Luyigo and Another v Namwanje (Civil Appeal 118 of 2012) [2019] UGCA 2103 (21 October 2019)

Full Case Text

| a | | | | |---------|-----------------------------------------------------------------------------------------------------------------------------------------------------|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--| | 5 | | THE REPUBLIC OF UGANDA | | | | | IN THE COURT OF APPEAL OF UGANDA AT KAMPALA | | | | | CIVIL APPEAL NO, 118 OF 2072 | | | | | 1. LUYIGO HENRY | | | | | 2. MUSAZI SAMUEL APPELLANTS | | | 10 | | VERSUS | | | | | PAULINE NAMWANJE | | | o 15 | (The Administrator of the estate of the late SSERUWU S. MICHAEL represented by her lawfully appointed attorney SSEBOWA MICHEAL) RESPONDENT | | | | 20 | | (An appeal from the Judgment of the High Court at Kampala before Her Lordship Hon. Lady Justice Anna Magezi dated the 73th day of April 2010 in High court civil suit No. 185 of 2008) CORAM: Hon. Mr. fustice Alfonse Owiny- Dollo, DCf Hon. Mr. f ustice Kenneth Kakuru, fA Hon. Mr. ,ustice Stephen Musota, JA | | | o | | | |

# IUDGMENT OF THE COURT

#### Brlefbackground

The respondent as an administrator of the estate of the late Sseruwu Michael instituted a suit against the appellants for trespass on land situate on Block 11 Plot 611 at Nsike. The late Sseruwu Michael had bought the suit kibanja from George William Wasswa who was a beneficiary to the estate of the late Eriasafu Kigozi Kizza 25

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5 the original owner of the suit kibanja. Upon purchase of the suit kibanja by the late Sseruwu Michael, a suit was filed by Maria Nalugwa challenging the purchase ancl judgment was delivered in her favour. subsequently after the court order, the late sseruwu Michael and Maria Nalugwa entered into a mutual memorandum of understanding in which she allowed the late Sseruwu Michael to occupy and own the suit kibanja. on lBttr April 2008, the appellants' court bailiff approached the respondent's agents with a warrant ofvacant possession. They entered onto the suit 10

In the suit filed by the respondent she sought for general and special damages for demolition houses/p roperties on the suit kibanja, a declaration that she is a bonafide occupant (kibanja owner) and for a permanent in.junction. The appellants by way of counterclaim sought for a declaration that the respondent is a trespasser on the suit kibanja, they prayed for a permanent iniunction against the respondent and for general damages. Judgment was entered in favour ofthe respondent.

kibanja,locked up the respondent's houses and demolished the structures thereon.

The appellants being dissatisfied with the decision of the learned trial Judge filed this appeal on the following grounds:- 20

- L. The learned trial Judge erred in law and fact on finding that the estate of the late Sseruwu owned a kibanja on the suit land. - 2. The learned trial Judge erred in law and fact when she held that the impugned agreement between George William Wasswa Bumba and Sseruwu Micheal was subsequently ratified and given force of law by the alteged ratification by Maria Nalugwa. - 3. The learned trial Judge erred in law and fact when she failed to properly evaluate the evidence before Court thereby reaching a wrong decision. - 4. The learned trial Judge erred in law and fact when she held that the appellants were trespassers on the land in issue.

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5. The learned trial Judge erred in law and fact when she awarded excessive damages not based on evidence.

### Representations

At the hearing of this appeal Ms. Sophia Dhatemwa learned Counsel appeared for the appellants while Mr. Ssekabanja Kato together with Mr. Moses Opio learned Counsel appeared for the respondent.

# Annellants'case

Ms. Dhatemwa submitted that, the learned trial erred when she found that the estate of the late Sseruwu owned a kibanja on the suit land. She contended that, the issue of ownership of a kibanja by the estate of late Sseruwu had been determined in High court civil Appeal No. 85 of 1993 in which it was held that the late Sseruwu had no title in any of the property on the suit land and that he was a trespasser as he occupied the said land without the permission of the proprietor of the land and had remained thereon defiantly. She argued that the Judgment of High court civil Appeal No. 85 of 1993 had not been appealed against by the late Sseruwu and as such the question ofownership of the kibania had bccn hcard and finally adjudicated upon. 1.5 20

She submitted that, a Judgment is conclusive betwccn thc partics and their privies and is conclusive against the world of its existence, date and legal consequences unless it is amended or set aside. For the above proposition she relied on Hulsbury's Laws of England 4th Edition 1979 Volume 26 page 273.

In respect of ground two, Counsel contended that, the learned trial Judge erred when she held that the impugned agreement between George William Wasswa Bumba and Sseruwu Michael was ratified and given force of law by the alleged ratification effected by Maria Nalugwa. She submitted that in High Court Civil Appeal No. 85 of 1993 it was found that all the transfers made by George William Wasswa 25

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5 Bumba on the suit land were null and void and that he had no authority to sell the kibanja or any part of it.

she further submitted that, the sale agreement being void could not be ratified or in any way be altered by a subsequent agreement. The purported agreement between Michael Sseruwu and Maria Nalugwa of 31'r March 1999 in which the latter accepted and confirmed the sale by George william wasswa and cancelled the decision of the High court was void and had no effect whatsoever. she cited rlcfiye Automobile spares Ltd vs crane Bank and Rajesh pakesh, supreme court civil Appeal No.21of2001.

15 counsel argued that, Maria Nalugwa and sseruwu Michael could not by consent reverse the judgment of court. A.ludgment can only be reversed by an appellant court. she relied on Edith Nantumbwe Kizito & 3 others vs Maria Kutesa, court of Appeal Civil Application No. 294 of2013.

She further contended that, the agreement entered between sseruwu and Maria did not create any legal interests for Sseruwu Michael on the land in dispute, it did not pass on any title from Maria to sseruwu as it was neither a valid contract nor a bequeathal or a gift. She quoted Halsbury's Laws of England 5rn Edition for the

on ground 3, counsel faulted the learned trial Judge for having failed to properly evaluate the evidence on record. she submitted that, the learned trial Judge erroneously relied on the agreement between Maria Nalugwa and Sseruwu Michael as evidence that the respondent had a kibanja on the suit land. The agreement was void and as such the learned trial Judge should not have considered it as evidence proving ownership.

counsel submitted that, the learned trial Judge ignored all the material evidence such as the sale agreement between Maria Nalugwa and the appellants as well as the 30

above proposition.

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5 10 testimonies of Dw1 samwiri Musazi and DW4 Buyonga Don. counsel argued that, the trial Judge misdirected herself when she relied on civil suit No. 57 of 2008 to determine the appellants' ownership of the kibanja. She contended that, the said civil suit was a matter between the appellants and Mike ssebowa for non-payment of rent and vacant possession and as such it was not proper to rely on it to prove ownership of the kibanja.

In respect of ground 4, counsel submitted that, the learned trial Judge erred when she relied on civil Suit No. 57 of 2008 and concluded that the appellants were trespassers on the suit properties as they had failed to convince the Magistrate Court their claims on the suit land.

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In respect of ground 5, counsel argued the learned trial Judge wrongly awarded excessive special and general damages to the respondent. She arguecl that the special damages had not been properly proved by the respondent.

She asked Court to allow the appeal with costs.

# Resoondent's renlv

20 25 Mr. Ssel<abanja opposed the appeal. He subrnitted that, the estate of sseruwu rightly owned a kibanja on the suit land as held by the learned trial Judge since the late sseruwu had entered into a flesh agreement with Maria Nalugwa in respect of the kibanja after the detcrmination of High c.rult civil Appeal No. 85 of 1993. He contcnded that the parties were fi'ee to deal wilh t-he land after the clecision of the court and there was nothing undel the law lhaL precluded them from entering into fresh arrangements with each other after finding that late Sseruwu was a trespasser on the land. The late Sseruwu and Maria Nalugwa entered into a fresh memorandum of understanding over the suit kibanja. There was no illegality in the transaction between the two parties. For the above proposition counsel relied on wiiliam Kisitu

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ssengendo & Another vs Mukoni Framers Ltd, court of Appeat civil Appeal No. s3 of 2006. 5

counsel argued that, the issue of res judicata does not apply in the instant case since the respondent's case against the appellants was for a declaration that they are trespassers, a claim for general and special damages arising from the appellants, malicious damage and destruction of the respondent's property. He submitted that the issues between the respondent and the appellant are not res judicata.

In respect of ground 2, counsel argued that, the issue of ratification by Maria Nalugwa of the impugned agreement between the George william wasswa Bumbu late sseruwu Micheal was not raised or pleaded by the appellants at the trial court and as such it cannot be raised at this stage. For the above proposition counsel relied on M/S Fang Min vs Belex Tours & Travels Supreme court civil Appeat No. 6 of 2013.

20 In reply to grounds 3 and 4, counsel submitted that, the learned trial Judge properly evaluated all the evidence on record and arrived at the right decision. The respondent adduced enough evidence to prove that the late Sseruwu owned the suit kibanja which evidence was not controverted by the appellants. He submitted that the appellants' evidence was full of contradictions and they failed to prove their claims on the suit kibanja and as such the learned trial Judge was right to hold that the late Sseruwu had interest on the suit kibanja.

In respect of ground 6, counsel submitted tha! Judgment had been decided in favour of the respondent and as such the respondent was entitled to damages as compensation for loss or injury she suffered as a result of the appellants' actions. counsel asked court to dismiss the appeal and uphold the learned trial Judge's findings.

# 30 Resolution

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5 This Court is required under Rule 30 of the Rules of this Court to re-appraise the evidence of the trial Court and come to its own decision. Rule 30 (1) (aJ provides as follows:-

"Power to reappraise evidence and to take additional evidence.

(1.) On any appeal from a decision of the High Court acting in its original jurisdiction, the court may-

(a) reappraise the evidence and draw inferences offact"

See:- Fr. Narcensio Begumiso & others vs Eric Tibebaaga, Supreme Court Civil Appeal No. 17 of 2002, Kifumunte Henry vs Uganda, Supreme Court Criminal Appeal No. 10 of 1997 and Bogere Moses vs Uganda, Supreme Court Criminal Appeal No. 1 of 1997.

We shall keep the above principles in mind while resolving the grounds of appeal. We have carefully perused the record and considered the submissions of Counsel.

We now proceed with our duty of evaluating the evidence.

Ground 1, it's the appellant's contention that, the learned trial Judge erred when she found that the estate of the late Sseruwu owned a kibanja on the suit land. The evidence on record indicates that the suit land is a " kibanja" situated on mailo land comprised in Kibuga Block 1. L Plot 611, land at Nsike, Kabowa. The appellants claim as the registered proprietors of the said land. On the other hand, the respondent claims through her predecessor in title (her late father) who bought the suit kibanja from its then owner, one Maria Nalugwa. We note that the learned trial fudge believed as truthful, evidence which was adduced to support the authenticity of the land sale agreement between Maria Nalugwa and the respondent's predecessor in title, one Sseruwu Michael. Therefore, the respondent's claim arose on the 31.t day ofMarch, 1999. 20 25

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- 5 we shall also discuss for the record the issue of ratification of the 1986 agreement between one George william Bumba and the respondent's predecessor in title, Sseruwu Michael. This was raised in ground two of appeal where the appellants contended that the learned trial fudge erred when she held that the impugned agreement between George William Bumba and Sseruwu Michael had been subsequently ratified and given force of law by the alleged ratification by Maria Nalugwa. To give context to the ratification, it was agreed for the respondent (plaintiff at the original trial) that in 1986, her predecessor in title had bought the suit kibanja from the said George William Bumba, an administrator of the estate of Eriasafu Kigozi Kizza who owned the suit kibanja. However, that sale was nullified by a Court order vide Chief Magistrate's Court of Mengo Civil Suit No. G. K 50 of 1990, and confirmed on appeal videHigh Court Civil Appeal No. 85/1993, chiefly for the reason that the said George William Bumba had no authority to sell the suit kibanja. In our opinion that was the end ofthat, an illegal sale could not have been ratified by the 1999 agreement which was a fresh agreement altogether. 10 o 15 - In view of the above analysis, we are left with three claims over the suit kibanja. The respondent claims that the suit kibanja was assigned to her predecessor in title by the lawful owner, one Maria Nalugwa and subsequently to her upon his death. The agreement to assign in question was made on 31.t March, 1999. At that time, the Land Act, Cap.227 was already in force and within it were provisions that regulated assignment of tenancies by occupancy (kibanja interests), the relevant provisions are quoted below for ease of reference: 20 t 25

Section 34 provides that:

"34. Transactions with tenancy by occupancy.

=\t\*, Page l8 (7) A tenant by occupanqt mqt. in accordance with this section. assign. sublet. oledqe, create third partv riohts in. subdivide and undertake anv other lawful transaction in respect of the occupanq).

(2) A tenancy by occupancy may be inherited.

(3) Prior to undertaking any transaction to which subsection (1) refers. the tenant blt occupanc)t shall submit an application in the prescribed form to the owner of the land for his or her consent to the transaction.

@) The registered owner shall, within six weeks from the date of receipt of the application or such longer time as may be prescribed, either grant o consent to the transaction in the prescribed form, with or without conditions, or refuse consent to the transaction.

(5) Where the registered owner refuses to grant consent to the transaction or grants consent subject to conditions which the tenant by occupancy objects to or fails within the prescribed time to give any decision on the application, the tenant by occupancy may appeal to the land tribunal against the refusal.

(6) For the purposes of appealing under this section, the conditions or, as the case may be, the failure to give a decision referred to in subsection (5) shall be taken to be a refusal.

(7) The land tribunal shall, in the exercise of its functions under this section, grant the consent, with or without conditions which may include or depart from conditions imposed by the owner, or refuse consent to the transaction or may adjourn the proceedings to enable the parties to reach an agreement on the tnatter.

(B) A copy of every consent, signed by the owner or, where the consent has been granted by the land tribunal, by the secretary of the tribunal, shall be delivered

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or sent to the recorder who shall keep a record in the prescribed form of alt such consents

(9) No transaction to which this section applies shotl be valid and effective to pass anv interest in land if it is undertaken without a consent as provided for in this section. and the recorder shall not make an:t en .'v on the record of any such transaction in respect of which there is no consent." (Underlining for emphasis)

There is no evidence to show that prior to assigning the suit kibanja to Seruwu S. Michael, Maria Nalugwa sought and obtained the consent of the appellants, the ioint registered proprietors of the land on which the suit kibanja was situated. Moreover, the Land Act provides that the first option for purchasing land held under the tenancy by occupancy should be given to the owner of the land. See Section 35 (1) ot the Land Act, Cap. 227.lt is trite law that any agreement entered into in contravention of the law is null and void, See: Active Automobile and another vs Crane Bank and Another, Supreme Court Civil Appeal No.1 of 2001. In the present case, Maria Nalugwa neither sought the consent of the registered owners nor did she give the first option to purchase her tenancy by occupancy to the registered owners of the land. In the circumstances, there can only be one conclusion that the alleged assignment to Sseruwu S. Michael was invalid and could not effectively pass any legally recognized interest to him.

25 On their part, the appellants have dual claims, first as the registered owners of the mailo land on which the suit kibanja is situated and secondly as assignees of the suit kibanja having bought out Maria Nalugwa's interest via a sale agreement (Exhibit D3). The agreement in issue was allegedly made on 21.t January, 2008, and reveals that Maria Nalugwa sold the suit kibanja to the appellants for 300,000/=. Prima facie, the foregoing sale agreement satisfied all legal requirements, having given the first option to purchase the suit kibanja (tenancy by occupancy) to the owners of the 30

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5 land. However, the learned trial Judge took a dim view of the authenticity ofthe said sale agreement. She said at page 114 of the record that:

> "...1t was also clear that even DWII the second defendant was a liar. He claimed to have bought the land from Nalugwa in January 2008 but filed the suit in March 2008 demanding shs. 600,000/= rental arrears. This led to a false affidavit culminating into an erroneous warrant for vacant possession. The case was dismissed for lack of prosecution. The court was of the considered opinion that the defendants failed to convince it regarding its claims over the suit property. In view of the obvious contradictions and blatant lies peddled by the defence I find that they indeed trespassed on the suit land having used false court documents to throw out the plaintiffs and demolish their houses.

> In consequence of the court's conviction that the defendants were liars, trespassed on the suit properties and committed tortuous acts they are jointly liable for those actions."

- While we note that "conviction" (which is defined as the feeling of being sure that what you believe is true) is important in judicial decision making, it cannot be relied on to overlook clear, unimpeached evidence. we must therefore decide whether there was cogent evidence of the sale to the appellants to move this court to overlook the learned trial Judge's convictions. 20 - In the instant case, the appellants [as defendants at trial) adduced evidence which showed that they had purchased the suit kibanja from Maria Nalugwa in 2008. on the issue, DW2, Jimmy Kato testified that he had witnessed the signing of the said sale agreement between the appellants and Maria Nalugwa. However, he was also a witness to the signing of the assignment agreement between sseruwu S. Michael and Maria Nalugwa, which we referred to above. In an attempt to challenge the 25 30

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5 authenticiry of the latter agreement, DW2 denied that he had witnessed it. we observe that the learned trial fudge was unimpressed by this witness and noted that the witness appeared intimidated and untruthful.

on his part, the 1't appellant testified as DW3 saying that the appellants had bought the suit kibanja from Maria Nalugwa in 2008 and had paid her Shs. 300,000/=. He explained that the paltry sum they paid her was because they had footed the costs of earlier litigation involving Maria Nalugwa, which was resolved in her favour. He was adamant that the respondent was only interested in grabbing the appellant's land. It is worth noting that the learned trial Judge was also unimpressed with the 1sr appellant's testimony and used strong words, such as liar to describe him. The learned trial )udge said that the 1.t appellant's was a coached witness.

All in alt, the evidence that the appellants bought the suit kibanja was badly discredited. ln Kifamunte Henry vs Uganda, Supreme Court Criminal Appeal No. 10 of 1997 (unreported),the Court observed that:

"... When the question arises which witness is to be believed other than another and that question turns on demeanour, the appellate court must be guided by the impressions made on the judge who saw the witness, but there may he other circumstances quite apart from manner and demeanour which may show whether a statement is credible or not which may warrant a court in dffiring from the judge even on a question offact turning on credibility of witness which the appellate court has not seen."

The learned trial Judge found that the defence witnesses were not truthful, she used such words as "liars," "unimpressive," "coached" to describe them. This Court shall be guided by those impressions, as it did not see the said witnesses testify.

Accordingly, we find that the there was no sale of the suit kibanja to the appellants as alleged. This necessarily means that the status of the ownership ol the suit 30

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5 kibanja reverts to the pre-1999 position, with Maria Nalugwa as the owner of the suit kibanja and the appellants as the registered owners of the mailo land where the suit kibanja was situated. The resolution of ground 1 above also resolves grounds 2, 3 and 4.

Ground 5, the appellants' contended that the learned trial Judge awarded excessive damages not based on evidence. Damages are compensatory in nature in that they should offer some satisfaction to the injured party. See: Uganda Revenue Authority vs Wanume David Kitamirike CA 43 of 2010. 10

In this case the learned trial fudge found that the appellant's were trespassers and according ordered them to pay the value damage ofShs. 31,164,500/=,loss of rental income equal to Shs. 10,800,000/=, Shs 12,181,600/= as specifically evidence by Exhibit P3 and 15,000,000/= general damages including costs of this suit.

ln the assessment of general damages, the Court should be mainly guided by the value of the subject matter, the economic inconvenience that the respondent may have been put through and the nature and extent of the injury suffere d. See Uganda Commercial Bank vs Deo Kigozi [2002] 1 EA 305.

In respect of special damages, the principle of law is that "special damages must be specifically pleaded and proved, but that strictly proving does not mean that proof must always be documentary evidence. Special damages can also be proved by direct evidence; for example by evidence of a person who received or paid or testimonies of experts conversant with the matters". See Gapco (U) Ltd vs A. S. Transporters (U) Ltd, Court of Appeal Civil Appeal No. 18 of 2004 and Haji Asuman Mutekanga vs Equator Growers (U) Ltd, Supreme Court Civil Appeal No.7 of 1995.

It is now a well settled principle that an appellate court may only interfere with an award of damages when it is inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the Judge proceeded on a wrong

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5 10 principle or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low. This principle was stated by the Court of Appeal for Eastern African in Henry H. Ilanga vs Manyoka (1961) EA 705 where the Court quoted with approval the decision of the Privy Council in Nance vs British Columbia Electric Railway Co. Ltd (1951) A. C. 601 at page 61.3.

In this appeal we have found that the respondent is not entitled to the suit kibanja, she has no interest or any claim whatsoever upon the suit property. Since the respondent has no legal interest in the suit kibanja, we accordingly find that she is not entitled to any damages.

o 15 20 Having found that there are two complimentary but lawful claims to the suit land with Maria Nalugwa as a tenant by occupancy (kibanja holder) of the suit kibanja, and the appellants as the registered owners of the land on which the suit kibanja is situated. The remedy available to both parties is to continue enjoying their landlordtenant relationship over the suit land. In the event that Maria Nalugwa is desirous of selling the sfit kibanja, she must seek the appellants' consent, and give them the first option to purchase her interest.

For the record, the respondents have no interest as assignees of the suit kibanja and. shall give vacant possession of the kibanja to Maria Nalugwa.

In the result, we hereby set aside the learned trial ludge's Judgment and substitute it with this one. We also make the following orders and declarations:-

- a) The assignment of the suit kibanja from Maria Nalugwa to the respondent was invalid and ineffective for being made in contravention of the law. - b) There is no valid agreement of sale of the suit land between the appellants and Mary Nalugwa as the same was not satisfactorily proven.

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- c) In view of paragraph (b) above the ownership of the suit land shall revert back to the pre-L999 position, with Maria Nalugwa as a tenant in occupancy, and the appellants as the registered owner of the mailo land on which the suit kibanja is situated. - 10

d) This appeal having succeeded in part we order that the appellant be paid % of the costs at this Court and the Court below

Dated at Kampala this 2\'\ day of .......20L9. a 15 l/" 20 Alfonse Owiny- Dollo Deputy Chieffustice 25 Kennet uru fustice of Appeal 30 Stephen Musota Justice ofAppeal 35