[2009] UGCA 71

#### THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA CIVIL APPEAL NO. 72 OF 2008

#### 1. OLIVE SERUBIRI

# 2. PETER SEGUYA ::::::: ':::::::::::::::::::::::::::: **VERSUS** ADMINISTRATOR GENERAL :::::::::::::::::::::::::::::::::::: CORAM: HON. JUSTICE L. E. M. MUKASA -KIKONYOGO, DCJ

# HON. JUSTICE A. E. N. MPAGI-BAHIGEINE, JA

### HON. JUSTICE C. K. BYAMUGISHA, JA.

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# JUDGMENT OF HON. JUSTICE. A. E. N. MPAGI-BAHIGEINE, JA

This appeal arises from the judgment and orders of the High Court at Kampala, dated 10-06-2008. The court ordered for cancellation of the certificate of Title in the names of Olive Serubiri, the first 20 and restoration of the same to the appellant estate of Musajjawakoma. An order for general damages in the sum of Shs. **5,000,000/=** was also made. Hence this appeal.

The agreed facts as appearing in the joint conferencing notes are as $\mathsf{S}$ follows. The Administrator General who is the respondent to this appeal filed HCCS No. 603/99 claiming ownership of land, comprised in Block 14 Plot 79, at Ndeeba, on behalf of the estate of the lake Musajjawakoma. The said land had been fraudulently acquired by one Gabriel Byandala who later sold and or transferred $10$ it to the $1^{st}$ appellant, Olive Serubiri. The $2^{nd}$ appellant, Peter Seguya was sued in his capacity as administrator of the estate of late Byandala Gabriel. The 1^st appellant argued that she was a bonafide purchaser for value of the suit land. The High Court decided in favour of the respondent. $15$

# Two agreed issues were framed.

- 1. Whether the trial judge was right in law to hold that HCCS *No. 603/99 was not time barred.* - 2. *Whether the prayers sought are sustainable.* 20

Mr. Bernard Tibesigwa appearing with Mr. Alex Tibashasha $\mathsf{S}$ learned counsel were for the appellants while Ms. Munaba, represented the respondent.

At the commencement of the hearing, learned counsel Mr. Tibesigwa sought leave of court under Section 102 (a) of the $10$ **Rules of this court** to add another ground of appeal which he said, if successful, would dispose of the entire appeal. He asserted it concerned the jurisdiction of the High Court to try this suit. He claimed to have discovered this after filing the memorandum of appeal. He stated that he had intimated it to the respondent who $15$

did not have any objection.

This additional ground reads:

"The proceedings and judgment of the lower court were illegal, null and void because the court lacked jurisdiction."

Leave was granted for Mr. Tibesigwa to argue it. 20

Submitting on the additional ground first, Mr. Tibesigwa stated $\mathsf{S}$ that when the suit came up for hearing in the High Court, it transpired that the matter had been the subject of litigation in Mengo Court vide civil suit No. 42 of 1969 between the same parties but that the records could not be traced. After a fruitless search for the record both parties agreed to have a retrial in the $10$ High Court. The court order dated 12-06-200 reads:

"Both counsel agree that since therefore civil suit No. 42 of 1969 record is destroyed or (1) irretrievably lost there shall be trial de novo." Sic.

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Learned counsel argued that the High Court had no jurisdiction to order a retrial when not sitting as an appellate court as provided under section 80 Civil Procedure Act.

Secondly that the High Court did not have jurisdiction to hear a retrial since it had not been ordered by the Court of Appeal under $20$ rule 30 of the Rules of this Court after reappraising the **evidence.** It was the parties themselves agreeing to the retrial. Mr.

Tibesigwa submitted that this was erroneous since parties cannot $\mathfrak{S}$ confer jurisdiction on the court.

In his view this rendered the proceedings in the High Court a nullity.

Ms. Munaaba, however, contended that the High Court had full $10$ and unlimited jurisdiction and correctly entertained the trial de novo.

She pointed out that when High Court Civil Suit No. 603/1999 came up for hearing, the appellant raised a preliminary objection of

limitation. It was to the effect that Musajjawakoma had filed a suit 15 in Mengo in 1969 to determine ownership of the suit land. The High Court called for the record from Mengo Court to ascertain that in vain. Eventually the Registrar reported the record lost. The High Court then decided to try the case instead of sending it to Mengo Court for retrial. It is noteworthy this was during June 20 2000. It was also noted that the claim in HCCS No. 603/1999 was for cancellation of the defendant's certificate of title. At the time

of this order, June 2000, the value of the subject matter was outside $\mathsf{S}$ the pecuniary jurisdiction of the Chief Magistrate's Court. The Chief Magistrate's jurisdiction was only Shs. 5 million (section 207 Magistrate's Courts Act). She hastened to add that even after the Magistrates Court Amendment Act 2007, the magistrate's

$\mathbf{z} = \frac{\mathbf{z}}{\mathbf{z} \cdot \mathbf{z}}$

- jurisdiction remained at only $50,000,000/-$ still far below the value $10$ of the subject matter which was about shs.100 million (1.8 acres at Ndeeba). Furthermore the prayer in the suit was for cancellation of a title deed which is within exclusive jurisdiction of the High Court $-$ see section 77 Registration of Titles Act (cap 230). - She submitted that therefore the High Court did not have to sit in 15 order to order a retrial. It was clearly only the High Court to try the matter in issue under its unlimited jurisdiction – (Judicature Act $S.14$ ).

# **Section 14 of the Judicature Act (Cap 13) reads:**

"14 (1) the High Court shall, subject to the Constitution, have 20 unlimited original jurisdiction in all matters and such appellate

and other jurisdiction as may be conferred on it by the $\mathsf{S}$ *Constitution or this Act or any other law*".

I am in full agreement with the submissions of Ms. Munaba. The High Court was entitled to take over the matter and conduct the trial de novo.

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Mr. Tibesigwa's arguments would not be sustainable. I would dismiss this additional ground No. 3.

Mr. Tibesigwa argued grounds 1 and 2 together. The gist here is 15 that the suit was time – barred. Learned counsel submitted that the suit was filed in the High Court in 1999, yet the cause of action arose in 1979 as indicated by paragraph 4 (c) of the amended plaint that when Musajjawakoma discovered the fraud in 1979 he lodged a caveat on the suit land on 28-11-79. 20

HCCS No. 603/1999 was filed in 1990, 20 years after the cause of action had arisen. He contended that the suit was clearly time barred though the learned judge said that the parties agreed the suit $\mathsf{S}$ was not time barred. He prayed court to allow issues 1 and 2.

$\frac{1}{\sqrt{2}}$

Ms. Munaba, learned Counsel for the respondent, maintained that the learned judge was correct Civil Suit No. 603/99 was not time

- The cause of action arose in 1968 when Gabriel barred. $10$ Byandala's name was fraudulently entered on the certificate of title. The predecessor in title, Musajjawakoma filed a suit in 1969 against Byandala, vide Civil Suit No. 42 of 1969. This record of proceedings totally disappeared from Mengo Court. - Mrs. Munaba further pointed out that the cause of action in High $15$ Court Civil Suit No. 603/1999 was founded on fraud which was Administrator discovered when the General only was administering the estate of Musajjawakoma. The investigations carried out between 1989 and 1996 revealed that Byandala could not explain how he came to acquire the suit land. The 20 Administrator General thereupon lodged a caveat on the suit land on 21-10-91 vide instrument No. 149955.

- However, during 1993 the caveat was removed by the Registrar of $\mathsf{S}$ Titles without notice to the caveators and effected a transfer into the names of the $1^st$ appellant, a daughter in law to the late Byandala. She submitted that the civil suit No. 603/1999 which was thereafter filed in 1999 was also within the prescribed 12 years - of the cause of action under Section 25 of the Limitation Act. The $10$ court was correct to order cancellation of the certificate of Title and restoration thereof to the estate of Musajjawakoma. Ms. Munaba, therefore, payed for dismissal of the appeal with costs here and below. - The learned judge held. $15$

"Before I evaluate the evidence so as to establish which facts are proved and the legal consequences that follow I wish to deal with the question of limitation which should have been raised at inception as a preliminary objection. It is framed as the first issue.

It is beyond contention that the dispute to the land arose shortly after 1968 or in the same year, when Gabriel Byandala was $\begin{array}{c} \begin{array}{c} \textbf{2} \\ \textbf{3} \\ \textbf{4} \\ \textbf{4} \\ \textbf{5} \\ \textbf{5} \\ \textbf{4} \\ \textbf{5} \\ \textbf{6} \\ \textbf{6} \\ \textbf{6} \\ \textbf{6} \\ \textbf{6} \\ \end{array} \end{array}$

registered as owner on 4-1-1968. Subsequently in 1969 $\mathsf{S}$ *Musajjawakoma filed CS No. 42 of 1969 at Mengo. It is the same* land and the dispute and both agreed on 12-6-2000 that since the record of proceedings was lost there should be a trial de novo.

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in court, and hence it cannot be said to be time barred. I therefore $10$ find that the time of limitation prescribed under the Limitation Act *cannot be invoked in favour of the defendants.*"

Hearing de novo means trying the matter anew the same way as if

- it had not been heard before and as if no decision had been 15 previously rendered. This means therefore that the matter must have been before court before, as the learned judge aptly put it. That notwithstanding as Ms. Munaba pointed out the 1^st appellant's name Olive Serubiri was entered on the title on 21-5-93 after the - caveat lodged on it on 21-10-91 had been fraudulently removed. 20 Consequently HCCS No. 603/1999 cannot be said to have been

filed outside the 12 year period prescribed by section 25 of the $\mathsf{S}$ Limitation Act.

There is absolutely no merit in this appeal. I would dismiss it with costs here and below.

Since my Lords the D. C. J and Byamugisha, JA both agree, the $10$ High Court orders are thus upheld.

$Oct$ $$ Dated at Kampala this.. $\dots$ day of $\dots$ 15 HON. JUSTICE. A. E. N. MPAGI-BAHIGÉINE **COURT OF APPEAL**

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#### THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

#### HON. JUSTICE L. E. M. MUKASA-KIKONYOGO, DCJ. CORAM: HON. JUSTICE A. E. N. MPAGI-BAHIGEINE, JA. HON. JUSTICE C. K. BYAMUGISHA, JA.

#### CIVIL APPEAL NO. 72 OF 2008

$1.$ **OLIVE SERUBIRI**

PETER SEGUYA.................................... $2.$

#### **VERSUS**

#### ADMINISTRATOR GENERAL....................................

(Appeal from the Judgment of the High Court at Kampala by Honourable Mr. Justice J. P. M. Tabaro dated the 10^th day of June 2008, in HCCS No. 603 of 1999 The *Administrator General Vs. Olive Serubiri And Peter Seguya)*

#### JUDGMENT OF HON. JUSTICE L. E. M. MUKASA-KIKONYOGO, DCJ.

I had the benefit of reading the judgment in draft prepared by Alice E. Mpagi-Bahigeine, J. A and I agree with her that there is no merit in the appeal. It must fail. I have nothing useful to add.

Since C. K. Byamugisha, J. A also concurs, the appeal is dismissed with costs to the Respondent.

The judgment and orders of the High Court are upheld.

$\frac{1}{2}$ Dated at Kampala this...

L. E. M. Mukasa-Kikonyogo DEPUTY CHIEF JUSTICE

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

CORAM: $\mathsf{S}$ HON. JUSTICE L. E. M. MUKASA-KIKONYOGO, DCJ. HON. JUSTICE A. E. N. MPAGI-BAHIGEINE, JA. HON. JUSTICE C. K. BYAMUGISHA, JA.

### **CIVIL APPEAL NO.72/08**

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1. OLIVE SERUBIRI

2. PETER SEGUYA::::::::::::::::::::::::::::::::::::

#### **AND**

ADMINISTRATOR GENERAL::::::::::::::::::::::::::::::::::::

Appeal from the decision of the High Court of Uganda sitting at Kampala (Tabaro J) dated $10^{th}$ June 2008 in HCCS No.603/99]

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### **JUDGMENT OF BYAMUGISHA, JA.**

I had the benefit of reading the prepared judgment of Bahigeine JA in draft

form.

It sets out my own views of the appeal which I find to have no merit. I would $25$ dismiss it with costs to the respondent both here and in the court below.

Dated at Kampala this.... $\mathcal{S}$ Dated at Kampala this.... $\mathcal{S}$ Dated at Kampala this.... $\mathcal{S}$

30 C. K. Byamugisha **Justice of Appeal**