Kyagaba Edward and Others v Namuganga Trading Company Ltd (Civil Appeal No. 88 of 2012) [2019] UGCA 2124 (15 August 2019)

# THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

lCoram: Egonda-Ntende, Borishaki Cheborion. Tuhaise, JJAI

Civil Appeal No.88 of 2012

(Arisingfrom High Court Miscellaneous Applic'tttion No. 143 of 20091

#### BETWEEN

| Kyagaba Edward | Appellant no. I | |-------------------|-----------------| | Nalika Rose | Appellant no. 2 | | Semugoma Emmanuel | Appellant no. 3 |

### AND

Namuganga Trading Cornpany Ltd Respondent

(On appeal from the ruling of the High Court (Magezi. J.) delivered on the 25th Augusr 2009)

### JUDGMENT OF FREDRICK EGONDA-NTENDE. JA

### duction

'Ihis is an appeal fiorn the decision of the IIigh Court in Miscellaneous Cause No.443 of 2008 instituted by the respondent against the Acting Commissioner fbr Land Registration and thc appcllants seeking the tbllowing orders:

> '( I ) A declaration that the decision by the Acting Commissioner lor Land Registration directing cancellation of transfer instrument No. MSK8 I 079 frorn the Register Book and reinstatement of the land comprised in Buddu Block tt9 Plot I I into the names of Simon Musisi was null and void with no legal effect.

> (2) Judicial Review writ of Certiorari quashing the decision by the Acting Commissioner firr Land

> > Page 1of 11

Registration directing cancellation of transfer instrument No. MSK81079 from the Register Book and reinstatement of the land comprised in Buddu Block 89 Plot 11 in the names of Simon Musisi.

(3) Judicial review writ of prohibition restraining and stopping the $2^{nd}$ , $3^{rd}$ and $4^{th}$ Respondents (legal Representatives of the estate of the late Simon Musisi, their servants/agents and all persons deriving authority through them or acting under their control and direction from evicting the applicants from the above-mentioned land.

$(4)$ alternatively, that an injunction may be issued restraining the $2^{nd}$ , $3^{rd}$ , and $4^{th}$ Respondents as the Administrators and legal representatives of Simon Musisi, their servants and agents from entering on the suit land and interfering with the Applicants' quiet enjoyment of the same.'

- $[2]$ The facts in this appeal are not in dispute. Mr. Simoni Musisi became the registered proprietor of the land comprised in Buddu Block 89 Plot 11 at Kitulikizi, Masaka in 1986. However, in 1998, the land was transferred to Namuganga Trading Co. Ltd under Instrument no. MSK81079 dated 16<sup>th</sup> June 1998. The respondent was in occupation of the suit land and using part as a commercial farm. By a directive dated 16<sup>th</sup> June 2008, the Acting Commissioner for the Land Registration cancelled the said transfer instrument from the Register Book and reinstated the land into the names of Simon Musisi. This was done following the receipt of an investigation report from the Director Land Matters of the State House upon receiving complaints from the appellants. The reason advanced by the Commissioner for the cancellation of the instrument was that it had been found that the registration had not been completed. The respondent was never notified of the investigations or the complaints until it received a notice of repossession from Ruhindi & Co. Advocates who were the legal representatives of the administrators of the estate of the late Simoni Musisi (the appellants). - Following these developments, the respondent instituted proceedings for $[3]$ judicial review in the High Court by applying for leave to file proceedings for judicial review on 15<sup>th</sup> August 2008 against the Commissioner of Land Registration and the appellants seeking reinstatement as owner on the register

to the suit land. -l'he respondent also instituted High Court Civil Suit No.42 of 2008 against the appellants on lOth October 2008.

On 25th August 2009, the leamed trial .judge lbund in favour of the respondent upon hearing the application fbr judicial revieu,. She reinstated the respondent on the registcr as the rcgistered proprietor ol'the suit land. Being dissatisfied with the decision of the High Court, the appellants have appealed to this court on the following grounds:

> '(l ) The leamed justice crred in law and fact when she entenained App. No. 44312009 yet there is a pending suit at Masaka High Court Civil Suit No. 42 o1'2008 between the same parties. on the same subject matter.

> (2) That the leamed.iustice erred in law and in l'act when she held that the decision of the Acting Commissioner tbr thc [,and Registration is reviewed.

> (3)'I'he leamed trial judge erred in law and t'act when she based the ruling on a merc indication by thc respondent that their application preceded the Masaka matter.

> (4) The leamed .lustice erred in larv and in f'act when she erroneously stated that the complaint to move the registrar appears to have emanated fiom state house without any record of finding tiom the Ag. Commissioner.

> (5 ) T'hat the leamed justice erred in law and in f-act whcn shc held that lrcspass is a tort against possession rather than proprietorship yet the same legal position was sub.iect to determination in Masaka High Court Civil Suit N0. 42108.

> (6) That the leamed.iustice erred in law and in I'act when she held that the purported reinstatements of the names of Simon Musisi was null and bore no legal effects.

$(7)$ That the learned justice further erred in law and in fact when she ordered the respondents to take possession and quietly enjoy the suit property thereby disregarding the cardinal essence of judicial review remedies prayed for in the application.

(8) The learned justices failed to properly evaluate evidence on record and came to a wrong conclusion.'

The respondent opposes the appeal. $[5]$

## **Submissions of Counsel**

- $[6]$ Though the record of the appeal had been filed by Kasumba, Kugonza and Co Advocates acting for the appellants, the appellants filed written submissions personally and appeared in person at the hearing of the appeal. The respondent was represented by Mr. Katumba. - $[7]$ It is the appellants' submission on ground 1 that the respondent proceeded to file High Court Miscellaneous Application No. 443 of 2009 yet it had already instituted High Court Civil Suit No. 42 of 2008 in the same court which is irregular. The appellants contended that prior to the hearing of High Court Miscellaneous Application No. 443 of 2009, appellant no.1 notified court that there was a pending suit on the same subject matter but the learned judge did not exercise the powers of court conferred under Order 11 rule 1 of the Civil Procedure Rules to consolidate the above matters. - It is the appellants contention that, alternatively, the learned judge ought to have [8] stayed the application or remitted the file to the High Court at Masaka to be dealt with. They contended that abandoning High Court Civil Suit No. 42 of 2008 was irregular and would lead to endless litigation which is an abuse of court process. The appellants relied on DFCU Ltd v Begmohamed Ltd [2005] UGCA 2. The appellants concluded by submitting that it was irregular to hear and determine the application before the civil suit that had been instituted in the High Court and therefore prayed that this court sets aside the ruling and the orders issued in High Court Miscellaneous Application No. 443 of 2009.

- ] Thc appcllants submitted on grounds 2 and 5 that the learned trialjudge did not properly evaluate thc evidence on trespass, fiaud and ownership ofthe suit land betirre passing the orders in High Court Miscellaneous Application No.443 of 2009 which could have been handled in High Court Civil Suit No.42 of 2008. They argued that appellant no.l in his a|idavit ol'reply pleaded issues of liaud. trespass and or.vnership which the leamed trial iudge did not detennine. It is the appellants' submission that the learned trialiudge chose to determine the matter prematurely thercby occasioning the appellants a miscarriage ofjustice. - 0l Thc appcllants lurther contendcd that the affidavit evidence relied on in High Court Misccllaneous Application No. 443 of 2009 to determine the question of possession and ownership was not adequatc and denied the appellants an opporrunity to adduce evidence as in an ordinary procceding on plaint. The appellants concluded by submitting that the leamed trial judge did not properly evaluate the evidence on record thereby arriving at a wrong conclusion and causing a miscarriage of .lustice. Thev relied on I Iodondi Daniel v Yolamu lleondi Court of Arrpeal Civil Anpcal No. 6712003 (unreported). - It is the appellanl's submission on grounds 3 and 4 that the leamed.judge should not have ad.ludicated on the issue of vacant possession and orvnership because the respondent did not raise it in its pleadings. They rely on the case of Nakirya Ssekatabba & Anor. v 'Ihe Attomey General 120061 UGCA 45 tbr the proposition that parties are bound by thcir plcadings during trial. Further. it is the appellant's contention that by ordering the respondent to take possession and enloy quiet possession of the suit property, the leamcd trial judge disposed of the civil suit as the rcspondent was sceking the samc orders in all the cases. r,f - That the leamed.judge misdirected hcrself rvhen she ordered the respondent to take possession based on a mere notice of motion dcspite the pending suit. The appellants argued that determination of IJigh Court Miscellaneous Application No.443 o1'2008 by implication disposed of High Court Civil Suit No. 42 of 2008.'Ihe appellants relied on General Parts (ULLtd and Ors v Non-Performing Assets Rccovery Trust [2006] UGSC 3 whcre the Supreme Court held that civil matters cannot bc instituted by notice of motion. 'lo that end. the appellants contended that thc respondent could not hide under the guise ofjudicial review to summarily dispose ol High Court Civil Suit No. 42 of 2008. - 'fhe respondent submitted on qround I that the proceedings resulting into High Court Miscellaneous Application No.443 of 2009 were commenced on l5'r' August 2008 u,hen the Respondent llled Miscellaneous Cause No.55 of 2008 lbr an application tbr leave to apply firr.iudicial revierv that was granted on 261h ,'r1

Page 5 of 11

November 2008. Counsel for the respondent further submitted that the parties in High Court Miscellaneous Application No.443 of 2009 are different from those in High Court Civil Suit No. 42 of 2008. In addition, the respondent submitted that the cause of action in High Court Civil Suit No. 42 of 2008 is trespass which is a continuous tort that cannot bar the grant of judicial review. Counsel for the respondent therefore concluded that it was not possible to consolidate two causes between different parties praying for different reliefs and filed in different courts.

- [14] Counsel for the respondent reiterated the above submissions on ground 2. He took the view that this ground should not have been raised. In relation grounds 3 and 4, counsel for the respondent submitted that the respondent did not pray for vacant possession and the trial court did not grant a prayer for vacant possession. He contended that an injunction is one of the prayers that can be sought in applications for judicial review. He further submitted that the learned trial judge was right when she stated that trespass is a tort against possession rather than ownership. High Court Civil Suit No. 42 of 2008 relates to trespass whereas High Court Miscellaneous Application No.443 of 2009 was for judicial review concerning the violation of the right to be heard which is a fundamental right. - [15] In reply to ground 5, counsel for the respondent submitted that the learned trial judge did not order for vacant possession as submitted by the appellants. He further submitted that though the appellants pleaded fraud in High Court Civil Suit No. 42 of 2008, it had no bearing in High Court Miscellaneous Application No.443 of 2009 since fraud was never alleged in the application. He submitted that the issue of fraud will be dealt with when High Court Civil Suit No. 42 of 2008 comes up for hearing. He concluded that the learned trial judge properly evaluated the evidence and came to the right conclusion.

#### **Analysis**

[16] On a first appeal this court is required to re-evaluate the evidence and the law and reach its own findings pursuant to Rule 30 (1) of the Rules of this Court. See Fr. Narcensio Bemugisa & Ors vs Eric Tibebaaga Supreme Court Civil Appeal No. 17 of 2002, [2004] UGSC 18. I shall proceed to do so.

#### Grounds 1 and 3

[17] The matter for determination here is whether the High court was right in determining High Court Miscellaneous Application No. 443 of 2009 before High Court Civil Suit No. 42 of 2008. The respondent in High Court Miscellaneous Cause No. 55 of 2008 sought leave to institute judicial review proceedings against the Acting Commissioner for Land Registration. This application was filed on 15<sup>th</sup> August 2008 and granted on 26<sup>th</sup> November 2008 whereupon the respondent filed High Court Miscellaneous Application No. 443 of 2009 on 29<sup>th</sup> June 2009 against the Acting Commissioner for Land Registration and the appellants seeking the orders mentioned above. The respondent had also filed High Court Civil Suit No. 42 of 2008 on 10<sup>th</sup> October 2008 against only the appellants seeking a permanent injunction to restrain them from entering the suit property, general damages for trespass, punitive damages, and aggravated damages.

- [18] It is the appellants' contention that the High Court ought to have consolidated the suits as provided by Order 11 rule 1 of the Civil Procedure Rules S.1 71. Order 11 rule 1 specifically provides for consolidation of suits, either upon the application of one of the parties or at the court's own motion and at its discretion, where two or more of them are pending in the same court in which the same or similar questions of law or fact are involved. - [19] There was no application by the appellants before the trial court seeking the consolidation of both matters and even if there had been it would be left in the discretion of the learned trial judge to determine whether or not the 2 causes ought to be consolidated. As this question was never before the trial judge it cannot be raised on appeal. - [20] The respondent instituted High Court Miscellaneous Application No. 443 of 2009 in court following the decision of the Acting Commissioner for Land Registration to cancel the transfer instrument No. MSK81079 in its names and reinstate the suit property into the names of Simoni Musisi. She acted under section 91 of the Land Act, 1998 that confers special powers on the Registrar to endorse, alter, cancel and issue fresh certificates of certificates of title without referring the matter to court. - [21] The Black's Law Dictionary, 8<sup>th</sup> Edition at page 864 defines judicial review as:

"1. A court's power to review the actions of other branches or levels of government; especially the court's power to invalidate legislative and executive actions as being unconstitutional. 2. The Constitutional Doctrine providing for this power. 3. A court's review of a lower court's or administrative body's factual or legal findings" [22] The right to apply for judicial review is not only a common law right in administrative law, it is also embedded in article 42 of the Constitution which states that:

> 'Any person appearing before any administrative official or body has a right to be treated justly and fairly and shall have a right to apply to a court of law in respect of any administrative decision taken against him or her.'

- [23] Judicial Review is concerned not with determining the merits of the decision being challenged but with the decision making process. The purpose of judicial review is to ensure that an individual is given fair treatment by the authority to which he or she has been subjected. It is a legal process of subjecting to judicial control, the exercise of powers affecting people's rights and obligations enforceable at law by those in public office. See Republic Vs Secretary of State for Education and Science, ex parte Avon County Council [1991]1 ALLER 282. - [24] In the instant case the decision made by the Acting Commissioner for Land Registration against the respondent was made in exercise of statutory powers. The exercise of these powers affected the rights of the applicants/respondent and were therefore subject to judicial review. - [25] For the above reasons grounds 1 and 3 lack merit and therefore fail.

### Grounds 2, 6, and 7

- [26] Grounds 2, 6 and 7 can be conveniently handled jointly. Judicial review controls administrative action under three heads; illegality, irrationality and procedural impropriety. Illegality is where the decision-making authority commits an error of law. Irrationality is where the decision-making authority has acted so unreasonably that no reasonable authority would make the decision while procedural impropriety is where the decision-making authority had failed to act fairly while exercising its powers. The unfairness can arise from nonobservance of the rules of natural justice or failure to adhere to the procedural rules expressly provided by the law. See *Council of Civil Unions Vs Minister* for the Civil Service [1984] 3 AII ER 935. - [27] The respondent brought the application for judicial review on the ground of procedural impropriety. Section 91 (1) of the Land Act mandates the Commissioner to give not less than 21 days' notice in the prescribed form to

any party likely to be affected by any decision made under the section. No notice was given to the respondent as required by law. The letter dated 14<sup>th</sup> May 2008 is addressed to the Registrar Land Office and not copied to the respondent. It appears at page 52 of the record of proceedings. Section 91 $(2)$ $(a)$ obliges the Commissioner to conduct a hearing and give an opportunity to be heard to the interested parties in accordance with the rules of natural justice. There was no hearing, whether orally or in writing conducted by the Commissioner, Land Registration before ordering cancellation of the respondent's registration as registered proprietor of the suit land. The letter dated 23<sup>rd</sup> May 2008 at page 58 of the record of appeal addressed to the respondent from the Acting Commissioner for Land Registration shows that the Commissioner arrived at the decision without prior notice to the respondent and without affording it an opportunity to be heard.

- [28] It is clear that the Acting Commissioner for Land Registration did not comply with the procedure laid down by the law and thereby contravened the respondent's right to a fair hearing that is sacrosanct and guaranteed by article 28 (1) of the Constitution. Article 44 (c) of the Constitution provides that this right is non-derogable. It is a fundamental principle of natural justice that a decision which affects the interests of any individual should not be taken without that individual being provided an opportunity to state his or her case and to rebut any allegations made against him or her. A decision given without due regard to the principles of natural justice is void. See Ridge v. Baldwin $(1964)$ AC 40. - [29] The learned trial judge held that the decision of the Acting Commissioner for Land Registration was void on the ground that the respondent was not given an opportunity to be heard. I find no reason to fault the decision of the learned trial judge. Grounds 2, 6 and 7 therefore fail.

### Ground 4

[30] The appellants fault the learned trial judge for stating that the complaint to move the Commissioner emanated from State House. At page 58 of the record of appeal, there is a letter from the Acting Commissioner for Land Registration to the respondent stating as follows:

### 'RE: Buddu Block 89 PLOT 11 AT MUGE LUKAYA **MASAKA**

I have received a complaint from State House to the effect that your registration to the above land was irregular.

Page 9 of 11

I have been infbrmed by the Registrar of Titles. Masaka that your purported registration lo the above land has never been completed. lI rvas never registered despite the fbct that you're your name appears on thc Registry copy. There is no Registrar's signature to confinr vour registration.

ln any case. the beneticiaries of Simon Musisi dispute vour transl'er. l'his leaves mc'wilh no option but Io conclude that although it appears that there was an anempt to have lhc said land transferred to you. it was never concluded.

I therelbre. intend to order the Register to be amended and cancel vour narne tiom thereof and reinstate that of Simon Musisi. Please take the Duplicate Certillcate of Title back to Masaka Titles Ollice which is in vour custodv to cllect these changes.'

[3I ] Further. the letter fiorn the Acting Commissioner fbr Land Registration to the Registrar of Titles. Masaka Land ol'llce. dated l4th May 2008. at pagc 52 of the record ol appeal, states:

### 'ltE: REI'()RT ()N B[ISIR() IIL()CK 89 PLOT I I I,ANI) AT MI. I(;T] LI. IKAYA NIASAKA DISTRICT

I am in receipt of a report lrorn the Director of Land Matters State House with some recommendations. I need all documents (Cenifled) in connection with the above tile in order lbr rne Io advise the M inister on the wav forward.'

[32] From the lbregoing it is clear that the complaint came through State House and therefore ground 4 f'ails.

### Ground 7

[33] At page 3. paragraph 3 ol'the ruling in I ligh Court Miscellaneous Application No. 44312009. leamed trial .iudge stated as follou,s:

> 'Secondly that the Masaka matter was in respect of trespass which is a tort against possession rather than proprietorship. ln such circumstances this Court is not incumbered to deal with the matter belbre it as I have done.'

[34] The leamed trial judge did not detcnnine the issue u'ith regard lo trespass as appellants contended. She rather notcd that there was no impedilnent for the court to consider the matter befbre it. 1'his ground lacks merit and therefore fails.

## Ground 8

$[35]$ I am satisfied that the learned trial judge properly evaluated the evidence on record and came to the right conclusion. Ground 8 lacks merit and therefore fails.

### Decision

[36] I would dismiss this appeal with costs. As Barishaki Cheborion and Tuhaise, JJA, agree this appeal is dismissed with costs.

Dated, signed and delivered at Kampala this 15 day of August 2019<br>August 2019

edrick Egonda-Ntende **Justice of Appeal**

## THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL FOR UGANDA AT KAMPALA

[Coram: Egonda-Ntende, Barishaki Cheborion, Percy Night Tuhaise, JJA]

# Civil Appeal No. 88 of 2012

(Arising from High Court Miscellaneous Application No. 443 of 2009)

- 1. Kyagaba Edward - 2. Nalika Rose **.....................................** - 3. Semugoma Emmanuel

## Versus

Namuganga Trading Company Ltd. ..................................

(On appeal from the ruling of the High Court (Magezi, J.) delivered on the 15<sup>th</sup> August 2009)

# Judgment of Hon. Lady Justice Percy Night Tuhaise, JA

I have had the benefit of reading in draft the Judgment of my brother Hon. Mr. Justice Fredrick Egonda-Ntende, JA.

I agree with his analysis, reasoning, and conclusion that this appeal has no merit and should be dismissed with costs.

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

Percy Night Tuhaise Justice of Appeal.

### THE REPUBLIC OF UGANDA

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

[Coram: Egonda-Ntende, Barishaki Cheborion, Tuhaise, JJA]

Civil Appeal No.88 of 2012

(Arising from High Court Miscellaneous Application No.443 of 2009)

#### **BETWEEN**

| <table> Kyagaba Edward</table> | | |---------------------------------------------------------|--| | <table> Nalika Rose Appellant no.2</table> | | | <table> Semugoma Emmanuel</table> | |

#### AND

<table>

Namuganga Trading Company Ltd....................................

(On appeal from the ruling of the High Court (Magezi, J.) delivered on the 25<sup>th</sup> **August 2009)**

### Judgment of Barishaki Cheborion, JA

I have had the benefit of reading in draft the judgment of my brother Egonda-Ntende, JA and I agree with him that the learned trial judge properly evaluated the evidence on record and came to the right conclusion. The appeal ought to be dismissed with costs.

Dated at Kampala this.................................... Barishaki Cheborion

**Justice of Appeal**