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Judgment

THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA CORAM: owlNY - DOLLO CJ; TIBATEMwA'EKIRIKUBINzA, CHIBITA, MUSoKE AND MADRAMA: JJ'S.C) CIVIL APPEAL NO. 24 OE 2O2O MICHAEL ROBERT MUGENYI APPELLANT VERSUS IRENE KALIBALA ........ RESPONDENT (Arising from the decision of the Court of Appeal in Civil Appeal No. 41of 2011 before Obura, Muhanguzi, & Musota, JJA dated 30't' April, 2o19) NT FO I have had the benefit of reading in draft the judgment of my learned brother Madrama JSC. I entirely concur with the reasoning, conclusions, and orders proposed therein. Since Tibatemwa-Ekirikubinza, Chibita and Musoke, JJSC, also agree, orders are hereby issued in the terms proposed by Madrama JSC in his judgment. Dated at Kampala tnis .E.day of ...... 2025 Alfonse C. Owiny - Do llo CHIEF JUSTICE i^ d-^*k/1 2.0&s ta ?EJ a- lr-t NaJ L SC ( THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA CORAM: OWINY - DOLLO CJ; TIBATEMWA'EKIRIKUBINZA, CHIBITA, MUSONE AND MADRAMA; JJ.S.C) CIVIL APPEAL NO. 24 OF 2O2O APPELLANT VERSUS IRENE KALIBALA RESPONDENT (Arising from the deciston of the Court of Appeal in Civil Appeal No. 41 of 20I 1 before Obura, Muhanguzi, & Musota, JIA dated 30't'April, 2019) I have had the benefit of reading in draft the judgment of my learned brother Madrama JSC. I entirely concur with the reasoning, conclusions, and orders proposed therein. Since Tibatemwa-Ekirikubinza, Chibita and Musoke, JJSC, also agree, orders are hereby issued in the terms proposed by Madrama JSC in his judgment. Dated at Kampala this.y' { day of 2025 f C. Owiny - Dbl onse o CHIEF JUSTICE T!^t *-A at-t "i Cr\a^"L''A tuh Lfk dg '4.. ?oa{- ,9C MICHAEL ROBERT MUGENYI IUDGMENT OF OWINY - DOLLO, CI 5 THE REPUBLIC OF UGAIYDA IN THE SUPRTME COURT OF UGANDA AT I(AMPALA [CORAM: OWIIW - DOLLO Ar, TIBATEIYIII|A - BKIRII<ITBINZA, CHIBITA, MUSOKD & IvTADRAMA, .rrSC./ CIVIL APPEAL NO.24 OF 2O2O BETWEEN MICHAEL ROBERT MUGEITYI} APPELLANT AND IRENE I{ALIBALA} RESPONDENT (Appeal from the Judgment and Orders of the Court of Appeal at Kampala before the Honourable Justices: [Hellen Obura, Ezekiel Muhanguzi and Stephen Musota., JJAI dated 3Ott, Apil 2O19 in Ciuil Appeal No. 41 of 2O11, arising from the Judgment of the High Court of Uganda at Kampala before Hon. Lady Justice Anna Magezi dated 2"d March 2O10 in H.C.S.S. No. 22O of 2005) Summary: Jurisdiction - Supreme Court - as a second appellate the Court has jurisdiction to determine a question of mixed law and fact. Mixed question of law and fact - this is an issue that involves both legal and factual elemeats. It is not purely a question of fact or purely a question of law. 1 L. i - O2JUN 2025 t = * NJ * BATE z .J Caveat - Legal effect - a caveat prevents the acquisition of any interest in the land which is adverse to the claim of the caveator. s JUDGMENTOFPROF.TIBATEMWA-EKIRIKUBINZA, JSC I have read in draft the judgment of my Learned Brother, Madrama JSC and I agree with him that the appeal be dismissed with costs to the Respondent. I will nevertheless briefly discuss the preliminary point of law raised by the Respondent and also briefly discuss the merits of the appeal. 10 15 20 Consideration of the Preliminary Point of Law The Respondent's Counsel objected to all the grounds of appeal formulated by the Appellant. The grounds have been set out in the Judgment of Madrama, JSC and I will not repeat them here. It was the argument of Counsel that an appeal lies to the Supreme Court, as a second appellate court, only on points of law and yet all the grounds of the appeal presented by the Appellant are on mixed law and fact. The Respondent's Counsel contended that not a single ground of appeal is only on a point of law. He contended that grounds of mixed fact and law ought to be struck out for offending the law on framing and raising grounds in a second appeal. Article 132 l2l of the Constitution provides that: An appeal shall lie to the Supreme Court from such decisions of the Court of Appeal as 2 /r 5 may be prescribed by law. Section 6 (1) of the Judicature Act confers an automatic right of second appeal to this Court where the Court of Appeal has conlirmed, varied or reversed a trial court's decision in a civil matter. Under Rule 30 (1) of the Judicature (Supreme Court) Rulesl where the Court of Appeal has reversed, affirmed or varied a decision of the High Court acting in its original jurisdiction, the Supreme Court may decide matters of law or mixed law and fact, but sha-ll not have discretion to take additional evidence. The issue of jurisdiction of this Court as a second appellate court in civil matters has been resolved in the recent decision of Kateeba Rose and 3 Others vs. Mugyenzi Justus and,2 Others.2 The Court with clarity delved into and settled the meaning of "mixed law and fact" provided for in Rule 30 (1) of the Supreme Court Rules. In her lead judgment, Mugenyi JSC expounded on what amounts to a question of law vis-a-vis a question of mixed law and fact. She stated: A mixed question of law and fact is a ground of appeal that is neither based purely on the facts nor purely on the lanu but, rather, requires both legal and factual analysis for its resolution.s Mixed questions of law and fact are in essence questions of lau albeit those which depend for their determination on recourse to uncontested or I 'Subsidiary legislation enacted under the Judicature Act , clvlL APPEAL No. 10 oF 2023 3 See LSDefine: Simple Legol Definitions at httpsr//www.lsd.law 10 15 20 25 3 v <-e 0 2 JUN 2025 t4 1 z. * N * (J \BATE u[, uncontrouerted facts. For instance, the eistence of a ualid contract depends as much on the uncontrouerted facts before the court as on the law gouerning formation of contracts. Similarlg, an action founded in breach of contract depends as much on the undisputed terms of the contract as on the law gouerning breach of contract. So that, uhereas the undisputed oral or uitten agreement adduced in euidence represents the factual position onthe eistence of a contract between the parties; the legal question as to whether a contract u)as properlg terminated would necessitate the appellate reuiew of the prouisions of the contract. .... Conseqttentlg, I take the uiew that section 6(1)of the Judicature Actunequiuocallg demarcates the mandate of the Supreme Court on second appealto entertain matters where the Court of Appeal has confirmed, uaied or reuersed a tial court's decision; but rule 30(1) of the Supreme Court Rules delimits the procedural dutg upon the Court in the exercise of that mandate, resticting it to questions of law or mixed lqw and fact (but not pure questions of fact), without the option of taking additional euidence. I find no reason to depart from the above mentioned decision of this Court that the Supreme Court as a second appellate court has jurisdiction to hear an appeal/determine a ground wherein an Appellant faults the Court of Appeal for having wrongly decided a question of mixed law and fact. o ...,,? V 10 15 20 25 30 5 10 15 20 25 I therefore dismiss the preliminar5r point of law raised by the Respondent. Consideration of the Merits of the Appeal My decision to uphold the hnding of the Court of Appeal is based on the effect of a caveat on registered land and the related principle of due diligence. But these principles must be interrogated within the context of the Torrens System of land registration with its principle of indefeasibility of the title of a registered owner. Indeed, indefeasibility of title is a cornerstone of the Torrens System of land registration. It provides owners of registered land with strong protection against challenges to their ownership. The Appellant brought a suit before the High Court in his capacity as a registered owner of the suit property. The Registration of Titles Act captures the principle of indefeasibility as follows: Section 176. Registered proprietor protected against ejectment except ln certain cases No action of eiectment or other action for the recouery of ang land shall lie or be sustained aqainst the person registered as propietor under this Act, except in ang of the follotuing cases- l8A 't 5 5 O2 JUN t 202 ,rl <-e I uphold the Iinding of the Court of Appeal that the Appellant was not abonafide purchaser for value without notice of the Respondent's interest in the suit propert5r. However, it is not the Appellant's lack of occupation of the land a-fter the transfer that led me to this hnding - failure to occupy the land after the purchase is in my view not in itself enough to call for an inference of a fraudulent transfer. 30 5 a) b) c) the case of a person depiued of ang land bg fraud as against the person registered as proprietor of that land through fraud or as against a person deiuing otherutise than as a transferee bona fide 10 for ualue from or through a person so registered through fraud; 15 20 25 It is clear from the wording of the section that the protection afforded to a registered proprietor, strong as it is, has limits. There also exists a plethora of jurisprudence wherein Ugandan courts have acknowledged exceptions, albeit limited, to this indefeasibility in both law and equity where justice demands intervention. On the record is the chronolory of events surrounding the registration of the Appellant as owner of the suit property. It is as follows: 1. On 13th December 2OO2, a sale agreement between Othieno and Irene Ka-libala was signed. 2. On 15th July 2003, Kalibala lodged a caveat on the suit propert5r, which was by then in the names of Tom Kaya. 3. On sth January 2004 Mugenyi (the Appellant) paid the first instalment of 38 million to Tom Kaya. 4. On 21st January 2004 Mugenyi (the Appellant) paid the final instalment of 38 million to Tom Kaya. 6 5. On 23.d April 2OO4 the Appellant and Kaya signed a transfer form in which the property was transferred from the names of Kaya into the names of Mugenyi. 6. When his transfer documents were lodged by his agent, the Appellant learnt that the transfer could not be effected because the Respondent had lodged a caveat on the suit land. 7. Tom Kaaya was contacted about the Respondent's caveat and he instructed his lawyers Messrs Shonubi Musoke to deal with the caveat. The caveat was removed and the suit land was transferred into the narnes of the Appellant. 8. On 09 July 2004 Mugenyi was registered as the owner of the suit property. 9. On 21* February 2005, the Caveat lapsed. 10 Section 141 of the Registration of Titles Act provides as follows: 20 No entry to be made in Register Book while caveat continues in force So long as anA caueat remains inforce prohibiting ang registration or dealing, the registrar shall not, except in accordqnce with some prouision of the cauea| or tuith the consent in witing of the caueator, enter in the Register Book anA change in the propietorship of or ang transfer or other instrument purporting to transfer or othenpise deal with or affect the estate or interest in respect to which that caueat is lodged. 25 7 0 2 luN 2025 t U = N \ <'( 5 15 I[Ihat is the effect of a caveat on registered land? 5 In the persuasive authority of McKillop & Benjafield vs. Charles I. Alexandera, the Supreme Court of Canada provided the following analysis of a statutory provision comparable to Section 141 of the Registration of Titles Act: "The lodging of a caueat in the titles office in which the title to the lands in Etestion is registered, preuents the acquisition of ang legal or equitable interest in the londs aduerse to or in derogation of the claim of the caueator... ......a caueat once properlg lodged preuents the acquisition or the betteing 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 erisfs at the time when the caueat is lodged. " It can be concluded that in line with Sectlon 141 (supra), a caveat acts as a legal notice, an alert to the public that temporarily freezes any further transactions on a piece of land until the underlying claim by the caveator is resolved. It is expected that before entering a land sale agreement, a person interested in purchasing the land will ca-rry out a search in the Land Registry. This is to among other things, confirm the seller's legal ownership of the land and also to check for any registered encumbrances such as caveats. This is an important aspect of due diligence. 4 (1912) 45 s.c.R. 551 15 20 25 8 10 ,/ 5 10 15 20 The object of the Torrens system and indeed the entire Act is to save persons dealing with registered proprietors from the trouble and expense of going behind the register in order to satisfy themselves of its validity, and thus simplify and expedite the process of title. A caveat is on the face of the register. In the matter before us, the Appellant paid the first instalment of the purchase price to Tom Kaya after the Respondent had already lodged the caveat. If he was unawa-re of the existence of the caveat, he clearly failed to carry out due diligence and is subject to the legal presumption that a party has constructive notice when it can discover certain facts by due diligence or inquiry into public records. The above chronolory of entries made on the land title a-lso shows that the Appellant's interest was registered before the caveat lapsed. The caveat was registered by the Respondent in the year 2003, the Appellant's interest was registered in 2OO4 and the caveat lapsed in 2005. Therefore, the caveat remained in effect when the Appellant's interest was registered. The registration of the Appellant was therefore illegal because it went against the legal imperative in Section 141 which provides that *No entry is to be made in Register Book while caveat contlnues in force." Arising from the above analysis, I would dismiss the appeal with costs to the Respondent. fr Dated at Kampala this day o 9 ,< 0 2 JUt{ 2025 2025. 5 V-:Iac-..\eavr.xrq ' HON. JUSTICE PROF. LTLLIAN TIBATEMWA-EKIRIKUBINZA, JUSTICE OF THE SUPREME COURT. 10 THE REPI'BLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA (CORAM: OWIIY - DOLLO e^I, TIBATE]IWA - EKIRIKUBINZA, CHIBITA, MUSOKT & MADRAMA, JJSC) CTVIL APPEAL NO 24 OF 2O2O BETWEEN MICHA.EL ROBERT MUGETTfl} APPELLANT AND IRTNE IGLIBBALA) ....RESPONDENT (Appeal lrom the Judgncnt and Orders of the Court oJ Appeal at Kampala before the Honourable JustLces Hellen Obura, Ezelclel Muhanguzi and Stephen Musotq dated 3@h Aprll 2079 ln C'htll Appeal No. 4 7 of 2O 7 7, anislng Jrom the Judgm.ent oJ the Hlgh Court oJ Uganda at Kampala betore Hon. Ladg,htstlce Anna Magezl dated 2td March 2O7O {n ILC.S.S. No. 22O oJ 2OO5) WDGMENT OF MIKE J. CHIBITA, JSC. Brief facts: On the 13th day of December,2OO2, the respondent Irene Kalibbala entered into a sale of land agreement with Mr. Othieno the then registered proprietor of land comprised in Block 246 Plot 667 land at Kyeitabya, Muyenga, at a consideration of shs. 40,000,000/= (Forty million shillings). Shs. 3,O00,000 (three million shillings) was paid at the point of signing the agreement arrd it was agreed that Shs. 37,000, 000/= would be paid at a later date. The respondent did not take possession of the land and neither did the LC 1 chairman of the area get notihed about the sa-le. Tom Kaaya bought the same land from Mr. Othieno. On loth June, 2003, Tom Kaaya was registered as proprietor of the suit property. The last instalment for the sale of the suit land to Mr. Othieno was made on the 13th day of June, 2003. What followed was a scuffle between Irene Kalibbala tJle respondent as Mr. Othieno refused to heed to the respondent's demands for the title. Unknown to the respondent he could not give her the title because he had already given it to Tom Kaaya who had already transferred the same into his natnes. The respondent, then lodged a caveat forbidding any dealings in the land on LS 17 I 2OO3 . She also lodged a complaint to the Police station against Othieno. What followed was a memorandum of understanding between Othieno and the respondent on 19/5/2OO4 in which it was agreed that Othieno would give vacant possession to the respondent and that the respondent would give Othieno shs. 1,000,000/= to facilitate his movement from the suit property. Othieno also signed a transfer form in favour of the respondent on 19ls l2oo4. In the meantime, Mr. Kaaya had contracted East Land Agencies to help him with the sale of the property. The appellant, ttren bought the suit property through this agency from Tom Kaaya at a consideration of 49,500,000/= (Forty-nine Million hve hundred shillings). On the 2lst day of Januar5r, 2OO4 Michael Robert Mugenyi paid the last instal.ment of the said consideration. When his transfer documents were lodged by his agent, Toro Business Services, the appellalt learnt that the transfer could not be effected because the respondent had lodged a caveat on the suit land. He was a-lso unable to take vacant possession of the suit land because the respondent had refused to vacate the premises. He then brought a suit in the High Court of Uganda at Kampala vide Civil Suit No. 22O of 2005 to force the respondent to vacate the land. When Eastland Agencies contacted Mr. Tom Kaaya about the respondent's caveat, he instmcted his lawyers Messrs Shonubi Musoke to deal with the caveat. The caveat was removed and the suit land was transferred into the names of the appellant. The issue of whether the Civil Procedure Act (CPA) continues to apply to the Supreme Court after the enactment of the 1995 Constitution of the Repubtic of Uganda has raised important discussions. Specifically, the question of whether provisions such as Section 72 and 74 of the CPA or Rule 3O(1) of the Judicature (Supreme Court Rules) Directions govern the jurisdiction of the Supreme Court as a second appellate court is cmcial. Section of the Civil Procedure Act provides as follows: 72. Second appeal, (1) Except where otherwise expressly provided in this Act or by any other law for the time being ln force, an appeal shall lle to the Court ofAppeal from every decree passed in appeal by the High Court, on any of the followtng grounds, namely that- (a) the decision is contrarv to law or to some u sage having the force of law; lbl the decision has falled to determine some materlal lssue of law or usage ha vinE the force of law: lcl a substantial error or defect in the procedure provided by this Act or bv aav other law for the time be ing in force, has occurred which may possiblv have produced error or defect in the decision of the case upon the merits. (Emphasis addedl (2) An appeal may lie uader this section from an appellate decree passed ex parte. This section emphasized by section 74 of thre Civil Procedure Act which provides that: "74. Second appeal on no other grounds. Subject to section 73, no appeal to the Court ofAppeal shall lie except on the grounds mentloned ln section 72." (a). Decision Contrary to Law This refers to a situation where the decision made by a lower court goes against established legal principles, statutes, or judicial precedents. In other words, the judgment contradicts what the law actually dictates. If a court applies the wrong law or misinterprets the law, leading to al incorrect decision, it could be deemed contrary to law. For instance, if the Court of Appeal incorrectly applies a statute that does not apply to the case at hand, or disregards binding case law, this could form the basis for a successfi.rl appeal. The Supreme Court as the 2"a appellate court has the power to correct this error by interpreting the law correctly and ensuring the decision is in alignment with legal standards. (b). Failure to Determine Material Issues This refers to a situation where the court lails to address or resolve key issues that are essential to tl:e case. A material issue is a fact or point that, if resolved differently, could change the outcome of the case. If a trial court fails to consider critical evidence, or if it overlooks an important legal issue that affects the substance of the case, the appeal court may find that the lower court failed to determine material issues. The Judicature Act provides the general jurisdiction of the Supreme Court in civil appeals under section 6. 6(1) Appeals to the Supreme Court in civil matters. An appeal shall lie as of right to the Supreme Court where the Court of Appeal conlirms, naries or reveraes a judgment or order, including an lnterlocutory order, given by the High Coutt in the exercise of its original jurisdiction and either confirmed, varied or reversed by the Court ofAppeal. The Judicature (Supreme Court Rules) Directions, a subsidiary legislation under the Act, the detailed rt.les, regulations, and procedures necessary for effective implementation and enforcement of the said jurisdiction is laid down. Rule 30(1) of those Rules then delineates the practice and procedure of the Court in the following terms: 3O. ttPower to reappraise evidence (1) Where the Court of Appeal has reversed, affirmed or varied a decision of the High Court acting in its original jurisdiction, the court may decide matters of law or mixed law and fact. but shall not have discretion to take additional evldence." (Emphasis added) I will break down the terms "matters of law or mixed law and fact" for brevity. (il Matter of Law Black's Law Dictionary, 6.h Edition, Centennial Edition (1891-1991) defines a "matter of law" to mean: "Illhatever is to be ascertained or decided by the application of statutory rules or the principles and determinations of the law, as distinguished from the investigation of particular facts." This is similar to section 72(a) of the Civil Procedure Act. Issues that are purely based on legal principles, rules, statutes, or case law. These matters do not involve any dispute about the facts of the case, but rather focus on how the law should be applied to the established facts. Whether a particular statute applies to a situation, whether a contract is enforceable under the law, or whether the correct legal standard was applied by the lower court. It is about the interpretation and application of the law. Courts often review matters of law without needing to re-examine the facts or evidence of the case. This Court generally has the pov/er to review matters of law de nouo (from scratch), meaning they are not bound by the lower court's legal conclusions. An issue such as: "Whether the Civil Procedure Act, which is the prlmaty legislatlon for Clvil Procedure, ceased to apply to the Supreme Court after the etractment of the 1995 Constltution of the Republic of Uganda" is purely a matter of law as envlsaged in Rule 3O (1) of tJre rules. It also falls under section 72(a) of the Civil Procedure Act.' Section 72 lcl. Substantial error or defect in the procedure. Determining whether a procedural irregularity exists and whether it amounts to a "substantial" defect requires legal analysis, making it primarily a matter of law. "Matters of Law" can easily be distinguished from matters of fact. A matter of fact is defined by the Black's Law Dictionary, to mean: "That whlch ls to be ascertained by the senses, or by testimony of witnesses describlng what they have perceived. (ii) Matters of Mixed Law and Fact A "matter of mixed law and fact" involves both legal principles and the facts of the case. It refers to situations where a legal issue cannot be resolved without first considering the facts and then applying the law to those facts. It requires both the determination of facts and the application of law to those facts. The court must analyze the facts, determine tl:eir relevance, and then apply the legal principles. The Supreme Court would fypically defer to the trial court's findings of fact in matters of mixed law and fact, unless there is a clear error. However, the legal conclusions drawn from those facts are still subject to review. In the instant case grounds 1-6 would fall under mixed law and fact. 1. (The learned Justlces ofthe Court ofAppeal erred in law and fact tn holding that the appellant's lack of possession/occupation of the suit land after the transfer from Tom Kaaya poiated to an inference of a fraudulent transfer. 2. The learaed Justices ofthe Court ofAppeal erred in law and fact in misconstrulng the process of registration and tranefer of land thereby arriving at the wrong concluaion that the Appellant was reglstered as proprletor when the Respondent's caveat was subsisting. 3. The learned Juetices of the Court of Appeal erred ln law aad fact tn holding that the Respondent's caveat was stlll subsisting at the time of reglstration of the Appellant as the registered proprietor and transfer ofthe sult land to him. 4. The learaed Justices of the Court of Appeal erred ln law and fact tn holdtng that the Appellant was not a bonallde purchaser for value. 5. The learned Justices ofthe Court ofAppeal erred ln law and fact when ttrey held that the sigaature of Lydia Othieno oa the Sale Agreement between the Respondent and Othieno Clement amounted to spousal consent and that the Appellant did not challenge this at the trial. 6. The learned Justices of the Court ofAppeal erred in law and fact ln failing to properly erraluate the evidence on record thereby caacelliag the Appellant's Certificate aad arriving at a wrong conclusion.' The above grounds show that oftentimes the factual issues are inseparable from the legal issues. For instance: 1. How can the Court determine the question of whether the Appellant was a bona fide purchaser for value without notice under sections 64 and 176 (c) of the Registration of Titles Act without considering the peculiarities of the case? 2. How can the Court determine the question of whether the Respondent's caveat was subsisting at the time of the Appellant's registration without looking at the facts? 3. How can the Court determine the legality of the Court of Appeal's order to deregister the Appellant and his predecessor, Tom Kaaya without considering the facts of the case? The law does not operate in a vacuum; its value lies in its application to real-life situations, determining whether specific circumstances fall within or outside its prescribed limits. A second appellate court is not tasked with addressing complaints based solely on the determinations of the first appellate court. Instead, it focuses on identifying errors in law that materially affect the outcome of a case. What the law seeks to exclude are questions of fact that have no bearing on the legal conclusions at issue. For instance, in this case, the ages of the respondent and the appellant are irrelevant to the determination of whether the appellant was a bona fide purchaser for value w'ithout notice. Whether the respondent's age is quoted as seventy or any other figure, it does not a-{fect the legal analysis or the final outcome. The focus must remain on materia-l facts and legal principles pertinent to the matters at hand. In this case, Court of Appeal found that the Appellant was registered through fraud. The court needs to find out if the Appellant's actions constitute fraud (fact) and whether that fraud meets the legai criteria (law). This is a matter of mixed law and fact. This falls squarely in the ambit of section 72(bl of the Civil Procedure Act which deals with this Court's consideration of whether or not the Court of Appeal failed to determine a material issue of law. In my view, both sets of provisions a.re not contradictory but rather complementary. They should be read together to achieve the legistative intent. While the language differs, the underlying principles remain the same. To resolve this apparent conflict, the rule of harmony in statutory interpretation should be applied. The rule of harmony in statutory interpretation posits that when interpreting statutes, courts should ensure that provisions are read in a manner that avoids inconsistency, conflict, or absurdity. Instead the reading should promote a cohesive understanding of the law. It directs that where two provisions appear to address the same issue but use different wording, they should be interpreted in a way that harmonizes them, ensuring that they work together to fulfill the legislature's intended purpose. Applyrng this ru1e, both the CPA and the Judicature (Supreme Court Rules) Directions should be seen as working in tandem, guiding the procedura-l framework for the Supreme Court in its Second appellate capacity. The CPA provides general guidance on civil procedure, while the Supreme Court Rules specifrcally govern the operations and procedures of the Supreme Court as a second appellate court, ensuring that the administration of justice remains smooth and coherent. I Iind that both the Civil Procedure Act and the Judicature (Supreme Court Rules) lay down the scope of the jurisdiction of the Supreme Court. Issue 2: Legality of the cancellation of title Under what circumstances can a registered proprietor be de- registered? Under the Torrens system, deregistering a person who was not a party to the suit presents a critical legal issue. The Torrens system is designed to protect the security and certainty of land ownership, emphasizing that registered tifleholders have indefeasible rights. Section 176(c) RTA states as follows: "No action ofenjoyment or other action for the recovery ofany laud shall lie or be sustained against the person the person registered as proprietor under this Act, except in any of the followlng cases- (cf the case ofa person deprived ofany land by fraud as against the person registered as proprietor of that trand through fraud or as against a person deriving otherwise than as a transferee bona fide fot value from or through a person so registered through fraud." Therefore, any action to remove a registered proprietor's title without their participation in the legal process can breach procedural fairness and undermine the system's protections. Failing to involve the registered proprietor in the suit violates natural justice and due process. The individual is denied a fundamental legal right without the chance to defend their ownership. To address this, all parties with a registered interest in ttre property must be properly joined in the proceedings when their title is at risk of deregistration. This ensures that the proprietor has the opportunit5r to be heard and defend their rights. "Wh.at ls eoen more materlal ls thot Tom Kaaga uqs neaer 7n oossesslon of tle sult properttt Possess{on of the properay utent Jrom the famllg of Othleno Ochleng Clement to the respondent. Furtlwr, tle r*pondent adduced euldence to shout that Tom Kaaga was a moneg lender to uthom Othleno oued, moneg and parA of uhat she patd was mcant to seltle the indebtedness ot Othleno so tho.t Tom Kaaga releases tlv tltle he had in hts possession bcck to Othleno though this is not releaant on tlv lssue o.f co:aeo:t. It crrn sofelg be lnferred that the transfer to Torn Kadga uto,s d pdper transactlon wlthout actuat possession oJ tllc lond bg Tom Kaaga. The appellant urrs under duty to c@rry out due dlllgence bg establlshlng uthat tlv lntercst of thc r*pondent utas. Firstlv, Tom Kaava was not a parff to the orisinal suit which was filed by the appellant. The o riginal suit of tJre appellant in the tria-1 court was for vacant possession. Secondly the facts demonstrate that the respondent obtained vacant possession from the vendor who sold her the property, namely Mr. Othieno Ochieng Clement. For emphasis, the evidence is that by the time she obtained vacant possession, it was Othieno Ochieng Clement who was in possession and who parted with possession to give her the property by a memorandum which was adduced in evidence. While we may not particularly re-eva-luate the evidence like a first appellate court, I have come to the conclusion that the testimonies of PW 1 and PW 2 have to be considered critically on the issue of possession by Tom Kaaya. This is based on the inference of fact that Tom Kaaya whose narne appears on the title seemed unknown to tlee respondent who went to lodge her own instrument of transfer and that is when she discovered his registration and lodged a caveat. There is no clear evidence as to whether Tom Kaaya was ever in possession at all and evidence points to the fact that it was the family of the vendor who was still in possession when the respondent got vacant possession from them. There is some conflicting evidence on this point which can be resolved by perusal of the documentar5r evidence on record. c...A caveat dated 15th July 2OO3 was lodged but this was alter Tom Kaaya was reglstered on the tltle on l0th ofJune 2OO3. The caveat was todged approxlmately 35 days after Tom Kaaya was registered...' 'The issue of the tltle of Tom Kaaya is a matter that has not been the subJect matter of litigation and there is no need to deal wtth tt in a sult whlch sought to evict the respondent." The above are extracts from the draft decision of Christopher Madrama, JSC, which results into the following orders. "In th.e final rcsult, I would find that ground 5 of tle oppeal has no nertt and I utould dlsallout 7L Tlw ap1real haulng uthollg falled' I would mqke an otd.er dlsmissing the appeal uttth costs to tle respondent." In effect the decision of the Court of Appeal is fully maintained. The orders of the Court of Appeal that were maintained are: 1. " Tlre Judgment oJ the Hlgh Court is set oside. 2. The appellant ls declqred an equltable owner of propefig 7n Kgadondo Block 246 Plot 677 dt Kgeltabga. appellant reglstered as the riqhtftt I ouner of the DroDerAu 3. The ttznsfer of the sult propertg to the Respondent ls declqred null dnd aold hantlng been obtalned bg fraud. 4. The tltle qronted. to the Respond.ent be cancelled and thc in Kuqdondo Block 246 Plot 677 at Kueitabua, 5. Costs ane au)arded to tlv appellant both ln thls Couft and ln the louer court.'(Emphasis added) After declaring the cancellation of the Appellant's title, the next in line in terms of registered proprietorship was Tom Kaaya. Deregistering him without fraud being proved against him as required under Section 176(c) of the RTA is contrary to the law. His right to a fair hearing was derogated. Right to a fair hearing. Under the Torrens system, the principle of indefeasibility generally protects a registered proprietor's title unless fraud is proven against them. Since fraud was not established against Tom Kaaya and he was not joined as a party to the suit, the court's ability to deprive him of his title is legally questionable. Right to be Heard (Audt Alteram Partemf, Article 28 of the 1995 A fundamental principle of natural justice is the right to be heard, meaning no one should be deprived of their property rights without an opportunit5r to present their case. Constitution. Article 28(1) "In ttc detertnlnatlon of clull rtghts ond obllgatlons or ang crlmlnalcharge, a person sho,llbe entltledto afalr, qreedg dnd publlc hean'lng before on lndependent and tmpantlal court or tribunal establtslrcd bg law." By not joining Tom Kaaya as a party to the suit, he was denied this right. The validity of any orders affecting his title is compromised, as he was not afforded the chance to defend his interest in the property. Where an equitable interest is competing agaiast the registered The Respondent's equitable interest is competing with Tom Kaaya's legal interest. Under the Torrens system, a conflict arises when a registered proprietor's tifle competes with an earlier equitable interest in the same land. The issue centers on whether the registered title, protected by indefeasibility, overrides the prior equitable interest. This creates tension because, despite acquiring their interest Iirst, the equitable interest holder may lose out to the registered proprietor, who gains priority under the Torrens system. This can be especially unfair if the registered proprietor knew about the earlier interest. Generally, the registered proprietor's title prevails due to indefeasibility. interest Memorandum of Understanding (MoU) Between the respoadent and Mr. Ot}ieno On May L9, 2OO4 the respondent and Mr. Othieno signed a Memorandum of Understanding where Mr. Othieno agreed to give vacant possession to the respondent, who also paid him an additional 1,0O0,00O UGX for this. Mr. Othieno also signed a transfer form in favor of the respondent. Conclusion: The court's order to affect Tom Kaaya's interest or deregister the appellant on grounds impacting Tom Kaaya's tifle without joining him as a party and without evidence of his fraud does not align with the Torrens system principles. I would therefore dismiss the appeal and order as follows: 1. Dismiss any claims affecting Mr. Othieno due to lack of joinder. 2. Recognize the respondent's equitable interest and advise her to pursue remedies in a separate suit directly against Mr' Othieno. However, at this point, Mr. Othieno no longer had a registered interest in the land, as he had already transferred the title to Tom Kaaya. This MoU, while binding between the respondent and Mr. Othieno, had no legal effect on the title, which was now held by Tom Kaaya. 3. Uphold Tom Kaaya as the rightful owner of the property Each party to meet their own costs. +P Mike J. Chibtta Justice of the Supreme Court of Uganda ,t"!-/v\-r hlfu/.ja-u,t fi Dated at l(ampala this L) day or llJ**i V.?.t-JJ'.4xl- h It &D&-s Kr/( (SC2 )L< lU.r/) Cf6^,*' THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA CIVIL APPEAL NO. 24 OF 2O2O MICHAEL ROBERT MUGENYI : : ::::::::::::: :::APPELLANT VERSUS IRENE KALIBALA ::: :: : ::::: ::: :: : ::RESPONDENT (Appeal from the decision of the Court of Appeal (Obura, Muhanguzi and Musota, JJA) in Civil Appeal No. 041 of 2011 dated 3Oh April, 2019) CORAM: THE HON. THE CHIEFJUSTICE ALFONSE OWINY-DOLLO HON. LADY JUSTICE PROF. LILLIAN TIBATEMWA - EKIRIKUBINZA, JSC HON. MR. JUSTICE MIKE CHIBITA, JSC HON. LADY JUSTICE ELIZABETH MUSOKE, JSC HON. MR. JUSTICE CHRTSTOPHER MADRAMA TZAMA, JSC JUDGMENT OF ELIZABETH MUSOKE, JSC I have had the advantage of reading the judgment of my learned brother Madrama, JSC. I agree with his decision on the merits of the appeal and the reasons he gives and would not add anything in that regard. In thls judgment, I only wish to make a few brlef comments on the preliminary objection raised by counsel for the respondent against the competence of the appellant's grounds of appeal. The gist of the preliminary objection is that this Court is barred by Sections 72 and 74 of the Civil Procedure Act (now Cap. 284,2023 Edition of the Laws of Uganda and hereinafter referred to as the "CPA') from entertaining points of mixed law and fact in second civil appeals, and can only entertain points of law. Counsel for the respondent therefore submitted that all the appellant's grounds of appeal whlch raise points of mixed law and fact are incompetent. Counsel for the appellant's response was that Sections 72 and 74 of the CPA apply to second appeals before the Court of Appeal and not this Court. Fufther, 1 that Rule 30 (1) of the Rules of the Supreme Court provides that this Court can determine points of mixed law and fact which renders grounds of appeal on points of mixed law and fact competent, The preliminary objection brings into focus the jurisdictlon of the Supreme Court of Uganda in a second civil appeal, that is, an appeal where the original trial was before the High Court and the first appeal to the Court of Appeal, and specifically, whether, in a second civil appeal, the Supreme Court is barred from entertaining a point of mixed law and fact and can only enteftain a point of law. It is well-established that an appeal is a creature of statute and, therefore, one has to look at some enabling statute to determine whether an appeal lies against a particular decision, and if so, whether there are any restrictions on the nature of the grounds that may be raised in that appeal. I obserue that the Supreme Court, in its present version, was created under the 1995 Constitution, and is the Apex Court in Uganda. As for its jurisdiction, and relevant to thls matter, Article 132 (2) provides that: "An appeal shall lie to the Supreme Court from such decisions of the Court of Appeal as may be prescribed by law." In my view, the primary law envisaged under Article 132 (2) is the Judicature Act (now Cap. 16, under the 2023 Edition of the Laws of Uganda) but which came into force on 17th May, 1996, shortly after the promulgatlon of the 1995 Constitution. Section 6 (1) of the Judicature Act, which is relevant to second civil appeals to this Court provides: "6. Appeals to the Supreme Court in civil matters' (1) An appeal shall lie as of right to the Supreme Court where the Court of Appeal confirms, varies or reverses a judgment or order, including an interlocutory order, given by the High Court in the exercise of its original jurisdiction and either confirmed, varied or reversed by the Court of Appeal." Section 6 (1) of the Judicature Act grants a right of appeal to this Court from a final decision of the Court of Appeal, that is, a decision that results in 2 confirmation, varying or reversal of the decision of the High Court, as opposed to a decision pertaining to an interlocutory matter before the Court of Appeal. In addition, Section 6 (1) imposes no restriction on the nature of points that may be raised and entertained as grounds in such appeals, and taking Section 6 (1) alone, it can be stated that points of law and those of mixed law and fact, can be raised and entertained in a second civil appeal to this Court. This interpretation is consistent with Rule 30 (1) of the Rules of this Court, although this provision is of general application to civil and criminal appeals. Rule 3O (1) reads: "(1) Where the Court of Appeal has reversed, affirmed or varied a decision of the High Court acting in its original jurisdiction, the court may decide matters of law or mixed law and fact, but shall not have discretion to take additional evidence." This Court has, in the recent decision of Kateeba Rose and 3 Others vs. Justus Mugyenzi and 2 Others, Supreme Coutt Civil Appeal No. 1O ot 2023 (unreported) held that, pursuant to the Section 6 (1) of the ludicature Act and Rule 30 (1) (a) of the Rules of this Coutt, the jurisdiction of this Couft in second appeals, extends to consideration of matters of law and matters of mixed law and fact but excludes consideration of matters of fact. On the question of whether the provisions of Sections 72 and 74 of the CPA are applicable to appeals before this Court, the decision in the Kateeba case (supra) was that the said provisions are not applicable, a position that is binding as we determine this appeal. In arriving at the decision in the Kateeba case, this Court reasoned that Section 6 (1) of the Judicature Act and Rule 30 (t) (a) of the Rules of this Court are the primary provisions describing the jurisdiction of thls Court; that it is illogical to interpolate the word "supreme Court" into the provlsions of Sections 72 and 74 of the CPA whlch are expressly concerned with the "Court of Appeal" especially since doing so would lead to an absurdity since other provisions of the CPA provide that the Act regulates second appeals where the first appeal is to the Hlgh Court whereas, in matters handled by the Supreme Court, the first appeals 3 are before the Court of Appeal. I entirely agree with the reasoning in the Kateeba case (supra). Neveftheless, while I would find that Sections 72 and 74 of the CPA are inapplicable to this Court and that the jurisdiction of this Court in second civil appeals extends to consideration of matters of law and matters of mixed law and fact, I take the view that permitting appeals to this Court on matters of mixed law and fact, is a deficiency in our laws. It wlll be observed that in other countries such as the United States, the United Kingdom, Canada and the Australia, among others, laws have been enacted to restrlct both the right of appeal to their Apex Courts and the nature of points that can be argued in such appeals. In most cases, only appeals raising matters of law of general public importance can be entertained by the respective Apex Courts. In my view, the justification for restricting the nature of appeals that can be lodged In an Apex Court lies in the fact that before reaching the Apex Court, a case would have already been sufficiently handled by at least two other superior courts presided over by experienced and knowledgeable judicial officers. Accordingly, I find that there is need for reform of the current law to restrict the nature of cases that can be instituted before this Court. To continue permitting the filing of appeals before this Court, as a matter of course without demonstrating any exceptional justification, as is currently the case under the legal regime established by Section 6 (1) of the ludicature Act, only serves to prolong lltigation and to put a strain on the limited resources at the disposal of this Court, especially since an overwhelming number of second civil appeals have no reasonable prospects of success and inevitably end up failing. In my view, there is need to reform this area of the law, and I would exhort the learned Attorney General to take an interest in the matter and explore the viabllity of implementing any suitable reforms. I would accordingly direct the Registrar to bring this judgment to the attention of the learned Attorney General, 4 In conclusion, I would dismiss the appeal and make the orders that Madrama, JSC proposes. Dated at Kampala this day of... 2025. Elizabeth Musoke Justice of the Supreme Court 5 a 10 15 20 25 30 THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPAI.A (CORAM: OWINY - D0LL0 CJ, IBATEMWA - EKIRIKUBINZA, CHIBITA, MUSOKE & MADRAMA, JJSC) CIVIL APPEAL NO 24 OF 2O2O BETWEEN M TCHAEL RoBERT MUGENYT) AND |RENE KALTBALA) ................. ...........RESP0NDENT (Appeal from the Judgment and 1rders of the Court of Appeat at Kampala before the Honourabte Justices Hellen 0bura, Ezekiel Muhanguzi and Stephen Musota, dated 3Oh Aprrl 2019 in Civil Appeal No. 4l of 2011, arising from the Judgment of the High Court of Uganda at Kampala before Hon. Lady Justice Anna Magezi dated ?d March 2010 rn H.C.S.S. No. 220 of 2004 JUDGMENT OF CHRISIOPHER MADRAMA IZAMA, JSC The Appell.ant (who was the respondent in the Court of Appeal.), Mr. MichaeL Robert Mugenyi appeaLed against the judgment and orders of the Court of AppeaL in CiviI Appeal No 41 of 2011 which had reversed the judgment of the High Court with orders that the Judgment of the High Court is set aside. Secondly an order that the Respondent (who was the appeLtant in the Court of Appeat) (lrene Katibal.a) is declared an equitable owner of property in Kyadondo block246 plot 677 at Kyeitabya (the suit property) and transfer of the suit property to the appettant was dectared nu[L and void for having been obtained through fraud. Fourthty, the name of the appeLtant in the certificate of titl'e was cancetted and the respondent was registered as the rightfuL owner of the property in Kyadondo block246 pLot 677 at Kyeitabya. LastLy costs were awarded to the respondent both in the Court of Appeat and in the High Court. 1 APPELI-ANT I 5 Mr. Michaet Robert Mugenyi, the appel.Lant in thts Court was aggrieved by the decision of the Court of Appeat and appeal.ed against it on six grounds that: 1. The Learned Justices of the Court of Appeal. erred in law and fact in hotding that the appeltant's [ack of possession/occupation of the suit [and after the transfer from Tom Kaaya pointed to an inference of a fraudulent transfer. 2. The Justices of the Court of Appeal erred in law and fact in misconstruing the process of registration and transfer of Land thereby arriving at the wrong conclusion that the appettant was registered as proprietor when the respondent's caveat was subsisting. 3. The learned Justices of the Court of AppeaL erred in law and fact in hoLding that the respondent's caveat was stit[ subsisting at the time of regrstration of the appetlant as the registered proprietor and transfer of the suit [and to him. 4. The learned Justices of the Court of AppeaL erred in law and fact in hoLding that the appeltant was not a bona fide purchaser for vaLue. 5. The learned Justrces of the Court of Appeat erred in law and fact when they hetd that the signature of Lydia Othieno in the sate agreement between the respondent and 0thieno 0chieng Ctement amounted to spousaI consent and that the appeLtant did not chaLtenge this at the triat. 6. The Learned Justices of the Court of Appeal. erred in law and fact in faiting to property evaLuate the evidence on record thereby canceLting the appettant's certificate of titte and arriving at a wrong decision. The appel.tant prays for orders that the appeal be atlowed and the judgment and orders of the Court of Appeat be set aside. SecondLy, for reinstatement of the appeU.ant on the certificate of titte for the suit property. Further for orders that the appeltant be granted vacant possession of the suit property and for the costs of the appeal. to be provided for. 10 15 20 25 30 35 2 5 At the hearing the respondent was represented by learned counsel Mr Muhimbura PauL and Learned counsel Mr Paut Kawesi represented the appeLl.ant. The appeLl.ant was present in court and the respondent was absent. Both counsel had fited written submissions which they adopted as their submissions in this appeaL and the appeat was adjourned for judgment on notice. PreLiminary Point of Law The Respondent's counseL ob.lected to atl. the grounds of appeaL on the ground that an appeat onLy ties to the Supreme Court on points of law and not mixed Law and fact but the six grounds of appeaL are on mixed Law and fact. Further, the wording of each ground of appeat was that Justices of appeat erred in [aw and fact in reaching their respective decisions. The respondent's counseL contended that not a singte ground of appeal. is onl.y on a point of Law. The respondent's counse[ relied on Lubanga Jamada vs Dr. Dumba Edward; Court of Appeat Civit Appeat No 10 of 2011 for the proposition that in a second appeaI in a civiI case, the grounds of appeal. can only be on questions of law and not fact or mixed Law and fact. He contended that grounds of mixed fact and Law ought to be struck out. He prayed that the court strikes out the appellant's grounds of appeal for offending the law on framing and raising grounds in a second appeat. Without prejudice to the prel.iminary objection, the respondent's counseI submitted that the appeaI before the court is a second appeaI and the court is precluded from interfering with the findings of fact of the Lower courts as held in Kifamunte Henry vs Uganda; Supreme Court Criminal Appeat No 10 of 1997 that: "on a second appeal. the Court of Appeal. is precluded from questioning the findings of fact of the triaL court provided that there was evidence to support those findings though it may think it possibte or even probabl.e that it wouLd not have itsetf come to the same conctusion; it can onLy interfere where it considers that there was no evidence to support the findings of fact, this being a question of Law". The respondent's counseL submitted that the Court of AppeaL as a first appeLtate court property re-evaLuated the evidence on record and reached correct conctusions. Further that, on second appeal, the 10 15 20 25 30 3 t 5 Supreme Court cannot interfere with findings of fact of the Court of Appeat. ln repl.y to the prel.iminary objection the AppeLl.ant's counseI invited the court to reJect it on the fotlowing grounds: (a) The respondent's counsel did not cite any provision of the Civil. Procedure Act, or the Judicature (Supreme Court) Rul.es to support the submission that appeals from the Supreme Court must be on points of law only. (b) The decision in Lubanga Jamada vs Dr. Ddumba Edward (supra) is distinguishabte and inappLicabte because in that case the suit originated from Nakawa Chief Magistrate's Court. There was an appeaI to the High Court and a second appeal to the Court of Appeat. The Court of Appeal. white interpreting section 72 (1) and 74 of the CiviI Procedure Act, correctly heLd that second appeats to the Court of Appeal. are confined to points of law only and not matters of fact or mixed Law and fact. (c) The Court of Appeal did not hotd that the second appeals to the Supreme Court must be on points of law only. (d) The respondent's counsel must have been under the mistaken betief that section 72 (1) and 74 of the CPA appty to the Supreme Court but they onty appl.y to the Court of Appeal.. (e) The current appeaL originated from the High Court with a first appeal. to the Court of Appeal.. As a second appeaL to the Supreme Court it is governed by ruLe 30 ('l) of the Judicature (Supreme Court) Rutes which attows such appeats to be todged on matters of law or mixed Law and fact. The appetlant's counsel retied on Godfrey Ssebanakita vs Fuelex (U) Ltd SCCA No. 04 ot 2016 and Kifamunte Henry vs Uganda; SCCA No. 10 of 1997 in support of his submissions. ln short he submitted that the grounds on mixed Law and fact are enabled by rute 30 (1) of the Supreme Court rutes. Without prejudice the appel.Lant's counsel submitted that; even if the court was to find that second appeats in civiI matters to the Supreme Court shoutd be confined to matters of Law onty, at[ the grounds of appea[ 10 15 20 25 30 35 4 The appel.Lant's counsel submitted that the Judgment of the Court of Appeat was based on section 106 of the Evidence Act which provides inter alia, lhal in civil proceedings when any fact is especiatly within the knowtedge of any person, the burden of proving that fact is upon that person. The Court of Appeal. found that "the authenticity of the transfer to the respondent was a fact within the knowledge of the respondent but the fact that the appeU.ant was notified upon removat of the caveat was not proved. The absence of this evidence and the fact that there was no possession/occupation of the suit Land by the respondent after the purported transfer from Tom Kaaya irresistibly points to an inference of a fra udutent transf er.' The appetlant's counsel submrtted that the hotding of the Court of AppeaL erroneousty shifted the burden of proof in matters of fraud to the appellant. The respondent had fil.ed a counterctaim against the appel.tant for canceL[ation of the certificate of titl.e. He contended that fraud was not specificaILy pLeaded rn the countercLaim and strictty proved by the respondent. Further, that actuaL fraud and not constructive fraud must be proved (see David Sejjaka Nalima vs Rebecca Musoke; S.C.C.A No. 12 of 1985). Further counseI submitted that the titte of a registered 20 25 30 5 s in this appeal are on points of [aw as they involve interpretation of specific provisions of law and aLso retate to the misapptication or misapprehension of the law by the Court of Appeal.. The appeLtant's counse[ prayed that we overrute the pretiminary objection and determine the appeal on merit. 10 Submissions of Counsel on the merits of the appeat. The appetl.ant's counseI addressed the court on the l't and 6th grounds of appeaI jointty. He submitted that the High Court property evatuated the evidence on record and arrived at the correct decision that the appel.Lant is the rightful. owner of the suit property and was Lawful.l.y registered as 1s such. That the Court of Appeal. erred when it hel.d that the appettant was not a bona fide purchaser for value and cancelted his name on the certificate of titLe without pl.eading or proving fraud against the appelLant. Grounds I and 6 5 proprietor can onty be impeached on the grounds of fraud of the transferee in titLe in terms of sections 77 and 17 6 (c) of the Registration of TitLes Act, cap 230. Fraud must be specifical.ty pteaded and strictl.y proved (see J.W.R lGzzora vs M.L.S Rukuba; SCCA No 13 of 1992 and Kampata Bottters Ltd vs Damanico (U) Ltd; SCCA No. 22 ot 1992.) The appeLLant's counsel submitted that the respondent did not, specificatLy pLead fraud against the appetl.ant or aLtege particutars of fraud and no evidence was adduced to prove it. The appel.Lant's counseI argued that a counterctaim is a separate suit sub.lect to same ruLes of pleading and particulars of fraud are mandatoril.y required to be pteaded under 0rder 6 rute 3 of the Civil. Procedure Rutes. The Court of Appeat erred to find fraud against the appetlant without the requisite pteading or evrdence in support, Without pre1udice, the appettant's counsel pointed out that the respondent al.teged fraud in her written statement of defence but not in the countercLaim. The particuLars of fraud in the written statement of defence are that the appell.ant bought tand which he was futly aware was atready bought by the defendant. Secondty buying Land from one Tom Kaaya who has no legaI right to be registered and to setl the Land. Thirdty the transfer of Land on which there was a caveat duly registered. Fourthty, being registered on instrument numbers which are ctearty forged and backdated. Last[y general.Ly knowing and intentionaLly insisting on buying the suit property knowing that it was atready sotd to and occupied by the defendant. The appeltant's counsel submitted without preludice to earLier submissions that even if the court were to find that the respondent pl.eaded fraud against the appettant, the respondent faiLed to prove such fraud. The burden was on the respondent to prove every particuLar of fraud averred to a higher standard of proof than that on the ba[ance of probabiLities (See J.W.R vs M.L.S Rukuba (supra) and Kampata Bottters Ltd vs Damanico (U) Ltd) (supra). Counse[ noted that the triaI court did not find any satisfactory evidence in this regard. Further, the appellant's counsel submitted that sections 101, 102 and '103 of the Evidence Act iILustrate the rute that the burden of proof Lies on the 10 15 20 25 30 35 6 5 party who asserts the affirmative on any question or issue in dispute. The facts were that it was the respondent who wanted the court to find fraud against the appel.tant so as to impeach his titte to the suit property and he had the burden to prove fraud against the appeLtant. Further, the appeLlant's counseL submitted that the Court of AppeaLfound that the appeLtant had not proved the removaI of the caveat and that this constituted fraud. lt also found that the appel.tant did not have possession of the suit property and this aLso led to an inference of fraud. Based on those findings, the Court of Appeat ordered canceLLation of the appetlant's titl.e to the suit property. The appel.l.ant's counseI submitted that faiLure to notify the respondent of the removal of the caveat and failure to take possession of the suit property were not pLeaded by the respondent in her counterclaim as particutars of fraud against the appetlant. Even if they had been pteaded, the burden was on the respondent and not the appettant to prove them as acts of fraud. SecondLy, the faiLure to notify the respondent of the removaL of caveat and the appettant's fai[ure to take possession of the suit property do not in themsetves constitute fraud. Thirdl.y, fraud has to be strictl.y proved by the respondent beyond the standard of a balance of probabil.ities. Therefore, the Court of AppeaL in cancetling the appel.l.ant's titl.e founded its decision on inference of fraud as opposed to actuaL proof of fraud by the respondent. Further that the obtigation to notify the respondent of the removaL of the caveat is that of the Registrar of Tittes. The appel.l.ant's counsel further drew attention to the eartier stated particu[ars of fraud in the written statement of defence of the respondent. The appell.ant's counsel submitted that Mr. Michael Robert Mugenyi purchased the suit property for a sum of Uganda shitl.ings 49,500,000/= and duty paid the sum on 21't January 2004. That by this time, Tom Kaaya was the registered owner of the suit property, having purchased it from 0thieno Ochieng Ctement, the former registered proprietor who had been registered on the title on l0th June 2003. Before the purchase, the appeLLant did his due diligence in that he carried out a search at the Land office through his agents, EastLand Agency who estabIished that the suit property was registered in the names of Tom 10 15 20 25 30 7 5 Kaaya and it had no encumbrances. Further, Easttand Agency and PW2 Mr. PauL Mugenyi, as agents of the appel.tant, inspected the suit property before the purchase and confirmed that it was occupied by tenants of Mr Tom Kaaya. By 2'l't January 2004, when the appetLant compteted payment for the suit property, the respondent was not the registered owner thereof. Further that the respondent was not in possession of the suit property and onLy took possession after 19rh May 2004. AdditionaLl.y, the appe[tant's counseI submitted that the respondent made the tast payment for the suit property on l3th June 2003. The suit property was registered in the name of Tom Kaaya on 10th June 2003. This fact impLies that by the time the respondent paid the finaL instatment to 0thieno 0chieng Clement, the suit property had al.ready been transferred into the names of Tom Kaaya. ln the premises, the appel.Lant's counseI contended that it was erroneous to say that the appetl.ant bought the suit property weL[ aware of the respondent's interest. The respondent was neither the registered owner nor in possession at the time the appettant purchased the suit property. The burden was on the respondent to prove that the appettant bought the suit property when he was aware that she had bought it and that this constituted fraud but she faited to prove this. The appel.Lant's counsel further submitted that the respondent coutd not attege that she had al.ready purchased the suit property at that time because she had not completed payment by 1Oth June 2003 when Tom Kaaya was registered on the certificate of titl.e. Particul.ars of fraud were buying from one Tom Kaaya who did not have a right to be registered or to se[L the tand. The respondent did not prove that Tom Kaaya sold the Land without a [ega[ right to do so. The suit property was registered in the names of Tom Kaaya on l0'h June 2003 and he Lawful.[y sotd it to the appetlant for a sum of Uganda shiLtings 49,500,000/=. The appetlant's counsel further submitted that the respondent aLso detiberatety refused to sue Tom Kaaya and Othieno 0chieng CLement in her countercLaim. That she ought to have sued them and specificatly pLead fraud against each of them inclusive of the appel.tant to enabte the court determine the rights and interests of each party. He contended that 10 20 25 30 35 8 5 10 15 20 25 30 35 the respondent made serious attegations of f raud against Tom Kaaya who was not sued and cou[d not defend himsetf. He invited the court to reject the aLlegations of fra u d. 0n the question of the transfer of tand when there was a duty registered caveat, the appeltant's counsel addressed the issue in his submissions on grounds 2 and 3 of the appeaL. 0n whether the appeLlant was registered pursuant to instrument numbers which were forged and backdated, the appetLant's counsel submitted that the respondent had an obtigation and a duty to pLead and prove the alleged fraud against the appel.tant but did not do so in the counterclaim. No forgery was proved by the respondent. The respondent did not Lead any evidence to prove that the appettant backdated instrument dates. The respondent was expected to Lead evidence but did not to show when and how the appettant and his agents forged the instrument numbers. 0n the contrary, DW4 Mr Dan 0undo, the registrar, testified that there was no forgery of any instrument number. According to the appetlant's counset, the appel.tant's certificate of titLe to the suit property was canceLLed without the necessary pLeadings and evidence. ln addition, the titl.e was cancetled on grounds which were not pLeaded but framed by the court and not even proved at the triat. Further the particutars of fraud were not strictly proved by the respondent. Repty of the respondent to grounds 1 and 6 ln repty, the respondent's counseL submitted that the Court of Appeal hetd that under section 106 of the Evidence Act the burden of proving any fact within the knowledge of any person is upon that person. He submitted that the authenticity of transfer to the respondent was a question of fact within the knowledge of the respondent and the fact that the appel.tant was notified when the caveat was removed was not proved. That absence this evidence and the fact that the appeltant was not in possessron of the suit property which was in possession of the respondent after the purported transfer from Tom Kaaya, irresistibLy pointed to an inference of a fraudutent transfer. Further, their Lordships, in arriving at the decision whiLe evaluating the evrdence of the trial. court concluded that 9 5 the appeU.ant was f raudu[ent especial.ty at the stage of transfer of the suit land into his names The respondent's counsel further reIied on the definition of Yakobo M.N Senkungu and 4 Others vs Cresensio Mukasa; Court Civit Appeat No l? of 2014 in that it incl.udes: fraud in Supreme 10 20 25 30 35 "at[ acts, omissrons and concealments which rnvotve a breach of [ega[ or equitabte duty, trust or confidence, justty reposed and are injurious to another, or by which an undue or...(unconscionable) advantage is taken of another. A[[ surprise, trick, cunning, dissembting and other unfair way that is used to cheat anyone. Fraud in at[ cases implies a wilful act on the part of anyone, whereby another is sought to be deprived, by ittegat or inequitable means, of what he is entitled to." ln the above decision, the court cited with approvaI a passage from Husky lnternationat lnc. vs Ritz No 15 - 145 of 2016 where the Supreme Court of the USA defined actuaL fraud as " encompassing fraudulent conveyance schemes that can be affected wlthout a false representation. Such fraudulent conveyance typlcatly involves a transfer to a close relative, a secret transfea a transfer of title without transfer of possession or gross ly ina de qua te cons ide ra tion. " The respondent's counsel retted on an excerpt from the judgment of the Court of Appeal. that: "in this case the appettant was in possession/occupation of the property in issue. Atthough the appel.tant does not have a legaI right over the tand, she has an equttabLe one. The respondent therefore hol.ds/owns the property sub.lect to the appettant's interest. Section 77 of the Registration of Tittes Act provides for the effect of titLe obtained by f raud. lt expressly provides as foLlows; any certificates of titte, entry, removalof encumbrance, or canceltation, in the register book, procured or made by fraud, shaLL be void against aLL parties or privies to the fraud" and prayed that grounds 1 and 6 of the appeat be rejected on the above basis. Rejoinder to grounds 'l and 6 by appettant. ln rejoinder the appeLl.ant's counseL submitted that the respondent did not, in the submissions, respond to or dispute the fact that fraud was not 10 15 5 10 15 20 7q 30 specificatty pLeaded in the counterctaim. Further, the respondent did not strictLy prove any fraud to warrant the cancetlation of the appettant's titte. Ground number 5: The appeLlant's counsel submitted that the Court of AppeaL held that the signature of Lydia 0thieno that appeared on the saLe agreement between Othieno Ochieng Ctement and the respondent amounted to spousal consent. 0n the other hand, the learned triaL judge he[d that Othieno Ochieng Ctement had not obtained the consent of Lydia Othieno, his spouse. She found that specific forms of consent were necessary before the transfer and this was absent. The appeLtant's counseI invited this court to uphol.d the decision of the High Court. He submitted that it was not in dispute that the suit property betonged to the family of 0thieno 0chieng Ctement before he soLd it to Tom Kaaya. lt was the respondent's testimony that 0thieno Lrved in the house with his wife and three chitdren at the time she bought the suit property. The respondent claimed to have obtained the consent of Lydia 0thieno at the time of signing the saLe agreement and buying the suit property from Othieno 0chieng. The evidence adduced in court was that the respondent paid the first instalment for the suit property on l3'h December 2002 and the last instaLment on 13th June 2003. The appeltant's counsel contends that Othieno Ochieng Clement was required to obtain the consent of Lydia 0thieno before setting in accordance with section 39 (1) of the Land Act, 1998. Section 39 (1) (supra) prohibits the sale or transfer of famity land or contracts of sa[e or transfer of famity tand without the prior consent of a spouse. The requisite consent has to be in a specified format provided for under regutation 63 (3) of the Land Regutations 2001 and Form 37 of the First Schedute to the regutations. The appel.[ant's counseL submitted that the requirement under the law to obtain consent of a spouse was couched in mandatory terms. ln the premises, the learned triaL judge correctty hetd that the stipulated form of consent was necessary before the transfer. 0n the other hand, the Court of Appeal. hel.d that the signature of Lydia Othieno on the sale agreement amounted to spousaI consent. The appeILant's counseI contends that this contravened the provisions of section 39 (1) of the Land 11 5 Act, cap 221 and regutation 63 (3) and as weLL as Form 37 of the First ScheduLe to the Land Regutations,2001. Further, the appeltant's counseI submitted that Lydia 0thieno did not sign anywhere in the sate agreement and her name was merely scribbled on the agreement probabl.y after the fil.ing of the suit. The scribbLe on the sale agreement did not amount to spousal consent. He contended that the holding of the Court of Appeal. defeats the purpose of enacting the provisions of the law on spousaL consent and encourages the taking advantage of others by visiting, ptedging, mortgaging or in any other way deaLing in famiLy [and without the knowtedge or consent of the other spouse and through m isrepresentation, fraud or mistake. Spouses or other non-spouses coutd freety scribbLe signatures on saLe agreements on mortgaged deeds and other transfer documents and that such transactions wouLd be val.id. He contended that this woutd cause uncertainties and create room for mistakes, m isrepresentation, duress and fraud to the detriment of famities especia[ty women and chitdren who are most Likety to become homeLess. The appe[tant's counsel submitted that Form 37 is intended to minimise such incidents. lt is couched in ctear words that enables a spouse to understand what she is consenting to. lt also enables transtation; in case this is required. The form enables specific information such as the location of Land in issue, its approximate area, whether it is registered, or what the user of the Land such as for farming or housing is; the nature of the transaction and whether consent of a spouse was got or refused and the reasons therefore. 72 10 15 20 25 30 ln short, the appettant's counseL submitted that 0thieno 0chieng CLement sol.d famiLy [and to the to the respondent without obtaining prior consent from his spouse. A suit chatlenging the sate of [and to the respondent had been filed. Further Lydia 0thieno did not fiil. or sign, Form 37 in the First Schedul.e to the Land Regul.ations, 2003. ConsequentLy, the sate agreement between 0thieno 0chieng Ctement and the respondent is nutl and void and monies paid couLd be recovered using another remedy at Law. The appelLant's counsel submitted separately on ground 4 of the appeaL where it is averred that: Ground 4. The learned Justices of the Court of Appeat erred in law and fact in hotding that the appeLtant was not a bona fide purchaser for vatue. The appel.tant's counsel submitted that the Court of Appeat found and hetd that the appettant was registered on the suit property when there was a subsisting caveat by the respondent and he was therefore not a bona fide purchaser for value without notice. Further the Court of Appeat heLd that the respondent was informed of the subsisting caveat. lt was not proved how the caveat was vacated and there was no notice to do show cause why the caveat should not be vacated on the record. The appetl.ant's counsel submitted that Mr. Michaet Robert Mugenyi is a bona fide purchaser for vaLue without notice of another's ctaim. He had no actuaI or constructive notice of any defects or infirmities, claims, or equities against the selter's titte and took in good faith for valuabte consideration without notice of prior adverse cLaims. (See definition in Black's Law Dictionary Eighth Edition page 1271). The appel.l.ant's counseI reiterated submissions that the appel.Lant conducted a due diLigence as stated earlier and there was no subsisting caveat at the time of registration of the appell.ant. With regard to the removal of caveat, the burden was not on the appettant to prove how the caveat was removed. The burden was on the respondent who wanted cancelLation of the appeLl.ant's titte to prove to the satisfaction of court that the caveat was fraudul.entl.y removed and therefore the Court of Appeat erred in shifting this burden on the appeLl.ant. The appel.tant did not appl.y for removaL of the caveat. lt was Tom Kaaya who appl.ied for its removaL and the registrar of titLe vacated the caveat in accordance with the [aw. The respondent, being aggrieved with the removal of the caveat, ought to have sued Tom Kaaya and the Registrar of Tittes for fraud or untawfuL removal of caveat which she did not do. Further, the appel.Lant's counseI submitted that the Registrar of Titi.es should not be fauLted for vacating the respondent's caveat in February 2005. This is because the respondent did nothing since Jul.y 2003 when she todged the caveat. She did not take any step to determine her rights 13 10 15 20 25 30 35 5 and interests in the suit property. lmmediately after Lodging the caveat, the respondent sat back and retaxed for almost 2 years thereafter. She ought to have sue the persons responsible. The caveat was a temporary protection of her interest and not a permanent remedy. Counsel further retied on Rutungu Properties Ltd vs Linda Harriet Carrington; CACA No 6'l of 2010 where the Court of Appeat with reference to the East African Court of Appeal. judgment in Boyes v Gathure n9691 1 EA 385 hel.d that a caveat is simitar to an intertocutory injunction as it onLy gives a temporary protection of interest. The caveator is required to sue in an ordinary suit without undue detay to determine the caveated interest as against other rights or competing interests and obtain a permanent remedy in app ropriate cases. ln the premises, the appel.Lant's counsel submitted that the appettant is a bona fide purchaser for value, protected by sections 136, 176 (c) and 181 of the RTA. Further, the respondent breached the payment terms of the sa[e agreement with Othieno Ochieng Ctement by faiting to pay in time or by making the finat payment after the property was transferred to Tom Kaaya and she cannot claim that the appel.Lant was not a bona fide purchaser for vaLue. Repty to grounds 4 and 5 of the appeat by respondent. ln repty to the submissions on grounds 5 and 4 of the appeaL, the respondent's counsel stated that the onty instance where a transfer/transferee can be protected is if he or she is a bona fide purchaser for vatue without notice under section'181 of the RTA. Further in order to fa[L under the protection of section 181 of the RTA, he or she must prove that she acted in good faith, paid consideration and purchased the Land without notice of any fraud. Such notice refers to both actuaL knowtedge and constructive notice of fraud. The purchaser is said to have a factual notice of rights of which he knows, and to have constructive notice of rights which he coutd be reasonabty expected to discover. He wiLl. be imputed with notice of any matter which his agent has or shoutd have discovered. The Court of Appeat was not convinced that the appel.tant was a bona fide purchaser for vaLue without notice of fraud as he was aware of the respondent's interest in the suit Land. 14 10 15 20 25 30 35 CounseI relied on Jones vs Smith (1841) I Hore Chancery Court cited in Yakobo Senkungu and 4 others vs Cresensio Mukasa (supra) where it was held that "a purchaser has constructive notice of a fraud if he has actual notice that was some encumbrance and a proper inqurry would have revealed what it was, has abstained erther deliberately, carelessly from making those enquiries which a prudent purchaser would have made". The respondent's counseL submitted that the Court of AppeaL as a first appeLl.ate court upon evaLuating the evidence noted that: "this casts doubt on the truthfutness that the respondent is a bona fide purchaser for vaLue without notice. The record shows that the respondent's agents had visited the premises and found it in occupation by the appetlant's tenants". Counsel submitted that the Court of AppeaL rightly hetd that the signature of Lydia Othieno that appeared on saLe of Land agreement between Othieno 0chieng Clement and the respondent amounted to spousaL consent having the provisions of section 39 of the Land Act cap 227 in mind. lt is the respondent's submission that the signature of Lydia 0thieno on the agreement amounted to spousal consent to the saLe of the suit fand. As a matter of fact, the appeLLant has no tocus standi lo chatlenge the want of consent if at atl because he is neither a spouse to 0chieng Clement nor a famity member who derives sustenance from the suit Land within the meaning of section 39 of the Land Act. The respondent's counsel supported the Court of AppeaL conctusion that upon proper scrutiny of aL[ the evidence lrene Ka[iba[a, the appeLtant in that court, had entered into a Land sate agreement duLy witnessed among other by Lydia 0thieno. The Court of Appeal. agreed with the appetlant's submission that the signature of Lydia 0thieno in the sa[e agreement amounted to consent. There was no proof of any pending suit between Lydia 0thieno and lrene KaLibal.a chaLl.enging the purchase of the property. The respondent did not chaltenge the authenticity of the signature at the triaL and the court hetd that the signature of Lydia 0thieno on the sate agreement amounted to spousaI consent. The respondent's counsel aLso relied on the evrdence of lrene Katibal.a and submitted that, Lydia 0thieno her consent by signing on the sate of 10 15 20 25 30 35 15 5 [and agreement hence the Court of AppeaL did not err in Law to arrive at the conclusion that the signature of Lydia Othieno in the saLe agreement amounted to consent of a spouse. He prayed that we reject grounds 4 and 5 of the appeal.. ln rejoinder to submissions on grounds 5 and 4 ln rejoinder to grounds 5 and 4 of the appeat, the appeLLant's counsel reiterated submissions on lack of spousaIconsent. He further submitted that the respondent in her countercl.aim detiberatel.y omitted to sue Lydia Othieno or Ctement 0thieno from whom she purported to have bought the suit property and that had they been in court, they would have confirmed that the signature on the sale agreement was not that of Lydia 0thieno. The appetlant's counsel submitted that the appeLlant is not a member of the Othieno famity and that he has no tocus standi lo chatlenge the sate agreement between the respondent and 0thieno. That the requirement for consent of a spouse is a statutory requirement and reiterated eartier submissions on the same. Counsel contended that this is a matter of law and does not require the appeltant to be a member of the vendor's famiLy to raise it. The transaction was an ittegatity for contravention of the express provrsions of the [aw. Further that the court cannot ignore the itLegaLity brought to its attention. Further and in rejoinder to ground 4, the appetlant's counseL reiterated earlier arguments on ground 4. Grounds 2 and 3 of the appeat. The appettant's counsel argued grounds 2 and 3 together and submitted that the Court of Appea[, misconstrued the facts of the case and the entire process of registration and transfer of interests in [and. There were two questions for determination by the court which were; (a) when is registration of an instrument or interest in Land deemed to be comptete and (b) whether by 14th June, 2005, there was a subsisting caveat by the respondent? 0n the question of when the registration of an interest or instrument in the Land is deemed to be comp[ete, the appe[l.ant's counseI submitted that the registration of instruments of interest in tand is done in accordance 16 10 15 20 30 5 with section 51 and 52 of the Registration of Titl.es Act and from a literal interpretation of section 52, the registration becomes complete and effectuaI when atL the fottowing are done by the Registrar of Tittes. When the registrar has entered the Memorial of the instrument in the register book and the dupl.icate certificate of titte. Secondl.y when the registrar has endorsed on the instrument a certificate of entry of the Memorial on the foLium of the register and that thirdty, that the registrar has signed his or her name on the certificate. The appetlant's counsel submitted that the date on which the Registrar of TitLes signs the certificate endorsed on the memoriaL is the effective date of completion of registration. lt is not the date appearing on the lodgement of the instrument of transfer. Therefore, with regard to entries on [and tittes, the date that appears on the ownership page of a certificate of titl.e is rarety the effective date of registration of the transferee on the titte. Where there is a dispute as to when the actuaL registration was concluded, regard must be had to the memoriaL. DW2 who was the Registrar of Titles at the material time testified that he had in his possession the originaL tand fil.e and documents in respect of the suit property which were shown to the triat judge. He submitted that the Justices of Appeal. did not benefit from this fiLe. The appeLl.ant's counsel submitted that by ]4rh June 2005, the question was whether there was a subsisting caveat Lodged by the respondent? lt is not in dispute that the appel.Lant's instrument of transfer was todged on 9th Juty 2004. 0n the other hand, the respondent's caveat was registered on 15rh July 2003. The respondent's caveat l'apsed and was removed on 21't February 2005. Further the Registrar of Tittes proceeded to complete the registration process of the transfer instrument that had been Lodged on 9th Juty 2004, on l4th June 2005, after removaI of the caveat. Counsel submitted that the Court of Appeat erroneous[y hel.d that the suit property was transferred to the appetlant when there was a subsisting caveat by l4th June 2005, yet the registration and transfer of the suit property to the appell.ant was done and compteted in accordance with section 52 of the RTA, there was no subsisting caveat by the respondent. By this time the caveat had lapsed four months back on 21't February 2005. 1,7 10 20 25 30 15 5 ln conctusion, counseL prayed that this court atlows the appeaL, sets aside the Judgment and orders of the Court of AppeaL and reinstates the orders and awards of the High Court. Further, he prayed that the appetlant is reinstated on the certificate of titLe to the suit property and granted an order of vacant possession of the suit property. The appel.l.ant atso prays for an award of costs of the appeat and in the courts be[ow. Repty to grounds 2 and 3 by the respondent. 10 15 ln repl.y to grounds 2 and 3 of the appeal, the respondent's counsel submitted that the Court of Appeat properly evaLuated the evidence on record and reached the correct decision that the appetlant was registered white the respondent's caveat on the register was subsisting. The Court of Appeat hetd that "in this case Tom Kaaya transferred the suit tand to the respondent (MichaeL Robert Mugenyi) for a consideration of Uganda shiLlings 49,500,000/= and the interest of Michaet Mugenyi was registered on 9th JuLy 2005 under instrument number KLA 261812 at 3.13 p.m. The appetlants caveat was registered on 15th Juty 2003 under instrument number l<LA 25256 at '1028 am. The caveat Lapsed on 21't February 2005. The certificate of title in issue shows that the caveat was registered in the year 2003. The respondent's interest is regtstered in the year 2004 and the caveat expired or Lapsed in the year 2005. This demonstrates that the caveat was stiLL subsisting at the time the respondent was registered. Further it was erroneous to submit that registration was conctuded on 14th June 2005 because this date is not the one indicated on the titte as the date of registration of the respondent was affected. The respondent's caveat was present on the titLe at the time the appeLtant purportedty got registered and so the registration had been obtained frauduLentLy. The appeLl.ant's counsel reLied on Frederick JK Zaabwe vs Orient Bank Ltd & five others; Supreme Court Civit Appeat No 4 ol 2O06 where Katureebe JSC stated that "how can a purchaser who buys a property subject to a caveat claim not to have had notice, the merits or demerlts of the caveat notwtthstanding. ln my view, Ali Hassan bought property that was subject of a caveat. He cannot be a bona l'ide purchaser without notice. ln the circumstances, the transfer to him is defeated by the fraud." 20 25 30 35 18 5 The respondent's counsel submitted that in the circumstances and from the evidence on record, the respondent testified at the triaLthat when a search was conducted at the Land Registry, he was informed that there was a caveat. The Registrar of Titles testified that when a caveat exists on a tit[e and an apptication is made for its removat, a notice is issued to show cause why the caveat should not be removed. Such notice was not on the fiLe and he further testified that the respondent was registered when the appetlants caveat was sti[[ subsisting. Counse[ further rel.ied on Frederick JK Zaabwe vs Orient Bank Ltd and others (supra) where Tsekooko JSC hetd lhal; "there ts the question of sale of the suit property to one Alwi Hassan, a third party. / entirety agree with the reasoning of my tearned brother, Katureebe JSC, that Atwi Hassan cannot on the facb of this case, claim to be a bona fide purchaser and therefore his purchase is vitiated by the fraud. The existence ofa caveat on the registrar should have put him on notice." The respondent's counseL submitted that the Court of AppeaL re- evatuated the evidence on record and reached a correct decision that the appettant was registered on the suit [and white a caveat of the respondent forbidding registration of interest on the [and subsisted. The appe[l.ant did not invoke section 140 (1) of the Registration of Titl.es Act Cap 230 to dea[ with the caveat but instead, chose to procure registration on the suit Land titte f rauduLentty. The respondent's counsel retied on Eng. Mee Young and Others vs Letchumanan s/o Vetayutham n980] AC 321 where the Privy CounciL hetd that "the caveat under the Torrens system has often been likened to a statutory tnjunctpn of an intertocutory nature restraining the caveatee from deating with the tand pending the determination of the court of the caveator's claim to the title over the tand, in an action brought by the caveator agatnst the caveatee for that purpose". Further, registration, as in this case, when the caveat of the respondent was stil.L subsisting is not onty fraudutent but also il.Legal.. The respondents counsel prayed that the court rejects grounds 2 and 3 of the appeat. Finatl.y, the respondent's counsel prayed that we dismiss the appeaI and order the appeltant to pay the costs in this court and in the courts betow. Rejoinder of appettant to grounds 2 and 3 10 15 20 25 30 19 5 ln rejoinder, the appeLlant's counsel maintains that the matters of the caveat Temoval were between Tom Kaaya and the respondent and the registrar of title. The appell.ant had nothing to do with the removaL of caveat. lf the respondent had any issue with the removaL of the caveat, she ought to have sued Tom Kaaya and the Registrar of Titl.es for the removat. Further that she ought to have proved fraud against them and then attributed the fraud to the appetlant. She elected not to sue the most important persons in her attempt to purchase the property. She did not lead any evidence at the triaL to prove that the caveat was fraudul.entty removed. The respondent did not attribute fraud or fraudulent removaLof the caveat on the appetlant. Appettant's counseI further submitted that the appellant was neither the registered proprietor at the time the caveat was [odged nor was he the registered proprietor when it was removed. The parties better ptaced to exptain the caveat removaI were Othieno Ctement and Tom Kaaya. Appetlant's counseL further submitted with emphasis that the MemoriaI of the instrument of transfer from Tom Kaaya to the appetlant was signed on l4th June 2005 and which in [aw, is the effective and actuaI date when the registration of the transfer of the suit [and to the appetlant was deemed completed. By 14rh June 2005 there was no subsisting caveat on the tand as the same had been vacated at the instance of Tom Kaaya on 2'l't February 2005. Consideration of the appeat I have thoroughLy reviewed the appeal., the counse['s submissions, the cited precedents, and the taw in generat. Before addressing the merits of the appeal., I must first consider the preliminary ob.lection claiming that the appeal. is incompetent. The respondent seeks an order to strlke out at[ the grounds of appeat. The respondent contested alt the grounds of appea[ based on the provisions of section '72(1) of the CiviL Procedure Act, arguing that the Law requires a second appeat to address onty matters of [aw and not mixed law and fact. ConverseLy, the appeILant's counsel contended that section 72(1) ot the Civil. Procedure Act (Cap 71 Laws of Uganda) is inappticabLe 20 10 15 20 25 30 35 5 to the Supreme Court. To substantiate this cLaim, the appettant's counsel referred to RuLe 30(1) of the Judicature (Supreme Court) Rul.es, asserting that it al.l.ows the Supreme Court to consider grounds of mixed law and fact. After carefuL evaluation of the written submissions from counseI concerning the preLiminary tegal. point, lfind that it raises a matter of generaI or pubLic importance with potential. impticatrons for future appeats. The centraI issue is whether section 72 of the CiviI Procedure Act appties to the Supreme Court in civit proceedings and second appeals. This stems from the notion that under sections 72 and 74 of the Civil. Procedure Act, second appeats in civiL matters can onty be Lodged on matters of law and not on mixed law and fact. Therefore, we must determine whether second appeals to the Supreme Court in civiI matters are restricted to matters of law or may also encompass mixed [aw and fact. This necessitates an interpretation of section 6(1) of the Judicature Act in rel.ation to the existing law on second appea[s in civil. matters. Another re[ated issue is whether sections 72 and 74 of the Civit Procedure Act are binding on the Supreme Court, considering that section l4 of the Judicature Statute, 1996, aLtered the reference tn that section from "Supreme Court" to "Court of Appeat." The first inquiry is narrowty focused; its outcome wiIL determine whether, as a matter of [aw, section 72 of the Civil. Procedure Act ceased to appl.y to the Supreme Court after the promuLgation of the Constitution of the Repubtic of Uganda on 8th 0ctober 1995. SecondLy, we wit[ expLore the case Law on second appeaLs to ascertain what is meant by a matter of Law without reference to section 72 of the Civil. Procedure Act and to determine if these definitions and principLes are app[icabLe to the Supreme Court concerning second appeats in civiI matters. Existing Law as of 8th October 1995 The renaming of the Court of Appeal to the Supreme Court fotLowing amendments to the Constitution of the Repubtic of Uganda, 1967, in 1987 and the subsequent revision of the Judicature Act, did not address the Civil. Procedure Act, especiatly concerning second appeals under sections 72 and 74. ConsequentLy, the question arises regarding the 10 15 20 25 30 35 21 5 appticabitity of sections 72 and 74 to the new Supreme Court, which possesses a new appellate lurisdiction defined in the Constitution of the Repubtic of Uganda 1995. The explicit wording of section 72 indicates that its provisions pertain to second appeats todged in the Court of AppeaL, with no mention of the Supreme Court. The Court of Appeat was the highest appetl.ate court at the time of the enactment of the CiviL Procedure Act, and its provisions on second appeals were appticabte to it. With the Supreme Court now estabtished as the apex court in Uganda, it hears appeaLs from the Court of Appeat under the ,l995 Constitution and primariLy serves as a second appetl.ate court in civiI and criminaLmatters originating from decisions of the High Court in the exercise of its original jurisdiction. Regarding second appeats todged in the High Court, section 72 of the Civil. Procedure Act is inappLicable. SecondLy any law on second appeaLs todged in the High Court wou[d be Largel.y redundant due to the phasing out of Magistrate Grade ll Courts. When a Grade ll Magistrate adjudicates a civiI case, the decision is appeatabLe to the Chief Magistrate's Court as a first appeal. Fottowing that, a second appeal. woutd be directed to the High Court. For the Court of Appeat, the complexity of second appeaLs and their trajectory was intensified by the renaming of the Court of AppeaL as the Supreme Court under the Constitution of the Republ.ic of Uganda, 1967 and the Judicature Act, 1969, in 1989. The Supreme Court then had jurisdiction to hear and determine appea[s from the High Court. ln'1995, a change in jurisdiction defined the Supreme Court as a court to hear appeal.s from the Court of Appeal. The former Court of Appeal was variousty referred to as the East African Court of AppeaL and even then served as the highest appetlate court in Uganda. Under the Judicature Act of 1967, the Court of AppeaL possessed jurisdiction to hear appeaLs from the High Court's decisions. This jurisdiction under the names of the Supreme Court between 1989 and 1995 and returned to its originaL name of Court of Appeat in 1996. Historical.ty, the Court of Appeal., referred to variously, incl.uding as the East African Court of Appeal., hetd appel.Late jurisdiction over the High Court's decisions. After Uganda's independence 10 15 20 25 30 35 22 5 from Great Britain, the Court of Appeat was indeed the highest domestic appe[[ate court. Before the promutgation of the Constitution of the Repubtic of Uganda in 1995, the estabtished law retevant to the highest appettate court and to second appeats in civiL proceedings was section 72 of the CiviI Procedure Act, which provides: ?2. Second Appeat. 1. Except where otherwise express[y provided in this Act or by any other [aw in force, an appeal shatL tie to the Court of Appeal from every decree passed in appeal by the High Court on any of the foLlowing grounds: (a) that the decision is contrary to law or some usage having the force of [aw; (b) that the decision has failed to determine a material issue of law or usage having the force of [aw; (c) that a substantial error or defect in the procedure has occurred which may have produced an error rn the decision of the case on its merits. 2. An appeat may [ie under this section from an appeltate decree passed ex parte. This section is reinforced by section 74 of the CiviI Procedure Act, which states: 74. Second Appeal on No Other Grounds Subject to section 73, no appeal to the Court of AppeaL shatt Lie except on the grounds mentioned in section 72. Section 73 makes provisions for third appeats, white section 74 restricts second appeals to the grounds set out in section 72. This LegaI framework was examined in Shah v Aguto [1970] I EA 263, where the East African Court of Appeal. ruLed that "in a civit case a second appeal. onLy ties to this Court on questions of law as outtined in section 72 of the CiviI Procedure Act." The Civil. Procedure Act was appl.icabte to the East African Court of Appeat, and in Beatrice Kobusingye v Fiona Nyakana; Supreme Court Civit Appeat No. 31 of 2013, the Supreme Court reaffirmed the appticabitity of 10 15 20 25 30 23 5 10 15 20 25 30 sections 72 and 74 to second appeaLs in the Court of Appeat under the 1995 Constitution. Section 'l of the Civil. Procedure Act states 1Apptication This Act shatl extend to proceedings in the High Court and Magistrates Courts This inclusive wording indicates that the Act appties not solety to the High Court and Magistrates Courts. Sections 66 to 79 govern appeals from the High Court to the Court of Appeat (formerty the Supreme Court) and confer jurisdiction on the latter, which served as the highest appettate court between 1989 and the promulgation of the 1995 Constitution. The CiviL Procedure Act extended to aLL courts of judicature, and section 1 did not [imit it to the High Court and Magistrates Courts (see Beatrice Kobusingye vs Fiona Nyakana and George Nyakana; Civit Appeat No. 5 of 2004 (2005) UGSC 3 (22 February 2005), where the Supreme Court asserted that the CiviI Procedure Act appties to atl courts). The appLicabil.ity of the Civit Procedure Act to the courts of judicature begs the question of whether this Act ceased to appty to the new Supreme Court estabtished under articte 129 when the 1995 Constitution was promuLgated. The current Supreme Court determines appeats from the Court of Appeat-a court constituted to hear cases originating from the High Court (where the prior Supreme Court served this function). The Civil. Procedure Act express[y covered aL[ courts of judicature, which incl.uded the Court of AppeaL (the then-highest court) in addressing appea[s from High Court decisions. Generat[y, the Civil. Procedure Act governed appeaLs from a Magistrate Grade llto the Chief Magistrate and from the Chief Magistrate to the High Court concerning second appeaLs. The Civit Proced ure Act was enacted on lst Ja nuary 1929 , a date when no court exercised the jurisdiction of the current Supreme Court of Uganda under Chapter 8 of the Constitution of the Repubtic of Uganda 1995 ln summary, appeal.s could arise from the High Court in exercising its origina[ ]urisdiction to either the East African Court of Appeat or the later-named Court of Appeat of Uganda, which remained the highest 35 24 appetLate court in the country. lnitiaLly, appeats from the High Courts of Uganda, Kenya, and Tanzania were aLI heard in the East African Court of Appeal.. Subsequentty, each country retained its nationaI court of appeaI to exercise the same jurisdiction. Therefore, the Court of Appeal, which was renamed the Supreme Court of Uganda by '1989, was the highest appeLtate court and heard appeaLs from High Court decisions, whether originating from originaL or appelLate jurisdiction. There was no existing court of judicature immediatel.y prior to October '1995 with the current jurisdiction of the Supreme Court under Chapter 8 of the Constitution of the Republic of Uganda 1995. Continued Appticabitity of Civit Procedure Act Section I of the Judicature Act (Act l1 of 1967, repealed and replaced by the Judicature Act Cap 13 in 1996 before a [aw revision in 2023) specified the courts of judicature as the High Court estabtished by the Constitution; and the Court of Appeal. establ.ished under the Appetl.ate Jurisdiction Act. SecondLy, it provided that "Each court of judicature shatl have and exercise such jurisdiction as is conferred upon it by or under the Constitution or any other enactment. The jurisdiction of the Court of Appeatwas conferred by section 40 of the Judicature Act of '1967, stating. 1. The Court of Appeat shatl be a superror court of record in and for Uganda and sha[[ have such jurisdiction as is conferred upon it by this Act or any other written law immediately before or after the commencement of this Act. 2. For the purpose of hearing and determining appeats, the Court of Appeat shatI have the power, authority, and jurisdiction vested in the court from where the appeaI originates. 3. Subject to any rules made under or having the effect by virtue of the provisions of section 43 of this Act, the Court of AppeaI may sit in Uganda or etsewhere. 25 10 20 35 1s The Court of AppeaL of Uganda was renamed the Supreme Court from 1989 to 1996. As a resutt, sections 72 and 74 of the CiviI Procedure Act continued to appl.y to the court referred to as the Supreme Court prior to the enactment of the 1995 Constitution. 25 30 5 FoLLowing amendments made by the Constrtution (Amendment) Statute 11 of 1987, ArticLe 89 of the Constitution of the Republ.ic of Uganda, 1967, was modified to replace "the Court of Appeat of Uganda" with "Supreme Court of Uganda." Section I of the amendment provided that: 1. There shatL be a court of appeat known as the Supreme Court of Uganda, serving as a superior court of record with atl the powers of such a court. 2. An appeat shalt tie to the Supreme Court from final decisions of the High Court prescribed by any written [aw. 3. No appeat shatt tie from the Supreme Court or, except as provided by this articte, from the High Court of Uganda. Appeal.s originated from the High Court to the Supreme Court, the highest appetl.ate court. This constitutional amendment ted to the subsequent Judicature Act (Amendment) Statute 12 of 1987, which incLuded provisions to reptace the name "Court of Appeat" with "Supreme Court" in sections 40, 40A, \tt,45,48,48A, and 48B. Thus, the wording "Court of AppeaL" found in the Judicature Act of 1967 was changed to "Supreme Court." lmportantLy, this change did not a[ter the substantive.lurisdiction of the court, as the highest appeLtate court in Uganda, retaining the same powers. The references found in sections 72 and 74 of the CiviI Procedure Act to "Court of AppeaL" were rendered appLicabte to the Supreme Court. Moreover, any Act of Partiament or subsidiary tegistation using the term "Court of Appeat" had to be read to mean "Supreme Court of Uganda." Any other interpretation woutd conflict with the vatid and existing Constitution of the Repubtic of Uganda, 1967, as amended. Therefore, re-empLoying the term "Court of AppeaL" after 8th 0ctober 1995, fol.towing the promuLgation of the 1995 Constitution, necessitates an express statutory provision for amendment. Sections 72 and 74 are interpreted as civil procedure laws on second appeats, governing existing courts of judicature. 10 15 20 25 30 35 Sections 72 and 7l+ of the CiviL Procedure Act apptied to the above Court of AppeaI exercising its jurisdiction, irrespective of the name it carries. The case law regarding second appeaLs in civiL matters was governed by sections 72 and'14 of the CiviL Procedure Act. 26 5 Subsequently, Articte 129 of the Constitution of the RepubLic of Uganda 1995 amended the legat framework. lt introduced the Court of AppeaI as an entity empowered to hear appeats from the High Court. Concurrentty, the newly estabLished Supreme Court was given jurisdiction to hear appeaLs from decisions of the Court of Appeal.. The Court of AppeaL continued the appeLlate jurisdiction of the Supreme Court just before the promulgation of the 1995 Constitution, thus continuing to serve the same function under a new name. The existing personnel of the Supreme Court could not, at that point, hear appeals from their own decisions made immediatety before the jurisdictionaL shift, but the judgments maintained the status of being decisions of the highest appeLl.ate court in Uganda. The Court of Appeal, with its now-prescribed jurisdiction, hears appeats from originaI and appetlate decisions of the High Court. Article 129 of the Constitution of the Republ.ic of Uganda states that the courts of ludicature consist of: 1. The Supreme Court of Uganda; 2. The Court of AppeaL of Uganda; 3. The High Court of Uganda; and 4. (Such subordinate courts...) Articl.e 129(3) atlows Partiament to define the jurisdiction and procedure of the courts. As such, we must assess whether Partiament has enabted the existing law on civiI and criminaI procedure to apply to the Supreme Court, given its new appettate jurisdiction. The jurisdiction of the Supreme Court under the 1995 Constitution is expected to encompass hearing appeals from decisions of the Court of AppeaL. Further, the Court of AppeaL is to hear and determine appeals from the High Court, exercising its original. or appeltate.lurisdiction. lt coutd be argued that the Supreme Court, as an existing court, is under the same lurisdiction, governed by existing taws. WhiLe the pre-0ctober 1995 jurisdiction of the Supreme Court focused on appeats from the High Court, its current .lurisdiction since the 8th 0ctober 1995 pertains to appeats from the Court of Appeat. The contention lies in identifying which proceduraI Act appties to this Supreme Court. 10 15 20 30 35 27 5 The concern with not apptying the existing law to the Supreme Court under the 1995 Constitution is that this wouLd leave it without any procedura[ [aw enacted by ParLiament, except through the appLication of existing law under Article 27 4 of lhe Constitution. As far as the naming of the courts is concerned, it is crucial to acknowtedge that the current Court of AppeaL corresponds to the former Supreme Court rn terms of functions and jurisdiction. Sections '12 and74 of the CiviL Procedure Act applied solely to the Supreme Court for second civit appeats before the enactment of the 1995 Constitution. Parliament has yet to exercise its prerogative under Articte 129(3) of the Constitution to amend the Law governing second appeals in civiI matters to ctarify its what the law is to both the Supreme Court and the Court of Appeal under the 1995 Constitution. No amendment has been made to section 72 of the Civil. Procedure Act to specificatty state that it now appties to both the Court of Appeal and the new Supreme Court. lt shows that those provisions apply to the Court of Appeat. There is sitence in the Civit Procedure Act on what civiI procedure taws apply to the Supreme Court on second appeats. ln conctusion, the Supreme Court currentty exercises appetLate jurisdiction for second or third appeaLs under the Judicature Act, with the exception of constitutionaI matters where it functions as a first appetlate court. Prior to 1995, second appea[s todged in the Supreme Court originated f rom originaI decisions made by a Magistrate's Court, with f irst appeaLs being todged in the High Court. Conversely, section 73 of the Civil Procedure Act articuLated the parameters for third appeats originating from decisions of a Magistrate Grade ll Court. Appeal.s from decisions rendered by Grade ll Magistrates woutd go to a Chief Magistrate's Court. Second appeaLs to the High Court were permissible onty after a first appeaL was initiated at the Chief Magistrate's [eve[. Jurisdiction of the Supreme Court in CiviI Proceedings post-October 1995 Presentty, section 6(2) of the Judicature Act, Cap 16 provides for a third appeal to the Supreme Court under circumstances where the appeat originates from a.ludgment or order of a Chief Magistrate or a Magistrate Grade I in the exercise of originaLlurisdiction. lt is essentiaI to note that 2a 10 15 20 25 30 35 5 third appeal.s to the Supreme Court arise from appettate decisions rendered by the Court of Appeat on points of [aw, as defined by section 72 of the CiviI Procedure Act. The right to pursue a third appeaI can on[y be exercised with the court's leave when a certificate has been issued indicating that the matter disctoses questions of Law of generaI or pubtic im po rta nce. A criticaL question is whether the current Supreme Court, as a second appel[ate court, exercising jurisdiction in appea[s from the Court of Appeal.-which in turn hears appea[s from the High Court-can entertain matters of mixed Law and fact in civit cases. This matter has been derived from the IiteraI wording of Rute 30(1) of the Judicature (Supreme Court RuLes) Directions, which states: '1. Where the Court of Appeat has reversed, affirmed or varied the decision of the High Court acting in its original jurisdiction, the court may decide matters of law or mixed law and fact, but shatt not have discretion to take additionat evrdence. Rute 30(1) is partiatty derived from section 6(l) of the Judicature Act which provides in part: l. An appeal shatt tie as of right to the Supreme Court where the Court of AppeaI confirms, varies or reverses a judgment or order, inctuding an interlocutory order, given by the High Court in the exercise of its original .lurisdiction. Section 6(1) stiputates the new civil. jurisdiction of the Supreme Court as a second appettate court. lt however, does not specify whether the appeaI may be lodged on mixed matters of law or fact, which has been a matter governed by the CiviL Procedure Act (the existing procedura[ [aw). ConverseLy, RuLe 30(1) of the Judicature (Supreme Court Rutes) Directions serves as an inctusive rule permitting decisions on mixed law or fact in a second appeaL in criminaI and civit proceedings. Notabl.y, a provision of a statutory instrument cannot ectipse a confticting section in an Act of Partiament. Rul.e 30 (1) (supra) appties to any appeaL where it is appl.icabl.e. Parliament has prescribed some appeats to be todged on points of law onl.y whiLe al.Lowing some to be on matters of mixed law and fact. 10 15 20 25 30 29 5 Secondl.y, the wording of the rute is that it provides for the power to decide matters of law or mixed fact and taw. The power to decide such matters is what the rute is confined to. The rute is not the [aw conferring jurisdiction on the Supreme Court but enabtes different jurisdictionaL case scenarios derived from an Act of Partiament. To estabLish what jurisdiction the Supreme Court has, one has to peruse the Constitution and Act of Parliament which prescribe it. The Act of Par[iament prescribing jurisdiction is guided by articte 132 of the Constitution. Section 72 of the CiviL Procedure Act defines kinds of points that are wrongty decided which may be Lodged in a second appeal. What is the relevant Act of Parliament prescribing the jurisdiction of the Supreme Court in civiL matters that may be appeated? ls the jurisdiction of the Supreme Court wide enough to atlow for determination of any factuaI controversy or controversies or determination of any [ega[ or factual controversies after the High Court has exercised original jurisdiction in the matter and the first appel.tate court has determined an appeaI therefrom? The case Law I have reviewed on second appeats in civil matters espouse principtes of law and procedure on which the Supreme Court may interfere with findings of fact. ln such cases, it is the principle of law that leads to interference with matters of fact. A finding of fact on its own is not appeatable in a second appeal except on a point of [aw. ln my judgment, and in civiI proceedings, the grounds of second appeats Lodged in the Supreme Court have always been considered on points of [aw. Secondty grounds of third appeats to the Supreme Court have atways been with Leave upon establishing that the intended appeal disctoses matters of [aw of generaI or great public importance. lt is absurd and woutd be a departure from the existing norms at the time of promulgation of the Constitution and thereafter to hotd that the Supreme Court may, in any civiL appeaL, entertain factuaI controversies yet it has no powers to take additional. evidence. Moreover, case law precedents demonstrate that the Supreme Court wiLl. handte factuaL controversies where the error appeated against is an error amounting to a matter of [aw or procedure such as faiture to subject the evidence to fresh scrutiny 30 10 15 20 25 30 35 5 or where there is no evidence to support the finding of fact of the [ower court, these being points of [aw. These can be demonstrated from the precedents. Under article 132 (2) of the Constitution, the Jurisdiction of the Supreme Court shaLt be prescribed by Partiament by taw. lt provides that: 132. Jurisdiction of the Supreme Court. (1) The Supreme Court shaL[ be the final court of appeal. (2) An appeat shatt tie to the Supreme Court from such decisions of the Court of Appeat as may be prescrrbed by [aw. The term "taw" used under article 132 (2) means law enacted by ParLiament or under a [aw prescribed by ParLiament. ParLiament legistation falts under articl.e 79 (1) and (2) of the Constitution which provides that: 79. Functions of Par[iament. ('l) Sublect to the provisions of this Constitution, Partiament shatl have power to make laws on any matter for the peace, order, development and good governance of Uganda. (2) Except as provided in this Constitution, no person or body other than Partiament shall have power to make provisions having the force of law in Uganda except under authority conferred by an Act of Partiament. Any other person or body is forbidden from making laws touching on the Jurisdiction of Courts. Section 4 of the Judicature Act states the jurisdiction and provides that: 4. Jurisdiction of the Supreme Court. An appeal shatt tie to the Supreme Court from such decisions of the Court of Appeal as are prescribed by the Constitution, thrs Act or any other law. (emphasis mine) These other Laws include the Civit Procedure Act and the CriminaL Procedure Code Act, which are Acts of Partiament. Section 4 of the Judicature Act is of generaI apptication to civiI and criminaI proceedings and envisages other laws which prescribe specific jurisdiction. The sections in the Judicature Act which confer specific jurisdiction on the 31 10 15 20 25 30 35 5 Supreme Court are sections 5 and 6 of the Judicature Act. These sections principal.ty create the jurisdiction of the Supreme Court to hear and determine second and third appeals. For second appeats it shows that the ground for the exercise of that jurisdiction is where the High Court had exercised originaLjurisdiction in the matter. lt is noteworthy that this jurisdiction of the Supreme Court was prescribed for the first time under articte 132 of the Constitution and was not and coutd not have been envisaged in the principal laws namely the CriminaL Procedure Code Act and the CiviL Procedure Act by the time of their enactment. ln that regard, ParLiament, in creating the right of second appeat, appLied separate provisions to criminat proceedings under section 5 and separate provisions in civiL proceedings under section 6 of the Judicature Act respectivety. Section 6 (1) onty confers a right of appeaL from a.ludgment of the Court of Appeat where the High Court has exercised originaL jurisdiction and the Court of Appeat has determined an appeaL therefrom but it does not stiputate whether that right can be exercised to bring a matter of mixed Iaw or fact. lf it is appl.ied as it is, it confers wide .lurisdiction attowing any matter decided originatty by the High Court to be appeated up to the Supreme Court without any restrictions. To my mind, the real question is whether there is an existing [aw on civiI procedure which restricts this .lurisdiction? Can any restriction to the wide jurisdiction be exercised on the basis of case Law precedents? To hotd that there is no other Law narrowing the .lurisdiction of the Supreme Court in civiI matters means that section 6 (1) of the Judicature Act shouLd be given its wide ambit so that any appeat from a judgment of the Court of Appeat in civiL matters may be Lodged in the Supreme Court without any restrictions. ln other words, to appty section 6 (l) (supra) that way woutd canceI any case Law that states that second appea[s are restricted to certain points and we wiIL review the reLevant precedents to make the point that the courts have indeed enforced a restricted.lurisdiction requiring breach of certain principtes of Law for that jurisdiction to be exercised. Section 6 (1) of the Judicature Act is sitent on these principtes. However, recourse cannot be had to ruLe 30 (1) of the Rules of this Court because it does not confer 10 15 20 25 30 32 5 10 15 20 25 30 35 jurisdiction but onLy enabtes an existing jurisdiction prescribed by an Act of Parliament. The position of the existing law prior to 0ct 1995 was expressly set out in statutory as we[L as case law. The law under the Civit Procedure Act was that third appeaLs coutd be Lodged when the Court hearing a second appeal had exercised lurisdiction under section 72 of the CiviI Procedure Act. This was the onl.y time a third appeal. coutd be Lodged. lt had to arise from a determination of a point of taw. The further requirement for a third appeaI is that the point of law must be of a generat or pubtic importance. Can section 6 (2) of the Judicature Act after 0ct 1995 be read in harmony with section 72 of the Civit Procedure Act so that a third appeal arises from an appeLlate decrsion on a point of [aw under section 72 (supra)? There is no third appeaI from a decision of the Supreme Court issued in a second appeat. Without considering the existing taw, it coutd be proposed (and with far reaching effect on the worktoad of the Supreme Court) that section 72 of lhe Civit Procedure Act onty appties to the pre 1995 Supreme Court and not the Supreme Court under the 1995 Constitution. Such a proposition is based on changes in the name of the court onty. However, when read in context, the points of law espoused in sections 72and'74 which apptied to the pre 1995 Supreme Court have been apptied to the post 1995 Supreme Court as we[t. The procedural law and particularly sections 72 and74 of the CPA used to appLy to at[ courts of judicature with jurisdiction to hear and determine any second appeal. in civiL proceedings. I wil.L demonstrate that sections '12 and 7lt of the Civit Procedure Act was the existing law which apptied to the pre - 1995 Supreme Court in second appeaLs in civiL matters and is the onty existing Law appLicabl.e to the current courts of judicature which hear second appeals inclusive of the Supreme Court which now is a second appel.tate court under section 6 (l) of the Judicature Act. What happened is that there was no [aw enabting third appeals from a judgment of the current Court of Appeal and section 6 (2) of the Judicature Act created the jurisdiction of the Supreme Court to provide for it. SimiLarty, there was no second appeaL to the Supreme Court from a judgment of the High 33 5 Court except as created by section 6 (l) of the Judicature Act. To take this Line, section 6 of the Judicature Act introduced the Supreme Court as a Court above the Court of AppeaI under the CiviI Procedure Act. This is onty imptied by making the CiviL Procedure Act the principal. LegisLation appticabl.e to aIL courts of Judicature. Generatty, section 7 of the Judicature Act attows the Supreme Court to have atl the powers of the original triaI court when determining an appeat. These powers inctude powers under the Civit Procedure Act. Section 7 of the Judicature Act provides that: 7. Supreme Court to have powers of the court of original jurisdiction. For the purposes of hearing and determining an appeal. the Supreme Court shatl have aL[ the powers, authority and lurisdiction vested under any written law in the court from the exercise of the original jurisdiction of which the appeaI originatty emanated. Because sections 72 and 74 of the Civil Procedure Act are general sections appticabte to second appeats heard by any court of judicature, the same sections apptied to the Court of AppeaL and the High Court in any second appeats heard by them. This power can arguabl.y be restricted to powers of a first appeLtate court and the powers of the triaL court. Where there has been a breach of law or a procedural error or defect affect the merits of the case, the Supreme Court can take on the mantte of the lower court to estabtish the facts or send the matter for retriat. Section 72 of the Civil Procedure Act has to be construed with the necessary modifications, adaptations and qual.ifications to appLy the Law to the Supreme Court which is a court of judicature and continued to exercise the jurisdiction of a second appeLtate court as determined by articLe 266 (subsequentl.y repeated) and 274 of the Constitution. Article 266 of the Constitution, before it was repeated, provided that: 266. Existing courts of judicature The Supreme Court and the High Court in existence immediately before the coming into force of this Constttution shatL be taken to have been estabtished under this Constitution and shatt perform the functions of the Supreme Court and the High Court as specified in Chapter Eight of this Constitution. 10 15 20 25 30 35 34 5 The Supreme Court and the High Court in existence immediately before the coming into force of the Constitution of the RepubLic of Uganda 1995 were courts of ludicature to which the Civil. Procedure Act and particu[arly sections'l2and74 thereof and the provisions of the CriminaI Procedure Code Act on second appeaLs appLied. These were the existing [aws. lt is onty the functions or jurisdiction of the Supreme Court which changed in terms of which court's decision is appeal'abte to the Supreme Court. The change did not affect its jurisdiction as a second appeil.ate court. The existing [aws applicabte to the Supreme Court continued to appLy to the Supreme Court estab[ished under chapter 8 of the Constitution of the Repubtic of Uganda 1995 on second appeats in civil. matters though section '12 and 74 of the Civil. Procedure Act were amended to revert the names of the Supreme Court to the names "Court of AppeaL". This was necessitated by the change in the Jurisdiction of the Supreme Court and the need to name the court which inherited the former jurisdiction of the Supreme Court (titeratly acting as the same court with the same lurisdiction as the Court of AppeaL, the East Africa Court of AppeaL and the former Supreme Court). The subsequent repeaL of articte 266 of the Constitution did not change the appl.ication of the existing law to the Supreme Court. This is directed by article 27lt lhat provides that the existing laws at the time of promutgation of the Constitution in October 1995, continued in force and had to be construed with the necessary modifications, adaptations and quatifications to bring the law into conformity with the Constitution. Articl.e 274 (1) provides that: 274. Ex ist ing taw (1) Subject to the provisions of this articLe, the operation of the existing taw after the coming into force of this Constitution sha[[ not be affected by the coming into force of this Constitution but the existing law shaLL be construed with such modifications, adaptations, quatifications and exceptions as may be necessary to bring it into conformity with this Constitution. From article 274 (1) of the Constitution, we can read that the operation of the Civil. Procedure Act and the Criminal. Procedure Code Act (which are the retevant existing Laws) were not affected by the coming into force of the Constitution. lf their operation was not affected, it means that the 10 15 20 25 30 35 relevant provisions therein continued to apply as modified by the Constitution. What was required of those apptying the existing laws is to construe, for instance, the Civit Procedure Act and the Criminal. Procedure Code Act with the necessary modifications, adaptations, qual.ifications and exceptions as may be necessary to make it conform to the Constitution. The existing Law app[icabLe to the Supreme Court needs to be estabtished on this basis. Moreover, the jurisdiction of the Supreme Court under chapter 8 of the Constitution continued to be that of a second and third appetlate court where previousty these were heard on matters of law and on matters of law of general and publ.ic importance respectivety. Before Bth of October, ,l995 there was no right of a second appeaI from decisrons of the High Court in the exercise of its originaI iurisdiction in civil and criminal matters. There was one right of appeal from the exercise of the originaL jurisdiction of the High Court to the Court of Appeal. which was [ater renamed the Supreme Court. lt foLtows that the provisions of the Civil. Procedure Act on second appeats wouLd appLy to the Supreme Court in civiI matters via the route of being the onl.y existing [aw on second appeal.s save for those provisions being expressty appLicabLe to the Court of AppeaL and not the Supreme Court at a[[. The historicat position giving the existing law upon the coming into force of the Constitution of the RepubLic of Uganda in 1995 was that second appeaLs were envisaged in criminaI matters under section 45 (1) of the CriminaL Procedure Code Act Cap 116 which provides that: 45. Second appea[s (1) Either party to an appeal from a magistrate's court may appeal against the decision of the High Court in its appettate lurisdiction to the Court of Appeal on a matter of [aw, not inctuding severity of sentence, but not on a matter of fact or of mixed fact and [aw. 36 10 15 20 ?( 30 The word "Court of Appeat" appearing in the section became "Supreme Court" through amendment to the Constitution of the Repubtic of Uganda 1967 and the -.Judicature Act 1967. Magistrates Courts did not try capitaL offences and this provision did not concern capitaI offences triabLe by the High Court. Capitat offences were appea[abte on matters of mixed Law 5 and fact to the pre October i995 Supreme Court as a first and frnaI court of appea[. There was no court or jurisdiction to hear second appeats from decisions of the pre 0ctober ,l995 Supreme Court in that regard. The same situation appl.ied to appeats in civiI matters. Second appeats under section 72 of the CiviL Procedure Act cap 71 were appeaLs that arose from the triaL decision of a Magistrates Court. Where the triaI was conducted by the High Court in the exercise of its originat jurisdiction, there was onLy a right of first appeaL to the highest appeLl.ate court which was the pre 1995 Supreme Court. There was no right of second appeat thereafter. The situation changed with the promuLgation of the Constitution of the Republ.ic of Uganda'1995 which for the first time conferred on titigants a right of second appeaL from a decision of the High Court in the exercise of its originaI jurisdiction. As far as ruLe 30 (1) of the Rutes of this Court is concerned, the part that deaLs with appeaLs on matters of mixed law is appLicable where the Supreme Court hears a second appeaL in criminal matters and exercises jurisdiction under section 5 of the Judicature Act. Section 5 (1) (a), (b), (c) and (d) of the Judicature Act created the right of second appeaI from the decision of the High Court in the exercise of its original. jurisdiction in criminaL offences punishable by death and the Court of Appeal. has decided an appeal therefrom. At the time of the enactment of the Judicature Act in 1996, the Penat Code Act stitt had the mandatory death penal.ty for certain capital. offences. Under section 5 of the Judicature Act, in criminaL matters, where the offence is punishabl.e by death, an appeaI shal.L tie on a matter of [aw or mixed Law and fact where the Court of Appeat has confirmed a conviction and sentence of death, or where the accused is acquitted and the Court of Appeat Teverses the acquittat and convicts the accused. Further, where the High Court has convicted the accused and the Court of Appeat reverses the conviction and orders the acquittat of the accused. 0n the fourth ground an appea[ [ies on a point of Law of great pubtic importance where the Court of Appeal. confirms the acquittaL of an accused person by the High Court and the DPP appeats on a matter of Law of great public importance. Even in criminaL proceedings, some appeal.s cou[d on[y be on a question of Law. 10 15 20 25 30 35 37 5 ln civiI matters where the Supreme Court is also the highest appeLtate court, it ought not to be saddted with mixed questions of fact and law because the Legistature in its wisdom having enacted section 72 and 74 as appticabte to the highest appeLl.ate court which was the pre 0ctober 1995 Supreme Court could not have intended the new Post October 1995 Supreme Court to have a wider jurisdiction and to entertain mixed questions of fact and Law and to onty entertain third appeal.s in civiL matters on matters of [aw of great pubtic or generaI importance. The term questron of fact as used here, means controversy of fact. Controversies of fact ought to be tried by the trial. court and subjected to retrial by the first appeltate court. Thereafter a second appeal court considers facts to the extent of the issues which require it when the issue is an issue of law. To have jurisdiction to try factual controversy without a point of Law being the root of the error aLteged or the matter in controversy, the legistature ought to have expressty stated so, as they did in criminaL proceedings under section 5 of the Judicature Act. Section 6 (1) of the Judicature Act which appties to civil. appeals is silent on whether a second appeal is to be Lodged on questions of law or mixed law and fact and section 6 of the Judicature Act has to be understood as onty creating a right of second appeal. in civiI matters which did not exist before promulgation of the 1995 Constitution of the Republ.ic of Uganda just as they did in criminaL matters under section 5 of the Judicature Act. 10 15 20 25 30 Section 6 (1) of the Judicature Act ought to be read in harmony with the existing law at the time the new Supreme Court was estabtished. Therefore, sections 72 and 74 of the CiviL Procedure Act ought to be construed with the necessary modif ications under articte 27 4 of lh'e Constitution and can be read to incLude under sections 72 and 74 of the CiviL Procedure Act the Supreme Court as a second appettate court where the High Court exercised originaL jurisdiction tn the matter. lf section 6 (1) of the Judicature Act is not read in harmony with sections 72 and74 of the Civil. Procedure Act, it impl.ies that appeats in civiI matters cannot be restricted to the issues stated in Henry Kifamunte vs Uganda n998] UGSC 20 (15 May 1998) and other precedents which I refer to betow. For instance, it was hetd that a second appeaL witl. not be entertained on a question of fact where there are concurrent findings of fact by the triat 35 38 5 10 15 20 25 30 35 court and the first appel.Late court. This has been apptied to second appeats in civiI matters and this indirectl.y endorses the existing law as appticabl.e to the new Supreme Court in civil. proceedings. RuLe 30 (1) of the Rutes of this court was made by the Rules Committee under the Judicature Act. The role of the Rules Committee under section 41 (1) is to regulate practice and procedure and the section provides that the Rutes Committee may by statutory instrument make rules for inter atia regutating the practice and procedure of the Supreme Court. The practice and procedure under ruLe 30 ('l) of the Judicature (Supreme Court Rutes) Directions to decide mixed questions of Law and fact in second appea[s, appl.ies squarety, to the Jurisdiction to do so in second appeats in criminaI proceedings under section 5 (1) of the Judicature Act and on[y partiaLl.y to second appeal.s in civiI appeaLs to the extent atlowed by Partiament on questions of Law under section 6 (1) of the Judicature Act read in conjunction with the Civit Procedure Act. SpecificaLty, I find that to hold otherwise amounts to stating that the Civil. Procedure Act no longer applies to the Supreme Court because it is not a court envisaged by the Legisl.ature when in was enacted in 1929. This means that several decisions enforcing the provisions of the Civit Procedure Act woul.d be rendered per incurlam. This has been in contention before and lwi[L review two precedents before and a very recent precedent where the issue was raised in detail.. ln Francis Sembuya vs Atl,ports Services (U) Ltd; Supreme Court Civit Appeat No 06 of 2001 Tsekooko, JSC, in a second civil. appeaL did not ru[e out jurisdiction of the Supreme Court to interfere with concurrent findings of fact of the High Court and the Court of Appeal. on a "sound basis" and doubted the apptication of sections 72 and 74 of the CiviL Procedure Act to the new Supreme Court. lt was submitted that the Supreme Court should not disturb concurrent findings of fact of the trial court and first appeLl.ate court because it has no jurisdiction to do so, under section 72 and 7l+ of the Civil. Procedure Act. Tsekooko JSC stated as f oLlows: I think that in matters of second appeats to this Court involving cases decided by the High Court in the exercise of its originat jurisdiction, section 7(1) (now 39 5 section 6 (1) Judicature Act) of the Judicature Statute, 1996, is instructive. lt states: "7(1) An appeat [ies as of right to the Supreme Court where the Court of Appeal confirms, varies or reverses a judgment or order incLuding lnterlocutory order given by High Court in the exercise of its origina[ jurisdiction and either confirmed, varied or reversed by the Court of Appeat' These provisions are cLearty distinguishab[e from the provisions of either s.337(1) of Cr P. A or S.74(1) of CPA. Again the rute 29(1) of the Rutes of this Court amplifies this point and it reads as foltows: "Where the Court of Appeat has reversed, affirmed or varied a decision of the High Court acting in its originaL jurisdictions the court may decide matters of law or mixed law and fact." From the foregoing provisions, I cannot, with respect, accept Mr. Tibesigwa's submissron that in this case this court is barred from a reconsideration of concurring findings of fact by the two courts below. I think that this is the position taken by Wambuzi, Chief Justice, in Bank of Uganda v. Transroad Ltd Supreme Court Civit Appeat 3 of '1997 reported rn (1998) Supreme Court. (Civit Judgments) at page 5. Naturatty and normatly any concurring findings of facts by the H igh Court as a Court of triaL and the Court of Appeal, as a first appellate Court, wit[ be accorded due respect by this Court. I would observe genera[Ly that where it as necessary to disturb such findings, disturbing such findings would obviously be based on a sound basis. ln saying this, lmust not be understood to be taying down any hard and fast rute on the matter (itaLics m ine). Tsekooko, JSC was cognisant of the fact that Wambuzi, CJ in Bank of Uganda v. Transroad Ltd (supra) had decided that in second appeats the Supreme Court has the same jurisdiction as the Court of Appeat. White not directl.y on the points considered in this appeat, the High Court, whose powers the Supreme Court may use under section 7 of the Judicature Act, has originaLJurisdiction. The High Court or the Court of Appeal when exercising their jurisdiction in second appeaLs are atways bound to appty sections 72 and'7 lt of the Civil. Procedure Act and they are bound to only determine matters of law in second appeats in civiI matters. Rul.e 30 (1) of the Rules of this court reftects the [aw that the Supreme Court in second appeals cannot take additionaI evidence. Additionat 40 10 15 20 30 35 40 25 (a) in the case of an appeal on a petition to the constitutionat court, the court may appraise the evidence and decide matters of fact, or law, or mixed law and fact, and may in its discretion take additional evldence; and (b) in the case of an appeal on a reference to the constitutional court, the court may decide the question of law or mixed law and fact submitted in the reference. This rs consistent with the Supreme Court being a court that determines matters of law in second appeal.s and mixed l'aw and fact in first appeats. The context of the power to decide matters of law or mixed [aw and fact 4l 30 s evidence can be taken by a court such as the Court of Appeat which has the duty to reconsider the facts afresh. This is augmented by rul.e 3l of the Judicature (Supreme Court Rutes) Directions which provides that: 31. General power of court 0n any appeal the court may, so far as its jurisdiction permits, confirm, reverse 10 or vary the decision of the Court of Appeal with such directions as may be appropriate, or order the rehearing of the appeal before the Court of Appeal and as the justice of the case demands, the court may order a tnaL de novo rn the court of frrst instance, including a constitutional matter and may make any necessary, incidentaI or consequentiaI orders, inctuding orders as to costs. 1s Where the Supreme Court interferes with a matter of fact, it may order rehearing of the appeat by the Court of Appeat or triaI de novo and this is because it cannot try matters of fact. lt is further Logical. to infer that to be able to reconsider the facts, one ought to have the discretionary power to take additionaI evidence. This power is possessed by the Court 20 of Appeat when hearing a first appeaI under ru[e 30 (1) of the Judicature (Court of Appeat Rul.es) Directions. This ruLe altows the Court of AppeaL to reappraise the evidence and at its discretion to take additionat evidence. Rute 30 (l) of the Judicature (Supreme Court Rutes) Directions does not enable a simi[ar power to reappraise the evidence to enabte this 2s court to try controversies of fact by inter alia taking fresh evidence or reappraising the evidence. Moreover, the Supreme Court has no express power under rul.e 30 (1) to reappraise evidence in second appea[s. ln fact, it has express power in a first appeal from a decision from the constitutionaL court to; 5 in second appeats arises where the issue for trial in the appeat is a matter of taw. The power to depart from or interfere with a finding of fact is based on a matter of taw that makes the court find error with a flawed finding of fact under speciaI circumstances mentioned in the case [aw. The hoLding of Tsekooko, JSC in Francis Sembuya vs Attports Services (U) Ltd (supra) is that when is it necessary to interfere with a finding of fact the Supreme Court has lurisdiction to do so. His Lordship did not determine the circumstances under which it woutd be necessary to interfere with a finding of fact and I witL consider this specifical.Ly in this judgment. The Court hetd that it coutd interfere with concurrent findings of fact but such interference has to be on a sound basis. The sound basis remained a matter for further elucidation. Further and in the above decision, the Court did not interfere with the concurrent findings and the circumstances under which it coutd do so remained open for consideration and that is what I intend to e[aborate on in this judgment. Judiciat precedents on the point give us indicators. We can, from those decisions, consider the circumstances under which the court woutd interfere with a finding of fact. The hypothests on which I base my determinatron of the issue betow is that the court has power to interfere with a finding of fact upon determining a matter of Law that affects the outcome of the case on the merits because the error of Law or defect in procedure led to an erroneous finding of fact. The iLlustrations witt foLlow beLow. ln Uganda Breweries Limited Vs Uganda Raitways Corporation; Supreme Court Civit Appeat No 5 of 2001, Oder JSC hetd that: ln the instant case, I have no doubt that the Court of Appeat, as the first appettate court lived up to its task as set out rn rule 29(1) of the Court of Appeat RuLes and as exptained in cases such as - Sette and Another Vs Associated Motor Board Co. Ltd. (supra). Pandya vs Repubtic (supra);Chartes B. L. Bitwire vs Uganda (supra) and Kifamunte Henry vs Uganda (supra); Cogntan vs Cumbertand (1898) t.Ch.704. (CA), Watt Thomas vs Thomas (19 t11) AC. tt9t) (H.L.); Abdut Hamid Saif vs Alimohamed Stidem (1955) 22, EACA 270: Trevor Prrce & Anor vs Raymond Ketsatt (1957) EA ?52 and Peters vs Sunday Post Ltd. (1958) EA 424. 10 15 20 25 30 35 42 T- 5 be no Court of Appeat's The above post '1995 Supreme Court decision hoLds that where the Court of Appeat carried out rts duty in re-evatuating the evidence on record, the Supreme Court should not interfere with it. The duty of the court is a principl.e of [aw and any atLegation that the Court of AppeaL did not Live up to its task is a matter of Law. Where this duty is not exercised, the question is whether it was to the prejudice of the aggrieved party. This is a ru[e of practice derived from section 72 of the CiviI Procedure Act and has a force of [aw as we shatl see betow. Most importantl.y the decisions of the East Africa Court of Appeat cited above were a[ informed by and operated within the provisions of the Civit Procedure Act and the CriminaI Procedure Code Act where appticable. The principl.es devetoped within the statutory provisions is that the Supreme Court witl. not interfere with concurrent findings of fact of the lower courts save in exceptional circumstances amounting to a point of Law. ln my judgment, the exceptronaL circumstances discussed in the case law atL amount to and flow from a matter or matters of Law as deveLoped in the context of the appl.ication of sections'72 andTlt of the Civit Procedure Act. Section 72 (a) and (b) specificatly address points of [aw. Section 72 (c) addresses defects in procedure. lt shouLd be stated that a defect in procedure such as faiture to consider materiaI evidence or making a finding not supported by evidence is a question of Law though it has to be a substantiaI defect or error in procedure affecting the decision on the merits. The New Supreme Court uses these principles atl the time and does not admit appeaLs on factuaI controversies a[one. lt has to be a faiLure of the Court of AppeaL to foILow certain principLes or carry out its duties as a first appeil.ate court. ln Beatrice Kobusingye vs Fiona Nyakana and George Nyakana; Civit Appeat No. 5 of 2004 (2005) UGSC 3 (22 February 2005), the Supreme Court revisited its decision in Francis Sembuya vs Att Ports Services (supra) in the context of whether sections 72 and 74 of the CiviL Procedure Act apptied to the Court of AppeaL. ln doing so, the Supreme Court decided a wider controversy raised rn that appeaL before the Court There would basis for this Court finding of fact and [aw. therefore to interfere with the 10 15 20 25 30 43 5 of AppeaL as to whether the Civit Procedure Act was appl.icabte to the Court of Appeat and they also considered whether it was applicabLe to the Supreme Court as wetl. Tsekooko, JSC with the concurrence of the rest of the Justices stated that: It is ctear from the headnote to the Civit Procedure Act that the Act was enacted to make provision for PROCEDURE lN CIVIL C0URTS. 10 15 20 25 30 35 44 The Jurisdiction of this Court and the Court of Appeal includes civiI jurisdiction. lfind nothing in S.1. of the Act which prohibits, in appropriate instances, the apptication of the Provisions of the Act to the procedure in either this Court or in the Court of Appeat. ln my view the operation of the Civit Procedure Act must be ptaced aLongside the operation of the Judicature Act and the Constitution. Further having considered the change of name of the Court of Appeat to Supreme Court, the Court hel.d that this name was changed back from the Supreme Court to the Court of Appeal under section 14 of the Judicature Statute 1996, Statute No.'13 of 1996 which provided that: 14. Subject to the Constitution; and with effect from the commencement of the Constitution, any reference to the Supreme Court in any enactment in force immediately before the coming into force of the Constitution, sha[[ be read as a reference to the Court of Appeal. Notwithstanding that section 72 and 74 of the CiviL Procedure Act now rightLy reverted from the words "Supreme Court" to the names "Court of Appeat", and therefore made reference to the Court of AppeaLand not the Supreme Court, in Beatrice Kobusingye vs Fiona Nyakana and George Nyakana (supra) the Supreme Court noted that there is no right of appeat from an interlocutory decision of the Court of AppeaL to the Supreme Court which orders are incidentat to the appeaL. The question is which part of the CrviI Procedure Act appties to the Supreme Court? The answer is stil.t found in the Judicature Statute 1996 (supra) and section 51 (2) (a) which provides that: untit rutes of court made by the Rules Committee to reguLate the practice and procedure of the Supreme Court, any rules of court applicabte to the former Supreme Court immediately before the coming into force of the Constitution shatL appty to the Supreme Court with such modifications as the Chief Justice may direct in writing; 5 10 15 20 30 Further section 51 (3) of the Judicature Statute 1996 provides as foLlows: (3) in subsection (2) of this section "rules of court" includes any rules howsoever catted regulating the practice and procedure of the court immediatety before the coming into force of the Constrtution. What were these rutes and regulations? To my mind, these rules operated within the parent and enabting Acts of Parliament namely the Judicature Act and the Civil. Procedure Act as wetl as the Criminal. Procedure Code Act. To a certain extend the Judicature Act and section 6 thereof, adds to the [aw on CiviL Procedure, the jurisdiction of the new Supreme Court. To find otherwise wouLd exctude the apptication of the Civit Procedure Act which was the existing [aw to the Supreme Court. lt witL onty leave the Supreme Court bound by rutes and not the PrincipaL Legistation; namely the Civit Procedure Act, as explained in Beatrice Kobusingye vs Fiona Nyakana and George Nyakana (supra). Case [aw on second appeats is that the appel.tant shoutd demonstrate that the first appell.ate court did not exercise its duty to sublect the evidence to fresh scrutiny and this is considered as an error of law and not an error of mixed law and fact. The core controversy inctudes whether the conctusion reached by the court is not supported by any credibl.e evidence. 0f course this kind of point of law requires consideration of the facts after the court establishes whether the Court of AppeaL erred not to carry out its duties. lt is therefore a substantiaL error or defect in the procedure which is to be established to consider whether the error coutd have affected the decision on the merits. This is demonstrated by the decision of the Supreme Court in Kifamunte Henry vs Uganda; (supra), the Supreme Court considered its mandate under section 6 ('l) of the Judicature Statute, 1996 whrch became section 5 (1) of the Judicature Act under the revised laws of Uganda 2000. By the time of that decision, the Court appLied section 131 (1) (a) of the TriaI on lndictment Act which has now been revised but which appLied to a person convicted by the High Court and sentenced to death. The Law enabtes the convicted person to appeat against his or her conviction on a question of law or of fact or mixed law and fact to the Court of AppeaL as a first appeLlate Court. The Supreme Court hetd that it is the Court of AppeaL 45 5 (under the Constitution of the Republ.ic of Uganda, 1995), as a first appellate Court has the duty to re-evatuate the evidence under the then rute 29 (1) of the Court of Appeat Rutes (now rule 30 (1) of the revised Judicature (Court of AppeaL Rutes) Directions. The Court of AppeaL has power, at its discretion to take additional. evidence under the said ruLes. Having establ.ished that the Court of Appeat re-evatuated the evidence and subjected it to exhaustive scrutiny, the Supreme Court inter atia stated that: 0nce it has been estabtished that there was some competent evidence to support a finding of fact, it is not open, on second appea[ to go into the sufficiency of that evidence or the reasonabteness of the finding. Even if a Court of first instance has wrongty directed itsett on a point and the court of first appettate Court has wrongly hetd that the triaL Court correctly directed itsetf, yet, if the Court of first appeat has correctty directed itself on the point, the second appetlate Court cannot take a different view R. Mohamed A[[ Hasham vs. R (1941) 8 E.A.C.A.93. 0n second appeal the Court of Appeat is prectuded from questioning the findings of fact of the triat Court, provided that there was evidence to support those findings, though it may think it possible, or even probable, that it would not have itself come to the same conclusion; it can onty interfere where it considers that there was no evidence to support the finding of fact, this being a question of !aw. R. vs. Hassan bin Said (19 t!2) 9 E.A.C.A. 62. (emphasis mine) 10 15 20 25 46 I Where there is no evidence in support of a finding of fact and it affects a decision on the merits the Supreme Court can consider a ground of 30 appeal on the question as to whether a finding is supported by any credibte evidence and this is considered a point of [aw. ln other words, there was no basis f or the decision without credibLe evidence. These principl.es have been appLied to civil. matters in the Supreme Court notwithstanding that section 6 (1) of the Judicature Act does not bar any 3s appeat which faLts within the wording that the High Court determined an interlocutory or finaL matter and the Court of Appeat determined it on appeal. by affirming, setting aside, varying or dismissing it. Section 6 (1) of the Judicature Act without the existing procedural law is of wide appLication as heLd by the Supreme Court in Uganda National' 40 Examinations Board vs Mparo General Contractors Ltd; SC Civit 5 Apptication No. 19 of 2004 (unreported). The court hetd that striking out an appeaI by the Court of AppeaL does not faL[ under section 6 (1) of the Judicature Act because the decision did not origrnate from the High Court in the exercise of its originaLjurisdiction. The unanimous decision of the court was that: According to this provision there rs an automatic right of appeaL from the Court of AppeaL to this court in civiI matters decided by the High Court in the exercise of its original jurisdiction provided the Court of Appea[ has consrdered and decided on merit an appeal to the court from a decision of the High Court in the exercise of its originaI decision. This court hears and determines second appeals from the decision of the High Court in the exercise of its origina[ ]urisdiction after the Court of Appeat determines a first appea[. 0ne of the usuaL grounds on which a first appeLlate court shouLd not set aside a finding of fact of a triaL judge is that the Justices of appeaL did not hear or see the witnesses testify. The issue of whether there was competent evidence in support of a finding of fact is a point of law and atso arises from interpretation of section 331(1) of the Criminal. Procedure Code Act, which was quoted in Kifamunte (supra) and reads that: 331. (l) The appetlate court on any appea[ against Conviction sha[[ altow the appeat if it thinks lhat the judgment shoutd be set aside on the ground that it is unreasonable or cannot be supported having regard to the evtdence or lhat it should be set aside on the ground of a wrong decision on any question of law if such decision has rn fact caused a miscarriage of justice. or on any other ground if the court is satisfied that there has been a miscarriage of justice, and in any other case shatt dismiss the appeat: (Emphasis added) The section confers duties on a first appel|ate court which shouLd be adhered to. lts wording shows that it appLies in criminaI matters. ln civil matters simitar principtes are founded in section 72 of the Civil. Procedure Act, which appLy to second appeats and which inter atia refers to a substantial. defect in procedure which affected the case on the merits. Such defects inctude findings of fact not supported by credibLe evidence, this being a question of [aw. When read together with section 6 (1) of the Judicature Act cap ,l3, these pnnciples appl.y to the Supreme Court in second appeals in civiI matters. Where section 72 of the Civit ) 10 15 20 25 30 35 47 5 Procedure Act does not appty, there is no basis for restricting the grounds of appeal. lt means that the Supreme Court, Like the first appeLtate court shou[d subject the evidence to exhaustive scrutiny though there are no enabling rutes for the Supreme Court to take fresh evidence to resolve any controversy of fact if need be. The case law in second civiLappeal.s in the Supreme Court emphasise the issue of whether the first appel.tate court foLtowed the establ.ished principLes in reconsidering findings of fact as a point of Law. These are matters of Law as stated under section 72 of the CiviI Procedure Act. The principtes to be followed by a first appetlate court were set out by the Court of Appeat of East Africa inter aLia in Peters vs Sunday Post Ltd {1958} 1 EA424 as principtes laid down in the House of Lords decision of Watt Vs Thomas [1947] 1 ALL E.R. 582, and where Viscount Simon LC said at pp 583 - 584 "an appelLate court has, of course, jurisdiction to review the record of the evidence in order to determine whether the conctusion originatty reached upon the evidence should stand, but this jurisdiction has to be exercised with caution. lf there is no evidence to support a particular conclusion (and this is reatty a questron of [aw) the appellate court wi[[ not hesitate so to decide. Lord Thankerton said at page 587 " (l) where a question of fact has been tried by a judge wtthout the jury, and there is no questron of misdirection of himsetf by the judge, an appeltate court which is disposed to come to a different conctusion on the printed evidence, shoutd not do so unless it is satisfied that any advantage enjoyed by the tria[ judqe by reason of having seen and heard the witnesses, could not be sufficient to exptain or justify the judge's conctuston. (ii) the appettate court may take the view that, without having seen or heard the witnesses it is not in a position to come to any satisfactory conclusion on the printed evidence. (iii) the appettate court, either because the reasons given by the trial judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his havtng seen and heard the witnesses, and the matter will then become at large from the appellate court. lt is obvious that the value and importance of having seen and heard the witnesses wit[ vary according to the class of case, and, it may be, the individual case in question." 10 15 20 25 30 35 40 Lord Macmil.tan sard at page 560. 48 "The ludgment of the tria[ court on the facts may be demonstrated on the printed evidence to be affected by a materiaI inconsistencies and inaccuracies, or he made be shown to have faiLed to appreciate the weight or bearing of circumstances admitted or proved or otherwise to have gone ptainly wrong." The principl.es set out above are used in the determination of an appeal. by a f irst appel.tate court. The Supreme Court as a second appeltate court considers whether the Court of Appeat in arriving at its decision fotlowed those principtes. The power to do this is statutory and that is why it is a point of law whether the conclusion reached is supported by the credibl.e evidence. To try a question of whether the conctusions are supported by credibLe evidence, is a point of Law which in its determination requires co nsidering the relevant evidence. (b) the decision having failed to determine some materiaI issue of [aw or usage having the force of [aw; (c) a substantial error or defect in the procedure provided by this Code or by any other law for the time being in force, which may possibty have produced error or defect in the decision of the case upon the merits. This is in pari materiawith the Ugandan section 72 of the CiviI Procedure Act, and case law before amendment of the law of the lndian Supreme Court is persuasive. By amendment in '1976, section 100 of the Civit Procedure Code of lndia was amended but this is not retevant to the matter before court as I refer to a decision before that amendment. ln R. Ramachandran Ayryar vs Ramatingam Chettiar 0962) AIR 302, (1962) SCR (3) 604 the Supreme Court of lndia held that: It is necessary to remember that a. 100 (1) (c) refers to a substantia[ error or defect in the procedure. The defect or error must be substantiaI that is one 49 10 15 25 30 35 5 The Supreme Court of lndia has construed jurisdiction in civiI matters in second appeats. The Supreme Court of lndia considered section 100 of the Code of Civit Procedure, 1908 of lndia before it was amended in 1976 20 which was in pari materra with section 72 of the CiviI Procedure Act of Uganda. Section t00 (1) (a) - (c) of the lndian Civit Procedure Code provided that: (a) the decision being contrary to law or to some usage havrng the force of [aw, 5 fact to remember; and the substantial error or defect should be such as may possib[y have produced error or defect in the decision of the case upon the merits-that is another fact to be borne in mind. The error or defect in the procedure to which the cLause refers is, as the ctause- clearly and unambiguousty indicates, an error or defect connected with, or retating to, the procedure; it is not an error or defect in the apprecration of evidence adduced by the parties on the ments. That is why, even if the appreciation of evidence made by the lower appellate Court is patently erroneous and the finding of fact recorded in consequence is grossty erroneous, that cannot be said to introduce a substantraI error or defect in the procedure.0n the other hand, if in dealing with a question of fact, the lower appeltate Court had placed the onus on a wrong party and its finding of fact is the result, substantiatty, of this wrong approach, that may be regarded as a defect in procedure; if in deating with questions of fact, the lower appellate Court discards evidence on the ground that it is inadmissibte and the High Court is satisfied that the evidence was admissibte, that may introduce an error or defect in procedure. lf the lower appellate Court fai[s to consider an issue which had been t ried and found upon by the trral Court and proceeds to reverse the triat Court's decision without the consideration of such an issue, that may be regarded as an error or defect in procedure; if the lower appettate Court attows a new point of fact to be raised for the first trme before it, or permits a party to adopt a new'plea of fact, or makes out a new case for a party, that may, in some cases, be mid to amount to a defect or error in procedure, But the High Court cannot interfere with the conclusions of fact recorded by the [ower appetlate Court, however erroneous the said conclusions may appear to be to the High Court, because, as the Privy Council observed, however gross or tnexcusabte the error may seem to be there is no jurisdiction under section ]00 to correct that error. The decision in R. Ramachandran A)ryar vs Ramatingam Chettiar (supra) is persuasive and explains in a nutsheLL the sound basis for interference with findings of fact of a triaI and first appetl.ate court on a second appeaL. These principtes are squarety derived from interpretation of section 72 and 74 of the CiviL Procedure Act. Simil.ar principtes are echoed by East African Court of AppeaLjudgments based on section '72 and 7 4 of the CiviL Procedure Act. ln R vs Hassan Bin Said atias Kamati Somati; Criminat Appeat No. 31 of 1942,1194219 EACA 62 Srr Henry Webb CJ stated at page 63 on what a second appeal court can do that: 50 10 15 20 25 30 35 40 5 It should be noted that the appeaI being from a county judge, who is the sote judge of fact, the question is not whether this court on such evidence as there was woutd have come to the same conctusion, but whether there is any evidence which cou[d reasonabty, if accepted. be the basis of such a conclusion. lf there is, it is immaterial that this court might not have drawn such a conclusion from that evidence. The above has consistently been considered a question of law and springs from statutory taw. ln Mohamed Ati Hasham vs Rex; Criminal Appeat No. 128 of 1941 (1941) I E.A.C.A. 93 Sir Joseph Sheridan C.J. on the ground of objection that if the evidence in the case were properly assessed there was no evidence at alt to support the conviction stated inter aLia at page 94 that: "as regards this ground, which we agree raises a matter of law proper for decision of this court, namety, the submission that the finding in fact has no evidence to support it... A second appeaL appears therefore to Iie on a matter of taw onty. ln cases of this kind counsel invariably endeavoured to show that what appears at first sight to be a question of fact is, when the record is examined, a questron of [aw, and this case has been no exception. 51 10 15 20 These principles have been apptied in civiL and criminaI appeats as 2s questions of [aw. The sound basis for interference with concurrent findings of fact of the trial. court and the first appetLate court referred to by Tsekooko JSC in Francis Sembuya vs Attports Services (U) Ltd (supra) have been ctearLy set up in the judiciat precedents. These incLude the ground of interference where there is no credibte evidence in support of 30 the finding of fact which is considered a point of [aw. Further the issue of whether the first appeLl.ate court foltowed the principles set out by the proceduraL law or usage having the force of Law in Uganda that couLd have affected the outcome of the case on merits is atso a question of [aw. The issue of whether there was faiture of the first appeLlate court to 3s subject the evidence to exhaustive scrutiny is a question of [aw.0n the basis of the above, and with due respect to the previous decisions which did not appl.y, articLe 274 of the Constitution to import the existing Law on second appeal.s to the Supreme Court in civiI matters, I have done so and my judgment is that second appeaLs in civiI matters [ie to the Supreme 40 Court on questions of law and the grounds of appeatshoutd specify what the matter or matters of law are. This has been the practice after promuLgation of the Constitution of the Republ.ic of Uganda in 0ctober 1995 and lsee no basis for widening that jurtsdiction by reversing the case Law that is properl.y founded on statute. Last but not [east I refer to the most recent decision of this court in Kateeba Rose and 3 Others vs MugyenziJustus and 2 0thers; Supreme Court Civit Appeat No. 10 of 2023 where Mugenyi, JSC, with a majority decision of the court, sets out in a nutsheLL the duty of the Supreme Court to interfere with matters of fact where the lower court erred in Law or procedure. She stated: So that, untike the Court of Appeat sitting in first appettate capacity, which can re-appraise the evidence that was before the triaL court and draw inferences of fact; the Supreme Court sitting as a second appellate court can only reappraise evidence insofar as it relates to a question of taw before it, but not a pure question of fact. lndeed, a dearth of judicial precedents ctarify the procedural duty upon the Supreme Court sitttng as a second appelLate court. .... This begets the question as to what amounts to a question of law vis-i-vis a question of mixed law and fact. The more obvious aspect of a pure question of law is quite ctear and needs no expounding. lt is a question that excluslvely depends on an anatysis of the law for its resolution. However, a question of law woutd also arise where the first appellate court reneged on its duty to subject the evidence to fresh scrutiny or, having done so, misdirected itsetf on a pornt of law in its re-evatuation of the evidence; as wetl as where the conclusrons (inctuding findings of fact) arrived at by the first appeltate court are not supported by the evidence. See ElizabellLNalumansi lAamala vJolly Kasande & others (supra), Mpaogu & Sons Transporters Limited v Attorney General & Another (20O6) U05C 15, Peterv Sunday Post Limited (1958) l EA 424 and l,llatt v Thomasfi?44lAll ER 5A2. 52 10 15 20 30 ln a nutshell, a first appettate court ought to make a determination as to whether the tria[ court misdirected itself as to the evidence and, if so, shouLd subject the evidence to fresh scrutrny and arrtve at its own findings of fact. Shoutd the first appettate court interfere with the trial court's decision and there is a further appeal to a second appellate court, whereby the first appettate court's re-evaluation of the facts is contested, that ground of appeat would raise a question of Law and not fact. That is so because there are established tegat principtes and evidentia[ rutes that guide first appettate courts in their re-evaluation of evidence. A departure from these principtes and rutes thus becomes a question of law and not fact. Therefore, the second appellate court wiL[ normatty reLy on the factua[ findings of the first appetlate 25 40 5 court untess they have been impugned for the reasons stated hereinabove, in which case the higher court wi[[ premise its decision on its own findings of fact. (Emphasis mine) ln the finaL result, I accept the submission of the respondent that second appeats in civiI matters shaLl. be confined to matters of Law though the power to interfere with facts ail.ow this court to examine materiaI facts to assess the principl.es it bases its decision on to interfere with findings of fact of the Lower court. I have carefutly considered the grounds of appeat as wetl as the decision of the Court of AppeaL to estabtish whether the Court of Appeat sublected the evidence to fresh scrutiny. Further I have considered the grounds of appeaI for purposes of sieving out controversies of fact and getting to any question of taw, that are apparent in any grounds of appeat. There is no contention that the grounds of appeat offend the provisions of ruLe 82 of the Judicature (Supreme Court RuLes) Directions and I wouLd therefore consider them for purposes of estabLishing whether this court can determine the questions of [aw, if any, raised in each ground before interfering with any findings of fact, if need be. Ground l I have carefulty considered ground 1 of the appeal and find that its resolution depends on a question of fact of whether the appe[Lant was not in possession or occupation of the suit property after the transfer from Tom Kaaya and whether the respondent was in possession or occupation of the suit property. The ground was framed in such a way that the question of Lack of possession of the appel.Lant was a foregone fact. Al.L that is required is for the court to verify who was in possession of the suit property and whether the tack of possession of the appetlant pointed to an inference of fraud. ln other words, where an intending purchaser of Land finds peopLe in possession or occupation of the subject matter of the intended purchase but does not inquire as to who these peopLe are or what the terms of their occupation of the property is, the issue is whether this may [ead to an inference of fraud? lt is a question of Law that can be resolved by this court. 10 15 20 30 s Ground 2 10 As far as ground 2 of the appeaI is concerned, the question is whether the Learned Justices of AppeaL erred in taw in finding the question of fact that the appel.tant was registered on the titte as proprietor when there was a caveat subsisting and the resotution of this question further requires an evatuation of the fact relating to the process of registration. The resotution of this ground also resolves ground 3 and partty resolves ground 4 as averred in the memorandum of appeat. A deeper analysis shows that the process of registration retates to the LegaL process as to when registration is deemed to have taken ptace as far as the provisions of the Registration of Tittes Act (RTA) are concerned. The ground does not directLy engage any controversy about the fact but presupposes that the facts are to be taken as is and can be distitted from the record. lt wouLd in the premises, be sufficient to consider the process of registration on the titte in terms of the dates of entry of the instrument in the togbook as wel'[ as the deemed dates in Law of physical. transfer reftected in the memoriaI of transfer endorsed by the Registrar on the certificate of titte. When is the due registration date? ln this ground of appeat, the appettant does not chatlenge the findings of the Court of AppeaL and it would be sufficient to rety on the facts as set out by the Court of Appeal. This court can therefore deat with the point of law relating to the process of registration under the RTA as to what the effectuaI date of registration shoutd be in Law. 20 25 Ground 3 30 ln the retation to ground 3 of the appeaL, the question of whether the caveat was subsisting at the time of registration of the appetl.ant as the registered proprietor and the transfer of the suit [and to him is a question of fact. However, it is atso a question of law as to when the registration is effectuaI and it is therefore retated to ground 2 of the appeaL. Grounds l, 2 and 3 are intertwined. 3s Ground 4 54 15 5 Further, ground 4 deats with whether the appettant was a bona fide purchaser for value and the ground woul.d be answered by considering grounds 1, 2 and 3 of the appeat. Ground 5. Ground 5 of the appeal. deaLs with the points of law as well as with points of fact in that it is a question of fact as to whether the signature on the land sate agreement is that of Lydia 0thieno. Can this court determine that question at this point? Secondty, the question of law is whether the signature amounts to spousaI consent under the provisions of section 39 of the Land Act in the sense that it was not in the prescribed format. This is a question of [aw that can be considered by this court. Ground 6 Finatty, I have considered ground 6 of the appeaI there is no need for the court to consider it specificaLty as it retates to att the other grounds of appeat in terms of whether the Court of Appeat did not carry out its duty of re-evaluation of evidence. lt is the duty of the first appeILate court to re-evaluate the evidence and subject it to fresh scrutiny and that is the question to be considered in atl the other grounds of appeat. Further, grounds 1,2,3 and 4 are aL[ intertwined in that they deaLwith the same transaction of transfer of [and with the appetl.ant and the question of whether there was a caveat subsisting at the time of transfer and Lastl.y the question of whether the appell.ant was not in possession of the suit property after the transfer from Tom Kaaya. The question a[so is whether Tom Kaaya was in possession of the suit property or aware that the property was in possession of the respondent is a question of fact that the court cannot make an inference of from the record. lt was not presented as a controversiaI question for resolution of this court and it wouLd be sufficient to set out the narrative of the facts as appears from the findings of the High Court and the Court of Appeat. ln the premises, I woul.d try to set out a coherent account of the f acts f rom the J udgment of the Court of Appeat in order to resotve the points of law that are inherent in the grounds 1,2,3,4 together and ground 5 as a separate point of Law. Before doing so lmust point out that an appettant in a civit 55 10 15 20 25 30 35 5 appeaI in this court shouLd not aver that the appeaL is on a question of fact but his or her averment shoul.d disclose what the point of Law for determination is sufficient to put the court and the respondent on notice. Ground 1 White it is not a direct authority on the point, what can be derived is that fraud can be al.l.eged in the written statement of defence as a defence. Secondty, what is important is that the fraud that is pteaded shouLd impticate the transferee in titte. As far as the facts of the pteadings in the High Court are concerned, the written statement of defence can be considered together with the counterctaim. I would start with the pl.aint for a more comptete picture. The ptaint was commenced by the appeLlant in this court whiLe the respondent was the defendant. The action of the pl.aintiff in the High Court was for an eviction order, an order of vacant possession, speciaI damages, mesne profits and generaI damages against the respondent to this appeaL. ln the ptaint, the pl.aintiff based his claim on the fact of being a purchaser with duty signed transfer instruments from the registered proprietor, one Tom Kaaya. The property in issue is Bl.ock 246 Block 2607 tand at Kyeitabya, Muyenga and the transfer is dated 24lh of Aprit 2004. Further it is averred in the ptaint that the pLaintiff was registered on 9th Juty 2004 in paragraph 4 (h) of the ptaint under instrument no KLA 26187L. The purpose for this was to show that the ptaintiff as a registered proprietor had faited to obtain possession. He sued the defendant who is now the respondent to this 56 10 15 20 25 30 35 ln arguing this ground of appeaL, the appel.tant's counseL, inter a[ia, submitted on the issue of whether the defendant pleaded fraud. He argued that fraud had to be specificaLty pLeaded and strictLy proved. The issue of pl.eading fraud was considered by Ptatt JSC in Kampata Bottters vs Damanico (U) Ltd; S.C.C.A No 22 of ,1992 where he stated that: "l strong[y deprecate the manner in which the Respondent atteged fraud in his written statement of defence. Fraud is a very serious attegation to make; and it is; as atways, wise to abide by the CiviL Procedure Rules Order Vl rute 2 and ptead fraud properly giving particutars of the fraud atteged. Had that been done, and the appetlant had been impticated, then on the judge's finding that woutd have been an end of the defence." 5 appeal and sought various orders such as obtaining vacant possession and other orders retating to damages. ln her written statement of defence, the respondent/defendant further averred that she bought the surt property from Othieno Ochieng Ctement and paid the consideration agreed in instalments. That one Mary Francis Othieno ctaimed to be the wife of the Othieno and fiLed an action in the Land Tribunat but was subsequentty found to be a sister and not a spouse of the vendor and therefore an imposter. She attached the re[evant pteadings in the District Land TribunaL. Thereafter a memorandum of understanding was signed between the 0chieng Ctement and herself wherein the vendor executed transfer forms in favour of the defendant/the respondent to this appeat. She was shocked to learn that through an atleged series of frauds and acts of the ptaintiff, Tom Kaaya and Othieno 0chieng CLement, the pLaintiff, was registered on the titte when she went to register her interest. The particutars of fraud are given in paragraph 6 (g) of the written statement of defence. I wiU. refer to the particu[ars of fraud as pteaded in the written statement of defence. Pa rt icu lars of Fra ud (i) Buying land which he was futty aware was atready bought by the Defendant; (ii) Buying land from Tom Kaaya who did not have a tegat right to be regrstered and later on to setl the [and. (iii) Transferring land on which there was a caveat duty registered (iv) Being registered upon instrument numbers which were ctearty forged and backdated. (v) Generatty knowingty and intentionatty insisting on buying the property knowing that it was atready sold and occupied by the Defendant. ln the countercLaim which is part of the written statement of defence in terms of being in the same pteading with the WSD document, the defendant averred in paragraph 11 that: "The Defendant jorns issue with the Ptaintiff, repeats the contents of paragraphs 1- 10 of the Written Statement of Defence and Counterctaims against the Ptaintiff as fottows: " 57 10 15 20 25 30 5 Thereafter, the defendant does not ptead new facts but goes on to ptead the remedies in the counterctaim. ln other words, the defendant adopted the averments in the written statement of defence to be part of the pLeadings in the counterclaim. lt is therefore not true to assert that no fraud was pteaded and therefore none coutd be proved. Second[y as I have held above, fraud can aLso be pteaded as a defence because the pLaintiff's action was an action for vacant possession of the suit property which was occupied by the defendant. The defendants defence amounted to an assertion that the ptaintiff was not entitLed to vacant possession because he obtained registration as proprietor to the suit property fraudutentty and particutars of fraud were given and were aLso repeated in the counterclaim where the counterctaimant sought, inter a[ia, for an order of canceLLation of the pLaintiff's titl.e from the register and certificate of titte. I therefore find that the premises on which the appetlant's counsel submitted are fatse premises. Particutars of fraud were pteaded against the transferee in titl.e who is now the appetLant in this co u rt. 10 15 20 25 This takes me to the cruciaI question retating to ground 1 of the appeaL which is whether the tack of possession by the appetlant who was the ptaintiff in the High Court was sufficient to lead to an inference of fraud as the transferee in tit[e. lt was pteaded in the particulars of fraud that the pl.aintiff bought [and at a time when the defendant was in possession thereof. lt was asserted for the respondent that possession by another person can be construed as evidence of lack of due diLigence because, had the appetlant or his agents inquired from the defendant about her possession, he or his agents woutd have estabtished that she had bought the property or had an adverse interest to that of the vendor. lt is a question of fact as to whether the respondent was in possession when the appeLl.ant bought the suit property from Tom Kaaya and I do not have to go into the issue of whether Tom Kaaya obtained registration to the property through proper means. lt is sufficient to consider whether the appel.Lant had a duty, to estabtish the terms or the basis on which the defendant possessed or was in occupation of the property. The learned triat judge did not address the issue of the property being in the possession of the defendant at the time the property was purchased 30 35 58 by the appeLl.ant but found that the appetlant was a bona fide purchaser for value. She addressed the issue by considering the question of whether the ptaintiff was a bona fide purchaser for vatue. Further, she Looked at the paper transactions at the Department of Land Registration on the title deed. Secondly she never addressed her mind on the question of possession of the respondent and the issue of due ditigence. She instead found that the transfer instrument was void for want of spousaI consent of Lydia 0thieno, the wife of Othieno Ochieng Clement. For purposes of completeness, I wiLl. quote the Judgment on the issue of whether the appel.l.ant who was the ptaintiff then, was a bona fide purchaser for value without notice of any defect in title: 10 15 20 "Who then is a bona fide purchaser for value? ln the instant case the defendant never registered her titte atthough she claimed to have bought it from Othieno Clement later sotd to Tom Kaaya who eventually sold to the plaintiff. lt is apparent from the record that the defendant appears not to have conctuded the contract between hersetf and Othieno CLement. But if she had she shoutd have sought permission to join othieno and Tom Kaaya as co-defendants if she so wished. Having done so she cannot cha[[enge the legitimacy of the ptaintiff's title as a bona fide purchaser for value as no fraud was pLeaded as her defence. The ptaintiff on the other hand conducted due ditigence during the purchase of the suit property. This was through newspaper advertisements, signposts and consu[ting LC leadership. The LC leadership was attegedty contacted by the defendant too but after the purported dispute of sa[e. Her interest was unknown to the ptaintiff who is the registered proprietor of the suit land when he conducted searches in the land registry and etsewhere. The land was then registered in the names of the vendor Tom Kaaya. DW4 the Registrar of TitLes testified that Tom Kaaya was the registered proprietor of the suit property when it was sold to the plaintiff. The successive transfer from 0thieno, to Kaaya to p[aintiff appear not to have been fraudutent made to defeat the interest of the defendant. Neither can I sustain the defence ctaimed that instrument numbers were forged as this was exptarned by DW4 who testified as an impartia[ witness for both parties. DW4 stated that a memorial signifies completion of the registration process. That it was entered to signify the transfer of [and from Tom Kaaya to MichaeL Robert Mugenyi the ptaintiff. The apptication was Lodged in 2004 it was compteted on 14th of June 2005. Atso the defendants caveat Lapsed as indicated by Exhibit D l which if not opposed woutd automatica[[y be vacated as per section 140 (2) RTA. For that reason, no fraud has been satisfactority proved to defeat the pLaintiffs ctaim. 25 30 35 40 59 5 As far as issue No 4 is concerned it is evident that the ptaintiff was a bona fide purchaser for vatue whose purchase concLusively entitted him to the suit property. ln which case the court orders for vacant possession of the suit property through the eviction of the defendant. 0n the other hand, the Court of Appeat addressed the question on appeal by considering the possession of the respondent as an important, material and relevant factor. ParticutarLy at pages 8 and 9 of the judgment, the Court of AppeaL hel.d as fotlows: Kerr on "Fraud and Mistake" sth edition, Part 1, Page 1 defines fraud in the contemplation of a civiI Court of Justice to include atl acts, omissions and concealments which involved a breach of tega[ or by which an undue or unconscient iousLy advantage rs taken of another. ALL surprise, trick, cunning. dissembting and other unfair way that is used to cheat someone. Fraud tn aL[ cases implies a witful act, on the part of anyone, whereby another is sought to be deprived, by ittegat or in equitabte means of what he is entitted to. See. Frederick JK Zaabwe vs Orient bank and others, Supreme Court Civit Appeat No 141 of 2006. ln Uganda Posts and Tetecommun ications vs A.K.P. l'/ Lutaaya Supreme Court Civil Appeat No 36 of 1995, the Supreme Court inter atia held that if a person purchases an estate which he knows to be in occupation of another other than the vendor, he rs bound by att the equities which the parties in such occupation may have in the [and. ln this case, the appettant was in possession/occu pation of the property in issue. A[though the appettant does not have a [egaI right over the [and, she has an equitable one. The respondent therefore hotds/owns the property subject to the appetlant's interest. Section 77... ln order for one to seek protection of section 181 (supra) he/she must prove that he/she is a bona fide purchaser. The purchaser must act in good faith, ought to have given due consideration and purchased the tand without notice of the fraud. Such notice covers both actuaL knowledge and constructive notice of the fraud. A purchaser is said to have actual notice of rights of which he knows. and to have constructive notice of rights which he could be reasonably expected to discover. He wi[[ have imputed notice of any matter which his agent has or should have discovered. ln this case, Tom Kaaya transferred the suit [and to the respondent (Michaet Robert Mugenyi) for a consideration of shittings 49,500,000/= Michaet's interest was registered on 9/07 /2005 under instrument number KLA 261814 at 3: 12 PM. The appetlants (lrene Katibata) caveat was registered on 15fi/2003 60 10 15 20 25 30 35 40 5 under instrument number KLA 252256 at 10:28. The caveat is sard to have [apsed on 21st/212015. I note that on the certificate of the property in issue the caveat was registered in the year 2003, the respondent's interest was registered on ?001+ and the caveat expired/lapsed in the year 2005. This shows that the caveat was sti[[ subsisting at the time the respondent was registered. ldo not agree with the respondent's submrssion that the registration was concLuded llt/6/2005 because this date is not the one indicated on the titte as the date when registration of the respondent was effected. This casts doubts on the truthfulness that the respondent is a bona fide purchaser for value without notice. The record atso shows that the respondent's agents had visited the premises and found it in occupation by the appettant's tenants. Further, during the registration process, the respondent was informed of the subsisting caveat. However, it was not proved how this caveat was vacated since there is no notice of such on record. With a[[ due respect, I fauLt the tria[ judge for failure to evaLuate the evidence on record and she thus reached a wrong conctusion that the respondent was/is a bona fide purchaser for value without notice and that he had lawfutty registered the land in his name as there were no encumbrances on the said [and. ln the premises, ground 1of the appeal. has no merit and lwoutd disal.l.ow 10 15 20 2s it 30 35 Ground 2 This ground of appeat is confusing because it is a question of fact as to whether the caveat was subsisting when the appettant was registered as the proprietor. Secondty it is a technical issue as to when the instrument of transfer is Lodged as compared to when the memoriaI was entered on the certificate of titLe. The actuaI question is when the instrument was Lodged for transfer because the process of transfer is supposed to take ptace soon thereafter if there is no encumbrance. The learned triaLjudge did not give her positive finding as to whether the caveat was subsisting yet there is ctear evidence of DW 4 that the caveat was Lodged by the respondent on the 15th of JuLy 2003 and it Lapsed on 21st February 2005. DW4 was the Registrar of TitLes. Furthermore, atL the other witnesses of the ptaintiff incLusive PWl and PW2 confirmed upon perusaI of exhibit Dl, which is the certificate of titte, that the titLe shows 61 5 that the caveat was entered on 15th July 2003 under instrument number KLA252256 and the caveat lapsed on 21st February 2005. The question of when the property was actuatty transferred is a technicaL probtem because there is a two-step process involving the Lodging of the instrument and thereafter in the circumstances of this appeaL, the entry onto the certificate of titte on a later date of a memorial of transfer which woul.d indicate the date of todgement of the instrument. The facts are that the caveat was registered or todged on the 15th of JuLy 2003 and the instrument of transfer in favour of the appettant was registered on 9th Juty 2004 when there was a caveat which was subsisting. The caveat lapsed on 21st February 2005 and thereafter a MemoriaL of transfer was signed on 14th June 2005 after the caveat had tapsed. However, the instrument reflects the date of lodgement of the transfer in terms of the provisions of the RTA. 10 15 20 What is material in considering whether there was an encumbrance at the time of Lodgement of the instrument and thereafter the matter is out of the hand of the transferor and the transferee. The instrument was in the Chambers of the Registrar of Tittes untiI after the transfer was made upon removaL or the [apse of the caveat. ln terms of knowledge of the existence of the caveat, it is cl.early the case that the appel.tant knew that there was a caveat on the titte at the time the instrument was Lodged for registration. ln considering the issue of due dil.igence, it is the knowtedge of the purchaser of the existence of the caveat which is material. I therefore find no merit in ground 2 of the appeaL. The learned Justices of the Court of AppeaL did not misconstrue the process of registration and transfer of tand and they were accurate as a matter of fact that there was a caveat subsisting when the appeLLant was registered as the proprietor. The date of registration is the date of lodgement of the instrument as clearly reflected on the titte deed. The fact that the memoria[ of transfer was signed on the [ater date of 14th June 2005 is not materiaL because what is entered is the date of lodgement of the instrument of transfer. Section 46 (2) ol the RTA is quite ctear on this and provides that: ,q 30 46. Effective date of registration; the duly registered proprietor 62 5 (1) (2) Every instrument purporting to affect Land or any interest in land, the titte to which has been regrstered under this Act, shatl be deemed to be regrstered when a memoriat of the instrument as described in section 51 has been entered in the Register Book upon the foLium constituted by the certificate of titte Secondty section 51 requires the memoriaL of transf er to have the date of the instrument. The memorial is entered by the registrar. Section 51 provides that: 5'1. Memoria[ defined Every memorial entered in the Register Book shalt state the nature of the instrument to which it relates, the time of the production of that instrument for registration and the name of the party to whom it is given and shatI refer by number or symbol to the instrument, and shatl be signed by the registrar. 2s Ground 3 10 15 20 30 Ground 3 of the appeaL has no merit because the issue therein has been resotved in grounds, 1 and 2 of the appeaL. There was a caveat subsisting at the time of lodgement of the instrument of transfer which is on 9th Juty 2004. Thereafter the appel.tant had no further control over the process of registration and the matter was in the hands of the registrar. At the time of [odgement of the instrument of transfer, the caveat was stil.t subsisting and it onty tapsed in February 2005. I wou[d, in the premises, dismiss ground 3 of the appeat. Ground 4 63 The time of production of the instrument in this case was 9th JuLy 2004 whrl.e the memoria[ was actualty signed on a later date of 14th June 2005. The date of registration of the instrument is the date of transfer. At this time, there was a caveat subsisting and the appettant and his agents had constructive notice of it. Ground 2 of the appeat has no merit and I wouLd disaltow it. I have carefutly considered ground 4 of the appeaI and the matter was resolved in ground 1 of the appeal.. There are two etements that support the conclusion of the Learned Justices of the Court of Appeal. The first is 5 that the respondent or the vendor Mr. Othieno 0chieng Ctement was in possession of the suit property at the time of the transaction and therefore there was no due ditigence on the part of the appetlant and his agents to estabLish the terms of the possession of the suit property. Secondl.y, and most importantly, the instrument of transfer by which the appeltant was registered was todged in the tand registry when there was a subsisting caveat on the titl.e and therefore there was knowl.edge that there was an adverse third party interest specificatty notified in the caveat. This meant that there was notice that the titl.e of Tom Kaaya was defective without resolution of the issue reLating to the caveat and removal of the caveat. There was an encumbrance on the titl.e and therefore the appeltant coutd not be a bona fide purchaser for vatue without notice of the defect in titl.e of Tom Kaaya or without notice of the adverse ctaims of the respondent who was atso a purchaser. Further section 141 of the RTA forbids registration of a transfer where a caveat is subsisting. lt provides that: '141. No entry to be made in Register Book whiLe caveat continues in force. So long as any caveat remains in force prohibiting any registratton or dealing, the registrar sha[[ not, except in accordance with some provision of the caveat, or with the consent in writing of the caveator, enter in the Register Book any change in the proprietorship of or any transfer or other instrument purporting to transfer or otherwise deat with or affect the estate or interest in respect to which that caveat is lodged. The above section 141 of the RTA forbids the lodgement of the instrument of transfer and does not only forbid the memorial of transfer. lt is incredibte and erroneous to argue that the court should not consider the date of lodgement of the instrument when the law deems this to be the date of transfer. The memorial of transfer even records the date and the time of registration and this affects priority or ranking of registrations. Where there is a caveat forbidding transfer without notice, that transfer cannot be effected and the instrument of transfer can only be todged after the caveat is removed or has [apsed. What is even more material being that Tom Kaaya was never in possession of the suit property. Possession of the property went from 64 10 15 20 25 30 35 the famity of 0thieno 0chieng CLement to the respondent. Further, the respondent adduced evidence to show that Tom Kaaya was a money lender to whom Othieno owed money and part of what she paid was meant to settl.e the indebtedness of Othieno so that Tom Kaaya releases the titte he had in his possession back to Othieno though this is not relevant on the issue of caveat. lt can safe[y be inferred that the transfer to Tom Kaaya was a paper transaction without actual possession of the Land by Tom Kaaya. The appell.ant was under duty to carry out due ditigence by estabtishing what the interest of the respondent was. For purposes of the issue of possession witL set out the evidence which is as foILows. 65 10 15 20 25 30 Firstl.y, Mr. Tom Kaaya is not a party to the originat suit which was fiLed by the appettant. The originat suit of the appettant in the trial. court was for vacant possession. Secondl.y the facts demonstrate that the respondent obtained vacant possession from the vendor who sotd her the property, namety Mr. 0thieno 0chieng Clement. For emphasis, the evidence is that by the time she obtained vacant possession, it was Othieno Ochieng Clement who was in possession and who parted with possession to give her the property by a memorandum which was adduced in evidence. WhiLe we may not particularty re-evatuate the evidence Like a first appetlate court, lhave come to the conclusion that the testimony of PW 'l and PW 2 have to be considered critical.ty on the issue of possession by Tom Kaaya. This is based on the inference of fact that Tom Kaaya whose name appears on the titte seemed unknown to the respondent who went to Lodge her own instrument of transfer and that is when she discovered his registration and todged a caveat. There is no ctear evidence as to whether Tom Kaaya was ever in possession at a[[ and evidence points to the fact that it was the famil.y of the vendor who was stit[ in possession when the respondent got vacant possession from them. There is some confticting evidence on this point which can be resoLved by perusat of the documentary evidence on record. lwitt give a chronoLogical account of facts based on the numerous documentary exhibits which are not in dispute. Further, Mr. Tom Kaaya was not calted as a witness by any of the partres. The witnesses who testified on the issue are PWI and PW2. Secondty, I have borne in mind Further, DWl testified that after paying 0thieno he did not surrender the certificate of title but informed her that his stster had used the titl.e as security to get a loan from a money [ender and he couLd not retease the tit[e until. his 7,000,000/' was paid. She atso testified that 0thieno was Living on the property with his wife and 3 chiLdren and since he had not 66 35 s the fact that the parties before the court are the appellant and the respondent who have competing interests. The respondent had a contract with the vendor Mr. Othieno Ochieng Ctement since December 2002 when 0thieno Ochieng Ctement was the registered proprietor of the suit property and who subsequentty handed over vacant possession to 10 the respondent. The interest of the appettant, on the other hand, is based on the transfer of land and a sale agreement with Tom Kaaya. With regard to the respondent's agreement with 0thieno 0chieng C[ement in December 2002, the earliest fact on record, DWl, Mrs. lrene Kal.ibata, the respondent testified that she bought the Land from Othieno 1s on 13th December 2002 and they signed a sale agreement. The sate agreement exhibited shows that two instatments were agreed for the payment of the consideration. The first was shil.Lings 3,000,000 which was acknowledged on the date of agreement and the next instatment was meant to be paid on l5th February, 2003 but the date was amended on 20 16th January 2003 to be paid on 28th February 2003. The agreed instaLments were paid in the foLtowing manner. The 'lst instatment of shiLl.ings 3,000,000/= was paid online13/12/2002 at the time of signing the agreement and the batance was to be paid on 15th February 2003. The Last instatment was to be paid by 28th February 2003. 0n 3rd march 2003 2s the respondent though her agent paid US$ 5,450 equivatents to 10,442,200/=. On 24/3/2003 she paid US$ 3900 equivalents of 7,605,000/= shil.Lings. 0n 12th ApriL 2003 she paid US$ 2,000 equivaLents to shittings 3,932,000/=. 0n 27th May 2003 she paid US$ 4,000, the equivalent of shil.fings 7352!00/=.0n Sth June 2003 she paid US$50 equivatent to 30 shiLlings 99,750/=. Before Tom Kaaya was registered on the property she had paid the equivatent of Uganda shittings 33,030,950/- out of the agreed sum of Uganda shil.Lings 40,000,000/-. 0n 13th June 2003 she paid 3,000,000/=. The receipts evidencing payments were admitted as exhibits. surrendered the certificate of titl.e he suggested to the respondent that he woutd pay her rent as tenant until he gave her the titte and then vacates the property. She testified that she agreed and they stayed on the property as tenants. She was also advised to put a caveat on the property. A caveat dated 15th Juty 2003 was lodged but this was after Tom Kaaya was registered on the titl.e on 10th of June 2003. The caveat was Lodged approximatety 35 days after Tom Kaaya was registered. Tom Kaaya was registered after the respondent had atmost compl.eted paying al.L the consideration for the Land. DW1 further testified that one Frances 0thieno sued her for purchasing the property and aLteged that it was a matrimonial home. The pl.eadings were admitted in evidence. The Ptaint before the Land Tribunat was fiLed on 1st Aprit 2004.11was against lrene Katibata and Othieno 0chieng Clement. lt was, inter atia, for declaration that the purported saLe of the suit land and developments thereon were nut[ and void for want of consent. lt is averred in paragraph 4 (d) that the first defendant (lrene Katibata) had threatened to evict her and had deptoyed poLice. It is a fact that Tom Kaaya is not mentioned in the pLaint. The respondent (DW1) testified that she fil.ed a compLaint with potice and 0thieno was apprehended in May, 2004. lt is at the pol.ice that the respondent realized that the vendor and his wife had colluded to defraud her by suing her using the name of Othieno's sister, Ms. Frances Othieno. She asked 0thieno for vacant possession and a memorandum of understanding was entered into to have him vacate the Land and Othieno was to be given shill.ings 1,000,000/= (one miLl.ion) to enable him relocate to another pLace. The memorandum for the respondent to, inter atia, obtain vacant possession of the suit property is dated 19th May 2004. The memorandum shows that possession was to be surrendered by Ochieng and his wife to lrene Ka[iba[a on 'l9th May 2004. Ochieng undertook to surrender the titl.e deeds. A transfer deed signed in favour of lrene Katibata was fited with Lands on l2th or 16th of Jul.y 2004 (date not very ctear but not materiaI as it was in the month of Juty 2004). The memo disctoses that it is signed by 0thieno Ochieng Clement on 19th May 2004. The Respondent also testified that she was in possession of the property which fact the appettant does not dispute. 10 15 20 25 30 67 5 Further, the appettant's suit is for vacant possession of the suit tand. The application to remove the respondent's caveat was fited on 'l7th of February 2005 when the respondent had been on the suit property for some time. The respondent made tast payment when the land had been transferred to Kaaya and her caveat registered on 15th July 2003. 0n the question of possession, the learned triat.1udge Anna Magezi found at page 1 of her judgment that lrene Kal.ibala (The defendant) was in possession and a caveat had been registered on the suit property. This was considered an agreed fact that required no proof. Apart from remedies three major issues were raised for consideration by the triaL court nameLy: (a) whether the suit property was unLawfuLty or fraudutentty registered in the name of the p[aintiff. (b) whether the ptaintiff was a bona fide purchaser for vatue without notice of the suit property and (c) who of the parties was the rightfut proprietor and if any trespass was committed by the defendant. The first two issues relate to the acquisition of titte by the plaintiff whil.e the third issue relates to whether the defendant, who was in possession was a trespasser. 0n whether the pl.aintiff was a bona fide purchaser for vaLue without notice or whether he acquired the suit property fraudutentLy, the evidence adduced is that of PWl, PW2 and PW3. With regard to what happened on the title the defence atso ca[Led the Registrar of titl.es. I wil.t start with facts of the ptaintiff as the pLaintiff who is now the appetlant had the burden of proof on issues'l and 2. PW1 Mr. Mpuga Adinan testified that the property was advertised in the Monitor Newspaper on 28th November 2003 by Easttand's Agency. The dail.y Monitor is dated Friday November 28th, 2003. The question is whether before the appetlant bought from Kaaya they as an agency business, carried out a search on the tit[e and inspected the suit property. PWI testified that they carried out a search in JuLy 2003 after Kaaya approached them to sett the suit property on his behatf. This was in reLation to their roLe to look for buyers as commission agents. Thereafter another search of the titLe was conducted tn December, 2003 by Joseph Musoke and that Joseph Musoke estabtished that the titte was stiLl. in the names of Tom Kaaya. Joseph Musoke did not report any encumbrance of 68 10 15 20 25 30 a caveat on the titte at that time (December 2003). Mr. Joseph Musoke was not calLed as a witness to confirm this assertion nor did PW1 produce documents or adduce evidence of the search on the titte. I note that the appettant did not carry out any due ditigence by conducting a search before purchase of the property but retied on the agent's assertions that the Land bel.onged to Tom Kaaya and that it had no encumbrances. The assertion that the suit property had no encumbrances is factuaLl.y incorrect as a[L records show that a caveat had been Lodged on 15th Juty 2003 by lrene Ka[ibata. PW1 testified that the Land was free from encumbrances at the time of sale whereas not as seen from the titte and various exhibits tike the caveat and the letter for removaI of caveat. The appetl.ant Mr. MichaeL Mugenyi agreed to buy property which was at the time registered in names of Tom Kaaya at shitl.ings 49,500,000/-. lrene Ka[ibata entered into transaction of sale and had substantial.ty paid the purchase price to 0thieno 0chieng Clement before the property was transferred to Tom Kaaya. Michael Mugenyi paid Tom Kaaya in two instatments of shiLl.ings 11,500,000/- on 5th January 2004 and balance of shil.l.ings 38,000,000/- on 21st January 2004. He stated that the property had a tenant who was paying shitlings 400,000/- and she was catted Mrs. Ochieng. PWl did not estabtish from the LC if property betonged to Kaaya. There is no evidence on how Kaaya acquired the land and obviousLy Mrs. Ochieng whose famity fited an action in the Land TribunaL, sought, inter aLia, orders to prevent lrene KaLibal.a from evicting her. No mention is made of Tom Kaaya in that suit. PW2 Robert Mugenyi is a brother of the appel.tant and testified that he identified the property for sate in an advertisement at page 34 of the Monitor dated 28th November 2003. He visited the property and found a Lady who disctosed that she was a tenant. The Lady did not discLose who her landtord was or whose tenant she was. PW2 agreed to buy the property for the appettant and paid for it in January, 2004. He did not carry out any search at the Land Registry before payment but retied on the assurance of PWl that a search of the title in the Land registry was conducted prior to advertising the property. He testif ied that he was given transfer forms and other documents. This was on 21st January 2004 upon 69 10 15 20 25 30 5 payment of the final. instalment. The transfer form dated 23rd Aprit 2004 was exhibited. 0n 10th March 2004 he paid Toro business to effect transfer into the appellant's names. He was then informed by Toro busrness that there was a caveat on the property and this was after l0th of March 2004 when he had atready paid the consideratton for the suit property. The caveat was subsequentty removed and registration was effected in February 2005. PW2, acting on behatf of the appetLant paid Freight Auctioneers to renovate the property and upon going to the property was informed that the property was occupied and he asked them to evict the occupants and he put a security guard. I note that the property was occupied by tenant whose name is not disctosed. Upon examining the exhibit of receipts which are daledlT/11/2004, 19/11/200t1 and 19/11/2004, it can be concluded that it was Mrs. lrene Kal.ibata who had secured possession from Othieno in May 2004. This explains why the appeLtant fiLed a suit to evict or obtain vacant possession as against lrene KatibaLa. PW 3 Mr. Mugenyi and who is the appeltant testified that he had not been abte to take possession of the property after the purchase of the property and that he has never occupied it. He was informed that the property was occupied by lrene KaLibala. He said lhal "to the best of my knowledge there was an attempt to take possession of the property which was resisted. This / was told by my brother. He took guards to guard the property and take possession but after two days some armed men threatened him and sent away the two guards. Thrs is why we came to court". He testified that at the time of inspection of the house, it was occupied by a tady and chiLdren and the vendor informed him that they were tenants. Further I note that the respondent admitted that she had not taken possession of the suit property at the time of the Last payment. The memorandum for possession was signed l year after Kaaya had been registered on the titte on l9th May 2004. DW 2 the Chairman LCI came to know the respondent in 2005 when she introduced hersetf as the buyer and that 0thieno had refused to vacate 70 10 15 20 25 30 35 10 15 20 25 30 35 the property. He was tol.d that lrene KaLibala had bought the property ear[ier than the appe[l.ant. DW3 is a witness considered by the judge as untruthfuI and unreLiabte. An examination of her testimony shows that she stated that the vendor was Othieno, who sotd the suit property to lrene Katibata at 40,000,000/= on the 13th of December 2002. The purchaser paid the consideration in instaLments and never took possession immediateLy. DW3 stated that she carried out a search prior to todging the caveat and when she went to check in 2004, she found that the white page of the title was missing. (the Judge then wrote that the witness is untruthful and unreliable). I note that this is on the issue of the white page being missing as the rest of her testimony is supported by exhibited documentary evidence. She testified that payments for the [and were made wrth amendments to the agreement and not according to originaI agreement. The finaL instatment was made in June, 2003 and the commission paid tn2004. DW4 the Registrar of Titl.es testified that Othieno Ochieng Clement was registered on the titl.e of the suit property on the 4th of January 1999 proving that between December 2002 and before l0th June 2003 Mr. Othieno Ochieng Ctement was the registered proprietor of the suit property. This is the period lrene KaLibata paid 0thieno over 90% of the purchase price agreed to in December 2002. DW4 testified that Tom Kaaya was registered on the titl.e on the 1Oth of June 2003. Michael. Robert Mugenyi was registered on 9th Juty 2004. I note that lrene Katrbata took over possession in May 2004 before Mugenyi was registered on the titLe and there was a caveat subsisting at that time. According to the testimony of DW4, the caveat was Lodged on 15th Juty 2003 when the titl.e reflected the names of Tom Kaaya and the caveat lapsed on 21st of February 2005. Any search after JuLy 2003 woul.d reflect a caveat untiL February 2005 when the said caveat Lapsed. The testimony of DWA as Registrar of Tittes is that every document todged in the registry is seriatized, and when a transfer is Lodged in the registry it is given an instrument number. Then it is taken for action whereupon the instrument can be passed or rejected. The registrar then signs the memorial and endorses on the file if the action sought is 7L 5 5 aL[owed. The Registrar atlowed the instrument and entered a memorial of transfer from Tom Kaaya to Mugenyi and the memorial was signed on 14th June 2005. 12 I have considered section 'i41 of the RTA and it provides that: 141. No entry to be made in Register Book white caveat continues in force. So 10 long as any caveat remains in force prohibittng any registration or deating, the registrar sha[[ not, except in accordance with some provision of the caveat, or with the consent in writing of the caveator, enter in the Register Book any change in the proprietorship of or any transfer or other instrument purporting to transfer or otherwise deal with or affect the estate or interest in respect to 15 which that caveat is todged. Ctearty no instrument shoutd be entered in the Register Book when a caveat is subsisting. To do so is an il.tegatity and the rationa[e, inter alra, inctudes that any registered proprietorship entered in the Register Book first takes priority over those entered later. The caveat forbids any 20 registration and deal.ing in the property. The appeltant had constructive notice of the caveat and is not protected by the fact that he bought from Tom Kaaya. The titte of Tom Kaaya was encumbered by a caveat and the peopte in possession are those who soLd to lrene Katibal.a. Tom Kaaya was not a party to the suit. lt was sufficient for lrene Kal.ibal.a to state in 2s answer to the suit seeking an order to evict her that she had Lodged a caveat forbidding any registration and deal.ing in the property without notice to her. She shoutd have been given a chance to deal with the issue between her and Tom Kaaya if Tom Kaaya contested her interest and maybe she coutd inctude Othieno who had sold to her before Tom Kaaya 30 was registered, if 0thieno is not on her side. There is no evidence of how Tom Kaaya got registered on the titl.e and such evidence coutd have been adduced by Othieno Ochieng Clement, if indeed he contested the titte of the respondent. The suit in the High Court was confined to possessory rights and the right of Mugenyi to evict lrene Katibala. Michaet Mugenyi 3s bought the suit property when the caveat of lrene KaLibaLa was subsisting and he had constructive notice of her interest. He cannot assert the titte obtained from Tom Kaaya without incorporating the lnterest notified in the caveat showing the interest of lrene Kal.ibaLa. 5 Further, deal.ing in the suit land and being registered on it in 2004 was an il.Legal.ity as it was forbidden by section 141 of the RTA. The Registrar of TitLes ought not to have entered or atlowed an instrument to be entered on a date when a caveat subsisted on the titl.e. He ought to have waited for the caveat to Lapse first. The date of the instrument is the date of the transfer even if the memoriaI is entered later. Section 46 of the RTA deal.s with the effective date of registration and it provides that: 46. Effective date of registration; the duly registered proprietor. (1) Subject to section 138(2), every certificate of titte shatl be deemed and taken to be registered under this Act when the registrar has marked on it- (a) the votume and folium of the Register Book in which it is entered; or (b) the btock and plot number of the tand in respect of which that certificate of titte rs to be registered. (2) Every instrument purporting to affect land or any interest in tand, the title to which has been registered under this Act, shall be deemed to be registered when a memorial of the instrument as described in section 5l has been entered in the Register Book upon the foLium constituted by the certificate of titte. (3) The memoria[ mentioned in subsection (2) shatl. be entered as at the time and date on which the instrument to which it relates was received in the office of titles together with the dupIicate certificate of titte and such other documents or consents as may be necessary, accompanied with the fees payable under this Act. (4) The person named in any certificate of titte or instrument so registered as the grantee or as the proprietor of or having any estate or interest rn or power to appoint or dispose of the land described in the certificate or instrument shatt be deemed and taken to be the duty registered propnetor of the [and. The titl.e deed demonstrates that Mugenyi Michael. was registered as proprietor on 9th of Juty, 2004 under instrument number KLA261874 at 3.12 pm. This is the date the instrument was entered in the Log book contrary to section 141 of the RTA and at a time when the respondent was in possession. Any instrument of transfer shoutd have been Lodged or entered after the caveat [apsed in February 2005. lt is immateriaL in terms of section 46 (1) of the RTA that the transfer instrument for 73 10 15 20 25 30 35 t 5 registration was apparentty recerved by the URA on 28th of Aprit 2004. The transfer document disctoses another date where it was received in the registry on the 30th of Aprit 2004. Further, judiciat precedents set out the common law that a Court of Law cannot enforce a contract prohibited by statute. ln Bostel Brothers Ltd v Hurtock n948)2 Att ER 312 the Court of Appeat per Somervelt LJ stated the principl.e at 312 that: "The principl.e of taw retied on was stated concisety and in a form appropriate to the present issue by Ettenborough CJ in Langton v Hughes (1 M & S 593, 596): "What is done in contravention of the provlsions of an Act of Padlament, cannot be made the sublect- matter of an action." This in apptication means that a registration effected when there is a caveat in force is forbidden by section 141 and as read in conjunction with section 46 (1) of the RTA and the titte obtained by such an iLtegal.ity cannot be used to assert registered titLe as against the respondent. ln Phoenix General lnsurance Co of Greece SA v Administratia Asiguraritor de Stat n9871 2 Att ER 152, the Court of Appeal of the United Kingdom considered the effect of il.[egal.ity in the tead judgment of Kerr LJ where it was hetd that it is settled Law that any contract prohibited by statute, either express[y or by impLication is il.Iegal. and void. At page 171 Kerr LJ quotes Parke B for the principLe that: "Parke B said (2 tvl & W 149 at l5?, 150 ER 707 at 710): 'lt is perfectty settted, that where the contract which the plainttff seeks to enforce, be it express or imptied, is expressly or by imptication forbidden by the common or statute Law, no court wit[ tend its assistance to give it effect. lt is equatty ctear that a contract is void if prohibited by a statute, though the statute inflicts a penatty onty, because such a penatty implies a prohibition... ln Uganda these principLes were apptied in Makuta lnternationat Ltd Vs His Eminence Cardinat Nsubuga and Another 0982) HCB ll where it was heLd that: 10 15 20 25 30 74 5 { 10 15 20 25 30 ... A court of law cannot sanction what is ittegal and ittegatity once brought to the attention of the court, overrides a[[ questions of pteading, inctuding any admissions made thereon. The question of iLl.egal.ity overrides questions of pLeadings and can be raised anytime. ln Mercantite Credit Co. Ltd v Hambtin n964] 1 ALL ER 580, a defendant sought to rety on an itlegal.ity which was not pteaded and the pl.aintiff objected to the issue on the ground that it had not been pleaded. The defendant then sought Leave to amend the defence and the court held that counsel was not acting improperly to draw courts attention to an il.LegaLity of the transaction. 0n the contrary it was counset's duty, however embarrassing to prevent the court from enf orcing an iLtegat contract. From the facts of this appeat any deaLing in the suit [and was forbidden by virtue of the registration of a caveat as an encumbrance on the titl.e. The appel.tant had constructive notice of the caveat by November 2003 and January 2004 when he executed a contract. For emphasis section l4l of the RTA not onty forbids deaLing in the Land but atso expressty forbids the Registrar from entering in the Register Book: "..any change rn the proprietorship of or any transfer or other instrument purporting to transfer or otherwise deal with or affect the estate or interest in respect to which that caveat is lodged". The Registrar iLtegatLy registered an instrument received in its office around the 30th of Aprit 2004 and having a memoriaL of the instrument of transfer registered on the 9th of Juty 2004 as reflected on the tit[e. The appetl.ant bought registered Land and had himsetf registered thereon when there was a caveat subsisting on the register. He cannot use such a titLe, obtained contrary to statutory provisions to defeat the possessory interest of the respondent. The issue of the titLe of Tom Kaaya is a matter that has not been the subject matter of Litigation and there is no need to deal. with it in a suit which sought to evict the respondent. ln the premises, I find that there is no basis to depart from the conctusion of the Justices of the Court of Appeal. and ground 4 is hereby dismissed. Ground 5 75 t 5 I have perused the record to estabtish the genesis of this issue. This issue initiatty arose from resotution of issue No. I in the High Court. The issue WAS: Under 0rder'15 ruLe I of the Civit Procedure Rutes, "issues arise where a material proposition of law or fact is affirmed by one party and denied by another." Further under 0rder 21 rutes 4 and 5 of the Civil. Procedure Rutes there has to be a ludgment on each issue. Rules 4 and 5 provide that: 2. Contents of judgment, Judgments in defended suits shaL[ contain a conctse statement of the case, the points for determination, the decision on the case and the reasons for the decision. 3. Court to state its decision on each issue. ln suits where issues have been framed, the court sha[[ state its finding or decision, with the reasons for the finding or decision, upon each separate issue, untess the finding upon any one or more of the issues is sufficient for the decision of the suit. ln the counterctaim, the respondent al.l.eged fraud of the appeltant and gave particutars of fraud and sought canceltation of his titLe. 0n the other hand, the appettant sought an order of eviction or vacant possession of the suit property. The learned triat judge of the High Court stated as f o Itows: DW4 the Registrar of Tittes confirmed that the property belonged to the ptaintiff who bought from Tom Kaaya who was preceded by Othieno Ochieng. That the property currently had no encumbrances as the caveat had tapsed. That the memoria[ signified a transfer to the ptaintiff when the caveat lapsed on the 21st of February 2005. He stated that according to Section 59 of the RTA registration of tit[e in the plaintiff's name is conctusive evidence of proprietorship of the suit property. That the records indicated that the defendant had never owned the suit property. That in any case if any sale had been transacted no spousaI consent appear to have been obtained by 0thieno. Section 39 (1) of the Land (Amendment) Act 2004 prohibits any sale exchange, transfer, pledge, mortgage, or [ease of famity Land without prior consent of the spouse. Section 38 Land (Amendment) Act 2004 famity [and means land on 10 15 20 25 30 76 Whether the suit property was unlawfutty registered in the names of the Ptaintiff. 5 { 10 15 20 25 30 35 which is situated the ordinary residence of a famity or which the famity freety or votuntarity agrees shatl be treated as quatifying so. Clear specific forms of consent are necessary before such transfer. The ground oF appeal in the Court of Appeat fited by the respondent is ground 4 that: 4. That the Learned tria[ judge erred in law and fact in hotding that the appettant purchased the suit property without the consent of the vendor's spouse, one Othieno The Justice of the Court of Appeal. hel.d that ln this case the appellant and othieno entered into a land saLe agreement. lt was witnessed by Peter Watenga, Ftora T. Katyanga and Lydia Othieno. I agree with the appettant's submissrons that Lydia Othieno's signature on the sate agreement amounted to consent. There is no proof of a pending suit between Lydia Othieno and lrene Kalibata challenging the purchase of the property. The respondent did not chatlenge the genuineness of the signature at the triat. I therefore find that the signature on the sate agreement by Lydia 0thieno amounts to spousaL consent. Ground 4 succeeds. 4. ln particuLar, as regards Paragraph 6, the Ptaintiff shaL[ aver that it has no knowledge of the said purported sate and or suit and or the Memorandum of Understanding between the Defendant and Third Parties and was neither a party thereto nor on notice of the same and was merely a Bona Fide Purchaser for valuab[e consideration. 5. ln respondent to the ParticuLars of Fraud the Ptaintiff shatl aver in response as f ottows: (i) The Ptaintiff was not aware of any purported dealing between the Defendant and any Third Party and shatI aver that any such attegations are fatse and a sham. 77 IwiLt start with the basic issue of signature. The signature of Lydia 0thieno was not chatlenged by the appeLlant at the trial. and the issue cannot be opened in a second appeal.. SecondLy the appeLl.ant cou[d not have chaltenged the agreement because the pleadings were based on the fact that the appel.tant was the registered propnetor. The appetlant in repLy to the counterclaim averred in 4 and 5 (i) of the repty to the written statement of defence and counterctaim that he was not aware of the sate as fotlows: l. i i 5 The defence of the appeLlant to the counterctaim of the respondent was that the defendant was not aware of the sate transaction between the respondent and Othieno. There was no issue of whether the signature of Lydia Othieno was a forgery or that Othieno did not get consent of the spouse for purposes of the transaction. Further it is not ctear whether the learned trial. judge made a ruLing or was evatuating the testimony of Dan Oundo who testified as DW4 when she considered section 39 of the Land Act. 10 15 20 25 30 35 78 ln relation to spousalconsent under section 39 of the Land Act, the issue cannot be raised by the appettant who is not a famiLy member of 0thieno Ochieng Clement. The sate agreement had not been chaltenged by the Appeil.ant in the High Court as hetd by the Court of Appeal.. lt is not part of the pLeadings of the ptaintiff in the triat court. The pLaintiff's action in the triaL court was for possession. He purported to derive his interest from Tom Kaaya and his case is that Tom Kaaya in turn derived his interest from 0thieno 0chieng CLement. The respondents case on the other hand is that she was an equitabte owner and a person in possession of the suit property pursuant to an agreement to se[[ to her by 0thieno 0chieng and a transfer instrument duty executed in her favour by 0thieno 0chieng Ctement. ln the premises, the matter is not open for reconsideration on a second appeal and not withstanding that the Court of Appeal. deal.t with the pronouncement of the trial. judge, that pronouncement was not based on pleadings. A matter not pl.eaded cannot be proved and it was sufficient to find as the Court of Appeat did, that the appetLant never chattenged the saLe agreement between the respondent and 0thieno. Moreover,Othieno was not a party and ought to have been heard. Neither was Lydia Othieno a party or a comp[ainant. The matter coutd not be decided as an issue under Order 21 rules 4 and 5 of the Civil Procedure RuLes as it was not an issue for decision. The burden is on the person al.teging that the transaction was void to adduce evidence to prove it on the balance of probabiLities. The pl.aintiff catl.ed PWl, PW2 and PW3 none of them testified about a signature of Lydia a 5 10 15 20 25 Othieno being void or a forgery. Othieno Ochieng Ctement as noted was not a party to the action. The respondent adduced evidence that the sister of 0thieno 0chieng Ctement fiLed an action as a spouse in the Land TribunaI which action she abandoned and the famil.y settl.ed the matter in a memorandum of understanding which was admitted in evidence. ln any case, if there was such an action, it had to be brought by a member of the famiLy. Ground 5 therefore leads to no possib[e good because it purports to try a matter that was not pleaded and resotve an issue without any pteading and without any comptaint from the famity of the vendor. ln the final. result, I woutd find that ground 5 of the appeaL has no merrt and I woutd disal.[ow it. The appeal having whotty faiLed, I would make an order dismissing it with costs to the respondent. Signed at Kampala the 15th day of August 2025 Christopher Madrama lzama Justice of the Supreme Court ) Detivered in Kampata on the )L /) 4'o*or -&rko^kr^ 025 ,SC 79 IRENE KATIBALA RESPONDENT Paul Muhimbura for the Respondent Muhumuza Reagan for Appellant Appant present Respondent absent Ms. Mirriam Naguddi sister of Respondent present Saluwa: court clerk Muhimbura: We are ready to receive the judgment. Court: Judgment of Court read out to the parties in chambers Copies availed to them RGISTRAR JU DGMENT PROCEED! NGS: O4TH SEPTEMBER, 20.25 12:30 P.M BEFORE H/W AYEBARE TUMWEBAZE: REGISTRAR, SUPREME COURT SUPREME COURT CIVII APPEAL NO. OO24 OF 2O2O MICHAEL ROBERT MUGENYI :::::::::::::::::::::::::::::::::::::::: APPELIANT VERSUS

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Michael Robert Mugenyi v Irene Kalibala (Civil Appeal No. 24 of 2020) [2025] UGSC 33 (4 September 2025)

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Michael Robert Mugenyi v Irene Kalibala (Civil Appeal No. 24 of 2020) [2025] UGSC 33 (4 September 2025)

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