Kizito v Wamala & 2 Others (Civil Appeal 8 of 2019) [2024] UGSC 20 (31 May 2024)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA CIVIL APPEAL NO. 8 OF 2019

(Appeal from the decision of Kakuru, Kiryabwire, Madrama, JJA delivered on the $11$ th day of June, 2019 in Civil Appeal No. 68 of 2018)

CORAM:: MWONDHA, TIBATEMWA EKIRIKUBINZA, TUHAISE, MUSOKE, MUSOTA JJSC

KIZITO JOSEPH MUBIRU ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

## 1. WAMALA DESIRE PAIIL

2. KABOGGOZA SIMON ::::::::::::::::::::::::::::::::::::

3. GOKYALA JUDITH

### **JUDGMENT OF STEPHEN MUSOTA, JSC**

#### $20$ **Background**

$10$

$15$

The appellant is the registered proprietor of the land comprised in Block 1, plots 1127 and 1128, Land at Rubaga, Ben Kiwanuka Zone which plots were subdivided from plot 1030. The land originally belonged to the Late Pantaleon Kivumbi Ssonko, the father to the respondents.

$25$

The respondents sued the appellant in the High Court jointly and severally for recovery of the suit land, compensation at the market value of the suit land, restoration of the title curved out of Plot 1030 Block 1 currently reading plots 1128 and 1127, delivery of title in respect to Plot 1128 to the plaintiffs, a declaration that the defendant is not entitled to Plot 1128, a declaration that the alleged transfer of plot 1128 to the defendant in respect to the suit land is null and void and a permanent injunction against further sale or trespass on the suit land.

The respondents' case was that their father, the late Kivumbi, back 35 in 2006 vide a sale agreement dated 23rd March 2006, sold a piece Page 1 of 21

of his land to the appellant measuring 134ft and 199ft which was $\mathsf{S}$ later mutated off Plot 1030 to become Plot 1127, leaving a residue of Plot 1128. After the death of their father, the appellant informed the family members that he had bought both pieces of land by presenting sale agreements for both plots. The respondents rejected the sale of plot 1128 (herein after referred to as the suit land) $10$ claiming that their late father only sold plot 1127 to the appellant. In a bid to protect their interest in the land, they subsequently caveated both plots and lodged a case in the High Court vide Civil Suit No. 0109 of 2012.

$\omega = \frac{1}{2}$

On the other hand, the appellant's case was that in 2004, the late $15$ Pantaleon Kivumbi Sonko sold to him land comprised in now plot 1128 at a total consideration of 38,000,000= (thirty-eight Million shillings) which he embarked on paying for in installments. That the parties had agreed that an agreement would only be executed between them after payment of the total consideration. That $20$ however, in 2006, before the appellant finished payment of the above consideration the late Ssonko interested him to buy the remaining plot of land (now plot 1127) on condition that the appellant pays for the land in a single full payment at the execution of the agreement of sale. That the appellant indeed paid a total $25$ amount of 17,500,000= (Seventeen Million, Five Hundred Thousand Shillings) and an agreement was signed between them dated 23rd, March 2006. That thereafter, the late Ssonko handed the appellant the land duplicate title to plot 1030, duly signed transfer forms and mutation forms. The land was then subdivided into plots 1127 and 30 1128, the part he bought being plot 1127 leaving the suit land (plot 1128) as the residue. That after obtaining the title to plot 1127, he resumed to pay the money due to the late Ssonko regarding plot 1128 and indeed in 2009, vide an agreement dated 28th, April 2009,

the late Ssonko sold the suit land to the appellant. The late Ssonko 35 signed transfer forms to enable the appellant get registered unto the title as the owner. That the appellant therefore owned both plots of land.

Page 2 of 21

He denied fraud of any nature in the process of acquiring the suit $\mathsf{S}$ land. He filed a counter claim wherein he claimed that the respondents/plaintiffs trespassed on his land after the deceased died and therefore occasioned him loss for which he prayed court for orders as to Mesne Profits, General damages, Interest at commercial rate since the deceased's death to payment in full on $10$ mesne profits, Permanent injunction, vacation of plaintiff's caveat on the suit land and costs.

The High Court found for the respondents and held that the appellant fraudulently acquired the suit land and therefore made the following orders;

- a) That the transfer of Plot 1128 to the appellant was fraudulent and therefore null and void. - b) That the appellant was not entitled to Plot 1128 and was therefore ordered to deliver the certificate of title in respect to *Plot 1128 back to the plaintiffs.* - c) A permanent injunction was issued against the appellant to prevent further selling or trespassing on the suit land. - d) General damages of 10,000,000/ attracting an interest of 8% *per anum and costs of the suit.* - The appellant was aggrieved by the above decision $25$ and subsequently appealed the decision to the Court of Appeal which appeal was dismissed for lack of merit. Dissatisfied with the Court of Appeal decision, the appellant filed the instant appeal to this court on the following grounds; - 1. The learned Justices of Appeal as the first appellate court erred 30 in law and fact in failing to properly evaluate the evidence on record and to consider the pleadings in the main suit, counter claim and submissions and this led them to make wrong findings that: - (i) The main controversy does not include the land purchased by 35 the appellant of Plot 1127.

(ii) The sale agreements for Plots 1127 and 1128 were forgeries.

Page 3 of 21

$20$

$15$

$\overline{1}$

The overall weight of evidence of the respondents was more $(iii)$ plausible than that of the defence in respect of the forensic evidence:

when all the evidence of both parties evaluated together was in favor of the Appellant in the main suit and counter claim in respect to both plots 1127 and 1128.

- 2. The learned Justices of Appeal erred in law and fact in failing to allow the prayers in the counter claim, when they made a finding that the main controversy does not include the purchase by the Appellant of plot 1127 though the appellant contests it. - The appellant prayed court to set aside the judgment of the Court of $15$ Appeal, allow the counter claim and for costs of this appeal and the lower courts

## Representation:

At the hearing, the appellant was represented by Mr. Eric Muhwezi whereas the respondents were represented by Mr. Joseph Luzige. $20$ Both counsel filed written submissions which they adopted entirely at the hearing.

## Appellant's submissions

## Ground 1

- The learned Justices of Appeal as the first appellate court erred $25$ in law and fact in failing to properly evaluate the evidence on record and to consider the pleadings in the main suit, counter claim and submissions and this led them to make wrong findings that; - (i) The main controversy does not include the purchase by 30 the appellant of Plot 1127.

(ii) The sale agreements for Plots 1127 and 1128 were forgeries.

$10$

$\mathsf{S}$

(iii) The overall weight evidence of the respondents was more $\mathsf{S}$ plausible than that of the defence in respect of the forensic evidence:

when all the evidence of both parties evaluated together was in favor of the Appellant in the main suit and counter claim in respect both plots 1127 and 1128.

The appellant divided his arguments into three parts;

$10$

*i.* The main controversy does not include the purchase by the appellant of plot 1127.

Counsel submitted that the Court of Appeal's decision was derived from the justices' understanding of the contents of the counterclaim. $15$ He argued that the learned Justices of Appeal did not reappraise the entire pleadings and evidence as mandated under rule 30 (1) (a) of the Court of Appeal Rules Directions thereby making a wrong decision on which property was in contention. Counsel submitted that the justices wrongly limited themselves to Plot 1128 yet Plot $20$ 1127 was inclusive. Counsel argued that the Learned Justices of Appeal did not consider the appellant's pleadings wherein the appellant adopted the contents in the amended written statement of defence. That the appellant prayed for restoration of the original title and it was conceded to, that plot 1127 was part of the original $25$ title.

Counsel argued that had the learned justices of Appeal addressed themselves carefully to the pleadings and evidence, they would have allowed the prayers in the counter claim in respect of plot 1127 on damages, removal of caveat, permanent injunction and costs.

*ii. The sale agreements for plots 1127 and 1128 were forgeries;*

Counsel argued that the sale of land agreements were authentic. He stated that it was the appellant's evidence that the sale of land agreement executed on the 28th April 2009 in respect of plot 1128 on completion of payment of the last installment on the 28th of April

Page 5 of 21

2009 as previously agreed between the parties. That the evidence $\mathsf{S}$ on record shows that the payments were made before execution of the agreement. The language of the agreement was in the past tense that on payment of 7 installments totaling to 27,900,000, the vendor / seller approached him expressing interest to sell the remaining part for $17,500.000/$ = payable at once and that he would $10$ sell it to another person if the appellant did not buy. That the appellant decided to buy because the remaining part was next to him and he did not want to lose it. That he borrowed the money and paid and the agreement was executed. He argued that the appellant resumed payment on the first purchase on 20th September, 2006 $15$ and completed on $28$ th April, 2009.

Counsel argued that the payment of Ushs 17,500,000/ to the respondents' late father was for the plot he had earlier received and acknowledged receipt of on 23rd.03. 2006 and admitted sale in the plaint. Counsel added that in respect of plot 1128, the Ushs $20$ 38,000,000/ payment therein stated in installments is substantially consistent with payments conceded to by the 1st respondent as recorded in his late father's diary totaling to shs 30,000,000. By 17th October, 2005, the outstanding balance was Shs. 8,000,000 to make a total of 38,000,000. That the balance payment was $25$ accounted for in the white washed diary records on the dates

thereof stated.

Counsel also argued that in any event, if there was a balance proved to be due at shs 8 million, the respondent's claim would have been for a debt owing to the deceased's estate, not nullification $30$ of sale. That by then, the appellant was in possession of the property before the respondents forced him out after their father's death.

On the issue of expert opinions, Counsel submitted that the final decision on whether to believe the expert's opinion or not, depends 35 on the trial court's overall evaluation of evidence and not on opinions in isolation.

Page 6 of 21

- Counsel submitted that the impugned sale agreement was an $\mathsf{S}$ agreed document by both parties at scheduling. The respondents conceded that their late father delivered to the appellant signed transfer forms (not one) and duplicate certificate of the title. That the respondents did not have any sale agreement to prove that there was any sale of any part of the suit land to the appellant and $10$ yet they concede that there was at least a sale. - Counsel also argued that the suit land is not matrimonial property which required consent from children or spouse despite that, the respondents lied to court that it was matrimonial property. This was in contradiction to the testimony of PW3, who was one of the $15$ tenants on the suit property and she was the one in charge of collection of rent from other tenants and would take the collection to the deceased landlord in Mityana. - Counsel also relied on the testimony of PW3, who testified about one Baguma who witnessed the sale of plot 1128 and was well $20$ known to PW3. Counsel also submitted that the lawyer Kiryagenda Joe denied having signed in the presence of the deceased vendor despite having made a statement before police in his chambers for police investigations in the transactions. Counsel prayed court to consider the above evidence in favor of the authenticity of the two $25$ agreements. He also relied on the case of Hassan Salum vs Republic [1964] EA at page 618 and Onyango vs Republic Criminal Appeal No. 810 of 1968 to the effect that expert opinions are persuasive and not binding.

Ground 2: 30

The learned Justices of Appeal erred in law and fact in failing to allow the prayers in the counter claim, when they made a finding that the main controversy does not include the purchase by the appellant of plot 1127 though the appellant contests it.

Page 7 of 21

Counsel for the appellant submitted that the reasons for dismissal $\mathsf{S}$ of the counterclaim by the learned justices of appeal were wrong. That they made it very clear that plot 1127 was also in controversy for reliefs claimed in the counter claim thereby arriving at a wrong conclusion.

#### $10$ Respondent's submissions

### Ground one

Counsel for the Respondent submitted that the learned Justices of Appeal appraised the entire evidence as mandated under Rule 30 (1) (a) of the Judicature Court of Appeal Rules and came to the right conclusion. He submitted that the learned Justices, when coming $15$ to their conclusions, considered the several admissions made by the appellant which point to dishonesty in the process of acquiring the suit land. He stated that the appellant conceded that he did not have any proof that the late Pantaleon Kivumbi Ssonko received the money as stated in the agreement as installment payment. That $20$ upon showing the appellant EXH P4 (sale of land Agreement of 2006), he agreed that there was nothing to show that it was in respect of sale of plot 1127. That the appellant admitted that he transferred the suit land after the demise of the deceased yet he allegedly had embarked on the process of transfer a number of 25 years before. That he also admitted that he does not have any proof that he paid the money for all plots of land in issue.

In regard to ground 2, counsel submitted that the main controversy did not involve the purchase of Plot 1127 and therefore the justices were correct to uphold the decision of the trial judge as they did.

He prayed court to be pleased to decide this Appeal in favor of the respondents and award costs to the respondents.

Page 8 of 21

#### Consideration of the appeal $\mathsf{S}$

### Duty of this court.

This being a second appeal, I wish to first state the duty of this court

- It is trite that on second appeal, a court need not re-evaluate the evidence of the case wholesomely as this would be assuming the $10$ duty of the first appellate court. A second appellate court shall only interfere with the findings of the first appellate court when it appears that in its consideration of the case as the first appellate court, it misapplied or failed to apply the principles set out in such - decisions. See Kifamunte Henry vs Uganda, [1998] UGSC 20, $15$ Pandya vs R, Milly Masembe vs Sugar Corporation ltd, Geoffrey Gatete & Anor vs William Kyobe, SCCA No.7 of 2005 Maddumba vs Wilberforce Kuluse, Supreme Court Civil Appeal No. 9 of 2002. - This court also has the powers of the court of first instance and 20 therefore may give a fresh scrutiny to the evidence on record and laws applicable where it deems necessary. These powers are founded in the provisions of Section 7 of the Judicature Act Cap **13** and reads as follows: - "For the purposes of hearing and determining an appeal, the $25$ Supreme Court shall have all the powers, authority and jurisdiction vested under any written law in the court from the exercise of the original jurisdiction of which the appeal originally emanated. - The issue for this court to determine is whether or not the appellant 30 fraudulently acquired an interest in plot 1128.

It is trite that under the Torrens system, it is registration that gives or extinguishes title. (see; Breskvar v. Wall (1971) 126 CLR 376). Indeed, Section 59 of Registration of Titles Act, guarantees that a Page 9 of 21 - title deed is conclusive evidence of ownership of registered land. A $\mathsf{S}$ title deed is therefore indefeasible and indestructible save for specific reasons listed in sections 64, 77, 136 and 176 of the RTA, which principally refer to fraud or illegality committed in procuring the registration. - Under Section 64 of the RTA, the proprietor of land or of any $10$ estate or interest in land under the operation of the Act, except in the case of fraud, holds the land or estate or interest in land subject only to such encumbrances as are notified on the folium of the Register Book constituted by the certificate of title, but absolutely - free from all other encumbrances, except the estate or interest of a $15$ proprietor claiming the same land under a prior registered certificate of title, and except as regards any portion of land that by wrong description of parcels or boundaries is included in the certificate of title or instrument evidencing the title of such proprietor. $20$

The principles governing fraud in land transactions are provided for by the Registration of Titles Act cap 230. Section 77 of the Act is to the effect that any certificate of title, entry, removal of encumbrance, or cancellation, in the Register Book, procured or made by fraud, is void as against all parties or privies to the fraud. 25 Correspondingly, Section 176 (b) of the same Act allows actions for recovery of land against a proprietor under the Act where that person was registered as proprietor of that land through fraud. Therefore, any person who fraudulently procures, assists in fraudulently procuring or is privy to the fraudulent procurement of any certificate of title or instrument or of any entry in the Register Book, or knowingly misleads or deceives any person authorized to require explanation or information in respect to any land or the title to any land under the operation of the Act in respect to which any

dealing is proposed to be registered, that person commits an offence 35 under **section 190 (1)** of the RTA. A combined analysis of the above provisions divulges that fraud in the transaction will vitiate a title.

Page 10 of 21

- In the absence of fraud on the part of a transferee, or some other $\mathsf{S}$ statutory ground of exception, a registered owner of land holds an indefeasible title. Accordingly, save for those reasons, a person who is registered as proprietor has a right to the land described in the title. (see Frazer v. Walker [1967] AC 569). - $10$

$15$

$\epsilon_{\rm cr}$

Fraud within the context of transactions in land has been defined to include dishonest dealings in land or sharp practice to get advantage over another by false suggestion or by suppression of truth and to include all surprise, trick, cunning, disenabling and any unfair way by which another is cheated or it is intended to deprive a person of an interest in land, including an unregistered interest (see Kampala Bottlers Limited v. Damanico Limited, S. C. Civil Appeal No. 22 of 1992; Sejjaaka Nalima v. Rebecca Musoke, S. C. Civil Appeal No. 2 of 1985; and Uganda Posts and

- Telecommunications v. A. K. P. M. Lutaaya S. C. Civil Appeal No. 20 **36 of 1995).** It is a well settled principle that if a person is seeking cancellation or rectification of title on account of fraud in the transaction, the alleged fraud must be attributable to the transferee. It must be brought home to the person whose registered title is - impeached or to his or her agents (see Fredrick J. K Zaabwe v. $25$ Orient Bank and 5 others, S. C. Civil Appeal No. 4 of 2006 and Kampala Bottlers Ltd v. Damanico (U) Ltd., S. C. Civil Appeal No. 22of 1992). - The burden of pleading and proving fraud therefore lies on the 30 person alleging it. The standard of proof however, is beyond mere balance of probabilities required in ordinary civil cases though not beyond reasonable doubt as in criminal cases (see Fredrick J. K Zaabwe v. Orient Bank and 5 others (supra).

In the instant case, in support of their claim, the respondents pleaded the following particulars of fraud;-

Page 11 of 21

(i) the appellant transferring the whole land yet only part of it $\mathsf{S}$ has been sold to him:

(ii) the appellant forging a sale agreement dated 28th day of April 2009 purporting to having also bought plot 1128;

(iii) the appellant forging the plaintiff's father's signature as vendor on the said agreement; $10$

(iv) the appellant executing the alleged sale agreement without it being witnessed by the plaintiff as mature adult children of alleged vendor and also without the Local Council the Authorities witnessing the same;

(v) the appellant entering into the alleged sale agreement of $15$ Land when he was well aware that the said land comprised of the Late Pantaleon Kivumbi Ssonko's home where his children were / are residing to date;

$20$

(vi) the appellant transferring Plot 1128 without dully signed transfer forms from the late Pantaleon Kivumbi Ssonko.

What is required of this court is to reevaluate the evidence to determine whether or not the respondents proved the respective aspects of fraud as against the appellant to the requisite standard.

The Court of Appeal when reaching its decision, relied on the $25$ evidence of the Hand writing experts who opined that the late Pantaleon Ssonko was not the one who signed on both the Sale agreements and the transfer forms.

The law governing expert evidence has its roots in the Evidence Act. **Sections 43** provides as follows:

"When the court has to form an opinion upon a point of foreign law, or of science or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in that foreign law, science or art, or in questions as to the identity of handwriting or finger impressions, are relevant facts. Such persons are called experts."

Page 12 of 21

- It is a well settled principle that much as an expert opinion carries $\mathsf{S}$ more weight than that of an ordinary witness and therefore courts ought to give it deserving respect, it is only meant to guide court as to the truth of the matter at hand and therefore not binding. Such opinion should be considered alongside other pieces of evidence. - The role of an expert witness was well laid down in a very old case $10$ of Divie vs Edinburgh Magistrates (1953) SC 34 at 40 wherein the court observed as follows:

"The duty of the expert witnesses is to furnish the judge with necessary scientific criteria for testing the accuracy of their conclusions as to enable the judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence."

See also; Hassan Olum vs Republic [1964] EA at page 618, Onyango vs Republic, Criminal Appeal No. 810 of 1968 at page 621, Cross & Tapper on evidence, Butterworth, 1995 8th Edition page 557, Kimani *vs Republic (2000) EA 417.*

The Court of Appeal stated as follows;

$15$

$20$

"..................................... two conflicting expert reports and testimonies indicating that

- the deceased did not execute certain documents so as to $25$ transfer Plot 1128 to the appellant. He was persuaded by the plaintiff's side and concluded after considering all the testimonies that the purported purchase and transfer of the suit property was fraudulent. - Exhibit P3 deals with signatures of the deceased father on the 30 transfer of documents and concludes that based on the number of fundamental differences; there is strong evidence to show that the author of the sampled signatures did not sign the questioned signatures. The questioned signatures on the sale agreement dated 23rd of March 2006 exhibit A and sale 35 - agreement dated 28th of April, 2009 exhibit B. The document Page 13 of 21

challenges both sale agreements and written by Sebuwufu Erisa $\mathsf{S}$ of the Scientific Aids Laboratory, Police Head Quarters. The same expert also examined a second document namely photocopy of the land transfer for plot 1128 inquiring whether the figure 1128 was altered and also the questioned photo attached was that of the deceased. He found that the Plot $10$ number could have been altered. His opinion was that there was a high likelihood that it could have been altered from a previous figure.

Secondly, he found that the sample photograph and the questioned photograph were not of the same person. $15$

The third forensic report is that of Namuwoya Catherine, a Government Analyst of the Directorate of Government Analytical Laboratory, Ministry of internal Affairs. She also examined the photocopy of the sale agreement dated 23rd March, 2006 and that of 28th of April 2009. Secondly, she $20$ examined the questioned passport size photograph on the transfer documents of the suit property. Having compared it with the samples, she noted that there were photocopies of the documents which gave some limitations questioned in assessing evidence. She found that the differences between the $25$ questioned documents and sample signatures were $of$ significance than the similarities. As far as the photographs are concerned, she observed that it is not likely that the photographs belong to the same individual. Based on the above observation, she was of the opinion that they had sufficient 30 evidence to indicate that Kivumbi Ssonko whose sample signatures were provided is not the same person who authored the questioned signatures in the two sale agreements for plots 1128 and 1127. Secondly, the photo of the person appearing in

the transfer document was not the same in the sample photos 35 of the deceased.

Page 14 of 21

On the other hand, Mr. Ezati Samuel of the forensic Service $\overline{5}$ Directorate, Department of questioned Documents examined the same documents namely the original sale agreement dated 23rd March, 2006 and 28th April 2009 relating to Plots 1127 and 1128 respectively. These were the questioned documents which were compared with the sampled specimens of the $10$ deceased as far as signatures are concerned. He found the sampled specimens to be of the deceased as far as signatures are concerned. He found variations in a person's signatures, he was of the opinion that the person who wrote the questioned signatures was also the one who wrote the sample signatures. $15$ in relation to the photograph evidence, he found that it was that of the same person taken at different times and age which explain the differences in the features."

$\mathcal{L}_{\mathcal{A}}$

The Court of Appeal after considering the handwriting expert's evidence, examined the other pieces of evidence on record before $20$ concluding on the matter. It observed as below;

"I further assessed the testimony of the witness and subjected documents to scrutiny for any consistencies the $or$ inconsistencies. The first document is dated 23rd March, 2006 by which the deceased sold 150 by 134 ft and is described as $25$ Kibuga Block 1 Plot 1031 Rubaga. It is also provided that the buyer who is the appellant paid the total consideration in paragraph 2 thereof. The seller acknowledges the price and indicated that he would sever that portion of the land and hand the title over to the appellant. In the alleged earlier agreement, $30$ there was no plot 1127. Plot 1127 was carved out of the original plot. The testimony of the appellant is that he had agreed to purchase 0.311 ha and subsequently the deceased sold to him the residue and it is embodied in the agreement dated 23rd March, 2006. If this testimony is to be taken as the 35 truth, the appellant started and continued to pay for Plot 1128 since 2004 before it had ever been demarcated and marked as plot 1128. In the course of doing so, he bought the residue of Page 15 of 21

$\mathsf{S}$ the property and had it demarcated and transferred to him. the transfer was made in November 2006. The residue of the property was Plot 1127.

"the hard evidence contained in the agreements is that Plot 1128 has a written agreement dated 28th April, 2009 for 0.311 ha. The logical question is why the demarcation of the property $10$ had not been done earlier? Why was it done immediately upon the transaction for plot 1127 in which it was expressly agreed that the severance of the property through mutation would be undertaken by the seller? The sale agreement dated 28th April, 2009 clearly indicates that by the $7th$ installment contained in $15$ paragraph 2 of the agreement, the seventh installment being dated 25th July 2005, the appellant had paid Uganda shillings 27,900,000/=. The next installment is dated $20^{th}$ August 2007after the first agreement of 23rd, March 2006. It is therefore significant to consider the illogical sequence of $20$ events in which the appellant paid Uganda shillings $17,500,000/$ = for the residue of the property when the balance he had for the alleged Plot 1128 was about $10,100,000/=$ and still outstanding. This is because the purchase agreement of 28th April, 2009 has a total consideration of Uganda shillings $25$ 38,000,000/=. By $17^{th}$ October, 2005 he entered into another transaction to buy the residue of the property for Uganda shillings 17,500,000 in an agreement dated 23rd March 2006 in which the demarcation of the property was expressly agreed upon. I find that illogical and agree with PW1 that the logical $30$ course was for the appellant to complete the payment of the Uganda Shillings 10,100,000/= to make 38,000,000/ Uganda Shillings before venturing into another transaction and paying for it in full. He would have been left with Uganda shillings $6,400,000/$ = to pay for the residue to the plaintiffs/ 35 respondents which is supported by an analysis of the two agreements as above....................................

- Finally, I have considered the testimony of the appellant $\mathsf{S}$ himself on the issue. The appellant testified as DW1 and filed a written testimony on the court record. At page 106 of the record, he testified that he executed an agreement at the seller's lawyer's chambers and it was witnessed by the lawyer - himself. After the first purchase, he resumed payment on the $10$ first purchase on 20th of September 2006 and completed on 28th April, 2009 when he again executed another purchase agreement before the same lawyer and was witnessed by his friend Mr. Wasswa Peter, the broker Mr Baguma Kenneth and - Mr, Kimera Umar. The first agreement has the signature of a $15$ one Wasswa Peter as a witness and the advocate as a witness too. It is the second agreement which is more contentious. The signature of the deceased is witnessed by the advocate PW5. It also has signatures of other witnesses as indicated in the - testimony of the appellant below the signature of the advocate. $20$ The three witnessed the agreement itself which does not indicate that the deceased signed in the presence of those witnesses. It is only the advocate PW5 who signed indicating that the deceased signed in his presence and yet he subsequently testified that it was not in his presence. Most $25$ importantly, DW1, who is the appellant contradicts this in the witness statement.

It is in view of the overall weight of the evidence that the finding of the learned trial judge that the evidence of the plaintiffs was more plausible than that of the defence has 30 weight. The finding supports and is consistent with the forensic evidence of the two expert witnesses who doubted that the sale agreement had the signature of the deceased. An advocate is an officer of court. Why would he concoct a statement which revealed unethical conduct on his part that 35 incriminated him to the effect that the deceased did not sign in his presence when the document indicates that it was signed in his presence......."

Page 17 of 21

- The Justices of the Court of Appeal rightly held that the evidence on $\mathsf{S}$ record corroborated the respondent's experts' evidence, that there was fraud by the appellant when he dishonestly acquired title to plot 1128. It was indeed inconceivable that the appellant could pay for a new plot of land before paying up the old debt. Further, by - purchasing plot 1127, it meant that the whole piece of land then $10$ belonged to the appellant save the balance due on plot 1128 and thus, there would be no need to subdivide the plot. The sums of money indicated in the diary unfortunately do not reveal which plot the appellant was paying for yet the appellant failed to adduce any evidence of payment of plot 1128 on his part. $15$

It was only proper for the forensic experts to question the authenticity of both sale of land agreements. It appears to me that the amounts of money in the diary were payments by the appellant for plot 1127 and that the appellant under declared the amount of consideration regarding plot 1127 for purposes of both tax payment $20$ and to swindle the land of the late Kivumbi. I find that the respondents proved to the required standard that the plaintiff's acquisition of title to the plot 1128 was tainted with fraud on his part and that the lower courts rightly ordered for cancellation of the same.

$\tilde{r}$ $\propto$ $r$

I find no reason to interfere with the findings of the Justices of Appeal on ground one.

## Ground two:

The learned Justices of Appeal erred in law and fact in failing to allow the prayers in the counter claim, when they made a 30 finding that the main controversy does not include the purchase by the Appellant of plot 1127 though the appellant contests it.

It was counsel's submission that the Learned Justices of Appeal wrongly dismissed the counter claim when they made it clear that 35

Page 18 of 21 plot 1127 was not in controversy for reliefs claimed in the counter $\mathsf{S}$ claim thereby arriving at a wrong decision.

The Court of Appeal observed as follows regarding the counter claim;

"The learned trial judge cannot be faulted for having dismissed the counter claim which only relates entirely to plot 1128. There was no specific averment about encroachment on

- plaintiff's plot 1127 which was not contested at all by the respondent in the context of the entire pleadings, the suit property concerns only plot 1128 and because plot 1127 was not specifically referred to, it was not in controversy in the - plaint or in the counter claim. The learned trial judge could $15$ not consider it a part of the land in issue in relation to the counter claim. We find no merit in ground 4 of the appeal which is hereby dismissed."

The amended counter claim read as follows;

- The defendant repeats the contents of the written $20$ statement of defence. - The defendant shall contend that he purchased the suit land and the plaintiffs trespassed on it after the deceased died and thereof occasioned him loss for which he claims; - $25$

$\epsilon$ $\epsilon$

$10$

- $\hat{1}$ **Mesne Profits** - $ii$ . General damages - iii. Interest at commercial rate since the deceased's death to payment in full on mesne profits. - iv. Permanent injunction - 30 - v. Vacation of plaintiff's caveat on the suit land. - Costs of counter claim vi. - vii. Any other relief as the court deems fit.

The counter claim refers to all the contents of the written statement of defence. The gist of the counter claim was that the appellant claimed ownership of both plot 1127 and 1128. The appellant's 35 argument is to the effect that the lower courts completely ignored

Page 19 of 21

- the fact that the fate of plot 1127 was entangled in the instant $\mathsf{S}$ matter and they ought to have addressed it. The matter was ably raised before the Court of Appeal by counsel for the appellant at page 717 of the record but was clearly ignored. It is important to observe that the respondents even after conceding to the fact that - plot 1127 was not in contention before court and that the appellant $10$ indeed acquired good title to the plot, caveated the plot hence deprivation of beneficial use to the rightful owner. The Justices of Appeal upheld the trial court's holdings on the matter. The lower courts erred when they failed to address themselves to the contents - of the counter claim and pronounce themselves on the reliefs $15$ sought. It is my finding that the counter claim also embraces plot 1127, which was lawfully purchased by the appellant.

The appellant prayed for mesne profits, general damages and interest on mesne profits in the counter-claim. Having found that plot 1127 was wrongly caveated to the detriment of the appellant, it is my considered view that the appellant is entitled to an award of general damages.

In the result, the appeal succeeds in part and I make the following orders;

$25$

$20$

$\mathcal{L}_{\mathcal{A}}$

- 1. That the caveat on plot 1127 be vacated immediately. - 2. That the appellant is entitled to damages to the tune of Ug. Shs. 20,000,000/= for his deprivation of use of plot 1127 for the time has been caveated. - 3. No orders as to the costs.

The appeal is accordingly allowed in part. $\mathsf{S}$

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

$10$

Dated this $\frac{3}{\sqrt{3}}$ day of 2024 Falmed Crus.

**Stephen Musota** JUSTICE OF THE SUPREME COURT

Betwered by the Ryishe 31 5 124 Station Ry

Page 21 of 21

#### THE REPUBLIC OF UGANDA

#### IN THE SUPREME COURT OF UGANDA AT KAMPALA

(Coram: Mwondha, Tibatemwa-Ekirikubinza, Tuhaise, Musoke, Musota, $JJ. SC$

#### CIVIL APPEAL NO. 80F 2019

KIZITO JOSEPH MUBIRU...................................

#### **VERSUS**

- 1. WAMALA DESIRE PAUL - 2. KABOGOZA SIMON - 3. **GOKYALA JUDITH....................................**

(An Appeal arising from the judgment of the Court of Appeal Civil Appeal No. 68 of 2018 before Kakuru, Kiryabwire, Madrama, JJA dated 11th June 2019)

#### JUDGMENT OF FAITH MWONDHA, JSC.

I have had the benefit of reading in draft the judgment of my learned brother Musota, JSC. I concur with the analysis, decision that the appeal succeeds in part and the orders he proposed.

I would like to emphasize that the second appellate court need not re-evaluate the evidence, but has to ensure that the lower court exercised its duty properly. $\mathscr{B}$

S. 7 of the Judicature Act, provides: -

"For the purposes of hearing and determining an appeal, the Supreme Court shall have all the powers, authority and jurisdiction vested under any written law in the Court from the exercise of the original jurisdiction of which the appeal originally emanated."

Rule 30(1) of this Court rules provides: $-$

"Where the Court of Appeal has reversed, affirmed or varied a decision of the High Court acting in its original jurisdiction, the court may decide matters

### of law or mixed law and fact, but shall not have discretion to take additional evidence."

The above provisions set the parameters of exercise of this court's jurisdiction. It is trite law that the Supreme Court can interfere with the findings of the first appellate court if, it appears that in considering the case as a first appellate court, the first appellate court misapplied or failed to apply the principles set out in such decisions. (See: Kifamunte Henry v Uganda [1997] SCCA No. 10).

After perusal of the Record of Appeal, it was apparent that both the trial court and the first appellate court failed in their duty of evaluation and reevaluation/reappraising the evidence on record including the pleadings of both parties. If the lower courts had properly exercised their duty, they would have found that the purchase of Plot 1127 was not in issue.

It therefore followed that the caveating of Plot 1127 was wrong and resulted into the appellant being deprived of the use of it. In that respect, the mesnes profits were not proved by the evidence on record. See: Vivo Energy (u) Ltd (formerly Shell (u) Ltd v Lydia Kisitu, SCCA No. 07 of 2015. The court held that; it is the duty of the plaintiff to show what the unlawful occupant earned as a profit during the period of dispossession of the rightful owner. The rightful owner can apply for an order of discovery if necessary to enable him or her obtain the necessary information. See also S. 2(m) of the Civil Procedure Act which defines mesnes profits. The appellant in that regard can only be awarded general damages for deprivation of the use of the said plot.

### **Decision and orders of the Court:**

Since all the members of the Coram concur, the appeal succeeds in part with the orders as proposed in the lead judgment of Musota, JSC.

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

Thuever

**Faith Mwondha Justice of the Supreme Court.**

Deliveried by the Regist Kso

# THE REPUBLIC OF UGANDA

#### IN THE SUPREME COURT OF UGANDA AT KAMPALA

(CORAM: MWONDHA, TIBATEMWA-EKIRIKUBINZA, TUHAISE, MUSOKE, MUSOTA, $JJ. SC.$ )

#### CIVIL APPEAL NO.08 OF 2019

#### **BETWEEN**

KIZITO JOSEPH MUBIRU ::::::::::::::::::::::::::::::::::::

#### AND

- 1. WAMALA DESIRE PAUL - 2. KABOGGOZA SIMON **ANSWERS PONDENTS** 3. GOKYALA JUDITH

[Appeal arising from the judgment of the Court of Appeal at Kampala dated 11th June 2019 before (Kenneth Kakuru, Geofrey Kiryabwire and Christopher Madrama, JJA) in Civil Appeal No.62 of 2018]

### **JUDGMENT OF TUHAISE, JSC.**

I have had the benefit of reading the lead judgment of Hon Justice Musota JSC.

I agree with the decision and the orders therein.

| Dated at Kampala, this ----- $\Delta$ day of ------ $\Omega$ erg ------------ 2024 | | | |------------------------------------------------------------------------------------|--|--| | | | |

Percy Night Tuhaise

### JUSTICE OF THE SUPREME COURT

Behund by the Registran 31

#### THE REPUBLIC OF UGANDA

#### IN THE SUPREME COURT OF UGANDA AT KAMPALA

[CORAM: MWONDHA; TIBATEMWA-EKIRIKUBINZA; TUHAISE; MUSOKE; MUSOTA; $JJ. S. C.1$

#### CIVIL APPEAL No. 8 OF 2019

#### 10

#### **BETWEEN**

#### KIZITO JOSEPH MUBIRU ....................................

#### AND

1. WAMALA DESIRE PAUL $15$ 2. KABOGGOZA SIMON 3. GOKYALA JUDITH ::::::::::::::::::::::::::::::::::::

[Appeal arising from the judgment of the Court of Appeal at Kampala dated 11th June 2019 before (Kenneth Kakuru, Kiryabwire and Madrama, JJA) in Civil Appeal No. 68 of 20 2015.1

#### JUDGMENT OF TIBATEMWA-EKIRIKUBINZA, JSC.

I have had the benefit of reading the judgment of my learned

brother, Hon. Justice Stephen Musota, JSC. I agree with his $25$ analysis and conclusion as well as the orders he has proposed.

Dated at Kampala this ... $day of ...$ ..... 2024.

$ndh$

HON. JUSTICE PROF. LILLIAN TIBATEMWA-EKIRIKUBINZA JUSTICE OF THE SUPREME COURT.

Delivered by the Registra

$31/5/24$

## THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA CIVIL APPEAL NO. 08 OF 2019

KIZITO JOSEPH MUBIRU:::::::::::::::::::::::::::::::::::

#### **VERSUS**

### 1. WAMALA DESIRE PAUL

### 2. KABOGGOZA SIMON

#### 3. GOKYALA JUDITH:::::::::::: **::::::::RESPONDENTS**

(Appeal from the decision of the Court of Appeal (Kakuru, Kiryabwire and Madrama, JJA) in Civil Appeal No. 62 of 2018 dated 11th June, 2019)

### HON. LADY JUSTICE FAITH MWONDHA, JSC CORAM: HON. LADY JUSTICE PROF. LILLIAN TIBATEMWA -**EKIRIKUBINZA, JSC** HON. LADY JUSTICE PERCY NIGHT TUHAISE, JSC HON. LADY JUSTICE ELIZABETH MUSOKE, JSC HON. MR. JUSTICE STEPHEN MUSOTA, JSC

## **JUDGMENT OF ELIZABETH MUSOKE, JSC**

I have had the benefit of reading the judgment of my learned brother Musota, JSC. I agree with him that this appeal ought to succeed partially. I also agree with the orders he has proposed.

Dated at Kampala this $\frac{3}{\sqrt{2}}$ day of $\frac{2024}{\sqrt{2}}$ .

### Elizabeth Musoke

Justice of the Supreme Court

Delivered by the Rygistran Silt 12m 1 Asa