[2020] UGCA 2140

#### THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

#### CIVIL APPEAL NO. 128 OF 2013

**UGANDA MOTORS LTD ...................................** ......................................

#### **VERSUS**

THE ATTORNEY GENERAL.................................... 10 (An appeal from the decision of the High Court of Uganda before Hon. Mr. Justice V. F Musoke Kibuuka dated 13^th July, 2012 in Civil Suit No. 389 of 2006)

CORAM: Hon. Mr. Justice Kenneth Kakuru, JA Hon. Mr. Justice Geoffrey Kiryabwire, JA

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Hon. Mr. Justice Christopher Madrama, JA

## JUDGMENT OF JUSTICE KENNETH KAKURU, JA

This is a first appeal arising from the decision of V. F Musoke Kibuuka, J in High Court Civil Suit No. 389 of 2006 delivered on the 13^th day of July, 2012 in which Judgment was entered in favour of the respondent.

The background of this appeal as far as I could discern from the judgment of the learned trial Judge is that;-

The appellant instituted a statutory suit under Section 183 of the Registration of Titles Act, Cap 239, seeking for compensation from the respondents in form of special and general damages for loss of property comprised in Kyaddondo, Block 25 232 Plot 1170 at Banda/Kireka Wakiso District measuring approximately 5.54 acres. The appellant was registered as proprietor of the suit land on 12^th January, 1988 vide instrument N. KLA 12809. On 13^th October, 1999 the appellant was sued by Directel (U) Ltd by way of a summary suit for recovery of Ug. Shs. 7,666,406/ $=$ as bills for directory and advertising services. The appellant did not apply for leave to 30 appear and defend the summary suit and a default judgment was entered against FEES PAID Juleao

RECEIPT NO. 22.1990 1129 4023

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5 IO 15 him by the Deputy Registrar of High court civil Division, on 30th March, 2000, for the sum stated above. A warrant of attachment was issued thereafter for the attachment and sale of Block 232, plot 1170 rhe suit property in order to recover the decretal sum and other costs. pursuant to t},e warrant of attachment, the suit property was sold to one Mwebaze Emmanuel, who subsequently transferred it to other persons over time. The appellant in an effort to recover the suit land filed High court Miscellaneous Application No. 922 of 2000 challenging the attachment and sale of the suit land. The parties to that application uganda Motors Ltd vs Directel (u) Limited and Byaruhanga Rwenzigye concluded an out of court settlement before the court and a c{nsent decree was signedand errdorsed-by ttre court on 14tt' september, 2000. Following the consent decree, the suit land was reregistered in the name of the appellant. However by way of review, the consent decree was reviewed and set aside by the High court presided over by Arcah-Amoko, | (as she then was). Foilowing the review on i6,r,June, 2000 Emmanuel Mwebaze became the registered proprietor of the suit land.

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20 The appellant on 12tt July, 2000 presented a caveat against the title for the suit land ard it;as recieed by trrc RrBistTar of titles at the land Registry. However, that caveat was never registered on the certificate of title. In the result, the original copy of title at the land regishy did not indic^te any caveat This enabled Emmanuel Mwebaze to transfer the land to several other persons, making it impossible for the appellant to recover iL

ftc adatrheo brorqBE a srit agairt the Attorney General seeking to recover the value ofthe suit land and intended damages and costs, on the basis tha! the loss was occasioned by the negligence of the Registrar of titles an employee of the GovernmenL

30 In defence the respondent, averred that non-registration of the caveat did not cause the appell^nr ln<s of ttre suit land It ruas argued ttra! by the time the appellant

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- ⁵ lodged the caveaq dre suit hnd had Img been sold off pursuant to a court order issued on 31st March, 2000 in civil Suit No. 1193 of 1,999. 'rhe suit Iand had been registered in the names of Emmanuel Mwebaze on lzrh )une, 2000 and as such the appellant had no interest in the suit land at the time he presented the caveat. The learned fial ludge dismissed ttre suit in ,ota. - The appellant being dissarisfied with the decision and orders of the learned trial Judge appealed to this Court on the following grounds;- 10 - 1. The learned trial Judge erred in law and fact when he faited to hold thot the apltellant lost the &it prepera/ due to the negligence of the rcspondentrs servants in Ministry of Lands when they neglected to lodge a caveat in accordance with the law on the certificate of title as an encumbrance. - 2. The learned trial Judge erred in law and fact when he failed to adequately evaluate the evidence on record and thus came to wrong conclusions.

#### Representations

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At the hearing of this appeal on the 17tr day of March, 2020 Mr. Aggrey Bwire learnodf.cnedqpearcd fordre appelhst while Mr. Franklin lJwizera learned state Attorney appeared for the respondenl counsel for the appellant sought and were granted leave to proceed by way of wrirten submissions. He was also permitted to make brief oral arguments. The respondent was directed to file written submissions in reply on 20th vlarch,2o20 however the same have never been filed. It is on that basis that this appeal has been determined

#### App ellanfs subrmlssions

on ground 1, counsel for the appellant contended that the learned trial Judge erred when he failed to hold that the appellant had lost the suit property due to the negligence of the respondentk se'rvants who neglected to register a caveat lodged on the certificate of title as an encumbrance by the appeuant on 126 fuly,2000. It was submitted that the appellant lodged a caveat but the same was never endorsed

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⁵ on tie title due to the negligeoce of the reqrondert's servants and in the result the appellant lost its land. It vvas argued that the learned trial Judge erred for holding that the appellant had already lost his land by the time he lodged the caveat and had no int€rest in the suit It was cortended tbat, had the Registrar of lands registered the appellant's caveat first in accordance with the law, Arthur Mukwatanise and other parties would not have acquired any interest in the suit property. 10

counsel asked court to find that the appellant was still the registered proprietor at the time of the lodgment of the caveat and he unjustly lost his land due to the negligence of the respondent's servants.

on respect of ground 2, it was contended that, the learned trial fudge failed to evaluate all the evidence on record and as such he arrived at a wrong conclusion. It was submitted that, there was evidence indicating nonpayment of the purchase price of the suit land by one Emmanuel Mwebaze and as such his registration as proprietor was not absolute. His registration was subject to the plbvisions of section 49 of the Registrarion of ritles Act, which provision was never fulfilled as he failed to pay the full purchase price to courL It was further argued that the Errnranuel lvlwefuaze had no rlgfrt to cha'tlenge the reinstatement of the appellant on the Certificate ofTitle ofthe suit property. 15 ?0

It rrls g\$mitted that tle appeJbnt had lost is property d ue to n egligence and fr au ^d of the officers of the respondents and such it is entitled to compensation by the Government of Uganda. counsel asked court to grant the appellant all remedies tqslt b e€ trial Oourl tlt {c ane spc.l'J d:rr'-g^s, general damages and mense profits. He prayed to court to allow the appeal and set aside the judgment and orders ol the lower court.

#### Rcsolution

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I have carcfully read the record ofappeal and written submissions of counsel I have also read 1|p arrtrrr;tie< cited and relied upnn u5r counsel. This court is required

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⁵ ttfrer Rule 30 of ttre Rules of thb court to reappraise tle evidence of the trial court and come to its own decision. Rute 30 (1.) (a) provides as follows:\_

"Power to reappraise evidence and to take atlditional evidence.

(1) on any appeal lrom a deciion of the High court acting in its originar juridiaion, the court moy

(a) reappraise the evidence and draw inferences offact,

see:- Fr. Narcensio Begumiso & others vs Eric Tibeboaga, supreme court civil Appeal No' 17 of 2002, Kifumunte Henry vs lJganda, Supreme court criminal Appeal No. 10 of 7997 and Bogere Moses vs uganda, supreme court criminol Appear No. 1 of 1992.

In respect of ground 1, the learned trial Judge is faulted for having failed to hold that the appellant lost the suit property due to the negligence of the respondent,s servants when they neglected to lodge a caveat as an encumbrance in accordance with the law. I have carefully perused the High court fudgment and found that the learned trial fudge dealt exhaustively with this issue before him at the trial. In order not to replicate myself, I am constrained to reproduce in extenso the pertinent parts ofhis Judgment at pages 6-8, he observed and found as follows;-

-fhe plaintiffs posltion is that it lost the land comprising Kyaddondo, Block z3z, Plot 1170, owing to the registrar's failure to register the plaintiffs caveat on 12u July,200l The defeadant coateads tlrut tte plaintiff lost the land when it was auctioned throagh a court order, vide civil suit No. 1193 of 1999 and it was sold to Emmanuel Mwebaze who got registered as proprietor of that land. The fuattiff btH & ruw -v{ni.f,'\*,ip of dre suit property about three months aflw the r€is1]rai's omr'ssion to register its caveaL It subsequently lost the land again.

court must ogree with the defendants submissions in that regard. A person cannotlose what thot perfin does not own at the time the loss is alleged to have occurred. Just as the will know maxim goes, nemo dat quod non habec similatlyrone cunnot lose wtat D elongs to another person at the time the loss is

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⁵ claimd b hove oanrred. The acua! claim of the plaintiff centres upotl ntere possibility of reclaiming the land which it had already lost by the time it lodges the caveaL There is no certoint! that possibility would hove positively mauriolized if the caveat hod been dulst regixered.

> Section 63 of the RTA provides that a certifcate of title is exclusive evidence that the registered proprietor has a good and valid title to the land. As of 12tn July, 2001, Mwebaze was the registered proprietor of the suit property. The lodgment of a caveat only serves the purpose of maintoining the status quo peftaining at the time the caveat is lodged. It seryes to put a holt to any alienation or further alienotion. A caieat ,onrot WfX, conyer or r"rro\* ory proprietary interest in any land. of course, it is argued on behalf of the plaintiff that the omission to register the caveat enabled third parttes to get registered thus rendering it impossible for the plaintiff to recover the land from bona lide purchasers for value. But it is equolly a fact that the plaintiff had not filed any suit for recovery of the suit from Mwebaze by the time it lodged the caveat Nor tlid it do so ofterwards.

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The plaintiff did not lose the suit only once. The record shows that he plainW recovered the suit lond and it gat reinstoted on the certilicate of title on 27ta S€fg-,l,\* 2(N, o &ibit P fu Th,tr as a f"w ^onths qfte, th, omirsio, by the registrar to register the caveat lf the land was recovered by the plaintiff as described above, it appears to be unsustainable to argue that the omission by tb rqtfi w b nryeW rte fihtiffs avq ^td e p r iv e d th e p t a i n t iff o f th e a n i I i ty and potential to recover the suit land. (Emphasis mine)

The plaintiff finally lost the suit land. That seand loss 0oo arose in the view of Courl ftom a court order that cancelled the consent order which had been entered into by the plaintiff ond M/S Directel (u) Ltd rJrrs/oss, ia 1993,cannot be dirady atfributd to de rcgisttur's fuilure to register the plaintiff s caveat

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⁵ oo 12tt July,2001- In aurt's view, it would b unfair to tlo so. There exists no ascertainable nexus between the two events.

> ... The plointiff is not entitled to any compensation from the Government under \*ction 183 of the RTA because the ross of it land was due to court orders antl did not orise out of the omis.sion by the registrar of titres to register it,s caveat even though that omission was not itself justified.,,

Having carefully studied the proceedings at the High cour! I agree with rhe reasoning and the conclusion of the rearned trial Judge as set out above. The \_appellant had lost the suit land more than once, The frst waslhrough a warrant of attachment. The he recovered it following the consent settlemenl The he lost it again following the setting aside of that consent. slnce there was no subsrsting claim instituted by the appellant by way of a suit or otherwise to recover the suit land, there was no basis upon which a caveat ought to have been registered at the time it was lodged. Be that as it may, I agree with the concrusion arrived at by the rearned trial Judge that, the property was not lost due to non-registration of the caveat but tlrrougb court proceqs at the High courr I find no reason to fault the rearned triar fudge having arrived at the conclusion that he did. I therefore uphold his decision.

^Ifind ttat this appeal has no merit I would accordingly dismiss it with costs to the rtslon&an

It is so ordered.

bd\*rrryL"".... .-1t: ..ey or \e- ......2020.

Kenneth kuru IUSTICE OF APPEAL

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#### THERIPUBIIC OF UGANDA

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

### ctvtt APPEAL NO. 128 0F 2013

UGANDAMOTORS ========== APPELLANT

#### VERSUS

THE ATTORNEy GENERAL============================RESpONDENT

CORAM: HON. MR. JUSTTCE KENNETH KAKURU, JA

HON. MR. JUSTICE GEOFFREY KIRYABWIRE, JA

HON. MR. JUSTICE CHRISTOPHER MADRAMA, JA

#### JUDGMENT

I have had the opportunity of reading the draft Judgment of the Hon. Mr. Justice (mnetfi (aktrn:, JA.

^Iagree with his Judgment and I have nothing more useful to add.

lC Dated at Kampala this day of .......2020.

HON. MR. JUSTICE GEOFFREY KIRYABWIRE JUSTICE OF APPEAL

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## THE REPUBLIC OF UGANDA,

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

# CIVIL APPEAL NO 128 OF 2013

# (CORAM: KAKURU, KIRYABWIRE, MADRAMA JJA)

UGANDA MOTORS LTD} ....................................

### **VERSUS**

# THE ATTORNEY GENERAL} ………………………………………………………………………………………………

(Appeal from the judgment of the High Court of Uganda before Hon. Mr. Justice V. F. Musoke Kibuuka dated 13^th July, 2012 in High Court Civil Suit No 389 of 2006)

# JUDGMENT OF CHRISTOPHER MADRAMA, JA

I have had the benefit of reading in draft the judgment of my learned brother Hon. Mr. Justice Kenneth Kakuru, JA.

I concur with the judgment that the appeal be dismissed with the order he has proposed and for the reasons he has set out in his judgment and I have nothing useful to add.

Dated at Kampala the $4$ day of Dec 2020

**Christopher Madrama**

**Justice of Appeal**

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