[2025] UGHC 264

### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT MBALE

### CIVIL APPEAL NO. 58 OF 2024

## (Arising from Kapchorwa Civil Suit No. 0021 of 2018)

#### REGISTERED TRUSTEES OF SEBEI

## DIOCESE AT CHEMWANIA CHURCH OF UGANDA ::::::::::::::::::: APPELLANT **VERSUS**

## SATYA FRANCIS :::::::::::::::::::::::::::::::::::: (Administrator of Estate of the Late Stefano Mangusho)

#### **BEFORE: HON. JUSTICE LUBEGA FAROUQ**

#### **JUDGMENT**

#### 1. Introduction

2. The Plaintiff/Respondent instituted Civil Suit No. 0021 of 2017 against the Defendant/Appellant for a declaration that he is the rightful owner of the suit land measuring approximately 15 acres, vacant possession, permanent injunction, general damages, mesne profits and costs of the suit.

#### 3. Background

the lower were that the facts in court 4. The Respondent's Plaintiff's/Respondent's grandfather, the late Stefanu Mangusho Arapnakitari was the rightful and lawful customary owner of approximately 15 acres of land located in Kaplakatet village, Chebinyiny Parish, Kaptum Sub-County, Kween district, having been in full possession of the same since time immemorial. The suit land is neighbored by Sundet River in the East, Yonasan Siwa in the West, Sundet River in the North, Kween-Bukwo main road in the South.

- 5. That the suit land was acquired by the late Stefanu Mangusho Arapakitari who was in possession of the same till his death in 1995 and the said land remained under his children and later the grandchildren. However, the defendant/Appellant through its leaders and or agents have embarked on encroaching on the suit land without the consent of any family member and continued to encroach on the land despite several unconditional demands to stop. - 6. The Appellant in its written statement of defence denied the Respondent's allegations and averred that the suit land and property is and has always been the property of the defendant and continues to enjoy possession of the same. It contended that upon acquiring the suit land and property, it established a permanent church structure Chemwania Child Development Centre, Chemwania Primary School, Chemwania High School, Chemwania Technical School and the residential premises of the Reverend, whereas the other part of the suit land and property is being utilized for crop cultivation for the benefit and sustenance of the staff which land it has utilised for over 78 years.

#### 7. Issues for trial court's determination were-

- (a) Who is the lawful owner of the suit land and if so, which size? - (b) Whether there was trespass and if so, by who? - (c) What remedies are available to the parties? - 8. The trial magistrate found that the Respondent proved on the balance of probabilities that the suit land forms part of the estate of late Stefanu Mangusho Arapnakitari, declared the Appellant a trespasser, awarded the Respondent general damages of Ugx: $10,000,000/$ = and costs of the suit. - 9. The Appellant was dissatisfied with the above decision hence, this appeal.

#### 10. Grounds of appeal

- (a) The learned chief magistrate erred in law and fact when he held that the Appellant is a trespasser; - (b) The learned chief magistrate erred in law and fact when he considered the Respondent's evidence in isolation of the Appellant's evidence;

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- (c) The decision of the learned chief magistrate has occasioned a substantial miscarriage of justice. - 11. The Appellant prayed that the appeal be allowed, the judgment and decision of the lower court be set aside and the appellant be awarded costs here and in the court below.

#### 12. Legal Representation

- 13. Counsel Luchviya Faith and Bourn Wetaka represented the Appellant whereas Counsel Masaba Ayub holding brief for Tonny Okweny represented the Respondent. - 14. At the hearing of 24^th of March, 2025, both counsel prayed to proceed by way of written submissions. Court granted their prayer and they both complied. I will refer to their submissions as and when necessary in this judgment.

### 15. Preliminary objection

- 16. Counsel for the Appellant raised a point of law concerning the legality of the lower court proceedings and this appeal. She argued that it is the duty of an advocates under Regulation 17 of the Advocates (Professional Conduct) Regulations 295-2 to inform court about the propriety of the proceedings before it. - 17. She cited the case of Ham Enterprises Limited and 2 others V. Diamond Trust Bank (U) Limited and Another (Civil Appeal No. 13 of 2021) (2023) UGSC 15 (6 June 2023), where it was stated that-

"It is a well settled principle of law that a point of law and the issue of illegality is one such point which may be raised at any stage of the proceedings... Hence, a plea of illegality can be raised at any stage of the proceedings... as long as the adversary in the suit is accorded the opportunity to exercise the right to be heard on the matter, which would ensure they do not suffer the prejudice and miscarriage of justice that would result there from.

The issue of illegality may become apparent much later from the evidence adduced before court, without it having been pleaded. Court before which such revelation occurs is under duty to deal with the issue: notwithstanding that it had not been pleaded."

- 18. In light of the above authority, counsel contended that the illegality in the lower court proceedings has become apparent at this stage during the appeal. She submitted that the lower court suit was filed in the names of "Registered Trustees of Sebei Diocese Chemwania Church of Uganda" as the defendant, however the defendant is not a corporate body and in essence, it cannot sue or be sued. Counsel further submitted that according to the amended plaint which was received in the lower court on $12^{th}$ of March, 2018, under paragraph 2 thereof, the defendant is described as a registered entity with capacity to sue and be sued in its own. - 19. Counsel for the Appellant further cited the case of **Malinga & 6 other V.** Kaochorwa Moslem Supreme Council - 20. (Civil Appeal No. 194 of 2018 [2025] UGHC 24 (28 January 2025], where it was observed that- "It is a well settled position of law that a plaintiff has a right to sue whoever he or she holds a cause of action against. However, in the matter proceeded against a company, the plaintiff is expected to preliminarily first ascertain from the Registrar of companies to establish the existence and the correct name of the company he or she *intends to institute a suit against."* - 21. Relying on the above authority, counsel submitted that this court in that authority went ahead to inquire from the record of the lower court and noted that it was the duty of the Plaintiff to prove the Respondent's legal status. She stated that court concluded that the burden to ascertain and prove the legal personality of the Respondent was on the Appellants who indicated in their pleadings that the Respondent is a body corporate which can be sued. - 22. Counsel submitted that the lower court suit was not tenable for the obvious fact that the Respondent (defendant) is devoid of legal personality to sue or be sued in that capacity. He argued that a suit

instituted in the name of the company that does not appear in the register book of the Registrar of companies is a nullity and is not tenable at law and an illegality, if proven, taints a suit or any relief granted by the court and if brought to the attention of court, it overrides all the manner of pleadings.

- 23. She referred to Makula International Limited V. His Emminence Cardinal Nsubuga and Anor Civil Appeal No. 4 of 1981 and prayed that the suit together with the appeal be dismissed with costs to the Appellant. - 24. Counsel for the Respondent on the other hand submitted that the Appellant's preliminary objection is baseless and it is intended to waste court's time as their preliminary objection does not hold any weight. He argued that this court has never inquired about the status of the Appellants legal entity. - 25. Counsel submitted that the Appellant is just raising a new matter which is not supported by any evidence to that effect yet from the lower court, they defended the main suit and no issue was raised to ascertain the legal entity of the Appellant (Registered Trustees of Sebei Diocese at Chemwania Church of Uganda) - 26. He submitted that the Appellant has not adduced any evidence to show that the Respondent sued an entity which does not exist or which cannot sue or be sued in its capacity as a legal entity. He argued that the Appellant is alleging that the Appellant is not a legal entity however, they also filed this instant appeal in the name of a non-registered entity. - 27. Counsel submitted that the Respondent rightly sued the Appellant in its legal capacity as it was rightly described by the Respondent/Plaintiff in his plaint. - 28. He cited Article 18 of the Church of Uganda Provincial Constitution 1972 as amended in 1994 and 2016 which provides for registered trustees of the Church of Uganda as follows-

- "There shall be a board of the Registered Trustees of the Church of $(i)$ Uganda which shall be incorporated under the Trustees *Incorporation Act.* - The Registered Trustees of the Church of Uganda shall have $(ii)$ perpetual succession and shall sue and be sued in its corporate name - (iii) - $(iv)$ - The function of the Registered Trustees of the Church of Uganda" $(v)$ shall be as follows- - (a) To hold all lands, property, funds and endowments of the Church of Uganda as may lawfully be entrusted to it for any specified purpose or for the general benefit of the Church of Uganda - (b) To give effect to this trust, attaching to any land, property or endowment being held pursuant to the provisions of this Article". - 29. Following the above provision of the law, counsel submitted that from the above article, it is clear on the legality of the Registered Trustees of Sebei Diocess at Chemwania Church of Uganda (Appellant) in which the Appellant was stating that it was not a legal entity. He argued that from the above instrument, the registered trustees of church of Uganda was established for specific purpose and the capacity to sue or be sued is confined strictly to the functions for which it was created and established. - 30. Counsel further cited section 2(1) of the Trustees Incorporation Act Cap 271 as amended which provides that-"Trustees or a trustee may be appointed by anybody or association of persons established for any religion, educational, literacy, scientific, social. Athletic, charitable or other lawful purpose or any persons who have constituted themselves for any such purpose, may apply in the manner provided in this Act, to the Minister for a certificate of registration of the trustees or trustee of such body or association of persons as a corporate body."

$\mathsf{6}$ Minister for a certificate of registration of the trustees or trustee of such body or association of persons as a corporate body."

- 31. Counsel submitted that the Respondent / plaintiff filed the case against the Appellant as a registered entity which is responsible for land management as it is provided for under Article 18 (5) of the church of Uganda Provincial Constitution as the Respondent was also claiming for recovery of the land from the Appellant. - 32. In rejoinder counsel for the Appellant submitted that she did not participate in the lower court but she was only instructed on appeal. She contended that the day the matter came up for hearing on 24^th February, 2025 is when she filed their notice of instruments. She prayed that court disregards the Respondent's submissions in that respect. - 33. Counsel submitted that it is not the duty of the Respondent to produce such evidence instead that duty was on the plaintiff (now Respondent). He cited Malinga & 6 others V. Kapchorwa Moslem Supreme Council (Supra) for the proposition that the plaintiff in paragraph 2 of his amended plaint in the lower court which was filed on 12^th March, 2018 did plead that the defendant is a registered entity with capacity to sue and be sued. She argued that going with that authority, the plaintiff had the burden of proof and even in this appeal he has failed to discharge that burden by presenting a certificate of incorporation or a report from the the legal existence $\overline{of}$ the to prove Register of Companies Defendant/Appellant. - 34. Counsel further submitted that the Appellant is not a legal entity but it filed the instant appeal in the name of a non-registered entity. She argued that this is a clear admission by the Respondent that the Appellant is a non-existent entity. - 35. Counsel submitted that the Respondent went ahead to make reference to Article 18 of the Church of Uganda Provincial Constitution 1972 as amended in 1994 and 2016 which provides for the Registered Trustees of the Church of Uganda... for the submission that the said article is what

gives the Registered Trustees of Sebei Diocese Chemwania Church of Uganda legal existence. Following that submission, counsel argued that article 18(1) of the aforementioned constitution makes it mandatory for the board of the Registered Trustees of the Church of Uganda to be incorporated under the Trustees Incorporation Act.

- 36. She submitted that unless that particular institution is incorporated or registered, it is just a name on paper but for purposes of suing and being sued, it has no capacity. - 37. She further submitted in rejoinder that registration is only proved by a certificate of registration or incorporation and neither of those has been furnished in respect to the defendant. While referring to the long title of the Trustees Incorporation Act Cap 271, counsel stated that the trustees that want to rely on the Act or associate themselves with it, must be incorporated.

## 38. Determination of court

39. Section 2 of the Trustees Incorporation Act Cap 271 provides that-

$(1)$ Trustees or a trustee may be appointed by anybody or association of persons established for any religious, *educational, literary, scientific, social or charitable purpose,* and such trustees or trustee may apply, in the manner hereafter mentioned, to the Minister for a certificate of registration of the trustees or trustee of such body or *association of persons as a corporate body.*

(2) If the Minister, having regard to the extent, nature and objects and other circumstances of such body or association of *persons, considers that incorporation expedient, he or she may grant such certificate accordingly, subject to such conditions or* directions generally as he or she shall think fit to insert in the certificate, and particularly relating to—

(a) the qualifications and number of the trustees; (b) their tenure and avoidance of office;

(c) the mode of appointing new trustees;

(d) the custody and use of the common seal;

(e) the amount of the land which the trustees may hold; and

(f) the purposes for which that land may be applied.

(3) The trustees or trustee shall thereupon become a body corporate by the name described in the certificate, and shall have perpetual succession and a common seal, and power to sue and be sued in the corporate name, and subject to the conditions and directions contained in the certificate to hold and acquire, and, by instruments under the common seal, to convey, assign and demise any land or any interest in land now or hereafter belonging to, or held for the benefit of, such body or association of persons, in such and the like manner, and subject to such restrictions and provisions, as such trustees or trustee might, without such incorporation, hold or acquire, convey or assign, or demise the same for the purposes of such body or association of persons".

40. Section 3 of the same Act provides that-

"The certificate of incorporation shall, subject to compliance with any law for the time being in force relating to the registration of title to land, vest in the body corporate all real and personal estate, of what nature or tenure soever, belonging to or held by any person or persons in trust for that body or association of persons, and thereupon any person or persons in whose name or names any stocks, funds or securities shall be standing in trust for the body or association of persons, shall transfer those stocks, funds or securities into the name of that body corporate, and all covenants and conditions relating to any such real estate enforceable by or against the trustees of that real estate before their incorporation shall be enforceable

to the same extent and by the same means by or against them after their incorporation."

41. Section 8 of aforementioned Act provides that-

"A certificate of incorporation granted under this Act shall be conclusive evidence that all the preliminary requisitions herein contained and required in respect of the incorporation have been complied with, and the date of incorporation mentioned in the certificate shall be deemed to be the date at which incorporation has taken place."

- 42. On reading of the above provisions of the law, it is clear that for any group established for religious, education, science, association or group of persons to be called Registered Trustees or trustee must be registered. After registration, such a group or association is issued with the certificate of incorporation by the Minister. - 43. Section 2(3) stipulates that the trustees or trustee after complying with the registration requirements, it shall thereupon become a body corporate by the name described in the certificate, and shall have perpetual succession and a common seal, and power to sue and be sued in the corporate name subject to the conditions and directions contained in the certificate. - 44. Section 8 further states that the certificate of incorporation shall be the conclusive evidence that all the requirements of incorporation have been complied with and deemed an incorporated body. - 45. In this case, the Respondent/ Plaintiff sued the Appellant on 12^th of March, 2018 as per the amended plaint under paragraph 2 as " $a$ registered entity with capacity to sue or be sued in its own respective capacity and located in Chemwania village, Chemwania Parish, Kaproron Sub County, Kween district, and the plaintiff undertake to effect service of court process upon the defendant."

- 46. The above paragraph indicates that the Respondent sued the Appellant as a registered entity but did not attach any certificate of registration to prove it's a legal person/ entity capable of being sued. - 47. Counsel for the Respondent referred to Article 18 of the Church Provincial Constitution 1972 as amended in 1994 and 2016 but on proper reading of the said article, it states that- there shall be the registered trustees of the Church of Uganda which shall be incorporated under the Trustees Incorporation Act. The Respondent sued the Appellant as a Registered Trustees of Sebei Diocese at Chemwania Church of Uganda, but no such certificate of registration as required under the said article was tendered in court. - 48. Section 101 of the Evidence Act Cap 8 provides that-

"(1) whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he or she asserts *must prove that those facts exist.*

(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."

49. Section 102 of the same Act provides that-

"The burden of proof in a suit or proceedings lies on that person who would fail if no evidence at all were given on either side."

- 50. In this case, it was the Respondent who sued the Appellant as s registered entity and for that reason, upon contention of its legality by the opposite party, it became a burden of the Respondent to prove the same. - 51. I am aware that in the trial court, the matter proceeded to its conclusion without the Appellant raising the said issue but only raised it on appeal. In response to that contention, counsel for the Appellant stated that he was not the counsel for the Appellant in the lower court. - 52. Secondly, the position of the law is that, an illegality can be raised at any stage of proceedings and once upheld, it overrides all proceedings including admissions.


53. In the case of Makula International Ltd V. His Eminence Cardinal Nsubuga & Anr CACA No.4 of 1987 cited in the case of Kisugu Quarries V The Administrator General SCCA No.10 of 1998, court held that-

> "a court of law would not allow an illegality that escaped the eyes of the trial court to cause undesirable consequences and that a court cannot sanction what is illegal and an illegality once brought to the attention of the court overrides all questions or all matters pertaining thereto"

- 54. Therefore, the Respondent having failed to prove that the Registered Trustees of Sebei Diocese at Chemwania Church of Uganda is a registered entity, it implies that Civil Suit No. 0021 of 2018 proceeded against a nonexisting party, which in effect nullifies all the proceedings right from the trial court to this appeal. (See: Malinga & 6 others V. Kapchorwa Moslem Supreme Council (Supra). - 55. In the circumstance, I find that Registered Trustees of Sebei Diocese at Chemwania Church of Uganda is a non-existing party. - 56. The above finding has in effect disposed of the entire appeal. - 57. Subsequently, Civil Suit No. 0021 of 2018 and Civil Appeal No 58 of 2024 are struck off the court record. - 58. Since the Appellant is a non-existing party, no costs are awarded. I so order.

**LUBEGA FAROUQ** Ag. JUDGE

Judgment delivered via the emails of the Advocates of the parties on 8^th *day of May, 2025*