Byampagi and 2 Others v Kigoora (Civil Appeal 12 of 2005) [2011] UGCA 13 (27 July 2011)

Full Case Text

## THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPATA

## CIVIL APPEAL NO. 12 OF 2OO5

#### BETWEEN

BYAMPAGI& 2 OTHERS APPELLANTS

### AND

KIGOORA JOHN REPONDENT

CORAM: HON. IADY JUSTICE A. E. MPAGI BAHIGEINE, DCJ; HON. IADY JUSTICE C. K. BYAMUGISHA, JA; HON. IADY JUSTICE M. S. ARACH AMOKO, JA.

(Appeal from the Judges of the High Court)

# JUDGMENT OF A. E. N. MPAGI-BAHIGEINE DCJ.

This is a 2nd appeal. lt arises from the judgment of the High Court at Mbarara, dated 30th September 2004. The learned appellate judge held:

"No evidence of froud on the part of the defendant wos led by the plointiffs. As such, there wos no couse to question the title. I should odd thot the triol Court, hoving heard the evidence in Court ond visited the locus in quo come to the conclusion thot the oppellonts herein had no interest in the disputes land. I see no

reoson to distrust the conclusion. ln the circumstonces the authorities quoted ore of no opplication in the instont case where no interest claimed by the appellant exists. Consequently, I uphold the decision of the triol Court ond dismiss this appeol with costs".

The factual background is as follows:

ln 1972, the respondent and three others, now deceased, applied for a certificate of title to 40 hectares of land. ln 1985, the respondent and three others applied for a certificate of title to a different 115 hectares of land which was adjacent to the first 40 hectares. They received a certificate of title to the 40 hectares parcel on 1't July 1986, and to what became registered as a l-14 parcel on L't October 1991.

ln 1992, the appellants brought a suit against the respondent in the Chief Magistrate's Court at Mbarara claiming that the respondent had taken the land that the appellants and the respondents shared communally.

The appellants sought the following:

a) A declaration that the disputed land belonged to the appellants and respondent jointly.

- b) A declaration that if the respondent had any certificate of title at all, he obtained it by fraud and it should be cancelled. - General damages for trespass and inconvenience. c) - A permanent injunction restraining the respondent and/or his agents from ever carrying a claim of ownership over the land and d) - Costs of the suit. e)

The respondent filed a counterclaim stating that the appellants had wrongfully entered his land and sought the following orders:

- 1. Eviction of the appellants from the suit land. - 2, A permanent injunction restraining the appellants from ever coming into his land again. - 3. Special damages and costs of the suit.

During the trial, the learned trial Chief Magistrate visited the locus in quo with the parties and their respective counsel and recorded his observations, amongst which was that most of the structures, gardens and evidence of land which were by the appellants were relatively fresh, while the respondents had much older kraals on the property despite having a relatively new permanent house. The appellants claimed to

have older gardens and kraals but they never showed them to the Chief Magistrate. Based on the above, the Chief Magistrate held in favour of o the respondent as shown above. Dissatisfied with the decision, the appellants appealed to the High Court in Mbarara where the learned judge upheld the decision of the trial court as aforementioned.

At the hearing of the appeal, Mr. Patrick Yehangane represented the respondent while Mr. Arthur Mukwatanise for the appellants was absent. He was indisposed. He had however filed written submissions which Mr. Yehangane prayed Court to rely on under Rule 98 of the rules of this Court, instead of adjourning the matter.

The memorandum of appeal is premised on three grounds namely that:

- L. The Honourable Justice erred in law and fact in finding that the appellants were intruders or trespassers and not communal owners of the suit land. - 2. The Honourable Justice erred in law and fact in holding that the respondent had no fraud in obtaining the land title of the land in dispute when the proper procedure for obtaining a lease was not followed by the respondent.

The Honourable Justice erred in law and fact in holding that the appellants had not suffered any damages therefore not entitled to damages 3

During the scheduling conference on 4th April 2008, the following issues were framed:

7. What are the parties' interests in the suit property?

- 2. Whether or not the respondent committed fraud in obtaining the certificate of title to the suit property and - 3. Whether the appellants are entitled to damages.

The role of a second appellate Court was restated by the Supreme Court of Uganda on 1998 Bonco Arabe EsponolV Bank of Ugonda, SCCA No. 23 OF 7998thus:

"lt does not seem to us thot except in the cleorest of coses we ore required to re-evoluote evidence like o first appellate Court .... On second oppeol, it is sufficient to decide whether the first oppellote Court in opprooching its task, applied or foiled to apply such principles. See D. R. Pondya VS Republic (1957) E A 3368; Koiru VS Ugando 7978 HCB 723. This Court will no doubt consider the focts

of the oppeol to the extent of considering the relevont point of low or mixed low ond focts roised in ony oppeol, if we re-evaluate the focts of each cose wholesole, we sholl ossume the duty of the first appellate Court ond creote unnecessary uncertointy, we con interfere with the conclusions of the Court of Appeol if it oppears that in considerotion of the appeol os a final oppellote Court, the Court of Appeol misopplied or failed to opply the principles set out in such decisions such as Pandyo (Supra), Ruwole (Supro), Kairu (Supro)"

With the above in mind, lssue No. I under consideration concerns the parties' interests in the suit property.

The respondent produced in evidence a leasehold certificate of title registered on 22/07/1987, LRV 1588 Folio 8, Land at Kichwankaito and Kanyeigoro Sheema, Plot 203 Block 9, certificate of title registered on 28107/L992. LRV 2054 Folio 23 at Kichwankaito Plot 215 Block 9; Lease offer form of 1988. Section 59 Registrar of Titles Act (RTA) stipulates:

"No certificate of title issued upon an application to bring land under this Act shall be impeached or defensible by reason of or on account of any informality or irregularity in the application or

in the proceedings previous to the registration of the certificate, and every certificate of title issued under this Act shall be received in all Courts as evidence of the particulars set forth in the certificate and of the entry of the certificate in the Register book, and shall be conclusive evidence that the person named in the certificate as the proprietor of or having any estate or interest in or power to appoint or dispose of the land described in the certificate is seized or possessed of that estate or interest or has that power."

The respondent produced evidence by way of certificates of title to both parcels of lands which evidence was not assailed by the appellants who failed to produce any evidence as to their interest in the land.

The names of the respondent together with three others appear on the certificate of title. Their names are the only names on the said certificates. The appellants having failed to establish an interest in the land could have challenged the respondent's title on ground of fraud, which would be the only remedy available to them under the circumstances. The appellants' claim that they had been using the land continually for some time is devoid of any merit. The observations of the learned Magistrate at the locus in quo further discredited the

appellants' claim. Their gardens, structures and signs of use were .- relativelv "fresh." The Magistrate's visit to the locus in quo had been t challenged in that its findings were prejudicial to the appellants'case. I think this was overlooking the point in that such visits are intended to clarify the evidence given in Court. See WoibiV Byandola (1982) HCB 28.

The magistrate is not expected to introduce extraneous matters not introduced in the evidence during the trial. The Magistrate in this case did not fall into that trap. He confined himself to the relevant evidence regarding use of the land in question, the relative age of the structures, gardens etc. This land formed the basis of the parties'evidence in Court. At the locus, the parties and their counsel were present. The appellants informed the Magistrate that they had older gardens and kraals in the suit land but they never showed these to the Magistrate. lt was incumbent upon the appellant to point them out to the Magistrate but not the Magistrate to look for them. The law on the point is very clear, the appellants never challenged the respondent's title which they could only have done on grounds of fraud. The appellants clearly failed to establish any interest in the suit land, while the respondent did by way of cogent evidence. Ground one ought to fail.

S lssue No. 2 is as to whether or not there was fraud on the part of the Orespondent in obtaining the certificate of title to the suit property. Section 64 of the RTA prescribes the estate of a registered proprietor to be paramount

> "...... the proprietor of land or of any estate or interest in land under the operation of this Act shall, except in the case of fraud, hold the land or estate or interest in land subject to such circumstances as are notified in the folium of the Register Book constituted by the certificate of title...."

ln addition Section L76 (c) RTA stipulates:

"No action of ejectment or other action for the recovery of any land shall lie or be sustained against the person registered as proprietor under this Act, except in any of the following cases:

c) The case of a person deprived of any land by fraud as against the person registered as proprietor of that land through fraud or as against a person deriving otherwise than a transferred bona fide for value from or through a person so registered through fraud."

()

"Fraud" has been defined as knowledge of another person's rights or t claims and the deliberate acquisition of a registered title in the face of such knowledge constitutes fraud". Ruzhwengyibo and in the motter of Ruzigono (1977) HCB 94.

Further, fraud must be strictly proved, the burden of proof being heavier than on a balance of probabilities applicable in ordinary civil suits, per Chief Justice Wambuzi (Rtd) in Kampalo Bottlers ltd VS Domonico (U) Itd, Civil Appeol No. 22 of 1992. The appellants must strictly prove:

- L. They had a valid claim to the suit land. - 2. That the respondent knew of the appellants' competing claims and - 3. That the respondent deliberately sought to register title for himself in the face of that knowledge.

The trial Magistrate found that all the facilities and uses on the land by the appellants were "fresh". The appellants further failed to prove that they were using the land in 1972 or 1985 when the respondent and three others applied to register the 40 hectares and 114 hectares percels respectively of suit property in their name.

At the time the respondent and others applied to register the suit Oproperty in their names, the appellants failed to establish their prior claims to the said land. The appellants thus failed to prove the element of fraud on the part of the respondent and the three deceased persons whose names appear on the title. Ground 2 fails.

Whether or not the appellants are entitled to damages, it is clear that the appellants have failed to prove they suffered any loss entitling them to any legal redress. They have failed to prove they were fraudulently disentitled of the suit property consequently they cannot claim any redress for damages are not awarded grades. There must be some damage suffered. See Strom V Hutchinson (1905) A 575

ln summary the appeal fails with costs to the respondent here and below.

Since my Lords C. K. Byamugisha and S. A. Amoko, Justices of Appeal both agree, the appeal fails with costs here and below.

tq,^ Dated at Kampala this 2l day of 2011.

A. E. N. DEPUTY CHIEF JUSTICE I

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

#### **CORAM:** MPAGI-BAHIGEINE, DCJ, BYAMUGISHA&ARACH-AMOKO, JJA $\overline{5}$

### CIVIL APPEAL NO.12/2005

#### **BETWEEN**

$10$

### 1. BYAMPAGI JOHN

2. RWEMISHURI YORAMU....................................

3. KABWANGA WILSON

### AND

**KIGOORA JOHN....................................**

[Appeal arising out of Civil Appeal No.03/96 of the High Court of Uganda sitting at Mbarara (Mugamba J) dated 28th October 2004 from Civil Suit No MMB 68/93 before His $20$ *Worship P. K. K. Onega Chief Magistrate*

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

I had the benefit of reading in draft form the lead judgment prepared by the $25$

learned Deputy Chief Justice which has just been delivered.

It has set out the facts of the appeal with sufficient clarity and it is unnecessary

to add on anything. The judgment sets out my own views of the case and I

concur with the reasons set out in the judgment in dismissing the appeal.

The appeal stand dismissed in the terms proposed in the lead judgment. 30

# Dated at Kampala this. 2.7. day of.

C. K. Byamugisha

**Justice of Appeal**

$\cdot,$

$\begin{array}{c}\n\vdots \\ \bullet\n\end{array}$

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

## CORAM: HON. JUSTICE A. E. N. MPAGI-BAHIGEINE, DCJ HON. JUSTICE C. K. BYAMUGISHA, JA HON. JUSTICE M. S. ARACH AMOKO, JA

### CIVIL APPEAL NO. 12 OF 2005

### **BETWEEN**

### 1. BYAMPAGI JOHN

### 2. RWEMISHURI YORAMU

3. **KABWANGA WILSON::::::::::::::::::::::::::::::::::::**

### AND

### KIGOORA JOHN::::::::::::::::::::::::::::::::::::

[Appeal arising out of Civil Appeal No.03/96 of the High Court of Uganda sitting at Mbarara (Mugamba J) dated 28th October 2004 from Civil Suit No. MMB 68/93 before His Worship P. K. K. Onega Chief Magistrate

### **JUDGMENT OF M. S. ARACH AMOKO, JA**

I had the advantage of reading in draft the judgement prepared by Lady Justice A. E. N. Mpagi-Bahigeine, DCJ. I concur and I have nothing to add.

Dated at Kampala this 21 day of July 2011.

**M. S. ARACH AMOKO JUSTICE OF APPEAL**