Uganda Motors Ltd v Attorney General (Civil Appeal No. 5 of 2021) [2025] UGSC 28 (18 July 2025)

THE REPUBI]C OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPATA (Corom: Tuhoise, Musoke, Musota, Bomugemereire & Mugenyi, JJSC) clvll APPEAT NO. 05 0F 202t UGANDA MOTORS tTD............... ..APPELIANT Versus THE ATTORNEY GENERAL RESPONDENT [An oppeol arising firom the tudgment of the Court of Appeal in CivilAppeol No. 728 of 2013 before Kakuru, Kiryabwire ond Modromo,ltA, doted 4th December 20201 Jude ment of Percv Nig ht Tuhaise, JSC I have had the benefit of reading in draft the Judgment prepared by my learned sister Catherine Bamugemereire JSC; together with the judgment of my learned sister Monica Mugenyi JSC. I agree with the analysis, decision and conclusions in the lead judgment, save for ground 1, and on the orders proposed in the lead judgment. -l-he backgro.rnd is well aniculated in the lead judgment and in the .judgment of Mugenyi JSC. I will therefbre not repeat the chronology of events that led to the appellant's filing of the suit at the High Court to claim his loss of the suit land. However, I will briefly restate some aspects of the background, since some of my impressions are dictated by the chain of events, as ref'lected on the record, that led to the to the appellant's loss of the suit property, and hence the dispute which is the basis of the appeal betbre this Court. 1 My analysis of the adduced evidence on record,, and my consideration of the record as a whole regarding the circumstances from which the instant appeal arose, is that the appellant's filing of the civil suit in question was prompted by its loss of proprietorship of land comprised in Block I 170 Plot232 at Banda, Wakiso District (the suit land), which, through a series oftransactions, ended up under the proprietorship ofthird parties. In that suit, the Attorney General, who is the respondent in this appeal, was the second defendant. The appellant claimed compensation against the Attomey General for loss of land, under sections 183 and 185 of the Registration of Titles Act (RTA), now sections 167 and 169 of the RTA cap 240, in the 2023 revised edition of the Laws of Uganda. The claim for compensation was based on the appellant's contention that it lost the suit land due to the commission or omission on the part of the registrar of titles, a servant ofthe second defendant, to lodge the appellant's caveat on the certificate of title to the suit land in time or at all, resulting into alienation of the land to third parties who became bona fide purchasers for value. The concurrent decisions of the High Court and the Court of Appeal (the lower courts) were that the appellant lost the suit land due to two court orders, that is, vide Civil Suit No. 1193/1999 Directel vs Uganda Motors and Miscellaneous Application No. 62/2002 Arthur Mukwatanise vs [Jganda Motors & 2 Others, rather than through the omission of the registrar oftitles to register the appellant's caveat on the certificate oftitle, albeit that such registrar's omission to do so was not justified. On that basis, the lower courts declined to grant the appellant's prayers for compensation against the Attomey General under section 183 (now 167) of the RTA, which decision is faulted by the appellant in ground 2 of the appeal before this Court. The Appellaut argues that the registrar of titles had a duty to register caveats; that in this case the appellant filed a caveat which however he did 2 not register as an encumbrance on the certificate of title to the suit land; that the omission to register the caveat excluded the appellant's interest from appearing on the encumbrance page in the certificate of title to the suit land resulting into alienation of the land to third parties; and that the appellant suffered loss. The respondent on the other hand, argues and agrees with the concurrent findings of the lower courts that the appellant lost the land twice; first when Emmanuel Mwebaze was registered on the title afier the suit land was attached and sold to him by court; and second, when the court set aside the consent order that the appellant had entered into with M/S Directel(U) Ltd. The background details of the court orders to which the lower courts attributed the appellant's loss of proprietorship of the suit land were, first, in June 2000 when Emmanuel Mwebaze got registered on the certificate of title to the suit land on 1610612000 after he purchased it pursuant to execution proceedings vide High Court Civil Suit No.l193/1999 MIS Directel vs Uganda Motors; and second, when, in 2003, pursuant to Miscellaneous Application No. 62/2002 filed by Arthur Mukwatanise as bona fide purchaser who had not been heard on the matter, the court cancelled a consent order executed between the plaintiff and M/S Directel (U) Ltd vide Miscellaneous Application No. 922/2000. While it is not disputed that, as a matter of fact, the appellant lost the suit land twice through two separate and unconnected court orders, this, in my considered opinion, would not, with respect, contrary to the concurrent decisions of the lower courts, deny the appellant the right to argue that the registrar's omission to register the caveat deprived the plaintiff the ability and potential to recover the suit land. The adduced evidence on record shows that the first "loss" ofthe land to Emmanuel Mwebaze through attachment and sale by court in June 2000 clearly had no nexus to the registrar's omission to lodge the appellant's 3 caveat, since it took place befbre the appellant's filing of the caveat in question. However, on I 0'h July 2000, the appellant did file Miscellaneous Application No. 922/2000 challenging the attachment and sale of the suit land, and, two days after, on l2th July 2000, presented a caveat to the registrar oltitles against the title to the suit land. It is also deducible from the adduced evidence on record, and on the application of the relevant laws and principles relating to caveats, that Mwebaze's subsequent sale and transfer of part of the land to Mugume and Arapundiwa; and Arapundiwa's sale and transfer of part of the land to Mukwatanise, took place between 12'h July 2000 and lgthJuly 2000.In fact, the sale and transfbr of the land by Mwebaze to Mugume and Arapundiwa took place immediately after the appellant had registered the caveat with the registrar of titles, who merely entered it in the register book, but did not enter it as an encumbrance on the white page of the original certiflcate of title to the suit land which is always kept in the lands registry. It does not require rocket science to ascertain that the sequence ofchange of proprietorship or registrations of the land that took place after the appellant had filed the caveat in question would not have occurred if the registrar of titles had performed his duty of promptly and diligently lodging the appellant's caveat as an encumbrance in the white page of the certiflcate of title, albeit that the same had already changed proprietorship fiom the appellant's names to the names of Emmanuel Mwebaze. Under section 139 of the RTA (now section 123 of the RTA cap 240), the appellant had an interest in the suit land as a former registered proprietor of the suit land, and therefore, also had a right to file the caveat forbidding registration of any person on the land in question as transferee or proprietor unless notice is given to the caveator, or unless the caveator consents in writing to such registration or alienation of the land. 4 It is my analysis, on perusal of the record, including the submissions of both parties and the judgments of the lower courts, that the lower courts, as well as the parties, appreciated the law, principles and purpose of a caveat, which is to protect a caveator's unregistered interest, and to prevent registration of interests that would adversely affect the interest of such caveator; and, ultimately,, to maintain the status quo; and to halt any further alienation of the land thus becoming a barrier to any other dealings on that land. To that extent I would find no reason to fault the learned Justices of Appeal for their findings and conclusion regarding the law and purpose of a caveat, in respect to which I would find no merit in ground 1 ofthe appeal. The concurrent finding of the lower courts is that the appellant's being reinstated as proprietor of the suit land a few months after the registrar of titles'omission to lodge the caveat on the certificate of title would defeat the appellant's argument that the registrar's omission to register the caveat deprived the plaintiff (appellant in this appeal) the ability and potential to recover the suit land. The appellant faults this finding of the first appellate court, which was concurrent with that of the trial court. With respect, I would differ from the said concurrent finding of the lower courts. In my considered opinion,, such finding would not apply to those whose respective registrations on the suit land were subsequent to the appellant's presentation of the caveat which, as the adduced evidence on record shows, was acknowledged by the registrar of titles (exhibit Pl) who entered it in the register book but somehow did not lodge it in the certificate oftitle. The adduced evidence on record clearly shows that the registrar's negligence or omission to lodge the caveat on the certificate of title to the suit land paved way for the subsequent registrations on the suit land to take place unhindered; in particular, the registration of Mugume and Arapundiwa on the certificate of title to the suit land which took place on 5 the same day, immediately after the caveat was lodged, and, a week later, the registration of Arthur Mukwatanise on Block 232 Plot 1763 after Mugume transferred the same to him. The evidence on record therefore attests to a causal link between the registrar's negligence or omission to lodge the appellant's caveat filed at the lands registry, and the alienation of the land to Mugume, Arapundiwa and Mukwatanise, albeit that the proprietorship of the title was no longer in the names of the appellant at the time of its filing the caveat with the registrar of titles. The appellant had claims on the land as a former registered proprietor who lost the land due to a court process it eventually successfully challenged, and had the proprietorship ofthe land reverted into its names again vide Miscellaneotts Application No. 922/2000 which was resolved through a consent judgment. This is notwithstanding that Arthur Mukwatanise successfully challenged the same consent judgment on basis that he had not been part of the consent judgment that affected his rights as bona fide purchaser of the land fbr value without notice. On applying the principles of causation and "but-for", which were ably highlighted in the lead judgment, I would saf'ely form a considered opinion that, had the registrar registered the caveat on the certificate of title to the suit land, the last known proprietor would have been Mwebaze Emmanuel; and that this would still not have hindered the appellant to flle the caveat or to challenge the manner in which its land had been sold or alienated. The lbregoing findings as deduced from the adduced evidence and the face olthe record would form a basis for my conclusion that, the leamed Justices of appeal erred in law and in fact when, oblivious to the adduced evidence on record, and the face ofthe record, they lailed to hold that the appellant ultimately lost the suit property to third parties (Mugume, Arapundiwa and Mukwatanise) due to the negligence/omission by the 6 registrar oftitles to endorse/register the caveat on the certificate oftitle of the suit land in time or at all. In doing so, the leamed Justices of Appeal erred in law when they failed to re - evaluate the evidence on record thereby coming to a wrong conclusion. It is a settled principle that a second appellate courl should not interfere with the concurrent findings of the lower courts. This principle however, is only to the extent that the said lower courts properly analysed the adduced evidence before them, or if their findings are based on the adduced evidence before them, which was not the case in the instant appeal.ln Zaabwe vs Orient Bank Ltd & 5 Others Civil Appeal No. 4 of 2006 this Court departed from the concurrent findings of the lower courts which it set aside and substituted with its own findings, because the concurrent findings of the lower courts were not based on the evidence on record. Thus, based on the foregoing, I would find merit in grounds 2 and 3 of the appeal, which would make this appeal to substantially succeed. In that regard, based on my findings that the appeal substantially has merit, I would agree with the lead judgment regarding the remedies and the orders proposed. Decision and Orders of Court Since two members of the Coram, that is, Musoke JSC and Musota JSC concur with the lead judgment and the orders proposed therein; one member of the Coram, Tuhaise JSC, partiatly agrees with the lead judgment and agrees with all the orders proposed therein; and one member on the Coram, Mugenyi JSC partially agrees with the lead judgment and also partially with the orders proposed therein, this appeal is allowed with the orders contained in the lead judgment. 7 Dated at Kampala, this ..... (fr 2025. Percy Night Tuhaise Justice of the Supreme Court 8 a"v .t..........*7.C7. ffin-. r.,.-,** THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA CIVIL APPEAT NO. 05 OF 2021 UGANDA MOTORS LTD APPELLANT VERSUS THE ATTORNEY GEN ERAL: : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : RESPON DENT (Appeal from the decision of the Court of Appeal (Kakuru, Kiryabwire and Madrama, JJA) dated 4h December, 2020 in Civil Appeal No. 128 of2013) CORAM: HON. HON. HON. HON. HON. LADY. JUSTICE PERCY NIGHT TUHAISE, JSC LADY JUSTICE ELIZABETH MUSOKE, JSC MR. JUSTTCE STEPHEN MUSOTA, JSC LADY JUSTICE CATHERINE BAMUGEMEREIRE, JSC LADY JUSTICE MONICA K. MUGENYI, JSC rlt DG MENT r)FE ttTa BETH M ltqrlKF rsa I have had the advantage of reading in draft the judgment of my learned sister Bamugemereire, JSC. For the reasons she has given I agree that this appeal ought to be allowed and also agree with the orders s he has proposed. ..........2025. Dated at Kam pa la flris ............/..&11....... aav or...i..*!, Elizabeth Musoke Justice of the Supreme Court 1 THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT I(AMPALA CIVIL APPEAL NO. 05 OF 2O2L (Aising out of the decision of the CourT of Appeal (Kakuru, Kiryabuire and Madrama, JJA) in Ciuil Appeal No. 128 of 2013) CORAM: TTIHAISE; MUSOKE; MUSOTA; BAMUGEMEREIRE; MUGEtrrI, JJSC UGABIDA MOTORS LTD APPELLANT VERSUS THE ATTORNEY GENERAL : : : : : : : : : : : : : : : : : : : : : : : : : : : : : RESPONDENT JUDGMENT OF STEPHEN MUSOTA JSC I have had the privilege of reading the judgment prepared by my learned sister, Justice Catherine Bamugemereire, JSC and I am in full agreement with her analysis, conclusions and orders she has proposed. tfi Dated this day of !"1 @,rEl"-4 Stephen Musota JUSTICE OF THE SUPREME COURT 2025 I 5 THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA Coram: {Tuhalse; Mueoke; Musota; Bamugemerelre: Mugeayi JJSC} CIVIL APPEAL NO. 05 OF 2O2I UGANDA MOTORS LIMITTD : : : : : : : : : : : : : : : : : : APPELLANT vtRsus THE ATTORNEY GENERAL RESPONDENT '10 [An appealfrom the declslon of the Court ofAppeal ln Clhil Appeal I,Io. 128 oJ 2013 before Kalcrtttr,, Klryabulre, Madram4,IIA datcd 4th /12/ 2O2O at Kampala uhlch arose trom HCCS AIo. 389 oJ 2006l 15 JUDGMENT OF CATHERINE BAMUGEMERTIRE. JSC 20 25 Introduction This is a second appeal arising from the decision of the Court of Appeal in which the learned Justices upheld the decision of the trial Judge in dismissing a claim for the recovery of damages for the loss of the appellant's land measuring 5.5 acres, comprised in Kyadondo Plot 1170 Block 232 situate atBanda/Kireka, Wakiso District under sections 183 and 185 of the Registration of Titles Act (RTA), which is now sections 1,67 and 169 of the RTA, Cap. 240. The aggrieved party appealed. 1 CTVIL APPEAL NO. 05 OF 2O2L CB 5 Background Directel (U) Ltd initiated sumrnary proceedings to recover a debt of UGX 7,666,406 for unpaid advertising services by the appellant company Uganda Motors. Following a successful civil suit, execution proceedings took place, resulting in the attachment and sale of the disputed land to Emmanuel Mwebaze. He was registered as the titleholder on June 76,2000. Before the court order was issued, the appellant was the registered owner of land located in Kyadondo, Plot L170, Block 232, at Banda, measuring Z.Z45hectares (approximately 5.55 acres), hereinafter referred to as the disputed land. On 12h July 2000, General Motors applied to lodge a caveat on the Certificate of Title forbidding any transfer of proprietorship of the disputed land. The caveat was received by the Registrar of Lands on 12ft July 2000 at 10:10 am and registered as instrument number KLN216515. The Registrar acknowledged the lodgement as an encumbrance upon the title. However, the said caveat was never reflected on the certificate of CTVIL APPEAL NO. 05 OF 2021 CB 10 15 20 2 title. The disputed land was subdivided into different portions by Emmanuel Mwebaze and sold to different proprietors. On 12ft July 2000, (the day the caveat was received), David Mugume Kamusal got registered on s the Certificate of Title under instrument number KLA 21,6522 at 10:45 am. Another portion of the land was transferred to Abraham Arapundiwa the same day, (12ft July 2000) at 12:07 prn. On 19ft July 2000, David Mugume transferred part of his land situate in 10 Kyadondo Plot1763 Block 232to Arthur Mukwatanise under instrument number KLA 21'67 40. The appellant filed an application vide High Court Miscellaneous Application No. 922of 2000 to set aside the ex parte decree. The application was settled by ls consent between Directel (U) Ltd and Uganda Motors. Pursuant to the consent order, the appellant was reinstated on the Certificate of Title on 276 September 2001. The appellant's reinstatement on the Certificate of Title zo was however challenged by Arthur Mukwatanise by way of High Court Miscellaneous Application No.52 3 CTVIL APPEAL NO. 05 OF 2021 CB 5 of 2002 on grounds that he was a bona fide purchaser for value without notice and that the consent judgment was entered into without his knowledge. The court ordered that Arthur Mukwatanise be reinstated and the appellant's restoration be cancelled. The appellant being aggrieved filed High Court Civil Suit No.428 of 2006 against the Attorney General claiming for compensation of loss of land under sections 183, 185 and 186 of the Registration of Titles Act CAP 230. (Hereinafter referred to as the RTA). In deciding against him, the learned trial Judge found that the appellant was not entitled to compensation from government since the loss of its land was due to court orders. The appellant has now filed a second appeal to this court with the following grounds: 10 15 Grounds of Appeal 1. The learned fustices of Court of Appeal completely failed to determine the stage/ time at which the appellant lodged the caveat on the 4 ZO CTVIL APPEAL NO. 05 OF 2O21 CB 5 CTVIL APPEAL NO. 05 OF 2O2I CB Certificate of Title of the suit property and the subsequent effects of non-regishation on the caveator and third parties, and thereby came to wrong conclusions. s 2. The learned )ustices of Court of Appeal erred in law when they misconshued the law and purpose of lodging a caveat on a Certificate of Title. 3. The learned |ustices of Court of Appeal erred in 10 law and fact when they failed to hold that the appellant ultimately lost the suit property to third parties due to negligence/omission by the Commissioner for Land Registration to endorse /register the caveat on the certificate of Title of 1s the suit property in time or at all. 4. The learned ]ustices of Appeal, as the 1"'t Appellate Court, erred in law when they failed to re-evaluate the evidence on record and thereby came to wrong conclusions. zo Counsel prayed to this court to: 5 a) Allow the appeal with costs in this court and the courts below. b) Set aside the judgment, decree and orders of the Court of Appeal. c) Grant the Appellant the orders prayed for in the High Court with interest at court rate. Representation At the hearing of this appeal, the appellant was represented by Mr. Francis Gimara, Mr. Laston Gulume and Ms. Lucy Suky Mr. Aggrey Bwire was counsel who appeared for the lower court and led the filing of briefs in this court. The respondent was represented by Mr. Geoffrey Madete, a Senior State Attorney from the Attorney General's Chambers. Counsel for both parties sought to rely on their written submissions in determination of the appeal. Court granted the prayer. 10 15 6 20 CTVIL APPEAL NO. 05 OF. 2021 CB 5 Submissions for the Appellant Counsel for the appellant opted to abandon Ground No.1 of the appeal. He pursued Grounds No.2, No. 3, and No. 4, which he then rephrased and argued as Grounds No. 1, No.2, and No.3. The first ground relates to deconstructing the law and purpose of lodging a caveat; counsel for appellant faulted the learned Justices of Appeal for upholding the findings that the appellant did not lose the land through non-registration of a caveat but rather through a formal court process and a sequence of court orders. It was contended for the appellant that there were two incidents of loss of title by order of court; the first occurred on 16u. June 2000 when Emmanuel Mwebaze was registered on the title pursuant to execution proceedings under HCCS No. 1993 of 1.999. It was counsel for the appellant's submission that this incident did not result in ultimate loss of the land since the propriety of the process through which Emmanuel had acquired the title was challenged under M.A No. 922 of 10 15 20 7 CTVIL APPEAL NO. 05 OF 2021 CB 5 2000. Counsel relied on Dina Management Ltd v County Government of Mombasa & 5 Others Supreme Court Petition No. 8(E01.0) of 2021 and invited this court to be persuaded by the Supreme Court of Kenya for the proposition that: "Where the registered proprietors root title is under challenge, it is not enough to dangle the instrument of title as proof of ownership. It is the instrument thnt is in challenge and therefore the registered proprietor must go beyond the instrument and proae tlrc legality of the title and slntu tlnt the acquisition 70as legal, formal and free from nny encumbrance including interests uhich ruould not be noted in the register." Based on the above persuasive authority, counsel for the appellant submitted that both the appellant's unregistered interest and the adverse registered interest subsisted at the time of the lodgement of a caveat, subject to proof of their respective legitimacy before court. He asserted that it was the urLregistered interest that the appellant sought to protect by lodging a caveat 10 15 I 20 CTVIL APPEAL NO. 05 OF 2021 CB 5 entered as an encumbrance on the certificate of title, pending Misc. Application No. 922 of 2000 which was before the court. It was counsel for the appellant's submission that at the heart of Misc. Application No. 922 of 2000 is the question of impropriety and malfeasance leading to an injustice in both the trial and execution proceedings leading to the sale of the property, gross undervaluation of the disputed land, and the unjust enrichment enjoyed by Emmanuel Mwebaze when he failed to furnish wholesome consideration for property contrary to section 49 of the Civil Procedure Act. Counsel alleged that these substantial improprieties led to the erroneous reinstatement of the respondent on the questioned title. He submitted that the reinstatement of the appellant on the title as the registered proprietor of the land was defeated by the manifest absence of an entry on the white page of the title giving notice of the appellant's interest in the disputed land. He contended that the failure by an officer of government to place a caveat on the disputed property lent legitimacy to the subsequent 10 15 20 9 CTVIL APPEAL NO. 05 OF 2021 CB transfers of title, which would have otherwise been tainted by fraud. Counsel invited this court to be persuaded by a Singaporean decision regarding the primary function of 5 caveats as espoused in the case of Ho Seek Yueng Novel & another v | & V Development Pte Ltd [2006] SGHC 63, which was that: "The primary function of the caaeat is to preztent tlrc registration of denlings uhich utould adztersely 10 affect the right of the caueator without first giaing him a chance to proae his claim. . .that, as a matter of justice and fairnesst a person who feels that he or she hns a legitintate interest ought to be giaen the opportunity to mnke out his or her case ois-h- 1s ais the proposed registration of other dealings tohich toould othenoise aduersely affect such an interest, toith the frst logical step being thc lodging of a catteat. To put it another uay, the lodging of n cnoent serL)es as a notice to such other zo persons of tlu clnim to such a right." Counsel submitted that had the appellant's caveat been lodged on the title at 10:10 am, it would have been crvr,, APPTAL No. os oF 2021 cB 10 5 notice of the appellant's adverse claim to the land and to subsequent purchasers in rem including David Mugume Kamusal, who was registered on the title at 10:45 am, thirty-five minutes after the caveat had been lodged. It was counsel's submission that the omission of the registrar of Lands to lodge the appellant's caveat substantially altered the possibility of the appellant to regain his proprietorship and led to his loss of title, a second time, and the alleged absence of notice of the appellant's adverse claim to the disputed land provided a statutory defence of bona fide purchaser for value to registered proprietors who showed up later. Counsel invited this court to find that the learned justices of Appeal erred when they failed to discern, recognize, find, and conclude that the first incident of loss of title by court order was successfully reversed by the reinstatement of the appellant on the title on 27s September 2001. by way of Misc. Application No. 922 of 2000 and the omission to lodge the caveat a second time 10 15 20 11 CTVIL APPEAL NO. 05 OF 2021 CB 5 was an error apparent on the face of the record caused by an officer of the respondent. Counsel conceded that good title can be obtained from fraudsters under sections 176 and 181 of the RTA, where the third party buyer is a bona fide purchaser for value without notice. On Ground No. 2 regarding the findings of the lower courts attributing the loss to court orders, counsel contended that the appellant's cause of action was loss of land through the omission, error, negligence, misfeasance and/or fraud on the part of the Commissioner Land Registration while acting in the course of his employment and/or within the scope of authority of his employment for the Government. It was counsel's submission that the duty of the registrar to register and lodge a caveat as spelt out in section 143 (now cited as sectionlS3) of the RTA CAP 240 was breached without lawful excuse as admitted by the Commissioner Land registration in his letter to the Attorney General. The letter stated in part, that 10 15 20 72 CTVILAPPEAL NO. 05 OF 2021 CB omissions of the officers of the respondent made it possible for other third parties to be registered as proprietors. Counsel added that the learned trial judge also found that there was failure to lodge inshument s number KLN276515 caveat was unjustified. Regarding the question of causation counsel for the appellant relied ostensibly on Butterworths'The law of Torts, 2"a Edition at page 784 and'786 to argue that the starting point in causation is usually assumed to be the 10 'but-for-test,' which requires the court to determine what would probably have happened if the defendant had acted properly rather than negligently. Counsel cited Mcghee v National Coal Board 1197213 ALLER 1008 where Lord Wilberforce held that: 1s " ...it is a sound principle that uilrcre n person hns, by breach of duty of care, created a risk, and injury occurs utithin the area of that risk, the loss should be borne by hhn unless he shott,s that it had sonrc other cause. .." 20 Counsel argued that in the instant case, the land registrar's omission to lodge the caveat and failure to CTVIL APPEAL NO. 05 OF 2021 CB 13 5 notify all parties of that omission created exposure and risk to the appellant. Counsel submitted that the omission excluded the appellant's interests in the disputed land from the encumbrance page of the certificate of title, thereby making it completely vulnerable to defeat by superior claims of bona fide purchasers for value without notice of fraud or competing interests. Counsel submitted that there was a clear causal link between the registrar's omission to register or lodge the caveat on the title and the appellant's ultimate loss of the disputed land. Regarding Ground No. 3 on failure of the learned justices of appeal to re-appraise evidence, counsel contended that the learned justices of appeal failed in their duty as a first appellate court to re-appraise the evidence on record and opted instead to rely entirely on the findings of the learned trial judge without properly considering the evidence on record. Counsel contended that there were pieces of evidence that were not considered by the learned justices of appeal. He urged the court to re-appraise the letter of the Commissioner for Land Registration dated 19th July 2006 addressed to the Attorney General in which she cwIL APPEAL No. os oF zo2l cB 74 10 15 20 admitted that omissions had been made by the Registrar of Titles in not lodging the caveat which made it possible for third parties to be registered as proprietors. Counsel further referred to the oral evidence of DWl, s Edward Karibwenda- the Principal Registrar of titles whose testimony during cross-exarnination was that the appellant lost the land because the caveat, having been duly registered as instrument number KLA/216515 was not lodged. It was Karibwenda's evidence that this 10 piece of evidence was not considered by the learned justices of appeal, leading to the erroneous conclusion that the loss of land did not result from the omission of the Registrar. This evidence was not contested nor was it contradicted by the witnesses for the appellant's 15 witnesses including Mr. Robert Opio the then Commissioner Land Registration. It was counsel's contention that the learned Justices of Appeal overlooked the substance of the caveat lodged by the appellant, which demonstrated that the appellant had 20 initiated proceedings to reclaim her land. Their analysis resulted in the incorrect conclusion that the appellant had no ongoing claim to recover the disputed land and that no valid grounds existed for lodging a caveat at the time of its registration. 25 It was counsel's submission that had the evidence of Emmanuel Mwebaze's non-payrnent of the full purchase CTVILAPPEAL NO. 05 OF 2021 CB 15 5 price been properly re-evaluated, the court would have found that the sale was tainted with unjust enrichment, illegitimacy, under-declaration, and the abuse of court processes. In conclusion, counsel submitted that the failure to re- evaluate the factual evidence and admissions made by witnesses substantially affected the findings made by the first appellate court and invited this court to allow the appeal with costs in this court and courts below with interest thereon. Submissions for the Respondent In response to the first ground, counsel for the respondent asserted that the learned Justices of Appeal properly addressed their minds to the law and purpose of lodging a caveat and observed that: "The lodgement of a caueat onlg serves the purpose of maintaining the slatus quo pertaining at the time the caueat is lodged. It serues to put a halt to ang alienation or further alienation. A caueat per se confer or restore anA propietary interest in ang land." Counsel alluded to section 139 (1) (now sectionl23) of the RTA on lodgement and withdrawal of caveats. He contended that the learned Justice of Appeal with whom the remaining Justices concurred, correctly found that a CIVIL APPEAL NO. 05 OF 2021 CB 76 10 15 20 25 5 caveat purposely serves to put a halt to any alienation or further alienation of the property, and he was aware of the circumstances of this case when he remarked that: " Section 63 (sectionl 59 sic) of the RTA prouides that a certificate of title is exclusiue euidence that the registered propietor has a good and ualid title to the land...Mwebaze was the registered propietor of the suit propertg ...But it is equallg a fact that the plaintiff had not filed ang suit for recouery ofthe disputed land from Mwebqze bg the time it lodged the cauea| nor did it do so afienaards." Counsel submitted that by the time the appellant company lodged the caveat, she had already lost the land. Counsel asserted that the learned Justices of Appeal came to the correct conclusion when they found that the land had been transferred to Emmanuel Mwebaze on 16th June 2000 at 10.45 am. Counsel invited this court to maintain that position. 10 15 20 25 On Ground 2, counsel submitted that the ground offends rule 82(1) of the Judicature (Supreme Court Rules) Directions, S.I 13-11 which provides for framing of grounds of appeal. Counsel submitted that the ground is argumentative and thus ought to be struck out. CTVIL APPEAL NO. 05 OF 2021 CB t7 5 In the alternative, he submitted that the learned Justices of Appeal carefully read the record of appeal and written submissions and found that the appellant lost the disputed land due to other reasons and not the actions/omissions of the Registrar of Titles. Counsel prayed that this court be pleased to find this ground in the negative. 10 Regarding Ground No. 3, counsel's reply was that evaluation of evidence is a matter of style. He referred to Britlsh American Tobacco (u) Ltd v Sedrach Mwijakubi & 4 Others SCCA No. 1 of 2OL2 in which Odoki CJ summarised the legal position on evaluation of evidence as follows: "While it is pntdent for judges to prouide explanations for hotu and whg theg reached a certqin decision, I am of the opinion that this is not an indication that the euidence was properlg re-eualuated, and is simplg, as counsel for the respondent asserted, a matter of stgle." He submitted that the learned Justices of Appeal did not entirely rely on the frndings of the trial Judge but evaluated the evidence on record and came to their own conclusions. He added that the learned Justices of Appeal examined the Commissioner's letter dated l9tt July 2O06 15 ZO 25 CTVIL APPEAL NO. 05 OF 2021 CB 1B but came to the conclusion that the disputed land was not lost due to the omission of the Registrar. Counsel implored this Court to find that t.le instant appeal has no merit and dismiss it with costs to the respondent. Appellant's ReJoinder In rebuttal, counsel for the appellant submitted that the learned Justices of Appeal erred to find and hold that the lodgement of the caveat was on 12th July 2OO1 instead of 12th July 2000. Counsel contended that the effect of that misdirection meant that the High Court and the Court of Appeal were bound to arrive at wrong conclusions, that third parties who were registered on 12,h July 2000 acquired their interests before the caveat was lodged, which was not the case. On other grounds, counsel reiterated his earlier submissions. Determination of the Grounds of Appeal I have duly considered the submissions of both parties and the authorities provided to this court. I conducted additional research and grounded this judgment on authorities beyond those graciously provided by learned counsel. I will commence by addressing the preliminary objection raised by the counsel for the respondent. CTVILAPPEALNO.OS Or-zO2I CB 19 10 15 20 25 Counsel submitted that Ground Two violates rule 82(1) of the Judicature (Supreme Court Rules) Directions, SI 13- 1 1, which pertains to the framing of grounds of appeal. Counsel further contended that the ground is 5 argumentative and consequently, should be struck out. Rule 82 (1f provides that: uA mcmoro:ndum of appeal shall set Jorlh conciselg qnd under distinct, heads without qrgument or narrcttlue, the grounds oJ 10 obJectlonto the decision appealed agalnst, spectfging the polnts which are alleged to hante been wronglg decided, and. the no;ture of the order which lt is proposed to ask the court to m:qke.' 15 This rule contains a mandatory requirement with regard to framing of grounds of appeal. The grounds must not be argumentative and narrative but must specify the error committed by court in making the decision being appealed agairrst. 20 The ground of appeal in the instant case reads as follows: 1. The learned Justices ofCourt ofAppeal erred in law and fact when they failed to hold that the appellant ultlmately lost the suit property to third parties due to negligence/omission by the 25 Commissioner for Land Registration to endorse CTVIL APPEAL NO. 05 OF 2O2I CB 20 l: /register the caveat on the certificate ofTttle of the suit property in time or at all. In raising this preliminary point of law, counsel hopes to have the above ground of appeal struck down. He propounds the view that the ground is a narrative and/ or is argumentative, which is not precise and does not specify what was wrongfully decided. I have taken careful note of the submissions on the preliminary point of law. For present purposes, the application is to strike out Ground No. 2 of the appeal for failing to fit into the four corners of rule 82(1) of the Rules of this Court. The above ground of appeal is neither argumentative nor narrative. It specifies the errors for which the learned Justices of Appeal are at fault. The leamed Appeal Justices are faulted for disregarding that the appellant ultimately lost the suit property to third parties due to the commission or omission of an officer of the respondent, who neglected to endorse or register the caveat on the disputed certificate of title. The leamed Appeal Justices are faulted for disregarding that the appellant ultimately lost the suit property to third parties due to the negligence or omission of an officer of the respondent, 27 CTVIL APPEAL NO. 05 OF 2021 CB 10 15 20 5 who failed to endorse or register the caveat on the disputed certificate of title. In the altemative, counsel for the respondent submitted that the learned Justices of Appeal carefully read the record of appeal and written submissions and found that the appellant lost the disputed land as a result of court orders. Counsel for Uganda Motors emphasized that the mistakes and oversights by the MHULD Registrars were the reasons she lost the land that law{ully belonged to her. Therefore, I conclude that this argument does not violate Rule 82(1) of our Rules. I overrule the preliminary objection raised by the respondent. 10 15 This is a second appeal. We are conscious of the duty of this court as a second appellate Court as was stated in Tito Buhlnglro v Uganda SCCA No. 8 of 2014, that: - "It is tite laut that as a second appellate court, we are not expected to re-eualuate the euidence or question the conqtrrent findings offact bg the High Court and Court of Appeal. Howeuer, uthere it is shown that theg did not eualuate or re-eualuate the euidence or where theg are proued to be manifestly wrong on fi.ndings of fact, the court is obliged to do so and to ensure that justice is properlg and timelg serued." 20 ')a CTYIL APPEAL NO. 05 OF 2021 CB 22 5 Sir Sinclair VP's reasoning in Dinkerrai Ramkrlshan Pandya v R 1957 EA 336 was that the hrst appellate court erred in law in that it had not treated the evidence as a whole to that fresh and exhaustive scrutiny which the appellant was entitled to expect, and, as a result of its error, affirmed a conviction resting on evidence which, had it been duly reviewed, must have been seen to be so defective as to render the conviction manifestly unsafe. 10 Ordinarily, this Court on a second appeal can only re- evaluate evidence and interfere w'ith the concurrent findings of the lower courts where it is apparent that the Court of Appeal has failed in its duty or in circumstances where the findings are not supported by competent 15 evidence. (See: Bogere Charles v Uganda, Criminal Appeal No. 1O of 1998(SCf. 20 With the preceding safeguards in mind, I proceed to consider the grounds of appeal. I will resolve Grounds No. 1 and No.2 together since they are inter-linked and analogous. Under Ground No.1, counsel for the appellant faulted the learned Justices of Appeal for misconstruing the law and purpose of lodging a caveat. z5 In Ground No. 2, counsel faulted the Justices of Appeal for linding that the appellant lost the land due to court .r'ILAPPEALNo. os o?2o2L cB 23 orders and not the Registrar's omission to register caveat. a I hnd it necessa.ry to delve into and have a discourse on the legal framework regulating the lodging of caveats in Uganda. The principal act is the Registration of Titles Act (RTA)CAP 24O. Regarding who can file a caveat, section 139 RTA CAP 9 which is presently section 123 of the RTA CAP 24O specifies that: 123. Caveat may be lodged and withdrawn 1. *Any beneficiary or other person claiming ang estate or interest in land under the operation of this Act or in ang lease or mortgage under anA unregistered instrument or bg deuolution in laut or othentise mag lodge a caueat uith the registrar in the form in the Fifieenth Schedule to this Act or as near to that as circumstances permit, forbidding the registration of ang person as transferee or propietor of and of ang instrument affecting that estate or interest until afi.er notice of the intended registration or dealing is giuen to the ceueator, or unless the instntment is expressed to be subject to the cloim of the caueator as is required in the 10 15 20 25 CTVIL APPEAL NO. 05 OF 2021 CB 1A 5 124. Notice 2. 3. caueat, or unless the cqueator consents tn witing to the registretion." ofcaveat to be givea; lapse ofcaveat, etc Except in the case of a caueat lodged by or on behalf of a beneficiary claiming under ang will or settlement or by the Registrar, euery caueat lodged against a propietor shall be deemed to haue lapsed upon the expiration of sirtg dags afier notice giuen to the caueator that the propietor has applied for the remoual of the caueat. (3) A caueat shall not be reneued bg or on behalf of the same person ... in respect of the same estate or interest, but if, before the expiration the sktg dags refened to in subsection 2) or such further peiod as is specified in ang order made under this section, the caueator or his or her agent appears before the court and giues such undertaking or secuitg, or lodges such sum in court as the court considers sulficient to indemnifu euery person against ang damage that mag be sustained bg reason of ang disposition of the propertg being delaged, 25 20 25 CTVIL APPEAL NO. 05 OF 2O2I CB 10 15 5 then and in such case the court mag direct the Registrar to delag registeing ang dealing utith land..." The above cited provisions give rights to a person who claims an interest in a lease, mortgage or land to lodge a caveat forbidding any person from being registered on or from dealing in the land until the caveator is heard and the matter is resolved. A caveat serves as a notice in rem, a notice to a-11 and sundry that a person has been registered as a transferee or proprietor by way of a sale, lease, mortgage or any other interest on land. In Bayes v Gathure [1966] EA 385 Spry JA noted that:- "a caueat is intended to serue a twofold pufpose; on the one hand, it is intended to giue the caueator temporary protection, on the other, it is intended to giue notice of the nature of the claim to the person whose estate in the land is affected qnd to the world at large." A caveat therefore operates ln rent In this case, Uganda Motors was previously the registered owner of the disputed land. However, it lost ownership to Emmanuel Mwebaze through the execution of a court order stemming from a summary suit. Emmanuel Mwebaze was registered as the owner of the land on June 16, 2OOO. On July 12,2OOO, at l0:10 AM, the appellant, Uganda Motors, lodged a caveat with the Registrar of CI1IIL APPEAL NO. 05 OF 2021 CB 26 10 15 20 25 Titles. This caveat was received and registered as an encumbrance under instrument No. KLA 2165 15. However, the Registrar failed to endorse the caveat on the certificate of title, although it was included in the Register 5 Book. On the same day, Emmanuel Mwebaze subdivided the land into different portions and sold these to various buyers. Specihcally, at 10:45 AM on July 12, 2000, David Mugume Kamusal was registered as the new owner under instrument No. KLA 216522. Then, at l2:O7 PM on the 10 same day, another registration was made in the name of Arapundiwa Abraham. A week later, on July 19, 2000, Arthur Mukwatanise was registered as the owner. It is important to note that save for Mukwatanise's transaction, which took place on July 19, all the other 15 transactions occurred on the same day a-fter the appellant lodged the caveat. ZO Counsel representing the appellant argued passionately that had the Registrar tal<en the necessary step to register the caveat on the title-rather than merely recording it in the instrument book-it would have effectively safeguarded against subsequent transferees who claimed to be bona frde purchasers for value without notice of the caveat. 25 27 CTVIL APPEAL NO. 05 OF 2021 CB Conversely, counsel for the respondent asserted that by the time the appellant lodged the caveat, ownership of the land had already passed to Emmanuel Mwebaze on June 16, 2OOO. This perspective was echoed by both the trial s judge and the learned Justices of Appea-l, who upheld the respondent's position regarding the caveat's effectiveness. The argument presented by the learned counsel for the respondent, claiming that the appellant had already lost the land to Emmanuel Mwebaze, is, in my opinion, a debatable point. I find it arguable because the issue at hand in this appeal is a caveat that was lodged in the registry. Although the caveat received an instrument number, it was not registered on the title. 10 i5 ZO 25 My understanding of a caveat on land is that it serves as a notice to everyone that no transactions should occur regarding that piece of land without the caveator's prior consent. It indicates there may be obligations that could affect the land in question, potentially restricting the owner's ability to deal with it. A caveat serves as a warning that there might be issues related to ownership or probate. These concerns can create lasting burdens and may be critically important for any potential buyer or mortgagee of the encumbered land. ?a CTVIL APPEAL NO. 05 OF 2021 CB 5 In a persuasive Singaporean decision of Ho Seek Yueng Novel & another v J & V Development Pte Ltd (supra) cited by counsel for the appellant, the importance of a caveat was expounded in the following terms. "The pnmary fundion of the caueat is to preuent the registration of dealings which would aduerselg affect the right of the cq-ueator uithout first giuing him a chance to proue his claim...that, qs a matter of iustice and fairness, a person who feels that he or she has a legitimate interest ought to be giuen the opportunity to make out his or her case uis-d-uis the proposed registration of other dealings uhich would otherwise aduerselg affect such an interest, with the first logical step being the lodging of a caueat. To put it another wag, the lodging of a caueat serues as a notice to such other persons of the claim to such a ight." A caveat envisages that a person who has reason to believe that he or she has a legitimate interest is granted the opportunity to protect that interest by lodging a caveat on the land in which he or she shows interest. In the present case, the appellant lodged his caveat on 12th July 2OOO at 10:10 a.m. He left the Registrar's office satisfied that his interest had been lodged and that his interest in the questioned land was protected by caveat. Unbeknownst to the appellant, the Registrar did make a .wIL APPEAL No. os oF 2o2L cB 29 10 15 20 25 5 lodgement in the register book and gave it an instrument number but did not go further to make an entry on the title despite the fact that the appellant had lodged a caveat. On the same day at 10:45 am, just 35 minutes after the appellant had lodged his caveat, one David Mugume Kamusal was registered on the certificate of title as the new owrrer, with an instrument number following immediately a-fter the instrument upon which the caveat was formed. The same day at L2:O7 pm, Mugume transferred the same land to Arapundiwa who was registered as proprietor and Arapundiwa transferred the sanne land to Arthur Mukwatanise who was registered on the title on 19tn July 2000. As I have discussed above, a caveat serves as a notice to the whole world. In this case, although an instrument number existed, there was no notice lodged on the face of the title to serve as a warning that there existed an encumbrance on the title, thereby failing to warn that subsequent transactions were prohibited. Section 141 (now readlng aa section 125) of the RTA forbids any entry in the register book while the caveat is still in force. It provides thus: - 30 CTVIL APPEAL NO. 05 OF 2O21 CB 10 15 20 25 "So long as anA cqueqt remains in force prohibiting ang registration or dealing, the registrar shall not, except in accordance with some prouision of the ceuee| or uith the consent in witing of the caueator, enter in the Register Book ang change in the propietorship of or ang transfer or other instrument purporting to transfer or otheruuise deal with or affect the estate or interest in respect to which that caueat is lodged." In J.W llazzora v M.L.S Rukuba SCCA No. 13 of L9921, court observed that: - "As long qs caueat remained in the force, section 150 (slc now 741) of the RTA forbade CRT, except in accordance utith prouision of the caueat or uith the consent ofthe caueator from enteing in the Register Book ang change in propietorship or transfer or other instrument purporting to transfer or affect the app ellant's inter e st. " The appellate court found that; "slnce the registration of 72th January 1988, was purportedlg done before the appellant's caueat had lapsed on 74th February, 1988, it u.tas not ualid as being contrary to section 15O of the RTA." The But-for Test 31 CTVIL APPEAL NO. 05 OF 2021 CB 10 15 20 ?( 5 l: The but-for test is a legal standard used in the law of tort to determine if a defendant's actions caused an injury to a plaintiff. The matter the but-for test enquires into is, "but for the existence of X, would Y have occurred?". In other words, would the harm have occurred if the defendant had not acted in the way they did? The test is applied to establish a factual link between the conduct of the defendant and the injury suffered by the claimant. I therefore agree with counsel for the appellant that had the registrar fulfilled his obligation to register the caveat on the white page of the title, all, persons with intentions to purchase the disputed land after the registration of the caveat would have notice of the appellant's adverse interest as opposed to that of the person registered at the material time. Had the learned Appellate Court Justices properly addressed their minds to and determined the time and 32 CTVIL APPEAL NO. 05 OF 2021 CB ZO 25 10 In the present case, I find that the transactions that materialised as a result of the non-registration of the caveat would have been ineffective, but for the Registrar's omission/negligence. The failure to disclose 7n remthat the title had a caveat was a failure of the officer of the 15 respondent. 5 place at which the appellant lodged his caveat and was granted an instrument number, they would not have misconstrued the date and time on which the caveat was lodged and thus arrived at the wrong conclusion that the appellant's caveat was lodged on 12th July 2001. Instead, there was abundance of oral and written evidence to the effect that the appellant's caveat was entered on 12th July 2000 at 10. 10am meaning that the subsequent effect of non-registration of the above caveat by the registrar caused loss to the appellant. I find that the Registrar ought to have foreseen that failure to lodge the appellant's caveat that had been received and assigned an instrument number would expose the appellant to the creation of other claims to the land that are averse to her interest. There was a clear causal link between the Registrar's omission to register the caveat and the appellant's ultimate loss of the disputed land. The other test I would apply for avoidance of doubt is the material contribution test. This test as explicated by the House of Lords, as it then was, in McGhee v National Coal Board ll972l UKHL 7; (1 WLR lf to the effect that where a breach of duty has a material effect on the likelihood of injury then the subsequent injury will be said to have been caused by the breach. In this case the CTVIL APPEAL NO, 05 OF 2021 CB 10 15 20 25 Claimant worked in the defendant's coal company. He emptied brick kilns in a hot and dusty environment. The defendant was found to be in breach of duty for not providing washing and showering facilities. This led to the 5 claimant cycling home covered in brick dust on a daily. The claimant then acquired dermatitis. It was held that where a breach of duty has a material effect on the likelihood of injury then the subsequent injury will be said to have been caused by the breach. In particular, Lord 10 Wilberforce stated that it is a sound principle that where a person, by breach of duty of care creates a risk and injury occurs within the scope of that risk, the loss should be borne by them. In the present case I agree with counsel for the appellant 15 that the Registrar's omission to register the caveat and failure to notify the appellant exposed the appellant to a risk that the appellant would have otherwise averted. It excluded the appellant's interest in the disputed land from the encumbrance page of the certificate of title. The zo negligence of the registrar made the appellant vulnerable and rendered them inferior to claims of competing interests which were registered later. Without the above exposure to risk, Arthur Mukwatanise would never have obtained the right to a title that enabled 25 him to challenge the appellant's reinstatement. I can safely conclude that the registrar's omission materially CTVIL APPEAL NO, 05 OF 2021 CB 34 contributed to the appellant's ultimate loss of the disputed land. Section 3(1) of the RTA provides that; a registrar of titles shall be appointed to haue the charge and control of the office of titles and to exercise the powers and perform the duties conferred or imposed upon the registrar of titles bg this or anA other Act. A Registrar has a statutory obligation towards the public to ensure that their interests in the land are protected. In essence the registrar owed the appellant a duty to protect his interest in the land when the appellant lodged his caveat on 12th July 2O00. The Creatlon ofBona Flde Interests on Land The Registrar's omission to register the caveat that was lodged at 10:10 am, led to the entries by the subsequent buyers who claimed to be bonafide purchasers for value without notice. Arthur Mukwatanise challenged the appellant's interest arguing that he was one such bona .,;Ede purchaser. Bonafide purchasers are protected under section 181, now section 165 of the RTA. It provides thus: - " Nothing in this Act shall be so interpreted as to leaue subject to an action of ejectment or an action for recouery of damages as aforesaid or for depiuation ofthe estate or interest in respect CTVIL APPEAL NO. ()5 OF 2O2L CB 35 10 15 ZO 25 to which he or she is registered as proprietor anA purchaser bona -ftd" fo, ualuable consideration of land under the operation of this Act, on the ground that the proprietor through or under whom he or she claims was registered as propietor throughfraud or error or has deiued .from or through a person registered as proprietor through fraud or error; and this applies whether the fraud or error consis/s in a wrong description of the boundaries or of the parcels of any land or otherwise howsoeuer." Section 176 (now section 16O) of the RTA protects bona .ftde purchasers for valuable consideration against actions of ejectment. The result of the above section is that once a registered proprietor has purchased the property in good faith, his title cannot be impeached on account of the fraud of the previous registered proprietor. A bona lEde purchaser therefore obtains a good title even, if he purchases from a proprietor who previously obtained it through fraud. (Davtd Seiiaaka Nalima v Rebecca Musoke Civil Appeal No. 12 of 1985). Under the principle of indefeasibility, a title that is indefeasible cannot be defeated, revoked, or made void. The person who is registered as proprietor has a right to CTVIL APPEAL NO. ()5 OF 2021 CB 36 10 15 20 25 f the land described in the title, good against the world. (See Reu. Fqtlwr .l\Icrsensio Begumlsa and Others u Erlc Tlbebaga (C'tuil Appeal No. 17 of 2OO2). In essence, Arthur Mukwatanise's title could not be revoked at that time since he had become a bona ff.de purchaser for va-lue without notice to the appellant's interest. One can safely conclude that the dispossession of the appellant of land he had once possessed was caused by a series of calculated and well-syndicated errors attributable to the persons contemporaneously registered on the title with the wilfulness of the Registrar of Titles, who turned a blind eye to the above errors and negligently failed and or declined to register the caveat of the appellant on the said certificate of title. It is my finding that the appellant filed High Court Miscellaaeous Application No.922 of 2OOO on 1Oth July 2OOO challenging the execution process that led to Mwebaze's acquisition of the land. The application challenged the impropriety in the trial and execution, gross undervaluation of land and failure to furnish wholesome consideration for the land as required by law. 21 CTVIL APPEAL NO. 05 OF 2021 CB 10 15 20 25 This matter was however settled by consent of the parties that is; the appellalt and Directel Ltd, which led to the cancellation of Emmanuel Mwebaze's name from the title and reinstatement of the appellant in September 2OOl. 5 The consent was cha-llenged by Arthur Mukwatanise vide H.C Misc. Applicatioa No. 62 of 2OO2 on grounds that he was a bonsjEde purchaser for value without notice and that the consent judgment between the appellant and 10 was entered into without his knowledge. The consent judgment was set aside, the appellant's name cancelled from the title and Arthur Mukwatanise was reinstated. 15 20 25 To safeguard his interest in the disputed land during ongoing litigation, the appellant lodged a caveat. It was wrongful for the Registrar to omit registering the caveat on the title. At first glance, the court order seems to have resulted in the appellant's loss. However, a clear analysis of the facts reveals that the caveat was not registered to notify the world of the appellant's claims, leading to subsequent transfers that created claims by bona fide purchasers. What the lower courts failed to recognize was that when the appellant lodged the caveat, there were no registered proprietors on the title except for Emmanuel Mwebaze, CrvIL APPEAL NO. 05 OF 2021 CB 38 5 whose proprietorship he sought to challenge in Misc. Application No. 922 of 2000. It is not enough for an individual to have a duty of care and then breach that duty by not living up to the standard of conduct expected of them The test goes further. The conduct ought to cause the damage that the claimant has suffered. The officers in the Lands Ministry are largely responsible for the loss of land occasioned by their omissions. Ground No. 1 and No. 2 succeed. Regarding Ground No. 3 concerning the l"t appellate court's failure to re-evaluate the evidence on record, counsel for the appellant submitted that the Justices of Appeal relied entirely on the findings of the trial Judge without considering the evidence on record. Counsel relied on the letter of the Registrar dated 19th July 2006 addressed to the Attorney General admitting the omissions. Counsel also relied on the oral evidence of DW1, the Principal Registrar, who testified that the appellant lost land owing to the omission of not registering the caveat. 39 CTVIL APPEAL NO. 05 OF 2021 10 15 20 25 CB 5 I had the opportunity to carefully review the Judgment of the High Court, in which the trial judge accepted that the fajlure to register the caveat was not justifred. However, he erroneously ruled that the appellant lost due to the court orders, rather than the omission by the Land Registrar. The learned Justices of Appeal shared the same view as the trial judge, that the appellant lost the land due to court orders, not because of the Registrar's omission. They reasoned that the appellant had frled no claim to recover the disputed land and that there was no basis on which a caveat should have been registered at the time it was lodged. This reasoning is not backed by fact. A granular examination of the record of proceedings reveals that, prior to lodging the caveat on July 12,2OOO, the appellant had filed Misc. Application No. 922 of 2OOO on July 10, 2O0O, challenging the proprietorship of Emmanuel Mwebaze. The learned trial Judge was well- appraised of it and made a mention of this application in his Judgment. Regarding the disparity in the dates, I note that both lower courts mentioned the two dates as the dates on which the caveat was lodged. At one point, they referred to July 20, 2OOl, and at another point, they referred to July 20, 200O. The date of July 20,2O2I appeared to be a genuine CTVIL APPEAL NO. 05 Otr'2O21 CB 40 10 15 20 1a) 5 typographical error that should not have formed the basis for denying the fact that the appellant's caveat was entered first and has an instrument number. The inconsistent use of the two dates interchangeably may have been another reason the courts misconstrued the fact that the caveat was lodged before the subsequent transfers occurred. Had the learned appeal Justices looked at the filings in the Ministry of Lands, which were tendered in court as a page from the Register of Instruments, they would have found that the land was registered on the sarne the caveat was filed. The registrations were only 35 minutes apart. As I have already stated in grounds I and2, the loss of the appellant's land was due to the Registrar's failure to lodge the caveat on the Certificate of Title. As a first appellate court, the learned Justices of Appeal had a duty to re-appraise and subject the evidence presented to the trial court to a fresh and thorough scrutiny before arriving at their own conclusion. (See Father Narsenslo Begumisa and three others v Eric Tiberaga SCCA 17 of 2OOO) 4t CB 10 15 20 25 CTVIL APPEAL NO. 05 OF 2021 5 It is trite that the appellate court may interfere with a I-rnding of fact if the trial court is shown to have overlooked any material feature in the evidence. Had the learned Justices of Appeal critically examined the evidence on record, they would have found that the failure to register the caveat on the title was a material fact and would not have concluded as they did that the loss of land was precisely due to court orders. Ground 3 of the appeal succeeds. Having found all grounds in the affirmative, the next question to determine are the remedies. Counsel for the appellant prayed that this court be pleased to allow the appeal with costs in this court and the courts below; and grant the appellant the orders prayed for in the High Court with interest thereon. The appellant at the High Court prayed for: 1. Special damages of 1,660,000,000/= as the market value of the land, without any developments. 2. General damages for the loss of earnings arising from using the land for commercial purposes. 3. Mesne profits occasioned by the non-use of the land. 4. Costs 42 CTVIL APPEAL NO. 05 OF 2021 CB 10 15 20 Z5 5. Interest on the general and special damages at a rate of 18% from the date of cause of action till payment in full. 5 Genera-l damages are intended to compensate for losses that are the direct and natura-l result of the act complained of. They are awarded when specihc monetar;r losses (special damages) cannot be easily calculated or proved. The court considers factors like the value of the 10 subject matter, economic inconvenience, and the nature and extent of the injury when assessing general damages. General damages aim to put the injured party in the position they would have been in had the breach or wrong not occurred. They cover losses that are not easily 15 quantifiable, such as pain, suffering, emotional distress, and loss of enjoyment of life. Considering the current market value of land in Banda I find that UGX 9O0.0OO.O0O is reasonable as compared to the Uganda Shillings one billion six hundred million proposed by the 20 appellant. (See Uganda Post Limited v Mukadisi (Civil Appeal 13 of 2022 page 8); Kampala Bottlers Ltd v Damanico (U) Ltd (Civil Appeal 22 of 1992i [1993] UGSC 1; Galleria in Africa Llmited v Uganda Electricity Distribution Company Limited [2O181 2s ucsc 19 43 CTVIL APPEAL NO. 05 OF 2021 CB 5 Regarding the question of interest, Section 26121 of t}re Civil Procedure Act provides for the award of interest. 26. Interest (2)Where and insofar as a decree is for the payment of money, the court may, in the decree order interest at such rate as the court deems reasonable to be paid on the principal sum adjudged from the date of the suit to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, with further interest at such rate as the court deems reasonable on the aggregate sum so adjudged from the date of the decree to the date of pa5rment or to such earlier date as the court considers fit. (3)Where such a decree is silent with respect to the payment of further interest on the aggregate sum specified in subsection (2) from the date of the decree to the date of payment or other earlier date, the court shall be deemed to have ordered interest at six percent per year. When a court issues a decree for the payment of a sum of money, it retains the discretion to order interest at a rate the court deems reasonable on the principal sum, 10 15 20 CTVIL APPEAL NO. 05 OF 2021 CB 44 5 provided it's w'ithin the acceptable court rate. In other words, the court has discretion to determine the interest rate computed to compensate the plaintiff for the defendant's delay in making good t1le wrong suffered. Given the effluxion of time since the appellant hrst lost the case in the High Court, this court is mindful not to make interest so prohibitive as to become a form of punitive damages. ln cases involving land, the economic value of the land is a key factor in determining the appropriate amount of interest. This is because the plaintiff has been deprived of the potential income or profits they could have generated from the land. As was stated in Car and General, the award of interest rates is discretionary. An interest rate of 45o/o p.a was found to be patently unjust and was reduced to 10% p.a. 4S CTVIL APPEAL NO. 05 OF 2O2I CB 15 20 The law in Uganda is that while both damages and interest serve to compensate a party for a loss, they do so by manifold means. Damages are a lump sum pa1'rnent designed to restore the plaintiff to their original position. 10 At the same time, interest is an additional sum awarded to compensate for the delay in receiving that payment. 5 In Omuayokol, which referenced Mukisa Biscuits Man. Ltd v West End Distributors held that, as a general principle, interest on special damages is awarded from the date of loss and not from the date of judgment. (See Bholm v Car & General Ltd (Supreme Court Civil Appeal 43 UGSC l200al; Omunyokol Akol Johnson v Attorney General 12OL2l UGSC 4; Mukisa Blscuit Manufacturing co. Ltd v West End Distributors Ltd, No.2 197O DA,-469 at page 475: I have considered the impact of inflation and currency depreciation to ensure fair compensation, not excessive. In my opinion, an interest rate of l8o/o as requested by the appellant is relatively high. Based on the cited authorities above, I find a 1O%o interest rate reasonable. I acknowledge that the appellant was deprived of land that was lawfully hers. Additionally, she was denied access to prime land, preventing her from developing or profiting from it. I also note that during the valuation surveys, squatters were present in parts of the land. (See Attorney General v Henley Property Developers Limited (Civil Appeal 5 of2023) l2024l UGsc 8) 46 CrvIL APPEAL NO. 05 OF 2O2I CB 15 20 10 r Ultimately, the loss claimed by the appellants directly resulted from the failure of the respondent's employees. The chain of causation was incremental, including the issuance of court orders. However, the ultimate failure to warn the public, through a properly lodged caveat, that the land was disputed a-llowed third parties to acquire the land permanently. Considering my discussion above, I would award the appellant general damages. (See British Transport Commission v Gourley [19561 AC 185 Attorney General v Lutaya [2OO8l UGSC 2, Robert Cousens v Attorney General, Surgipharm Uganda Limited v Batabane l2023l UGSC 73, Uganda Revenue Authority v Stephen Mabosi 2 UGSC 1996). Based on the reasons outlined in this Judgment, the appeal has merit and succeeds. Regarding the quantum of damages and other orders, I would: 1. Set aside the Judgment, decrees and orders of the Court of Appeal in Civil Appea-t No. 128 of 2019. \ 2. Award the appellant Uganda Shillings Nine Hundred Million (UGX 9OO,000,O00) as special damages for 47 CTVIL APPEAL NO. 05 OF 2021 CB 10 15 ZO the loss of land, 5.5 acres comprised in Plot 1170 land situate at Kireka, Banda, with interest at LOYo from the date the first Judgment was passed. 5 3. Grant Genera-l damages of Uganda Shillings One Hundred Million (UGX 100,000,OOO) with interest at 1O%o from the date of this Judgment. 10 4. Allow the appeal with costs in this court and the courts below. It is so ordered. /Kt"" " Dated at Kampala this. .202s 15 ZO CATHERINE BAMUGEMEREIRE JUSTICE OF THE SUPREME COURT CTVIL APPEAL NO. 05 OF 2O21 CB 48 THE REPI'BLIC OF UGANDA THE SUPREME COURT OF UGANDA AT I{AMPALA (Coram: Tuhaise, Musoke, Musota, Bamugemereire & Mugenyi, JJSC) CIVIL APPEAL NO. 5 0F 2021 UGANDA MOTORS LIMITED APPELLANT VERSUS RESPONDENT (Appeal from the decision of the Court of Appeal (Kakuru, Kiryabwire & Madrama, JJA) in Civil Appeal No. 128 of 2019) Civil Appeal No. 5 ol202l ATTORNEY GENERAL I DGMENT F MONICA K. M ENYI 2. The facts of the case have been well articulated in the lead judgment and need not be repeated in detail here. lt wrll suffice to observe that this is a claim for the recovery of damages for the loss of the appellant's property comprising Kyaddondo Block 232 plot 1 170 in Banda/Kireka, Wakisa District on account of the omission or failure by a registrar of land registration to register its caveat in respect of the property. Theclaimwas brought for the recovery of damages underthethen sections 183and 185 of the Registration of Titles Act (RTA), cunently sections 167 and 169 of the RTA, Cap.240 which, for ease of reference, are reproduced below. 167. Actions for recovery of damaqes nay be brouqht aqainst Government A peBon sustaining lo$ through any omission, mistake or misfeasance ol the Registrar or any other otticer or clerk in the execution ot their respeclive duties under this Act or by any error, omission or misdescription in any cerlificate of title or any entry or memorial in the Register Book or by the registration of any other peBon as proprietor, and who is barred by this Act trom bringing an action of ejectment or other action for the recovery of the land, e3tate or inter6t, may, in any case in which the remedy by action tor recovery of damagB ag herein provided is inapplicable, bring an action against the Government tor recovery of damages; in stimaling those damage3, however, the value of all buildings and other improvements erected or made subsequently to the loss or deprivation shall be excluded. 169. Persors susfarninq loss mav recover danaqes (r) A p€rson wfio has sustained or hereafter sustains any loss or damage in or by the exercise or suppo3ed exercise by the Registrar of any of the powers or duties conferred or imposed on him or her by this Ad, end who hes not been oettv ot ptiw to the a0plication ot dealinq in conneclion with which the Dowet wes oxercised, may, notwithstanding sec{ions 162 and 167, and without prejudice to the rights, if any, of that person under those seclions in the fiBt instance and wilhout any obligation to pursue the remedi$ provided by those sections, bring an aclion against the Government for recovery of damages (my enphasis) (2) Where the person referred to in subseaion (1) has been party or privy to the application or dealing reterred to in that subseclion, he or she shall be at liberty to join the 2 Civil Appeal No. 5 of 202 I 1. I have had the beneflt of reading in draft the judgment of my learned sister Bamugemereire, JSC in this matler. ldo agree with her conclusion that this Appeal should succeed but wish to pronounce myself on Grounds 2 and 3of the Appeal, aswell as the question of damages. Government as co-defendant in any action brought by him or her in respecl of such loss or damage against any other person or percon3 who has or have been party or privy to that application or dealing. 3. The trial judge (with whom the Court of Appeal wholly agreed) discounted the applicability of section 169 to the case and, in relation to section '167, took the view that the appellant lost his property in consequence of a court order as opposed to the omission, mistake or misfeasance of the land registrar as contemplated thereunder. He concluded as follows: A person cannot lose what that person does not own at the time lhe /oss is a//eged to have occurred. Jusl as lhe well known maxim goes. nemo del quod non habet. Similaty, one cannot lose what belongs to anothet person at the time the /oss is c/armed lo ,ave occurred . The actual clain of the plaintiff centres upon mere possibifiy of reclaining the land which il had already lost by the time it lodged the caveat. There is no ceftainty that lhe possibilily would have materialized if the caveat had been duly registered. ... The plaintifl did not lose the sut land only once. The rccord shows that the plaintiff recovercd the suit land and it got rcinstated on the cediticate of tille on 27th Septembet 2001 as exhibit P2 shows. That was a few months afrer the omlsslon by the rcgistrar to register the caveat. lf the land was recovered by the plaintiff as descibed above. it appears to be unsuslaln able to argue that the omission by the registrar to register the plaintiffs caveat deprived the plaintiff of the ability and potential to recover the sul land. The plaintiff finally lost the sult iand lhe second /oss too arose, in the view of the coutl, from a coul order that cancelled the consent order which had been entercd into by the plaintifl and M/s Directel (U) Ltd lh,s /oss (afler 2002) cannot be directly attibuted to the registrar's lailure to registet the plaintiffs caveat on 1Vh July 2001. ln coud's view, it would be unfai to do so. Ihere exists no ascertainable nexus between the two events. Coud. upon the above reasors, answers lhe secord lssue ln the negative as well The plaintiff is not entitled to conpensation from the Govemnent under sedion 183 of the RTA because the /oss of its land was due to coutt orders and did not anse out of the omission by the rcgistar of tttles to rcgistet its caveat even though that onisslon was dse/Inotlusfl,?ed. 4. In thal regard, the lower courts were of the view that the cause of the appellant's loss was not the omission by the responsible land registry official(s) to formally register its caveat; but ultimately arose from a review order of the High Court made in Misc. Application No. 62 of 2002, for which the respondent would not be liable under section 167 of the RTA. Dissatisfied with the decision of the Court of Appeal, the appellant lodged the present Appeal. The grounds of appeal are laid out in the lead judgment as follows: Civil Appeal No. 5 of 2021 l. The leamed Juslices of Court of Appeal ened in law when they misconstrued the law and purpose of lodging a caveat on a Cettficate of Tille, ll. The leamed Justices of Coul of Appeal erred in law and facl when they failed to hold that the appellant ultimately lost the suit prcpely to third patlies due to negligence/omrbslon by the Commissioner for Land Registration to endorse/ register the caveat on the ceftificale of Title of the suit properly in time or at all. lll. The learned Justices of Appeal, as the 1st Appellate Couft, erred in law when they failed to re-evaluate the evidence on record and thereby came to wrong conclusions. There is no sel format to which a revaluatron of evidence by a first appellate court should mnform. The extent and manner in which re-evaluation may be done depends on the circumstances of each case and the style used by the first appellate court. In this regard, I shall refer to what this Court said in two cases. ln - Ftancis Senbuya -vs-Alport Seryicas Ltd. Civil Appeal No. 6 ol 1999 (SCU) (unreported), Tsekooko, JSC said at page 1 1: "l would eccept Mt. Byenkya's submission if he meant to say thet the Coutl of Appeal did not go into details of the evidence, but that is really a question of styre. Ihere is really no set fomat to which th6 r*evelualion should confom . A lirst ewllete Coutl is erpected to scrutinise and make en assessrnerl of t re evidence but this does not meen thet the Court of Appeal should write e judgment sinilar to thet of the (tial)." ln - Ephnim Orgoru Odongo & Anothet -vs- Frencis Beneg,e Bonge, Civil Apryel No. 10 ot 1987 (SCU) (unreported), Odoki JSC (as he then was) said: "While the length of the analysis mey be indicetive ol e comprchensive evaluetion ot evidence, neyedheress lhe lesl ol adequacy rcmains e question of substence." 6. I agree with the decision above that there is no set format for the re€valuation of evidence by a first appellate court. This would depend on the circumstances of each case as well as the style of .t Civil Appeal No. 5 of 202 I 5. With the greatest respect, I do not abide the proposition in Ground 3 of the Appeal that in adverting lo the conclusions of the trial court the Court of Appeal did not subject the evidence that was before it to fresh scruliny as is required of a first appellate court. The issue of recvaluation of evidence by a lirst appellate courl was addressed by this Courl in Uoanda Breweries Ltd v Uqanda Railwava Corporation [20021 UGSC 40 as follows (per Oder, JSC): individual judges but, more importantly, emphasis should be laid on the substance not form of the re- evaluation. 7, ln the matter before us, Kakuru, JA (with whom the rest of the coram agreed) stated that he had carefully perused the High Court judgment and found that the learned trial judge had dealt exhaustively with the issue of alleged negligence by the respondent's 'servanls', before summing up his own perspective of lhe evidence as follows: Having studied the prcceedings at the High Couft, I agree with the reasoning and conclusion of the leamed tial judge as set out above. The appe ant had lost the sul land more than once. The tirst was thtough a wafiant of attachment. Then he recovered tt following the consent settlement. Then he lost it again following the settlng aslde of that consent. Since there was no subsisting clain instituted by the appellant by way ol a suit or otheryise to recover the sutt land, there was no basis upon which a caveat ought to have been registered at the time I was lodged. 8. In my view, lhe leamed Justice of Appeal did subject the evidence to sufflcient re-evaluation on the question of the land registry's negligence, simply defening wholly to the trial court's analysis of the evidence before it without necessarily having to regurgitate the same findings of fact. I am satisfled, therefore, that if the learned appellate judges arrived at a wrong conclusion in this matter, it was not because they failed in their duty to re€valuate the evidence on record. I therefore find no merit in Ground 3 of this Appeal. 9. Returnrng to Ground 2, the sum effect of the evidence relied upon by both lower courts in arriving at their respeclive decisions is that pnor to the reversal of its reinstatement on the certificate of title, the appellant had lost the land for which it seeks recompense under a sale by attachment arising from an undefended summary suit, Clvl SurI No. 7193 of 7999. lt was indeed that original sale that caused the appellant to lodge a caveat in the land registry to forestall any further alienation ofthe land. lt is not readily apparent why the appellant company did not seek leave to defend itself in the summary suit, but it is its contention that the sale of its 5.54-acre piece of land for a Ushs, 8,746,545/= debt was steeped in malpractice and fraud in respect of which the initial buyer was complicit. 10. This factual background would suggest that there were mulliple events that contributed to the loss of the appellant's land. lt brings to bear the concept of causation cited by learned counsel for the appellant, which typically manifests as the link between the conduct of a defendant and the plaintiffs loss so as to establish the liability of the defendant. fhe'but fol concept is, in tum, an essenlial l Civil Appeal No. 5 of 2021 ingredient of causation that (as aptly stated in the lead judgment) requires a plaintiff to show that the injury or loss suffered would not have occuned but for the negligence of the defendant. 1 'l . Both acts and omissions can constitute negligent conduct on the part of a defendant, but the 'but for' test is ill suited for cases where the negligence involves omission rather than commission. The appropriate formulation in such cases is whelher the same injury would have occuned 'even rfl the defendant had acted,l and the onus of proof in that case would lie with the defendant. Where the plaintiff has been contributorily negligent the damages awardable as against the defendant would be reduced on thal account, but the burden of proof would not shift to the plaintiff to prove that part or all of the injury or loss would have been sustained even lfthere had been no contribulory negligence.2 12. ln the instant case, the respondent alluded to the 'even rf test in its averment in the amended written statement of defence (WSD) that the caveat that was lodged by the appellant 'had no legal effect in light of the interest acquied by one Emmanuel Mwebaze under courl orde1 which was never challenged.'Bythataverment,therespondentwouldappeartocontendthatevenifthecaveathad been duly registered it would have been of no legal consequence given the transfer of proprietorship to l/twebaze. Furthermore, in what appears to have been a subtle inference of contnbutory negligence, the respondent averred that the appellant never sought to sel aside the onginal sale of its land. '13, However, in its reply to the WSD the appellant maintained that its efforts at challenging the original sale to Mwebaze were frustrated by the non-registration of the caveat, which caused the lransfer of the land to bona fide purchasers. This averment is supported by the evidence of PW3 that the appellant sued Directel Ltd and the court bailiffs that had overseen the sale to Mwebaze, but if the caveat had been registered the company would not have lost its land. The lossof thelandon account of the failure to regisler the caveat is also acknowledged in the evidence of DW3, the then Principal Registrar of Titles. 14, I therefore find no proof either that the appellant would have suffered the loss it incuned even if the caveal had been duly registered or that there was contributory negligence on its part. The evidence on record supports the finding that the omission to register the appellant's caveat gave way to the I See Doyid, Hillel; Mc|ague, W. Puul & Yanis:evski, Peter F.. 'Provine Causation where the But For Test is [2005] The Ach,ocotes Quqrterl!'. p'ol. 301 p. 216 at 222 : lbid. at pp.224,2251 t'leller v. Martens [2002] 9 W.W. R. 7 I at oaras. 44-47 cited with approval 6 Civil Appeal No. 5 of 2021 subsequent registrulion of bona fide purchasers and/or transferees against whom the appellant could not bring an action for the recovery of the land by virtue of sections '160(c) and 165r of the RTA, Sections 160(c) and 165 of the RTA only permit the impeachment of a certiflcate of title the holder of which is either complicit in fraud or had notice of fraud by his or her predecessor in title in the registration of the land, See David Saiiaka Nali . 15. lndeed, the indefeasibility of the legal title of a bona frde transferee is recognized in section 167 insofar as it permits the recovery of damages from the Government by a person that suffers loss of its land in the circumstances enlisted thereunder, but is barred from bringing an action for the recovery of the land by the |egal protection extended lo a bona fide purchaser for value. To that extent, damages would not be recoverable fron a bona frde purchaser or transferee either, leaving the Government solely liable in damages for the acts and omissions of land registry staff. Damages would thus be recoverable in lieu of the recovery of the land. 16. Needless to state, the Government's liability under section '167 of the RTA is subject to the provisions of sections 159 and 164 of the Act. Section 159 prohibits personal liability for a registrar or any person acting under his/her authority 'in respect of any act or matter bona fide done or omitted to be done in the exercise or supposed exercise of any power or duty given or imposed by this Act.'This means that where an act or omission is malAfulgor not within their mandate under the Act, the registrar of titles or any official serving under his/her authority may bear personal responsibility therefor. On the other hand, section 164 is fairly explicit on the circumstances under which the Government would not bear liability for loss, damage or deprivation of land, additionally retaining the prerogative to recover from the responsible person any damages payable in the exceptional circumstances delineated thereunder. 17. I find nothing to preclude a person that loses land on account of fraud or other mala flde conduct from bringing an action for the recovery of damages against the errant official(s) and the beneficiary of their activities. Section '162 of the RTA makes provisron for an aclion for the recovery of damages against the beneficiary of an erroneous registration of land title, and the defence of having transfened the land in question bona fide third party would be unsustainable where such beneficiary's application for regiskation as proprietor was laced with fraud or error occasioned by omission, misrepresentation or misdescription, Recourse lhereunder may only be made to the recovery of damages from the Government where indeed the land in question has been transferred bona fide for value, as well as r The then sections | 76 and l8l ofthe RTA 7 Civil Appeal No. 5 of 2021 in circumstances where the beneficiary of the erroneous registration is dead, has been adjudged bankrupt or cannot be found within the jurisdiction of the High Court. lt is in that spirit, in my view, that section 169(2) of the Act mandates a claimant who was either party or privy to the activities of a land registrar that result in loss of land to join the Government as a co{efendant with any other person who was similarly party or privy to the impugned dealing such as the beneficiary thereof. 18. ln this case, the trial judge (conectly in my view) found that the appellant company had in fact been privy to or aware of the enoneous dealings of the land registry and thus could not benefit from the provisions of section 169(1) of the RTA to bring an action against the Govemment for the recovery of damages. lt nonetheless had recourse to the remedy in section 169(2) and lherefore acted well within its remit in joining the present respondent as a co-defendant with the Commissioner of Land Registration in the suit that was before the trial court (although the latter office is not party to this Appeal), I am satisfied, therefore, that the respondent was indeed liable to the appellant in damages and in full agreement with the lead judgment would resolve Ground 2in the affirmative. 19. This brings me lo the question of damages. This is a question of mixed law and fact that is tenable on second appeal. See rule 30(1) of the Judicature (Supreme Coul Rules) Dtections, S.l 13-11 ('the Supreme Cout Rules'). I flnd fortitude for this view in Uqanda Breweries Ltd v Uqanda Railways Corporation (supra), where this Court clarified the extent to which recourse may be made to evidence in the assessment of questions of mixed law and fact. lt cited with approval its earlier decision in Kifamunte Henry vs Uqanda ['19981 UGSC 20 where it was held that'this Courl will no doubt consider the facts of (an) appeal to the extent of considering the relevant part of law or mixed law and fact raised in any appeal.' 20. lt is trite law that an appellate court will not interfere with an award of damages by a trial courl unless it is satisfied that the lower court acted on a wrong princrple of law or the amount awarded is so high or so low as to render it an enoneous estimate of the damaqes to which the plainliff was entitled. Robert C oussens v Attorne General t20001 UGSC 2 htertreiqht Forwarders (U) Ltd v East Atrican Development Bank (EADB) IlWl llGSC 16 and Traill v Booker (1947) 20 EACA 20 2'1. The question is what happens where the trial court dismisses a matter without pronouncing itself on the issue of damages and its decision is later reversed on appeal. ln Marqaret Zziwa v Secretary 8 Civil Appeal No. 5 of 2021 General of the East African Communi tv. EACJ Aooeal No. 2 ol 20'17 (unreported),1 the East Afdcan Court of Justice (Appellate Division) most compellingly held Assessmenl of compensation being a factual inquiry is obviously within the competence of the Trial Court (see the East Alrican Court of Appeal decision in Chandarla v. Ghadially [1962] EA 50,l), lt is also the law that the Trial Court should, even if it were minded to dismiss the suit on liabjlity, consider the quantun of compensation it would have awarded had it made a finding of liability in favour of the Appellant (see the decision by the Kenyan Court of Appeal in Owayo v. Aduda [2004 2KLR ,l40, ,l56). That approach is the correct one and is anchored on the sound reasoning that should the finding that there is no liability and, accordingly, compensation should not be awarded, be reversed by the Appellate Court, the latter Court is entitled to benefit from the Trial fuurt's factual findings on the quantum thereof. In the instant matter, the Trial Court omitted to discharge that mandate of assessing comp€nsation. Ordinarily, that omission would on a successful appeal on the availability of the remedy, impel this Courl to remit the case back lo the Trial Court for assessment of compensation. However, given the convoluted nature of this litigation and the delays that might ensue b€tween such an order and the final disposal of the matter, the Court has in the interest of expeditious justice decided, not without some hesitation, to exercise its inherent power and assess the compensalion due to the Appellant. 22. The court's decision to exercise its inherent powers was rnter a/la guided by the failure of the lower court to abide the renown principle that even where a kial court is inclined to dismiss a suit that it rs seized of, it should consider the quantum of damages rt would have awarded had it made a finding of liabilrty so that should its linding that there is no liability be reversed on appeal, the appellate court is in a position to benefit from the trial court's factual findings on the quantum of damages awardable. It was additionally informed by the interests of expeditious justice, which is similarly expressed by the constitutional command in article 126(2)(b) of the Ugandan Constitution that'justice shall not be delayed.' I would add to those considerations, the notion of Tudlcialeconomywhich in its literal sense denotes the efficient utilization of scarce judicial resources or, as more succinctly stated in B/ack's Law Dictionary,s 'efficiency in the operation of courts and the judicial system, especially the efficient management of litigation so as to minimize duplication of effort and to avoid wasting the judiciary's time and resources.' 23. In the matter before us, the failure by the trial court to consider the quantum of compensation it would have awarded had it made a finding of liability lefl the Court of Appeal disabled on the question of 1At paras. 79. 80. r to,h Edirion. p. 975 9 Civil Appeal No. 5 of 2021 damages had it reversed the trial court's findings. Having now reversed the concurrent position of both lower courts, that then leaves this Court in the same othenivise avoidable conundrum. 24. ln my judgmenl, given its convoluted history and the fact that this litigation has been within the court system for close to two decades, it would be remiss of this Court to return this case to the trial court for determination of damages, well aware that whalever decision is anived at by that court could very well be subjected to a protracted appeals process. To my mind, this would be a sad kavesty of justice. Therefore, on the persuasive authority of Maroaret Zziwa v Secretary General of the East African Communitv (supra) and in the interests of judicial economy and expeditious justice, it behooves this Court to invoke its inherent powers under section 2(2) of the Supreme Court Rules to make an assessment of the damages awardable in the matter. 25.The broad principle governing the measure of damages applicable to both torts and contractual breaches was stated as follows in Livinqstone v Ronoyard's Coal Co. ('1880) 5 App. Cas 259: 26. Stated differently, the objective of an award of damages is to extend compensation to a plaintiff for the damage, loss or injury s/he has suffered. See Robed Coussens v Attornev General (supta). ln Stroms v Hutchinson 119051 AC 515 a distinction was drawn between general and special damages as follows: 'General damages", as I understand the term, are such as the law will presume to be the direct natural or pobable consequence of the acl complained of. 'Special damages", on the other hand, are such as the law will not inler from the nature of the act. They do not follow in ordinary course. They are exceptional in their character, and therefore they must be claimed specially and poved striclly. It is easy enough to apply the rule (in Livinostore v Ronoyardb Coa, Co.) in the case of eamings which have actually been lost, or expenses which have actually been incuned up to the date of the trial. The exact or approximate amount can be proved and, if proved, will be awarded as spec,ai damages. ln this category falls income or earning lost between the time of injury and the time of trial. t0 Civil Appeal No. 5 of 2021 That sum of money which will pul the party who has been inlured, or who has suffered, in the same position as he would have been if he had not sustained the wrong for which he is now getting compensation or reparation. 27. This categorization of damages was further enunciated in Robert Coussens v Attornev General (supra) as follows (per Oder, JSC): Bul in the case of future financial loss whether it is future loss of earnings or expenses to be incurred in the future, assessment is not easy. This prospective loss cannot be claimed as special damages because it has not been sustained atthedateofthetrial. lt is therelore awarded as generaldamages. The plaintiff no doubt would be entitled in theory to the exact amount of his prospective loss if it could be proved to its present value at the date of kial. But in practice since fulure loss cannol usually be proved, the court has to make a broad estimate taking into account all the proved facts and the probabilities of a particular case. 28. Therefore, not only is it trite law that specialdamages must be specifically pleaded and strictly proved, in Attornev General v Lutaava 120081 UGSC 2 this Court held that an award of special damages must be restricted to what was specifically prayed for in the plaint. ln the matter before us, the appellant company seeks compensation for the loss of his land on account of the acts or omissions of the Land Registry staff. This claim is depicted in the plaint as follows: Special damages Patticularc of Spaciel Damaoes The market value of the land without developnents is valued at 1,6il,000,000F by qualilied ptopeny valuers [fhe plaintiff shall rely on evaluation repoft ma*ed Annexure 'Al General Damages for loss of eamings aising fron using the land for connercial purposes. Mesne profrts occasioned by the non-use of the premises. Costs oft e surf lnterest on (i) and (ii) at lhe conmercial rcte of 18% from the date of cause ol aclion lill payment in full. t. 29. ln proof of the claim for special damages, the appellant relies upon a July 2006 valuation report that placed the value oflhe land in issue at Ushs. '1,660,000,000/=, that is Ushs 300,000,000/= per acre. With respect, I do not find this document satisfactory for the skict proof of special damages given the absence of an explanation as to the parameters used to arrive at the valuation of each acre of land or the precise valuation method used to arnve at the estimates therein. 30. To compound matters, although the 2006 valuation report mentioned lhe existence of commercial buildings and residential properties on the land which might have generated earnings, in the oral evidence of no less than the appellant company's then Managing Director it transpired that as at 2"d May 2000 (the date of the original sale) the land was occupied by squatters that the appellant company was due to compensate. ln my view, this evidence would have a bearing on the il Civil Appeal No. 5 of202l compensation due to the appellant company for its land, No attempt was made by the appellant to establish how much of the land was covered by squatters and commercial activity respectively but, in any case, the cost of compensation for the squatters cannol be ignored in a computation of the compensatory damages due to the appellant. This cost was not factored into the valuation report. 31, Meanwhile, the appellant sought general damages for loss of earnings from the land, without clarifying whether these were eamings that had been actually lost as at the date of the trial or anticipated prospective loss of earnings. Whereas earnings lost as at the date of the trial are awardable as special damages if satisfactorily proved, prospective loss of eamings cannot be claimed as special damages because it has not been sustained at the date of the tnal. lt is therefore awarded as general damages. See Robert Coussens v Attomev General (supra). 32, Considering that the loss of earnings claimed in lhis case has not been specially pleaded with a breakdown of actual loss incuned, this claim shall be treated as a claim for general damages arising from lost future earnings or prospecti ve loss. See Britis h Transoort Commission v Gourlev l'19561 AC 185 at 212 However, a claim of mesne profits is not sustainable either in the absence of any indication as to the sums of money the appellant had foregone following the loss of his property 33. Be that as it may, I am alive to the observation in Stroms v Hutchinson (supra) that there is scarcely any difference 'whether you claim damages generally and show that an award of general damages would include and cover a special loss from which you seek relief or whether you seek compensation for a special loss and show that the loss would be more than covered or compensated by an award of general damages.'6 ln this case, the appellant company essentially seeks compensatory relief for the loss it incurred on account of the acts and omissions of the Land Registry. Having fallen short on satisfactory proof of the claim as special damages, I am nonetheless inclined to award that compensation as general damages for loss of land. 34. Consequently, I decline to make an award of special damages or mesne profits but would award the Ushs. 900,000,000/= awarded in the lead judgment as general damages for the loss of land and maintain the Ushs, 100,000,000/= awarded as general damages for losl future earnings. l2 Civil Appeal No. 5 of202l r' Per Lord MacNaghten. 35, ln the result, in agreement with the lead judgment, I would allow the Appeal and set aside the judgment and decree in Civil Appeal No. 128 of 2019. I do additionally abide the decision in the lead judgment on costs but would only award general (compensatory) damages as follows: l. Ushs. 900,000,000/= for the loss of the appellant's land, ll . Ushs 100,000,000/= for lost future earnings; lll. lnterest at court rate of 9% per annum from the date of the judgment in the trial court till payment in full. I would so order Dated and delivered at Kampala thi, .../.K. th j^-[ .... day of .... 2025. I Civil Appeal No. 5 of202l li Conclusion tl.<-<-*-,Lt - 'Yv Monica K. Mugenyi Justice of the Supreme Court