Birimumaso v Nkinzehiki (Civil Appeal 270 of 2021) [2025] UGCA 26 (24 January 2025)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE COURT OFAPPEALAT UGANDAAT KAMPALA CIVIL APPEAL NO. 270 OF 2O2I

# (Coram: Cheborion, Gashirabake and Mugenyi, JJA) BIRIMUMASO NANDAWULA: : : : : : : : : : : : : : : : : : : : : : : : : :APPELLANT

VE,RSt]S

# ALLAN NKINZEHIKI: : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : :RESPONDENT

(Appeal from the decision of the High Court of Uganda at Kampala (Land Division) before Kanesa, J in Civil Suit No. 204 of 2014 dated 20th May, 2021)

## JUDGMENT OF CHRISTOPHER GASHIRABAKE JA

tll This appeal is from the decision of the High Court of Uganda (Land Division) before Kawesa, J in Civil Suit No. 204 of 2014 dated 20th May,202l. 15

### Background

l2l The respondent instituted the High Court suit against the appellant seeking a declaration that he was the owner of certain land described as Kyadondo Block 211 Plot 719 at Kikaya-Kyebando in Kampala District ("the suit land") and that the appellant, who at the time was in occupation of the suit land, was a trespasser thereon.

t3] The respondent also sought for an eviction order and a permanent injunction against the appellant, general damages, interest and costs.

l4l The case for the respondent was that, at the time of the institution of the suit, he was the registered proprietor of the suit land having purchased it on 30th 25

5 October, 2002 at a court auction arising from execution proceedings in Nakawa Chief Magistrate's Court Civil Suit No. 145 of 2002.

t5l The appellant was the judgment debtor in the execution proceedings and the suit land was sold to satisfr a decree in favour of the judgment creditor, one George Ntibarikure.

- t6] It was further the case for the respondent that before purchasing the suit land, he conducted a search at the lands ofTice which showed that the appellant was the registered proprietor. He also conducted a physical search and met with area local authorities who confirmed that the appellant was the owner of the suit land. The suit land was vacant at the time and was not in possession of the appellant. 10 - l7l The respondent further averred that around 22nd Octobet 2012, he became aware that the appellant had forcefutly entered the suit land and set up structures thereon. After unsuccessfully engaging the appellant to vacate the suit land, the respondent instituted the High Court suit to enforce his rights to the suit land. 15 - t8] The appellant filed a defence in which she opposed the respondent's suit. The appellant averred that the suit land was some of the land bequeathed to her following the death of her father the late Haji Juma Lutaaya. She further stated that she sold part of her land to one George Ntibarikure but a dispute had arisen with him, because, following a survey, the parties discovered that the actual size of the land was smaller than the size anticipated in the parties' sale agreement. 20 - t9] The dispute resulted in a Court case in which George Ntibarikure sought to obtain a refund of the purchase money for the suit land. The appellant further averred that she had however refunded that money and thus it was unnecessary to sale the suit land as the refund had settled the suit from which the execution arose. 25

5 [0] After hearing the evidence, the leamed trial Judge found that the respondent was a bone fide purchaser of the suit land for value and without notice of the respondent's claims having purchased the land at a court auction. He entered judgment in favour of the respondent with the following reliefs: 1) a declaration that the respondent was the owner of the suit land; 2) an order of eviction against

the defendant; 3) punitive damages of Ug. Shs. 8,000,000/= and 4) costs of the suit. 10

[11] The respondent was dissatisfied with the decision of the leamed trial Judge and now appeals to this Court on the following grounds:

- "l) The learned trial Judge ened in law andfact when he held that the respondent was a bone jide purchaser for vulue with legal title and is the lawful owner of the suit land comprised in Kyadondo Block 2ll Plot 719 at Kikaya - 2) The learned trial Judge erred in law and fact when he sanctioned illegalities lhal were apparent on the record and did not make pronouncements on the same. - 3) The learned trial Judge erred in law and fact when he did not take into account that the respondent's purchase of the suit land was by an execution process that was void abinitio. - 4) The learned trial Judge erred in law when he arrived at conclusions based on his personal obsemation at the locus in quo without supporting evidence on court record.

- 5 5) The learned trial Judge ened in law and fact when he held that the appellant ought to have obeyed the Court order to bring her certifrcdte to Court. - 6) The learned trial Judge erued in law and fact when he held that the appellant's behaviour was a clear culminalion of conlempt of Court proceedings and she acted in trespass illegally constructing a house on the suit land. (sic) - 7) The learned trial Judge erred in law and fact when he conducted proceedings ond arriving (sic) al a wrong decision that denied the oppellont a fair hearing. - 8) The learned trial Judge erred in law and fact when he awarded the respondent punitive damages, costs and eviction of the qpellant following wrong principles of law." - [12] The appellant prayed this Court for the following orders: - 'l) That the appeal be allowed. - 2) That the orders of the learned trial Judge be set aside. 20 - 3) That the appellant is the rightful owner of the suit land and the respondent's certilicate of title to the suil land was illegally issued and is hereby cancelled. - 4) Costs of the appeal and of the proceedings in the High Court be uwarded lo the oppellant." - [13] The respondent opposed the appeal and prayed that this Court dismisses it.

#### 5 Representation

[4] At the hearing of the appeal, Mr. Mohammed Ali Kajubi appeared for the appellant. Mr. Stanley Omwony and Mr. Philip Muhumuza jointly appeared for the respondent.

Counsel for both sides filed written submissions.

# 10 Analysis

[5] I have carefully studied the record, and also considered the respective parties' submissions and the law and authorities cited. This is a first appeal, the trial of the relevant suit having been conducted by the High Court.

[6] Therefore, I will begin by setting out the following applicable principles.

Rule 30 (l) (a) of the Rules of this Court provides that on any appeal from a decision of the High Court acting in the exercise of its original jurisdiction, the court may reappraise the evidence and draw inferences of fact. It is also wellestablished liom case law that this Court, when handling a first appeal, has a duty to consider the material before the trial Court and come up with its own conclusions. See: Kifamunte Henry vs. Uganda, Supreme Court Criminal Appeal No. 10 of 1997. 15 20

l17l With those preliminary observations, I will proceed to resolve the grounds of appeal.

# Ground I

### 25 Appellant's submissions

5 [18] Counsel for the appellant submitted that the leamed trial Judge's finding that the appellant was a bone fide purchaser of the suit land for value and without notice was not supported by the evidence adduced at the trial. Counsel pointed out that the evidence given by the appellant in her witness statement was that she met the appellant just before he purchased the suit land and wamed him not to proceed with his plans to purchase the suit land but he had ignored her. He submitted that since the appellant was not cross-examined, her evidence should have been believed by the trial Court. 10

t19] Furthermore, counsel submitted that the circumstances of the case, which showed that the appellant located the suit land on his own and without the assistance of the bailiffwho purportedly sold it to him, indicated that the appellant had prior knowledge of the appellant's interest, especially considering that the advert for the auction (P. Ex. 2) did not give particulars of the location of the land.

t20l Counsel for the appellant further submitted that the leamed trial Judge erred in overlooking the respondent's failure to adduce evidence of the bid and 20 acceptance documents and the purchase agreement to prove that he acquired the suit land from a court auction. In counsel's vieq had the trial Court properly adverted to that failure, it would have found that the respondent failed to prove that he was a bone fide purchaser of the suit land for value and without notice. Counsel urged this court to allow ground 1 in view of the above submissions.

### 25 Respondent's submissions

t21) In reply, counsel for the respondent submitted that the leamed trial Judge correctly found that the respondent was entitled to the suit land in respect to which he was the registered proprietor after having lawfully acquired the land at a court auction. Counsel submitted that the respondent's certificate of title was, under 5 Section 59 of the RIA, conclusive evidence that the respondent was the owner of the suit land and further that the title could only be impeached for fraud. The appellant did not plead fraud in her written statement of defence and thus there was no ground for impeaching the respondent's title.

[22) Counsel further submitted that it was not open to the appellant to challenge the validity of the execution proceedings from which the respondent obtained the suit land in the proceedings in the trial Court, and that the proper procedure should have been for the appellant to apply to the Chief Magistrate's Court to set aside the execution proceedings, but this had not been done. 10

l23l Counsel for the respondent urged this Court to uphold the trial Court's finding that the appellant was a bone fide purchaser of the suit land for value and without notice and to disallow ground 1 ofthe appeal. 15

### Ground 2

### Appellant's submissions

124) Counsel for the appellant submitted that the leamed trial Judge erred by overlooking several illegalities that should have led to him cancelling the appellant's certificate of title. 20

125) Counsel pinpointed the following illegalities. First, that the appellant was put into possession of the suit land by a person who was not a court appointed officer. Counsel contended that whereas the respondent claimed to have purchased

the suit property from court bailiffs known as Corridor Agencies, it appears that the person who put him in possession of the suit land was a one Samuel K. Sewagudde, who was not authorised to conduct court auctions. 25

5 [26) The second illegality, according to counsel concemed the time and procedure of conducting the auction in which the suit land was sold to the appellant. According to counsel, the suit land was sold on 29th October, 2002 which was only 28 days from the date it was advertised for sale which was on 1't October, 2002. This rendered the sale illegal since, under Order 22 Rule 64 of the Civil Procedure Rules (CPR), a sale of immovable property in execution may only take 10

place after 30 days fiom the date ofthe public notice or advert.

127) Thirdly, counsel submitted that the special certificate of title given to the appellant following the auction was illegally obtained by the bailiffs Corridor Agencies who sold to the appellant. Under Section 48 (4) of the Civil Procedure Act (CPA), a special certificate of title could only be obtained in execution proceedings by the Court requiring the Lands Office to issue it, only if the judgment debtor's certificate of title was lost or destroyed or he/she wilfully refused to deliver up the duplicate certificate of title. Counsel submitted that the respondent did not adduce any evidence to show that he complied with this procedure, which supports the inference that the sell of the suit land was illegal.

128) Fourthly, counsel pointed out that prior to the respondent being registered as proprietor of the suit land, the Chief Magistrate handling the execution proceedings purportedly ordered for cancellation of his certificate of title, according to a document (Annexture B) to the respondent's plaint. Counsel submitted that, however, under Section 177 of the Registration of Titles Act (RTA), only the High Court is vested with powers to cancel a certificate of title, and thus the Chief Magistrate's order to cancel the appellant's title was illegal.

l29l Fifthly, counsel pointed out that the sale of the suit land to the respondent was conducted on 28th October, 2002 before the certificate of title for the suit land

5 was issued which was on 20th October,2003. According to counsel, the fact that the suit land was sold before its title was deposited in Court was itself an illegality.

[30] Lastly, according to counsel, the sixth illegality was that the sale of the suit land to the respondent was done in contravention of Order 22 Rule 1 9 ( 1 ) (a) of the CPR which states:

10 "19. Notice to show cause against execution in cerlain cases.

(l) llhere an application for execution is made-

(a) more than one year after the date of lhe decree, the court executing lhe decree shall issue a notice to the person against whom execution is applied for requiring him or her to show cause, on a date to be fixed, why the decree should not be execuled against him or herl"

[3 1 ] Counsel for the appellant submitted that the decree in the present case was issued on 9th June, 2002 and the order for delivery of the suit land in execution of the said decree was issued on 6th February 2004 which was more the 1 year envisaged in the above section, yet the executing court did not call upon the applicant to show cause before execution was allowed against her.

[32] Counsel for the appellant concluded by submitting that all the foregoing illegalities should have led to the trial Court ruling against the respondent and that in failing to do so, the trial Court clearly sanctioned all the mentioned illegalities which was contrary to the established principles articulated in Makula

25 International Ltd vs. Cardinal Nsubuga and Another, Supreme Court Civil Appeal No. 4 of 1982, to the effect once an illegality is brought to a Court's attention, it should overlook other issues and resolve it. #### 5 Respondent's submissions

[33] In reply, counsel for the respondent submitted that ground 2 was framed in a manner that offends Rule 86 (1) of the Rules of this Court because it does not specifr the illegalities to which it refers, and therefore ought to be struck out.

l34l In the altemative that the ground is upheld, counsel responded to the appellant's submissions as follows. As regards the allegation of illegality on grounds that the suit land was sold by Sam Ssewagudde who was not an officer of Court, counsel submitted that the appellant did not adduce evidence to prove that the person was not an officer of court, and thus this illegality was not proven.

15 [35] In relation to the allegation that the sale of the suit land was conducted contrary to Order 22 Rules 62 and 63 of the CPR, counsel for the respondent submitted that the evidence shows that the sale was conducted within the time permitted by the court and was therefore valid.

[36] As for the allegations relating to unlawfully obtaining a special title for the suit land, counsel for the respondent submitted that the special title was processed in accordance with Section 48 (4) of the CPA, and the processing was justified because the appellant refused to hand over her duplicate title to facilitate the execution proceedings.

l37l Counsel for the respondent submitted that this Court ought to find that the sale of the suit land to the appellant was not tainted with illegality and to disallow ground 2.

# s Ground 3

## Appellant's submissions

[38] Counsel for the appellant submitted that the learned trial Judge erred in overlooking several illegalities that rendered the execution process from which the respondent purchased the suit land, void abinitio. Firstly, according to counsel, the execution process was illegal because the Chief Magistrate ordered for cancellation of the appellant's duplicate certificate of title and had it replaced with a special certificate of title yet she had no power to do so.

[39] Secondly, the respondent did not adduce evidence of a bid offer, sales agreement, valuation report, warrant of attachment and retum of warrant to support

15 the allegedjudicial sale of the suit land. Counsel contended that the absence of this material rendered the sale of the suit land void abinitio.

[40] Fufthermore, counsel for the appellant submitted that the leamed trial Judge erred in relying on an identification document PIDI to find that there was a judicial sale of the suit land to the respondent which was irregular since only exhibited documents may be relied on to found a court's decision.

Counsel concluded by submitting that ground 3 be resolved in the appellant's favour.

#### Respondent's submissions

4ll With respect to the submission that the Chief Magistrate had no power to order for issuance of a special certificate of title, counsel for the respondent submitted that Section 48 (a) of the CPA entitled the executing court to order for issuance of a special certificate of title if the judgment debtor refuses to deliver up

5 his/her duplicate certificate of title. Counsel submitted that the appellant, who was the judgment debtor in this case wilfully refused to hand over her duplicate certificate of title which justified the order for issuance ofa duplicate certificate of title.

[42] As for whether the leamed trial Judge wrongly relied on PIDI, an identification document, counsel for the respondent submitted that the said document was properly tendered in evidence and was rightly relied on by the trial Judge. 10

143) For these submissions, counsel for the respondent submitted that ground 3 ought also to be disallowed.

# 1s Ground 4

## Appellant's submissions

l44l Counsel for the appellant submitted that the leamed trial Judge unjustifiably found the appellant an untruthful witness basing on observations he made during the visit to the locus-in-quo. Counsel pointed out that the leamed trial Judge had commented that the appellant was panicky during the visit to the locus-in-quo and was unwilling to answer questions. Counsel contended that the leamed trial Judge's comments effectively tumed the trial Judge into a witness and were improper, and moreover, that the comments were not supported by any other evidence on record.

25 Respondent'ssubmissions

[45] In reply, counsel for the respondent submitted that a trial court is entitled to make observations about the demeanour of any witness during the locus-in-quo

5 visit as was done in the present case where the leamed trial Judge commented on the respondent and the appellant's demeanour. Counsel further submitted that the leamed trial Judge was justified in finding that the appellant told deliberate lies during the locus visit because whereas she had stated in her testimony that she had constructed the houses on the suit land over 30 years ago, the leamed trial Judge 10 had observed during the locus visit that the said houses were newly constructed.

[46] Counsel for the respondent contended that in those circumstances, the leamed trial Judge had properly conduced the proceedings at the locus and made proper findings in regard to the appellant's demeanour. Counsel submitted that this Court ought to also disallow ground 4.

# 1s Ground 5

## Appellant's submissions

147) In support ofground 5, counsel for the appellant submitted that the learned trial Judge's finding that the appellant had refused to comply with the Chief Magistrate's Court's order to deliver her duplicate certificate was eroneous because it was not supported by evidence.

[48] Counsel submitted that there was no evidence that the said order had ever been made in the first place.

#### Respondent's submissions

25 149) In reply, counsel for the respondent submitted that the evidence showed that a special certificate of title was issued because the appellant refused to comply with a court order requiring her to deliver her duplicate certificate of title to the Court. According to counsel, the appellant never applied to set aside the court order 5 requiring her to deliver her title and that order remained valid and cannot be challenged by the appellant. Counsel urged this Court to also disallow ground 5.

## Ground 6

## Appellant's submissions

10 [50] Counsel for the appellant submitted that the leamed trial Judge's finding that the appellant had trespassed on the suit land belonging to the respondent was not supported by the evidence. He contended that the evidence showed that the respondent had never been in possession of the suit land and thus could not sustain an action for trespass against the appellant.

#### Respondent's submissions

15 20 [51] In reply, counsel for the respondent submitted that there was evidence that the trial Court granted an order of temporary injunction restraining the appellant from tampering with the suit land and not to construct any structures on the suit land until the suit was determined. However, during the locus visit' the trial Court observed that the appellant had constructed a house during the pendency of the suit.

152) According to counsel, this was evidence that the respondent acted in contempt of the order for temporary injunction, and justified the leamed trial Judge's finding that the appellant had acted in contempt of court.

## Ground 7

# 2s Appellant'ssubmissions

5 [53] Counsel for the appellant contended that the leamed trial Judge conducted the trial in a manner that denied the appellant her right to a fair hearing as guaranteed underArticle 28 (1) ofthe 1995 Constitution.

[54] Counsel for the appellant substantiated on this contention by pointing out the following respects in which the leamed trial Judge allegedly violated the appellant's right to a fair hearing. Firstly, in finding that the appellant had occupied the suit land in disrespect of court orders yet there was no evidence of a court order served on the appellant requiring her to vacate the suit land. Secondly, in finding that the appellant acted panicky and refused to answer questions during the locus visit yet there was no evidence of a question put to her that she refused to answer. Thirdly, that the leamed trial Judge was biased and ignored the rowdy behaviour of the respondent during the locus visit.

[55] Counsel urged this Court to find that the leamed trial Judge was biased and did not afford the appellant a fair hearing and to allow this ground.

#### Respondent's submissions

20 [56] Counsel for the respondent, in reply to the submissions on ground 7, submitted that the ground is vague and does not concisely point out any error as to how the leamed trial Judge conducted the proceedings in a manner that denied the appellants a fair hearing. Counsel prayed that this Court strikes out ground 7 of the appeal.

# 2s Ground 8

## Appellant's submissions

5 l57l In support ofground 8, counsel for the appellant submitted that the reliefs of damages, costs and an eviction order that the leamed trial Judge awarded in favour of the respondent were erroneously awarded as they were not supported by evidence.

#### Respondent's submissions

[58] Counsel for the respondent supported the reliefs awarded to the respondent by the learned trial Judge. As regards the eviction order, counsel for the appellant submitted that the leamed trial Judge found that the respondent held a legal title for the suit land, having lawfully obtained it in a court auction. The leamed trial Judge was therefore right to make an eviction order against the appellant who was occupying the suit land as a trespasser. 10 15

[59] As for the award of damages, counsel for the respondent submitted that the leamed trial Judge was right in awarding the respondent general damages of Ug. Shs. 8,000,000/: having rightly considered that the respondent was entitled to compensation for the appellant's acts oftrespass on the suit land which belonged to

the respondent. 20

> [60] Counsel submitted, relying on the case of Uganda Breweries Ltd vs. Uganda Railways Corporation, Supreme Court Civil Appeal No. 6 of 2001, that an appellate court should not interfere with an award of damages awarded by the trial Court, in exercise of its discretion, unless the award was based either on an

erroneous principle of law, or the award was outrageously high or ridiculously low, so as not to reflect the measure of damages the successful party to the suit ought to have been awarded. 25

5 [61] In counsel's view the amount awarded as damages in the present case were justified and ought not be set aside.

162] As for costs, counsel submitted that under Section 27 of the CPA, costs follow the event, and in this case, the respondent as the successful party was entitled to costs as awarded by the leamed trial Judge.

[63] Counsel for the respondent concluded by urging this Court to disallow ground 8 as well. 10

## Appellant's submissions in rejoinder

[64] I have considered the appellant's submissions in rejoinder but found that they merely reiterate the earlier arguments and as such have not reproduced them in this judgment.

## Decision on the grounds ofAppeal

[65] I will handle the grounds of appeal in the following order: ground I independently, followed by grounds 2,3 and 5 jointly, and thereafter grounds 4, 6, Tjointly, and lastly ground 8, independently.

## 20 Ground I

[66] In the suit before the High Court, the respondent sought a declaration that he was the owner of the suit land for which he was the registered proprietor. In my view, a decision on this declaration was, in the circumstances of this case, fairly straight forward, and here is why. Under Section 59 of the Registration of Titles

25 Act, Cap. 230 (RIA), a certificate of title granted under the Act is conclusive evidence that the person named in it is the registered proprietor of the suit land to which the title relates.

5 167l In this case, the respondent held a certificate of title for the suit land and this made it conclusive evidence that he was the owner of the suit land.

[68] It must also be stated that a certificate of title issued under the RfA, although conclusive evidence, may be impeached on several grounds, most notably fraud. See: Section 176 (c) of the RTA. A person seeking to impeach the registered proprietor's certificate of title for fraud must plead the fraud by setting out the particulars of the fraud on which he relies in his/her pleadings.

[69] This is made clear by Order 6 Rule 3 of the Civil Procedure Rules, CPR which is in the following terms:

"In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default or undue inJluence, and in all other cases in which the porticulars may be necessary, the particulars wilh dates shall be stated in the pleadings." 15

t70] In this case, the appellant, in reply to the respondent's suit, stated in her written statement of defence, as follows:

- 20 u3. The defendant denies all the allegations slated in paragraphs 4, 5, 6, 7,8 and 9 of the plaint and in reply thereto the defendont sholl aver as follows: - (s) That she is a beneficiary of the estate of the late Haii Juma Lutaayo who died in the year 1998 and was buried at Kikaya near the suit land - (b) In the course of dislribution of the deceased's estote, some beneficiaries got properties located at Mukono, Soroti and 5 Mbarara but the defendant and her two other sisters got land Iocated at Kikaya.

- @ The defendant sold some portion of her land lo a one George Ntibarikure. However, after surveying this land it h,as discovered that the ocresge was less than what the defendant had sold. The defendant refunded all the monev to the sil l)urchaser in lhe case at Nakawu Civil Suil No. 145 of 2002. There was no anv need to auction the suil Drcpertv. - (d) When the plaintiff was brought on the suit land to inspect, the defendant worned him not to buy il because the defendant has got the owner's duplicate certijicate of tille. - (e) The plaintiff has never taken possession of the suit land. It is the defendant who is in occupation of the same with a reside nt ial ho use th ereo n. "

t71] From the above excerpt, it is clear that the appellant did not plead fraud as required of her under the law. I would therefore agree with counsel for the respondent's submission that the appellant did not, in her written statement of defence, plead fraud against the respondent. In my view, a party's case is only as good as hislher pleadings, and this means that a parry cannot succeed on a case not sufficiently pleaded. 20

l72l It is safe to assume that the appellant sought to impeach the respondent's title to the suit land, and she would only have done so by proving fraud against the latter. However, the appellant did not plead fraud and having failed to do so could not establish any against the respondent. 25

5 I73) I found remarkable, the casual approach taken to drafting the appellant's written statement of defence, especially the failure to raise fiaud and set out particulars, as required by law. The appellant ought to have known that failure to raise fiaud meant that she could not impeach the respondent's certificate of title.

174) In those circumstances, I cannot fault the leamed trial Judge's decision to declare the respondent, who held a certificate of title for the suit land, as its lawful owner. 10

I would disallow ground I ofthe appeal.

### Grounds 2,3 and 5

[75] The appellant, in grounds 2, 3 and 5 of the appeal, alluded to several itlegatities in the respondent's acquisition of the land, which she contended ought to have influenced the leamed trial Judge to rule against him. I have noted all these illegalities alleged to have arisen during the execution process by which the respondent acquired the suit land. 15

176l However, I found no need to address the same because of two reasons. First, the appellant having failed to plead fraud against the respondent meant that she could not impeach his title by raising illegalities. Secondly, most of the alleged illegalities require further investigation especially considering that they arise from a completed execution process that has never been set aside or challenged. I would agree with counsel for the respondent that the appellant's best remedy ought to have been to apply to set aside the execution proceedings leading to the sale of the suit land, and not to challenge the execution proceedings as a defence to the present suit. For these reasons, I would find that the respondent's title could not be impeached in the circumstances of the present case, despite the alleged illegalities. 20 25

## 5 [77) I would also disallow grounds 2,3 and 5

### Grounds 4,6 andT

t78] I have noted grounds 4, 6 and 7 but I consider that my conclusion on ground I renders it unnecessary to discuss these grounds.

## 10 Ground 8

l79l In ground 8, the appellant challenges the reliefs, granted to the respondent, of punitive damages, costs and eviction order contending that the decision to grant the was based on wrong principles of law.

15 [80] As regards punitive damages, counsel for the appellant submitted that the respondent suffered no injury or loss to justify the award of these damages. In Whiten vs. Pilot Insurance Co. [2002] t S. C. R. 595, the Canada Supreme Court, while discussing the principles on punitive damages, stated as follows:

defendant rather than comDensate a olaintiff (whose Iust comoensalion "...punitive damages are awarded against a defendant in exceptional cases for "malicious, oppressive and high-handed" misconduct that "offends the court's sense of decency": Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), p9951 2 S. C. R 1130, at para. 196. The test thus limits the ah,ard to misconduct that reDresents a marked departure from ordinary standards of decent behaviour. Because their obiective is to punish the will alreadv have been assessed), punitive damases straddle the frontier between civil law (compensatiod and criminal law (punishmenil."

- 5 [81] The question is whether there was such malicious, oppressive and highhanded misconduct by the appellant of the nature that represented a marked departure from ordinary standards of decent behaviour, to justifr the award of punitive damages. On his part, the leamed trial Judge stated as follows when awarding punitive damages: - "...punitive damages of Shs. 1,000,000/= (one million shillings) per year for 8 years ofpain and suffering since 2012 when the defendanl illegally entered on the land, totalling to shs. 8,000,000ts (eight million shillings)" 10

[82] From the above passage, it appears that the leamed trial Judge intended to award damages to the respondent for pain and suffering caused by the appellant illegally entering on the suit land. Damages representing pain and suffering belong to the category known as general damages and not punitive damages. Moreover, in the present case, the respondent pleaded general and not punitive damages. I would therefore find that the leamed trial Judge erred in awarding punitive damages.

- [83] Having said that, I am of the view that in this case, the respondent was entitled to damages for inconvenience due to the appellant's acts of denying him possession of the suit land. I would therefore overlook the misnomer of the learned trial Judge referring to the damages as punitive damages and maintain the award of Ug. Shs. 8,000,000/: as general damages to the respondent. 20 - [84] As for the eviction order against the appellant, I would uphold it because rn the present case, it was necessary for the learned trial Judge, having found that the appellant was illegally in possession of the suit land, to order for her eviction therefrom. 25

- 5 [85] I would also uphold the costs order which was justified since the respondent who was the successful party in the lower court was awarded costs. - [86] I would disallow ground 8.

#### Decision

[87] For the above reasons, I would find that all grounds of the appeal fail, and 10 accordingly dismiss the appeal with costs to the respondent.

Dated, signed and delivered at Kampala this 202s.

A\$kouv oi

15 t I

Christopher Gashirabake JUSTICE OF APPEAL

#### THE REPUBLIC OF UGANDA

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

#### CIVIL APPEAL NO. 270 OF 2021

(Coram: Cheborion, Gashirabake and Mugenyi, JJA)

BIRIMUMASO NANDAWULA...................................

#### **VERSUS**

ALLAN NKINZEHIKI...................................

(Appeal from the decision of the High Court of Uganda at Kampala (Land Division) before Kawesa, J in Civil Suit No. 204 of 2014 dated 20th May, $2021)$

JUDGMENT OF CHEBORION BARISHAKI, JA

I have had the benefit of reading in draft the judgment prepared by the Hon, Justice Christopher Gashirabake, JA in the above appeal and I agree with the analysis he has made, the conclusions reached and the orders he has proposed.

Since Asa Mugenyi JA also agrees, this appeal is dismissed with costs to the respondent.

is so ordered

Dated at Kampala this...

Cheborion Barishaki

**Justice of Appeal**

### THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA CIVIL APPEAL NO. 270 OF 2021

*(Coram: Barishaki, Gashirabake, & Mugenyi JJA)*

# BIRIMUMASO NANDAWULA :::::::::::::::::::::::::::::::::::: **VERSUS**

ALLAN NKINZEHIKI :::::::::::::::::::::::::::::::::::

(Appeal from the decision of the High Court of Uganda at Kampala (Land Division) before Kawesa, J in Civil Suit 204 of 2014 dated 20th May 2021)

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

I have had the advantage of reading in draft the judgement prepared by my learned brother, Hon. Justice Christopher Gashirabake, JA. I agree with the reasoning and orders proposed.

24 day Jamy Dated at Kampala this. 2025

Dr. Asa Mugenyi **JUSTICE OF APPEAL**