Charles Wasswa Lugali Semakula v Amirali Karmali (Civil Appeal No. 95 of 2014) [2025] UGCA 171 (16 May 2025)

Full Case Text

#### THE REPUBLIC OF UGANDA

#### IN THE COURT OF APPEAL AT KAMPALA

## CIVIL APPEAL NO. 95 OF 2014

(Coram: G. Kiryabwire, Muzamiru Kibeedi & C. Gashirabake, $JJA)$

## (ARISING OUT OF CIVIL SUIT NO. 003 OF 2009)

**CHARLES WASSWA LUGALI SEMAKULA ------------- APPELLANT**

#### **VERSUS**

AMIRALI KARMALI ------------------------------------

(Appeal from the decision of Justice Godfrey Namundi delivered on 14th February 2014 at the High Court of Jinja)

# JUDGMENT OF JUSTICE GEOFFREY KIRYABWIRE J

### INTRODUCTION

This is a first appeal from the judgment of the High Court of Uganda at Jinja, delivered on the t4th of February 2Ot4, in which the Respondent was granted an Order of Eviction against the Appellant, a Permanent Injunction restraining the Appellant or his agents from trespassing or interfering with the Respondent's interest in the suit land, General Damages of UG SHS5OO,O0O,00O/= with interest until full payment, and costs of the suit. The Appellant's counterclaim was dismissed for failure to establish a legal right or interest.

### BACKGROUND

The brief facts of the Appeal are that the suit land (Comprised in Freehold land title FRV 55 Folio 20) originally belonged to Ggumba Mumegga as a mailo land title and was passed down through succession to Yakobo Lugali, the Appellant's father. It is alleged that in L92O, in Civil Suit No. 129 of 1920, an attachment order was issued against Brasio Kapere's land (Comprised in land title FRV 789 Folio 22) but was mistakenly registered on the suit land. Consequently, in 1940, the land was wrongly registered in the narnes of Mohamedali Jamal and later transferred multiple times until Waljee (Uganda) Ltd became the registered proprietor in 1960.

The Government took control of the suit land in 1972 under the Assets of Departed Asians Act and later it was repossessed in 1983.

It was further alleged that despite these changes in proprietorship, the Appellant's father remained in possession of the suit land until his death in 1992, alter which the Appellant took possession in L993, with tenants continuing to pay busuulu (ground rent) to him. In 2OO7, while seeking to register as administrator of his father's estate, the Appellant discovered that the land was registered under Waljee (Uganda) Ltd, prompting him to lodge a caveat on 21"t Februar5r, 2OO7. However, despite the caveat, the Respondent purchased the land from Waljee (Uganda) Ltd in May 2OO7. The Appellant later received a notice for caveat removal on O6th June 2008 this notwithstanding, ofl that same day the caveat was unlawfully removed, and the land was transferred to the Respondent. The Respondent then sued the Appellant in H. C. C. S No. O3 of 2OO9 (Jinja) for trespass, detinue, and conversion, seeking vacant possession.

It was the case for the Respondent that the suit property (comprised in FRV 789 Folio 22 Known as Magala Estate) was expropriated property within the meaning of the Expropriated Properties Act and had been repossessed under a certificate of repossession in 1992. The Respondent purchased the suit property from M/s Waljee (Uganda) Ltd who had itself become the registered proprietor in 196O before the events of expropriation of Asian properties in L972. It was the case therefore for the Respondent that the Appellant was a trespasser.

The High Court ruled in favour of the Respondent, dismissed the Appellant's counterclaim as stated herein before.

The Appellant was dissatisfied with the Decision of the learned trial Judge and now appeals to this Court on the following grounds

- 1. The learned trial Judge erred in law when he allowed the plaintiff s case to proceed without appearing in person or through an authortzed agent. - 2. The learned trial Judge erred in law when he decided to overlook the Defence point of Iaw. - 3. The learned trial Judge erred in law and fact when he discouraged/refused the Defence to amend its pleadings and dig out fraud on the part of the plaintiff. - 4. The learned trial Judge erred in law and fact when he held that the defendant was a trespasser and that he had no interest protected by law. - 5. The learned trial Judge erred in law and fact when he held that the Defendant's caveat was properly removed and that the plaintiff was properly registered. - 6. The learned trial Judge erred in law when he held that the property was repossessed by the former owners in L992 under the Expropriated Properties Act. - 7. The learned trial Judge erred in law when he failed to consider laws governing ownership and use of land in Uganda regarding non Ugandans. - 8. The learned trial Judge erred in law and fact when he considered evidence of witnesses who did not know the plaintiff and the matter before court against the Appellant.

- 9. The learned trial Judge failed in his cardinal duty to properly evaluate the evidence hence arriving on unjust decisions. - 10. The learned trial Judge erred in law and fact when he awarded 5OO million as general damages

## REPRESENTATION

At the hearing, the Appellant was represented by Mr. Kabiswa Hilary and Mawejje Allan, the Respondent was represented by Mr. Tonny Arinaitwe and William Kakembo.

# Preliminary Matters

This hearing arose as a result of reconstituted panel following the passing away of one of the original panel members of the Bench. At a previous hearing of this appeal, Court was informed that the Respondent had since passed away. Court was also informed that Probate for the Estate of the Respondent now deceased had been completed. The Court requested that proof of the grant of Probate had been completed. I note that this has been done and proof was provided vide a letter to Court from Counsel for the Respondent on the 30th November 2022. It follows then that the Executors of the Probate namely Salim Hydarali and Rikuni Karamali are now hereby incorporated into this Appeal as the Legal Representatives of the Respondent.

# I so Order.

I now turn to the grounds of Appeal as filed. I find that the grounds as filed overlap for purposes of re-evaluation. Both parties in their conferencing notes also listed different issues for resolution which made it difficult to reconcile their arguments. Upon reviewing the pleadings on appeal, the record of the High Court, and the proceedings of the parties (the plaint, Written Statement of Defence and Counterclaim), I find it appropriate to harmonise the different issues framed by the parties and reframe them for determination as follows: -

- 1. Whether the suit property was repossessed by the former owners under the Expropriated Properties Act and if so whether the Appellant's caveat was properly removed. - 2. Whether the laws governing ownership and use of land in Uganda by non-Ugandans were properly considered by the trial Court in arriving at its Judgment? And if so whether the Appellant was a trespasser and had no interest protected by law? - 3. Whether a trial can proceed without the Plaintiff appearing in person or through an authortzed agent? And if so whether it was proper to admit the evidence of witnesses who did not know the plaintiff and the matter before court against the Appellant? - 4. Whether it was appropriate to refuse the Appellant to amend his pleadings and expose the fraud on the Respondent's part? - 5. Whether the Trial Court properly evaluated the evidence in arriving at its decisions?

6. Whether the award Ug Shs500 million as general damages was justified or excessive?

# DUTY OF THE COURT

This is a first appeal and this court is charged with the duty of reappraising the evidence and drawing inferences of fact as provided for under Rule 30( U (a) of the Judicature (court of appeal rules) Directions SI 13-10. This court also has the duty to caution itself that it has not seen the witnesses who gave testimony first hand. On the basis of its evaluation this court must decide whether to support the decision of the High Court or not as illustrated in Pandya vs. R [19571 EA 336 and Kifamunte Henry vs. Uganda, Supreme Court criminal appeal No.10 of L997.

I shall apply these principles in determining this Appeal.

Issue One: Whether the suit property was repossessed by the former owners under the Expropriated Properties Act and if so whether the Appellant's caveat was properly removed.

# Counsel for the Appellant's Submissions

Counsel for the Appellant argued that the trial Judge erred in concluding that the suit property was repossessed under the Expropriated Properties Act (EPA). Section 1(c) of the EPA defined "former owner" as:

".. . anA person utho LUas either the registered otDner or propietor of any real or mouable property in Uganda. or was a shareholder in a business or enterprise registered in Uganda and uho u)as either expelled or forced to flee from Uganda during the period of the military regime or u)a"s in any other uaA dispossessed of the property or business; and included anybody uho was the legal heir or successor of that persort."

In Registered Tntstees of Kampala Instifi.fie a. D. A. P. C. B /S. C. C. A No.21/ 19931, the Supreme Court emphasized the EPA's goal to return property to former owners. Counsel for the Appellant argued that the land was registered under Waljee (U) Ltd in 1960 and submitted repossession required a Certificate of Repossession in accordance with Regulation 1O(3) of the Expropriated Properties (Repossession and Disposal) NO. 1 Regulation S.1. No 87-8, which provides that:

". . . u)here the minister has been satisfied tuith the merits of the applicationfor repossession he or she shall under his or Lrcr hand

issue to the applicant a certificate in the form set out in the 2nd schedule to these regulations."

However, in this matter, only a letter and not a certificate of repossession was adduced in Court. Counsel further submitted that under the said repossession had to be noted on the Certificate of Title, which was not done in this matter.

Counsel relied on the case of Souza Figuerido & Co. Ltd a. Moorings Hotel Co. Ltd [1960] 1 E,. A 926, where the Court of Appeal held that:

"...the Registration of Titles Ordinance auoids the creation of an Estate or Interesl rru Land by Unregistered Instruments, but there is nothing in the Ordinance uhich renders such Instruments Ineffectual as contracts between parties to them... in my uiew it can operate as a contract inter parties and can confer on the party in the positiotl. of intending lessee a right to enforce the contract specifically and to obtain from the intending lessor a Registrable Lease."

Counsel argued that unregistered instruments did not create legal estates, as affirmed in Sharp t). Coates (1949) 7 K. B. 285 and Katarikau)e a. Katwiremu [1974 H. C. B 187. He argued that repossession under the EPA required the beneficiary to make personal application and physically return to Uganda and neither a power of attorney or the death of a shareholder could extinguish others' rights.

On fraud, Counsel referred to Kampala Bottlers u. Damanico (U) Ltd [S. C. C. A No.22/ 1992], asserting fraud had to be attributed to the transferee. Counsel also argued there was no valid company resolution authorizing the sale of the suit land and that the transferor's signature was illegible with the missing company sea1.

The counsel for the Appellant argued that non-Ugandans could not own freehold land under colonial and Buganda Lukiiko regulations. In Kisugu Quarrg u. Administrator General [1999] 1 E. A 162, L. M. Kikonyogo (JSC as she then was) held that:

". . . It rs ntandatory for non-Africants to obtain the requisite ministeial consent under section 2 of the Land Transfer Act before any transfer could be effected. Decided cases on this statutory requirement include Manji V Begum [1954 E. A 7Ol ,)

Counsel lbr the Appellant zrlso surbmittecl thart Sec:tion 9(1)(d) of the EPA (this section has been declared unconstitutional by the Constitutional Court of Uganda, as it has been declared to be inconsistent with and contravenes Art. 26 of the Constitution and is nulI & void to the extent of the inconsistency under Ismailia Building Compang Limited & 3 Others a Attorneg General & 4 Others (Constitutional Petition 37 of 2079) [20241 UeiC'C 27 (18

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December 2024) ) required a former owner of property to return to Uganda within 120 days, but no evidence was adduced in this regard. In . F. Zaabwe a. Orient Bank & Anor /S. C. C. A No.4/ 20061, the Court stressed the need for a strict interpretation of powers of attorney.

On the removal of the caveat, counsel submitted that the caveat had been lodged on21"t February 2OO7 and removed on 07'h June, 2OO7. This, Counsel argued violated Section 140(1) of the RTA, which required the issuance of a caveator's summons before removal. In J. W. R Kazoora a. M. L. S Rukuba /S. C. C. A No.13/ 19921, the late Oder, J. S. C held that:

".... both Masengere and the Respondent proceeded to and concluded the deal not in ignorance of the Appellant's caueat but inspite of the canteat, apparently because they kneu that there is nothing to support the can)eat."

Counsel for the Appellant contended the Registrar's removal of the caveat was unlawful, as Section l4L of the RTA prohibited registration of any instrument affecting land while a caveat was in force.

"... So long as anA coueat remains in force prohibiting anA registration or dealing, the registrar shall not except in accordance with sonte prouision of the catteat, or with the consent in writirtg of the caueator, enter in the register Book ang change

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in the propietorship of or anA transfer or other instrument purporting to transfer or otheruise deal with or affect the estate or tnterest fn respect to uthich that caueat is lodged."

In Horizon Coaches Ltd as. E. Ruranga.ranga & Anor Ciuil Appeal No.14 of 2009. the court ruled that procuring a registration of title to defeat an unregistered interest constituted fraud. The Appellant argued that the Registrar's action facilitated an unlawful transaction.

Finally, the counsel argued that the Respondent had constructive notice of the Appellant's interest in the land . In Uganda Posts and Telecommunications u. A. K. M. Lutaaga [S. C. C. A No.36 of 1995J, the court held that a purchaser was bound by existing unregistered interests if they were aware of occupation. Despite being aware of the Appellant's interest, the Respondent proceeded with the transaction, invalidating their tit1e.

In conclusion, Counsel for the Appellant submitted that the repossession was not executed properly under the EPA, and the caveat's removal was unlawful, making the transaction invalid.

## Counsel for the Respondent's Submissions

Counsel for the Respondent submitted that the Appellant had failed to prove and demonstrate any lawful claim to the suit property. On the other hand, the Respondent as the registered proprietor, had acquired the suit land in good faith and for value, without violating

any other lawful interests. The Counsel submitted that it followed that the Appellant was a trespasser.

Counsel argued that the certificate of repossession (Ex. D5) was not challenged at the trial and therefore bringing this up on appeal was a miscarriage of justice. Counsel further argued after the original owners'M/s Waljee (U) Ltd obtained a Certificate of Repossession and repossessed the suit property, they subsequently transferred it to the Respondent. The Expropriated Properties Act provided that any person aggrieved by repossession must appeal under Section 15, of the EPA. Counsel submitted that in this matter, the Appellant did not object to the repossession or the sale. In this regard, Counsel relied on the cases of Shabani Matouu a. Sikindar -Efussein Ismail [High Coutt, Ciuil Suft No. 283 of 19921 and Mohan Musisi Kiwanuka a. Asha Chand [Supreme Cout't, Ciail Appeal No. 74 of 2OO2l. Counsel for the Respondent submitted that the claims against repossession were a new issue raised only at the submission stage and were not pleaded or supported by evidence at trial.

Regarding the caveat, counsel for the Respondent argued that the caveat, lodged on 14th January 2oo3,lapsed by 6th June 2OO7 when the Registrar issued a notice of intent to remove it. Counsel further argued that the Appellant's failed to take action within the 60 days as stipulated in the notice and therefore the caveat lapsed before the Respondent's later registration on 5th September 2OO7. Counsel for the Respondent relied on J. W. R. Kazoora a. M. I. S. Rukuba [Supreme Court Ciuil Appeal No. 13 of 2OO2], wlnic}:, held that a caveat

did not preclude a sale. and once a caveat lapsed, the Registrar had to remove it. Counsel therefore submitted that the removal of the caveat was proper, as no legal action was taken by the Appellant, and his claim therefore lacked a lawful basis for preventing the Respondent' s registration.

## Court's Findings

I have considered the submissions of the parties and the lega1 authorities supplied to Court for which I am grateful.

The trial Judge noted that the Appellant claims title from his father and grandfather for which he has letters of administration. The Judge also noted that the Appellant claimed that his predecessors and the Respondents co-existed in the relationship of landlord and tenant with no challenge to each other's interests.

However, the trial Judge from the evidence found that the Appellant had come into the picture much later and had uprooted tea trees, planted sugar cane and hired the rest of the land to third parties. The trial Judge found that there was no evidence that the Respondent or his predecessors ever challenged or impeached the title of the Respondent or the persons whom he bought the suit land from other than stating in the pleadings that the Appellant was a lawful and I or bonalide occupant.

On the other hand, the trial Judge found (page 14 of the Record of Appeal) that the Respondent was the registered proprietor of the suit

land and that the Respondent had bought the suit land from M/s Waljee (U) Ltd. M/s Waljee (U) Ltd had bought the land in 1960 from Muhammad Jarmal who owned it since W4A. This evidence was supported by the evidence of the former workers of Mls Waljee (U) Ltd.

I agree with the trial Judges conclusion that the Appellant's interest is not well articulated (page 17 Record of Appeal). First, like the trial Judge found, if the Appellant was a tenant and so protected by Article 237 of the Constitution and Section29 (1) of the Land Act, there was no evidence that the Appellant came on to suit land with the consent of the Respondent's predecessors. Secondly, there was no evidence either to support the assertion that the Appellant was on the suit land for more than 12 years unchallenged or had been settled on the land by the Government or its agents. The trial Judge found: -

".. . The defendant comes out as a person who took aduantage of the lack of physical presence by the registered owners and thought he would manipulate the law to suit his agende..."

I also agree with the trial Judge's reference to the Supreme Court Decision of EMA Lutaaya V Sterling Civil Engineering Co Ltd SSCA 1I of 2OO2 where Mulenga (JSC RIP) held that: -

"... Tresposs to land occurs when a person makes arl unauthoised entry upon the land and thereby interferes or portends to interfere with another person's lawful possession of that land..."

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In this appeal it is on record that the Appellant not only came on to the suit property without any clear colour of right, but also cut down what was a tea plantation (stated to sit on 610 acres on the land title) and planted sugar cane instead; in addition to renting out the rest. I find for the foregoing reasons that the Respondent meets that definition of a trespasser.

It is also clear from the pleadings and the Court record that the process of repossession was not challenged at all and therefore its challenge at this Court is nothing more than an afterthought. It is trite law that parties must be held to their pleadings and any departure therefrom without leave of court is erroneous. As it is the bulk of the Appellant's submissions on Appeal was just on this very point of departure. For the avoidance of doubt, a careful reading of Exhibit D 5 / Appendix H to the Reply to the Counter Claim show that the said instrument date d 26th February 1992 therein was not a mere letter but a certificate of repossession (vide DAPCB form VII) signed by the Minister of State for Finance. The said certificate reads in part:

"... The Custodian Board has confirmed that the documents gou submitted regarding aboue mentioned properly (ies) appear to be in order.

It is therefore in accordance uith the lana to inform you that gou are free to repossess Aour propertg and that the repossession is effectiue the date of this letter..."

This certificate clearly predates the activities of the Appellant of 2OOO thus putting into question the entire testimony of the Appellant in this area as unreliable.

It is the case of the Appellant that after lodging the Appellant lodging in a caveat on tlne 21\*t February 2OO7, a Notice to Show Cause Why the Caveat should be removed was issued however the caveat was removed that very day. It was further argued that the removal of the caveat on the day the notice was issued violated Sections 140 and L4L of the Registration of Titles Act.

On the issue of the caveat lodged by the Appellant, the trial Court found: -

"Houteuer the fact is that there u)as a ca"ueat lodged bg the defendant on (sic) Jartuary 2003. TLrc Caueat was registered on the 21/ 2/ 2007 and remoued on 7/ 6/ 2007. The Plaintiff s interest / transfer u)as registered on 3/ 9/ 2007..."

The trial Court found that the above were the applicable time lines and if the Registrar subsequently made faulty entries that that should not be visited on the Respondent as they went beyond the 9O days to apply to remove the caveat after it had been lodged (Nyangire Karumu V DFCU Leasing Co HCCS 106 of 2OO7 applied). I agree. At the time of the Registration of the Respondent's interest in September,2OOT the caveat filed in January 2OO7 was no longer in place.

In conclusion, I find that the Respondents were lawful owners of the land and that the Appellant were trespassers. Furthermore, that the caveat was la'w,fully removed.

This Grouncl fails

Issue Two: Whether the laws governing ownership and use of land in Uganda by non-Ugandans were properly considered by the trial Court in arriving at its Judgment & if so whether the Appellant was a trespasser and had no interest protected by law?

Given my findings under issue number one above this issue is answered and is therefore redundant.

Issue Three: Whether a trial could proceed without the Plaintiff appearing in person or through an authorized agent? & if so whether it was proper to admit the evidence of witnesses who did not know the plaintiff and the matter before court against the Appellant

## Counsel for the Appellant's Submissions

Counsel for the Appellant submitted that the trial Judge erred in law by allowing the case to proceed without the plaintiff s personal appearance or representation by a legally recognized agent, resulting in a miscarriage of justice.

Counsel submitted that the Record of Appeal indicated that the plaintiff, Amirali Karmali, was absent throughout the proceedings, and instead, one Kajjubi Vincent (PWl), described as a manager, appeared on his behalf. However, under Order III Rule 1 of the Civil Procedure Rules, a party had to appear in person, through an advocate, or a legally recognized agent. Order III Rule 2 limited recognized agents to those holding a power of attorney or engaged in trade on behalf of a non-resident party, which did not apply to Kajjubi Vincent.

Counsel submitted that Kajjubi Vincent's appearance and evidence were legally improper. The plaintiff, having sued in his personal capacity, was required to present his case, be examined, and submit to cross-examination. His absence denied the Appellant a fair hearing and violated principles of natural justice.

In light of this procedural irregularity, counsel for the Appellant prayed that this Honourable Court find that the trial court's decision was fatally flawed and should be set aside.

# Counsel for the Respondent's Submissions

Counsel for the Respondent submitted that under Order III Rule I of the Civil Procedure Rules, a party could appear in person, 1sI

through a recognized agent, or by an advocate. In this case, the plaintiff was at all material times represented by duly appointed advocates, and the trial court never directed him to appear in person, as it had discretion to do when necessary.

Counsel further submitted that evidence in support of the plaintiff s case was led by competent witnesses, including Kenneth Katarikawe PW4, an advocate who handled the transaction on behalf of the plaintiff. Katarikaure had known the plaintiff for over 3O years and acted as his lawyer in the suit. His testimony, alongside other witnesses, established the plaintiff s ownership of the disputed land and the defendant's unlawful occupation.

Counsel argued that there was no legal requirement that witnesses must personally know the plaintiff or the subject matter before testifying. The witnesses, including Katarikawe, gave firsthand accounts based on their professional and transactional dealings with the plaintiff. Katarikawe testified about the purchase of the land, registration process, and caveat removal, proving the plaintiffs ownership and refuting the Appellant's claim.

Counsel also submitted that the plaintiff s absence was explained to the court as he was physically challenged due to old age. The trial court was informed and acknowledged this, and at no point did the Appellant apply to summon the plaintiff for cross-examination.

#### Court's Findings

I have addressed myself to the submissions of both counsels on this issue and the authorities provided in this regard for which I am grateful.

Right from the onset I find this issue misplaced. This is so because this was not an area of contest at the trial, it was not even raised during the Appellant's submissions at the trial Court. This issue did not even form a part of the trial Court's Judgment. Clearly this issue is another after thought launched by the Appellant on appeal. The Court of Appeal is a correctional court as to what happened at the trial court. This Court is not an opportunity for a second bite of the pie. Litigation must have an end game otherwise fresh issues at every stage would lead to an abuse of court process.

In any event, for the avoidance of doubt, Mr Kenneth Katarikawe Advocate made it clear throughout the trial that he was the legal brain throughout the transaction between the Respondent and M/s Magala Estates and was authorised to testify about its legality and which evidence in my view he did and the trial Judge relied upon.

The above being my finding I decline to address an issue that was not canvased at the trial Court. I further find no legal basis for me to examine this issue suo moto.

This issue is dismissed.

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# Ground Four: Illhether it was appropriate to refuse the Appellant to amend his pleadings and expose the fraud on the Respondent's part?

# Counsel for the Appellant's Subrnissions

Counsel for the Appellant argued that the trial Judge erred in law and fact by refusing to allow the amendment of pleadings to expose alleged fraud by the Respondent. Counsel sought to amend the written statement of defense and counterclaim based on newly discovered evidence, including fraudulent actions related to the sale of the suit property, improper witness attestation for the will, and issues regarding share transfers in the former owner's company. Counsel submitted that the amendment would help the court address the real issues in the case, as previous counsel had not pleaded fraud.

Counsel relied on Order VI Rule 19 of the Civil Procedure Rules, which permitted amendments if they helped resolve the main issue and did not cause injustice. Counsel referred to Waliees (Uganda) Ltd u. Ramji hmjabhai B. T Ltd [1971] E. A 788, which stated that amendments should be allowed if they didn't harm the other side, who could be compensated by costs. Additionally, counsel also relied Article 126(2llel of the Constitution, emphasizing that justice should prevail over technicalities.

Counsel contended the trial Judge failed to recognize that the amendment would not harm the Respondent, who could be compensated by costs. Exposing fraud and illegality in the Respondent's interest was crucial for justice. Couusel referred to S. M Zaaer u. Bq.manga (1994) M{ALR 347, arguing that courts exist to resolve disputes, ttot to punish mistakes.

Counsel submitted that the trial Judge's refusal to allow the amendment was erroneous, and the court should have permitted the amendment to expose fraud and illegalities related to the Respondent's interest in the property.

# Counsel for the Respondent's Submissions

Counsel for the Respondent agreed with the trial Court's refusal for the Appellant to amend pleadings and join new parties on several grounds, particularly delay and bad faith. Counsel for the Respondent argued that the Applicant had repeatedly attempted to delay the trial proceedings, and this application was viewed as another effort to frustrate the timely resolution of the case. Counsel further argued that the Respondent would have been prejudiced, being elderly and in poor health.

Counsel further argued that the proposed amendment lacked legal merit. The Applicant's defense, claiming to be an agent or caretaker of the former registered owner, did not affect the fact that the Respondent held the title to the property. Additionally, the Applicant's failure to take timely action regarding the caveat withdrawal weakened the claim.

Counsel also submitted that the amendment was made in bad faith since the Applicant at the time of the application had already closed their case. There was no valid cause of action against the new parties proposed, and their inclusion would complicate the case.

Finally, Counsel cited precedents such as Gaso Transport Sentice Ltd u Martin Adala Obene, Court of Appeal Ciail Appeal No. 2O of 7998, and Auto Garage & Others a Motokou, Coutt of Appeal Ctuil Appeal JVo. 5 7 of 2OOO. These cases emphasized that amendments should only be allowed if necessary for a fair resolution of the case, without causing unnecessary delays or complications.

# Court's Findings

I have addressed myself to the arguments of both Counsel and the authorities supplied for which I am grateful.

The prayer for amendment of the written statement of defence in this matter, looking at the submissions and various Rulings on it, sought to be made at the close of the Respondent's case. It sought to plead fraud and add a party in the narnes of Amino muhamed. In his affidavit in support of the Motion to amend the Written Statement of Defence, the Appellant deponed (page I7O of the Record of Appeal): -

"7. That I haue beert aduised bU mA aduocates uhich I consider to be true that the ground upon which mg application for leaue

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to amend was dismissed is not sufficient enough since the plaintiff can be allowed to recall his witnesses if necessarA. .."

The Respondents on the other hand argued that the amendment would bring no new information and the said Amino muhamed had not been mentioned anywhere in the evidence adduced. Furthermore, the Respondent was elderly and any further delay of the suit would prejudice and deny the Respondent the opportunity to enjoy the fruits of his Judgment.

The ground given by the trial Judge for denying the amendment, can be found in the Ruling of Judge Flavia Senoga Anglin ((page 166 of the Record of Appeal): -

"This Court denied to allow his application for leaue to amend the uritten Statement of Defence, to crllotu it would mean to reopen the heaing of the case and it would be an injustice for the Respondent to be denied a chance to respond to euidence that the Applicant seeks to put before Court.

Considering the stage at uthich the case has reached, to grant the Applicant leaue to appeal to the Court of Appeal will result in the abuse of the process o/ Court by causing inordinate delag in the finalisation of the whole case. .."

I find that looking at the pleadings as a whole at the trial Court, there was nothing pointing to fraud in the Written Statement of Defence or Counterclaim of the Appellant. Fraud is such an important defence

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that to raise it so late in a trial is evidence of an afterthought not a slip in pleading. Indeed, the refusal of the amendment in an interlocutory application allowed the hearing at the High Court to proceed and then appeal to this Court on the merits. Indeed, it is a fact that the Respondent was elderly and ill and has at this time already passed away. In our finding, the trial Judge made a correct call and properly exercised her discretion in disallowing the amendment at such a late stage as an abuse of Court process.

We accordingly disallorv this issue.

# Issue Five: Whether the Trial Court properly evaluated the evidence in arriving at its decisions?

Whereas this is a cross cutting issue in the determination of any ground of appeal, pleading this ground generically as a standalone violates Rule 86 of the Rules of this Court. That Rule makes it clear that the ground should specify the points which are alleged to have been wrongly decided which this ground has not. This practice of pleading to such a generic ground should stop.

I accordingly strike out this issue and hence the ground on which it is founded.

# Ground Six: Whether the award of Ug Shs 5OO million as general damages was justified or excessive?

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# Counsel for the Appellant's Submissions

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> Counsel for the Appellant argued that the trial Judge erred both in law and fact when awarding UG SHS 500,000,00O/= as general damages to the Respondent. Counsel further submitted that the trial Judge's earlier finding that the amount claimed by the Respondent, UG SHS1,500,000,000/=, was speculative, contradicted the award he later gave of UG SHS 500,000,000/= as damages. According to the Appellant, the Respondent failed to present sufficient evidence to prove the damages suffered, as the burden of proof lay with the plaintiff.

> Counsel for the Appellant also argued that the damages awarded were not properly assessed, given the speculative nature of the claims and the Respondent's failure to establish ownership of the property in question at the relevant time. Counsel pointed out that the Respondent's interest in the suit property was tainted \Mith illegalities, as they were neither the registered proprietor in 1992 nor had any legal interest when the Appellant took possession.

> Counsel for the Appellant submitted that the learned trial Judge did not properly address the relevant legal provisions or assess the damages correctly, as outlined in Section 33 of the Judicature Act. Counsel for the Appellant also suggested that they were entitled to general damages for the destruction of their property, including sugarcane plantations, pine, and eucalyptus trees, which were valued at approximately UG SHS 5,000,000,000/=. In conclusion, the Appellant prayed that the court set aside the trial court's award of UG SHS 50O,OO0,0OO as general damages and grant the Appellant's claims for damages, with costs.

# Counsel for the Respondent's Submissions

Counsel for the Respondent submitted that the trial Judge properly exercised discretion in awarding UG SHS500,000,000/= as general damages for trespass. Counsel argued that the trial . Judge adhered to established legal principles, including Halsbury's Laws of England, and relevant case law such as Onegi Obel u. Attorneg General, H. C. C. S iVo. 66 of 2OO2 and Placid Weli u. Hippo Tours & Traael Ltd, ff. C. C. S AIo. 939 of 7996. The trial Judge appropriately assessed the harm caused by the defendant's actions, which included growing crops on the land and depriving the plaintiff of its use.

The Respondent submitted that the Appellant's actions enriched him at the Respondent's expense, and the damages awarded were a fair reflection of this loss. Although the plaintiff did not claim specific damages, the Judge awarded general damages considering the unlawful interference and economic harm suffered. Counsel pointed out that the defendant admitted to benefiting from developments valued at UG SHS 5,0O0,OO0,000/= which justified the trial Judge's award.

Counsel further submitted that the award of UG SHS 5OO,OO0,OOO/= was consistent with prior cases where general damages were granted for trespass and economic loss, even rnhen specific damages were not

{

claimed. The trial Judge's award \ ras reasonabie, taking into account the costs and inconvenience faced by the plaintiff in removing the defendant's developments. This position was supported by Uganda Commercial Bank t), Matiga Wassuta, Ciuil Appeal JVo. 6 of 1982 and Kibimba Rice Co. Ltd u. Umar Salim, Ciail Appeal No. 7 of 7988, where general damages were awarded in similar circumstances.

Finally, counsel requested that the court uphold the trial Judge's award, noting that it was a fair and judicious exercise of discretion, and aligned with precedents in Annet Zimbiha u. Attorneg General, H. C. C. S lVo. 1O9 of 2OlI, where the court granted general damages to the plaintiff in consideration of economic inconvenience caused by the defendant's actions. Counsel also prayed for interest at 23o/o per annum from the date of judgment until full payment, and for the costs of the suit to be awarded to the Respondent.

# Court's findings

(

I have addressed myself to the submissions by the Counsels to the parties and the submissions relied upon for which I am grateful.

It is the case for the Appellant that the damages were speculative and not supported by sufficient evidence w'as not persuasive. On the other hand, it is the case for the Respondent, that despite not presenting specific damages, they established through testimony that they had developments valued at UG SHS 5,O00,OO0,0O0/=.

In Uganda Posts Ltd V Mukadisi [2O23] UGSC 58 the Supreme Court held: -

General damages are the direct natural or probable conseqluence of the urongful act complained of and include damages for pain, suffering, inconuenience and. anticipated fufire /oss. General damages are monetary compensationfor the non-monetary aspects of a wrong suffered by a. plaintiff. TLrc basis for the award of general damages is the doctrine of restittttion in intergntm uthich is supported bg Article 126 l2l (c) of the Constittttion which prouides that in adjudicating cases, adequate compensation sknll be awarded to uictims of wrongs. In computing the adequate compensation which a plaint lf \*oA be autarded a.s general dama"ges, the court exercises judicial discretion.

The discretion is guided bA factors such as the ualue of the subject matter and the economic inconuenience that a partg maA haue been put through. . .".

The trial Judge held the claim by the Respondent for damages of UG SHS 1,5O0,OO0,000/= was speculative and then found: -

"... ArL Autard o/Shs 500,000,000/: is more appropriate to couer the inconuenience of remouing the defendants and gaining uacant possession..."

I find that the trial Judge's award was in line with established legal principles, including case law such as Onegi Obel a. Attorneg

a a

Generaland Placid Weli a. Hippo Tours & Trauel Ltd (Supra), which recognized that damages for trespass could be awarded based on the economic loss and inconvenience caused to the plaintiff, even in the absence of a precise monetary claim. I further find that the trial Judge's award was a reasonable exercise of discretion, given the unlawful actions of the Appellant, the economic harm caused, and the precedents cited.

Accordingly, this issue and the ground from which it stems is dismissed.

# Final Decision

a a I

> In light of the above findings, this Court dismisses the appeal. The Appellant's request for the judgment of the trial court to be set aside is denied. The Court further upholds the trial court's decision regarding the declaration of ownership, the award of general damages, and the refusal to amend the pleadings. The Respondent is entitled to the costs of the appeal and the trial court proceedings.

Ord.ers

- 1. The appeal is hereby dismissed. - 2. The Judgment of the trial court is affirmed in its entiret5r. - 3. The Appellant is to pay the costs of this appeal and the trial court proceedings.

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# I SO ORDER

Dated at Kampala this $15$ day of $15$ day of $2025$ .

HON. JUSTICE GEOFFREY KIRYABWIRE, JA

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

## CryIL APPEAL NO.95 OF 2OI4

(Arising out of Civil Suit No. 003 of 2009)

[Coram: G. Kiryabwire, M. M. Kibeedi and C. Gashirabake, JJA)

#### CHARLE,S WASSWA LUGALI SEMAKULA VERSUS APPELLANT

AMIRALI KARMALI: : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : :RESPONDENT

#### JUDGMENT OF CHRISTOPHER GASHIRABAKE. JA.

I have had the benefit of reading in draft the judgment of Hon. Justice Geoffrey Kiryabwire, JA. I concur with the judgment and have nothing useful to add. Dated at Kam palathis ......[. t '\fr.... Day of ...... a 2025.

I. t a a aa l,

Chri stopher Gashirabake JUSTICE OF APPEAL

#### THE REPUBLIC OF UGANDA

#### IN THE COURT OF APPEAT OF UGANDA AT KAMPATA

#### ctvtt APPEAL NO. 95 0F 201,4

## (Arising out of Civil Suit No. 003 of 2009)

ICORAM: G. Kiryobwire, M. M Kibeedi and C. Gosttiraboke,IJA]

CHARLES WASSWA LUGALI SEMAKUTA ====================== AppELtANT

# VERSUS

AMlRAtl KARMALI ======================================= RESPONDENT

## JUDGMENT OF MUZAMIRU M. KIBEEDI. JA

Ihave had the benefit of reading in draft the Judgment of the Hon. Justice Geoffrey Kiryabwire, JA.

I concur with the Judgmerrt and I have nothing more useful to add.

Dated at Kampala this day of .r.......2025 i t C/^-

MUZAMIRU M. KIBEEDI JUSTICE OF APPEAL