[2025] UGCA 175

#### THE REPUBLIC OF UGANDA

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

(Coram: Asa Mugengi, Musa Ssekaana and Stella Alibateese, JJA) CIVIL APPEAL NO. 79 of 2O21

[Arisins from Civil Suit No. 58 of 2O16. Hieh Court. Mpieil

#### 10 RWASHANDE & 9 OTHERS : : : : : : : : : : : : : : : : : : : : ! : : : : APPELLANTS VERSUS

KAYIWA VICENT RESPONDENT

fAppeal from the Judgnent oJ Cornella Kdkooza Sablltl J, at the Htgh Court of Uganda at Mplgl dated 76th December 2O2O)

#### JUDGMENT OF STELLA ALIBATEESE. JA

## Introduction

20 25 This is a first appeal arising from the decision of Cornelia Kakooza Sabiiti J, at the High Court-Mpigi dated 16th December 2O2O which dismissed the suit of the appellants, and declared the respondent as the rightful owner of the suit land comprised in Block 74, Plot 6 Gomba (now plots 38-44) land at Lwaweba/ Nkondo, Maddu sub county, declared the appellants trespassers on the suit land, issued a permanent injunction against the appellants, their agents, assignees and transferees or any one claiming from them from using, selling or in any way interfering with the suit land, ordered for cancellation of the deed plans and lease offers issued by Mpigi District Land Board to the appellants from the surveys in respect of Gomba Block 75 plots 14, 15, 16 and 18, awarded the respondent 30


general damages to the tune of UGX 3O,000,O0O and costs of the sult.

#### Background

- 5 The brief background of the appeal as ascertained from the record is that the appellants assert that they are the rightful owners of 380 acres of land situate in Lwaweba Nkondo, Maddu Sub county Gomba by virtue of lease offers granted to them in 2O09 by Mpigi District Land Board. The appellants began the survey process of - the suit land to prepare for the deed plans and issuance of the certificates of title but this process was halted by the respondent on the basis that he had been granted a full term lease over the said land by Uganda Land Commission and had in 1981 obtained ^a certificate of title for land comprised in Gomba Block 7 4 , Plot 6, for 10

777 hectares which was inclusive of the suit land. 15

The appellants sued the respondent in the High Court praying for cancellation of his certificate of title procured by fraud, eviction, permanent injunction, general damages for trespass and costs of 20 the suit.

The respondent denied the allegations of fraud and averred that he is the registered proprietor of the land comprised in LRV 1 140 Folio 4, Gomba Block 74, Plot 6 at Lwaweba Nkondo, Kagenyi which has since been subdivided into plots 36, 38, 40, 41, 42 and 44. The respondent hled a counter claim against the appellants claiming for a declaration that he is the rightful owner of the suit land, that the appellants are trespassers and prayed for vacant possession of the land on certificate of title.

The Court dismissed the suit, allowed the counterclaim and awarded the respondent general damages of UGX 30,0O0,000 and

@

costs. Dissatisfied with the said judgment and orders of the Court, the appellants appealed to this Honourable Court.

#### Grounds of Appeal

5 The appellants raised the following grounds of appeal;

> 1. The Learned Trial Judge erred in law and fact when she failed to properly evaluate the evidence on court record before her and thereby arrived at a wrong decision that she was unable to find that fraud was proved against the respondent in the acquisition of the lease certificate of title for the suit land to the standard required.

2. The Learned Trial Judge erred in law and fact when she held that the appellants were trespassers on the suit land when they lawfully obtained lease offers issued by Mpigi District Land Board.

3. The Learned Trial Judge erred in law and fact when she ordered for cancelation of the lease offers issued by Mpigi District Land Board to the appellants and in condemning them in general damages and costs.

'10

### Representation

At the hearing of the appeal, the appellants were represented by Mr Eric Muhwezi and Mr. Atwine Muhwezi while the respondent was represented by Mr. Nuwagira Gerald, Mr. Asiimwe Davis Balirye and Mr. Agaba James.

On the application of counsel, the conferencing notes for the parties were adopted by this honourable court as their written submissions.


#### Analvsis and Determination

# Submissions of the Appellants Ground One

- 5 The appellants submitted that the learned trial judge erred in law and fact when she failed to properly evaluate the evidence on court record before her and thereby arrived at a wrong decision that she was unable to find that fraud was proved against the respondent in the acquisition of the lease certificate of title for the suit land. - 10 Further that the learned trial judge misapplied the precedent of Kampala Bottlers Ltd V Damanico lU) Ltd, SCCA NO 22 OF 1992 and did not address herself to the detailed submission of the appellants in the lower court on both points of law and evidence. - 15 Counsel submitted that the land law applicable when the respondent obtained the land was the Public Lands Act 13 of 1969. That the said law created the Uganda Land Commission and its powers. That Section 19(l)(0 of the Public Lands Act provided that the controlling authority would not without the prior consent in - 20 writing of the Minister, grant more than hve hundred acres of public land in leasehold to any one person, either by a single grant or by a series of grants. Counsel further submitted that the process for issuing a title included; the district land committees inspecting the land and making a recommendation to the Commission, the - 25 Commission would approve the recommendation by a minute and issue a lease offer, prepare a lease agreement for execution and thereafter furnish proof that all formalities were complied with including the drawing of the survey deed plan to the Commissioner Land Registration for the issuance of a certilicate of title. The survey - would be done by an authorised surveyor who would make a report called a job jacket to the Commissioner and upon which a deed plan would be drawn by the oflice and signed by the Commissioner 30


Surveys and Mapping indicating the name of the Commissioner signing, the date and instruction to survey number and place. The appellants submitted that the respondent's application for 777 hectares lease to the Uganda Land Commission was rejected under

5 Minute No. ULC Minute 2 | 77lal (2OOf Aug L977 and referred this Court to P. EX 20 (Letter from Uganda Land Commission to Registrar High Court). It was further submitted that the learned trial judge however accepted the rejected application premised on a misconceived fact that the rejection minute was cited by ULC in the lease offer to the respondent and that subsequently the Commissioner Land and Survey in a letter dated 24 I 06/ ¹⁹⁸⁰ issued instructions to the senior staff surveyor to undertake the survey of 777 hectares and lease agreement was signed between 10

,IE

It was submitted that the learned trial judge therefore overlooked the appellants' submission by holding that the onus of ensuring that the process followed the correct minuted decision lies with ULC just as the onus of ensuring the use of the correct IS number is the

responsibility of the Commissioner Surveys and Mapping. IU

the ULC and the defendant on 9 l7 I l98l .

Counsel for the appellants submitted that the rejected application for a lease offer by the respondent has no legal effect as there is no record furnished by the respondent that his second application rvas ever considered, approved and even received by the Uganda Land

Commission (ULC). It was counsel's submission that if the second application was received and approved by ULC, it would not bear the same minute number as one rejecting the first and that the said lease offer was not signed by any official of ULC. That the respondent himself testified that he didn't get a reply from ULC but only got a certificate of title and that he said he applied for a lease from Mpigi yet District Land Boards only came into operation on 30

,a'- s'9

the commencement of the Land Act Cap. 227 of 1998 which was proof he did not know where he applied the lease from.

5 Counsel for the appellants submitted that the fraud is directly attributed to the respondent who furnished false documents to the Registrar of Titles to issue a certificate of title for 777 hectares whose application was rejected. Counsel relied on Kampala Bottlers Ltd VS Damanico lul Ltd, SSCA No. 22 of 1992 to assert that fraud can be attributed by necessary implication and the respondent took advantage of it. It was submitted that the learned trial judge strangely imported into P. EX. 20 a matter that it did not contain by stating that "these certified ULC minutes show that the defendant was recommended by the District Land committee for 3. Sq. mile for a term of 5 years extendable to 49 years and that the 10

- decision of ULC was that it was rejected with reason not indicated". That this substantially contributed to the learned trial judge's wrong holding against the appellants that they failed to prove fraud against the respondent. 15 - Further Counsel averred that the respondent did not plead and furnish evidence that he had a ministerial consent in writing either to him or generally to obtain a lease exceeding 500 acres as required by law as earlier stated. 20 - 25 Counsel for the appellants further submitted that the I/S Number zO5l6-lb I 4029 which appears on the respondent's deed plan was issued for a different location in Masajja along Busabala Road for 0.6 hectares and not 777 hectares in Gomba district stating that this was the testimony of PWl Kazlbwe Micheal who represented - 30 the Commissioner for Surveys and Mappings. It was submitted that even the job jacket for 113-20516 was not returned to Entebbe


Surveys and Mappings department and was therefore unused and of no effect.

5 The appellants submitted that in spite of all the overwhelming evidence proving fraud, the learned trial judge erroneously believed the contents in the letter dated 24s June 1980 as an instrument to survey 777 hectares and that a lease agreement was signed between ULC and the defendant on 9fr July 1981 yet DWI a private surveyor who testified for the respondent told court that the respondent didn't give him any instructions to survey and did not see a reply from the senior staff surveyor to give him instructions and never saw the job jacket of work done in 1980 yet it is not possible for the Commissioner Surveys and Mappings to issue a deed plan without a job jacket. 10

Counsel for the appellants submitted that this evidence means that the Commissioner Surveys and Mappings played no role in dealing with the respondent or his agents to procure a deed plan bearing I/S Z0516-LB I 4029 to support his registration as proprietor on his certilicate of title for 777 hectares.

Counsel for the appellants submitted that the learned trial judge failed to address her mind to the effect of Section 150 of the RTA which states that "all surveys required by the Registrar under this 25 Act shall be in accordance with the requirements of the Commissioner Land and Surveys and no plans shall be accepted by the Registrar unless they have been authenticated by the signature of Commissioner Lands and Surveys or someone authorized by him in writing." Counsel submitted that the above was not complied 30 with because the respondent's deed plan was not signed as required because the Commissioner Land and Surveys never drew the deed plan bearing | /3-20516. \-. .-fu


Counsel for the appellants submitted that the burden lay on the respondent to prove to court how he accessed and used the I/S for land ofa different location and acreage and that once the appellants proved that the respondent's lls - Z0516- LB|4O29, was not for his 777 hectares and that the deed plan was not issued by the Commissioner Surveys and Mapping, they discharged the burden of proving fraud directly or by implication against the respondent to impeach his certificate of title and so the act of the respondent in using unauthentic and false documents in procuring a certificate of title amounts to fraud. 10

# Ground IVo.

On ground two, counsel for the appellants submitted that the 15 learned trial judge erred in law and fact when she held that the appellants were trespassers on the suit land when they lawfully obtained lease offers issued by Mpigi District Land Board.

Counsel for the appellants submitted that the suit land was not sanctioned by ULC after his application for 777 hectares' lease. The Surveys and Mappings department denied issuance for 777 hectares lease. It also denied issuance for I/S ZO5|6-LB I 4029 to any surveyor for the respondent's land for 777 hectares. It is the appellants'case that no job jacket for O.6 hectares at Masajja was returned to Entebbe Survey and Mappings department and that the Commissioner Lands and Surveys cannot issue a deed plan without a job jacket and the impugned deed plan is not in the records. 20 25

Counsel for the appellant further submitted that the appellants proved that the suit land of which the respondent holds a certilicate of title is unalienated and unsurveyed according to ULC and the commissioner surveys and mappings. 30


Counsel submitted that the area land committee lawfully and correctly recommended that Gomba District Land Board issues lease offers to the appellants. However, the appellants could not proceed with the survey of the suit land because the respondent denied them entry on the suit land claiming that he possessed a certificate of title for the same land. Counsel submitted that the respondent procured his certificate of title by fraud which is an illegality under Section 77 of th,e RTA Cap 23o and cited the case of

Makula International Ltd Vs His Eminence Cardinal Nsubuga & Anor Civll Appeal No. 4 1981. Counsel submitted that it is the respondent who was in trespass on public land then under the management of ULC and not the appellants. 10

#### Ground Three 15

Counsel for the appellants submitted that the lease offers issued to the appellants by Gomba District Land Board are lawful and so the learned trial judge's order that they be cancelled and the award of general damages to the respondent was wrong.

#### 20

## Respondent's Submissions

#### Ground one

Counsel for the respondent cited the case of Frederick J. K Zaabwe vs. Orlent Bank Ltd & 5 others SCCA No. 4 of 2oo,6 where Justice Bart Katureebe defined 'fraud' while citing with approval the definition in the Black's Law Dictionary, 6th edition 66O as "an intentional peruersion of truth for the purpose of inducing another in reliance upon it to part with some ualuable thing belonging to him or to surrender a legal right. . ... . . As distinguished from negligence, it is 25

olu.tays intentional. It compises all acts, omissions and concealment inuoluing a breach of a legal or equitable duty resulting in damage to anoth.er. And includes angthing calanlated to deceiue.. .." 30


Counsel submitted that the respondent complained to the Secretary Mpigi District Land Board about the irregular allocation of his land to the lst to 4ft appellants and requested Mpigi District Land Board to revisit the grant and restore the respondent's proprietary rights. Counsel submitted that in response, Mr Wamala Franco, the Secretary Mpigi District Land Board while making reference to the respondent's complaint dated I 5th March 20 13 wrote three letters dated Sth April 2013 to the lst to 4ft appellants requesting them to stay all actions in the suit land and report to the office of the Secretary Mpigi District Land Board. By another

letter dated 5ft May 2013, the respondent wrote to Ms. Mulinde Mukasa Kintu, the Assistant Commissioner Land Administration complaining about the illegal allocation of a portion of his land to

- the 1st to 4fr appellants specifically complaining that the Area Land Committee didn't notify the respondent as a neighbour and interested party before allocating the l"t to 4s appellants lease offers over the respondent's land. That Ms. Mulinde Mukasa Kintu in a letter dated 1 Sti, May 20 13 wrote to the District Staff Surveyor 15 - Gomba District requesting that the appellant's planned survey in respect of a portion of the respondent's land be stayed to enable her office investigate the circumstances under which the land was allocated to the lstto 4s appellants which letter rvas copied to the appellants. 20 - . E

Counsel further submitted that the respondent's second application for a lease offer issuance and the instruction to survey and the issuance of the certificate of title were well explained in the internal memo of the Ministry of Lands, Housing and Urban Development and a letter dated 25fr July 2016 in which it was established that the respondent or his agents didn't have any under hand or foul play in the issuance of the certilicate of title and that

¹⁰ & all the documents indicated that Uganda Land Commission duly executed the lease and approved the lease offer.

5 Counsel submitted that the appellants failed to adduce evidence showing that the respondent was privy to the alleged fraud or that he colluded with the relevant Government officers leading to his award of the lease offer. Counsel for the respondent further submitted that the trial judge correctly relied on the authority of Kampala Bottlers Ltd Vs Damanico (Ul Ltd, SCCA No. 221 92 for the proposition that fraud must be attributed to the transferee of a certificate of title for it to suffice as a ground for court to order ^a cancellation of that transferee's certificate of title. 10

Counsel submitted that the learned trial judge correctly found that the respondent's certificate of title was not procured fraudulently

and requested that this court uphold the trial court's findings and dismiss the appellant's argument that the learned trial judge wrongly evaluated the evidence. 15

#### Ground Ttlo 20

Counsel for the respondent relied on the case of Justine E'M. N Lutaya v Stirling Clvil Engineering Co. Ltd' CACA No. 11 of 2Oll where Mulenga JSC held that trespass to land occurs when a person makes unauthorised entry upon the land and thereby interferes or portends to interfere with another person's lawful possession of that land; it is committed against a person in possession, needless to say, the tort of trespass to land is committed not against the land but against the person who is in actual possession or constructive possession of the land. 25

Counsel for the respondent further cited Section 59 of the Registration of Titles Act Cap. 23O which is to the effect that a

¹¹ &

certificate of title is conclusive evidence and proof of ownership of land. It was submitted that by the time the appellants were purportedly granted lease offers and took possession of the suit land in 2Ol2 and attempted to conduct boundary opening, the respondent was already in possession and held a certificate of title since 3'd Aug 198 1 . It was further submitted that the lease offers were made to the appellants on condition that the land was free and available. Counsel further submitted that there was no free land at the time the appellants were granted lease offers and they faced resistance from the respondent and other residents who were already in possession of the suit land when the appellants attempted to carry out the survey. Counsel for the respondent submitted that granting another lease offer on the same land would amount to double titling.

It was submitted that the learned trial judge rightly arrived at the correct conclusion since the respondent was the registered proprietor and in possession of the suit land by the time the appellants were granted the conditional lease offers and so the trial

judge correctly found the appellants to be trespassers on the suit land since they did not obtain the respondent's consent to occupy the land. 20

### Ground Three

Counsel for the respondent submitted that the learned trial judge rightly found that the appellants' lease offers were irregularly awarded on non-existent land that belonged to the respondent and it thus followed that the same were null and void ab initio. On general damages, Counsel for the respondent submitted that the triat judge had considered all the circumstances of the appellants' continued trespass on the respondent's land and rightly awarded the respondent UGX 3O,OO0,000 in general damages against the 25 30

¹² &

appellants. Counsel submitted that costs follow the event unless for good reasons, the court directs otherwise as provided under Section 27121 of t,b,e Civil Procedure Act Cap.71. Counsel for the respondent cited Jeunifer Behinge, Rwanyindo Aurelia, Paulo

5 Bagenzi Vs School Out fitters (Ul Ltd, CACA No. 53 of 1999 where Court held that a successful party is entitled to costs unless there are good reasons to deny such party costs.

It was submitted for the respondent that the appellants did not advance any good reason to sway the lower court to deny the respondent costs. Counsel prayed that this Court be pleased to uphold the trial court's findings and orders and further dismisses the appellants' appeal with costs to the respondent in this Court and the Court below. 10

# Appellants' submlssione in Rejoinder

In rejoinder, counsel for the appellants submitted that the respondent's reply that his application was considered after Sentamu's and was then approved by the Uganda Land Commission vide Minute No. ULC Minute 2/77(al (2OO2) August, 7977 leading to the grant of the lease offer dated 9s June 1980 is not supported by any credible evidence adduced in court. Counsel for the appellants submitted that the above ULC minute is one that rejected the respondent's application for 777 hectares lease in 1977. That it is not true that Uganda Land Commission reconsidered the application under the same rejected minute of 1977. Counsel further submitted that there was no evidence that the 2"d application was received and approved under the same minute of 1977 rejecting the first application. 20 )q

## Determination of the Appeal

This is a first appeal and it is important that I highlight the duty of the Court as the lst appellate court. Rule 3Olll(af of the Judicature (Court of Appeals Rulesf Directions SI 13-10 gives 5 powers to the Court of Appeal while exercising its appellate jurisdiction to re-appraise the evidence of the trial court and draw inferences of fact in arriving at its own conclusion. The duty of the 1st appellate court was delineated in the Supreme Court decision of Klfamunte Henry v Uganda, SCCA No. lO of 1997 (unreported) 10 where the court highlighted that, "TLe fi.rst appellate Court has ^a duty to reuiew the euidence of the case and to reconsider the materials before tle tial judge. The appellate court must then make up its own mind not disregarding the judgement appealed from but carefullg weighing and considering it".

I have thoroughly reviewed the record of appeal and the submissions made by the learned counsel and attendant authorities and have taken them into consideration in coming to a decision in this matter.

## Ground 1 of the Appeal

The appellants contend that the learned trial judge erred in law and fact when she failed to properly evaluate the evidence on court record before her and thereby arrived at a wrong decision that she 25 was unable to find that fraud was proved against the respondent in the acquisition of the lease certificate of title for the suit land to the standard required.

The crux of this dispute stems from Mpigi District Land Board 30 granting lease offers to the appellants who, on visiting the land for purposes of surveying the land, found that the land was registered in the names of the respondent. In their further scrutiny of the

-J-- 14 d\*

respondent's ownership of the registered land, the appellants found several irregularities with the process and contend that the respondent was registered fraudulently for the following reasons a) the respondent's allocation for t}lre 777 hectares lease to the Uganda

- 5 Land Commission was rejected under minute No. ULC Minute 2177(a) (200) Aug 7977 and that the same was never reconsidered in his 2"a application. b) That there is no record for the survey of the respondent's land because the respondent used a deed plan which bore no instrument and that I/S No. 2O516-LBl4029 is not - 10 in the instrument register at Entebbe to support the deed plan for 777 hectares. Further that there was no job jacket to support the survey of the respondent's land. It is the appellants'case that it is not possible for the Commissioner Surveys and Mappings to issue a deed plan without a job jacket. c) That the respondent did not - 15 plead and furnish evidence that he had a ministerial consent in writing either to him or generally to be allowed to obtain a lease exceeding 500 acres as required by the Public Land Act. It was submitted by the appellants that in fact the respondent admitted to never receiving any reply from the Uganda Land Commission to - 20 his 2"d lease application, and that the respondent was fraudulent as he presented false documents to the Registrar of Titles to issue him the certificate of title for the suit land.

It was submitted that the I/S 2O516-LB /4029 was actually for land in a different location and acreage which is land of 0.6 hectares at Masajja. The appellants submitted that the burden lay on the respondent to personally prove to court how he accessed and used the I/S for land in a different location and acreage as the I/S-2O516-LB 14029 was not for thb respondent's777 hectares. It was submitted for the appellants that even the lease granted to the respondent was not signed by any official of Uganda Land Commission. That the respondent using unauthentic and false .8, 30

..4P

documents in procuring a certificate of title amounts to fraud and relied on the authority of Frederick Zaabwe v Orient Bank & other SCCANo.4of2o,06.

- 5 It is clear to me that the question at hand is whether indeed the appellants have proved that the respondent acquired his lease offer and certificate of title through fraud thus warranting its cancellation. Section 59 of the Registration of Titles Act provides that "no certificate of title issued upon an application to bing land - under this Act shall be impeached or defeasible bg reason or on account of ang informalitg or irregulaitg in the application or in the proceedings preuious to the registration of the certificate, and euery certificate shall be receiued in all courts as euidence of ... and shall be conclusive euidence that the person named. . .. . is seized or 10 - 15 possessed of that estate or interest or has lhgl DOU)er. (emphasis mine}.,-ln Hilda Wilson Namusoke & 3 Ors v Owalla's Home Inveatment Trust (E. A) Limited, Supreme Court Civil Appeal No. 15 of 2017, the court clarified that a certificate of title is conclusive evidence of ownership, except in cases of fraud.

25 JU Section 76 of the RTA also provides th,at . . . anA certificate of title ...proanred or made by fraud, shall be uoid as against all parties or priuies to the fraud. In Frederick JK Zaabwe Vs Orient Bank Ltd & 5 others , SCCA No. 4 of 20,o,6, it was held by Bart Katureebe JSC. while citing the Black's Law Dictionary, 6th Edition page 660 which defined fraud to mean "...angthing calculated to deceiue uhether by suppression of truth or suggestion of uhat is folse whether it is bg direct falsehood or innuendo bg speech or silence, utord of mouth or look or gesture. . ...bad faith and fraud are sAnonAmous and are also synonymous of dishonestg, infidelitg, unfaimess...."


In J.\$I. R Kazoora v M. L. S Rukuba pCCA No. 13 of 1992) it was held that fraud must be specifically pleaded and strictly proved. The general rule is that he or she who alleges must prove. See Section 1Ol of the Evidence Act, Cap 6. The burden of proving 5 a particular fact thus lies on that person who wishes the court to believe in its existence unless the law provides that the proofofthat fact shall lie on any other particular person. See Section 1O2 of the Evidence Act Cap 6. In cases where fraud is alleged, the legal burden and evidential burden of proof is slightly higher than in 10 ordinary civil cases. In the case of Kampala Bottlera Ltd Vs

Damanico (Ul Ltd, SCCA No. 22 of 1992, the Supreme Court held that it is generally accepted that fraud must be proved strictly, the standard of proof being heavier than the balance of probabilities generally applied in civil matters but does not reach the point of '15 beyond reasonable doubt.

It is not disputed that the respondent is the registered proprietor of the suit land, measuring approxim ately 777 hectares, LRV 1140 Folio 4, Gomba Block 74 plot 6 under ULC Minute 2177(al August 7977 under instrument No. 2L4217. However, the appellants

submitted that the respondent fraudulently procured his lease certificate of title because Uganda Land Commission rejected the respondent's application for lease offer and the surveys and mapping department denied issuance of llS ZO5|6-LB I 4029 to any surveyor in respect of the respondent's land for 777 hectares and there was no job jacket for the said land. 25

I have paid keen attention to the reasoning of the learned trial judge in her judgment. It goes without saying that fraud must be attributed to the transferee. There is a wealth of authorities on this position. See Kampala District Land Board & Anor v Venansio Babweyaka & 3 others, SCCA No. 2 of2OO7, Nagji Textiles Ltd 30

¹⁷ &

Ve A. B Potat & 2 others CACA No. 37 of 2OO3. These cases state that fraud must be attributed to one who becomes the registered proprietor through a fraudulent act by him or to which he is a party or with full knowledge of the fraud. The appellants in the instant case thus bear the burden to prove that the respondent was fraudulent.

I agree with the learned trial judge's conclusion that the allegations of fraud rotate around the documentation and processing of the lease into the names of the respondent and the issue of a certificate of title. From reading the record, I also note that the lapses in documentation and processing are attributed to services that are ordinarily the preserve of government ofhcials in Ministry of Lands and Urban Planning. For instance, the requirement to issue ^a 10

- certificate of title after ascertaining that all requisites processes are done and approvals obtained is bestowed on the Registrar of Titles and not the respondent. It is also on record that in the 1980s when the respondent was granted his lease and issued a certificate of title, surveys were solely carried out by the Government. I agree 15 - with the reasoning of the learned trial judge that the onus of ensuring that the process of offering leases and titling is accurate and that there are correct minute decisions lay with the Uganda Land Commission. I also concur with the reasoning of the learned trial judge that ensuring use of the correct IS number is the sole responsibility of the Commissioner Lands and Surveys. 20 )q

An ordinary citizen who wants to lease land is only expected to submit their application and only act when directed to do so within the established procedures. My understanding is that the appellants expect that the ordinary citizen will also go into these offices and ensure that the officers there have done their job properly and have complied with all procedures which I believe is 30


not tenable. In this case, the respondent applied for a lease over land he had identified, paid fees and was duly issued with a certificate of title. He had no business to cross check if the internal processes of Ministry of Lands and Urban Planning or even Uganda Land Commission had been done properly. I do not agree with the appellants' argument that because irregularities have been identified in the processes, these impute fraud on the respondent. The respondent had to have been working within Ministry of Lands or closely associated with the ministry, had knowledge of the relevant procedures and then circumvented them for us to attribute fraud to him. Pointing out the irregularities on processes that are the preserve of government officials in the Ministry of Lands, without specific allegations on the fraudulent actions of the respondent are in my view not sufficient to attribute fraud to the respondent.

It should be noted that on learning of the grant of lease offers to the appellants, the respondent made a number of complaints to the relevant government bodies first to the Secretary Mpigi District Land Board dated 15s March 2013 that the appellants had come to his land with the intention to survey it claiming they had lease offers. On 5e April 2O13, the Mpigi District l,ocal Government wrote to the lst appellant calling him to order and stated that the District Land Board only gave him a lease offer on condition that the offer was subject to the land being available and free. On Sft May 2013, the respondent again wrote a letter to the Assistant Commissioner Land Administration raising the same complaint of erroneous allocation of a portion of his land to the appellants and the fact that he was never notified by the Area Land Committee as required under the law. In reply to this complaint, the Assistant Commissioner Land Registration in a letter dated May 1 5 20 ¹³ wrote to the District Staff Surveyor of Gomba district about the 20 25 30


respondent's petition and instructed him to stay survey and any other further process of the application of appellants as investigations in the matter issued.

- It is on record that in an internal memo dated March 27^th 2015, $\mathsf{S}$ from the Commissioner Land Administration to Commissioner Surveys and Mappings copied to the Cabinet and State Minister of Labour Housing and Urban Development and Permanent Secretary, Ministry of Lands, it clearly stated that the respondent's - $10$ survey was carried out under I/S Z0516 and deed plan for the suit land were issued in July 1980 and that during that time, the Ministry of Lands was fully responsible for all surveys as opposed to the present policy where survey is privately handled and instructed that the respondent's request to subdivide the suit land - 15 should be honoured and if there is a problem with the respondent's $I/S$ , the lands department should rectify it other than denying the respondent his rights over a matter he was not a party to. (Emphasis mine). - 20 Further, in a letter dated 25^th July 2016 from the Permanent Secretary, Ministry of Lands to the Secretary, Uganda Land Commission, in detail addresses the suit land, land comprised in LRV 1140 Folio 4, Gomba, Block 74, Plot 6 File Ref: LB/4029 and made a number of clarifications among which are that; - 25 "the respondent applied for the lease on 20^th June 1977 and a minute approving the application was duly signed and verified as ULC Min. $2/777$ (a) (200) of Aug 1977 and that the survey of the said land was commissioned and instructions prepared to carry out the survey on 9^th July 30 1980 and that at the time all surveys were carried out by the government. The lease offer was issued to the respondent for five years $(5)$ and extendable to 49 years from 9^th June 1980. A certificate of title was issued with effect from 1^st July 1981 and given an extension of lease to 49 years vide instrument No. 214217 and nothing on 35

 file indicates any foul play by the respondent in issuance of the title and the Ministry of Lands cannot deny the genuineness of the respondent's title or any rights. (emphasis mine)"

The above correspondences in my view exonerate the respondent from any accusations of fraud or dishonesty if there was any doubt. In the case of St Mark Educational Centre Ltd Vs Makerere **University CACA, No. 40 of 1997,** where two certificates of title were issued on the same pieces of land, the court of appeal upheld 10 the findings of the High Court and noted that the fraud committed was not the type a purchaser or even his advocate could discover during an ordinary search.

- 15 It's interesting to note that the respondent was also able to subdivide and obtain certificates of title for the new plot numbers during the course of the trial. This to me means his deed plan was valid because the process had to start with the deed plan for Gomba Block 75 Plot 6. - 20

$\overline{5}$

In the case of Okello Okello V UNEB CACA No. 12 of 1997, it was held that the particulars of fraud and exact dates regarding the alleged fraud must be pleaded and proved. The appellants in the instant case submitted that the respondent was fraudulent in 25 acquisition of his title. However, they have failed to bring out the particulars of fraud and failed to attribute the said fraud to the respondent as the transferee. I would therefore dismiss Ground 1 of the appeal for lack of merit.

#### Ground 2 30

The appellants contend that the learned trial judge erred in law and fact when she held that the appellants are trespassers on the suit land.

q Trespass to land simply put is the wrongful interference with one's possessory legally protected interest. In Justine E. M. N. Lutaya v. Stlrling Clvil Engineering Company Ltd (SCCA No. 11 of 2OO2l, the court established that trespass to land occurs when a person directly enters another's land without permission or other lawful cause, or places or projects any object on the land, thereby interfering with the lawful possession of that land. Such action is held to infringe upon a property owner's legal right to enjoy the benefits of ownership. A certificate of title is conclusive evidence of ownership of land. The exceptions to this general rule are clearly stated under Section 176 of the RTA among which include fraud. Since the appellants have not been able to prove fraud on the part of the respondent, it follows that he remains the lawful owner of the '10

suit land. 15

The issue of trespass came up following the occupation of the suit land by the appellants in 2012. Before that entry, the respondent had occupied the suit land from 1977 and also obtained a certil'icate of title in 198 I . In the appellants attempt to survey the land (on which lease offers had been issued to them in 2OO9) the appellants found that the land was already occupied by the respondent. ^I would have expected the appellants to raise the matter with the Mpigi District Land Board since they were the body in charge of public land in the area. I did not see any correspondence to that effect on the record. I believe the appellants could not do so since the lease offers were very clear that "the offer is subiect to land beine available and free from disputes at the time of survev"(emphasis mine). Instead, the appellants chose to pursue the respondent who had peacefully been in occupation of the land for 31 years. They filed a suit against him (CS No 58 of 20261 and' obtained an Order for Opening Boundaries and Demarcation issued 20 25 JU


by HW Balintuma Grace the Magistrate Grade/Mpigi on 29s January 2013. I believe this order was used to put the appellants in occupation of the suit land. It should however, be noted that this order was subsequently set aside by an order issued on 4s March 2013 by the same magistrate. That order was quite interesting and

# "IT IS HEREBY ORDERED THAT

stated as follows;

- 1. The Order issued on 29th January 2O13 is herebg set aside and recalled since it does not correspond with the order on Court file and the pragers it sought. - 2. The order on Court file uos misinterpreted and other things, words, clauses u)ere added at the time of tgping without the authoisation of Court as it sought its oun agenda and it is doing more harm than the good it intended to protect.

3...." 15

> It is clear that the order dated 296 January 2013 while irregularly issued, benefited the appellants as they were able to occupy the suit land. From the record of the appeal, it is not apparent whether the issues raised by HW Balintuma Grace were ever investigated

IU but ought to have.

25 In their amended pleadings at the lower court, the appellants also indicated that they were customary tenants although no evidence was adduced to prove that other than statements in their witness statements that they were customary tenants. They did not elaborate how they came onto the land and how long they had stayed there which is puzzling, because the length of stay on the land and how the customary tenant settled on the land is ordinarily a critical part of the evidence a customary tenant is expected to provide. It makes one wonder, how customary tenants who ordinarily would have been in physical possession by the time of application for grant of lease offers would have had challenges 30

ZJ @

surveying their land or were unknown to the respondent who was within the same locality. I believe they had challenges because they had never occupied the land and only came to have an interest in the land when they were granted lease offers in 2009. The evidence

- 5 of DW3 was that the appellants were residents of Kyayi village in Kyebumba and not the location of the suit land which evidence was not challenged by the appellants. The verihcation of the suit land by the Area Land Committee was also done haphazardly and the documentation only signed by the Chairperson Mr Francis - Ssenyonga without the presence of the neighbours to the suit land. In her application for leasehold , the 2nd appellant Kekigondo Margaret indicated that the respondent was the owner of adjacent land to the land she was applying for. How is it possible therefore that the respondent was not consulted during the verification 10 - process? It is further alleged in the witness statement of the respondent that the 5fr to 7s appellants were children of Mr. Francis Ssenyonga which evidence was also not challenged. If indeed true, Mr Francis Ssenyonga the Chairperson of Maddu Sub County Area Land Committee would have had a clear conflict of 15 - interest in the matter. )n

The appellants thus possess no interest in the suit land since by the time they were granted the lease offers, there was no available land. Neither have they proved that they were customary tenants on the land. They also possess no instrument of transfer. In Zlmbe Vs Kamanza, supra, court held that one can only become a legal owner of land upon registration of the instrument of transfer of land to him. In my view the validity of the lease offers is also in doubt since they were not able to full-rl one of the conditions that the land is available and free from disputes at the time of survey. 25 30

I agree with the learned trial judge's conclusion that the respondent is the rightful owner of the suit land and the appellants having entered on his land without his consent are trespassers. I would dismiss this ground of appeal.

### Ground 3

It is the appellant's assertion that the learned trial judge erred in law and fact in ordering for cancellation of the appellant's lease offers issued by Mpigi District Land Board and in condemning them in general damages and costs.

As resolved earlier, the Mpigi District Land Board erroneously granted lease offers to the appellants on non-existent land as there was already a registered proprietor for the suit land, and that is the respondent. The letter correspondences mentioned earlier indicate that the Ministry of Lands and the Mpigi District Land Board acknowledged the fact that the respondent had a clean title for the suit land and was never involved in any fraudulent acquisition of the certificate of title. The letter dated 19u March 2014 from the Permanent Secretary Ministry of Lands, Mulinde Mukasa Kintu to the Chief Administrative Officer, Mpigi District prohibited subsequent surveys of the suit land as the land in question had already been surveyed and ordered that the subsequent surveys are erased from the cadastral sheet to avoid double titling which is illegal. 15 )n 25

# In Makula International Ltd v His Eminence Cardinal Nsubuga Anor, Civil Appeal No 4 of 1981, 1982 UGSC 2' (8 April 1982f,

it was held that a court cannot sanction what is illegal. In the instant appeal, the learned trial judge rightly ordered for 30

)q

@

cancellation of the lease offers granted to the appellants as effecting such lease offers would lead to double titling.

Further, the lease offers were conditional that the land is available and free from disputes at the time of survey. It is evident that the

q suit land was not available. The lease offers cannot therefore stand and I agree with the trial judge's order that the lease offers be cancelled.

Damages generally are a sum of money awarded by a court as compensation for a tort or breach of contract. See Elizabeth A. Martin, Oxford Dlctionary of Law Stu Edition, Oxford Universlty Prees, 133. They aim at placing the injured party in a good position so far as money can do it as if the matter complained of had not occurred. The tort in the instant case is trespass. The appellants subjected the respondent to pain and suffering including anxiety, embarrassment and distress when they occupied the suit land. In Dharamshi Vs Karsan, (19741EA 41, the court noted that courts must in all cases award damages with the object of compensating the plaintiff for his or her loss. This Court can only interfere with the award of general damages by the lower court if they are inordinately high or low and represent an entirely erroneous estimate. See Byabalema & 2 others v UTC (19751 SCCA NO. 7 of 1993. 10 15 20

In the instant appeal, the appellants have not furnished court with any reasons for their contention that the learned trial judge erred in law and fact in condemning them in general damages apart from submitting that it was wrong. Given the circumstances of this case and the fact that there has been protracted litigation over the suit land, the respondent is entitled to general damages. I find that the learned trial judge rightly assessed the general damages awarded to the respondent at UGX 30,000,000 (Uganda Shillings Thirty 25 30

,F

Million Shillings) to alleviate the loss, pain and suffering of the respondent.

The appellants did not also furnish any submission in support of their assertion that the learned trial judge erred in law and fact in

- awarding the respondent costs. Section 27 l2l of the Civil Procedure Act Cap 71 is to the effect that "costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order. In Jennifer Behange, Rwanyindo Aurelia, Paulo Bagenzi v School Outfitters - (Ul Ltd, CACA No. 53 of 1999, the Court held that a successful party is awarded costs unless there are good reasons to deny such party costs. 10

I find no good reasons justifying denial of costs to the respondent in the lower court. The learned trial judge rightly dismissed the appellants' claim in the High Court with costs. I would therefore dismiss this ground of appeal. 15

In the sum, I would order that the appeal is dismissed for lack of merit and I would award costs to the respondent in this Court and the Court below. 20

Dated at Kampala this )^^ l} day ot....3x.\*\*. ²⁰²⁵

Qre a Alibateese JUSTICE OF APPEAL

#### THE REPUBLIC OF UGANDA

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

*(Coram: Asa Mugenyi, Musa Ssekaana and Stella Alibateese, JJA)*

#### CIVIL APPEAL NO. 79 of 2021

#### [Arising from Civil Suit No. 58 of 2016, High Court, Mpigi]

**RWASHANDE & 9 OTHERS ::::::::::::::::::::::::: APPELLANTS**

#### **VERSUS**

KAYIWA VICENT ::::::::::::::::::::::::::::::::::::

[Appeal from the judgment of Cornelia Kakooza Sabitti J, at the High Court of Uganda at Mpigi dated 16^th December 2020)

#### **JUDGMENT OF DR. ASA MUGENYI, JA**

I have had the advantage of reading in draft the judgement prepared by my learned sister, Justice Stella Alibateese, JA. I agree with the reasoning and orders proposed.

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

Dr. Asa Mugenyi **JUSTICE OF APPEAL**

| | THE REPUBLIC OF UGANDA | |----|--------------------------------------------------------------------------------------| | | IN THE COURT OF APPEAL OF UGANDA AT KAMPALA | | | CIVIL APPEAL NO: 79 OF 2021 | | | <table> RWASHANDE YOSAM &amp; 9 OTHERS ::::::::::::::::::::::::::::::::::::</table> | | | VERSUS | | 10 | <b>KAYIWA VICENT ::::::::::::::::::::::::::::::::::::</b> |

## JUDGEMENT OF JUSTICE MUSA SSEKAANA, JA

I have heard the benefit of reading the leading Judgment of Her Lordship Hon. Lady Justice Stella Alibateese and I concur with the same.

Dated at Kampala this .................................... $19.1$

**\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*** MUSA SSEKAANA **JUSTICE OF APPEAL**

$\overline{20}$

$\cdot\,$

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