The Administrator of the Estate of the late George William Kabugo v Twinobuhugiro (Civil Appeal 55 of 2016) [2024] UGCA 101 (8 May 2024)

Full Case Text

## THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT I(AMPALA

# CML APPEAL NO. 55 of 2OLG

(Coram: Cheborion, Mugenyi & Gashirabake, JJA)

The Adminlstrator of the Estate of the late George William Kabugo.......... Appellant

### VERSUS

1. Dr. lbinobuhugiro Aska

2. Christopher Kyanku

3. Jane Kyanku ......... Respondents (Appeal from the decislon of the Htgh Court of Uganda (Basha;tJa , J) ln Consolldated Mlscellaneous Appllcatlon IVo. 8O9 of 2072 and 279 of 2O75)

### JUDGMENT OF CHEBORION BARISIIAKI, JA.

## Introduction.

- 1. This is an Appeal against the ruling of the High Court by Justice Bashaija K. Andrew dated 30ft November, 2015, in HCMA 279 of 2OLS and in HCMA 809 of 2Ol2 as consolidated for disposal. - 2. Before the High Court, the Respondents, by motion, moved Court to review of a ruling by Judge Percy T\rhaise (as she then was) dated 27hJune,2OL 1 by which land was vested in the Appellant vide HCMC 07 of 201 1.

# Background to the Appeal.

- 3. Upon perrrsing the Court record and submissions of Counsel for the parties, it is apparent that the documented facts that led to this Appeal are, largely, uncontested. - 4. The record shows that in the 1990s until the year 1998, a one George William Kabugo purchased from a one Emmanuel Mukiibi Nsakabwa, in his capacity as the administrator of the estate of the late Gideon Mukiibi Nsalabwa, land measuring, approximately three acres at Buddo, Nakiragala, Naggalabi. - 5. The said Kabugo was, by the representations made to him by Emmanuel Mukiibi Nsalabwa, meant to believe that the land which he was buying was comprised in Busiro Block 351 Plot 14 at Buddo. According to their conveyance contract, George William Kabugo, the purchaser of the land, was to be given a certificate of title to the land which he had bought from Mukiibi Nsalabwa upon satisfying the entire consideration for the acquisition of the land. - 6. It is not disputed that George William Kabugo satisfied all the consideration for the purchase of the land. However, by the year 2000 when he died, the late Kabugo had not received the promised certificate title to the land which he had purchased from Emmanuel Mukiibi Nsalabwa. - 7. T}:.e late Kabugo's wife, Juliet Kabugo, obtained probate and administration powers over the estate of the late George William Kabugo in 2009. It appears that, by her acquired office, she requested Emmanuel Mukiibi Nsalabwa to know, not only the whereabouts of the land which the late Kabugo had purchased, but to also be handed the certificate of title to the said land. Her requests were not granted.

- 8. The Appellant then carried out a search in the land registry for land in the locality of Buddo - Nakiragala with particulars of her late and discovered that the land which was comprised in Busiro Block 351 Plot 36 at Buddo belonged to her late husband. - 9. She learnt from the search that Emmanuel Mukiibi Nsalabwa had started selling off part of the land and a most recent transaction was mutation on Plot 36, the residue to Emmanuel Mukiibi Nsalabwa's name was comprised in Busiro Block 351 Plot 604 at Buddo. - 10. Juliet Kabugo registered her late husband's estate's claim on that residue in form of a caveat dated Sft March , 2OlO. At the time when the said caveat was lodged, there was no other encumbrance registered on land comprised in Busiro Block 351 Plot 604 at Buddo. - 11. She sought for a vesting order of three (3) acres of land to be curved out of the suit land. The motion was filed on the 25ft January, 2oll vide H. C. M. C. No. 07 of 20 1 1 against Emmanuel Mukiibi Nsalabwa the registered proprietor of the suit land. - 12. Although Emmanuel Mukiibi Nsalabwa was served with the process of Court for the motion, he did not respond to the summons. The motion was, determined ex parte by Hon. Percy Ttrhaise J. and in her ruling she vested three (3) acres of part of the suit land which was comprised Busiro Block 351 Plot 604 into the administrator of the estate of the late George William Kabugo - the Appellant. The vested portion of the land is described as Busiro Block 351 Plot 91 1 at Buddo. - 13. The Respondents challenged and sought a review of the vesting order in HCMC OT of 2}ll. Justice Bashaija allowed the

application for review and set aside the orders of Hon. Percy T\rhaise J. The Appellant was dissatisfied hence this Appeal.

- 14. The Appeal is grounded on the memorandum of Appeal with nine (9) grounds: - 1. Tlrc learned trial judge erred in laut and fact when lrc omitted to consider and to pronounce himself on the implications of the caueat that was lodged by the Appellant and that was in existence on the certifi.cate of title against which a uesting order u.ras issued, before the Respondents euer aquired their said interest in same land; - 2. Th.e leamed trial judge ered in law and in fact when he lrcld that the Respondents were aggieued persorus and, th.erebg, their applications were competent for reuiew; - 3. Th.e learned trial judge erred in law and in fact uthen h.e held thnt, contrary to the principles of natural justice, the Respondents were not h.eard in the proceedings leading to the grant of the uesting order; - 4. The learned trial judge ered in law and in fact uhen he held that the Respondents were and are in ocatpation of the suit land; - 5. TLrc learned trial judge erred infact when he held thot the ocanpation of the land in dispute bg the Respondents utas not dispttted bg the Appellant; - 6. The learned trial judge ered in law and fact when he Lrcld ttwt there u)as an error apparent on the face of the record in the proceedings leading to the grant of the uesting order to the Appellant;

- 7. Tlp learned trial judge ered in laut wh.en lrc wrongly held thnt th.ere emerged neut euidence which at the time of the issuance of the uesting order was not utithin the knouledge of the Court; - 8. The learned trial judge erred in law uthen he arriued at a ruling based on euidence supplied bg the Respondents wLrcn theg were not proper parties for an application for reuieut of HCMC No. 07 of 2O11; - 9. Tlrc learned trial judge erred in law and fact when he reuiewed the preuious proceedings of Court and set aside the uesting order that had earlier been issued by the high Court of Uganda without affording the Appellant an opportunity to be heard.

### Representation.

15. When the Appeal was called for hearing, Peter Allan Musoke appeared for the Appellant while Godfrey Rwalinda appeared for the Respondents. Counsel filed written submissions

# Duty of the Court.

16. The law enjoins this Court on a first Appeal to review and reevaluate the evidence as a whole, to scrutinize it, to draw its own inferences and to come to its own conclusion on the matter. This duty is set out in Rule 30(1)(a) of the rules of this Court and was expounded upon in Ktfamunte Henry os. Uganda" Sluprenc Court Crlmlnal Appal No. 70 of 1997

### Analysis.

### Ground No. 1.

- 17. Counsel for the Appellant submitted that under the Torrens system of land registration, a caveat is a formal warning of an unregistered interest in land. That once a caveat was lodged with the registrar of titles, that notice prevented the registrar from recording any other dealing affecting the estate or interest claimed. - 18. Counsel cited Sections 1 (g) and 139 of the RTA and submitted that upon registration of a caveat on any registered land, the caveator is deemed to have put to notice every person that intends to transact on the said land that the caveator has interest in the said land and any transaction or dealing being carried out on the said land is subject to caveator's interest; with the exception of such transactions or dealings that are registered with the consent of the caveator. - 19. It was the Appellant's case that once the Appellant lodged a caveat on land comprised in Busiro Block 351 Plot 604 on the Str day of March 2OlO an alert was given to the entire world of the late Kabugo's interest in the land. - 20. Counsel adverted that the Respondents who purported to acquire interest in the subject land while the Appellant's caveat subsisted did not acquire any interest in the impugned and if they did, their interests were subservient to the Appellant's claim. In his view, had the trial judge examined the import of the Appellant's caveat on creating interests in the suit land as a measure leading up to the vesting order, the Court would have

found that there was no ground for reviewing the orders in HCMC 07 of20ll.

- 21. Counsel for the Respondents submitted that the issue of a caveat by the Appellant was immaterial in determining the motion for review because the Appellant lodged the caveat on Busiro Block 351 Plot 604 whereas she had interest in Busiro Block 351 Plot 14 and this could not confer upon her any interest in Plot 604. - 22. Counsel argued that the Appellant did not have any caveatable interest in Plot 6O4. Counsel referred to Sec.139 of RTA to support his submission that a caveat doesn't give any proprietary interest to anybody but is only used to protect a person who has interest in the land from being affected in case any transaction is carried out on that caveated land without the permission of the caveator. - 23. According to Counsel, acquisition and occupation of Plot 604 by the Respondents could not be stopped by the caveat of the Appellant because she had caveated the land well knowing that the Respondents were in occupation of the same and after caveating sought for a vesting order without making the Respondents parties. - 24. ltwas contended for the 1st Respondent that he had acquired an equitable interest on the suit land through a barter exchange from a one Betty Byamugisha before the Appellant's caveat was lodged. - 25. ln rejoinder Counsel submitted that there was no evidence of the allegation imputed on the said Betty Byamugisha. According to

Counsel for the Appellant, a perusal of the agreement by which the 1st respondent purports to have acquired an interest on the disputed land from the said Betty Byamugisha. The said agreement was executed on the 11ft day of June, 201lwhen the Appellant's caveat was already lodged on 5ft day of March, 2OlO; the said agreement does not indicate any description of the land for which it was being made.

- 26. Counsel for the Appellant further rejoined that submitted that, during cross examination, the lst respondent confirmed carrying out a search on land comprised Busiro Block 351 Plot 604 prior to entering into any transaction or dealing regarding the suit land which revealed to him that the said land was caveated by the Appellant; nonetheless, he proceeded to enter into a transaction with Betty Byamugisha on the same land. - 27. lt was submitted for the Appellant that the lst respondent's testimony on oath that he searched the register of land prior to acquiring interest in the suit land, when considered on its own, diminishes the contention which was made by Counsel for the Respondents that the lstrespondent had acquired interest in the suit land sometime in 2006, before the Appellant lodged her caveat. - 28. Against the 3'd respondent's claim, Counsel for the Appellant argued that she testified that she bought portions of the land in issue by five agreements dated 1lft October 2OIO, 24frl August 2OlO,27ftAugust 2010, 31st May 2OLO,Sft October 2O10, and 20ft August 201 1, respectively. Counsel for the Appellant, while relying on the testimony of the 3.d respondent during cross examination, submitted that the 3td respondent, too, confirmed to the trial Court that she went to the land registry with her lawyer before purchasing the disputed land and carried out a

search on the suit land. The search revealed to her that the Appellant had a caveat lodged against the suit land.

- 29. I note that the 2.d respondent neither swore an affidavit nor testified before the High Court. - 3O. Before it pronounced its ruling on the motions for review, the trial Court noted that the Appellant had caveated the suit land before she moved the same Court for a vesting order. It is a procedure of law that a matter upon which a decision has been rendered by a Court of law ffioy, within legally settled parameters, be re-examined by the same Court to ascertain whether there is a good reason to reopen the case, or to vary its decree or orders. - 31. The trial Court failed to take into consideration the import of the Appellant's caveat on the suit land as against the claims made by the Respondents on the same land, before setting aside the vesting order made in favour of the Appellant in violation of Order 21 rrrle 5 of the Civil Procedure Rules. I therefore, do not agree with the Respondents' submission that the question of the caveat was immaterial to the determination of the motions for review.

32. S. 139 of the RTA; It provides:

### 139. Caveat may be lodged and withdrawn

'Any benellclary or other person claiming any estate or interest in land under the operatlon of thls Act or ln any lease or mortgage under any unreglstered lnstrument or by devolutlon ln law or otherwlse may lodge a caveat wtth the reglstrar in the form in the flfteenth schedule to this Act or as near to that as clrcumstance permlt, forbiddtng the registratlon of any person as transferee or proprietor of and of any instnrment affecting that estate or lnterest untll after notlce of the intended reglstratlon or deallng ls glven to the caveator or unless the lnstrument is expressed to be subJect to the claim of the caveat as is required in the caveat, or unless the caveator consents in writing to the reglstration'

33. In deciphering the import of S. 139 RTA to dealings with land against which a caveat subsists, I am persuaded by the dictum in Me. Klllop & BenJafield. Vs. Cltarles I. Alcxander (7972) 45 S. C. R 55I where, while applying a provision of 1aw which was in pari materia to our own S. 139 RTA, the Supreme Court of Canada had this to say:

"The lodging of a caueat in the titles offie in which the title to the lands in question is registered, preuents the acquisition of any legal or eEtitable interest in the lands aduerse to or in derogation of the claim of the caueator...

......a caueat once properlg lodged preuents th.e acquisition or the bettering or increasing of ang interest in the land, legal or equitable, aduerse to or in derogation of the claim of the caueator - at all euents, as it exbts at the time when the caueat is lodged."

34. In Attorneg @neral -as- Henleg Propertg Deuelopers Llmlted, CAU, l\Io. 421 of 2027, in as far as the torrens system of land registration relates, once the caveat was lodged by the Appellant in the registry of lands, it operated as a notice to all persons and for all purposes connected with the suit land of the Appellant's interest in that land as from the time and date of the registration of the caveat and for so long as the registration subsisted. Therefore, unless released or withdrawn by a caveator of their own accord, or vacated pursuant to an order of a Court under section 140 of the RTA, no legitimate interest may be acquired in any land while a caveat, or for that matter while any lawful encumbrance subsists thereon; certainly no interest may be

acquired in land that ranks superior to the interest indicated in a subsisting encumbrance; See Rzral Deuelopnrcnt Corporatlon Ltd. n Bo;nk of Credtt & Another (S. C. Z. Jttdgrncnt 8 of 1984 [1984 ZMSC 74 and Coryrus l\*gal Praatltloners V. Mutana Danl HoLdfllgs Ltmtted (Appeal No. 734/2O1O) [2014] ZMSC 737.

- 35. I am inclined to believe Counsel for the Appellant submission that the Respondents having carried out due diligence characterizedby searches on the register of lands which revealed to them that the land where they wished to acquire interest was encumbered by the Appellant's caveat, they were put to notice that the Appellant had an interest in the suit land and any dealing in the suit land while that caveat subsisted, and without seeking the Appellant's consent meant that the Respondents' interests in the suit land would, in the least, be subject to the Appellant's interest in the same land and could only be diminished at the Appellants instance. - 36. I therefore, find that while considering whether or not to review the orders of the Court in HCMC OT of 2OII, the trial judge erred when he failed to take into account the import of the caveat that had been lodged by the Appellant. - 37. Persuaded by the ratio decidendi in McKlllop & BenJafieW (supra), I further find that the subsistence of the Appellant's caveat against the suit land negated the effect of whatsoever transactions or dealings that the Respondents conducted with regard to the suit land.

Ground 1 succeeds.

## Ground No. 2.

- 38. On this ground, Counsel for the Appellant submitted that the Respondents were not aggrieved persons within the meaning of section 82 of the Civil Procedure Act (CPA) read together with Order . 46 r. 1 Civil Procedure Rules (CPR) and for that reason their application for review of the Court order in HCMC No. 07 of 2OLl was incompetent and should have been dismissed. - 39. He relied on the decision in Mohamed Allibhai -vs- W. E. Bukenya Mukasa & Another SCCA No. 56 of 1996, to support his argument that, an aggrieved person for purposes of section 82 (b) of the CPA is one who has suffered a legal grievance and that the determination of whether a person is aggrieved or not, depended on the peculiar circumstances of each case. According to Counsel the Respondents were not parties to HCMC OT of 20ll and did not qualify to seek a review of the orders therein, do so they were required to show, pursuant to section 82 (b) CPA, that they had suffered legal grievances on account on the vesting order. - 40. Learned Counsel argued that the vesting order vide HCMC 07 of 2OLl was made pursuant to section 166 of the RTA and that the registered land under the RTA, the law required that the mover of the motion for the vesting order had to prove to the High Court, as against the registered proprietor, that she was a trustee of the estate or interest within the meaning of the law relating to trusts and trustees, and that the motion was made against the registered proprietor of the subject land in the absence of any registered adverse and superior claim against the land in question. In his view the Appellant satisfied all those conditions.

- 41. While referring to sections 48 and 54 of the RTA, Counsel for the Appellant argued that the Respondents could only have become aggrieved parties if they had any legal and existing claims which ranked higher in registration to the caveat of the Appellant, but that there were none. - 42. It was, further, argued for the Appellant that at the time when the Appellant instituted HCMC No. 07 of 2011, Emmanuel Mukiibi Nsalabwa was the registered proprietor of the suit land and there was no adverse registered claim against the said Emmanuel Mukiibi Nsalabwa, but for the Appellant's caveat. That the only claims to which the Appellant's vesting order could be subjected to would be the unregistered equitable claims which existed before the Appellant lodged her caveat but none were shown exist. - 43. The Respondents admitted during cross-examination, that when they carried out searches at the land registry before they engaged in their respective transactions, they discovered that the land they intended to purchase was encumbered by the Appellant's claim yet they ignored the caveat. - 44. ln response to ground 2, Counsel for the Respondents supported the conclusion which was reached by the trial judge that the Respondents were in occupation of the suit land by the time they were served with the vesting order in favour of the Appellant. That for that reason the Respondents were aggrieved persons because they had not been heard before the vesting order was granted to the Appellant. - 45. To determine whether the Respondents were aggrieved persons so as to qualify to apply for review and to warrant a review of the vesting order, it is imperative to examine S. 82 of the CPA and Order 46 r. 1 CPR against the facts at hand.

Section 82 CPA provides, thus:

'82. Review.

Any person considering himself or herself aggrieved-

(al by a decree or order from which an Appeal is allowed by this Act, but from which no Appeal has been preferred; or

(bl by a decree or order from which no Appeal is allowed by this Act,

may apply for a review ofjudgment to the Court which passed the decree or made the order, and the Court may make such order on the decree or order as it thinks lit."

Section 82 CPA is operationaJized by Order 46 rule 1(b) and it provides:

"1(al.......

- (bl by a decree or order from which no Appeal is hereby allowed, and who from the discovery of new and important matter of evidence which, after the exercise of due diligence, was not within his or her knowledge or could not be produced by him or her at the time when the decree uras passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him or her, may apply for a review of judgment to the Court which passed the decree or made the order.tt - 46.1 agree with the trial judge's appraisal of the phrase "any person considering himself aggrieved" as it was considered in Mohamed. Alllbhat -as- W. E. Bukenga Muka.sa & Anotler SCCA No. 56 of 1996 to mean a person who has suffered a "legal grievance". And as correctly restated by the trial judge, "legal grievance" was considered in

Ex parte Side Botham in Re Side Botham (1880) 14 Ch. D 458 at **465 per James L. J.** thus:

"But the words "person aggrieved" do not really mean a man who is disappointed by a benefit which he must have received if no other order had been made: A person aggrieved must be a man $\alpha$ who has suffered a legal grievance, a man against whom $a$ decision has been pronounced which has wrongfully deprived him of something, or wrongfully affected his title."

- 47. It is therefore, clear that the phrase "person aggrieved" is of a wide import; thus, In **Attorney General of Gambia vs. N'jie [1961] AC p 617 at page 634, Lord Denning** Court aptly elucidated, thus: "The definition of James L. J. is not to be regarded as exhaustive." Lord Esher M. R. pointed out in ex parte.... Official Receiver in Re Reed Bowen & Company that the words "person aggrieved" are of wide import and not subject to a restrictive interpretation. They do not include of course a mere busy body who is interfering in things, which do not concern him, but they do include a person who has a genuine grievance because an order has been made which prejudicially affects his interests." - 48. In Mohamed Allibhai -vs- W. E. Bukenya Mukasa & Another SCCA No. 56 of 1996, the Court included within the description of an aggrieved person;

"A person aggrieved means a person who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully affected his title to something......"

49. The question therefore, to answer is whether, the Respondents were wrongfully deprived of land or wrongfully affected by the vesting order so as to warrant the reopening of the proceedings by which the vesting order was granted through the procedure of review and to have the vesting order set aside.

50. In my view the answer to that question lies in the process leading up to the motion for the vesting order which was the subject of challenge in the review proceedings. The record reflects that after registering her caveat the Appellant moved the trial Court under Section 166 of the RTA for a vesting order. The section provides; Section 166 Registrar to carrlu out order vesting tnrst estate.

a(lf Whenever any person interested in land under the operation of this Act or any estate or interest in the land appears to the High Court to be a tnrstee of that [and, estate or interest within the intent and meaning of any law for the time being in force relating to tnrst and tnrstees, and any vesting order is made in the premises by the High Court, the registrar, on being senred with the order or an oflice copy of the order, shall enter in the Register Book and on the duplicate certificate of title and duplicate instrument, if any, the date of the order, the time of its production to him or her, and the name and addition of the person in whom the order purports to vest the land, estate or interest; and upon the date of that registration as defined in section 46(31, that person shall become the transferee and be deemed to be the proprietor of the land, estate or interest.

(21 Unless its reglstratlon ls effected, the order shall have no effect or operatlon ln transferring or othenrlse vestlng the land, estate or lnterest.'

51. Having determined that the caveat that was lodged by the Appellant was sufficient notice to the Respondents against their desired interests in the suit land, I will for completeness of consideration of the Appellant's caveat and the Respondents' suggested acquired interest in the suit land consider the provisions sections 48 and 54 of the RTA. The two sections provide;

(48. Inetruments entltled to prtortty accordlng to date of reglstration.

(U Every lnstnrment, exceptlng a transfer, presented for reglstration may be ln duplicate and shall be reglstered in the order of and as from the tlme at whlch the lnstrument ls produced for that purpose, aad lnstruments purporttng to affect the same estate or lnterest shall, notwlthstandlng any actual or constnrctlve notlce, be entitled to prlortty as between themselves according to the date of reglstratlon and not accordlng to the date of the lnstnrment.

(21 Upon the reglstratlon of any instrument not in duplicate, the reglstrar shall flle and retaln tt ln the ofllce of tltles, and upoa the registratlon of any lnstrument ln duplicate, the reglstrar shall flle one orlginal and shall dellver the other, hereafter called the duplicate, to the person entltled to it."

454. Instnrments not effectual until registered.

No lnstrument untll registered in the manner hereln provlded shall be effectual to pass any estate or lnterest ln any land under the operatlon of thls Act or to render the land liable to any mortgage; but upon such registration the estate or lnterest comprlsed in the instmment shall paas or, as the case may be, the land shall become liable in the manner and subJect to the covenants and conditions set forth and specifled in the lnstmment or by this Act declared to be lmplled ln instnrments of a llke nature; and, if two or more instnrments slgned by the

same proprietor and purporting to affect the same estate or interest are at the same time presented to the registrar for registration, he or she shall register and endorse that instnrment which is presented by the person producing the duplicate certiflcate of title. D

- 52. The cited provisions highlight when and how the Respondents, would, but for the subsistence of the Appellants caveat, have acquired interest in the suit land as to be capable of being wrongfully deprived of it, or being wrongfully affected by the vesting order. The evidence shows that the Respondents overlooked the caveat. There is no credible evidence that the Respondents had any interest in the suit land before the Appellant lodged her caveat; even if they did, which this Court has been unable to find, the only means by which those interests would supersede the Appellant's interests in the suit land would be if, such interests had been registered prior to the Appellant's caveat and in accordance with section 48 of the RTA and section 54 of the RTA. - 53. I therefore, find that the Respondents could not have been aggrieved persons since at the time they purported to acquire their respective interests in the suit land, the Appellant had already put them on notice and any other person for that matter who had intension to transact on the suit land, that she had an interest in the same and that transaction could only be carried out with her consent. - 54. At law, the proprietor's title was, until and or unless the caveat was released, subject to the caveator's interest that was specified in the memorandum of the caveat. - 55. When the decision of this Court in Rutungu Propetties Limited V. Linda Harriet Carrington & Harriet Kabagenyi CACA 61 of ?OLO is applied to the circumstances of this Appeal, it follows that when the Appellant instituted HCMC No. 07 of 2O11, she was, simply, taking steps to prove the claim of the late Kabugo's estate in the suit land against Emmanuel Mukiibi Nsalabwa.

- 56. With regard to the vesting order which was granted to the Appellant, when I consider how, in law and in relation to the facts of this Appeal, a person becomes legitimately aggrieved, my conclusion is that the Respondents cannot be said to have suffered any legal grievance against the vesting order of the Court. Therefore, they were not, and are not, aggrieved persons so as to have had locus standi to challenge the vesting order that was granted to the Appellant vide HCMC No. 07 of 20ll against the Emmanuel Mukiibi Nsalabwa as the registered proprietor of the suit land. With respect, had the trial judge addressed his mind to the question of the caveat and to the effects it had on all transactions that were completed while it subsisted, and completed without the consent of the caveator (the Appellant) the judge would have found that, in the circumstances of this case, none of the Respondents qualified as an aggrieved person at law so as to warrant the acceptance of their motions to review the orders of Hon. Percy T\rhaise J. - 57. Ground 2 therefore, succeeds.

## Ground No. 3.

58. Learned Counsel for the Appellant referred to Article 28 (1) of the Constitution of the Republic of Uganda and submitted that taking into account the nature of the case which the Appellant instituted in HCMC No. 07 of 2O11, the Respondents were not, and could not be, proper parties to that suit, so as to participate in the hearing of the said matter. As a result, Counsel argued

that, the Respondents could not be said to have been condemned unheard; therefore, Hon. Percy Ttrhaise J (as she then was) did not offend the rules of natural justice and cannot be said to have condemned the Respondents without a hearing, as it was deduced by the trial judge. Learned Counsel contended that, to determine whether the Respondents could have been defendants to HCMC No. 07 of 2O1 1 so as to be said to have been condemned unheard, it is important to enumerate who can be a defendant to a suit.

- 59. In that regard, he referred to O. 1 r. 3 CPR and to Ismail Senrgo V. Kampala City Council & The Attorney General of Uganda, SCCA No. 2 of 1998 and argued that it is against that rule of procedure as was expounded on in Ismail Serugo that a cause of action against a defendant would be measured and comprehended to exist; accordingly, he submitted, the plaintiff should have enjoyed a right, that the right should have been violated, and that the defendant was liable for the violation. To his mind Counsel for the Appellant surmised that, HCMC No. 07 of 2O11 having been a motion by the Appellant, as administratrix of the estate of the late George William Kabugo - the purchaser, for a vesting order pursuant to section 166 of the RTA for three acres of land which was comprised in Busiro Block 351 Plot 604 at Budo against Emmanuel Mukiibi Nsalabwa, the registered proprietor and the vendor, there was no legal avenue through which, in the absence of any registered legal interest by the Respondents in the suit land and or of any lawful competing claim by the Respondents against the Appellant's claim, the Respondents could or would be made parties to HCMC 07 of 2OIl. - 60. Furthermore, Counsel submitted that, at the time the lst respondent purported to acquire his alleged interest in the suit

land on the lltn day of June, 2OLl, the Appellant had already filed HCMC No. 07 of 2OlL and the same was awaiting judgement which was delivered on the 276 June 2OlI. He wondered, how then the lst respondent would be heard in proceedings that transpired when his supposed interest in the suit land was acquired after the arguments for HCMC 07 of 2OLl had been closed and when the parties, thereto, were awaiting the decision of the Court.

- 61. In as far as the 3td respondent was concerned, Counsel submitted that it was her testimony that before allegedly purporting to acquire an interest in land comprised in Busiro Block 351 Plot 604, she carried out a search at the land registry which revealed to her that the suit land had an encumbrance on it by the Appellant, but she proceeded to enter in a transaction on the suit land with the registered proprietor without either obtaining the consent of the Appellant, or of notifying her. Counsel, further, wondered why Emmanuel Mukiibi Nsalabwa who was a party to the suit did not inform the Respondents to whom he was vending the encumbered land that the suit land was a subject of legal proceedings. - 62. It ought to be noted that learned Counsel for the Respondents submitted on grounds 3, 4,5,6,7, and 8, concurrently. In doing so, learned Counsel largely reproduced and referred to excerpts from the ruling of the trial Court for the view that the trial Court was justified in its findings. With particular reference to ground 3, I understood learned Counsel to have submitted that the trial judge found that the Respondents were occupying the suit land at the time of pronouncement of the order vesting the land in the Appellant, and that that sufficed to necessitate them being parties to HCMC 07 of 2oll.

- 63. In my consideration of the facts in this Appeal, I am persuaded by the submission of Counsel for the Appellant on this ground, too. The question of whether the Respondents ought to have been heard, not only had to pass the test of the Appellant having a cause of action against them, but, also, transcended into whether the Respondents had interests to the suit land that ranked higher than the Appellant's claim as to require a harmonisation by the Court and if any, how and when such interests had been acquired. - 64. Article 28 (1) of the Constitution which enshrines the right to a fair hearing provides, thus:

## 28. Right to a fair hearlng.

(lf In the determination of civil rtghts and obligations or any criminal charge, a person shall be entitled to a fair, speedy and public hearing before an independent and impattial Court or tribunal established by law.

- 65. From the provisions of Article 28(ll, it is evident that for one to be heard in a resolution of a civil dispute, that person must have a civil right violated or a civil obligation that is in question, which they neglected, or omitted. - 66. Thus, Order 1 rule 3 provides:

3. Who may be joined as defendants.

"All persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether Jointly, severally or in the alternative, where, if separate suits were brought against those persons, any common question of law or fact would arise."

67. It follows, therefore, that the Appellant could, only, have included the Respondents as defendants in HCMC 07 of 2OII, if she had a right of relief against them in relation to the conveyance agreement for suit land which was concluded between the late Kabugo and Mukiibi Nsalabwa and, thus, on account of which the vesting order had been sought by the Appellant against Mukiibi Nsalabwa under section 166 of the RTA. In view of my consideration while determining ground 2, above, there is no doubt to my mind that, there was no sufficient legal grounding and logical legal nexus between the motion for a vesting order which was made by the Appellant against Mukiibi Nsalabwa and the Respondents, as to render the Respondents relevant in proportion to the vesting order which was sought of the Court in HCMC OT of 2oll.

68. While considering Ismail Senrgo V. Kampala City Council & The Attorney General of Uganda, the Supreme Court followed the dictum of the Court of Appeal of Eastern Africa in Auto Garage vs. Motokov (No.3f (19711 E. A 514 at page 519 where, after reviewing a line of precedents, SPRY V. P. put it thus:

6I utould, summat'lse tlrc poslttott q: I see fit) bg saglng tlrut tf a plalnt shours that the plalnttff enJoged a ,'lght, that the rlght ha.s been ololated and that tlw defendant ls lla.ble, then, ln mg oplnlon, a cause of actlon has been dlsclosed and ong omiss{on or defect mag be anended. If onthe otlrcr ltand,, ang of those essentlals is missfng, no cause of o;ctlon ha,s been shoutn and, no amcndment is penntsslble.'

69. It is my considered view, therefore, that by this Court applying the elements in Ismail Serugo V. Kampata City Council & The Attorney General of Uganda (supraf by which a plaintiff can be said to have had a cause of action against a defendant so as to necessitate that that defendant should be heard, the Appellant had no good cause of action against the Respondents.

70. With respect, I find that the finding by the trial judge that the rrrle against natural justice was offended with regard to the Respondents to have been a stretch too far. The motion for a vesting order was made against Emmanuel Mukiibi Nsalabwa, who was the proper person against whom the proceedings for a vesting order under section 166 of the RTA and in respect of the suit land could be brought. I agree with Counsel for the Appellant that, the Respondents had no place, or function in the proceedings in HCMC 07 of 2oll.

That being the case, ground 3, also, succeeds.

## Grounds 4 and 5.

7I. Learned Counsel for the Appellant argued grounds 4 and 5, concurrently. He submitted that the Respondents had never been in possession of the land as was comprised in Busiro Block 351 Plot 604, or of the parcel of three acres which was vested in the Appellant and, now, described as Busiro Block 351 Plot 911. Emphasising his submission on ground 1, learned Counsel argued that the Respondents purported to acquire interests in the suit land while the Appellant's caveat was subsisting and, thereby, with the knowledge of a registered claim by the Appellant prior to their indulgence in transactions which were repugnant to the registered caveat. Learned Counsel inquired: how can the Respondents be said to be in possession of the any part of the suit land, if such possession was a result of an unlawful act? If such possession was acquired against the process of law, should a Court of law lend to such possession credibility and, thereby,

legality?. In light of their machinations against an existing caveat, did the Respondents come to Court for equity with clean hands?

- 72. For the Respondents, learned Counsel submitted that on the evidence, the trial judge was correct to find that the Respondents were in possession of the suit land and that the Appellant had not contested that part of the affidavit. - 73. After carefully re-evaluating the record of proceedings of the trial Court, it is not true that the Appellant did not challenge the allegations that were made by the Respondents as to being in possession. That as it were, of more critical legal concern is the credibility and legality that a Court of law would be willing and ready to lend to a person who acquires possession of land by an unlawful act or through syndicated criminality. From my findings, above, it is without any doubt that the Respondents elected to overlook the Appellant's caveat and it's legal significance in their quest for interests the suit land. That as it were, the same Respondents, then, turned around to claim proper entry onto the suit land as a means to diminish the Appellant's interest and to galvanize their illegality. I am of the considered view that a Court of law should abhor such syndicated conduct. Even if the Appellant had not challenged the Respondents' assertions of possession, which as I have noted is not true, it was imperative for the trial Court to fully evaluate the facts and the evidence before it and to draw its own conclusions in accordance with the law. In doing so, the Court should have followed the ratio decidendi in Management Committee of Rubaga Girls School vs. Bwogi Kanyerezt (Civil Application Number 34 of 19991 which was cited with approval in Advocates for Natural Resource Governance and Development & 2 Ors Vs. The Attorney

General of Uganda & Anor. Constitutional Petition No. 4O of 2O13 to the effect that just because no affidavit in opposition is filed, or that an averment in an affidavit is not countered in an affidavit in opposition, it does not follow that such averments are the truth.

74. Therefore, it is my finding that if there was any possession of the suit land by the Respondents, it came about at the heels of their unlawful conduct. It is the mandate of a Court of law to fortify civilized lawful society. This cannot be achieved where a Court ratifies gains yielded through lawless behaviour, which the Respondents want to take benefit of.

In the premise, grounds 4 and 5, too, succeed.

## Ground No. 6.

75. The Appellant's legal Counsel submitted that, leading to the grant of the vesting order in HCMC 07 of 2oll, there was no error apparent on the face of the record. Relying on Mulla on the Code of Civil Procedure Act 19O8, 3'a edition at page L673 which was cited with approval in Supreme Court Civil Appeal No. 75 of 2OO3; Pastori Tumwebeze -vs- Edson Kanyabwere, Court described what amounts to an error, thus:

> (An error ls apparent on tle .face of record, uthen lt ts obttlous and, self-eutdent and does not requlre a.n elaborate argantent to be estahllsltcd,

76. Counsel argued that, going by the above definition, what amounts to an error apparent on the record depends on the peculiar circumstance of each case and that in the case at hand, the process of Court in HCMC 07 of 2OLL was served onto Emmanuel Mukiibi Nsalabwa, against whom a vesting order was sought, and to whose knowledge the circumstances that led to such motion for a vesting order were well known.

- 77 . Counsel criticised the trial judge's evaluation of the proceedings leading to the vesting order; according to learned Counsel, the trial judge erred in law when he opined that the land in question against which the vesting order ought to have been granted was Busiro Block 351 Plot 14 at Buddo reasoning that it was because that was the plot number which Emmanuel Mukiibi Nsalabwa had indicated to the late George William Kabugo, as opposed to Plot 6O4. Counsel argued that the trial judge misdirected himself in fact when he concluded that the relationship between Plot 14 and Plot 604 were never put to the Court before the vesting order was made; for in reaching his conclusion, the trial judge ignored the fact that all the transactional documents relating to the purchase of the land by the late George William Kabugo were filed and produced as annextures to the affidavit in support of the motion for a vesting order, that they were served onto Emmanuel Mukiibi Nsalabwa, oral submissions were made upon them in Court, and that all annextures were left to the evaluation and for the scrutiny of the Court in pursuance to the provisions of section 166 of the RTA. - 78. According to learned Counsel, the factual incidences leading to the dispute and the law directing the motion for vesting of land were alive to the judge before she made the vesting order. For the Appellant, learned Counsel, further, contended, that Emmanuel Mukiibi Nsalabwa, who was the respondent, and the correct party to challenge the Appellant's contentions on fact and of law, deliberately refused to participate in the process of Court, notwithstanding that service of the process of Court was effected on him, and that he did not challenge the Appellant's evidence at any juncture! One would say that, Mukiibi Nsalabwa's conduct spoke for itself. In his submission, Counsel relied on section 59 of the Evidence Act.

- 79. On his part, Counsel for the Respondents simply reiterated the findings of the trial judge and presented his belief to them having been correct. - 80. It appears to me that this ground concerns itself with whether there was any person other than Emmanuel Mukiibi Nsalabwa who was, Iega1ly, competent to challenge the basis of the Appellant's motion for a vesting order against the said Mukiibi Nsalabwa. Where the chronological sequence of events leading to the vesting order and, thereby, the basis for the motion was not challenged by Emmanuel Mukiibi Nsalabwa against whom the motion was moved and against whom the vesting order was made, could any other person legally and viably contest the foundation of the Appellant's motion for a vesting order? I am doubtful. I have, in my consideration, found solace in Section 59 of the Evidence Act; it provides:

'59. Oral evidence must be direct.

Oral evidence must, in all cases whatever, be direct; that is to say- (af if it refers to a fact which could be seen, it must be the evidence of a witness who sa5rs he or she saw it;

bl if it refers to a fact whlch could be heard, it must be the evidence of a witness who sa5rs he or she heard it;

(cf if it refers to a fact which could be perceived by any other sense, or in any other manner, it must be the evidence of a witness who sa5rs he or she perceived it by that sense or in that manner;

(dl if it refers to an opinlon or to the grounds on which that opinion ls held, lt must be the evidence of the person who holds that opinlon on those grounds,

## except that-

(el .. oo.....'

- 81. Pursuant to the import of section 59 of the Evidence Act in respect of who can speak to the existence, or lack thereof, of a fact, I am persuaded by Counsel for the Appellant in his submission that, if Emmanuel Mukiibi Nsalabwa did not challenge the veracity of the evidence which the Appellant served on him and which was put before the Court for an order to vest land in the Appellant on the premise of section 166 of the RTA, was any of the Respondents sufficiently poised to challenge the Appellant's motion, its grounding, and the evidence supplied? Was any of the Respondents poised with locus standl to contest the premise upon which the Court made the vesting order? I do not suppose so. - 82. lt is important to note that, before the trial Court, the Appellant challenged the standing of the Respondents to speak to facts or circumstances whose very being they did not partake of, especially so, when the person against whom the vesting order was granted elected not to contest the motion at any stage. With regard to the conveyance agreement between the late Kabugo and Mukiibi Nsalabwa and of the doubt that the Respondents expressed concerning the aptness of the Appellant's foundation, or lack thereof, to seek a vesting order against Mukiibi Nsalabwa. - 83. I find, with respect, that the trial judge indulged himself in conjecture. Had the trial judge addressed himself to the process the led to the vesting order in favour of the Appellant, which involved service of the process of Court on Mukiibi Nsalabwa, and informed himself of the significance of the provisions of section 59 of the Evidence Act in relation to who can testify to facts, the

trial judge would have concluded that the Respondents contentions were hearsay and, thereby, unreliable as to become a basis to upset the vesting order that was in question.

This ground succeeds.

## Grouuds 7 and 8.

- 84. Counsel for the Appellant argued grounds 7 and 8, concurrently. The grounds appear to be an extension of submissions on ground 6. It was submitted for the Appellant that by the trial judge ignoring the Appellant's objections to the parts of the Respondents'affidavits that purported to testify on matters that were within the knowledge of Emmanuel Mukiibi Nsalabwa and the late Kabugo,only, the Court admitted hearsay testimonies and relied on them in its decision. It was contended that by doing so, the trial judge misdirected himself in fact when he alluded to the difference between Plot 14 in the conveyance agreement and Plot 6O4 against which the vesting order was made as new and important evidence which was not within the knowledge of the Court. Learned Counsel submitted that by the consideration of matters not within the knowledge of the Court, the trial judge stretched the elements permitted to the Court as a basis for reviewing its decisions from evidence which a litigant could not with reasonable diligence know of and come by, into the muclry realm of evidence which was not within the knowledge of the Court. By so reasoning, Counsel submitted, the trial judge perilously appeared to assume the mind of the judge who issued the vesting order. - 85. Counsel cited O. 46 r. 1(b) for the proposition that only a person who was a party to a proceeding against which a review is sought can seek for review on the basis of a matter of new evidence which

was unknown to them at the time of the trial, but which has since been brought to their attention. This position, according to Counsel, was settled in Touring Cars (Kf Llmited v. MunkanJi [2OOOI 1 E. A 261.

- 86. While relying on the trial judge's reasons that were expressed in the ruling which is the subject of this Appeal, Counsel for the Respondents stated that the trial judge understood the discrepancy that there was between Plot 14 which was stated by Emmanuel Mukiibi Nsalabwa in the conveyance agreement with the late Kabugo and Plot 604 against which the vesting order was ,made, as a matter of new and important evidence which was not in the knowledge of the Court. That it pointed to an amendment of the agreement between Emmanuel Mukiibi Nsalabwa and the late Kabugo and, thereby, amounted to an error on the face of the record and to a matter which was not in the knowledge of the Respondents at the time of the hearing of HCMC 07 of 2oll. - 87. In consideration of these grounds, it is important to appreciate the background to the Appellant's motion for a vesting order against Mukiibi Nsalabwa in HCMC OT of 2oll. The Appellant, in her motion for a vesting order indicated that Mukiibi Nsalabwa had indicated to her late husband, the late Kabugo, that the land which he had purchased was comprised in Busiro Block 351 Plot 14 and for which Mukiibi Nsalabwa undertook to deliver a certificate of title upon full satisfaction of the consideration for the conveyance. The Appellant testified that while her husband had paid in full the consideration for the land, no certificate of title was delivered to him by the time of his death. It was the Appellant's case that when she took reigns of the estate, she, too, asked Mukiibi Nsalabwa to deliver to her the certificate of title to the land which he had sold to the late Kabugo, without any

success. It was those circumstances that prompted the Appellant to investigate the whereabouts and the ownership of the land (Plot l4l which was described in the conveyance agreement between Emmanuel Mukiibi Nsalabwa and the late Kabugo. As she found, that particular parcel of land had never belonged to Mukiibi Nsalabwa, in any manner. That as it were, from her investigations, she found that within the same locality of Plot 14, Mukiibi Nsalabwa was the registered proprietor of land which was described as Plot 36, but which from recent conveyance transactions and, thereby, mutation, had become Plot 604. It was on that Plot 604 that the Appellant lodged her caveat and applied for a vesting order under section 166 of the RTA for the interest of the late Kabugo's estate. The Court found in her favour.

- 88. The question is, therefore, if Mukiibi Nsalabwa did not contest the Appellant's testimony in HCMC 07 of 2OLl where the story of how he had given a wrong description for the land that he was vending and which he had, thereby, sold to the late Kabugo, were the Respondents competent to testify, otherwise? I do not believe so. Could the Respondents, who were not parties to the agreement between Emmanuel Mukiibi Nsalabwa and the late Kabugo suggest that Plot L4, which had never belonged to Mukiibi Nsalabwa, but which he had made the subject of the conveyance agreement with the late Kabugo as opposed to his trrre owned Plot 36 (and later Plot 604) in the same locality was an error of fact that amounted to an amendment of the intentions that were between Emmanuel Mukiibi Nsalabwa and the late Kabugo? I think not. - 89. My view is fortified by the provision of Order 46(1) which was relied up on by Counsel for the Appellant. The rule is restated below:

O.46 r. 1. Applicatlon for revlew of Judgment.

'(11 Any person considering hlmself or herself aggrieved-

(al

(bl by a decree or order from which no Appeal is hereby allowed' and who from the discovery of new and important matter of evidence which, after the exercise of due diligence, was not within his or her knowledge or could not be produced by him or her at the time when the decree was passed or the order mader-or on account of some mistake or etror apparent on the fiace of the record, or for any other sufllcient reason, desires to obtain a review of the decree passed or order made against hlm or her, may aPply for a review of Judgment to the Court which passed the decree or made the order.

- 90. After a critical study of the rule obtaining to who in the proceedings of review of a decree or an order of a Court can plead and submit a new and important matter of evidence which was not, with the exercise of due diligence. available to them and could not, therefore, be produced at the time that the order or decree was made, I am, with respect, inclined to the view that the trial judge misdirected himself in law when he admitted hearsay testimonies by the Respondents as to the details of the conveyance agreement to which they were not parties and, as a result, on the facts, occasioned a miscarriage of justice. - 91. The question of presenting Plot 36 (later 604) of as opposed to PIot 14 was not new to the trial Court; it was information whose knowledge Mukiibi Nsalabwa, against whom the vesting order was sought, had. Were the Appellant's testimony in HCMC 07 of 2OIl been false, Mukiibi Nsalabwa had had a chance and a choice to challenge it, but he elected not to. The Respondents, who have exhibited courage in acting against the tide of the law, had no place in what information, or evidence was, or was not,

available to Mukiibi Nsalabwa at the time that the vesting order was made against him, as to make it a ground and premise for the Respondents'motions and processes for review - see Apollo Wasswa Basudde & 2 Ors V. Nsabwa Ham CACA 288 of 2OL6 which cited with approval Tourlng Cars (K) Limited V. Munkanji [2OOO] 1 DA 26L.

- 92. In any event, the record of the lower Court reflects that Emmanuel Mukiibi Nsalabwa was alive to the process by which the vesting order was granted against his property because he was served with the process of the Court and that he knew of the vesting order itself, because it was effected against him and his title to 1and. [f there had been an error of fact as to wrongfully take from Emmanuel Mukiibi Nsalabwa his property, he appears not to have been concerned by it as to have necessitated remedial action on his part. I am inclined to agree with the submission by Counsel for the Appellant that in this case, Emmanuel Mukiibi Nsalabwa's conduct was res ipsa loquitor. - 93. It is my opinion, therefore, that what the trial judge perceived as new evidence, was not; it was information that was within the knowledge of parties to HCMC OT of 2OlL and, in particular, known to Emmanuel Mukiibi Nsalabwa against whom the vesting order was granted. I am persuaded by the submission by Counsel for the Appellant that third parties are not afforded latitude to found their motions for review on what they suppose to have been crucial evidence, but left out by the parties to the initial proceedings. The remedy to an aggrieved third parties, in the event of evidence or information that which may not have been put to the Court in its initial proceedings and by which they may claim aggrieved legal status, would lie in on Appeal, or through an independent suit to challenge the decree or order, as the case

may be. Anything less, would amount to Courts opening doors to the kind of mischief and miscarriage of justice that is likely to abide motions by third parties'against decrees and orders whose origination before a Court they had no clue and part of. This would not only sabotage the implementation of decrees and orders of the Courts, but it would, also, affect the completeness and consistence of the judicial processes.

Grounds 7 and 8, therefore succeed.

## Ground No. 9.

- 94. Counsel for the Appellant criticised the trial judge for not following through with a retrial of HCMC 07 of 20ll. Citing the provisions of Order 46 rule 6, learned Counsel argued that upon the trial judge finding that the Respondents were entitled to a review of the orders of the Court in HCMC 07 of 20ll, he ought to have set aside the vesting order and either at once, or at a future date, set down the motion that was filed in HCMC OT of 2oll for a vesting order for a re-hearing with the participation of the Respondents. Learned Counsel submitted that where the a judge concludes that an order or a decree of the Court ought to be reviewed, the judge should not only set aside the decision that an applicant seeks to review, but should, at once, rehear the case, or adjourn such rehearing to an opportune date. According to Counsel, the trial judge was alive to the fact that his duty did not stop at with ordering a review; nonetheless, the trial judge neither conducted a rehearing of the Appellant's motion, nor ordered a fixing of the rehearing to any future date. - 95. In response, Counsel for the Respondents submitted that it was not for the trial judge to set the motion in HCMC 07 of 2011 seeking for a vesting order for a re-hearing. Learned Counsel

argued that that it was the duty of the Appellant to add the Respondents to HCMC OT of 2oll and then seek a date for it to be heard.

96. The answer to this ground lies, squarely, within the provisions of the Order 46 rule 6 which provides, thus:

"6. Rehearing upon application granted.

When an application for review is granted, a note of the application shall be made in the register, and the Court may at once rehear the case or make such order in regard to the rehearing as it thinks lit.'

97. ln his rrrling, the trial judge expressed awareness of the requirements of an order that permitted a review of orders of the Court. He state, thus:

o....an appllcatlon for reuleut does not of necesslty bg mere fact of tts betng fflcd, re-open questlons declded bg the order or decl,slon sought to be reuleuted., Those matters are onlg reopened ofier the appllcatlon for reuleut ls accepted,...... The effect of tha reulew ls onlg to oacafr,, ?eoerse, or aary the tm,gryned decree or order.'

- 98. While the trial judge appeared alive to the provisions of O. 46 r. 6 when he was drawing his decision, he failed to follow the requirement of the law as to rehear the parties, at once, or to make an order with regard to the rehearing of HCMC 07 of 2oll at a future date. As it were, the trial judge appears to have abandoned the re-hearing process as if the order to review in and of itself formed the ultimate remedy for the parties. - 99. Considering the circumstances of the case that was before the Court, it was necessary for the trial judge to direct the course of re-hearing HCMC OT of 2}ll either at once, or at a future date (with orders to preserving the status in quo) as a measure to save guard against jeopardizing of the possibility of a remedy for the Appellant, were the Appellant to succeed, again, on her motion. I agree with the argument of Counsel for the Appellant that, essentially, the trial judge rewarded Emmanuel Mukiibi Nsalabwa for shunning the process of Court and gave him the latitude to alienate the very land against which the Appellant's interest could crystalise. Invariably, if it was not for the stay of execution proceeding which was instituted by the Appellant against the decree of the trial judge, Emmanuel Mukiibi Nsalabwa was about to have the very cake he had eaten, again. As Counsel, for the Appellant, indeed, surmised, the orders of the trial Court appear to me to have culminated into a penalty against the Appellant who threw herself at the feet of the law and equity for a remedy against an injustice.

- 100. I am convinced that had the learned trial judge critically and holistically evaluated the facts that were before the Court and advised himself properly on the law regarding caveats and on reviewing decrees or orders by a Court and, thereby, applied the law correctly to the facts, there would be no finding for a review of the vesting order. By their conduct against a lawfully lodged caveat, the Respondents did not amount to persons with viable legal grievances; the Respondents neither had proper locl.ts standi to seek review pursuant to the elements of new evidence, nor were they, at law, competent to testify on matters which were outside their own knowledge. - 101. It is from that summary of the misdirection by the trial Court that the Appellant has succeeded on all the grounds of Appeal. On that account, I would reverse the ruling and orders by which the trial Court set aside the orders of that Court in HCMC 07 of 20ll and I would, thereby, reinstate the vesting order that was

made in favour of the Appellant against Emmanuel Mukiibi Nsalabwa and for the said vesting order to endure in the manner by which it was executed. As it was prayed by the Appellant, I would, also, release the Appellant's certificate of title comprised in Busiro Block 351 Plot 91 1 from the orders of encumbrance by the High Court which were put in place to stay the execution by the Respondents while awaiting the disposal of this Appeal.

1O2. In the premise, the Appeal is allowed with costs to the Appellant against all the Respondents in this Court and in the lower Court.

I so order.

Dated at Kampala this .... O.&hay of .,2024

\\_ borion Barishaki l' -

JUSTICE OF APPEAL

![](3__page_38_Picture_0.jpeg)

## THE REPUBLIC OF UGANDA

### THE COURT OF APPEAL OF UGANDA AT KAMPALA

(Coram: Barishaki, Mugenyi & Gashirabake, JJA)

#### CIVIL APPEAL NO. 55 OF 2016

#### THE ADMINISTRATOR OF THE ESTATE OF

THE LATE GEORGE WILLIAM KABUGO ....................................

#### **VERSUS**

1. DR. TWINOBUHUGIRO ASKA

2. CHISTOPHER KYANKU

JANE KYANKU ....................................

(Appeal from the decision of the High Court of Uganda (Bashaija, J) in Consolidated Miscellaneous Application No. 809 of 2012 and 279 of 2015)

## **JUDGMENT OF MONICA K. MUGENYI, JA**

I have had the benefit of reading in draft the lead judgment of my brother, Cheborion Barishaki, JA in this matter. I agree with the decision therein that the Appeal be allowed for the reasons advanced. I do also abide the orders made.

$\mathbf{1}$

Dated and delivered at Kampala this ... ,. day of 2024.

rMonica K. Mugenyi Justice of Appeal

\* This judgment was signed before this judge ceased to hold that office.

### THE REPUBLIC OF UGANDA

# IN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA

(Coram: C. Barishaki, M. K. Mugenyi, C. Gashirabake, JJA)

## CIVIL APPEAL NO. 55 OF 2016

### TFIE ADMINISTRATOR OF THE ESTATE OF THE LATE GEORGE WILLIAM KABUGO ::::::::::::::::::::::::::::::::::::::::::::APPELLANT

#### VERSUS

- 1. DR. TWINOBTJHTJNGIRO ASKA - 2. CHRISTOPHER KYANKTJ - 3. JANE KYANKTJ RTSPONDTNT

(Appealfrom the decision of the High Court of Uganda (Bashaiia. J) in Consolidated Miscellaneous Application No. 809 of 2012 and 279 of 201 5)

### JUDGMENT OF CHRISTOPHER GASHIRABAKE, JA.

Dated at Kam palathe ... D \*^rof 2024

t\ a t

Clrri stopher Gashirabake JUSTICE OF APPEAL