Byeitima & Another v Asaba (Civil Appeal 19 of 2022) [2024] UGCA 312 (7 November 2024)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA CIVIL APPEAL NO. 19 OF 2022

Coram: Cheborion Barishaki, Moses Kazibwe Kawumi, Asa Mugenyi, JJA

#### 1. TEGRAS BYEITIMA

$\mathbf{L}$

## 2. RAJABU RUGADYA...................................

#### **VERSUS**

#### $\cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cd$ ASABA JAIDEN................

(Appeal from the decision of the High Court of Uganda at Masindi before Gadenya, *J dated* 14th October, 2021 in Civil Suit No. 03 of 2012)

#### JUDGMENT OF CHEBORION BARISHAKI, JA

This appeal is against the judgment and orders of the High Court before Gadenya, J in Civil Suit No. 03 of 2012 whereby the High Court allowed the respondent's suit and granted him several reliefs.

#### **Background**

The respondent filed High Court Civil Suit No. 03 of 2012 against the two appellants in connection with a dispute over the ownership of a piece of land situated at Kisiita Cell Western Ward, Central Division, Masindi Municipality in Masindi District ("the suit land"). At the time of filing the suit, the suit land was part of land covered by a certificate of title held by the 1st appellant, for land described as Leasehold Register Volume 7 Folio 19, Plot 49 Block 4, Buruli County, situated at Kisiita Buruli County. The respondent, in his plaint, prayed for a declaration that he was the owner of the suit land; a further declaration that the suit land was illegally and fraudulently included in the survey print for the 1st appellant's land; an order for cancellation or amendment of the 1st appellant's title to exclude the suit land; a permanent injunction to restrain the appellants from claiming the suit land; general and punitive damages; costs and interest.

The appellants filed a joint written statement of defence in which they averred that the 1st appellant was the registered proprietor and therefore the lawful owner of land including the suit land which he lawfully bought from the 2nd appellant.

The factual background in this case can be summarized as follows: The 1st appellant and the respondent own two separate pieces of land in the same locality of Kisiita Cell in Masindi District. The respondent alleged in his plaint (although the appellants denied) that the two pieces of land were adjoining. The respondent averred in his plaint that he obtained his portion of land in 1970 as a gift inter vivos from his father and thereafter took possession, lived and carried out farming thereon.

The respondent further averred that at the time he was granted the suit land, the 2nd appellant was the owner of an adjoining piece of land which he subsequently sold to the 1st appellant around 1983. The 1st appellant took possession and utilized the portion he bought from the 2nd appellant while respecting the recognized boundaries, namely, a cattle track with trees on either side, until around 1999 when he trespassed on part of his land, the suit land. The respondent averred that he immediately lodged a complaint with the area LC1 Chairman and also engaged the 1st appellant to no avail; and that instead, the 1st appellant, in 2010, cut down the boundary trees and took possession of the suit land.

The respondent further averred that, in 2010, he filed Civil Suit No. 24 of 2010 in the Masindi High Court, against the 1st appellant and others for trespass. The High Court, in the course of hearing that suit, ordered a survey of the suit land which revealed that the suit land was part of land covered in the 1st appellant's certificate of title. The respondent thereafter filed the suit from which this appeal alleging that the suit land had been fraudulently included in the 1st appellant's title and for the reliefs mentioned earlier.

The 1st and 2nd appellants filed a joint written statement of defence in which it was averred that the 1st appellant is the registered proprietor of land including the suit land and therefore its lawful owner. It was further alleged that the $1st$ appellant had, by two separate agreements dated 26th August, 1973 and 23rd June, 1983, bought two separate pieces of land, from the $2nd$ appellant. The $1st$ appellant took possession of the two adjoining pieces of land as one piece of land, and utilized the same. He subsequently applied for a lease of his piece of land, then public land, from the controlling authority which was duly granted. Thereafter, after surveying his land and complying with other relevant procedures, the 1st appellant on 10th March, 1992, became the registered proprietor of his portion which includes the suit land.

It was further averred in the $1^{st}$ and $2^{nd}$ appellant's written statement of defence that the 1st appellant enjoyed quiet possession until 1999 when the respondent started claiming the suit land. In 1999, the respondent filed a complaint before the area LC1 Chairman but it was rejected for lacking merit. In 2010, the respondent filed a suit in the High Court where the Court ordered a survey which confirmed that the suit land was part of land covered in the 1st appellant's title. Thereafter, the respondent brought the present suit.

The $1^{st}$ and $2^{nd}$ appellants also raised two preliminary objections, namely: 1) that the respondent's suit was time-barred; 2) that the respondent's suit was resjudicata as it raised similar issues as those in Civil Suit No. 24 of 2010.

The hearing of the suit commenced on 19th June, 2013 before Byabakama, J (as he then was). He considered the two preliminary objections and dismissed them for lack of merit and proceeded with the hearing of the suit. Besides the two preliminary objections, the other issues were as follows:

- Whether the suit land is the property of the plaintiff. $1)$ - Whether the suit land was illegally and fraudulently sold to the 1st $2)$ defendant by the $2^{nd}$ defendant. - Whether the suit land was illegally and fraudulently included in the survey $3)$ print of Buruli Block 4 Plot 49 at the time of the survey. - What are the remedies available to the parties? $4)$

Byabakama, J partially heard the evidence of one plaintiff witness, the respondent. On 15th February, 2016, Rugadya-Atwoki, J took over the hearing of the case and heard the remainder of the evidence and also conducted a locus visit on 2nd August, 2019. Thereafter, Gadenya, J assumed the hearing of the case and issued the judgment dated 14th October, 2021, the subject of this appeal.

Gadenya, J found that the suit land was the property of the respondent as it was part of land that was granted to him as a gift inter vivos by his father in 1970. He further found that the 1st appellant had fraudulently obtained his certificate of title in the same included the suit land which belonged to the respondent. Gadenya, J issued a declaration that the suit land was the property of the respondent and thereafter issued an order directing the Commissioner Lands Registration to rectify the 1st appellant's title and remove the suit land, and ordered that the 1st appellant meets the costs of the rectification. Gadenya, J also awarded to the respondent general damages of Ug. Shs. 20,000,000/=;

mesne profits of Ug. Shs. 9,000,000/= with interest at 12% p.a, from the date of judgment till payment in fill; and costs to be paid by the $1$ st appellant.

The appellants were dissatisfied with Gadenya, J's judgment and orders and lodged this appeal on the following grounds:

- The learned trial Judge erred in law and fact when he held that the suit $1)$ was not time barred by the Limitation Act. - The learned trial Judge erred in law and fact when he delivered a $2)$ judgment in a matter which had already been decided vide H. C. C. S No. 024 of 2010 with similar facts and issues. - The learned trial Judge erred in law and fact when he declared that the $3)$ suit land was the property of the respondent. - The learned trial Judge erred in law and fact when he held that the suit $(4)$ land as illegally and fraudulently sold to the $1st$ appellant by the $2nd$ appellant. - The learned trial Judge erred in law and fact when he held that the suit $5)$ land was illegally and fraudulently included in the survey print of Buruli Block 4 Plot 49 at the time of the survey. - The learned trial Judge erred in law and fact when he held that the suit $6)$ land was acquired by the respondent as a gift inter vivos from his father the late John Rukalema. - The learned trial Judge erred in law and fact when he determined the $7)$ boundaries of the suit land without any notes from the *locus in quo*. - The learned trial Judge erred in law and fact when he ordered that the $8)$ certificate of title of the 1st appellant for the suit land be rectified by removing 143 ft by 128 ft by 1073 ft by 214 ft and 936 ft from it. - The learned trial Judge erred in law and fact when he held that the $1st$ $9)$ appellant must solely meet the costs of rectification of his title. - The learned trial Judge erred in law and fact when he ordered the 1st $10)$ appellant to pay to the respondent general damages of UGX 20,000,000/ $=$ . - The learned trial Judge erred in law and fact when he ordered the 1st $11)$ appellant to pay the respondent mesne profits of UGX $9,000,000/$ = - $12)$ The learned trial Judge erred in law and fact when he ordered interest on the general damages and mesne profits at the rate of 12% p.a.

- The learned trial Judge erred in law and fact when he ordered the 1st $(13)$ appellant to pay the respondent's costs of the suit. - The learned trial Judge erred in law and fact when he held that the $1st$ $(14)$ appellant was not a bona fide purchaser.

The appellants prayed for the following orders:

- The appeal be allowed. $1)$ - The judgment and decree of the High Court be set aside. $2)$ - The appellants be paid costs in this Court and the lower Court with a $3)$ certificate of three counsel.

The respondent opposed the appeal and prayed that this Court dismisses it with costs.

## Representation

$\widetilde{X} = \frac{1}{24}$

At the hearing, Mr. Kituuma-Magala assisted by Mr. Friday Kagoro and Mr. Allan Tumwesigye appeared for the appellants. Neither the respondent's counsel Mr. Moses Tugume nor the respondent was present.

The Court, at the hearing, adopted the conferencing notes filed by the respective counsel as the parties' written submissions in the appeal.

## Appellant's submissions

#### Ground 1

In respect of ground 1, counsel for the appellants submitted that the trial Court erred in overruling the appellants' preliminary objection that the respondent's suit was time-barred. Counsel submitted that the respondent's suit was for recovery of land but was filed after more than 12 years from the date of accrual of the relevant cause of action contrary to Section 5 of the Limitation Act, Cap. 80. Counsel contended that the said preliminary objection had been raised in the appellants' written statement of defence and had been considered by Byabakama, J (as he then was) who overruled it and held that it was necessary to hear evidence before determining it.

Counsel submitted that the preliminary objection satisfied all the legal requirements and ought to have been sustained; it was apparent from the pleadings that the respondent filed his suit in 2012, more than 12 years from the various dates at which his cause of action can be deemed to have arisen,

that is, either in 1976 when he attained majority age and was capable of instituting a suit to contest the sale of the suit land; in 1984 when he learnt of the sale of the suit land by the $2^{nd}$ appellant to the 1st appellant; or in 1999 when he learnt that the 1st appellant had allegedly trespassed on the suit land and lodged a complaint to the LC1 Chairman.

Furthermore, counsel submitted that the respondent never pleaded any disability or any other reason justifying the belated filing of his suit. According to counsel, the only justification offered in the respondent's plaint was that he engaged in negotiations with the 1st appellant to solve the dispute over the suit land. However, counsel contended that it was held in the Supreme Court decision in Nyeko Smith and 2 Others vs. Attorney General, Civil Appeal No. 1 of 2016 quoting with approval from Charles Lubowa vs. Makerere University, Supreme Court Civil Appeal No. 2 of 2011, that involvement in such negotiations does not constitute justification for belated filing. Counsel also relied on the Supreme Court decision in Eridadi Otabong Waimo vs. Attorney General, Civil Appeal No. 6 of 1990 for the legal proposition that where a plaint is filed out of time, the exception on ground of disability must be specifically pleaded and if it is not, the plaint should be rejected under Order 7 Rule 11 (d) of the CPR.

Counsel concluded by submitting that the respondent's plaint ought to have been rejected and struck out with costs and his suit dismissed with costs.

#### Ground 2

Counsel for the appellants, in support of ground 2, submitted that the learned trial Judge erred in rendering judgment addressing matters which had been decided in an earlier suit - Civil Suit No. 024 of 2010; Asaba Jayden vs. Tegras Byeitima, Kugonza Franklin and Rajabu Rugadya. Counsel contended that in proceeding as he did, the learned trial Judge omitted to apply the principle of res-judicata as set out in Section 7 of the Civil Procedure Act, Cap. 71 and expounded in the Supreme Court decisions in National Council of Higher Education vs. Anifa Kawooya Bangirana, Constitutional Appeal No. 04 of 2011 (per Tsekooko, JSC) and in Consolidated Appeals Nos. 13 and 14 of 2019; China Road & Bridge Corporation vs. Welt Machinen Engineering Ltd and Others (per Chibita, JSC quoting from Mansukhal Ramji Karia and Another vs. Attorney General and 2 Others, Supreme Court Civil Appeal No. 20 of 2002).

Counsel submitted that the High Court had, in its decision in Civil Suit No. 024 of 2010, determined, in favour of the appellants, issues relating to the ownership and boundaries of the suit land, and it was the same issues that were contested in Civil Suit No. 03 of 2012 in which was rendered the judgment that is the subject of the present appeal. Counsel submitted that the authorities he referenced earlier decided that Section 7 of the CPA forbids any court from deciding a suit concerning an issue which is substantially similar to an issue that arose in a decided suit between the same parties or from those from whom they claim.

Counsel concluded by submitting that the learned trial Judge erred in entertaining and rendering judgment in Civil Suit No. 03 of 2012 yet doing so offended the

## Ground 7

With respect to ground 7, counsel for the appellants submitted that the learned trial Judge erred in making findings based on observations made during an alleged locus visit conducted by one of his predecessor trial Judges yet there were no notes, on record, regarding the said locus visit. Counsel pointed out that in the absence of the said notes, the learned trial Judge had erroneously relied on an account given in the respondent's counsel's submissions of observations that the predecessor judge had allegedly made during the locus visit, and based on those observations to find that, there existed a cattle track marking the boundary between the suit land and the 1st appellant's land, as the respondent's witnesses had testified.

Counsel submitted that in relying on an account provided in the submissions of counsel for the respondent, the learned trial Judge breached the appellants' right to a fair hearing as guaranteed under Articles 20, 28 (1) and 44 (c) of the 1995 Constitution and also abdicated from his judicial duty by delegating the making of findings of fact to counsel for one of the parties.

Counsel further submitted that the rationale of a locus visit is to afford the trial Judge an opportunity to test the evidence given in Court with the observations at the locus but this was rendered impossible in the present case since there were no notes about the locus visit. Therefore, in the circumstances, counsel contended that the learned trial Judge's findings were based on hearsay and had resulted in a miscarriage of justice to the appellants.

## Grounds 3, 4, 5, 6 and 14

The overriding point in counsel for the appellant's submissions on grounds 3, 4, 5, 6 and 14 is that the learned trial Judge's conclusion that the suit land was the property of the respondent, and the reasons that formed the basis for that conclusion were erroneous. Counsel made the following points in his submissions on grounds 3, 4, 5, 6 and 14.

First, counsel for the appellants submitted that the learned trial Judge erred in finding that the suit land was part of land given to the respondent by his late father John Rukalema as gift inter vivos in 1970 in the absence of credible evidence supporting that finding. Counsel pointed out that the respondent failed to adduce in evidence the deed of grant by which the gift inter vivos was made to him, and that the evidence of PW2, PW3 and PW4 upon which the learned trial Judge based the challenged finding was not credible and had been weakened during cross examination.

Secondly, counsel contended that the learned trial Judge erred in finding fraud basing on the fact that the 1st appellant did not sign the relevant sale agreement for the suit land. Counsel cited the authority of Tifu Lukwago vs. Samwiri Mudde Kizza and Another, Supreme Court Civil Appeal No. 13 of 1996 (per Mulenga, JSC) where it was held that omission of a purchaser to sign on an agreement of sale of land does not *per se* invalidate the agreement, and submitted that the learned trial Judge had misdirected himself in finding otherwise. Further still, that in any case, there was no dispute between the $1^{st}$ and $2^{nd}$ appellant as to the validity of the sale agreement nor as to whether the property in the suit land had passed to the 1st appellant pursuant to that sale agreement, and thus the learned trial Judge erred in basing his findings on issues that did not arise for determination.

Thirdly, counsel submitted that the learned trial Judge had erred in basing his findings of fraud on alleged inconsistencies and contradictions in the evidence of the appellants' witnesses. Counsel submitted that the learned trial Judge had, for example, found fraud based on alleged inconsistencies in the evidence of DW1 and DW3 as to whether DW3 had signed on the relevant suit land sale agreement as neighbor. The learned trial Judge found that while DW1 had testified that DW3 signed as a neighbor; DW3 had testified that he did not own land in the area, which was contradictory and indicative of fraud. Counsel, citing the authority of Alfred Tajar vs. Uganda, Criminal Appeal No. 167 of 1969, advanced the legal proposition that minor inconsistencies and contradictions will not lead to rejection of evidence of a witness but major inconsistencies and contradictions, unless satisfactorily explained, may lead to rejection of a witness' testimony. He then suggested that the above highlighted inconsistency was minor and should not have led to inferences of fraud.

Counsel further submitted that the learned trial Judge had also erroneously found another contradiction in that different acreages were indicated for the size

of the 1st appellant's land in, on the one hand, his application for a lease of the suit land dated 1st March, 1985 and the accompanying recommendation by the village elders dated 10th March, 1985 and, on the other hand, the size stated in his lease offer (Exhibit DE7), being 10 acres, on the other hand. Counsel submitted that the alleged contradiction could easily be explained by the fact that the size indicated on the application was a mere estimate as usually happens, while the size indicated on the lease was the exact size as ascertained from a survey.

Counsel further submitted that it was instead the respondent's evidence that contained a major contradiction as to whether he ever filed a complaint with the area LC1 Chairman over the boundary dispute with the 1st appellant. The respondent, in parts of his evidence, denied having lodged a complaint; while in cross-examination it was revealed that he had filed a complaint (Exhibit DE1) and that in fact the complaint was found to be lacking in merit. Counsel submitted that this major contradiction was not satisfactorily explained by the respondent and thus the learned trial Judge had erred in ignoring the evidence of the complaint.

Counsel also submitted that moreover not every falsehood or illegality amounts to fraud for purposes of impeaching a certificate of title. For this submission, counsel cited the following cases: Mpungu Sons Transport Ltd vs. Attorney General and Another, Supreme Court Civil Appeal No. 17 of 2001 (per Katureebe, JSC, as he then was); Hilda Namusoke vs. Owalla's Home Investment Trust (EA) Ltd, Supreme Court Civil Appeal No. 15 of 2017 (per Prof. Lillian Tibatemwa-Ekirikubinza, JSC); and Ranchobhai Shivabhai Patel Ltd and Another vs. Henry Wambuga and Another, Supreme Court Civil Appeal No. 28 of 2014 (per Mugamba, JSC).

Furthermore, counsel submitted that all the all the relevant procedures were followed when the 1st appellant obtained his certificate of title, namely, physical inspection of the land by the area land committee; issuance of instructions to and a survey of the land; grant of a lease offer and registration of a certificate of title, and subsequently conversion of the lease title to freehold. Counsel further contended that the 1st appellant had settled on the suit land where he enjoyed quiet possession until 1999 when the respondent started claiming the suit land. Counsel cited the High Court case of Sipiriya Kyamulesire vs. Justus Bikancuka, Civil Suit No. 254 of 1992, where the Court held that where the defendant adduces evidence proving that he/she passed through all the legal procedures applicable in acquiring a lease of rural land to the knowledge of the party claiming to have been deprived of his/her customary interest on public land, the same cannot be said to have been procured through fraud ald that he/she is iurther protected as a bonafide purchaser for va-lue without notice of fraud with al unimpeachable title under the Registration of Titles Act, Cap. 230.

The third point made by counsel for the appellants is that the learned trial Judge erred in rejecting the 1st appellant's defence of being a bonallde purchaser for value without notice of fraud. Counsel referred to the following authorities setting out the applicable principles; Lwangd. os. Reglstrar of Tttles [7980] HCB 24; HalJi Abdu Ndsser vs. Vithalldas Ho:rido,s & Co. Ltd, Court of Appeal Clvil APPeal No, 84 oJ 2OO3. Counsel then submitted that as shown in his earlier submissions, the 1"t appellalt lawfully purchased and went into possession of all the lald including the suit land, and the respondent did not adduce evidence of fraud attributable to him so as to justify the learned trial Judge's rejection of the 1st appellant's defence of being a bona-fide purchaser for value without notice.

### Grounds 8, 9, 10, 11, 12 and 13

Counsel for the appellants' overriding contention in the submissions on grounds 8, 9, 10, 11, 12 and 13 is that the remedies that the learned trial Judge granted to the respondent were not justified and that the learned trial Judge ought instead to have found in favour of the appellants. According to counsel, the remedies of general damages, mesne profits, and the rates of interest granted thereon, costs, as well as the order for rectification of the 1st appeliant's title to exclude the suit 1and, ought not to have been granted and should therefore be set aside.

#### Respondent's submissions

Counsel for the respondent argued the grounds in like-manner as counsel for the appellants.

### Ground 1

In reply, counsel for the respondent submitted that the appellants' submissions about when the respondent's cause of action arose were misleading. Counsel submitted that the respondent's cause of action was for impeachment of the 1"t appellant's fraudulently obtained title, which ordinarily falls under suits for recovery ofland with a iimitation of 12 years from the date of accrual ofthe cause of action. Counsel further contended that pursuant to Section 25 of the Limitation Act, Cap. 80, the computation of the limitation period of an action involving fraud commences only after the affected party has discovered the fraud. Counsel contended that in this case the respondent only discovered that part of his land had been fraudulently included in the l"t appellant's title on 24th August, 2011 after a court ordered survey revealed that fact, and it was on that date that his cause of action accrued. Therefore, according to counsel, the respondent's suit that was filed rn 2072, under a year later, was not time barred.

Counsel refuted the suggestion in the appellants' submissions that the respondent had discovered the fraud earlier since he was aware of other relevant matters that took place earlier, such as, the sale of the suit land to the l"t appellant and the subsequent survey prior to issuance of the 1"t appellant's title, which was allegedly witnessed and approved by his father the late John Rukalema and his elder brother and area Chairman the late Julius Balyesima. Counsel submitted that knowledge of the matters by the respondent's brother and father could not be attributed to him; and that in any case, there was no evidence that the sale agreement and survey concerned the suit land.

### Ground 2

In respect to ground 2, counsel for the respondent submitted that Civil Suit No. OO3 ol 2Ol2 raised different matters from Civil Suit No. O24 of 2O7O, and as such was not res-judicata as alleged by counsel for the appellalts. He expounded that Civil Suit No. 003 of 2Ol2 sought orders for impeachment of the 1"t appellant's certificate of title for having been fraudulently obtained in that it also covered the suit lald which belonged to the respondent, a fact which was only revealed due to the survey ordered in Civil Suit No. 24 of 2OIO. Counsel submitted that the respondent had sought to amend his pleadings in Civil Suit No. 24 of 2O1O to include this order but the Court denied him leave on grounds that any such amendment would amount to introducing a new cause of action.

Counsel, in view of the above submissions, contended that Byabakama, J had correctly found that Civil Suit No. 3 of 2O 12 was not res-judicata.

Counsel therefore submitted that the learned trial Judge had rightly concluded that there was sufficient evidence supporting the conclusion that the suit land was part of land given to the respondent as a gift inter uiuos.

### Ground 7

With respect to ground 7, counsel for the respondent submitted that the learned trial Judge proceeded correctly in relying on information contained in the parties' submissions as to the proceedings at the locus-visit in the absence of the notes from the locus visit. He contended that the locus-visit had been conducted on 2"d August, 2079 by Hon. Justice Rugadya Atwooki, J, one of the predecessor

trial Judges, in the presence of the respective parties and their counsel; and the counsel had taken notes during the proceedings. Counsel for the respondent submitted that during the locus visit, the respondent had shown court the cattle track, the midontani trees, and the mark stone on the late Byahuka's land, that marked the boundaries between the 1st appellant and respondent's respective pieces of land, and had clearly demonstrated to court that the 1st appellant's title included land situated on the respondent's side of the boundary. Furthermore, DW2 Babinge James, had also shown the mark stone for the 1st appellant's land and it was shown to be located on the respondent's side of the boundary.

Counsel further submitted that the proceedings at the locus visit also disproved the $1st$ appellant's court testimony that his land did not share boundaries with the respondent's land, and that it shared boundaries with the late James Balyesima's family. The respondent had shown court that the land owned by the late James Balyesima's family was far from the suit land and that it was the respondent's land that shared a common boundary with the 1st appellant.

Furthermore, counsel submitted that in the circumstances of this case, where the respective parties' counsel referred, in their submissions, to what transpired during the locus visit, thereby confirming that the locus visit had taken place, no miscarriage of justice was occasioned on the appellants by the learned trial Judge referring to the submissions in the absence of the locus visit notes.

#### Grounds 3, 4, 5, 6 and 14

In reply to the appellants' submissions on grounds 3, 4, 5, 6 and 14, counsel for the respondent supported the learned trial Judge's conclusion that the 1st appellant fraudulently obtained his certificate of title and was not a bonafide purchaser. Counsel cited the definition of fraud given in the authority of **Fredrick** J. K Zaabwe vs. Orient Bank Ltd and 5 Others, Supreme Court Civil Appeal No. 04 of 2006, where Katureebe, JSC (as he then was) quoted, with approval, the definition set out in the Black's Law Dictionary (6th ed.) that fraud is an intentional perversion of truth and refers to all multifarious means which human ingenuity can devise and which are resorted to by one individual to get advantage over another by false suggestions or by suppression of truth, and includes all surprise, trick, cunning, dissembling, and any unfair way by which another is cheated. Counsel also referred to the principle in the authority of **Kampala** Bottlers Ltd vs, Damanico (U) Ltd, Supreme Court Civil Appeal No. 22 of 1992, that the standard of proof for fraud is higher than the ordinary civil standard of "on a balance or probabilities" although not to the standard of beyond a reasonable standard applied in criminal cases. Counsel also cited Section 77 of the Registration of Titles Act, Cap. 230 and the authority of Katarlkaue us. Katwiremu [1977] HCB 787 that emphasize that a certificate of title acquired fraudulently is void.

Counsel contended that the suit land was, as the learned trial Judge rightly found, part of the land given to the respondent by his father as a gift inter uiuos. The respondent while testifying as PWl explained that his late father John Rukalema gave him the suit land in 1970 as a gift inter uiuos; he mentioned that the neighbours to the land were initially Arotnanzani and the 2nd appellant; he also mentioned that another neighbor known as Byahuka who used to move his cows along a path near the land had planted trees on either side of the path to protect the nearby gardens, and the trees and the cattle track had formed a boundary separating the respondent's land from the 2"d appellant's land. The respondent further testified that the 2nd appellant had subsequently sold his interest to the l"t appellant and logica1ly the same boundaries ought to have been respected by him. Counsel submitted that the respondent's testimony was corroborated by his other witnesses.

Furthermore, counsel contended that because the suit lald belonging to the respondent was subsequently included in the 1"t appeilant's certificate of title, the only reasonable conclusion was that it had been included fraudulently. Counsel for the respondent submitted that the learned trial judge rightly found the following instances of fraud in this case: first, the fact that the none of the neighbours, including his late father John Rukalema, signed on the sale agreements by which the lst appellant purchased the suit land from the 2nd appellant. Only John Balyesiima signed allegedly in the capacity of area LC1. DW 1 falsely claimed that DW3 signed as a neighbor but the latter, while testifying, denied owning land in Kisiita Vil1age, where the disputed land was located. Secondly, the sale agreements between the 1st arld 2"d appellalts did not mention the boundaries of the land with which it was concerned. Thirdly, the 1st appellant did not sign the relevant sale agreements, yet he was the buyer. Fourth, none of the neighbours signed on Exhibit DE7, the report made by the Area Land Committee about the inspection carried out on 26th March, 1985 prior to granting a lease to the 1st appellant. Although two neighbours, namely, John Rukalema and Byahuka Erisa were allegedly present, neither signed and there was no attendance list to confirm this presence. Fifth, although there was a survey prior to granting the l"t appellant's certificate of title according to the survey report, Exhibit DElO and DE11, none of the neighbours were present during the survey. Sixth, the lst appellant excluded most of his neighbours during the process of obtaining his certificate of title.

Counsel also added the following instances of fraud, to those highlighted by the learned trial Judge: first, the fact that the 2"d appellant who sold to the 1"t appellant did not show him the proper boundaries of the iand. Instead it was other persons, namely, Balyesiima and Bachwa, who had shown him the boundaries. Secondly, counsel a-11uded to a letter dated 22"d March, 1999, written by then area LC1 Chairman David Barungi in which it was claimed that the LC1 Chairman had spoken with the respondent's late father John Rukalema who said that he had no issues with the boundaries claimed by Tegras Byeitima. He then submitted that this letter was unlawfully concealed by the 1"t appellant from the respondent until the date ofthe hearing. Thirdly, the 1st appellant acted fraudulently in destroying the boundary features separating his and the respondent's land so as to facilitate him in taking over the latter's land. Counsel referred to the respondent's testimony that there was a cattie track and trees that served as a common boundary between his and the l-rrst appellant's land; the cattle track had a big tree (mususa) as a boundary mark on the side along the road to the stream; aIrd a murongo tree on the upper side. The 1st appellarlt cut down the musua tree in 201O ald later uprooted the murongo tree on 3.d March, 2015. However, the respondent took photos ofthe disputed land showing the time before and after the trees were cut down and the same were tendered in evidence.

With respect to the authority of Tifu Lukuago as. S,o,muiri Mudde Kiiza and Another, Supreme Court Clull Appeal No. 73 of 7996 that counsel for the appellants sought to apply to the present case, counsel for the respondent that the authority concerned a challenge to the validity of a sale agreement ald was irrelevant in the peculiar circumstalces of this case where the respondent was challenging a fraudulently obtained title.

Counsel concluded by submitting that all the above referenced acts portrayed a clear indication that the l"tappellant had the intention of destroying the common boundaries and enter the respondent's 1and.

In respect to ground 14 which alleges that the learned trial Judge erred in hnding that the 1st appellant was not a bonafrde purchaser, counsel for the respondent, for the principles on the defence of bonafrde purchaser for value, referred to Section 181 of the Registration of Titles Act, Cap. 230 and the authorities of Luanga us. The Reglstrar oJ Tltles [1980] HCB 24; Halfi JVcrsser Kdtende us. Vlthalld.as Harldas & Co. Ltd, Court of Appeal Civil Appeal No. a4 oJ 2OO3 (wh),ch sets out the elements of the defence of bonalide purchaser for value). Counsel contended that the 1"t appellant did not qualify as a bonafide purchaser because,

in processing his certihcate of title, he engaged in the several fraudulent acts highlighted in the earlier submissions.

# Grounds 8,9, 10, 11, 12 and 13

Grounds 8, 9, 10, 11, 12 and 13 relate to the reliefs that the learned trial Judge granted to the respondent upon deciding the suit in his favour, as follows: Iirst an order for rectification of the l"t appellant's title to remove the suit land; secondly, general damages of Ug. Shs. 20,OOO,OOO /= with interest; mesne profits of Ug. Shs. 9,000,000 with interest; and costs of the suit. Counsel for the respondent, in his submissions in reply to these grounds, supported the reliefs granted by the learned trial Judge and argued that they were all justified since the suit had been decided in the appellant's favour.

## Appellants' submissions in rejoinder

Counsel for the appellant filed submissions in rejoinder wherein he largely reiterated the eariier submissions. As such, I have not reproduced the rejoinder submissions in this judgment.

## Consideration of the Appeal

I have carefully considered the submissions of the respective counsel artd also carefully reviewed the record of appeal. I shall begin my alalysis by making a preliminary point regarding the duty of this Court as a first appellate Court, as this is a first appeal form a judgment of the High Court. I observe that the wellestablished duty of this Couit in such appeals is to review the evidence and test the High Court's findings ald conclusions. see: Klfamunte Henry as, Uganda, Supreme Coura Criminal Appeal No. 7O of 7997, the leading authority on this point where the Supreme Court stated as follows:

"The first appellate Courl has a dutg to reuieu the euidence of the case and to reconsider the mateials before the tiol judge. The appellate court must then make up its otun mind not disregarding the judgment appealed from but carefullg u.teighing and consideing it. "

With the above principles in mind, I shall proceed to my analysis on the grounds of appeal.

### Ground 1

The appellants contend, in ground 1, that the learned trial Judge erred in finding that the respondent's suit was not time-barred. This ground concerns the 1aw of limitation and its application to the circumstances of the present case.

#### Section 5. of the Limitation Act provides that;

$\frac{1}{2}$

$\mathbf{S}$

No action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or her or, if it first accrued to some person through whom he or she claims, to that person.

An action for recovery of land must be brought within 12 years from the date on which the right of action accrued to the plaintiff. The Act provides for extension of limitation periods including, under the circumstances set out in Section 25 which in material part, reads as follows:

### "Where in the case of my action for which a period of limitation is prescribed by this Act either;

- (a) the action is based upon the fraud of the Defendant or his or her agent or of any person through whom he or she claims or his or her agent. - (b) the right of action is concealed by the fraud of any such person as is mentioned in paragraph (a); or" - (c) the action is for relief from the consequences of a mistake, the period of limitation shall not begin to run until the Plaintiff has discovered the fraud or the mistake, or could with reasonable diligence have discovered it; but nothing in this section shall enable any action to be brought to recover, or enforce any charge against, or set aside any transaction affecting, any property which-

(i) in the case of fraud, has been purchased for valuable consideration by a person who was not a party to the fraud and did not at the time of the purchase know or have reason to believe that any fraud had been committed; or

(ii) in the case of mistake, has been purchased for valuable consideration, subsequently to the transaction in which the mistake was made, by a person who did not know or have reason to believe that the mistake had been made.

Counsel for the Appellants submitted that the respondent pleaded that he was born in Kisiita village in 1958 where he grew up and had a customary interest in the suit land which he acquired as a gift from his late father. That the Respondent was aware that the $2^{nd}$ Appellant had sold all his land to the $1^{st}$ Appellant in 1973 and 1983. That the respondent failed to take reasonable care

or diligence even when the 1st appellant went to him in the company of his father to stop the respondent from trespassing on his land.

The record shows that the respondent had conceded that he had approached his late father in 1999 who invited the LC1 Mayumba Kumi then, and they visited the suit land and it was agreed that the 1st appellant brings surveyors to open boundaries within a week. In his evidence the respondent admitted that in 1999 he saw mark stones on the land but he refrained from suing the $1st$ appellant because the appellant had promised to bring a surveyor within a week. He had hoped to bring action against the appellants after the survey had been done.

Although the respondent pleaded fraud, he did not attribute it to the appellants but instead to the surveyor who was an independent contractor and whom the appellants had no control over.

The Respondent never pleaded exceptions provided under O7 r6 of the Civil Procedure Rules and could not avail himself exceptions in section 25(a) of the Limitation Act Cap 290.

Regarding the submission that the respondent expected the 1st appellant to bring a surveyor to open boundaries in 1999 and therefore he could not commence any legal proceedings against him, negotiations between parties or dialogue is not a disability to bar the running of limitation period. see **Nyeko Smith and 20** others vs. Attorney General Civil Appeal No. 1 of 2016 Supreme Court (unreported) and Charles Lubowa vs Makerere University Civil Appeal No. 2 of 2011 (Supreme Court) (un reported).

Where a Plaint is filled out of time, the exception on ground of disability must be specifically pleaded and if it is not then the plaint ought to be rejected under O7 $r11(d)$ of the Civil Procedure Rules.

The Respondent neither pleaded exceptional circumstances as required under O7 r 6 of the Civil Procedure Rules nor disability but choose but instead relied on expectation that the 1st appellant would bring surveyors whose actions would enable him be within time. Time started running in 1976 when he became of age or in 1983 or 1999. In his pleadings he omitted to plead fraud as an exceptional circumstance. Ground of appeal succeeds. The suit was barred by the Limitation Act.

## Ground 2

This ground concerns the application of the principle of res judicata in this case. Section 7 of the Civil Procedure Act, Cap. 71 provides, as follows:

#### 7. Res judicata.

No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try the subsequent suit or the suit in which the issue has been subsequently raised, and has been heard and finally decided by that court.

The above provision codifies common law principles that were aptly defined by Lord Sumption in a passage from his judgment in the UK Supreme Court decision of Virgin Atlantic Airways Limited vs. Zodiac Seats UK Limited [2013] **UKSC 46**, as follows: $\mathbf{U}$

"Res judicata is a portmanteau term which is used to describe a number of different legal principles with different juridical origins. As with other such expressions, the label tends to distract attention from the contents of the bottle. The first principle is that once a cause of action has been held to exist or not to exist, that outcome may not be challenged by either party in subsequent proceedings. This is "cause of" action estoppel". It is properly described as a form of estoppel precluding a party from challenging the same cause of action in subsequent proceedings. Secondly, there is the principle, which is not easily described as a species of estoppel, that where the claimant succeeded in the first action and does not challenge the outcome, he may not bring a second action on the same cause of action, for example to recover further damages: see Conquer v Boot [1928] 2 KB 336. Third, there is the *doctrine of merger, which treats a cause of action as extinguished once judgment* has been given upon it, and the claimant's sole right as being a right upon the judgment. Although this produces the same effect as the second principle, it is in reality a substantive rule about the legal effect of an English judgment, which is regarded as "of a higher nature" and therefore as superseding the underlying cause of action: see King v Hoare (1844) 13 M & W 494, 504 (Parke B). At common law, it did not apply to foreign judgments, although every other principle of res judicata does. However, a corresponding rule has applied by statute to foreign judgments since 1982: see Civil Jurisdiction and Judgments Act 1982, section 34. Fourth, there is the principle that even where the cause of action is not the same in the later action as it was in the earlier one, some issue which is necessarily common to both was decided on the earlier occasion and is binding on the parties: Duchess of Kingston's Case (1776) 20 St Tr 355. "Issue estoppel" was the expression devised to describe this principle by Higgins $J$ in Hoysted $v$ Federal Commissioner of Taxation (1921) 29 CLR 537, 561 and adopted by Diplock LJ in *Thoday v Thoday [1964] P 181, 197-198. Fifth, there is the principle first formulated* by Wigram V-C in Henderson v Henderson (1843) 3 Hare 100, 115, which precludes a party from raising in subsequent proceedings matters which were not, but could and should have been raised in the earlier ones. Finally, there is the more general procedural rule against abusiue proceedings, tuhich mag be regarded as the policg underlging all of the aboue pinciples u.tith the possible exception of the doctine of merger. "

It is the fourth and hfth principles that are codified in Section 7 of the CPA. Therefore, in order to have the resjudicata preliminary objection sustained, the appellants had to prove either; 1) that the issue in the earlier Civil Suit No. 024 of 2010 and that in Civil Suit No. 03 of 2Ol2 (from which this appeal arises) was directly and substantially the same; or 2) in the alternative, that although the issue in the two suits was not directly and substantially the same, it should nonetheless have been raised in the earlier suit. In order to prove their case, the appellalts had to provide evidence of what were the issues for determination in the earlier case, and this could only be achieved by availing a record of the trial proceedings in the earlier suit showing the issues in that case. The appellants instead relied only on the plaint in the earlier case and on submissions of their counsel attempting to explain what the issues in the earlier case were, so as to compare them with the latter case. This was not the correct course to adopt. I would therefore conclude that the appellants failed to demonstrate what were the issues in the earlier case, having failed to avail the record of proceedings so as to assist the trial Court to determine the point ort res judicata.

I noted that the learned trial Judge, in overruling the appellants on the res judicata point, found that the earlier suit was not "heard and finally decided" within the meaning of Section 7. The learned trial Judge reasoned that no evidence was heard in the earlier suit and that the matter was not pursued after a court ordered survey showed that the suit land was part of land contained in the 1st appellant's certihcate of title. The learned trial Judge further overruled the preliminary objection for the reason that the issue in the latter suit was not directly and substantially the same as that arising in the earlier suit. The learned trial Judge stated as follows:

"Euen if the surueyor's report reuealed that the suit land uas part of the 1i defendont's title land, the question utould still be, u.thether the land belonged to the plaintiff and if so, whether the suit land belonged to the plainttlf and, if so, uhether the 1"t dekndant deliberatelg and uithout ang colour of ight caused the surueg (sic) of the suit land to be included on the title. To me that was the substantial issue in Ciuil Suit No. OO24/201O and still remains in the instant suit. Looking ot the proceedings in Ciuil Suit No. OO24/ 2010, it cannot be said the said issue uas heard and decided bA the Court. "

The last point made by the learned trial Judge appears to me to be correct. It seems that the respondent pursued Civil Suit No. 24 of 2O 10 without knowledge

that the 1st appellant had a certificate of title that covered the suit land. The respondent proceeded on the basis that the $1^{st}$ appellant had gone onto the suit land without any colour of right. The respondent subsequently learned of the 1st appellant's certificate of title and challenged it as having fraudulently incorporated the suit land. These seem to be two distinct issues. Therefore, even overlooking the appellants' failure to avail the record of proceedings, I would still have found that the main issue in Civil Suit No. 03 of 2012 was different from that in Civil Suit No. 024 of 2010. The learned trial Judge reached the correct conclusion to overrule the *res judicata* preliminary objection.

I would find that ground 2 also fails.

#### Grounds 3, 4, 5, 6 and 14

The gist of grounds 3, 4, 5, 6 and 14, which, in my view, are the main grounds of this appeal, is that the learned trial Judge erred in finding that the respondent was the lawful owner of the suit land. The appellants fault the learned trial Judge's reasoning in support of this finding and submit that there was no evidence to support the same.

I have noted, upon reviewing the respondent's plaint, that his case was for recovery of the suit land which formed part of land that he alleged was given to him as a gift inter vivos in 1970 by his father, the late John Rukalema. The respondent alleged that the suit land was fraudulently included in the boundaries of the land which was comprised in the 1st appellant's certificate of title. The respondent averred that the land given to him in 1970 had well-defined boundaries separating it from neighbouring pieces of land with other owners. The 2nd appellant was one such owner, who sold his piece of land to the 1st appellant, a fact he learned around 1984.

It was further the respondent's case, that the $1^{st}$ appellant took possession of the land he bought from the 2nd appellant and utilized it while respecting the welldefined boundaries from around 1984 until 1999 when he trespassed on part of the land situated on the respondent's side of the boundary. The respondent made a complaint to the area LC1 Chairman and also subsequently attempted other dispute resolution mechanisms including filing High Court Civil Suit No. 24 of 2010.

It was during the hearing of High Court Civil Suit No. 24 of 2010 that the respondent learned that the $1^{st}$ appellant had a certificate of title for his land. The respondent also further learned, following the publication of a report from a survey ordered by the Court in Civil Suit No. 24 of 2010, that the suit land which,

to his mind, lawfully belonged to him, was part of the land covered by the 1st appellant's certificate of title.

$\mathcal{C}(\mathcal{C})$

$\sim$ $\sim$

$\mathbf{1}$

$\overline{a}$

In the joint written statement of defence, it was averred that the 1st appellant held a certificate of title which covered the suit land. It was further averred that the suit land was part of land that the 1st appellant, by separate agreements of 26th August, 1973 and 23rd June, 1983, bought from the 2nd appellant who owned land neighbouring that of the late John Rukalema, the respondent's father, part of which the respondent alleged was given to him in 1970.

After considering the respective cases of the respondent and the appellants, as described above, it is my view, that the dispute between the parties revolved around two points, namely: first, the correct boundaries of the respondent's as well as those of the 1st appellant's land; and secondly, whether, considering the correct boundaries, the suit land was situated on the respondent's side of the boundary.

In relation to the correct boundaries, the respondent testified that, his and then the $2nd$ appellant's land was initially separated by a village path from Kinongozi connecting to Butiaba Road. Further, that subsequently, the village path was used by the late Byahuka to take his cattle to a nearby water source, and became wider, turning it into a cattle track. The respondent further testified that in order to prevent his cattle from straying into the nearby gardens, the late Byahuka planted trees on either side of the cattle track as well as barbed wired. Therefore, at some point, the boundary evolved to the last description.

The respondent further testified that he obtained knowledge of the sale by the $2nd$ appellant of his land to the 1st appellant around 1973, and he observed the latter settling on the land in 1984. The respondent stated that from 1984 until around 1998/99, the 1st appellant utilized his land while respecting the boundaries referred to earlier. However, that in 1999, the 1st appellant trespassed on his part of land and thereafter a dispute between the parties ensued.

I must observe that up to this point, the established boundaries according to the respondent's evidence were marked by the cattle track with trees and barbed wire on either side. However, the respondent further testified that these boundary features were destroyed by the $1^{st}$ appellant. He testified in a passage at page 117 of the record as follows:

"Byeitima then blocked the cattle track and cut the fencing trees that late Byahuka had planted. Byeitima claimed school children were destroying his crops. When he

blocked the cattle track it remained a bush and unutilized till 2010 when he used force. He brought prisoners who slashed my crops. I called for a meeting of the bataka and LCs where I presented my complaint. Byeitima was also present. We sat under a mango tree which is on my portion of land. It was planted by my father."

In his evidence, the respondent also alluded to further features that once marked the boundary between his and the $1st$ appellant's respective pieces of land; he mentioned a big tree (mususa) on the boundary at the lower side towards the stream but claimed that it had been cut down by the 1st appellant in 2010; a murongo tree that was cut down by the $1^{st}$ appellant on $3^{rd}$ March, 2015.

$x = \varepsilon$ (39) $\mathbf{L}$

$\overline{a}$

$\mathbf{1} = \mathbf{1}$

The $2^{nd}$ appellant who initially owned the disputed land prior to selling to the $1^{st}$ appellant also gave evidence as to the boundary features at the time he first owned the suit land. The $2nd$ appellant testified that the boundary was initially marked by trees known as Nkoni trees. The 2nd appellant denied the existence of the cattle track or the other boundary features referred to by the respondent.

The 1st appellant testifying as DW3 stated that the boundary features were initially the Byahuka markstone and a mango tree marking the respective pieces of land owned by Byahuka, the $2nd$ appellant and the respondent's father the late Rukalema, whose land was given to his son Balyesiima. The 1st appellant denied that his land shared a boundary with the respondent.

After reviewing the above evidence, I observe that the boundary features alluded to by the respondent were, from his evidence, non-existent at the time of the suit. The only way Court could find in his favour is by believing his oral evidence on the boundaries and preferring it to the evidence of the appellants which showed that the 1st appellant had a certificate of title whose survey print indicated that the suit land was situated within the appellant's marks. In my view, the indefeasibility of a certificate of title issued under the Registration of Titles Act, and the presumption that it is a true reflection of the boundaries to which it relates, raises the bar for the nature of evidence required to impugn it. In my view, this bar may only be satisfied by evidence which satisfies court that the boundaries referred to in the certificate of title, are incorrect. I do not find that such evidence exists in this case. As stated earlier, the respondent only testified as to features that no longer existed at the time the suit was filed. Moreover, some of his evidence, as for example, the evidence of photographs of boundary trees allegedly cut down by the appellant was to say the least lacking in credibility as there was no way of verifying it. Therefore, I would find that the respondent failed to produce evidence to prove to the required standard that he

was the lawful owner of the suit land. The learned trial Judge erred in finding otherwise.

The above findings make it unnecessary to go into a detailed discussion of the other arguments raised under these grounds. I need only to state that, with respect, the learned trial Judge somewhat mishandled the present case by focusing his analysis on allegations relating to "traditional fraud" as a ground for impugning a certificate of title. As counsel for the appellants correctly submitted, this led the learned trial Judge into dwelling on irrelevant matters like the validity of the sale agreements between the 1st and 2nd appellants; the manner of conducting the survey prior to issuance of the certificate of title to the 1st appellant. As I demonstrated in my earlier analysis, the dispute between the parties was a boundary dispute which required the respondent to prove that the boundaries were as he alleged, something he failed to do.

I would therefore find that the grounds 3, 4, 5, 6 and 14 succeed.

### Ground 7

Ground 7 faults the learned trial Judge for relying on information contained in the respective parties' counsel' submissions about what transpired during the locus visit, in the absence of notes by the Court on the locus visit. The background to this ground is that Rugadya-Atwooki, J one of the predecessor trial Judges conducted a locus visit on 2nd August, 2018. However, the notes Rugadya-Atwooki, J made could not be traced when Gadenya, J wrote the judgment which is the subject of this appeal. Gadenya, J instead relied on information in the parties' counsel' submissions which contained descriptions as to what had transpired during the locus visit.

It is well-known that a trial Court is encouraged to conduct a visit to the locus in quo, especially in land cases. Further, as stated in the authority of **De Souza** v Uganda [1967] 1 EA 784 at page 787, the usual purpose of visiting a locus in quo is to check on the evidence given by witnesses and not to fill gaps. It is also well-known that a court should make notes regarding any observations it makes during the locus in quo visit. In Fernandes v Noronha [1969] 1 EA 506, it was stated that:

"...in cases where the court finds it expedient to visit a locus in quo, the court should make a note of what took place during the visit in its record and this note should be either agreed to by the advocates or at least read out to them..."

In light of the above principles, I would find that it was irregular that there were no notes from the visit to the locus in quo that was purportedly conducted in this case. It is further irregular, that in the absence of those notes, the iearned trial Judge relied on information contained in counsel's submissions as to what transpired in during the locus in quo visit. I would sustain counsel for the appellants' submissions on this point.

However, I also must state that a locus in quo visit is only valuable where the plaintiff has adduced convincing evidence in support of his case, so that the visit only serves a purpose to clarify it further. As I found in my earlier analysis, the respondent's evidence in the present case, did not support his case, and a visit to the locus could not have helped him much.

I would, for these reasons, find that ground 7 of the appeal succeeds.

# Grounds 8,9, 10, 11, 12 and 13

Grounds 8, 9, 10, 77, 12 and 13 relate to the reliefs that the learned trial Judge granted to the respondent upon deciding the suit in his favour. However, given my earlier conclusion that the learned trial Judge erred in finding that the respondent was the lawful owner of the suit land, these reliefs cannot be upheld. I would instead hnd in favour of the appellants and substitute an order dismissing the respondent's suit in the trial Court with costs.

Grounds 8, 9, 10, 11, 12 and 13 would also succeed.

In conclusion, I would frnd that the appeal substaltially succeeds and make the following orders:

- a) The appeal is substantially allowed. - b) The respondent's suit in the lower Court is dismissed. - c) The appellants sha-ll be paid costs of the appeal and in the Court below.

As Kazibwe-Kawumi arrd Asa Mugenyi, JJA both agree, the appeal is allowed and judgment is entered for the appellants in the terms proposed in this judgment.

# It is so ordered.

Dated at Kampala this 1 day of U o24. t. orion Barishaki \_a-.

Justice of Appeal

# 5 THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPATA CIVIL APPEAI NO. 19 OF 2022

## 1. TEGRAS BYEITIMA

10 2. RA.'ABU RUGADYA APPELTANTS

AND

# ASABAJAIDEN RESPONDENT

(Appeal from the Judgment of the High Court of Uganda at Masindi in Civil Suit No.3 of 2012 delivered on October L4,TOZL Gadenya Paul Wolibwa, J)

# CORAM: CHEBORIAN BARISHA(|, JA

MOSES KAZIBWE KAWUMI, JA

DR. ASA MUGENYI, JA

# MENT OF MOSES KAZIBWE KAW

I have had the benefit of reading in draft the Judgment prepared my brother the Hon. Justice Cheborion Barishaki. I agree with the

25 reasoning and orders he has proposed. I have nothing useful to add.

+ I\) Dated and delivered at Kampala this... day of 02,1.

![](1__page_24_Picture_16.jpeg)

Moses Kazibwe Kawumi

30 Justice of Appeal

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA CIVIL APPEAL NO. 19 OF 2022

#### **BETWEEN**

#### 1. TEGRAS BYEITIMA

## 2. RAJABU RUGADYA :::::::::::::::::::::::::::::::::::

$\mathbf{V}$

#### ASABA JAIDEN ::::::::::::::::::::::::::::::::::::

(*Appeal arising from the ruling and Orders of the High Court* Gadenya Paul Wolimbwa J dated 14th October 2021 and delivered at *Masindi on the 21st October 202 in Civil Suit No. 0003 of 2072)*

## CORAM: HON. JUSTICE CHEBORION BARISHAKI, JA HON. JUSTICE MOSES KAZIBWE KAWUMI, JA HON. JUSTICE DR. ASA MUGENYI, JA

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

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

It so ordered.

Dated at Kampala this ....................................

Dr. Asa Mugenyi **JUSTICE OF APPEAL**