Bukenya and Another v Nalweyiso (Civil Appeal No 106 of 2015 and 178 of 2014) [2022] UGCA 362 (8 December 2022)
Full Case Text
## THE REPUBLIC OF UGANDA
## IN THE COURT OF APPEAL AT KAMPALA
## CIVIL APPEAL NO 106 OF 2015 & 178 OF 2014
## 1. MATHAIS BUKENYA
2. KAMPALA ARCHDIOCESE LAND BOARD ....................................
## **VERSUS**
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ANNET NALWEYISO RESPONDENT (An appeal arising from the Ruling of J. W Kwesiga, J in Kampala High Court Misc. Application No.1324 of 2013 arising out of Misc. Application No. 63 of 2013)
**CORAM: Hon. Mr. Justice Kenneth Kakuru, JA** $10$ Hon. Mr. Justice Geoffrey Kiryabwire, JA Hon. Mr. Justice Christopher Madrama, JA
### **IUDGMENT OF THE COURT**
#### **Background** $15$
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The $1^{st}$ appellant applied and obtained a lease offer from the $2^{nd}$ appellant and he made part payment of Ushs. $90,000,000/$ = (Ninety Million Shillings). The 2<sup>nd</sup> appellant terminated the lease offer and the 1<sup>st</sup> appellant applied for judicial review in Misc. Cause 63 of 2013 seeking for prerogative orders to issue against the $2^{\rm nd}$ appellant. The parties entered into a Consent Order wherein the lease offer was reinstated and $1^{st}$ appellant allowed to pay the balance of Ushs. 75,000,000/= on premium stipulated in the lease offer within a period of 4 months from the date of reinstatement.
The Respondent then filed application for stay of execution and review and or set aside the said order in Misc. Application No. 1324 of 2013.
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The appellants filed respective affidavits in reply and vehemently opposed the Application. The trial ludge delivered a Ruling adiudging the respondent to be <sup>a</sup> kibanja occupant on thc suit land hence this appeal.
Being aggrieved with the Ruling and 0rders of the trial Court, the appellants filed S this appeal, the grounds wltereof are set out, in the memorandum of appeal, as follows:
- 1. That the leorned triat ludge erred in law and in lact when he found the respondent to be a Kibonja occupont on the suit land without according the appellont as owner of the freehold interest in the land an opportunity to be heord, leave alone callirtg evidence. - 2. That the learned trial Judge erred in law and in lact when he found the r\*pondent to be a Kibonja occupant on the suitland without properly evoluating the appellants'offtdavit evidence and the corresponding annextures. - 3. Thatthe learned triol ludge,witltout properly evaluating the appellants'allidavit evidence and annexture on record,foutd the respondent to be an aggrieved party with locus stortdi to seek a review of the Consent 1rder in Misc. Cause No. 63 of 2013. - 4. That the leorned triol ludge, without properly evaluating the oppellants'allidavit evidence ond annexture on recorcl, founcl the responclent to be an aggrieved party with locus standi to seek a review of the Consent Order in Misc, Cause No, 63 of 2013, to which he wos neither party nor x{ferecl any legol grievancet
## Reprasentation
Atthe hearing of the appeal, the 1't appellant wLrre represented by Mr, Edwin Busulwa learned Counseland the 2',d appellattt was rcpresented by Ms Hellen Najjuma learned
25 Counsel while the respondent was reltresented by Mr. Musa Kobego learned Counsel. The parties proceeded by way of oral subntissions.
Counsel for the respondent applied for the consolidation of Civil Appeal 106 of 2015 together with Civil Appeal 178 of 2014 as they all arise out of the same ruling in Misc. Application No. 63 of 2013 and relate to same subject matter.
Order 11(a) Civil Procedure Rules provides that
"Where two or more suits are pending in the same court in which the same or similar questions of law or fact are involved, the court may, either upon the application of one of the parties or of its own motion, at its discretion, and upon such terms as may seem fit— (a) order a consolidation of those suits; and."
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Rule 101 of the Rules of this Court provide that;
"The court may, for sufficient reason, order any two or more appeals to be consolidated on such terms as it thinks just, or may order them to be heard at the same time or one immediately after the other, or may order any of them to be stayed until after the determination of any other of them."
We accept the submissions of Counsel for the respondent that the justification of consolidation is to avoid multiplicity of suits. In Mohan Musisi Kiwanuka vs Asha Chand, Supreme Court Civil Appeal No. 14 of 2002, it was held by Mulenga, JSC inter alia that
"... It is the cardinal principle in our judicial procedure that Courts must as much as possible avoid multiplicity of suits. Thus, it is that rules of procedure provide for, permit where appropriate, joinder of causes of action and consolidation of suits." $\overline{r} = 1$
#### **Preliminary Objection** $25$
Mr. Kabega Counsel for the respondent raised a Preliminary Objection on a point of law as to the *locus standi* of the $2^{nd}$ appellant. The $2^{nd}$ appellant is not a legally recognized body and thus cannot institute or defend legal proceedings, including this appeal and the propriety of the appeal contending that, they offend the provisions of
Section 59 and 101 of the Registration of the Titles Act and Sections 16, 19, 28 and 30 110 of the Evidence Act.
Further that, the affidavit depended by the Paul Zziwa for the 2<sup>nd</sup> respondent in Misc. Application No.63 of 2013, stated that, the 2<sup>nd</sup> respondent in this matter has no legal status.
# **Reply to the Preliminary Objection**
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In reply Counsel for the 1st appellant submitted that 2nd appellant had no legal status $\mathsf{S}$ and that in the circumstances had no capacity to sue or be sued. However, he argued that the preliminary objection was not a matter of law since it is an appeal emanating from a consent order.
## **Court's consideration of the Preliminary Objection**
- In determination of this appeal, we are mindful of the fact that we have to proceed on $10$ this appeal guided by the provisions of Rule 30 (1) of the Rules of this Court; which enjoins the Court, as a first appellate Court, to re-appraise the evidence adduced before the trial Court, internalize and consider the judgment and orders appealed against, and make its own findings and draw its own conclusions thereon pursuant to - the issues of law and fact raised in the appeal. See: Bogere Moses vs Uganda, Supreme $15$ Court Criminal Appeal No.1 of 1997, Kifamunte vs Uganda, Supreme Court Criminal Appeal No.10 of 1997 Fr. Narcensio Begumisa & Ors vs Eric Tibebaaga Supreme Court Civil Appeal No. 17 of 2002.
The Supreme Court in *Oryem Richard vs Uganda Supreme Court Criminal Appeal No.* 22 of 2014 stated as follows:
"We should point out at this stage that rule 30 (1) of the Court of Appeal Rules places a duty on the Court of Appeal, as a first appellate court, to reappraise the evidence on record and draw its own inference and conclusion on the case as a whole; but making allowance for the fact that it has neither seen nor heard the witnesses. This gives the first appellate court the duty to rehear the case...."
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Counsel for the respondent raised a preliminary objection, to which counsel for the 1<sup>st</sup> and 2<sup>nd</sup> appellants conceded, that the 2<sup>nd</sup> appellant's appeal was incompetent on the ground that it is not a legally recognized body, it has no *locus standi* and thus cannot institute or defend legal proceedings, including its appeal.
The term "locus standi" is defined by Osborn's Concise Law Dictionary Eleventh Edition $\mathsf{S}$ Sweet and Maxwell simply as "[A place of standing]. The right to be heard in a Court or other proceedings"
In Dharamsy Morarji & Sons Ltd. vs Suman Naresh Kara, Supreme Court Civil Appeal No. 41 of 1995, Court held that: -
"it would occasion a grave miscarriage of justice to a party in a suit, for any person who has no locus standi therein to be a party thereto, or be made a party thereto, and get a judgment in his or her favour to the detriment of the adversary in the suit."
It is in the light of this holding, which urges Courts to avoid such a miscarriage of justice, that this Court finds it pertinent in the instant case to, of its own volition, raise $15$ and address this point of law. The justice of the case demands that it be so done. In other words, the question of whether the 2<sup>nd</sup> appellant, Kampala Archdiocese Land Board has *locus standi* is a matter of law which in our view its sufficient to determine of whether to move forward with the merits of the appeal.
The instant appeal, it's not in contention by the parties that $2^{nd}$ appellant is not $20$ registered. In *The Fort Hall Bakery Supply Co. v. Frederick Muigai Wangoe [1959] EA* the Hon. TEMPLETON J. held as follows;
> "A non-existent person cannot sue, and once the court is made aware that the plaintiff is non-existent, and therefore incapable of maintaining the action, it cannot allow the action to proceed."
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The concept of *locus standi* concerns the right of a party to appear and be heard before a court. Where judicial redress is sought of a legal injury or legal wrong suffered by a
person or class of persons, in order to invoke the iurisdiction of the Court, the person invoking must not only have an enforceable personal right or interest in the matter, but must also the capacity to initiate the action, At common law, a corporation sole, <sup>a</sup> corporation aggregate and an individual or lndividuals are the only entities with the s capacity to sue or be sued, or those associations of individuals which are neither corporations nor partnerships, upon whom the Legislature has conferred such a status (see the pronouncement of Farwell l. in The TallVale Railway Company v. The Amalgamoted Society of Railway Seryonts [1901] A. C. 425, at p, 429).
Groups of persons associated for the carrying out in common of any purpose or 10 advantage of an industrial, commercial or professional nature, do not possess therein a collective civil personality recognised by law just by virtue of only the conduct of such activities in common. It is the act of incorporation that creates entities which are by law be regarded as distinct from their individual members, and as having the right to ester en iustice (be a party in legal proceedings) as a legal fiction (See: Salomon vs.
rs Solomon [1597] A. C.22 otp.29).
In this case the enabling law is "The Trustees Incorporation Act Cap 765" which gives religious, educational, literary scientific, social or charitable associations legal capacity (body corporate) as trustees; which gives them the right to institute and also have actions instituted against them in Courts of Law. lt is our understanding tha
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legal authority to deal with this suit. The tease offer should have been made by the Registered Trustees of Kampala Archdiocese, since it is clothed with capacity sign the lease agreement as registered proprietors.
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- 5 The learned trial f udge erred in law when he entertained a suit instituted by a non' legalitywith all due respect. The entire proceedings therefore were a nullityab'initio. The principle in The Fort HalI Bakery Supply Co vs Frederick Muigai Wangoe (Supra), is equally applicable where an appellant is found to be non'existent as in the present case. Therefore, we find that the 2nd appellant's appeal cannot be sustained and we would order that it be struck out. - 10 Having found as above in our view, infects the rulings andlor made by the High Court in the suits from which the present appeal arises, that is Miscellaneous Application No. 1324 ot2013, between the respondent and the two appellants, as well as the Miscellaneous Cause No. 53 of 2013. Both of those suits involved the 2nd appellant, <sup>a</sup> non-existent legal entity and therefore a nullity in respect to the second respondenL - 15 Since the lst appellant's claim is based on title derived from the second appellant, the claim cannot stand alone. tt falls by the way side as the basis of its foundation has been swept away by the law.
For that reason, we find that the Preliminary objection raised by the Respondent is sustainable and we uphold it.
zo ln light of the above findings, we would strike out the present appeals as well as the ruling and/or orders in the two applications in the High Court. We also make no order as to costs.
We find no merit in this appeal which is hereby dismissed. We make no order as to costs both here and at the High Court. This is because the 1st appellant was not at fault
2s when he obtained the purported lease offer and the 2nd appellant is and was not in existent at the time the suit from which this appeal emanates was filed.
We so order, we also order that the 1<sup>st</sup> appellant vacates the suit if he is in occupation. We also order that the Registered Trustees of Kampala Archdiocese to refund Ushs. 90,000,000/= paid by the $1^{st}$ appellant with no consideration with simple interest at 12 percent per annum from date of payment till payment in full.
Before we take leave of this matter we would like to note that the initial procedures $\mathsf{S}$ were instituted by way of judicial review. Judicial review in our view relates to acts of the Sovereign. The crown not of individual persons. We would have stuck it down on that account alone. The appellants should have proceeded by plaint.
We would also clarify that, a registered proprietor of a *mailo* holding cannot lease it out as to include a Kibanja holding. He/she can only lease the land that is not occupied $10$ by a Kibanja holder. On the other hand, a Kibanja holder cannot have any interest on the mailo holding beyond the boundaries of his/her Kibanja.
The Constitution of 1995 created overlapping interests limited to the physical boundaries of the *Kibanja* holder.
**Dated at Kampala this ....................................** Jecom 2022. $15$
Kenneth Kakuru **JUSTICE OF APPEAL** Hon. Geoffrey Kiryabwire JUSTICE OF APPEAL Hon. Christopher Madrama **JUSTICE OF APPEAL** COURT OF APPEAL OF UGANDA CERTIFIED TRUE COPY
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