Ssajjabi v Namutebi Muyizzi and Another (Civil Appeal 25 of 2017) [2020] UGCA 2155 (27 February 2020)

Full Case Text

## 5 THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

## CIVIL APPEAL NO, 25 OF 2OI7

#### VERSUS

# 1. CATHERINE NAMUTEBI MUYIZZI Administrator of the Estate of Samuel Muyizzi

# 2. BIKAALI CHRISTIAN FELLOWSHIP RESPONDENTS (An Appeal from the judgment and orders ofthe High Court oflJganda at Masaka before Hon. Justice V. F. Musoke-Kibuuka dated 29th November,2014 in Civil Suit No.

039 of 2006)

CORAM: Hon. Mr. fustice Kenneth Kakuru, fA Hon. Mr. fustice Geoffrey Kiryabwire, fA

Hon. Mr. f ustice Christopher Madrama, fA

# IUDGMENT OF JUSTICE KENNETH KAKURU, IA

'l'his is an appeal arising from the decision ol Musoke-Kibuuka, J in High Court Civil Srrit No. 039 of 2006 delivered on the 29Lh day of Novemb et, 2074.

## Rrief background

Samuel Mtryizza who is now deceased was the 1st respondent at the time this appeal was filed, upon his demise his name was substituted with that of his widow Catherine Namutebi Moyizzi as the administrator of the estate. Samuel Muyizza was the biological father of the appellant. In 1996, the late Muyizza by deed donated the suit land comprising LRV 3012, Folio 10, Block 425, Plot 20 at Kyazanga, now 25

Lwengo District, measuring 120 acres to the 2nd respondent. The appellant who was 30

the pastor of the 2nd respondent was entrusted with the responsibility of holding and developing the land for the 2,d respondent. The appellant later ceased being the pastor of the 2nd respondent and in 1999, the late Muyizza again by deed transferred responsibility over the suit land to Pastor Bikaali John who took possession of the suit land and started using it. However, the late Muyizza remained the registered proprietor. In 2006 the appellant introduced two foreign nationals to the late Muyizza as people who were willing to sponsor developmental programmes for the 2nd respondent on condition that they got proof that the land belonged entirely to the 2nd respondent.

O' 20 O' The late Muyizza instructed the appellant to go to his advocates and instruct them to draft a formal deed of donation of the land to the 2nd respondent in order to facilitate registration of the land into the names of the 2nd respondent. The appellant did not honour the father's instructions, he instead instructed his father's advocates to draft the deed of donation in his favour. He made the late Muyizza to sign the deed without reading through, he also made him to execute blank transfer forms and subsequently registered the suit land into his names as proprietor. The late Muyizza sued the appellant seeking for a declaration that; the purported deed of donation made between him and the appellant on 15th May 2006 was invalid, an order cancelling the certificate of title of the appellant for the land comprised in LRV 30L2, Folio 10, Block 425, Plot 20 at Kyazanga, now Lwengo District, general and punitive damages and costs of the suit.

The learned trial ludge entered Judgment in favour of the respondents. The appellant being dissatisfied with the said decision filed this appeal on the following grounds:-

1.. The learned trial Judge grossly misdirected himself and hence erred in law and in fact when he found and held that the deed of gift between the 1st respondent and appellant, dated 1Sth May,2006 was invalid and ofno effect, whatsoever.

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- 5 2. The learned trial ludge erred in law and in fact when he misconstrued the evidential value and the bench marks for admissibility of evidence on donations thereby drawing misconceived and wrong conclusions. - 3. The learned trial Judge grossly misdirected himself and hence erred in law and in fact for admitting and basing his decision on the isolated evidence of the plaintiffi/respondents, which was extensively rebutted by the defendant/appellant in a substantial manner. - 4. The learned trial Judge erred in law and in fact for totally misconceiving the crux and substance of the defence entirely, thereby biasing himself in the negligent/reckless manner and this leading him to wrong conclusion in the resulL - 5. The learned trial Judge erred in law and in fact when he failed to properly evaluate evidence on record, thereby arriving at wrong conclusions. - 6. The learned trial Judge erred in law and in fact when he did not only volunteer own issues but resolved them to the appellant's disadvantage thereby causing him a serious miscarriage ofiustice. - 7. The learned trial ludge's decision occasioned a grave miscarriage of iustice to the appellant.

#### ReDresentations

At the hearing of this appeal Counsel for the appellant was absent nevertheless the appellant was in Court. The Court allowed the appellant to proceed with the appeal in person. The respondents were represented by learned Counsel Mr. Michael Kagwa. The parties then agreed to proceed by way of written submissions already on record.

# Appellant's submissions

On groundl, it was submitted that, the deed of donation was executed freely and with a clear conscience between the appellant and the 1\$ respondent. The contents 30

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5 10 J,s of the deed were explicitly explained to the 1st respondent in english with a translation in Luganda. The late Muyizza signed it and the same was stamped by his advocates. It was contended that, the certificate of title and duly signed transfer forms were freely handed over to the appellant by the late Muyizza, they later jointly proceeded to the land office, paid the assessed stamp duty and the registration was effected in the names of the appellant. It was argued that there was no contestation until much later when the late Muyizza was influenced to turn around and deny what he had done. Counsel argued that, the whole translation was valid as the late Muyizza's intention was to make a gift of the suit land to his son by way of deed of gift and as such the learned trial Judge's order of revocation was misplaced and misconceived to the detriment of the appellant.

Grounds 2 and 5, the learned trial Judge is faulted for having failed to properly evaluate the evidence on record and misconstrued the evidential value and the bench marks for admissibility of evidence on donations. It was submitted that, the appellant adduced evidence which clearly indicated that the late Muyizza'z intention was to donate the suit land to him. The late Muyizza was cognizant of the transaction, his renunciations are an afterthought and ought to be ignored. It was argued that, the learned trial Judge misapplied the law when he based his decision on the lawyer's denial that the deed of donation was not signed in his office yet the same document had been prepared by him on instructions of the l.'t respondent. It was contended that the trial ]udge ignored some evidence thereby occasioning a miscarriage of justice to the appellant. 20

In respect of ground 3, it was submitted that, the evidence on record specifically Exhibit D2 (the deed of donation) indicates that the donation was lawful and legal. There was no evidence imputing fraud on the appellant, lt was argued that, the learned trial fudge heavily relied on the evidence of the respondents in disregard of the appellant's evidence.

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5 In regard to grounds 6 antl 7, it was submitted that the learned trial Judge wrongly formulated his own issues and resolved them to the appellant's detriment thereby occasioning a miscarriage of justice. There was no issue raised as to the validity of the deed of donation but the trial Judge formulated it and resolved it illegally. Counsel relied on Standard Chartered Bank (U) Ltd vs Grand Hotel (U) Ltd, Court of Appeal Civil Appeal No. 13 of 1.999. 10

ln respect of ground 4, it was contended that the learned trial Judge's decision was a full of bias and as such it occasioned a miscarriage ofjustice. Counsel asked Court to allow the appeal with costs. He also sought for an award of both general and punitive damages and interest.

## 15 Respondents' reply

In reply to ground L, it was submitted that the learned trial ludge rightly found that the deed of donation between the late Muyizza and the appellant was invalid as it was procured through fraud, trickery and misrepresentation by the appellant. It was argued that, from the facts of record the appellant was aware the sttit land had been donated to the Znd respondent through Pastor Bikaali John in 1999 after the appellant had ceased being the pastor of the 2nd respondent therefore the deed of donation executed in 2006 was invalid.

25 It was contended that, the appellant through fraud and misrepres entation tricked his father to sign the impugned deed of donation in 2006 in order to take over the suit land which he had already donated to the 2nd respondent. The purpose of the 2006 deed of donation was to confirm to the foreign sponsors brought by the appellant that the suit land had been donated to the 2nd respondent and not to create a new donee. Any donation to an unintended donee is challengeable by the donor.

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5 It was further submitted that, the appellant lied to Court when he stated that all the signatories to the deed signed it at chambers of Sebale-Lule advocates. The respondent testified in Court that, he signed deed of donation from his home and he did not rearl through it as he had an eye infection and was on treatment. He also stated that, he trusted his son and did not think he could do anything contrary to the instructions he had given him. It was argued that the deed of donation was invalid and the learned trial Judge rightly found so. 10

In response to grounds 2 and 5, it was contended that, the learned trial Judge properly evaluated the evidence and arrived at the right conclusion that the suit land was donated to the 2nd respondent and not the appellant. The donation was done way back in L996 and the 2006 deed was to confirm the donation. It was argued that, the appellant did not suffer any miscarriage of justice as he was not the intended donee. It was further argued that, the appellant had earlier on been the pastor of the 2nd respondent to whom the suit land had been donated and as such he was aware that there was no land available for further donations. lt was argued that the appellant instead fraudulently instructed the father's advocates to indicate a different donee on the 2006 deed of donation which was wrong.

It was contended that, the learned trial Judge was right not to make any adverse inferences against the late Muyizza from the fact that he instructed the appellant to pay the surveyors or for signing the transfer forms. The late Muyizza was under a mistaken impression that whatever he was doing was for the benefit of the 2na respondent. The mistaken impression was a result of the appellant's fraudulent conduct and as such he cannot benefit from such an act of fraud.

In reply to ground 3, it was submitted that, Exhibit D2 was procured through fraud, tricks and misrepresentati on and as such it was illegal and unlawful and the appellant also lied that the deed was signed in Kampala whereas not. It was argued that the fact that no claim of fraud was reported to the police does not exonerate the

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5 appellant from the fraud he committed. Counsel contended that the appellant's evidence was tainted with lies and inconsistencies and as such the learned trial Judge was right to ignore it.

In respect grounds 6 and 7, it was submitted that learned trial Judge did not formulate new issues as contended by the appellant. The issue at the trial was "To whom was did the first plaintiff donate the land ?". In order to resolve that issue the trial fudge had to determine the validity of the deed of donation since the appellant claimed to be the donee yet the donor disowned the donee therein. It was further submitted that in order to determine the issue of fraud, the learned trial Judge had to determine the validity of the deed of donation and the 1't respondent in his plaint prayed that the said deed be declared invalid.

In reply to ground 4, it was contended that the appellant did not illustrate or attribute any bias on the learned trial Judge. It was submitted that the trial ludge was not biased and the appellant's allegation remain u nsubstantiated.

In respect of the damages sought by the appellant, it was submitted that the appellant did not file a counterclaim at the trial Court and as such he is estopped from seeking for damages at this Court.

Counsel asked Court to dismiss the appeal with costs.

## Resol uti on

We have read the record of appeal and the submissions by the parties to this appeal. We have also read the authorities cited and relied upon by both Counsel.

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. See: Fr. Narcensio Begumisa & others vs Eric Tibebaaga, Supreme Court Civil Appeal No. 17 of 2002 and Uganda Breweries vs Uganda Railways Corporation, Supreme Court Civil Appeal No. 6 of 2001

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We shall therefore proceed to rcappraise the evidence and come to our own conclusion as required by law.

Ground 1., the learned trial Judge is faulted for having found that the deed of gift between the late Muyizza and the appellant was invalid and he accordingly ordered for cancellation of the appellant's name from the Certificate of title vide LRV 3013 Folio 10, Plot 20 Block 425 at Kyzrzanga because the all transaction was tainted by

fraud.

It is trite law that a certificate of title is conclusive evidence of the particulars contained in it and would entitle the registered proprietor to the estate it concerns. Such a registered proprietor is protected from any actions for ejectment save for exceptional circumstances, one of which is his or her fraud if that fraud deprived another person of his or her interest in the relevant properry. See: Section 59 and 176 (c) of the Registration ofTitles Act, Cap. 230.

The authorities on fraud require that fraud is attributable to the transferee and that such fraud is proved strictly, that is proved to a standard heavier than on a balance of probabilities ordinarily required in civil cases. See: Kampala Bottlers vs Damanico (U) Ltd, Supreme Court Civil Appeal No. 22 of 1992. By the relevant plaint, the following particulars of fraud were alleged against the appellant:

- instructing the lowyers to draft the deed in his names contrary to the directions of the 1't plaintiff. "i) - ii) lnducing the 7\* defendant to sign the purported deed of donation without allowing him to read through or without exploining to him (its) contents. - ii| Presenting a blank transfer form to the 7st plaintiff to sign purportedly in favour of the 2^a phintiff whereas not.

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- 5 iv) Causing the Commissioner for Land Registration to transfer the land into his names whereas as a member and a former pastor of the 2,d plaintiff he was fully aware of the 2na phinttffs interest in the land. - v) Picking the certificate of title from the surveyor without the plaintiffs' consent." - o 10 15 20 The learned trial Judge entered iudgment in favour of the respondents finding that there was not the slightest doubt that the appellant secured registration of the suit property in his personal names through fraud. The learned trial ludge premised the fore going findings on the evidence adduced for the plaintiff particularly the testimony of PW1 Samuel Muyizzi and PW3 Joseph Luswata. PW1 was the 1st plaintiff before he passed on. He testified in Court that the appellant was his biological son whom he had entrusted the process of ensuring a donation of the suit property to the 2nd respondent. He further testified that, the appellant had instead made the relevant donation to himself contrary to his directions given to him. The learned trial Judge was thoroughly impressed with the testimony of PWL, he stated as follows at page 120 of the record;-

"Court saw PWl. in the Court. It qssessed him to be an intelligent, steady and truthful person though he was of advanced age. His testimony was very calm and totally consisted (sic). He was biological father of the defendanL He expressed remorseful inner pain that he had been forced by the defendant's conduct to sue him in court of law. His evidence was believed by court to be entirely truthful. According to him he donated the suit property vide exhibit D2 in 1.996 to Bikaali Christian Fellowship. He confirmed the donation in 1999 vide exhibit P3, after the defendant had ceased to be the pastor of that church. The plaintiffs instruction to the defendant was to inform his advocates to prepore a formal deed of gift, inter vivos, to Bikaali Christian Fellowship. But instead, the defendant instanced the advocates to prepare the deed in favour of himself... "

=u( 5 10 os PW3 Joseph Lusrvata's evidence further enhanced the 2nd respondents' case. He testified that he was all advocate with the firm of advocates which prepared the deed of donation to the appellant and that he was well known to the 1st respondent and the appellant. PW3 testified that, the appellant went to his chambers asking him to prepare the relevant deed of donation in respect of the suit property. The appellant also presented to him alrcady signed transfer forms. PW3 testified that the appellant's instructions were at variance with his father' instructions which had been communicated to PW3 requesting that he prepares an agreement whereby the late Muyizza would donate land to their church. PW3 further testified that, the appellant presented GWAM church instead of the Zna respondent church as the church to which the suit property would be donated. This was clearly not the church which the late Muyizza intended to donate the suit property to but PW3 testified that he never bothered to cross check the information with his client.

20 It is our considered view that the evidence adduced for the respondents was sufficient to sustain the claim against the appellant and we find no reason to fault the learned trial Judge for finding as he did. The evidence showed that the appellant had fraudulently transferred the suit property against the interests and instructions of the late Muyizza. The appellant's evidence was largely untrue as the learned trial Judge noted that the appellant's propensity to lie was so deep-rooted in him and could not be exhausted. PW3's evidence crucially established that the appellant's allegations were untrue as far as he alleged that the late Muyizza and the appellant had gone to PW3's law firm to sign the deed of donation. PW3 established that the appellant had gone to the said law firm alone with blank transfer forms and instructions to sign a deed of donation to GWAM instead of the 2na respondent. In the view of the late Muyizza and PW3's evidence, such conclusions were iustified' Accordingly, we uphold the learned trial Judge's findings that the appellant procured the donation of the suit property to himself fraudulently and to cancel his name from the relevant certificate of title. o25 30

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The above findings would dispose of all the grounds 2, 3, 4, 5, 6, and 7 of this appeal. In the result, we maintain the findings of the learned trial judge.

This appeal fails and is hereby dismissed with costs to the respondents in this Court and the Court below.

We so order.

Dated at Kampala this $\frac{1}{4}$ $\frac{1}{4}$ $\frac{1}{4}$ $\frac{1}{4}$ $\frac{1}{4}$ $\frac{1}{4}$ $\frac{1}{4}$ $\frac{1}{4}$ $\frac{1}{4}$ $\frac{1}{4}$ $\frac{1}{4}$ $\frac{1}{4}$ $\frac{1}{4}$ $\frac{1}{4}$ $\frac{1}{4}$ $\frac{1}{4}$ $\frac{1}{4}$ $\frac{1}{4}$ $\frac{1}{4}$ $\frac{1}{4}$ $\ldots \ldots 2020.$

Kenneth Kakuru **JUSTICE OF APPEAL**

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### THE REPUBLIC OF UGANDA

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

### CIVIL APPEAL NO. 25 OF 2017

(An appeal from the Judgment and orders of the High Court of Uganda at Masaka before Hon. Justice V. F Musoke Kibuuka dated 29th November 2014 in Civil Suit No. 39 of 2006)

ARTHUR SSAJJABI==================================

#### **VERSUS**

1) CATHERINE NAMUTEBI MUYIZZI===============RESPONDENTS Administrator of the Estate of Samuel Muyizzi

2) BIKAALI CHRISTIAN FELLOWSHIP

CORAM: Hon. Mr. Justice Kenneth Kakuru, JA

Hon. Mr. Justice Geoffrey Kiryabwire, JA

Hon. Mr. Justice Christopher Madrama, JA

### JUDGMENT OF MR. JUSTICE GEOFFREY KIRYABWIRE, JA

#### **JUDGMENT**

I have had the opportunity of reading the draft Judgment of the Hon. Mr. Justice Kenneth Kakuru, JA.

I agree with his Judgment and I have nothing more useful to add. Dated at Kampala this. $27 + day of 765$ 2020.

the patro vise

HON. MR. JUSTICE GEOFFREY KIRYABWIRE JUSTICE OF APPEAL

.......................................

## 5 THE REPUBLIC OF UGANDA,

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

### CIVIL APPEAL NO 25 OF 2OL7

# (ARISING FROM THE HIGH COURT AT MASAKA IN MASAKA HIGH couRT CIVIL SUIT NO 039 OF 2006)

10 ARTHUR SSAJJABD APPELLANT

### VERSUS

- 1. CATHERINE NAMUTEBI MU\[ZZI} (Administrator of the Estate of Samuel Muyizzi) - 2. BAKAALT CHRISTTAN FELLOWSHIP) RESPONDENTS

1s Coram: Hon Mr Justice Kenneth Kakuru, JA

Hon Mr Justice Geoffrey Kiryabwire JA

Hon Mr Justice Christopher Madrama, JA

## JUDGMENT OF CHRISTOPHER MADRAMA IZAMA, JA

20 I have read in draft the judgment of Hon Mr Justice Kenneth Kakuru, JA and I agree with the facts and analysis of the issues. I however, would defer in the result for the reasons stated herein below. I dissent from the conclusion that the appeal be dismissed with costs but would order that the appeal partly succeeds for the reasons given below.

25 The foundation of 2nd respondent's claim is pleaded in paragraph 5 (a) of the Plaint as a gift inter vivos in 1996 to the 2nd respondent by Samuel Muyizzi (deceased), the biological father of the appellant. The estate of Samuel Muyizzi is now administered by the first respondent. The genesis is that the gift in issue as stated in the judgment of the High Court is said to

5 further gift of the same from his father the late Samuel Muyizzi. proceeding from those premises, I have examined the gift deed relied on by the 2nd respondent. It is a document dated 31't of August, 1996 it is written as follows:

Agreement for donation of land

- I Samuel Muyizzi (Kyengera) the owner of the land at Kyazanga, have donated all of the part of that land on the south side, minus one acre lengthwise, which is to be reserved for the construction of a roasted meat market, on the road to Mbarara. 10 - I have donated this land to enable the construction of a Bible College and other things. I have only donated it for the purpose of executing God's work-

I have vested the responsibility for this land with pastor Arthur Ssajjabi as the chairman.

I the donor of the land

(Signed by the donor) 20

The signature of the donor is witnessed by five witnesses inclusive of the appellant. The original document was written in Luganda and the above is a translation thereof by the Makerere University college of Humanities and Social sciences, Centre for Language and Communication Services. The question is whether the deed of donation is sufficient to transfer property and amounts to a gift inter vivos of registered land. It should be emphasised that the gift was for only the purpose of doing "God,s work.,, Did the donor retain residual proprietary Interest to enforce the purpose of the gift? According to Black's Law Dictionary 8,h Edition, an inter vivos transfer of property is a transfer of property made during the transferor's lifetime. Secondly, the term "gift" connotes the voluntary transfer of

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10 as the chairman? There is clearly an implied trust vesting responsibility of the property on the appellant to ensure inter a/ia the implementation of the purpose of the gift. These purposes include the purpose to build a bible college and to do God's work. There was obviously no formal conveyance of the property to the second respondent. The second respondent as an unlimited incorporated company was not even mentioned in the deed. 5

Halsbury's Laws of England; Fourth Edition Reissue Volume 20 paragraphs 1 and 2 inter-alia provided that:

Kinds of gift inter vivos. A gift inter vivos may be defined shortly as the transfer of any property from one person to another gratuitously while the donor is alive and not in expectation of death. It is an act whereby something is voluntarily transferred from the true owner in possession to another person with the full intention that the thing shall not return to the donor. ...

2. Modes of making gifts. A gift inter vivos may be made in any of the following three ways (1) by deed or other instrument in writing; (2) by delivery in cases where the subject of the gift admits of delivery; and (3) by declaration of trust, which is the equitable equivalent of a gift.

Halsbury's laws of England (supra) in paragraph 29 provides for deed or instrument in writing as follows:

> 29. Land. In general a legal estate in land can be granted by deed only, but where land is held in trust the grant of the beneficial interest in it can be made by writing signed by the grantor.

I noted that the sections of law referred to in Halsbury's laws of England (supra) that deal with the formalities required for a deed are statutory and under the Law of Property Act 1925 of the United Kingdom. The equivalent

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- 5 the land on the Southside. Literarily the land was donated for the purpose of building a Bible College and other things and only for the purpose of executing God's work. Who was supposed to execute God's work or build the Bible College? The responsibility to carry out the wishes of the donor was vested in the appellant. - 10 what can be gleaned from the proceedings in High Court Civil Suit No 39 of 2006 is that the l-'t plaintiff is the donor who together with Bikaali christian Fellowship filed a suit against the appellant for declaration that the deed of donation between the first plaintiff and the defendant (who is the appellant herein) purporting to be made in relation to the land 1s comprised in LRV 3013 Folio 10 to the defendant (the appellant herein) is invalid and for cancellation of the defendant's name from the certificate of title. The suit was further for a declaration that the land belongs to the second plaintiff (the second respondent) in the above named Christian Fellowship. The second plaintiff was described as an unlimited liability zo company duly registered under the Companies Act. After describing the land, the plaint discloses prima facie that the first plaintiff donated the land to the church. Secondly, the defendarrt who is now the appellant was the pastor thereof. The plaint further discloses that the property had not been transferred until the alleged fraudulent transfer to the appellant.

25 The learned trial judge found that the donor had intended to execute a formal deed of donation but the appellant instead had the deed executed in his own favour hence the allegation of fraud. It is therefore clear from the judgment that the learned trial judge held that the deceased never made a formal transfer of the property to the second respondent. The learned trial 30 judge issued a declaration that the deed of gift between the plaintiff and the defendant (the appellant) dated 15th May, 2006 is invalid. It followed that the transfer of the property to the appellant to this appeal is also invalid. I agree with the decision of my learned brother Justice Kenneth

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leasehold interest. There are however no words that suggest that the property the subject matter of the written instrument of donation is leasehold interest. Secondly, as noted above, the extent and size of the land donated is not indicated. What was donated was the South side of the land. What does this measure up to in terms of area covered?

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- I further note that the land law after the promulgation of the 1995 10 Constitution created an imperfect situation which left the leases granted out of public land in an indeterminate state with a right of the lessees of the former Uganda Land Commission to convert them into freehold. That right is only a right to make the necessary application to convert the former leasehold interest to freehold. What is the status of the land before 15 conversion into freehold? The land was no longer vested in the Uganda Land Commission but in the District Land Boards to hold in trust for the owner. The status of the leasehold was transient until and unless converted. - The new system of land law was ushered in by Article 237 of the Constitution of the Republic of Uganda which article vested land in the 20 citizens. Yet previously land was vested in the Uganda Land Commission by virtue of the Public Lands Act, 1969 and the Land Reform Decree 1975. Article 237 (5) of the Constitution of the Republic of Uganda provides that any lease which was granted to a Ugandan citizen out of public land may be converted into freehold in accordance with a law to be enacted by 25 Parliament. The second respondent relied on an imperfect deed of donation made by Samuel Muyizzi (deceased) in 1996 after the enactment of the Constitution of the Republic of Uganda in October 1995 but before the enactment of the Land Act 1998. The clear intention of legislature is to confer freehold title on the former lessees of Uganda Land Commission 30 upon application to convert to freehold interest. It may therefore be argued that the donor had proprietary rights and the covenants in the lease do not apply. The problem with such an interpretation is that the certificate of title

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- 5 deed is held to be valid, it clearly only applies the terms written therein. The donor could not ament it neither can the second respondent so as to exclude the appellant. Under the deed the "responsibility of the land vested" in Arthur Ssajjabi. - In the premises, I would find that the subject matter of the suit can only be the Southside of the suit property and excludes 1 (one) acre lengthwise. Secondly, the rest of the property vests in the estate of Samuel Muyizzi to be administered as part of the property for the benefit of the lawful beneficiaries thereto. Thirdly, I agree that the transfer of the suit property to the appellant should be cancelled as directed by the trialjudge. That part of the appeal as challenges the cancelation of title ought to fail. How the responsibility of the land shall be vested in the appellant has to be determined between the parties and was not part of the suit. 10 15

I further agree that the learned trial judge misconstrued the evidence on record and arrived at an erroneous decision to transfer the property to the second respondent. The evidence which the learned trial judge agreed with clearly shows that the instrument on which the respondents rely demonstrate that the responsibility of the land was vested in the appellant. In the premises ground 5 of the appeal is allowed.

In the final result, I would partly allow the appeal on grounds 5 and 7 of the appeal with one half of the taxed costs to the appellant.

Dated at Kampala ,n"!?ffi of February,2020

er Madrama Izama

Justice of Appeal

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