registered the suit land in his names and did not inquire into the interest of the appellant on the suit land. The particulars of fraud against the 2^nd respondent were that he failed to establish the *bonafides*(sic) of the $1^{st}$ respondent and that he did not establish the interest of the appellant who was in possession of the land.

On the issue of fraud, the learned trial Judge found on page 661 of the record of appeal as follows: -

"Whereas counsel for the plaintiff challenged the 1^st defendant's pleading that Andereya Walabyeki, 1^st defendant's grandfather purchased the suit land from Enock Batulabudde, the plaintiff did not *produce any evidence to the contrary.*

Secondly, the plaintiff did not adduce any evidence to prove that the 1^st defendant forged or falsified any succession certificate. Pw4, Nsubuga 675 Augustine the in charge of the succession registrar books and index register books told court that the records introduced Kefa Kasigara as heir of Enock Batulabudde who died on 29.5.1956 and when Nsubuga Augustine was cross examined by counsel for the defendants as to whether the succession certificate was false or not, he stated that he 680 could not tell till he had checked the serial number in the index register. So I agree with the submissions of counsel for the defendant that the plaintiff did not adduce any evidence to prove that the $1^st$ defendant forged or falsified the succession certificate."

The learned Justices of the Court of Appeal found that the evidence 685 adduced by the appellant was insufficient to prove that the 1^st respondent was registered on the title to the suit land through fraud.

Basing on the principle that fraud must be strictly proved beyond the balance of probabilities, I find that the appellant did not prove fraud against the respondents, as found by both lower courts. The 1^st

respondent stated that he was a lawful administrator of the estate of the late Andereya Walabyeki, who had purchased the suit land from the late Enock Batulabudde the registered proprietor at the time. This evidence was not rebutted by the appellant at trial and there was no suit by any other person, probably a beneficiary of the estate of the late Enock Batulabudde, challenging the legality of the $1^{\ensuremath{\text{st}}}$ respondent's registration on the title of the land in issue. I therefore uphold the lower courts' findings that the appellant did not prove fraud against the respondents. I would dismiss grounds 3 and 6.

#### **Grounds 4, 5 and 12.** 700

Counsel faulted the learned Justices of Appeal for failing in their power to call additional evidence and determine whether the appellant was a *bonafide* occupant on the land.

While determining the appeal, Justice Kakuru, JA in his lead judgment at page 30 of the record of appeal noted as follows: -705

> "From the evidence on record, it is possible if not probable that the appellant is a bonafide occupant of the suit land. The fact that the 2^nd respondent was willing to transfer 0.5 acres of land to the appellant's son lends credence to the appellant's claim that she was in occupation of the said land since before 1963. The question is to whether or not the appellant is a bonafide occupant was neither pleaded nor determined by the trial court. My considered view is that Article 126 2(e) of the Constitution requires court to administer substantive justice without undue regard to technicalities. Clearly the appellant's evidence was insufficient to determine whether or not she occupies the suit land and if so the exact extent of her occupancy."

I agree with the appellant's counsel that the Court of Appeal had the power to call additional evidence and determine whether the appellant was a *bonafide* occupant on the land. However, I note that this power is discretionary. The court may decide to call additional

evidence or direct the High Court to take such additional evidence and determine the issue. Section 30 of the Judicature (Court of Appeal Rules) Directions SI 13-10 reads:

"Power to reappraise evidence and to take additional evidence.

(1) On any appeal from a decision of the High Court acting in the exercise of its original jurisdiction, the court may—

- (a) reappraise the evidence and draw inferences of fact; and - (b) in its discretion, for sufficient reason, take additional evidence or direct that additional evidence be taken by the trial court or by a commissioner.

I am therefore unable to fault the Justices of the Court of Appeal for exercising their discretion in the way they did. The power granted in the above section of the rules of the Court of Appeal is discretionary and it is upon the court to decide how best to use it.

I note also that the issue of *bonafide* occupancy was neither pleaded 735 at trial nor was it raised as an issue for determination on appeal. The record shows allegations by the appellant that she was in occupation of the land since 1963. This fact was not proved by her and thus both courts cannot be faulted for an issue that was never proved to their satisfaction. The record does not show whether this issue has ever 740 been determined by the High Court or not. This is a second appeal and this court cannot call such additional evidence to determine the issue. The evidence on record remains insufficient to prove that the appellant is a *bonafide* occupant on the land. I would therefore dismiss grounds 4, 5 and 12. 745

## Ground 7.

Counsel contended that it was wrong for the Justices of the Court of Appeal to hold that the appellant needed letters of administration of her husband's estate in order to sue in respect of the one acre of

land. 750

In her statement on oath tendered in court, the appellant claims interest in one acre of land by virtue of inheritance following the death of her late husband, E. K Serwanga, who acquired the land from Enock Batulabudde, the registered proprietor of the land in issue.

To inherit is defined as "to receive (property) from an ancestor under the laws of intestate succession upon the ancestor's death" (see Black's Law Dictionary, 8^th edition, 2004). Inheritance therefore denotes property received from an ancestor under the laws of intestacy. Inheritance entails a process guided by rules that govern the devolution and administration of a deceased person's estate. It follows that an individual who claims property of a deceased person only by reason of family affiliation does not necessarily claim by inheritance unless and until it is proved that the devolution was in accordance with the relevant law of descent and distribution under custom or enactment.

It was the testimony of the appellant in her written statement on oath that she had five children with her late husband. This evidence discloses multiple would-be beneficiaries of the estate. Yet the appellant does not claim as beneficiary but as owner by inheritance. 770 Having claimed ownership by inheritance, she bore the burden to prove that she acquired the land in dispute following rules that govern the devolution and administration of a deceased person's estate under a specific customary or statutory law. She did not adduce any evidence in that regard. Apart from her averment that 775 she inherited the land, the customary rules and practices or in the alternative compliance with statutory procedures that guide succession to land was never proved. I agree with the Justices of appeal that the appellant needed to have letters of administration to claim ownership of the estate of her late husband. The result of this 780 issue would be different if the appellant had brought her claim as a beneficiary. I would therefore dismiss this ground.

## Grounds 10 and 11.

Under this ground, counsel for the appellant contended that since the learned Justices of the Court of Appeal had noted that ground 5 of the appeal and ground 2 of the cross-appeal were substantially the same, they ought to have upheld ground 5 of the appeal without necessarily dismissing the appeal substantially. Ground 5 of the memorandum of appeal at the Court of Appeal stated as follows: -

$5.$ The learned trial Judge erred in law and fact when he exercised 790 his discretion injudiciously in awarding 0.5 acres on(sic) land to Rex Semulya who was never a party to the proceeding and in thereby arrogating to Court powers it did not have.

The record does not contain a cross-appeal. So I am unable to state verbatim ground 2 of the cross appeal. However, I note from the 795 record that ground 2 of the cross-appeal was challenging the learned trial Judge's decision that one Rex Semulya, a son to the appellant was entitled to 0.5 acres of the suit land, when consideration was not proved.

The ordinary meaning of the word "substantially" is "to a great or 800 significant extent." For the learned Justices of Appeal to state that the appeal had substantially failed, it did not mean that it had failed entirely. They meant that it had failed to a great extent. Court had from the start ruled that the appeal was barred by limitation and had dismissed most of the grounds of the appeal, hence the conclusion 805 that the appeal had substantially failed. Grounds 10 and 11 have no merit and I would therefore dismiss them.

# Grounds 1 and 2 of the cross-appeal.

The respondents fault the Justices of the Court of Appeal for making orders that were not sought by the appellant in the appeal. The two 810 orders contested are an order for retrial and an order for a temporary injunction restraining the respondents from evicting the appellant.

I would resolve this issue by referring to rule 30 of the Court of Appeal Rules. It provides: -815

## "General powers of the court."

(1) On any appeal, the court may, so far as its jurisdiction permits, confirm, reverse or vary the decision of the High Court, or remit the proceedings to the High Court with such directions as may be appropriate, or order a new trial, and make any necessary, incidental or consequential orders, including orders as to costs."

The learned Justices of Appeal found it appropriate to restrain the respondents from evicting the appellant probably because they had ordered for a retrial. The above rule empowers the Justices of the Court of Appeal to make orders that they may deem fit. I would therefore not fault the learned Justices of appeal for ordering for a temporary injunction pending the determination of a retrial. I would therefore dismiss grounds 1 and 2 of the cross-appeal.

## **Ground 4 of the cross-appeal**

Counsel for the respondents faulted the learned Justices of Appeal 830 for denying the respondents the costs.

In his lead judgment Justice Kakuru, JA made no order as to costs stating as follows: -

"I make no orders as to costs here and at the high court for reasons that all parties appear to have been unware of nature and extent of *their respective rights in respect of the suit land(sic)"*

I do not agree with counsel for the respondents that without clear justification court made no order as to costs. Costs follow the event unless court orders otherwise for good reasons (Muwanga Kuvumbi Vs. AG, (supra). In my view, the above reason is clear and justified and I find no reason to interfere with the discretion of the Justices of appeal on that issue. I would also dismiss this ground of the crossappeal.

In the result I dismiss the appeal and the cross-appeal for the reasons explained above.

I would uphold the order made by the Court of Appeal in respect to a retrial on the issue as to whether or not the appellant is a bonafide occupant and, if so, the extent of her occupancy.

I also uphold the order for the temporary injunction against the respondents, restraining them from evicting the appellant from the 850 land she is occupying until the determination of the issue above.

The costs of this appeal shall abide by the outcome of the retrial.

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

**Ezekiel Muhanguzi** JUSTICE OF THE SUPREME COURT.

## IN THE SUPREME COURT OF UGANDA

## **AT KAMPALA**

(Coram: Opio-Aweri, Tibatemwa-Ekirikubinza, Mugamba, Muhanguzi, Chibita, JJSC)

## **CIVIL APPEAL NO. 16 OF 2019**

## **BETWEEN**

HELLEN NAMAZZI::::::::::::::::::::::::::::::::::

### AND

## **BANADDA KAYONDO KIWANUKA & 2 ORS ::::::::RESPONDENTS**

(Appeal from the Judgment of the Court of Appeal of Uganda, Civil Appeal No. 289 of 2016)

## **JUDGMENT OF OPIO-AWERI, JSC**

As all other members of the Court also agree with the judgment and orders proposed by Hon. Justice Muhanguzi, JSC, by unanimous decision this appeal is dismissed.

| Dated at Kampala this | | | | |-----------------------|--|--|--| |-----------------------|--|--|--|

## **OPIO-AWERI** JUSTICE OF THE SUPREME COURT

#### IN THE SUPREME COURT OF UGANDA AT KAMPALA

[CORAM: OPIO-AWERI; TIBATEMWA-EKIRIKUBINZA; MUGAMBA; MUHANGUZI; CHIBITA, JJ. S. C. I

## CIVIL APPEAL No. 16 OF 2019

#### **BETWEEN**

HELLENA NAMAZZI ...................................

#### AND

#### BANADDA KAYONDO KIWANUKA & 2 ORS::::::::::::::::::::::::::::::::::::

[Appeal from the judgment of the Court of Appeal at Kampala before (Owiny-Dollo, DCJ; Kakuru and Tuhaise, JJA) dated 22^nd November 2019 in Civil Appeal No. 289 of 2016.

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

I have had the benefit of reading in draft the judgment of my learned brother, Hon. Justice Ezekiel Muhanguzi, JSC.

I am in agreement with his analysis and conclusion that the appeal be dismissed. I am also in agreement with the orders he has proposed.

Dated at Kampala this ......... day of September 2021.

Isakemure PROF. LILLIAN TIBATEMWA-EKIRIKUBINZA JUSTICE OF THE SUPREME COURT.

# IN THE SUPREME COURT OF UGANDA AT KAMPALA

[CORAM: OPIO-AWERI, TIBATEMWA-EKIRIKUBINZA, MUGAMBA, MUHANGUZI & CHIBITA. JJ. S. C.]

## CIVIL APPEAL NO. 16 OF 2019

#### **BETWEEN**

HELLEN NAMAZZI :::::::::::::::::::::::::::::::::::

AND

# **BANADDA KAYONDO KIWANUKA & 2 OTHERS ::::::::RESPONDENTS**

[An Appeal from the judgment of the Court of Appeal in Civil Appeal No. 289 of 2016)

# **JUDGMENT OF HON. JUSTICE MUGAMBA, JSC**

I have had the benefit of reading in draft the judgment prepared by my learned brother Hon. Justice Muhanguzi, JSC. I agree with his reasoning and the orders he proposes.

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

PAUL KAHAIBALE MUGAMBA JUSTICE OF THE SUPREME COURT

## IN THE SUPREME COURT OF UGANDA

### **AT KAMPALA**

## (CORAM: OPIO-AWERI, TIBATEMWA-EKIRIKUBINZA, MUGAMBA, MUHANGUZI, CHIBITA, JJSC.)

### CIVIL APPEAL NO: 16 OF 2019

#### **BETWEEN**

<table>

HELLEN NAMAZZI :::::::::::::::::::::::::::::::::::: AND

BANADDA KAYONDO KIWANUKA & 2 ORS :::::::::::::::::::::::::::::::::::

[Appeal from the Judgment of the Court of Appeal of Uganda, Civil Appeal No. 289 of 2016]

## **IUDGMENT OF CHIBITA, ISC**

I have had the benefit of reading in draft the judgment prepared by my learned brother, Hon. Justice Muhanguzi, JSC and I agree with his reasoning and his conclusions. I also agree with the orders he has proposed.

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

Hon. Justice Mike Chibita

**IUSTICE OF THE SUPREME COURT**