Mulewa & 14 Others v Western Uganda Importers & Distributors Limited & Another (Civil Appeal 2 of 2020) [2020] UGSC 58 (29 October 2020)

THE REPUBLIC OF UGANDA IN THE SUPRIME COURT OF UGANDA AT KOLOLO (CORAM: OPIO-AWERI, TIBATEMWA, MUGAMBA, TUHNSE AIID CHIBITA, JJ.S.C.' CIVIL APPEAL NO. 02 OF 2O2O BETWEEIY 1. D 3. 4. 5. 6. 7. 8. 9. lo. 11. 12. 13. 14. 15. MULEWA ISEBAHASA YORUNIMU BALUKU FRANCIS MANWANO MBUSA BETTIEL TOMASI BISHOGO MIKAIRI MASEREXA BONIFACE BWAMBALE BWAMBALE S/O KAMBERE HERIZONI JOHN KIBWA"ITA NYINA ABARONGO W/O MASEREKA MASEREKA STEVEN NYANSTYO TEMBO NELSON HAMBIDI BITEYO S/o MAKUHA MUHIN DO SIRIRYAIYA: : ! : i : i : : : I : : : : 3 : : : : : : : : : : : : : : : I : APPELLAI{TS VERSUS 1. M/s WESTERN UGAITDA IMPORTERS & DTSTRIBUTORS LTD 2.M /s IYYAI{ATOIYZI GRowERs co-opERATwEs uIvIoI{ LTD: : : : : : : RESBONDENTS [Appeal lrom a d,ecislon o! the Court of Appeal at ltampala (Cheborton, Musota. and. Mad.ranna JJ.A.) ddted 2Vh January 2O2O tn C,tv Appeal No.23 oJ 20171 JUDGMENT OF MUGAMBA. JSC This is a second appeal, arising from a decision of the court of Appeal which upheld the judgment and orders of the High court Judge (Bashaija K. Andrew J) where in a special session held at Kasese he dismissed with costs the appellants' civil Suit No.3 of 2003 on 9tt February,2016. 1 I I / J, Background The appellants instituted a civil suit against the respondents in which they sought for a declaration that the appellants/plaintiffs were the owners of the suit land situated at Kirembe, Kamaiba, in Kasese District. The said land borders the Kasese - Mbarara Road, Basaija Tibalemwa Ltd, and one Masereka, among others. The appellants/plaintiffs further sought for a declaration that the title of the l"t respondent was invalid alleging that the same had been obtained through fraud and sought for its cancellation. They sought also for a declaration that they were free to obtain a certificate of title to their communa.l customary holding. They sought also for a declaration that the 2"d respondent was not a bona hde purchaser for value and hence a trespasser on the suit rand, an order of eviction against both respondents, genera-l damages and interest thereon at a rate of 4oh per annum from the date of filing the suit until payment in full, mesne profits, a permanent injunction against the respondents and those claiming under them from trespassing on the suit land, as well as costs of the suit. The appellants claim that they are some of the customar5r owners of the suit land which is now comprised in LRV 1227 Forio 17 known as Busongora Block 13 plotl situate at Kamaiba, Muholqza, registered in the name of the lst respondent and LRV 3o49 Folio g known as Busongora Block 13 plot 9 land at Kamaiba, Muholgza, registered in the name of the 2nd respondent. The appellants claim that they own the suit land and that they have been in possession since the 194os. They craim that the 1st respondent had fraudulently acquired a leasehold title over the suit land and that later in 2oo2 it fraudulently sold part of it to the 2nd respondent. The respondents opposed the above claims. The 1"t respondent filed a defence with a counterclaim where it sought for a declaration that it is the registered proprietor of the suit land, an order of eviction and a permanent injunction 2 (. acts of of the The 2na respondent also filed a defence where it sought for the dismissal of the appellants,/ plaintiffs' suit with costs. The trial judge dismissed the appeilants'suit but aflowed the r"r respondent's counter claim. The appellants were dissatisfied with the judgment and orders of the learned trial Judge. They appealed to the Court of Appeal. The Court of Appeal heard the appeal as first appellate court and dismissed the same for lack of merit with costs to the respondent. The appellants were not satisfied with the judgment of the court of Appeal. They appealed to this Court. The Memorandum of Appeal has six grounds which read as shown below: l.The learned Justices of court of Appeal erred in raw and fact when they upheld the decision ofthe triar Judge setting aside a consent judgment entered by Appeltants and l"t Respondent hence occasioning a miscarriage of Justice. 2'The learned Justices of court of Appear erred in law and fact when they held that a mediation consent entered before Principal Judge between the Appe[ants and the Respondents was rightly ignored thereby occasioning miscarriage of justice. 3.The Learned Justices ofcourt ofAppeal erred in law and facts when they failed to re-evaluate evidence on record and upheld the decision of the trial Judge that the Appellants rauea to prove their customary tenancy thereby occasioning a miscarriage of justice. 4.The learned Justices of Appeal erred in law and fact urhen they upheld the trial judge,s decision that the 2"d Respondent restraining the appellants/ trespass on the suit land, counterclaim. plaintiffs from any further general damages, and costs purchased the land without interest on the suit land. any knowledge of the plaintilfs S.The learned Justices of Appeal erred in law and fact when they held that the Appellants failed to prove their ownership of the suit land prior to registration ofthe 1"t Respondent. 6.The learned Justices of Appeal erred in law and fact when they held that the process of visiting the locus was properly handled and appellants failed to prove existence of their crops and houses after ten years of eviction. Representation At the hearing of the appeal on 30rh June, 2020, Mr. Richard Mwebesa, Mr. Rwakatooke Mugisa and Mr. Tomusange Abdul appeared for the appellants. The 1"r respondent was represented by Mr. David Bwambale of M/s. Tropica_l Law Advocates while the 2,d respondent was represented by Mr. Cosma Kateeba of M/s. KRK Advocates. Appellants' submissions on ground one, counsel for the appellants stated that the consent judgment dated 22"a April, 2015 between the 1"r respondent and the appellants was rightly entered and that it was wrong for the trial judge to set it aside. counsel submitted that whereas the learned Justices of the court of Appea1 cited the right law regarding setting aside consent judgments as summ arized in the case of Attorney General vs James Mark Kamoga & another, SCCA NO.8 of 2@4, they failed to correctly apply the same principles of law to the facts. counsel stated that the learned justices of appeal lailed in their duty to reappraise the evidence and that had they done so they would have found that the consent judgment was not obtained through fraud. 4 counsel argued that the justices of the court of Appeal erroneously relied on the decision of the learned trial judge. He contended that the trial judge never gave a chance to the appellants to be heard on the respondent's allegation against them made in the undated letter from the lawyers of the 1"r respondent to the deputy registrar where it was claimed that some unknown people were smuggle a consent judgment onto the court record. Counsel argued that the consent judgment was recalled by the registrar solely on allegations made in the letter by counsel for the l't respondent. counsel contended that the appellants were never given a hearing by either the registrar or the trial judge before the consent judgment was recalled and set aside. He argued further that the allegations of fraud made against them required fraud to be proved strictly to the required standard. In this connection counsel stated that the burden of proof where fraud is aJleged is heavier than on a balance of probabilities generally appried in civil matters. He further submitted that the registrar was Ttrnctus officio and, as such he could not recall a consent endorsed by him with his hand and seal of court. counsel submitted that the triar Judge and the registrar disregarded the principle of natural justice and ignored the duty to act fairly. counsel added that consequently parties were not heard on whether the consent agreement was irregular. He added that what was done depended on alegations in the letter from one pafty, the lawyers of the l"t respondent. counsel contended that the learned justices of appear foilowed the same decision made by the trial judge and upheld his decision despite the fact the proper procedure for setting aside a consent attempting to judgment was Justice. not followed, hence occasioning a miscarriage of on ground two, counsel stated that the Mediation consent entered on 3Oth June 2015 before the principal Judge, under paragraphs 2, 3, 4 and 5 was to the effect that Mr.David Bwambale and Mr. 1., ,l 5 Sserunjogi Nasser should step down as advocates representing the 1"t Respondent. He submitted that it was agreed that the members appoint new advocates to represent the l"trespondent, and that the Board of Directors should not appoint Helen Bwambale and Ivan Muhasa Mpondi as the Chairperson of the 1"t Respondent. counsel argued that Mr. David Bwambale continued working as a lawyer representing the l"t respondent in violation of the provisions of the consent agreement which he had himself signed. He added that the agreement was binding upon all the parties that signed it yet at the court of Appeal Mr. Bwambale continued to represent the 1"t respondent despite the fact that the aforementioned consent agreement prohibited him from doing so. counsel contended that the learned justices of appear in their judgment concurrently considered grounds 1 and 3 but onry pronounced themselves on ground 1 which was in respect of the mediation consent that had been set aside by the trial judge. He argued that they deliberately ignored to pronounce themserves on the second mediation consent that had been entered before the Principal Judge in which Mr. David Bwamba_le had agreed to step aside as counsel in this matter but defaulted. According to counsel the trial judge ignored the said mediation consent and that the justices of appeal followed the same trend despite the fact that the said consent entered before the principal Judge was never set aside. Counsel submitted that by Court allowing Mr.David Bwambale to continue representing the 1"t respondent and also allowing the testimony of Ms. Helen Biira Bwambale as the chairperson of the Board of Directors an illegality had resulted. On ground three, Counsel submitted that the testimony of pW9, a land fraud investigator, on report exhibit pEX.g showed that the Land Form 2 application for the lease in 19g2by the l"tRespondent did not disclose that the land had customary tena,ts. He added 5 that the 1"' respondent had deceived the authorities that the land had no customary tenants yet they knew of the presence of tenants. According to counsel the Survey Form 13A for instructions to survey is dated 20th December, 1982 but by 14tr, July 19g5, the process of surveying and mapping was not completed according to comments on Land Form 13A, yet the certificate of ritle was purportedly issued to the 1.t respondent in 19g3. He submitted that this indicated the fraudulent intention the l"t respondent had to defeat the interests of the appellants. counsel contended that the lst appellant negotiated with the 1"r respondent for settlement as the customary tenant on the suit land and that the 1"t respondent knew that there were customa_ry tenants on the suit tand. He submitted that the authorities were deluded by the expectation that a lease could not be granted before arriva-l at a settlement with the customary tenants on the land. counsel contended that a close scrutiny of clause 3 (iii) of the lease agreement which was granted to the 1"r respondent shows that even the lessor was aware that the suit land had customar5r tenants on it and that these were to be compensated by the lessee/ l"t respondent, though this was never done. counsel further asserted that if the trial Judge and the Justices of the court of Appeal had directed their minds to the evidence on record as a whole and re-evaluated it they would have found that the appellants were customary tenants on the suit land, and both courts would have upheld the consent agreements. counsel submitted that the oral testimonies of witnesses pwl up to PW9 show that the appellants were customary tenants on the suit land way before the respondents acquired leases on the same and that the respondents' acquisition of the leases on the suit land was fraudulent and illegai since it was done without first considering the appellants' interests. 7 counsel cited the case of Kampala District Land Board - vs- Vanansio Babweyaka and Others, Supreme Court Civil Appeal No.2 of 2OO7, for the definition of customar5r tenure. counsel submitted that the appellants/plaintiffs through their witnesses testihed that they are customary owners of the disputed land. He argued that the court of Appeal's failure to re-evaluate evidence on record and concurring with the trial Judge,s decision caused a miscarriage of justice to the Appe[ants. on ground four, counsel referred to Exhibits p6 and p7 which the appellants'lawyer wrote to the 2",r respondent before they entered into agreement to purchase the suit land. He submitted that pw7 (Muhasa Mpondi lvan) who signed on behalf of the l"t respondent while selling the suit land to the 2na respondent acknowledged that he received the said letters. He added that pw2 testified that his lawyer wrote to the l"t respondent, that the sarne was copied to the 2"d respondent and served on the 2"d respondent but that she went ahead and ignored it by purchasing the suit land which was in dispute. According to Counsel it is prudent practice for anyone purchasing land not only to ca_rry out a legal search but also to physica-lly visit the land. He contended that the 2"a respondent cannot plead that she was an innocent purchaser for value without fraud by the l"t respondent when they connived interests of the Appellants. On ground f'e, Counsel submitted that the burden of proof was on the appellants / plaintiffs to prove their case. He said not all the appellants necessarily had to testify independently in court to discharge this burden. He added that a plaintiff could discharge the burden of proof and standard of proof required of him or her to prove his or her case through other witnesses even though he/she has not personally testified in the case. counsel contended that section 717 of the Evidence Act, cap 6 of the Laws of Uganda is to notice of any to defeat the 8 the effect that no particular number of witnesses is required to 1n gave He all the nine to prove the that not all on ground six, counsel submitted that it was the testimony of all the plaintiffs' / appellant's witnesses throughout the trial that since 1996 after the eviction notice was issued by the 1"t respondent, they had been harassed. He stated that in the process their animals, houses and crops were destroyed by both the respondents. He added that the respondents destroyed all traces of their houses, gardens and trees in order that evidence of the existence of the appellants on the suit land would disappear. He said that consequently on visiting the locus no evidence of their existence could be found. counsel contended that there was need to open the boundaries in order to determine the land in dispute before determining who was on the disputed land. He submitted that without opening the boundaries it was irregular to determine the disputed land at the locus' He admitted that no mark stones were identified d.uring the visit to the locus in quo. counsel argued that the triar Judge should have identified the disputed land before concluding that some of the ptaintiffs are not on the disputed land. He reiterated that the learned justices of appeal erroneously unquestioningly followed the decision of the trial judge. In conclusion, counsel prayed that this appeal be allowed and that the judgment of the High court and that of the court of Appeal be reversed. He prayed further that judgment be entered in favour of the appellants as against the 1"t respondent with whom they had signed the consent judgment dated, 22"a April 20 15 and that judgment be entered also in favour of the appellants against the 2.d prove a case. Counsel argued that appellants / plaintiffs who testified interests of all the 16 appellants. appellants need to testify in person. this case evidence reiterated 9 counsel submitted that in the light of the illegalities, irregularities and misrepresentations on the face of the court record the trial Judge invoked the court's inherent powers under section 9g of the Civil Procedure Act to set aside the consent judgment and to proceed and hear the matter de nouo for the ends ofjustice, for both parties under the circumstances. He added that it prevented further abuse of the court process. on ground two, counsel stated that the Mediation consent entered before the Principal Judge had nothing to do with the appellants and that its cancellation would not cause a miscarriage of justice to them. counsel contended that under clauses 3 and 4 of the mediation consent elections were held where Hellen Bwambale was elected the Vice Chairperson of the company and Bwambale David was returned as the company Director in charge of Legal aftairs. counsel further stated that a minute to that effect was presented to the Principal Judge who upon receipt proceeded to appoint a judge to hear the matter in court. He submitted that when this suit started Bwambale David who had been elected to handle its legal matters, was asked to represent the l"r defendant. He added that Bwamba-le was duly given instructions and no member of the 1"t respondent protested his representation of the company. counsel contended that the trial Judge made no error in allowing the testimony of Hellen Bwambale as the vice chairperson of the 1"r respondent and at the same time allowing its elected Legal Director to represent it in court. On ground three, Counsel submitted that the appellants did not demonstrate any special circumstances that would require this court to re -appraise the evidence on the court record. He argued that the Justices of the court of Appeal re-evaluated the evidence 11 12 on the court record and agreed with the trial Judge's hndings that the appellants failed to prove their customary tenure. on ground four, counsel submitted that the Justices of the court of Appeal reevaluated and assessed the evidence on record and did not find any evidence pointing to the interests of the appellants. He submitted that there was neither a house nor a forest belonging to the 2"d appellant on the suit land. He added that the trial judge found the 2"d appellant a very untrustworthy witness, who attempted to change his testimony at the /ocus in qto. He concluded that in the absence of proof that the appellants had any interest in the suit land court could not have found otherwise. on ground five, counsel commended the finding of the lower courts and further stated that there was no evidence to suggest that the appellants had any interest in the suit land before the registration of the 1"t respondent on the suit land as title holder. oa ground six, counsel stated that this ground was well exhausted by the Justices of the Court of Appeal when they held that the purpose of visiting the /ocus inquo was to witness and to clarify on what was testified upon in court. counsel contended that parties were given opportunity to cross examine the witnesses. counsel submitted that the parties presented all their witnesses and evidence, that the visit to the locas in quo was conducted openly and that the trial Judge reached his decision on merit after a thorough consideration of the evidence on record and the law. He contended that that decision was upheld by the Justices of the court of Appeal after they re-evaluated the evidence and applied it to the law. 2"d respondent's submisslons. counsel for the 2nd respondent raised a preliminar5r point of Law and submitted that a-ll the six grounds of appeal raised by the appellants were entirely seeking this court to re-evaluate the case,a process he said which had been properly done by the first appellate Court. According to counsel grounds 1,2,4,5 & 6 only challenge the findings of the appellate court but do not fault the lirst appellate court for either applying wr-ong principles or failing to apply proper principles. He prayed for those grounds of appeal to be struck out and the appeal to be dismissed for being incompetent. on ground one, counsel submitted that the justices of the court of Appeal upheld the decision of the trial judge setting aside a consent judgment betrveen the appellants and the 1"r respondent. He stated that the court of Appeal as a first appellate court considered and evaluated the available material evidence regarding the said consent judgment and correctty held that the trial judge rightly set aside that consent judgment, it having been obtained fraudulently, illegally and without the involvement of the 2"d respondent. Further, counsel applauded the Justices of the court of Appeal for their conclusion that the l"t respondent is a company with a number of shareholders and finding that the impugned consent could not have been legally entered into without the consent of all shareholders or a compErny resolution to that effect. He stated that the learned justices of the court of Appeal found that there was no company resolution by the shareholders on record when the said impugned consent judgment was purported.ly executed by an unknown person on behalfofthe 1"t respondent. counsel submitted that the unknown person now purported.ly called Matia Bwambale and one A.N Serunjogi did not have express authority. He stated that the same could not have been effectual after the l"t respondent, through Tropical Law Chambers, challenged the authority of those who signed the consent. counsel submitted that section 53(1) of the companies Act cannot be interpreted in isolation with section 50(1) of the same Act which 7 relates to a party inquiring about limitations of the powers of the Board of Directors which is not the case in the instant appeal. counsel contended that the 2"d respondent was neither involved nor was it a pa-rty to the alleged consent judgment dated 2214/2015 between the 1"t respondent and the appellants. He stated that in its written statement of defence the 2".r respondent clearly stated that its land was comprised in LRV 4130 Fotio 5 Busongora Block 13 Plot 9. He added that the amended written statement of defence for the 2nd respondent was I-rled in court on 517 /2012 long before the consent judgment which was said to have been entered in court on 29th April, 2O i 5. counsel argued that there is no reason why the 2"d respondent was left out of the negotiations for the consent judgment other than the fact that the piece of land registered in their narnes was not in contention. He stated that the appellants' claim is that the 2"a respondent colluded with the 1"r respondent to fraudulently steal the appellant's properfy. He added that it was a claim denied by the 2"d respondent. He contended that there is no way a valid consent judgment could be entered into without the involvement of the 2,,a respondent. counsel further submitted that the consent judgment was entered into illegally, fraudulently and that it was contrary to court policy. He argued that once an illegality was brought to the attention of court, it overrode all questions even of pleadings and the judge was thus obligated and justihed to set it aside. On ground two, counsel stated that the ground relates to the mediation consent where the 2".1 respondent was not involved at all in negotiations between the appellants and the l"r respondent. counsel argued that the 2"d respondent was therefore not a party to the consent judgment, it could not be binding on it. Counsel further stated that the mediation was purely in respect of the management problems of the l"t respondent as a company to which l4 the appellants were not parties and mediation consent did not concern the land registered in the name of the 2"d respondent or even the l"trespondent at all. counsel submitted that as such failure by the court of Appeal to make any finding or consider it did not cause any injustice as it had no effect on the final outcome of the suit regarding ownership of the suit land. counsel contended that the appellants' a-rguments against Mr. Bwambale David's instruction to represent the 1"t respondent are superfluous for there is no evidence that the l"t respondent had actually withdrawn instructions from him. oa ground three and five, counsel submitted that each of the appellants/ plaintiffs was duty bound to prove their ownership on the suit land independently, considering that this was not a representative suit. He added that the original suit was not brought as a joint or representative suit. He further argued that even though the appellants were claiming the same remedies from the respondents, each of them had staked a sepa-rate and distinct claim to a specific piece of the suit land and not the suit land in its entirety. counsel contended that it was incumbent on each of the plaintiffs / appellants to adduce evidence to prove his or her claim as to how and when he or she acquired the same. He stated it was even more incumbent for each of them to show to the court at /ocus where the particular portion claimed by each one of them was located. Counsel argued that there was no evidence from the plaintiffs/appellants who testified to show or prove the alleged interests of those others who did not testify. He submitted that there was no evidence to show when and how they each acquired their alleged portions since the evidence on record shows that the plaintiffs/ appella,ts did not acquire the suit land as a group or at the same time. 15 counsel contended that the leamed justices of appeal properly analyzed and evaluated the evidence on record. He stated that the proceedings at the locas in quo and the submissions of the parties bore this out. He observed that the first appellant testified that he first came on the suit land in 1959 and stayed with Zowe Muhindo, who later gave him land in 1992. He noted further that the w.itness did not know how and when the said zowe got the land. counsel stated that PW2 claimed to have got the land in the i94os and later he said it was in 1959 and that Muhiwa was the owner arnong others. That, too, was correctly evaluated by the justices of appeal, according to counsel. counsel submitted that the learned justices of Appeal rightly upheld the trial judge's correct conclusion that the record showed that the land was inspected by the then controlling authority and that led court to find that fraud was not proved by the appellants. counsel contended that the evidence of pwg was not worthwhile since he was not a quatified fraud investigator. counsel added that from his evidence, PW8 showed he was a self-confessed liar. counsel stated that PW8 was biased and had assumed the validity of the appellants' claims without evidence to support those claims. on ground four, counsel submitted that the learned justices of the court of Appeal correctly re-eva-luated the evidence and applied the relevant law and correctly upheld the learned trial judge's finding. He added that after a careful evaluation of the evidence on record, the learned trial judge rightly found that the 2"d respondent purchased the suit land without any knowledge of the interests a-lleged by the appellants because no such interests existed in fact. counsel further contended that the 1"r respondent was registered as owner of the suit land in 1983 having had the same leased to them by the uganda Land commission who was the controlling authority. He stated that this was in accordance with the legal regime obtaining then. counsel went on to state that the appellants did not 16 adduce sufficient evidence to prove that they or any of them enjoyed a customary tenure on the suit land. counsel submitted that the legal regime being that obtaining in i983, the consent of the appellants was not required in order for the Uganda Land commission to grant the suit land in leasehold to the l"r respondent. He added that the acquisition of the suit land by the l"t respondent in the absence of any developments by the appellants was not fraudulent in any way. counsel contended that the learned trial judge therefore came to the correct conclusion that the lst respondent followed the proper and due procedure in obtaining registration of the suit land in its name. He reiterated that no sufficient evidence was adduced by the appellants to prove any fraud to the required standard concerning the acquisition and registration of the suit land in the name of the 1"t respondent. counsel submitted also that the 2nd respondent therefore purchased registered land on the basis of the certificate of title of the l"t respondent. He stated that there were no caveats or other encumbrances placed by the appellants or any of them on that title and that uncontroverted evidence on record showed that the 2"d respondent had been in physical possession, use and occupation of the said land as a tenant of the 1"r respondent since 1996. He added that at the time of purchase, there was no evidence of any of the appellants' occupation on the portion of the land purchased by the 2"d respondent. counsel further stated that as such there were no interests of the appellants or any of them in that portion now registered in the name of the 2"d respondent which the 2"d respondent could have known of and set out to defeat by having itself registered as transferees thereof. He contended that the 2",r respondent obtained good title from the first respondent who had itself validly obtained a lease on 14th March, 1983 from the Uganda Land Commission. 77 Oa ground six, counsel submitted that the learned justices of appeal cannot be faulted for frnding as they did. He stated. that they rightly found that there was no evidence to show that the appellants had any features they could relate to on the suit lands as belonging to them. He contended that the court of Appeal found that the trial court applied the proper principles on /ocus in quo. counsel further stated that the proceedings at the loans in quo were properly carried out and that the appellants were each given an opportunity to speak and show where their alleged customar5r interests were. He contended that the opening of the boundaries would not by itself have shown the alleged customary holdings, if any, on the suit land. counsel contended that even if the appellants had been evicted from the suit land, it would still have been possible for them to point to specific areas where their alleged interests were on the land registered in the name of the 2"a respondent. counsel argued that had there been any truth in their claims the appellants would have shown the specific places which they occupied but none of them could pin point any specific portion. counsel argued that this confirmed the 2"d respondent's contention that at the time it acquired the land now registered in its name, none of the appellants had any interest in, or was in possession of, any part of the suit land. counsel argued that the opening of the boundaries would have been of no assistance since the entire land in issue was registered in the name of the 2"a respondent. Appellants' submissions in reJoinder on the preliminar5r point of law raised, counsel submitted that the six grounds of appeal do not seek to re-evaluate evidence as a whole, but rather that they called for this court to consider the 18 evidence which was on record and was neglected by the court of Appeal. counsel for the appellants submitted that the competent director exercised the powers vested in the Board of Directors of the company and that she had powers to enter into a consent that is binding on the company without need for a resolution. counsel further argued that the said consent agreement could not be illegal or fraudulent since the director and the secretar5r of the 1"r respondent company were present and personally signed the consent on behalfofthe 1"t respondent. counsel contended that in the amended written statement of defence, the 2"d respondent pleaded that the 2"a respondent is a bonafide purchaser for value without notice and that as such the consent between the 1"r respondent and the appellants did not aJfect her interests. counsel added that since the consent agreement was between the l"t respondent and the appellants, the 2nd respondent's involvement in their negotiation was unnecessary. counsel submitted that the consent judgment entered between the l"t respondent and the appellants was validly entered and there were no vitiating factors which warranted setting it aside. counsel further realfirmed that Mr. David Bwambale's continued. representation for the l"r respondent was without instructions and that it was in violation and contempt of court orders. counsel submitted that PW9 Mr. Mugabe Robert was a qualified fraud investigator and that all the evidence he produced in court was from an informed and qualihed person. counsel contended that the opening of the boundaries was important for the appellants in order to enable them identify the respective lands where they used to live, putting into consideration that this land has been intermingled with other lands. counsel 19 submitted that this was done intentionally to hide any traces of former settlements by the Appellants. Consideratlon of the court. 20 This is a second appeal. It is against the decision of the court of Appeal as a first appellate court. The duty of this court regarding this appeal is spelt out in Rule 3o of the Rules of this court. Rute 3O(1) pertinently states: '(1f lllhere the Court of Appeal has reversed, aflirmed or varied a decision of the High court acting in its orlginal jurlsdiction, the court may decide matters of law or mixed law and fact, but shall not have discretion to take additional ewidence.' Suffice to say that as a second appellate court this court is not required to re-evaluate the whole evidence unless it is found that the first appellate court failed in its duty to re-evaluate the evidence so as to arrive at its own conclusion. The second appellate court will interfere with the conclusions of the court of Appeal if it appears that in consideration of the appeal the court of Appeal misapplied or failed to apply the principles set out in such decisions. The lead judgment of Oder JSC in Banco Arabe Espanol v Bank of Uganda,SCCA No.8 of 1999 and Kifamunte Henry v Uganda, SCCA ItIo. 1O of 1997, not to mention scores of others, adequately dealt with the discretion of this court on second appeals. Before I embark on the evaluation of evidence in this appeal let me address the point of law raised by counsel for the second respondent. Counsel contended that the appellants,grounds of appeal were not properly formulated, that they are asking this court to re-evaluate evidence which, according to him, was done by the first appellate court. On his part counsel for the appellants opposed the objection and contended that the grounds of appeal were well articulated and that they sought for consideration of the evidence on record because this had been neglected by the lower Courts. I have perused the appellants' Memorandum of Appeal and grounds of appeal embodied in it. with respect to the contention by counsel for the second respondent, I do not see an5rthing wanting in the formulation of the grounds. I find that the appellants, grounds of appeal were formulated in accordance with Rule g2 of the Rules of this Court. Accordingly, counsel's objection has no merit. I will now turn to the merits of the appeal. In grounds I and 2, the appellants'contention relates to the setting aside of a consent judgment and the negation of the mediation consent by the lower courts. I have had opportunity to look at the consent judgment in issue between parties to this appeal. The Assistant Registrar of the High court at Fort Portal on 2oth May,2ol5 recalled the said consent judgment citing the reason for the recall as the participation of A.N Sserunjogi as counsel for the hrst respondent when the same counsel had been lawyer for Ivan Muhaasa Mpondi in a suit instituted against the first respondent. The recall of the consent judgement was in the wake of a complaint by 1awyers of the first respondent, Tropical Law Advocate, who claimed that they were sidelined and had not participated in formulating the consent judgment. They alleged that the people purporting to be directors and lawyers of the hrst respondent had consented to it. Upon perusal. of the said consent judgment, the first page shows that all the parties to the suit, that is to say all appellants, the first respondent and the second respondent were involved in the consent judgment. However, on the second page it is only counsel for the appellants and the alleged counsel for the first respondent as well as an unknown person who signed for the first respondent. In effect the second respondent was never a participant. The trial judge on 1Sth September, 2O2O upheld the decision of the Registrar to recall 27 judgment for having ground 1 fails' been wrongly obtained. Consequenfly, The justices of the court of Appeal concurred with the finding of the trial court and in my opinion, they were right to do so given that counsel Sserunjogi from M/s A.N Sserunjogi Advocates signed on the consent judgment as a lawyer for the first respondent when neither he nor the firm he purported to represent were lawyers for the first respondent. This was an illegality on the face of the consent judgment and I find that that alone warranted its recall. Further, the consent left out the input of the second respondent yet it was party to High court civil suit ooo3 of 2oo3. I have no doubt in my mind that the Registrar was correct to recall the consent judgment because of the irregularities related to above. Simitarly, the trial court and court of Appeal correctly confirmed the decision of Registrar. Needless to say, the civil suit to which the said consent judgment related was set dovrn and heard on merit by the tria-l judge and appealed to the court of Appeal. I am of the view it would have been more gainful for the appellants to dwell on the merits of the suit rather than investing their effort in seeking to reinstate an illegal consent judgment. In ground 2,1 do not appreciate the concerns of the appellants on counsel David Bwambale representing the first respondent. Justified concerns, if any, on David Bwamba_le,s conduct should have come from the side of the first respondent not the appellants. since there are no complaints from the side of the first respondent company I see no reason why a legal person that the first respondent is, cannot engage an advocate of its choice. It is my view that the said counsel has instructions from his client. I do not find merit in grounds L and 2 of this appeal. The grounds must fail. on ground 3 the appellants fault the justices of appeal on failure to re-eva-luate the record, following their finding that the appellants failed to prove customar5r tenancy. At the trial, four issues were formulated for determination. The first was whether the appellants/plaintiffs had any interest in the suit land. I am satisfied that the trial judge did a good job in his evaluation of the evidence available from both parties. The trial judge evaluated the evidence of some of the appellants/plaintiffs who testihed in court and ttre evidence touching on the interests of those appellants who did not testify at the trial. The trial judge found that PWI yorunimu Baluku, the second plaintiff, was not on the suit land at the time it was given to the l"t respondent by the Ridge Leader. At the locus in quo the trial judge did not see any house or forest belonging to the second plaintiff on the suit land to support PW1's testimony earlier in court. What is more, the trial judge found him to be a very untrustworthy witness who even attempted to change his testimony at the locas in quo. The trial judge concluded that the witness had no interest in the land but that rather he was just a trespasser. concerning P[I2 Francis Maklvano, the trial judge on his visit to the locus in quo found that his kibanja was located quite far from the suit land on a separate piece of tand, which also belonged to the first respondent /defendant, but did not comprise the suit land. The trial Judge concluded that PW2 owned absolutely nothing on the suit land, and that he had no claim to customarl interest in the land. On PtrI3 Mulewa Isebahasa, the trial judge found that he was very untruthful in his evidence and that he fa-lsely claimed to have been given land by late Zowe and to have been staying on the suit land since 1950. The trial judge observed at the locus in quo that Zowe,s land lay outside the suit land. The trial Judge noted also that pw3 had been convicted by court for criminal trespass on Zowe,s land. 24 He concluded that PW3 was a trespasser on claiming to own late Zowe's land there. the suit land by The trial Judge weighed the evidence adduced by pI[], yoronimu Baluku, against that of the defendants regarding the 4tn plaintiff, Mbusa Bethel, who never testified to prove his claim on the suit land. PW1 Yoronimu Baluku stated that the 4rh plaintiff was son to late Zabuloni Bitaba who had a kibanja on the suit land in the portion now belonging to the second respond.ent. After evaluating the evidence regarding the claim by the 4th plaintiff, the trial judge found that PWl Yorunimu Baluku had been deceitful because the 4th plaintiff could not have had an interest in 20ll underthe name of his late father who claimed no interest in the suit land at the time he died in 2008. Court concluded that the 4th plaintiff had no interest whatsoever in the suit land. On PW4 Nyinabarongo wife of Masereka, the trial judge stated that at the locus in quo, court had found no grave of the alleged mother on the suit land and that since pw4 had failed to account for her false claims of having had a banana and coffee plantation on the suit land her testimony was unreliable. The trial judge concluded that she had no interest whatsoever in the suit land and that she was a mere trespasser. Regarding PWS Anderea Bagasaki, the trial judge found that he was a very untruthful witness. Court noted that pW5 had fa-lsely claimed to have had houses on the suit land, but that none was seen during the visit to the locus in guo. pwS could not point to any garden he claimed as his on the suit land. The trial judge concluded that PWS joined the suit either out of ignorance or merely as a busy body but that he had no interest whatsoever in the suit land. On PtrI6, IYyansio Tembo, the trial judge found that at the loctts in quo there was no spot on the suit land pW6 could point at where his houses were before they were allegedly demolished by the second respondent's agents. court found that there were no trees at 25 all, contrar5r to what PW6 had testihed in court. The judge concluded that PW6 was just a trespasser with a false claim of interest on the second respondent's land. Concerning the 17h plaintiff, Vanisi Kabugho, she never testified at the tria-I. Court found her house located on part of the suit land registered in the name of the first respondent/defendant. pW7, Muhasa Ivan Mpondi, told court that the 17th plaintiff was arnong the people who were compensated for their crops and had been told to leave the suit land but that she defaulted. The trial judge found that the 1/ttt plaintiff was never given land by the Ridge Leader and that she was not known to the registered proprietor. Court concluded therefore that she was another trespasser on the suit land. The Sth plaintiff, Tomasi Bishogo, did not testify at trial. The trial judge relied on the evidence of DWI and DW2 the Ridge Leaders. DW2 stated that he knew Tomasi Bishogo and that Bishogo's land was at Nyamiragara Trading Center which is in the neighborhood but not on the suit land. Similarly, the 6th plainttff, Mikairi Masereka, did not testify at the trial. The trial judge relied on the evidence of DW2 who testilied that Mikairi Masereka was a cultivator on the first respondent's other land in the extension, which was sepa_rate from the suit land. Regarding the EE plaintiff, Boniface Bwambale, the trial judge relied once again on the evidence of DW2 who identified Boniface Bwambale as a resident of Muhokya who had never been on the suit land. The trial judge relied on the evidence of DW2 for the rest of the plaintiffs who did not testify. DW2 identihed the 9th plaintiff, Bwambale son of Kambere Herizoni, as a resident of Mahango but not a cultivator on the suit land. DW2 denied knowing or having ever seen the 1O6 plainti$ John Kibwana, at all. Concerning the 26 12th plaintiff, Masereka Stephen, DW2 stated that he first saw him in 2O13 among the people who came to the suit land with the 6th plaintilf, Mbusa Bethel, with the intention of grabbing it. DW2 also identified the 15th plaintiff, Biteyo son of Makuha, as previously a cultivator on the first defendant,s land, who after his crops were compensated for had left the suit land. The trial judge after evaluation of the evidence of the appellants and weighing it against that of the respondents as shown at length above, concluded as follows: "Alter carefully evaluating the evidence as a whole on the Issue No. 1, it is inevitable to conclude that the plaintiffs totally failed to prove their claim of interest whatsoever in the suit land. They failed to show how they acquired any interest in the suit land. They also failed to account for their occupation on the suit land either through the Ridge Leaders who traditionally own the land, or the registered proprietors of the suit land. Therefore, the plaintiffs on the suit land or those claiming any interest therein whatsoever are trespassers. Issue No. 1 is answered in the negative." In its lead judgment, the Court of Appeal after re-evaluation of evidence relating to customary ownership of the suit land as presented by the appellants, stated: "As rightly held by the trial Judge, evidence on record shows that the land was inspected by the District Land Committee in the presence ofthe then sub county chief, the parish chiet the Chairman of the Abalisa Kweterana and the then Managing Director of the I't respondent. The land Committee's findings showed that the land did have customary tenants on it. The appellants on the other hand failed to prove the element of fraud on the respondent's part. Under S. 64 (i) of the Registration of Titles Act, the proprietor of land or of any estate or interest in land under the operation of the Act shall except in the case of fraud hold the land, or estate. Under Section 77 of the same Act, any Certificate of title procured by fraud, shall be void as against all parties who are prirry to the fraud. It is trite law that when a person procures registration to defeat unregistered interest of others, then such person is guilty of fraud. Clearly, the allegations of fraud by the appellants fell short of the principles laid down in the case of Fredrick Zaabwe vs Orient Bank & S others, SCCA NO.4 of 20,06. I therefore find no reason to interfere with the learned trial Judge's finding that the appellants failed to prove their customary ownership on the suit land. Grounds S and 6 also fail. Grounds 7 and 8 have been resolved while resolving grounds 5 and 6 above. They also fail accordingly." The trial judge had opportunity to see the demeanor of the witnesses, he carried out a /ocus visit on the suit land and thereafter evaluated the evidence on record. ultimately he found that the appellants had tailed to prove their customary ownership of the land. The Court of Appeal in my view correctly upheld the finding of the trial judge after re-evaluation of the evidence. It is apparent from both the judgment of the trial court and that of the Court of Appeal which I have reproduced in this judgement, that the appellants who testified taited to prove customar5z ownership of the suit land and that during the /oans visit they failed to show the trial judge where their land was before it was allegedly taken over by the second respondent. I do not agree with the submissions of counsel for the appellants that because the visit to the /ocus in quo was done aJter ten years, the appellants would not trace or show where land was or where their various property was situate before it rvas destroyed. Consequently, I do not find any I valid reason to depart from the concurrent findings of the two courts below. Given my findings pertaining to ground 3, grounds 4,5 and 6 must fail also. This appeal, having been entirely unsuccessful, is dismissed with costs to the respondents here and in courts below. tL Dated at Kampala this day of ... 2020 PAUL MUGAMBA JUSTICE OF THE SUPREME COURT 29 5 10 15 20 25 30 THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT I{AMPALA [COR $M: OPIOAWER\ TIBATEMWA.EKIRIKUBINZA; MUGAMBA; TUHNSE; CHIBITA, JJ.S,C,] CIVIL APPEAL NO. 02 OF 2O2O l.MuLEwa rsEBArrAsA 2.YORUNIMU AAIUXU 3. FRANCIS MAXWANO 4.MBUSA BETHEL S.TOMASI BISHOG1O 6.MIKAIRI MASEREKA T.BONIFACE BWAMBALE S.BWAMBALE S/O KAMBERE HERIZONI g,JOHN KIBUIANA IO.TYINA ABARONGO W/O MASERIKA 1 I,MASER"EI{A STEVEI{ I2,NYANSIYO TEMBO l3.NELSON KAMBIDI |4.BITEYO S/O MATUHA l.MUHINDO SIRIRYANA :: : ::: ::: :: :: ]:: : : APPELLANTS [Appeal aising from the decision of the Court of Appeal at Kampala in Civil Appeal No.23 of 2017 bejore (Cheboion, Musotd & Madrama, JJA) dated 2Vh January 2020.1 dLUDGIIENT OF TIBATEMWA-EKIRIKUBINZA, JSC. I have had the benefit of reading the judgment of my learned brother Paul Mugamba, JSC. I agree with his analysis and decision that this appeal should be dismissed. I also agree with the Orders he has proposed. Dated at Kampala ttris ..21I day of ..P.skv.ryIlqsr- ..2020. PROT. LILLIAN TIBATEMWA-EKIRIKUBINZA JUSTICE OF THE SUPREME COURT 7 / BDTWEEN AND r.M/S WESTERN UGANDA IMPORTERS & DISTRIBUTORS LTD 2.M/S MIAKATOZI GROWERS CO-OPERATMS UNION LTD :::::RESPONDENTS 35 CIVIL APPEAL NO. 02 OF 2O2O APPELT,ANTS 1. MS. WESTERN UGANDA IMPORTERS & DISTRIBUTORS LTD 2. MS/ NYAKATONZI GROWERS CO-OPERATIVES UNION LTD ::::::::RESPONDENTS (Appeal frorn the Judgment of the Court of Appeal of Uganda at Kampala by Cheborion, Musota, and Madrama, JJA. Civil Appeal No. 23 of2017, dated 27th day ofJanuary 2017) JUDGMENT OF OPIO.AWEBI, JSC As all other members of the Court also agree with the judgmcnt and orders proposed by Hon. Justice Mugamba, JSC, by unanimous decision this appeal is dismissed with costs. r o4- Dated at Kampala this.......2 3.. day of 2020. olrl ITI JUSTICE OFTH SUPREME COURT / , ;,: t,,. THE REPUBLIC OF UGANDA IN THE SUPREME COI.]RT OF UGANDA AT KAMPAI,A (Coram: Opio'Aweri, Tibatemwa-Ekirikubinza, Mugamba, Tuhaise, Chibita, JJSC) BETWEEN 1. MULEWAISEBAIIASA & 14 OTHERS AND THE REPUBI.IC OF UGANDA !N THE SUPREME COURT OF UGANDA AI KAMPATA Percy Night Tuhoise JUSTICE OF THE SUPREME COURT I 2 3 4 5 6 7 I I (CORAM: OP,O-AWERi, EKIR,KUBINZA-TIBATEMWA, MUGAMBA, IUHA,SE AND CH'8'IA JJ.SC.) ctvtt APPEAT No.02 0r 2020 BETWEEN MUIEWA ISEBAHASA YORUNIMU BATUKU IRANCIS MAKWANO MBUSA BETHET IOMASI BISHOGO MAKAIRI MASEREKA BONIFACE BWAMBALE . BWAMBATE S/O KAMBERE HERIZONI APPETTANTS . JOHN KIBWANA IO. NYINA ABARONGO W/O MASEREKA I 1. MASEREKE STEVEN I2. NYANSIYO TEMBO I3. NEISON KAMBIDI 14. BTIEYO S/O MAKUHA I5. MUHINDO SIRIRYANA AND 1, MS WESTERN UGANOA IMPORTERS &DISTRIBUTORS [TD. 2.. M/s NYAKAIONZI GROWERS CO-OPERATIVES UNION tTD i\ RESPONDENTS [Appeal from a decision of the Courl of Appeal at Kampala (Cheboion, Musota and Mad.rama, JJA) dated 2Vh January, 2020 in Ciuil Appeal No. 23 of 20171 ruocmrrur or rurnls I hove hod the benefit of reoding the leod judgment of Hon Juslice Mugombo, JSC. I ogree with the onolysis of evidence, decision ond conclusion thol this oppeol hos no merit ond il should be dismissed with costs to lhe respondents. Doted ot Kompolo, tn,, -------Z--1:- doy of od ! 2020 t THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA (CORAM: OPIO-AWERl, TIBATEMWA'EKIRIKUBINZA, MUGAMBA, TUHAISE, CHIBITA, JJ.SC) CIVIL APPEAL NO: 02 OF 2020 BETWEEN 1. MULEWAISEBAHASA 2. YORUNIMU BALUKE 3. FRANCIS ilAKWANo 4. MBUSA BETHEL 5. TOMASI BISHOGO 6. MAKAIRI ITASEREKA 7. BONIFACE BWAMBALE 8. BWAMBALE S/O KAMBELE HERIZONI 9. JOHN KIBWANA 10. NYINA ABARONGO WO MASEREKA 1I. MASEREKASTEVEN 12. NYANSIYOTEMBO 13. NELSON KAMBIDI ,I4. BITEYO S/O MAKUHA 15. MUHINDO SIRIRYANA 1. MS WESTERN UGANDA IMPORTERS & DISTRIBUTORS LTD 2. M/S NYAKATONZI GROWERS CO'OPERATIVES UNION LTD:::::::: ::::::::::::RESPoNDENTS lAppeat torn the decis'ton ol the Coudol Appeal at f\ampele (Chebodon, lusote end Madrame, JJA) deted 276 Januery, 2020, in Civil Appeal tlo.23 ol 2011 JUDGMENT OF CHIBITA, JSC I have had the benefit of reading in draft the judgment of my learned brother, Hon. Justice Mugamba, JSC, and I agree with him that the appeal should be dismissed with costs to the Respondents DatedatKampala uir......LT.T......dayof M.......,.........2020 Lt'.CL Mike J. Chibita JUSTICE OF THE SUPREME COURT APPELLANTS AND t