[2023] UGCA 382

### THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA **HOLDEN AT KAMPALA** CIVIL APPEAL NO. 52 OF 2014

#### $\mathsf{S}$ CORAM:

#### Hon. Lady Justice Elizabeth MUSOKE JA Hon. Lady Justice Catherine BAMUGEMEREIRE JA Hon. Mr. **Justice Stephen MUSOTA JA**

#### $10$ YEWAGNESH BIRRIGGWA:::::::::::::::::::::::::::::::::::

### VERSUS

#### 1. HERBERT WALUSIMBI

- 2. BLAZIO KIIZA **EXAMPLE 20 EXECUTE: EXECUTE: EXECUTE: EXECUTE: EXECUTE: EXECUTE: EXECUTE: EXECUTE: EXECUTE: EXECUTE: EXECUTE: EXECUTE: EXECUTE: EXECUTE: EXECUTE: EXECUTE: EXECUTE: EXECUTE: EXECUTE:** - 3. ST. NOAH COLLEGE SCHOOL BULOBA - 4. ST. NOAH BOARDING SCHOOL ZANA

(An appeal against the decision of $E. K$ Kabanda, $J$ dated 6^th December 2013 in Civil Suit No. 89 of 2011 High Court of Uganda, Land Division)

#### JUDGMENT OF CATHERINE BAMUGEMEREIRE, JA

This is an appeal against the Judgment of E. K Kabanda, J, in which she 25 dismissed the appellant's claim for vacant possession, a permanent injunction against the respondents and costs.

### **Background**

- 30 The facts as ascertained from the lower court record are that the appellant, a registered proprietor of land comprised in Busiro Plot 941 Block 313-320 at Bwotansimbi, Buloba measuring 0.718 Hectares which approximates to 1.8 Acres, filed HCCS No. 89 of 2011 against the respondents claiming that the $1^st$ and $2^nd$ respondents on several occasions without authority held out as 35 Kibanja holders of the disputed property and made attempts to dispose of it - by sale. The respondents on the other hand claimed a Kibanja interest on the land dating to the 1970's having purchased it from a one Ssalongo Samwiri Musoke and that by virtue of the said interest; they had the right to transfer it to any person. The trial Judge held that the respondents had a kibanja - 40 interest on the land and dismissed the appellant's claim for vacant possession and a permanent injunction.

Dissatisfied, the appellant appealed to this court.

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### **Grounds of Appeal**

- 1. The Learned Trial Judge erred in law and fact in holding that failure to give notice under section $4(1)$ of the Land Reform Decree was a curable irregularity. - 2. The Learned Trial Judge erred in law and fact in holding that the respondents who had last cultivated the land in 1989 were bona fide occupants at the time the appellant was registered as proprietor in 2002. - 3. The Learned Trial Judge erred in law and fact in holding that the appellant's registered title was subject to the Kibanja interest of the respondents. - 4. The Learned Trial Judge erred in law and fact in her assumption that the burden of proof to disprove that the respondents had a Kibanja interest in the land lay on the appellant. - 5. The Learned Trial Judge erred in law and fact when she failed to properly evaluate the evidence of the appellant as a whole there arriving at a wrong decision. - 6. The Learned Trial Judge occasioned a miscarriage of justice to the appellant when she conducted a Locus in quo contrary to proper procedure, an omission that vitiates her decision.

#### $25$ Representation

The appellant was represented by M/S AF Mpanga Advocates together with M/S Nsubuga & Co. Advocates while $\quad\text{the}\quad$ respondents were represented by M/S A. Mwebesa & Co. Advocates.

$\mathsf{S}$

$10$

$15$

## **The Parties' Arguments**

Ground No. 1: The Learned Trial Judge erred in law and fact in holding that failure to give notice under section 4 (1) of the Land Reform Decree was a curable irregularity.

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Counsel for the appellant submitted that the trial Judge erred in finding that DW2's failure to obtain consent of the landlord before selling his kibanja to the respondents was an omission, which did not vitiate the sale and was a curable irregularity under the Land Reform Decree. Counsel citeti several authorities for the proposition that failure to give notice under the Land Reform Decree was fatal to the transfer. (See Lawrence Kitts v Bugisu Cooperative Union, SCCA No. 12 of 20O4, Saku v Seventh Day Adventist Church Association of Uganda (1993) LLR 242 and, Godfrey Ojwang v Wilson Bagonza CACA No. 25 of 2O02r. It was counsel's contention that the trial Judge wrongly relied on Tifu Lukwago v Samwiri Mudde Kizza & Justina Nabataka CA No. 13 of 1996 to hold that such failure to serve notice was a curable irregularity.

#### 15

In reply, Counsel for the respondent submitted that the findings that DW2 did not obtain consent of the landlord as the trial Judge held did not vitiate the sale and it was a curable irregularity pursuant to section 3 (f ) of the Land Reform Decree No. 3 of 1975 which saved customary interests pre 1975, abolished the Busuulu and Envujjo Law of 1928 particularly section 8 which called for the Mailo owner's consent before transfer of such customary interests;

Counsel contended that the authorities relied upon by counsel for the appellant are distinguishable with the case beforehand in so

far as they are all concerned with new interests (customary or otherwise) acquired after the 1975 Land Reform Decree, which are governed by section 4 (1) requiring transfers to be preceded by 3 months'notice to the prescribed authority.

It was counsel's submission that the trial Judge addressed her mind to the law before coming to the conclusion that the omission by DW2 would not vitiate the sale to the respondents.

Regarding Ground No. 2 and 3 whether the respondents were bona frde occupants at the time the appellant was registered as proprietor in 2002 and, therefore that the appellant's title was subject to the Kibanja interest. Counsel for the appellant submitted that the trial Judge erred in holding that the respondents were bona fide occupants under section 29 (2') (a) of the Land Act having found that the appellant's land had not been cultivated in 10 years prior to its acquisition by the appellant. Counsel contended that the central requirement in the definition is "occupation of the land for twelve years or more." He added that the respondents could not be said to have been in occupation of land since they were not physically in possession of or cultivating on. 10 i 5 0

In reply Counsel for the respondent submitted that before concluding that the respondents were bona fide occupants, the trial Judge did, not only address her mind to the provisions of section 29 (2) (a) of the Land Act, but took section 29 (5) and 31 of

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the Land Act into consideration. Counsel added that since Ssalongo Samwiri Musoke (DW2) was the person from whom the respondents acquired the interests qualified to be a bona fide occupant, under section 29 (5) of the Land Act, the respondents are bona fide occupants. Further that section 31(1) provides that a registered proprietor of land enjoys his/her rights subject to those ofthe bona fide occupant.

In regard to Ground No. 4 whether the burden of proof to disprove that the respondents had a Kibanja interest in the land lay on the appellant, Counsel for the appellant submitted that the trial Judge erred in shifting the burden of proof to the appellant. He submitted that the burden to prove that the respondents had or did not have a kibanja interest in the land lay on the respondents. Counsel submitted that the burden of proof under section 101 and 104 of the Evidence Act is on the one who alleges thus the respondents who alleged that they had ^a kibanja interest in the land had the onus to prove the same. It was counsel's contention that the appellant bought the land in ¹⁹⁹⁸ and registered it in 2002 without any developments or usage by the respondents thus the burden to show usage and occupation lay on the respondents. i 0 15 20

In reply, Counsel for the respondent contended that the respondents led uncontroverted evidence to prove their kibanja interest on the suit land and duly discharged that burden of proof.

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Counsel argued that the burden lay on the appellant to rebut or disapprove the respondents' kibanja claim. He submitted that the trial Judge was not in error to observe that the respondents did have a kibanja interest in the land.

Regarding Ground No. 6, Counsel for the appellant contended that the procedure to be followed at visits to the locus in quo as laid down in several cases was not followed and as a result, the findings of the trial Judge cannot be sustained. He relied on Painento Omwero v Saulo Zebuloni HCCA No. 31 of 2010 and David Acar & 3 Ors v Alfred Acar Aliro If 982l HCB 60.

In conclusion the appellant prayed for orders that this court reevaluates the evidence, sets aside the order that the respondents had a lawful kibanja interest/ bona fide occupants in the land and the appeal be allowed with costs.

In reply, counsel for the respondent contended that the trial Judge did not only rely on the evidence at the Locus visit but the whole record while writing her judgment. He submitted that the trial Judge properly directed herself on the issue of Locus thus there was no miscaruiage of justice as it was properly conducted.

Counsel for the respondent prayed that this court disregards the appeal and dismiss it with costs.

1 5

# The Consideration of Court

I have carefully studied the court record and considered the submissions of both counsel including the authorities availed in support thereof.

- 5 I am alive to the duty of this court as a first Appellate Court. On first appeal, the appellant is entitled to expect this courtA own reappraisal and exhaustive scrutiny of the materials which were laid before the trial judge. (See rule 30 (1) (a) of the Judicature (Court of Appeal rules) Directions, SI 13-10. In - Kifamunte Henry v Uganda SCCA No. 10 of 1997, the Supreme Court articulated the principle that a first appellate court has a duty to review the evidence of the case, to reconsider the materials before the trial Judge and make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. I have born in mind the above principles and the fact that I did not have the opportunity to see and hear the witnesses testify, fast hand. 10 15

Ground No. 1 is concerned with dealings on this land prior to the appellant's coming into the picture. At all times material to this case the appellant was a registered proprietor from 20th of May 2OO2. It is also concerned with the dealings between the 2"d Respondent and one Ssalongo Samwiri Musoke which occurred while the Land Reform Decree of 1975 was in force.

Regarding the Ground No. 1 therefore; the appellant submitted that the trial Judge was at fault for finding that failure

to give notice to the prescribed authority as stipulated in section 4 (1) of the Land Reform Decree was a curable irregularity.

It is not in dispute that the appellant is the registered proprietor of the land in issue. The contention here by counsel for the appellant was that the respondent's acquisition of a kibanja interest was unlawful. The 1"t respondent submitted that his father Blasio Kizza Walusimbi acquired the Kibanja from Ssalongo Musoke Samwiri on 24th of January1989. Ssalongo admitted that he did not seek the authority of the landlord or their consent to sale the land to Kiiza Walusimbi. The parties dwelt at length on the question of consent under the operation of the 1975 Decree.

In Asuman Musenvi v M. Buwule SCCA No. 14 of2016, court noted that; "The transaction between Kaggwa and the appellant falls under the Land Reform Decree of 1975 since the transaction took place on 2611O11996 and this was before the coming into force of the Land Act of 1998."

In the present case, since the 2nd respondent, Walusimbi acquired the disputed Kibanja in 1989, the law applicable then was the Land Reform Decree of 1975.

Section a(f) of the Land Reform Decree provided that ^a holder of a customary tenure on any public land may after notice of not less than three months to the prescribed authority or a lesser period as the authority approves transfer such tenure by sale or gift subject to such transfer not vesting the transfer of title

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I in the land to the transferee except the improvements and developments carried within the land.

In Paul Kisekka Sakku v Seventh Dav Adventist Church

s SCCA No. 8 of 1993 while relying on section 4 (1) of the Land 10 Reform Decree the court held that; "a holder of a customary tenure may transfer it after three months' notice to the "prescribed authority," and that there was no evidence that the person who had sold to A had given notice to the prescribed authority thus A did not lawfully acquire the land."

Similarly in Godfrey Ojwans v Wikson Basonza CACA No. 25 of 2002 and Lawrence Kitts v Bugisu Cooperative Union, SCCA No. 12 of 2OO4 courts held that failure to give notice under the Land Reform Decree was fatal to the transfer.

¹ However. in a later decision of Asuman Mugenyi v M Buwule (supra) the Supreme Court took a different view and held that: 5

> "... The sale was not illegal because of the gap in the law that was existing then in the Land Reform Decree because it provided for the prescribed authority but did not state who that authority was so that people could give the notice for their consent during their transactions. I find the eviction order issued by the Justices of the Court ofAppeal erroneous and hereby quash their findings and the order."

This would mean that the Supreme Court took a more liberal view of the meaning of consent by the Land Decree and was not willing to go down the road oflack ofconsent.

Further in Tifu Lukwago v Samrnuel Mudde Kizza SCCA No. 13 of 1996, it was held that failure to give such notice was a mere irregularity not nullifying the sale. Court further clarified +"he ^position in Paul Kiseka Ss k eventh Days Adventists Church SCCA No. 3 of 1993 where it was noted that there was ^a lacuna in the law, in that the "prescribed authority" for purposes of section a (1) of the Decree is not clear and that that there is need to clarify by the legislature who is the prescribed authority in relation to section 4(1) and (2) of the Land Reform Decree.

In view of the reasoning in Asuman Mugenyi (Supra) and as was also observed in Paul kisekka Sakku (supra); there was ^a lacuna in the law by not clearly stating the prescribed authority. In this case Ssalongo Samwiri Musoke could not be blamed for not giving the required notice to a prescribed authority when he passed his kibanja to the 1"t respondent's father.

As a matter of principle, failure to give notice under section 4 (1) of the Land Reform Decree is a curable irregularity. The question of relevance of this ground will be discussed later. Suffice is to say the trial Judge did not err. Ground No. 1 fails.

To fully appreciate and canvass the questions of law and fact involved in this appeal adequately, I wish to proceed by answering Grounds No. 2 and No. 3 together; whether the respondents 10

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were bona fide occupants at the time the appellant was registered as proprietor in 2002 and therefore that the appellant's title was subject to the Kibanja interest.

The genesis of this claim is that the appellant through her husband became a registered proprietor of the land in question when Mr. Biriggwa purchased the same from Ezekiel Kimanje in 1997. The question for discovery here is the right of occupancy of the l"t and 2nd respondents vis-i-vis the rights of the registered proprietor.

On the one hand it is an agreed fact that the Appellant, Yewagnesh Biriggwa became a registered owner on the 20th of May 2O02. 10

On the other hand, the case for the respondents is that there was in existence, a piece of land customarily held which Ssalongo Samwiri Musoke sold to the 2nd Respondent in 1989. The respondents assert that the acquisition and uninterrupted possession and use for cultivation of the land by DW2, Samwiri Musoke for 16 years coupled with the unchallenged evidence of payment of Busuulu to the landlord in 1975 was proof that ^a customary interest existed. According to the respondents the trial Judge made a correct finding of fact that, "as observed at the time of the locus (sic in quo) visit on the 8th of November 2013, the suit land had not been cultivated for at least a prior 10 years. The two parties then assert the propriety of interests as under the Land Reform Decree of 1975. Counsel for the appellant submitted that 15 20 25

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DW2 did not obtain the consent of the landlord before selling his Kibanja to the respondents and that learned trial Judge erred to conclude that the said omission did not vitiate the sale and was a curable irregularity under the Land Reform Decree.

On the contrary, counsel for the respondent submitted that the $\mathsf{S}$ requirement to inform the landlord of a possible sale of a Kibanja did not vitiate the fact that the $2^nd$ Respondent was a Kibanja owner and passed his Kibanja to the $1^st$ respondent.

I have cautiously considered the law and the facts relating to the assertions to ownership of the Kibanja in question and how it relates to the undisputed fact that the appellant is now the registered owner of title. Land in Uganda is held in accordance with Article 237 of the Constitution. The relevant part of the article stipulates as follows:

## **237. Land ownership.**

(1) Land in Uganda belongs to the citizens of Uganda and shall vest in them in accordance with the land tenure systems provided for in this Constitution.

(3) Land in Uganda shall be owned in accordance with the following land tenure systems—

- (a) customary: - (b) freehold: - (c) mailo; and - (d) leasehold.

The Constitution of Uganda envisages the above four tenures 25 sitting neatly, side by side without conflict, confluence or confusion. The laws made before and after the Constitution, however, reflect a system that is rife with acrimony, rancor and

conflict. The enactment of the Land Act was meant to answer some of the pre-existing maladies and dysfunctionalities on land. However, far from solving the dilemmas, the Land Act CAP 227 As Amended, seems to have introduced new types of land users with overlapping rights over the owners. The Act, as Amended creates and in some instances, re-enacts or gives voice to new actors on land under section 29 thereof. The categories of equitable interests can be advertently and inadvertently created over land. The section introduces the new players by way of definition and classifies them in two.

29. Meaning of "lawful occupant" and "bona fide occupant". (1) "Lawful occupant" means—

- (a) a person occupying land by virtue of the repealed— - (i) Busuulu and Envujjo Law of 1928; - (ii) Toro Landlord and Tenant Law of 1937; - (iii) Ankole Landlord and Tenant Law of 1937;

b) a person who entered the land with the consent of the registered owner, and includes a purchaser; or

(c) a person who had occupied land as a customary tenant but whose tenancy was not disclosed or compensated for by the registered owner at the time of acquiring the leasehold certificate of title.

(2) "Bona fide occupant" means a person who before the coming into force of the Constitution—

(a) had occupied and utilised or developed any land unchallenged by the registered owner or agent of the registered owner for twelve years or more; or

(b) had been settled on land by the Government or an agent of the Government, which may include a local authority

(5) Any person who has purchased or otherwise acquired the interest of the person qualified to be a bona fide occupant

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under this section shall be taken to be a bona fide occupant for the purposes ofthis Act.

The classification of tenancies is spotted throughout the Act. In section 31 they are referred to as tenancies by occupation. Tenancy by occupancy creates rights of security of occupancy. The security such a tenancy creates subsists only as long as the tenant is in occupation.

In the set of facts before us there is no dispute that Ssalongo Samwiri Musoke, an erstwhile bona fide occupant within the meaning of section 29 (1) the land Act passed his kibanja to the 2nd Respondent in 1989. The respondents assert that the acquisition of and the uninterrupted possession and use for cultivation of the land by DW2, Samwiri Musoke for 16 years coupled with the unchallenged evidence of payment of Busuulu to the landlord in 1975 was proof that indeed a bona fide occupancy existed. Up to this point, the person to whom he passed this right of occupancy would enjoy security ofoccupancy. 10 15

## In Karnpala District Land Board & anor v National Housing & Construction Corporation SCCA No. 2 of 2004, Odoki CJ held: 20

"I have already held that the respondent had been in occupation or possession of the suit land for more than twelve years at the time of coming into force of the 1995 Constitution. The respondent had not only occupied the land but had also utilized it, without any challenge from Kampala City Council. The respondent was

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entitled to enjoy its occupancy in accordance with article 237(8) of the Constitution and section 31(1) of the Land Act if the suit land was registered land."

Further, in Dr William Kaberuka & Anor v N. K Investrnents Ltd & Kampala District Land Board CACA No. 80 of 2008, this court opined that:

> "It appears to us clearly that for one to qualify to be a bona fide occupant that person must have occupied and utilized the land in issue or must have developed it. Utilization or occupation alone would not suffice. They both must be present."

However, the trial Judge observed that the situation obtaining at the time she visited the locus in quo on the 8th of November 2013, the land in question remained uncultivated for at least a prior 10 years. This evidence tallies with the evidence of PW1 that when she and her husband acquired the land, it was vacant, uncultivated, and uninhabited. The position that the land was vacant and had no developments on it prevailed from ¹⁹⁹⁷ continued even by the time the court visited the locus in quo. PW1, the appellant's testimony was that her attention was drawn to a note from two gentlemen one of who was Herbert Walusimbi claiming that Mr. Biriggwa, husband to the appellant, had sold them the land. The note was dated 10'h of January 2011. The other occurrence of interest to the appellant was new developments which appeared on the land in November 2011.

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They included someone depositing a heap of bricks and sand and digging a pit latrine. The learned trial Judge visited the locus in quo and found that there were no signs of recent grading or cultivation, there was an utilised bush, a 20-feet excavated pit was on the land and no physical developments. It was the finding of the trial Judge that the land in question had not been used for 10 years. The latter finding is crucial to the assertion of rights of any sort of tenancy by occupation. This calls for a granular look at section 37 of the Land Act as amended. It stipulates as follows:

## 37. Abandonment and termination of occupancy.

(1) Subject to section 27, where a tenant by occupancy voluntarily abandons his or her occupancy-

(a) the right ofoccupancy shall lapse;

(b) the occupant may remove any structures, buildings and other things placed by him or her on the land but not dams or trees; (c) the occupant is not entitled to any compensation for loss of the occupancy.

(2) For the purposes of subsection (1), a person shall be taken to have abandoned his or her occupancy-

(a) where he or she gives notice to the registered owner ofhis or her intention to abandon the occupancy; or

(b) where he or she leaves the whole of the land unattended to by himself or herself or a member of his

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t6 or her family or his or her authorised agent for three years or more.

The Land Act CAP 227 as amended limits the rights of tenants to occupancy. The trial Judge erred by assigning a Kibanja holder more rights on the land than the right of occupancy. Having found that by 2013 the land appeared uninhabited and unutilised for over ten years, the trial Judge ought to have found that they were no longer bona fide occupants for reason of abandonment. A person who is not in occupation of land continuously and uninterrupted for over 12 years cannot be said to acquire adverse rights as against the registered owner. A person claiming to be a bona fide occupant for reason that he bought from a bona fide occupant loses the status when he ceases to occupy and utilise the Iand. Had the trial Judge been alive to the provisions of the Land Act as amended, the Law prevailing at the time the transactions on this land took place, she would have found that the appellant purchased land that was vacant and unencumbered. I therefore find that the Learned Trial Judge erred in law and fact in holding that the respondents who had last cultivated the land in ¹⁹⁸⁹ were bona fide occupants at the time the appellant was registered as proprietor in 2OO2. I find that the Learned Trial Judge erred in law and fact to hold that the appellant's registered title was subject to the Kibanja interest of the respondents. Ground No. 2 and No. 3 are successful.

1.7

The implication of the above findings is that for one to qualify to be a bona fide occupant, they must have settled and utilized the Iand unchallenged by the registered owner for twelve years or more before the coming into force of the 1995 Constitution.

5 Regarding the 4th ground 4 whether the Learned Trial Judge erred in law and fact in her assumption that the burden of proof to disprove that the respondents had a Kibanja interest in the land lay on the appellant. I cautiously re-evaluated the evidence on trial and the findings of the learned trial Judge. I find that the trial Judge dwelt profoundly on the kibanja interest created in the 1970s and concluded by finding that the appellant did not rebut the proof that this was a kibanja holding. The learned trial Judge got herself in a pickle in equating a bona fide occupant in this particular scenario to ownership of customary land which is held in perpetuity. She found that the onus was on the appellant to dispel the respondent's claim that they held a kibanja in perpetuity. I find the proposition problematic considering that in the same judgment the learned trial Judge referred to the respondents as bona fide occupants and used the status to conclude that the appellant's title was subject to encumbrances created under section 29 of the Land Act as amended. Had the trial Judge paid due regard to the law she would have found that the duty to prove a fact lies on the party who asserts that fact. See section 101 ofthe Evidence Act. i0 15 20 25

1B

1B

Regarding the 5th ground, counsel for the appellant appears not to have submitted on this ground. Nonetheless, I find that the trial Judge evaluated the evidence on record although for the most parts. I do not agree with her conclusions.

5 In respect of the 6th Ground, I found that a locus in quo was carried out. Clearly the trial Judge could have paid attention to ensure that all parties had a right to be heard. It is the duty of the I court to ensure that all parties are fully represented at the locus in quo. I have studied the court record and found, however that 10 the finding of the locus in quo did not prejudice the appellant in material terms. Painento Omwero v Saulo Zebuloni HCCA No. 31 of 2010 and David Acar and 3 Others v Alfred Acar Aliro 1982 HCB 60 were applied to evaluate the procedure by the j learned trial Judge. I found minor procedural irregularities which 15 however. did not lead to a miscarriage of justice. There was no obvious miscarriage ofjustice for reason that the record appears to have captured the evidence quite objectively and related in ^a manner that enabled this court to assess what was obtaining. Although the learned trial Judge mis-interpreted and misapplied 20 what she found, this evidence was relevant in helping this court resolve this matter. I am therefore inclined to dismiss this ground of appeal.

^Itn tt i. appeal I have found no basis upon which the 3.d and 4th respond.ents could be party to this appeal. As a result, they are 25 discharged.

1.9

In the result, I find that this appeal materially succeeds in Grounds No. 2,3 and 4.

I find that the appellant purchased the disputed land without any encumbrances and without any occupant and is therefore entitled to vacant possession.

I further find that the appellant is entitled to a permanent injunction permanently barring Respondents No. 1 and No. 2, their agents, and or other person from interfering with the quiet possession of the registered proprietor.

The appellant is entitled, to 50% of the costs of the suit in this court and costs in the court below. 10

I so order.

Dated at Kampala thi...?9.}day of .....1S<F 2023.

Catherine Barnugemereire Justice of Appeal

## THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA CIVIL APPEAL NO. 052 OF 2014

YEWAGNESH BIRIGGWA:::::::::::::::::::::::::::::::::::

### **VERSUS**

## 1. HERBERT WALUSIMBI

## 2. BLAZIO KIIZA

## 3. ST. NOAH COLLEGE SCHOOL BULOBA

## 4. ST. NOAH BOARDING SCHOOL ZANA::::::::::::::::::::RESPONDENTS

(Appeal from the decision of the High Court of Uganda at Kampala (Land Division) before *Kabanda, J dated the 6^th day of December, 2013 in Civil Suit No. 89 of 2011)*

# CORAM: HON. LADY JUSTICE ELIZABETH MUSOKE, JA HON. LADY JUSTICE CATHERINE BAMUGEMEREIRE, JA HON. MR. JUSTICE STEPHEN MUSOTA, JA

## JUDGMENT OF ELIZABETH MUSOKE, JA

I have had the advantage of reading in draft the judgment of my learned sister Bamugemereire, JA. I agree with it, and for the reasons stated therein, I would substantially allow this appeal and make the orders that Bamugemereire, JA proposes.

Since Musota, JA also agrees, the Court, by unanimous decision, substantially allows the appeal and makes the orders proposed in the judgment of Bamugemereire, JA.

## It is so ordered

| $\mathbf{1} \mathbf{1} \mathbf{3} \mathbf{3} \mathbf{3} \mathbf{3} \mathbf{4} \mathbf{4} \mathbf{1} \mathbf{4} \mathbf{4} \mathbf{4} \mathbf{4} \mathbf{4} \mathbf{4} \mathbf{4} \mathbf{4} \mathbf{4} \mathbf{4} \mathbf{4} \mathbf{4} \mathbf{4} \mathbf{4} \mathbf{4} \mathbf{4} \mathbf{4} \mathbf{4} \mathbf{4} \mathbf{4} \mathbf{4} \mathbf{4} \mathbf{4} \mathbf{4} \mathbf{4} \mathbf{4} \mathbf{4} \mathbf{$ | | |------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--| | Dated at Kampala this $237^{\circ}$<br>$\frac{1}{2}$ day of $\frac{1}{2}$<br>.2023. | | | | | | Elizabeth Musoke | | | Justice of Appeal | | | | | | | | | | |

### THE REPUBLIC OF UGANDA

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

### CIVIL APPEAL NO. 52 OF 2014

<table>

YEWAGNESH BIRRIGGWA:::::::::::::::::::::::::::::::::::

#### **VERSUS**

### 1. HERBERT WALUSIMBI

#### 2. BLAZIO KIIZA

### 3. ST. NOAH COLLEGE SCHOOL BULOBA

4. ST. NOAH BOARDING SCHOOL ZANA ::::::::: RESPONDENTS

(Appeal from the decision of the High Court (Land Division) before E. K Kabanda, J dated 6^th December 2013 in Civil Suit No. 89 of 2001)

### CORAM: HON. JUSTICE ELIZABETH MUSOKE, JA

#### HON. JUSTICE CATHERINE BAMUGEMEREIRE, JA

### HON. JUSTICE STEPHEN MUSOTA, JA

### JUDGMENT OF STEPHEN MUSOTA, JA

I have had the benefit of reading in draft the judgments of my sister Catherine Bamugemereire, JA.

I agree with the judgment and the orders she has proposed. I have nothing useful to add.

Dated this $237$ day of $Mar$ 2023

Ma Junio Tim

Hon. Stephen Musota JUSTICE OF APPEAL