Yakobo M.N. Senkungu and Others v Giradesi Katonya and Others (Civil Appeal No. 17 of 2014) [2017] UGSC 94 (6 April 2017)

5 THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA CIVIL APPEAL NO, 17 OF 2OL4 10 15 25 30 CORAM: (KATUREEBE CJ, ARACH-AMOKO, NSHIMYE,OPIO-AWERI MWONDHA JJ.SC). BETWEEN APPELLANTS AND CRESENSIO MUKASA RESPONDENT lAppeal from the judgment and Decree of the Court of Appeal Civil Appeal No. 35 of 2006 before the Justices (tlon. Justice S.G. Egu'au JA, Hon. Justice A.'fwinomujuni JA and Hon. C.N.B.Kituntba Jil dated 26h July 2004 JUDGMENT OF A.S NSHIMYE JSC This is a second appeal arising from the judgment of the High Court sitting at hlasaka de[vered by V.F.[/usoke- Kibuuka J on 3r/L/2006. The brief background to the appea[ as stated in the lead judgment of the Courl of Appeal is that: l 1 a 20 1. YAKOBO M.N.SENKUNGU 2. JAMES KENJURA 3. JOHN RWAKAMURANGA 4. GIRADESI KATONYA 5. YONAHA RWAKAARO ,l I 5 -ihe respondent is a holder of Letters of Administration of the estate of the late Guisite Nakaima who is undisputedly claims was his grandfather. Nakaima died on 13th June 1941 leaving behind two pieces of lad, the subject of this appeal, situate in lr/awogota Btock 30, Plot No. 1 at Kabagoma of about 641 acres and Btock 31, plot No. 1 at Ntyazo of about 623 acres. ln i986, the respondent on obtaining the letters of administration sought to transfer the land into his names only to discover that it had long been dealt with by other peopte. The Ceftificate of Titte which was exhibited in court showed that on 3'd August 1978, under instrument No. MSK 54168, a one Peter Ssekasiko became registered proprietor with an alleged transfer from Nakaima. Three months later, on 27th November 1.978, Ssekasiko transferred the land to one Eugene Ssonko under instrument No.MSK 54497. On 25,h January 1980, under instrument No.lr/SK 6000, the [and was transferred and registered in the appe[[ant. Finatty the land to the on 30th August, 1989 the first 10 15 20 )q, names of Yakobo [rlutendwa other Senkungu, the first appeltant transferred respondent brought a suit Couft for orders that the appe[[ants. in l/asaka The High against the appe[[ants Certificate of Title be cancetled on ground of fraud. 2 I' 5 lSsues at High Court 1. Whether or not Gusite Nakaima transferred the suit propefties to anyone. 2. Whether the Plaintiff has a cause of action against the Jd, 9 and 6h defendants. 3. Whether any fraud was committed if so by who. 4. Whether there was a nexus between that fraud and other defendants. 5. Whether the plaintiffs are entitled to the reliefs sought. I 10 15 The High Court judge answered a[[ the above issues in the negative save for issue 2. He inter alia held: 20 Vtthough not all transfers of land are registered immediatety, a period of 37 years appears to be too long for registering a transfer executed by the late Gusite Nakaima before his demise in 1941, to have been kept safely to be used by Peter Ssekasiko in 1987. The probability that the late Gusite Nakaima could have executed a transfer of both suit properties in favour of Peter Ssekasiko after 1941 is even less tikety because he was dead. 25 ,/ 3 5 10 15 20 25 Upon the evidence before court and upon the balance of propefties, Court finds that the late Nakaima is unlikely to have executed a transfer of the suit propefties to anyone". "The evidence produced by the Plaintiffs does not show that Eugene Ssonko to whom Peter Ssekasiko transferred the suit properties, was priuy to Ssekasikob alleged fraud, if there was any. Likewise, thereb no evidence of any nexus of fraud between Eugene Ssonko and Yakobo before court. Court is therefore unable to conclude ... that Yakobo Ssenkungu, the 1* defendant obtained registration of the suit properties through fraud. As to the 2d to the 7 defendants, kilure to prove fraud on the part of the I't defendant who transferred title to Mawogola Block 30 plot 1 to them would mean that they could not be priuy to unproved fraud'. Dissatisfied with the High Court decision, the respondent appealed to the Court of Appeat on the fottowing grounds: Grounds of Appeat at Court of Appeat 4 / 5 1. The learned trial judge erred in law and fact when he answered issue no.l in the negative, dlsbelieving the evidence adduced in support of the claim. 2. The learned tnal judge erred in law when he failed to evaluate the evidence before him, thus he arrived at a wrong finding. There was no evidence to show how PeteroSsekasiko got registered on the land, of which also the trial judge had made a finding that there was fraud. The Courl of Appeat found in favour of the current respondent. The appetlants, being dissatisfied with the Court of AppeaI decision, appealed to this Court on the fo[[owing grounds: 1. The learned Justices of Appeat erred in law and fact when they held that the Appellants acted fraudulently in acquiring the Certificate of title to the suit land. 2. The learned Justices of Appeal erred in law and fact when they held that the Appellants were not bonafide purchasers without notice of fraud for the suit land. 10 15 20 25 5 5 3. The learned Justices of Appeal erred in law and fact when they granted prayes originating from an illegal claim. 4. The leamed Justices of Appeal erred in law and fact when they failed to evaluate the evidence and shifted the burden of proof to the Appellants thus arriving at a wrong conclusion. Representation: At the hearing of the appeal, the ].'t and 2nd appel[ants were not represented by counsel and none of them appeared in cour1. The 3'd, 4th and 5th appellants were represented by lr/r. John lr/ary Mugisha. The respondent was represented by [/r. Fredrick Ntende and lr/r. PauI Kuteesa. Both counseI adopted their written submissions which this court has carefully read and considered in resolving the issues raised in this appea[. The appeltants, in their written submissions argued the grounds independently but abandoned ground 3 of the memorandum appeat. The respondent on the other hand argued a[[ the grounds jointty. 10 15 20 25 6 / s The Court shatl therefore resolve the remaining 3 grounds - independently in the order in which they were raised and argued by the appe[[ants. Submissions of the appellants. Ground 1 The appettants faulted the learned Justices of appea[ for finding that there was fraud on the part of the 1't Appellant which could be imputed on the 2nd to the 7th appellants. 10 15 20 25 The appellants, while suppofting the findings of the learned trial judge submitted that for fraud to constitute a ground for cance[lation of certificate of title, it must not only be proved to reside in the transferee but it must also be proved to have been actua[ as opposed to mere suspicions. That by the learned Justices inferring from the failure of the l't appe[lant to enter appearance in the triaI court to constitute a fraudulent intention in absence of specific proven fraud on the part of the appetlants (3'd-5th) was mere suspicion and speculation. That the altegation of fraud had to be strict[y proved. ln support of the foregoing proposition, counseI relied on the authorities of Fredrick J.K. Zaabwe us. Orient Bank Ltd & Otherc SCCA No. 141 of 2006 and Kampala Bottlers ltd vs. Damanico (U Ltd SCCA No. 22 of 1992. 7 ) 5 10 15 20 z> Ground 2: The appellant submitted on this ground that, it was erroneous for the learned Justices of appeal to find that evidence at the trial showed that the appellants became aware of the respondent's claim and had witnessed his physical occupation of the [and. That there having been 3 proceeding transfers, the appellants had no duty to inquire into the bona fides of those earlier transfers. He argued that fraud by a person from whom a bona fide purchaser for value obtains title does not necessarity affect the purchaser. ln support of this argument, he relied on the authority of lmelda Ndiwawangi Nakedde us. Rony Busuulwa Nsereko and another (1997 HCB 73 . The appellant further argued that the oral evidence from the respondent notifying them of a pending suit on the said property was not notice to them of any other occupant on the said tand. Second[y there was no courl injunction forbidding any transaction on the [and. He contended that the appetlant had carried out due ditigence by visiting the land registry and the land itsetf. When they attempted to evict the respondent, the matter was referred to the L" appettant who obtained a successfuI eviction of the respondent through the lr/agistrate's Court. That therefore the finding of the [earned Justices of Appeal that the appellants' failure to evict the 8 l 5 10 15 respondent after they had acquired interest in the land was erroneous in the absence of proof of actual fraud. The appetlants prayed this Court judge that there was no evidence not bona fide purchasers for value the finding of the trial that the appel[ants were notice. independent btanket and to uphotd to prove without Ground 4: The appellants argued that the learned Justices of appeal erred in on record as a law and fact when they faited to take the evidence whole and subject it to fresh scrutiny and make their findings. That the learned Justices resorted to making sweeping observations and conclusions. These conclusions were that: ordinary prudence and caution in the circumstances of this case hastily [and. made, followed by reasonable person not to engage in the 5th appe[lants did. That payment was a transfer and then settlement on the That these were not acts of an honest deating. Another conctusion was that the respondents did not seek to evict the appellant we[[ knowing that their newly acquired interest was in bad faith. The appetlants prayed that the appeal be altowed as prayed with costs. woutd have informed any transaction as the 2nd to 9 ) 20 s Respondent's submissions:- 'ln repty, counseI for the respondent supported the findings and conctusions of the Court of Appeal. He argued that the [earned justices of Appeal rightty carried out their duty of re-evaluating the evidence on record and arrived at the right inference that the 10 transfers of the various parcets of [and to the appellants was tainted with fraud, to which fraud the appellants were fu[[y aware and took advantage of. 15 20 25 The respondent further argued that it was not enough to say that they purchased the land after conducting a mere search on the titte. The evidence showed that the appetlants had atso visited the locus and found it in occupation of the respondent and his brother and this put the appeltants on notice of the respondent's interest on the suit land and were bound by it. For this proposition, counsel retied on the authority of Uganda Posts & Telecommunications vs. A.K.P.M Lutaaya SCCA NO. 36 of 1995 wherein Courr inter atia held that: / a person purchases an estate whlch he knows to be in occupation of another other than the vendor, he is bound by all the equities which the pafties in such occupation may have in the land. ln repty to the appeltant's submission that the Court of Appeat erroneous[y shifted the burden of proof to them, counseI submitted 10 5 Court having found that the transfer to Peter adduce any facts to prove that theY 10 value without notice. the burden of proof shifted to purchase and transfer was fraud. The appellants did not were bona fide purchasers for Anatysis and consideration by Couft. ln resotving the appeal before us, I am alive to our duty as a second appeltate court. This duty entails us to consider and 1s determine whether or not the Court of Appeat adequatety re- its conclusions evaluated the evidence on record before coming to and findings. See Avect Sam vs Uganda Criminal Appeat No.2015. (SC). The Court of Appea[ came to the conclusion that there was fraud on the part of the 1"t appettant which could be imputed on the 2nd to 5th appe[lants. ln this couft's earlier decision of Kampata Bottlers Ltd vs. Damanico (U) Ltd SCCA No. 22 of 1992,Wambuzi CJ (as he then was) stated that fraud must be attributab[e to the transferee either directly or by necessary implication. The question which then follows is: Was the fraud of the I't appellant imputed to the 2d - 5h appellants? that the High Ssekasiko was the appetlants bonafide and as a result of fraud, to show that their without notice of the 20 1,1, 5 10 15 20 25 The Court of Appeat stated that under Section 106 of the Evidence Act, the burden of proof in civil proceedings rests upon the person with any fact within his or her knowledge and who desires court to give judgment as to any tegat right or tiabitity. Therefore, the authenticity of the transfers to the L't appeltant was a fact within the know[edge of the L't appellant but he adamantly refused to appear in court to give his testimony to this effect. The Court found that in absence of this evidence, and the fact that there was no occupation of the tand by the appe[lants for 11 years after the purpofted transfer from the origina[ proprietor (Gusite Nakaima), irresistibty pointed to an inference of a fraudulent transfer that affected the subsequent transfers to the 2nd-5,h appeltants who had actual notice that the suit land was subject to couft proceedings. Section 92 Q) of the Registration of Tittes Act provides that: Upon the registration of the transfer, the estate and interest of the proprietor as set forth in the instrument which he is entitled to transfer or dispose of shall pass to the transferee and the transferee shall thereupon become the proprietor thereof L2 5 The transfer thus becomes paramount over any other interest on the land save for fraud. Section 64 (1) of the Registration of Tittes Act provides that: Notwithstanding the existence in any other person of any estate or interest, whether derived by grant or othenyise, which but for this Act might be held to be paramount or to have priority, the proprietor of land or of any estate or interest in land under the operation of this Act shatl, except in the case of fraud, hold the land or estate or interest in land subject to such encumbrances as are notified on the folium of the Register Book constituted by the certificate of title, but absolutely free from all other encumbrances Fraud has been defined in a numerous [ega[ authorities. Kerr on the Law of Fraud and Mistake 5h edition part I page I: states that civil courts of justice have atways avoided hampering themselves by defining or laying down as a genera[ proposition what constitutes fraud. Fraud is infinite in variety with the ever dynamic operations of mankind. Thus Kerr defined fraud in the contemptation of a civil court of justice to inctude atl acts, omissions, and concealments which involve a breach of legat or equitab[e duty, trust or 10 15 20 25 13 a 5 confidence, justly reposed, and are injurious to another, or by which an undue or unconscientiously advantage is taken of another. A[1 surprise, trick, cunning, dissemb[ing and other unfair way that is used to cheat anyone. Fraud in a[[ cases impties a witlfut act on the part of anyone, whereby another is sought to be deprived, by ittegal or inequitable means, of what he is entitled to. Atso see Fredrick JK Zaabwe v Orient Bank and Otherc (Supra) The appetlants argued that the term fraud as appears in the Registration of Titles Act meant actual fraud. However, we think that is a narrow argument. ln the American authority of Husky lnternational Electronics, lnc vs. RitzNo. 15-145of 2016 the Supreme Court of United States of America expanded the meaning of actual fraud as encompassing fraudulent conveyance schemes that can be affected without a false representation. Such fraudulent conveyances typicatty invotve a transfer to a close relative, a secret transfer, a transfer of titte without transfer of possession or grossly inadequate consideration. We are persuaded by this [atter argument. Whether or not fraud which was imputable on the 2nd-5th appeltants was committed in the present matter is a fact-specific question. We witt therefore look at att the facts and circumstances of the transaction through which the appel[ants obtained titte. we shatt 10 15 20 25 t4 s thus consider the evidence on record that the Court of Appeat considered and eva[uated before reaching its conclusion The Court of appeal conc[usion that the considered the 1 fotlowing facts to come to the transfer and the subsequent 10 transfers he made were 't appetlant's fraudulent: The L't appetlants failure to appear in the court of appeal and in the High Court without sound explanation and yet he opened a suit in the Chief Magistrates court having known of a High Couft suit 1s had been instituted against hrm, the absence transferred from of proper evidence to how the land was the originaI proprietor a guitty mind. Nakaima) to the L't appe[[ant, pointed to show (Gusite 20 25 On this premise, findings that the was dishonest in we are unable to fautt the Courl of Appeal's evidence on record did show that the 1.t appetlant his dealings. 15 The effect of a certificate of title obtained by fraud according to section 77 of the Registration of ritles Act is that the certificate is considered void against a[[ parties to the fraud. ln other words, the titte of transferees guitty of some fraudulent act or who came to know of such act by somebody etse and took advantage of such 5 10 15 20 25 act, are void. [See judgment of Wambuzi CJ(as he then wad in - Kampala Bottlers us. Damanico (U kd Gupra)|. The only instance where the subsequent transfers/transferees can be protected is under Section 181 of the Registration of Titles Act; that is if they were bonafide purchasers for value without notice. Section 181 provides: 'Nothing in this Act shall be so interpreted as to leave subject to an action of ejectment or to an action for recovery of damages as aforesaid or for deprivation of the estate or interest in respect to which he or she is registered as proprietor any purchaser bona fide for valuable 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 proprietor through fraud or error or has derived from or through a person registered as proprietor through fraud or eror; and this applies whether the fraud or error consists in wrong description of the boundaries or of the parcels of any land or otherwise howsoever". 16 Ground 2 ln order for one to seek the protection of Section 181 (supra), he/she must prove that he/she is a bona- fide purchaser. The purchaser must act in good faith, ought to have given due consideration and purchased the land without notice of the fraud. Such notice covers both actuaI knowledge and constructive notice of the fraud. ln Jones us. Smith (184il 1 Hore the Chancery Court held that: a purchaser has constructive notice of a fraud if he had actual notice that there was some encumbrance and a proper inquiry would have revealed what it was, has abstained either deliberately carelessly from making those inquiries which a prudent purchaser would have made. To answer ground 2 appropriately, we need to trace the chronology of the transfers presented on record. The transfer forms presented on record in which the suit land was transferred to the appe[ants reveal the following information: 10 15 20 25 17 s This leads us to answer the second ground of appea[ whether the 3'0,4'h and 5th appe[lants were bona fide purchasers for value without notice. 5 10 15 20 25 On 18.11.1978, Peter Ssekasiko transferred the suit land to Eugene Ssonko for a consideration in the sum of Ushs. 300,000/=. Eugene Ssonko's interest was registered on the Certificate of title under lnstrument No. Msk 54497 on 27/11,t1978 aI 3 pm. On 18.1.1979, Eugene Ssonko for a consideration of Ushs. 300,000,/=, transferred the tand to Yakobo Mukaku Mutendwa Ssenkungu- (the 1't appellant.) The l.'t appeltant's interest was registered on the certificate of titte under lnstrument No. lr/sk 60006 on 25/L/1980 at 10.15 am. On 21.8.1989, the 1.'t appellant transferred the said land to the 2nd, 3rd, 4th and 5th appellants as tenants in common. Their interest was registered under instrument no. I'tlsk 71,229 on 30/B/1,989. The information 30 and Block on the Ceftificates of titte for the suit 3i shows that Gusite Nakaima was land having obtained the same from [and i.e Block the original the Buganda proprietor of the government. His interest on the certificates of titte for Btocks 30 and 31 were registered on 22.9.1932 and 23.9.1932 respectivety. A copy of a ceftificate issued by His Majesty's government to Gusite Nakaima showed that he was the absolute owner pending payment of shs.l37 /= and 177 /= respectively. This pending payment was 18 ) 5 entered as an encumbrance on the titles which was later cancelled upon Nakaima making the payment of the requisite fees. 10 15 20 25 I note that on the interests in the suit interest being that of Eugene Ssonko. However, the transfer forms recorded on the Ceftificate onty one transfer was made Peter Ssekasiko to Eugene next transfer was made in the 1't appeltant. I also note that encumbrance page encumbrance was Buganda in whom upon the original encumbrance page cerlificate for Btock 31, it shows that two property were registered in 1978. The first Peter Ssekasiko and the second being that of the land vested which show disconnected information with that of titte. The transfer forms reveal that in 1978. This was the transfer made by Ssonko on l8th November 1978. The 1979 from Eugene Ssonko to Yakobo- on the certificate of title for Block 30, the differs from that of Block 31. Whereas an 30 by the government of encumbrance was cancel[ed entered on Block proprietor (Nakaima) paying the requisite fee, the on Block 31 is blank. ) 19 5 I find that the the transfer appe[lants are suit property. by the ahead to to them negotiate with however the certificate of title and truthfu[ness that the without notice of the 2nd - 5th appellants as learned Justices of the led at the triat showed the respondent's claim of the land by the mismatch of information on the forms casts doubt on the bona fide purchasers for vatue The record also shows that the transferees had visited the locus and found it to respondent and his brother. Fufther, the be in occupation appellants went the respondent to have the suit land sold agree with the the making of 10 1C 20 respondent informed them that there was 't appe[[ant for atready a pending case fraudutently transferring the 2nd-5th appetlants on notice. in court against the 1 said [and. This was sufficient to put the I find therefore that the appellate were not bona Tide purchasers for value without notice. 1 finding of the Court of Appeat that the ptea behind multiple transfers on the law was to disguise fraud As correctly found by the Court of Appeal on 2nd to on receiving the notice and ignoring it tainted their fide titte. as a bona fide. 6th respondents otherwise bona ln the premise, I Court of Appeal 2s that the appel[ants and witnessed the am unabte to fault the for finding that evidence had become aware of physicaI occupation 20 5 respondent thus they were not bona fide purchasers for value without notice. Therefore, Ground 2 faits. Ground 4 The appettants' main contention in regard to this ground was that the learned Justices of Appeal erred in law and fact when they shifted the burden of proof borne by the respondent on to the Appellants. That the [earned Justices erred when they found that, the 1'tappeltant's proprietorship cou[d onty be proved by his testimony. That since it was the respondent who had appeated he had the burden to bring the retevant witnesses to establish his claim. The appetlants argued that the respondent had faited to discharge the oscitlating burden of proof of his ctaim to necessitate a rebuttal from the appe[[ants. The retevant law on the burden of proof in civil matters is found the Evidence Act. Section 101 provides: Burden of proof: Whoever desires any court to give judgment as to any legal right or liabitity dependent on the existence of facts which he 10 15 20 25 27 ) 5 or she asserts must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. Section 102 provides: On who the burden of proof [ies. 10 20 lq The burden person who either side. of proof in a suit or proceeding [ies woutd faiI if no evidence at atl were on that grven on Section 103 states: Burden of proof as to particutar fact. The burden of proof as to any particutar fact lies on that person who wishes the court to betieve in its existence, untess it is provided by any law that the proof of that fact shatl lie on any pafticular person. Section l06provides: Burden of proving, in civil proceedings, fact especiatty within knowledge. 22 15 5 ln civil proceedings, when any fact is especiatly within the knowledge of any person, the burden of proving that fact is upon that person. 10 ln civil trials, the burden of proof is the obtigation to present evidence on the subject of the [aw suit; that is, to prove or disprove a disputed fact. Various burdens of proofs are associated with varying matters; in matters of fraud, the burden lies first on the claimant or party who asserts that the transaction was tainted with fraud to adduce evidence to that effect. ln the present appeal, the respondent did state on a preponderance of probabitities that the transfer made to the appetlants was fraudulent. The registered proprietor having died in 1941 could not have been one and the same person who effected the transfer of the suit [and in 1,g7g- 37 years after his demise. This fact was enough on a preponderance of probabi[ities to shift the burden on the appellants to rebut this fact. However, as the Couft of Appeat found, the fact that the L.t appe[lant from whom the rest of the appe[lants claim to have derived titte did not put in a defence both at the tria[ court and in the Court of Appeat which cast doubt as to the authenticity of the transfers affected by him. 15 20 25 5 I thus find the argument of appetlant in this regard very flimsy. The Court of Appeat did not shift the burden of proof as atleged by the appe[[ants. Ground 4 also fails. Decision. Att the grounds of the appeal having faited, I would dismiss the appeat with costs to the respondent 10 Dated at Kampata tnis ...Waay or ;a 20t7. 15 AUGUSTINE S NSHIMYE JUSTICE OF THE SUPREME COURT 20 24 I I THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA (Coram: Katureebe, CJ; Arach -Amoko; Nshimge; Opio-Atuei; Muondha; JJ.S.C.) CIVIL APPEAL NO.17 OF 2OL4 BETWEEN 1. YAKOBO M.N.SENKUNGU 2. JAMES KINJURA 3. JOHN RWAI{AMURANGA 4. GIRADESI KATONYA 5. YONAHA RWAI{AARO ::::::::::: :::::: APPELLANTS CRESENSIO MUKASA RESPONDENT [Appeal from the judgment and Decree of the Court of Appeal Ciuil Appeal No.35 of 2006 before the Justices (Hon. Justice S.G Egwau JA, Hon.Justice A. TuLinomujuni JA and Hon.C.N.B. Kitumba JA) dated 26n Julg 2OOOI JUDGMENT OF I(ATUREEBE ,cJ I have read in draft the judgment of my learned brother, Nshimye, JSC and I agree with him that this appeal should fail. I also agree with the orders he has proposed as to costs. As the other members of the court agree, this appeal is dismissed with costs to the respondent. Dated at Kampala this 65 ......day of.. 2017 .1 AND @ Bart M. Katureebe CHIEF JUSTICE \i (CORAM: Katareebe, CJ; Arach-Amoko, Nshimye, Opio-Aw,eri, Mwotrdha; JJSC) IlIi't \\'t,t t,t:i I.YAKOBO M.N. SEN KUNGI.] 2.JAMES KENTURA 3,JOHN RWAKAMURANGA 4.GIRADESI KATONYA 5.YONAHA RWAKAARO :::::APPELI-ANTS AND CRESENSIO MUKASA::::::::::::::::::::::::::::::::::::::::::::RESPONI)EN'l' lAppeol from lhe decision of the Court of Appeol at Kampola (Egt,uu, Twinomujuni, & Kituntbu, JJA). Duled 26't'Juty,2000 in Civil Appeul No. 35 of 2006| I have had the benefit of reading in advance the draft Judgrnent prepared by my learned brother,, Hon. Justice. Nshimye, JSC, and I concur with his reasoning, conclusion and the orders he has proposed. Dated at Kampala this ffio ay of nl 2017 M.S. ARACH-AMOKO JUSTICE OF THE SUPREME COURT , THE REPURLIC OT'UGANDA IN TH8 STIPREME COURT OF' T]GANDA AT KAMPALA CIVIL APPEAL NO. 17 OF 2OI4 JUDGMENT OF M.S.ARACH-AMOKO. JSC r,r I ^j 5 THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPATA CORAM: (KATUREEBE CJ, ARACH-AMOKO, NSHIMYE, OPIO-AWERI, FAITH MWONDHA JJ.SC). 10 CIVIT APPEAL NO. I7 OF 2014 (Appeol from lhe judgmenl ond Decree of lhe Court of Appeol, Civil Appeol No. 35 of 2006 before the Justices (Hon. Jusiice S.G. Egwou JA, Hon. Justice A. Twinomujuni JA ond Hon. Justice C.N.B. Kitumbo JA) doted 26'h July 2000). 15 YAKOBO M.N. SENKUNGU & 4 OTHERS APPETLANT CRESENSIO MUKASA RESPONDENT 20 proposed therein. tr Doled ol Kololo this 2017 25 Hon. Justice Opio Awbri, JUSTICE OF THE SUPREME COURT 1, VERSUS I hove hod the odvontoge of reoding in droft the leod judgment of my brother Augustine S. Nshimye JSC. I concur wiih it ond lhe orders o"ro,..*P.1il. ,rft ( a THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT I{AMPALA CIVIL APPEAL NO. 17 OF 2014 Coram: (Katureebe, CJ; Arach-Amoko; Nshimye; Opio- Aweri; Mwondha; JJSC) BETWEEN APPELLANTS CRESENSIO MUKASA RESPONDENT [Appeal from the Judgment and Decree of the Court of Appeal Civil Appeal No. 35 of 2006 before the Justices (Hon. Justice S. G. Engwau JA, Hon. Justice A. Twinomujuni JA, and Hon. C.N. B. Kitumba JA dated 26th July, 2O001 JUDGMENT OF MWONDHA JSC I have had the benefit of reading in draft the judgment of Hon. Justice Nshimye JSC. I agree that this appeal should be dismissed with costs to the respondent as proposed. Dated at Kampala this.... 6tr dav of 20t7 ( Faith Mwon w dha I JUSTICE OF THE SUPREME COURT I 1. YAKOBO N.N. SENKUNGU 2, JAMES KENJURA 3. JOHN RWAKAMURANGA 4. GIRADES KATONYA 5. YOHANARWAKAARO AND