Kalungu Farm Limited v Muluta & Another (Civil Appeal 314 of 2020) [2024] UGCA 213 (15 August 2024)

Full Case Text

### THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA CIVIL APPEAL NO. 0314 OF 2020

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

# KALUNGU FARM LIMITED....................................

**VERSUS**

## 1. MULUTA WILSON WILLIAM

# 2. COMMISSIONER LAND REGISTRATION........... RESPONDENTS

(Appeal from the decision of the High Court of Uganda at Kampala (Land Division) before Bashaija, J. dated 29th May, 2020 in Civil Suit No. 671 of 2014)

JUDGMENT OF CHEBORION BARISHAKI, JA

This Appeal is against the decision of the High Court – Bashaija, J. by which the Court dismissed the Appellant's suit with costs to the 1st Respondent and also ordered for cancellation of the Appellant's certificate of title.

#### **Background**

The Appellant filed its suit against 8 defendants, including the Administrator General (1st defendant); the 1st Respondent to this Appeal (2nd defendant); the Commissioner Land Registration (7th defendant); and Ms. Madina Nabukeera, a Lands Registrar at the Bukalasa Lands Office (8th defendant). The suit was for recovery of land situated at Kalanamu in Luwero District ("the suit land"). The Appellant averred in its plaint that it held a certificate of title for the suit land which it was described as Freehold Volume 2 Folio 8 and known as Kalungu Estate. The Appellant averred that it was registered as proprietor on the said certificate of title on 19th April, 1968.

The Appellant further averred that, in 2013, the 1st Respondent issued another certificate of title for the suit land in which the suit land was described as

Bulemezi Block 15 Plots 96 and 97. The Administrator General (AG) was indicated as the Registered Proprietor on this title and he became registered on 9th April, 2013. The AG subsequently transferred the suit land to other persons including the 1st Respondent whom as it later transpired were beneficiaries of the estates of the late Marko Kitenda and Semu Tenywa which estates were being administered by the AG and whose assets were said to also include the suit land. The appellant averred that the creation of the mailo title was unlawful since it already had a title for the suit land, and prayed for cancellation of the mailo title.

The AG, the Commissioner Land Registration (CLR), the Lands Registrar, and the 1st Respondent all filed their respective defences in which they averred that the impugned mailo title was lawfully created. The AG averred that he lawfully obtained the mailo title in the capacity of administrator of the estates of the late Marko Kitenda and the late Semu Tenywa Musoke to which the suit land belonged.

The 1st Respondent to this Appeal averred in his defence that he was a beneficiary of the estates of the late Marko Kitenda Muwabya and the late Semu Tenywa Musoke, whose assets included the suit land, and for which the AG as administrator rightly obtained a certificate of title. The 1st Respondent averred that the AG had subsequently duly transferred to him his share of the interest which, after subdivision, came to be known as Plot 1008, which he subsequently sold to third parties for valuable consideration.

The Commissioner Land Registration (CLR) averred in his defence that the Appellant's suit was premature in that he was still investigating a complaint which the Appellant had lodged about the alleged illegal creation of the mailo title. The CLR averred that there was a likelihood that the investigations would be concluded in the Appellant's favour and the register amended to cancel the impugned mailo title.

The Lands Registrar (LR) averred in her defence that she was wrongly sued by the Appellant for acts she had done in her official capacity, and for which she enjoyed immunity.

The trial of the Appellant's suit was handled partly by Kwesiga, J. and subsequently by Bashaija, J. who rendered the judgment in the matter. During the course of the trial, a consent judgment was made between the Appellant, on the one hand, and the AG, CLR and LR on the other hand, wherein it was agreed, among other things, that the impugned mailo certificate was created erroneously and ought to be cancelled, along with other titles created pursuant to it. However,

Bashaija, J. declined to determine the suit solely on the basis of the consent judgment and went on to hear evidence and render judgment.

The following issues were considered in Justice Bashaija's judgment:

- 1) Whether the creation of mailo tile comprised in Bulemezi Block 15 Plots 96 and 97 was illegal/unlawful. - 2) What remedies are available?

With respect to issue one, the learned trial Judge held that the mailo title was validly created. That the suit land originally belonged to the late Marko Kitenda who held both a Provisional and Final Certificate for it. Upon Kitenda's death, the suit land became the property of his son the late Semu Tenywa and upon his death, the property became part of his estate. The AG had become the administrator of the late Tenywa's estate and thereafter lawfully obtained the impugned mailo title and in his capacity as administrator, he was the lawful owner of the suit land.

In relation to issue two, the learned trial Judge made a declaration that the mailo title was lawfully created and he dismissed the Appellant's suit with costs. He also made an order for cancellation of the Appellant's certificate of title.

The Appellant was dissatisfied with the decision of the learned trial Judge and appealed to this Court, on the following grounds:

- The learned trial Judge erred in law and fact when he held that the $1)$ mailo title comprised in Bulemezi Block 15 Plots 96 and 97 validly derived its root from the cadastral map which was created in 1915. - The learned trial Judge erred in law and fact when he found that the $2)$ mailo title comprised in Bulemezi Block 15 Plots 96 and 97 was created earlier than the Freehold title comprised in Freehold Register Volume 2 Folio 8. - $3)$ The learned trial Judge erred in law and fact when he held that the mailo title comprised in Bulemezi Block 15 Plots 96 and 97 was validly created whereas the freehold title comprised in Freehold Register Volume 2 Folio was not. - $(4)$ The learned trial Judge erred in law and fact when he held that the suit land was available at the time the 1st defendant registered it into his name on 9th April, 2013.

- The learned Judge erred in law and fact when he set aside the $5)$ consent judgment which withdrew the suit against the 1st, 3rd, 4th, 6th and 8th defendants without according the parties to it (the consent) a hearing. - The learned Judge erred in law and fact when he found that the late $6)$ Marko Kitenda leased the suit land to FOB Wilson. - The learned trial Judge erred in law and fact when he found that the $7)$ suit property was part of the estates of the late Semu Tenywa and Marko Kitenda.

The Appellant prayed for the following orders from this Court:

- The Appeal be allowed. $a)$ - The mailo title comprised in Bulemezi Block 15 Plots 96 and 97 and $\mathbf{b}$ all titles arising therefrom be cancelled. - The consequential order cancelling the Appellant's title in Freehold $c)$ Register Volume 2 Folio 8 be set aside.

The Respondents pay the appellant's costs in this Court and the $d$ Court below.

The 1st Respondent opposed the Appeal and prayed that this Court dismisses it with costs.

#### Representation

$\int_{0}^{\infty} T \cos^{-\alpha} \cos^{-\alpha} \theta$

At the hearing, Mr. Barnabas Tumusinguze appeared for the Appellant. Mr. Nesta Byamugisha, Mr. Brian Tibihayo and Mr. Edgar Ayebazibwe appeared for the 1st Respondent. The Court gave the respective Counsel a schedule for filing written submissions which was duly complied with. All submissions filed by all parties were considered in arriving at this decision.

There was no representation for the $2^{nd}$ Respondent.

In the course of the hearing, Court granted the Appellant leave to adduce additional evidence. The Appellant filed an affidavit sworn by Sekitto Moses introducing the additional evidence which was bundled and filed as a supplementary record of Appeal. The 1st Respondent cross examined the deponent.

## Appellant's submissions

$\overline{a}$

The Appellant argued grounds 1, 2, 3, 4, 6 and 7 jointly; and ground 5 independently.

The Appellant argued grounds 1, 2, 3, 4, 6 and 7 jointly because, in his view, they all related to the question of whether the mailo certificate of title describing the suit land as Bulemezi Block 15 Plots 96 and 97, "the mailo title" was validly created. Counsel contended that the learned trial Judge had erred in answering this question in the affirmative and made several points in support of this contention. First, counsel submitted that the learned trial Judge incorrectly found that the mailo title had its root in Final Certificate (FC) 9737 belonging to a man called Marko Kitenda and supported by cadastral "cartridge" map sheet 61/3/18 created in 1915. The Appellant submitted that Kitenda never owned the stated FC 9737 and that instead it could be traced to another man called FOB Wilson, who was one of the Appellant's predecessor's in title. Counsel contended that the evidence and the supporting indentures showed that the Appellant's title originated from crown land that was in existence before the enactment of the Registration of Titles Ordinance on 21st May, 1925 and was initially held under Grant No. 10020 but subsequently transferred to a man called FOB Wilson who was granted a FC 9737 supported by cadastral map sheet 61/3/18. TheAppellant submitted that during the colonial era, the crown through the Governor - would acquire mailo interests from the native Africans (mailo owners) and sell it to non-natives who satisfied the conditions of purchase stated in the indentures.

It was further submitted by Appellant that the learned trial Judge erred in accepting the Respondent's untrue evidence that the suit land was once held as a lease in the absence of evidence of the lease which was contrary to Section 91 of the Evidence Act, Cap. 6 which provides that documentary evidence must be produced to prove any disposition of property by way of contract or grant. Counsel supported his submission by citing **Dr. Adeodanta Kekitiinwa and 3** Others vs. Edward Haudo Wakida, Court of Appeal Civil Appeal No. 3 of 1997 where this Court discussed the meaning of that provision

Further, the Appellant submitted that the learned trial Judge erred in basing on the evidence of DW2 to find that the acronym "CLR" in the notation CLR Vol. 31 Folio marked on the Appellant's title stood for 'Crown Lease Register', which he relied on to support the 1st Respondent's false assertion that the suit land has ever been held on a lease from Marko Kitenda to FOB Wilson.

counsel referred to the additionar evidence adduced in this court of indentures, which were forms issued under the Crown Lands Ordinance and the Crown Lands (conveyance) Rures which showed that the acronJnn stood for .crown Lands Register."

counsel further submitted that according to the indenture of 6th May, 1g 14, FoB wilson purchased land from the Governor of the uganda protectorate pursuant to crown Gra,t No. 10o20 for varue; and according to counsel this contradicted the trial court's finding that the suit land was reased by Marko Kitenda to FoB wilson' It was FoB wilson's interest that, foll.wing subsequent transfers, became registered as a freehold interest evidenced by the freehold title held by the Appellant. In further support of his submission as to the meaning of the acronyrn "cLR", counsel referred to the indentures registered on lgth retruary, 1924; lst February, 1924.

counsel further submitted that the recita-rs on the respective indentures indicated that FoB wilson received a grant of an estate in fee simpre and not a lease, which he said further supported the Appelrant,s freehord titre which is equivalent to a,, estate in fee simple. cou.rsei reried on a passage from the textbook by Kevin Gray titled 'Elements of Land Law, 2na Edition at p. 5g-59 which defines an estate in fee simpie as na grant of land from the crown in perpetuity - a right of tenure which endures forever\_

Furthermore, counsel submitted that the additiona-r evidence of Mr. Moses Ssekito showed, in several respects, that the Appeliant,s certificate of title originated from the rerevant indentures, in that: first, there was a similarity in content and signature on both the annotated inscription appearing on the left side of the indenture a,d on the Appelrant's title, which showed that the suit land had moved from crown La,ds ordinance dispensation to the Registration of ritles ordinance; secondly, the evidence showed that the suit lanJ formerly described as cLR vor 3r Forio 6 on the indenture became Freehold Register Volume 2 Folio 8 on the freehold titre issued under the RTo and thirdly, sh'owed that both the indenture and the freehold titre originated under crown Grant No. 10020.

counsel submitted that the above-referenced evidence was sufficient to prove the Appellant's case and that the leamed trial Judge erred in rerying on the untrue evidence of DW1 to contradict that evidence. In Counsel,s view, the learned trial Judge ought to have rejected the expert evidence since it contradicted other cogent evidence on record.

The second point made by Counsel in his submissions on grounds 1,2, 3, 4,6 and 7 was that notwithstanding the facts established from scrutiny of the indentures, the other evidence showed that the Appellant,s titre was created on 21st May, 1925 which was earlier than the disputed mailo titre created in April, 2013, and that the former title ought to have given precedence over the latter title' Further, that although the rearned triar Judge found that the disputed mailo title was rooted in FC 9232, there was no indication on the disput"i titt. that, that was the case unlike the Appelrant's title which indicated that it was formerly CLR Vol. 31 Folio 6 held under Crown Grant No. 10020.

counsel submitted that under Sections 64 (1) and 176 (e) of the Registration of Titles Act ( RTA), a proprietor cannot claim an interest on the same land where there is a prior registered proprietor, as the lst Respondent sought to claim over the suit land in respect to whom the Apperlant was already the proprietor. In support of his submission, counsel cited this court,s decision in st lr,,,rk Education Centre vs. Makerere llnluersltg, Cidl Appeal No. 4O oJ 1992.

The third point made by counser for the Appellant was that the rearned tria\_l Judge erred in finding that the lst Respondent,s mailo interest was derived from the respective estates of Marko Kitendwa and Semu Tenywa. counser submitted that the respective wills for the said estates did not mention the suit rand as part of the assets contained in the estates, a fact which was conceded to by the Respondent.

The fourth point advanced by counsel was that the circumstances of the case indicated that the disputed ma o title was not validly created. counsel referred to the High court decision in Makerere unroersitg as. st. Mark Educ,,tron cent"e, clrrtt sart No, 378 of r99o where the court in invaridating a mailo titre created in 1990, held that fresh mailo titles were last created in the 1920s. counsel contended that the disputed maiio title was created in 2013 a',d further that as shown by the evidence of pw5 which was ignored by the triar court, the disputed title covering plots 96-97 originated from plot 67 which had no originating plot.

According to counsel, the 1st Respondent failed to adduce evidence of the relevant blue page or area schedure form to show how prot 6T was created. Furthermore, Counsel submitted re\ring on Section 54 of the RTA that a,, interest or estate may onry pass through a registered instrument, and thus the disputed mailo title was created by instrument number BUKlo71T2 dated 9ti, April, 2013 as the 1st Respondent failed to furnish evidence of any other instrument creating the disputed titre. counser submitted that alr the evidence

ofthe case supports an inference that the disputed ma o titre is an abstract titre that was illegally superimposed over the Appellant,s freehold title.

Counsel submitted that grounds 1,2, 3, 4, 6 and,7 be allowed.

#### Ground 5

In support of ground 5, counser submitted that the learned triar Judge erred when, at the instance of the rst Respondent, he set aside the consent ju-dgment concluded between the Appelia,.t and other defendalts to its suit, including the Administrator General, the commissioner Land Registration and others, without the conditions for setting aside a consent judgment having been met. counsel submitted that in the Supreme Court decision of Mark l<amoga vs. Attonteg General and. Another, Cluil Appeal No, g oJ 2OO4, it was held that a consent judgment can only be set aside or reviewed upon proof of existence of the conditions for vitiating a contract. In the present case, no such vitiating factors were proven, but the learned triar Judge set aside the consent judgment"because it adversely affected the 1"t Respondent's case yet he was not a party thereto. counsel criticized the approach of the learned trial Judge and contended that the 1st Respondent never fired an apprication to set aside the consent judgment and thus there was no basis for setting aside; and arso that he did not hear the parties to the consent judgment prior to having it set aside which yiorated the fundamenta-l principie on according the parties a fair hearing.

It was a-,so submitted for the Appellant that setting aside the consent judgment had caused prejudice to the Appelrant in that it was denied ttre benefrt or r:etying on favorable evidence contained in the consent judgment such as the evidence from the Administrator General that the suit land did not form part of the estate of semu Tenywa as aleged by the 1"t Respondent; and evidence ofan admission by the commissioner Lands Registration and the relevant Lands Register that the disputed mailo titre was created in error. According to counsel, the learned trial Judge ought to have recarled these parties to substantiate on their averments. counsel further submitted that the evidence adduced in support of the averments in the consent judgment was more credible than the l st Respondent's evidence which formed the basis of the rearned trial Judge,s findings.

Counsel submitted that ground 5 of the appeal be allowed.

### 1st Respondent's submisslons

Counsel for the 1st Respondent argued the grounds of Appeal in the same manner adopted by Counsel for the Appellant.

Grounds 1, 2, 3, 4, 5 and 7

In reply to the Appellant's submission that Marko Kitenda never owned the suit land, Counsel for the 1st Respondent submitted that the unchallenged evidence contained in Exhibit DE3 showed that Marko Kitenda, under Grant No. G 10020, made a grant of the suit land, initially held under PC 1450, to FOB Wilson. Furthermore, it was submitted that relevant map sheet also indicated that the suit land belonged to Marko Kitenda.

Furthermore, Counsel submitted that it was not contested that FC 9737 belonged to Marko Kitenda, and the FC could not be a crown grant as alleged in the Appellant's submissions, since if it were, it would have been called CG (Crown Grant) and not FC. That the Appellant did not aver, in the lower Court, that FC 9737 belonged to the crown as he was attempting to do in this Appeal. Counsel, relying on the decision of this Court in **URA** vs. Mukwano Industries Ltd, Civil Appeal No. 0061 of 2017, advanced the proposition that a party is not allowed to raise a new argument on appeal that was not advanced in the trial Court, and hence contended that the Appellant should not be allowed to raise the new argument that FC 9737 was initially a crown grant.

Counsel argued that, in any case, there was no nexus between the Appellant and FOB Wilson or Marko Kitenda, either of whom could claim a lawful interest in the suit land. There was no indication that the Appellant purchased an interest from either of the two men.

In reply to the Appellant's submission alleging that the suit land was initially a crown grant that was converted into freehold, Counsel for the 1st Respondent submitted that there was no evidence to prove that the said conversion happened on the terms proposed by the Appellant. There was similarly no evidence that Marko Kitenda's mailo interest in the suit land was ever converted into a freehold interest.

In relation to the Appellant's submission alleging that DW2 had misled the trial Court by claiming that the acronym "CLR" stood for Crown Lease Register yet it stood for Crown Lands Register, Counsel for the 1st Respondent submitted that the Appellant's Counsel at the trial had vigorously cross-examined DW2 but this aspect of his evidence was not seriously shaken. Moreover, the Appellant's Counsel did not make any serious argument regarding this aspect of the evidence in the lower Court. With regard to the Appellant's submission regarding the 1st Respondent's failure to adduce evidence of a lease, Counsel for the $1^{st}$ Respondent contended that under Section 7 (2) of the RTA and Section 2 of the Land in Buganda (Provisional Certificates Act, Cap. 204, 1964), there was no requirement that a lease be in writing, and it was usually impractical to have a written lease, especially where there was no formal certificate. For that reason, according to Counsel, the Appellant's reference to Section 91 of the Evidence Act, Cap. 6 and the case of Dr. Adeodanta Kekitiibwa case (supra) were misconceived.

As for the Appellant's submission that the learned trial Judge had based on conjecture to conclude that the acronym "CLR" on Exhibit PE1 stood for Crown Lease Register, Counsel for the 1st Respondent contended that the learned trial Judge's conclusions were supported by evidence and thus the Appellant's allegations of conjecture were misleading.

Rgarding the significance of the additional evidence by Moses Sekitto, Counsel for the $2^{nd}$ Respondent, adduced before this Court, Counsel for the $1^{st}$ Respondent submitted that this Court ought to consider the said additional evidence alongside the other evidence including the expert evidence of DW4 Karungi Annette, and Sylvia Chelangat, and the evidence of DW1 Jasper Kakooza, which the trial Court had evaluated before concluding that the suit land was previously owned by the 1st Respondent's predecessor, Marko Kitenda. The three witnesses had testified as to their reasons for doubting the genuineness of the Appellant's title.

Counsel further contended that in appraising the additional evidence, this Court ought to consider the pleadings filed by the original 8th defendant Ms. Madina Nabukeera, the Lands Registrar who created the 1st Respondent's impugned title. The 8th defendant attached to her pleadings, a copy of a letter in which she doubted the genuineness of the Appellant's title.

Furthermore, Counsel submitted that, considering the circumstances of this case, it was highly likely that the additional evidence in this Court was adduced in bad faith. The circumstances indicated that: 1) Moses Sekitto who presented the additional evidence had participated in the trial as Counsel for the $2^{nd}$ Respondent; 2) the additional evidence does not clear the doubts cast by DW4 and the original 8th defendant on the genuineness of the Appellant's title; 3) the 2nd Respondent initially opposed the Appellant's application to adduce additional evidence; 4) the $2^{nd}$ Respondent has always been aware of the material that Moses Sekitto produced as additional evidence, including at the time when the original $8^{th}$ defendant filed her defence containing averments that impugned the

Appellant's certificate of title. As such, it was suspicious that Moses Sekitto, who was the 2nd Respondent's official waited until this Appeal to bring out the materials contained in the additional evidence.

Counsel for the 1st Respondent also submitted that the additional evidence was inconsistent with and in contradiction with the other evidence and as such, ought not be given any weight nor relied on to overturn the learned trial Judge's findings.

On the principles on the appropriate way for an appellate Court to handle additional evidence, Counsel cited the Canada Supreme Court decision of Barendregt vs. Grebulians 2022 SCC 22.

Furthermore, Counsel submitted that an appeal is meant for error correction and not to afford an avenue for a party to present his or her case afresh and for that reason Counsel contended that it was not true as contended by the Appellant that the indentures alluded to in the additional evidence disposed of the Appeal.

Counsel submitted that in light of the above submissions, the learned trial Judge's finding that the impugned mailo title derived from the relevant cadastral map created in 1915 is unassailable despite the Appellant's submissions to the contrary.

With respect to contention by Counsel for the Appellant that the Appellant's title was created prior to the impugned mailo title, Counsel for the 1st Respondent submitted that this was not the case because according to him the impugned mailo title was derived from a cadastral map sheet created in 1915. He added that the Appellant did not adduce evidence to establish its claim with those of either Marko Kitenda or FOB Wilson who previously owned the suit land. For these reasons, Counsel submitted that the Appellant's submissions in relation to priority of the Appellant's title ought to be ignored.

As to the Appellant's contention that the suit land did not belong to either Marko Kitenda or Semu Tenywa since it was not mentioned in their respective wills, Counsel submitted that the omission to mention the suit land in the said wills, did not indicate that it was not owned by the deceased persons but only meant that they owned the suit land but it was subject to intestate succession.

With respect to the Appellant's contention that the impugned title was invalid because there was no evidence to show the instrument by which it was created, Counsel for the Respondent submitted that this contention was also incorrect

because the impugned title was rooted in a cadastral map sheet created in 1915. On the related argument by the Appellant's Counsel regarding the alleged failure by the 1st Respondent to explain the existence of Plot 67 from which the impugned title originated, Counsel for the 1st Respondent submitted that this omission was inconsequential in this case.

As to the submission by which the Appellant contended that the impugned mailo title was not validly created, the 1st respondent's Counsel reiterated his submissions in the trial Court by which he explained the process by which the impugned title was created, namely, that the suit land initially belonged to Marko Kitenda and was held under FC 9737 which was created in 1915. That the suit land continued to be held as an FC until 2014 when the 1st defendant obtained a conventional mailo title for it. The process of creation of the impugned mailo title was therefore according to Counsel valid.

Ground 5

In reply to the Appellant's submissions on ground 5, Counsel for the 1st Respondent submitted that the consent judgment was rightly set aside because it was made under a misconception/mistake of law, although he did not substantiate this assertion.

Furthermore, Counsel disagreed that the learned trial Judge had, in setting aside the consent judgment, violated anyone's right to a fair hearing. Counsel submitted that the learned trial Judge had considered submissions made on behalf of the Appellant and the 1st Respondent prior to setting aside the consent judgment.

In conclusion of his submissions, Counsel for the 1st Respondent submitted that this Court ought to find, under Rule 2 of the Rules of this Court, that the High Court had powers to set aside a judgment which had been proved to be null and void after it was passed, as was the case with the relevant consent judgment.

## **Analysis**

I have carefully perused the record of appeal. I have also considered submissions of the respective Counsel, the law and authorities cited. This is a first appeal from the decision of the High Court in a suit filed by the Appellant. Therefore, as a preliminary point, I will stress that the well-established duty of a first appellate court is to re-evaluate the evidence and materials of the case and thereafter assess the correctness of the findings and conclusions of the trial Court. This

duty has been explained in many authorities including the authority of **Banco** Arabe Espanol vs. Bank of Uganda, Supreme Court Civil Appeal No. 8 of 1998 which was cited by Counsel for the Appellant. I shall bear these principles in mind, as I determine the Appeal.

In my analysis, I will consider the grounds in the manner they were argued by the respective Counsel, namely; grounds 1, 2, 3, 4, 6 and 7 jointly; and thereafter ground 5 independently.

Grounds 1, 2, 3, 4, 6 and 7

As I observed earlier in this judgment, shortly before the institution of the Appellant's suit, there existed two certificates of title for the suit land, namely; a freehold title - Freehold Register Volume 2 Folio 8 showing that the Appellant was the registered proprietor of the suit land; and a mailo title - Bulemezi Block 15 Plots 96 and 97 showing that the Administrator General was the registered proprietor of the suit land. The Appellant's suit was therefore, instituted in order to determine which of the two titles should prevail since it is well-established that there cannot be two certificates of title over the same piece of land.

The case for the Appellant was that it lawfully held its freehold certificate of title on which it was registered as proprietor on 19th April, 1968. However, on 9th April, 2013, the area Lands Office issued a second certificate of title for the suit land, this time a mailo certificate of title to the AG. The Appellant averred that it complained to the Lands Office about the second title which it considered had been unlawfully issued, and sought for its cancellation, but to no avail. It was compelled to institute the suit in the trial Court.

The case for the 1st Respondent was that the suit land initially belonged to the late Marko Kitenda who held a Final Certificate issued after the survey of the suit land in 1915. Following the death of the late Kitenda, the suit land became part of his estate which was inherited by his son the late Semu Tenywa who also passed on and in due course the land became part of his estate in which he was a beneficiary. The beneficiaries of the estate notified the AG who obtained letters of administration for the late Semu Tenywa's estate. On the strength of those letters of administration, the Administrator General applied for and was issued with the impugned mailo certificate of title.

The Appellant, in support of its case adduced evidence to show that it had always been in possession of the suit land since it became the registered proprietor on 19th April, 1968, save for a certain period when the suit land was expropriated by the Idi Amin Government as property of expelled former Asians. However, that

the Appellant had applied for and was permitted to repossess the suit land by Government on 26th March, 1982. The appellant's evidence further showed that it continued in possession from that time until around 2014 when agents of the 1st Respondent attempted to sell part of the land. Upon, conducting a search at the area Lands Office, the Appellant discovered the existence of the impugned mailo title. It immediately lodged a complaint to the Area Lands Office and the CLR stating that the impugned mailo title was illegally created since it held a freehold certificate of title for the suit land.

In support of its case, the 1st Respondent adduced evidence aimed at establishing that the suit land was initially owned by his great grandfather the late Marko Kitenda. DW1 Jasper Kakooza, tendered Exhibit DE3 a report stated to have been made after scrutiny of the relevant records kept at the Department of Surveys and Mappings. According to the report, the suit land was initially owned by Marko Kitenda who initially held a Provisional Certificate (PC) 1450 and thereafter a Final Certificate (FC) 9738 for the suit land. The FC was granted on the strength of cadastral "cartridge" map sheets 61/3/13 and 18. Exhibit DE3 also showed that the suit land had a "grantee" known as FOB Wilson, although it did not clarify in what capacity the suit land had been granted to him.

The case for the 1st Respondent was that Wilson was a grantee of a lease from Kitenda, but most of his witnesses, including DW1, DW2, DW3 and DW4, provided no credible evidence to support the existence of this lease. DW1 stated in cross-examination that there was no record supporting the claim that Kitenda granted a lease to Wilson.

I note that the learned trial Judge wholly believed the 1st Respondent's case as having been supported by evidence. Counsel for the Appellant's main contention in grounds 1, 2, 3, 4, 6 and 7, is that the learned trial Judge was not justified in believing the 1st Respondent's case. After scrutinizing the evidence, I agree with this contention. In my view, the evidence adduced by the 1st respondent, at best, constituted inferences drawn from records said to be kept at the lands office. However, the records were neither inspected by the Court nor tendered in evidence which rendered the evidence unsatisfactory and unreliable. For instance, the learned trial Judge wholly believed Exhibit DE3 without reservation. He also wholly believed the evidence of the 1st Respondent, testifying as DW3, in which he claimed that the suit land was initially owned by the late Kitenda but subsequently leased to Wilson despite DW3 having conceded that there was no evidence of a lease of the suit land by Kitenda to Wilson. DW3 stated in his evidence that the source of his information as to the ownership of the suit land was Exhibit DE3, a report made by DW1 after allegedly perusing

records kept at the Surveys and Mappings Office. However, there was no way of verifying the information contained in Exhibit DE3 since the records were not tendered in Court. In my view, the information allegedly linked to Exhibit DE3 was unsatisfactory and unreliable.

Furthermore, some of the learned trial Judge's findings were speculative, for example, he found that the LR had at her disposal evidence confirming that the late Kitenda owned the suit land. However, the LR did not testify to confirm possession of such information, and thus the learned trial Judge's findings were clearly erroneous.

There was similarly no evidence to support the learned trial Judge's finding of the existence of a lease between Kitenda and Wilson. As I stated earlier, even the 1st Respondent's witnesses, such as DW1, DW2 and DW3 conceded that there was no evidence of existence of the said lease.

Despite the seeming lack of evidence on the existence of the relevant lease, Counsel for the Respondent, in his submissions in this Appeal, proposed that this Court infers the existence of a lease in this case. Counsel relied on the provisions of Section 7 (2) of the RTA and Section 2 of the Land in Buganda (Provisional Certificates Act, Cap. 204, 1964), by which there was no requirement for a lease to be in writing. He also contended that in many cases where there was no formal certificate, it was impractical to have a written lease. I cannot accept this submission by Counsel for the Respondent because it is an invitation to this Court to make a finding without any evidence.

I cannot accept Counsel for the 1st Respondent's submission that the evidence adduced for the 1st Respondent in the trial Court proved his case on a balance of probabilities. As my earlier discussion shows, most of the crucial material on which the 1st Respondent's case was based, namely Exhibit DE3, was unsatisfactory and unreliable.

It must also be noted that the Appellant, with leave of this Court, adduced additional evidence on appeal which was contained in affidavit of Mr. Ssekito Moses, an Acting Principal Registrar of Titles in the Office of the Commissioner Land Registration. This witness was rigorously cross examined by Counsel for the 1st Respondent but remained unshaken. The additional evidence consisted of official land records, which included indentures that clarified the history of the ownership of the suit land. According to the first indenture made on 6th May, 1914, the suit land, then part of land held by the Crown under the Crown Lands Ordinance, 1903, was transferred by the Crown to a Frank O'brien Wilson. Thereafter, by a second indenture dated 3rd August, 1923, Wilson transferred his

interest to Standard Bank of South Africa. The Bank on 1st February 1924 divested to Naranbhai Chaturbhai Patel who became the first registered proprietor on the Appellants freehold title. On $21^{st}$ May, 1925, a certificate of title was issued for the suit land in which it was described as Freehold Register Volume 2 Folio 8 and known as Kalungu Estate. It was stated on the title that the land was formerly CLR Vol. 31 Folio 6 and was previously held under Crown

There was a dispute between the parties as to the meaning of the acronym "CLR" whether it meant Crown Lands Register as contended by Counsel for the Appellant or whether it meant Crown Leases Register as contended by Counsel for the 1st Respondent. However, in my view, there was insufficient evidence to decide one way or the other and moreover, a finding on this point was not crucial

In my view, this case concerns the resolution of historical claims to land, which claims are notoriously difficult to verify due to scarcity of objective evidence to verify the conflicting claims. The evidence adduced in support of the $1^{st}$ Respondent's case was unreliable for the reasons already stated. On the other hand, the indentures tendered in the additional evidence of Mr. Ssekito were more credible and rendered it highly probable that the suit land was initially owned as crown land before it was granted to Wilson, and thereafter, following subsequent transfers was lawfully acquired by the Appellant through its freehold

In accepting the evidence of the indentures, I have cautioned myself about the inherent risk that the additional evidence was adduced to assist the Appellant's case. However, there was no evidence that the additional evidence was falsified. On the contrary, Mr. Ssekito took oath when he stated that the indentures were retrieved from official records kept at the Lands Office.

It is clear from the evidence on record that the Appellants title was created on 21st May, 1925 which was earlier than the disputed mailo title created in April, 2013. It is trite that an earlier title takes precedence and mere allegation of fraud regarding its creation unless pleaded and proved cannot have it impeached. If fraud is not proved on the earlier title, then the latter title ought to be cancelled.

Thus, I would take the further view that because the Appellant's title for the suit land was already in existence by the time the impugned mailo title for the suit land was created on 9th April, 2013, the impugned mailo title was illegally created. I would therefore agree with Counsel for the Appellant that the learned

trial Judge erred in finding that the mailo title for Bulemezi Block 15 Plots 96 and 97 was validly created.

For the above reasons, grounds 1, 2, 3, 4, 6 and 7 succeed.

Ground 5

The findings I reached on grounds 1, 2, 3, 4, 6 and 7 render the resolution of ground 5 inconsequential and I need not dwell too much on it. Ground 5 challenges the learned trial Judge's decision to overlook the consent judgment made between the appellant on one side and some of the original defendants, including the 1st, 7th and 8th defendants. In the consent judgment, the parties agreed that the suit land belonged to the appellant and that the $1^{\rm st}$ defendant had been wrongly registered as proprietor via the impugned mailo title. The parties also agreed to the cancellation of the impugned mailo title.

However, the learned trial Judge refused to enforce the consent judgment against the $2^{nd}$ defendant (now 1st Respondent) reasoning that he had not agreed to its making and further that the consent judgment was inconsistent with his case, namely, that his mailo title had been validly obtained. The learned trial Judge proceeded to hear the case on its merit. In my view, the learned trial Judge proceeded correctly. In the circumstances of this case, it would have been unfair to dispose of the Appellant's suit basing only on the consent judgment yet the 2nd Respondent who was not a party to the consent judgment, had contested the

I would therefore disallow ground 5.

In conclusion, I would find that grounds 1, 2, 3, 4, 6 and 7 succeed, while ground 5 fails. Accordingly, I would allow the appeal and make the following orders:

- a) The decision of the High Court is set aside. - b) The Appellant's certificate of title describing the suit land as Freehold Register Volume 2 Folio 8 and known as Kalungu Estate is valid. - c) The mailo certificate of title describing the suit land as Bulemezi Block 15 Plots 96 and 97 initially registered in the names of the Administrator General and the respective titles arising from subdivision therefrom, are set aside. - d) The Respondents shall pay the appellant's costs in this Court and in the Court

Since kazibwe kawumi and Asa Mugenyi JJA also agree, the Appeal succeeds on the terms set herein.

## It is so ordered.

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

$\frac{1}{2}$ day of $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{1}{2}$ $\frac{$ Cheborion Barishaki

Justice of Appeal