Kato & Another v Nalwoga (Civil Appeal 3 of 2013) [2014] UGSC 408 (25 March 2014)

l t rt rl .THEREPUB LIC O i'ucenue IN THE S UPREME COURT OF UGANDA, AT I{AMPALA b caBAn4- IGTUREEBE; TSEKOOKO; KITUMBA; OKELLO; JJSC; ODOKI; AG. JJSC. I BETWEEN 12 15 1. MARGARETKATO 2. JOEL KATO APPELLANTS AND Appeat from the decision of the Court of Appeal of Uganda at Kampala (Mpagi-Bahigeine, DCJ; Kauuma; and Arach-Amoko, JJA) dated 2 7"r Mqrch, 2O 1 1, in Ciuil Appeal No. 1 7 of 2OO9' ) JUDGEMENT O F G.M. OKEL LO, AG. JSC. INTRODUCTION: This is a second appeal arising from the decision of the Court of Appeal which reversed the decision of the High Court in a suit instituted by the appellants against the respondent' 1 l 27 / I 6 CIVIL APPEAL NO. ()3 OF 2013 NUULU NALWOGA RESPONDENT 24 I 30 33 36 39 42 45 48 51 BACKGROUND The appellants are a couple. Sometime in February 1996 .and in June 20O1, they bought from Kiggundu Kamadi and Saa-li rlsmail, the children of Ismail Ssewankambo two bibanja '(Customary holdings) comprised in Kyadondo Block 215, Plot 975. The late Ismail Ssewankambo was the son of late Miriam Namubiro who was an aunt, to the respondent, being the sister to the respondent's late father. After the purchase, the appellants started constructing houses on the land. The respondent surfaced in 200 1 protesting that the land which the appellant bought and on which they were constructing building is hers and asked them to stop further construction thereon. She was ignored. She told the appellants that the vendors had neither right nor authority to sell those pieces of land. Attempt at amicable settlement of the dispute between the appellants and the respondent faited and the buildings structures were demolished. Aggrieved by that turn of events, the appellants instituted HCCS No. 16 of 2OO8 against the respondent in trespass and malicious damage to property, amongst others. In the suit, the appellants sought a number of reliefs which included special and general damages, a declaration that the appellants are lawful owners of the customary holdings (bibanja) situate at Kulambiro, Ntinda and comprised in Kyadondo Block 215, Plot 975, compensation for loss suffered and for future losses amongst others. 2 I 54 I \ a 57' 60 b5 66 b9 1') -/q 1A 81 TherespondentfiledherwrittenstatementofDefencern which she denied the appellants' claims and averred' amongst .others, that the vendors who sold the land to the appellants had nobibanjaonthesuitlandbutweremeretrespassers.Shealso counter - claimed against the appellants and prayed amongst others for dismissal of the appellants' suit and for an order for their eviction. The High Court heard the suit and gave judgment on l"t June 2OO9 in favour of the appellants as follows:- (al The Plaintiffs' suit ls allowed; (bl The plaintiffs are bona fide occupants as bibanja holders on land comprised in Kyadondo Block 215' Plot 975. They are entitled to enjoy security of occuPancy ofthe bibanja interests they acquired in the suit ProPertY; from the date of Judgment till payment in full; G) Costs of the suit and 3 I (c) A permanent lnjunction is issued restralning the defendant and / or her agents from harasslngt intimidating and threatening eviction of the plaintiffs; (d) Special damages of Shs.SO,OOO,OOO/=; (e) General damages of Shs.5,OOO,OOO/=; (fl Interest on (d) and (e) above at 22o/o pet anrrum / 84 / "87 90 93 9S 102 108 (h) The counter claim is dismissed with costs to the Plaintiffs The respondent appealed against the above decision to the 'Court of Appeal which reversed the High Court's decision and orders and hence, this aPPeal' GRO UNDS O F APPEAL Eight grounds of appeal were framed as follows:- (1) The leqrned Jttstlce of the Court of Appeal erred in lorw and fact, when theg held tho:t the appellants were not bona fide occupanb on the sult land. comprised in Kgadondo' Block 275' Plot 975 at Kulamhlro. (2) The leorned Jttstlces o! the CoutA oJ Appeol erred' 7n laut olnd fact, when theg held tho:t the appetlants dld not lautfuttg acquire the suit ldnd and had no interest in the s:a;it land' 105 (3) The lerrnted Jrtstices of Appeal erted in laut and Jact, uhen theg falled to properlg interpret and qpplg the protision of sectlon 29 (5) of the Land 4 96 Act Cap. 227, therebg coming to a uT ong conclusion thort tt wcls tnapplicable to the appellc;nts' clo:im in the suit' / 111 114 117 120 123 126 129 132 135 (5) The leqrned Justlces o! Appeat erted in law and fact, wlrcn theg hetd thort the demolTtion oJ the sttttctures on the suit tand ut@s n.ot done bg the resPondent. (6) The learaed .Irrstices of Appeal erred in lqw qnd fact, when theg wronglg set aside the autard of special and general damages auqrded bg the trial Judge to the aPPellants' (7) The leorrned Jttstices of the Coutt oJ Appeal erred' in laut and fact, ln allowing the Respondent's counter - clqim and granting the ordets sought thereln including general damages of ShS.TOO,\OO,OOO/= urtthout ang justlficqtTon and' sulfictent evidence on recotd' (4) The leqnred Jrtstices of the CourA of Appeal en'ed in lorut and fact, when theg acceptcd euldence outslde the respondent's pleadings utith no legal basis and wronglg held that Kiggundu o;nd Saali Ismail, who sold the bibanJa to the appellant's' ouned Block 275, Plot 976 and not the sult lqnd cornPrised in Plot 975' 138 141 144 159 i (8) The leo:nted Jrtstices of Appeal ert'ed in law and fact, uhen theg failed ln thelr duty to properlg re- euqluate the entire euldence on record and thus came to a wrong conclusion. The appellants asked this Court to:- (a) Allow the appeal and set aside the decision of the Court of Appeal and all orders therein; (b) Uphold the decision and orders of the High Court; and 147 (c) Order the Respondent to pay the costs of this appeal and the costs in the lower Courts. 150 When the appeal was called for hearing before us, the 153 appellants were represented by Mr. Joseph Kyazze of M/s Kyazze Nandugga - Kabugo, assisted by Akurut Irene both of M/s D.N Counsel for both parties filed written accordance with the time frame directed at conference. submissions in the pre-hearing Fi REPRESENTATION & Co Advocates, while the respondent was represented by Ms. 156 Kabugo Advocates. 162 168 171 174 180 183 CONSIDE RATION OF THE GROUNDS "Tlte outhorltles appellate CourA qlso state that wtll not interJere ftndings oJ fact bg the first appetlate Court' It will do so onlg where the first appellate Coura hqs erred in lorut ln thqt it hqs not treated the euidence as a whole to that lresh qnd exhqustitn scttttlng uthtch the appellant w'Ls entltled tD expect". 7 / 165 I will consider these grounds of appeal in the order in which . they were argued. Mr Kyazze cited' llgenda Brewerles - Vs- . tlganda Rallutags Corporation, SCCA llo' 6 of 2OO7 to remind us of the role of this court as a second appellate court, to ascertain and confirm whether the first appellate Court has ad,equately discharged its duty to re-evaluate and scrutinize the evidence on record as a whole to come to a correct conclusion and that, where this court finds that the first appellate court has failed in its duty, this Court should re-evaluate the evidence and make appropriate orders' Ms Nandugga - Kabugo cited Admlnlstrator @neral - Vs. .Iamcs Buanlka' SCCII No'7 ot 2OO3 which is also, on the power and duty of this Court as a second aPPellate Court. In that case, Oder JSC (RIP) referred to a number of cases and said, q second unth the 186 189 192 195 198 201 204 207 Actually this Court has on a number of occasions made similar observations regarding the power and duty of a second . appellate Court. See Klfamunte Henry as' llgand'a' Crlmlnal Appeal NoTO oJ 7gg7.(SCUh Banco Arabe Espanol Vs Bank oJ llgonda, Clvil Appeat NoB o!799S' (SCq; Millg Masembe 9s Sugdr Corporatlon, Cili.t Appeal 'l\[o 07 oJ 2OOO; l[qd.dumha Vs- Witforce Kuluse, Civtl Appeal No 09 of 2OO2' I should add that the basis of those decisions may be traced to section 6 (1) of the Judicature Act' Cap 13 of the laws of Uganda and rule 3O(1) of the Rules of this Court which' in my opinion, are instructive. Subsection (1) of Section 6 reads thus: "(7) An appeo,l sho,ll tle as oJ right to the Supreme Court where the Couri of Appeat confinnq uarles or reuerses a Judgment or order' Tncludlng an Tnterloctttory ord,er, gluen bg the Htgh Court 7n the exercise o! lts orlglnat furisdtctton mnd either conftrtned, usrled' or reuersed bg the Court ot APPeal." Sub-rule (1) of rule 30 of the Supreme Court Rules reads thus:- *(7) Where the Court' of Appeal has reuersed' alftrmed or uorled' q declslon of the Hlgh Coura acting tn its orlglnal iurlsdictTon' the Court m'ag decide mqtters of taut or mlxed laut and fact' brrt 8 210 216 219 )'), 225 231 shqll not haue evidence". dlscretTon to tdke rr;ddltlonal The above clearly sets out the powers and duties of a second appellate Court. My understanding of section 72(1) of the Civil Procedure Act is that for a second appeal' the complaint must be limited to matters of law or mixed law and fact. Section 72 (ll of the Civil Procedure Act reads as follows:- "Except where otheruise expresslg provlded in thts Act or bg ang other lo;ut for the time being tn Jorce, an appeal shqll lie to the Court' of Appeal from ernry decree passed ln appeal bg the High Court on @ng of the followlng groundst (a) The dectsion is contro;ry to law ot to some usqge ho;uing the force of laut; (b) The decision has failed' to determine some matet'lo;l tssues o! lo;w or uscge haulng the torce of laut; (c) A substantlo,l error or defect ln procedure proalded, bg thts Act or bg ang other law for the time betng in force, hds occl,trred which mag posslblg hante produced error or detect ln the decision oJ the ctcrse uPo'r- tll.e merlts"' 9 234 213 228 237. 243 246 249 255 This point was earlier considered by this Court in Ephralm Odongo - Vs - Franc-ls Benego Bonga' SCCA No. 10 of 1987, where it held that, "... this being q second appeal, the appellant can onlg complain against matters of law as specified in section 74 (1) of the Ciuil Procedure Act" (now S.72 (1) . With the above observations, I now proceed to consider grounds I and 3 which were jointly paraphrased as:- Whether the appellants u)ere bona fide ocanpants of the suit land compised in Kgadondo Block 215, Plot 975' Kulombiro within the context of seetion 29 (2) of the Land Act Cap 227of laws of Uganda. Mr. Kyaaze, learned counsel for the appellants' submitted that the trial judge found that it was an agreed fact that the appellants purchased bibanja on the suit land comprised in Kyadondo Block 215, Plot 975 that belongs to the respondent as the mailo owner who inherited it from Enusu Kagodo. The testimony of the appellants was that they purchased two bibanja on the suit land from Kiggundu Kamadi and Ismail Saali in 1996 and Kamadi (PW2) confirmed sale of two 2OO1. Kiggundu bibanjas to the appellants. That the bibanja that they sold were part of their farther's bibanja on which they had lived for a long time. Mukalazi (DW6) conceded that the family of 10 240 252 258 261 264 267 273 276 )70 282 Ssewankambo had been on that land since 1974' PW2 explained that they were not disturbed by the respondent . because she knew that they were bibanja holders' Upon re-evaluation of the evidence on record and consideration of the law and authorities cited by the trial Judge, the learned Deputy Chief Justice in her lead judgment, concluded that the bibanja purchase transactions of 1996 and 2O01 were not covered by section 29 of the Land Act, 1998, and that the law applicable was Land Reform Decree 1975' Learned Counsel submitted that that was a misdirection on the part of the learned Deputy chief Justice. He argued that:- (1) Bona hde occupancy under section 29(1) of the Land Act was traced retrospectively to 12 years or more before the coming into force of the 1995 Constitution' He relied on Kampalrr Disdct Land Board & Chemlcal Dlstrlhttars - Vs - Natlono;l Houstng Consttttctton Corporatlon' Civil Appeal No' 2 of 2OO4, where Odoki' CJ (as he then was) stated that :- 'the respondent hauing been in occupation or possession of the suit land for more thon 12 gears at the time of coming into force of the 11 ?70 285 291 294 )o'7 300 303 1995 Constihttion qtatified to be bona fide occuPant.' Learned counsel submitted that in view - of the uncontroverted evidence that Ismail Ssewankambo whose interest was inherited by Kiggundu Kamadi and Ismail Saali, had occupied the suit land and utilized it unchallenged since 1974, would fatl within the 12 year rule in Section 29(1) of the Land Act and Article 237 (81 of the Constitution, and were therefore bona fide occupants on the suit land' (21 He conceded that the lirst purchase of Kibanja by the appellants in 1996 was before the Land Act of 1998 came into force' Therefore' the law applicable thereto was the Land Reform Decree 1975. He however, criticized the learned Justices of the Court of Appeal for not citing any provision of that Land Reform Decree that might have been flouted by the appellants to disentitle them from the protection conferred by Article 237 (81 of the Constitution and Section 29 (5) of the Land Act' He pointed out that the learned Justices of the Court of Appeal held that the second purchase of Kibanja by the appellants in 200 I was also governed by the Land Reform Decree and not by the Land Act of 1998' Learned Counsel submitted that the Land Act was enacted and came into 12 zoo 306 309 312 11E 3'18 321 324 327 330 333 in 2001. Mr. Kyazze further submitted that since the appellants had acquired the bibanja from Kiggundu Kamadi and Ismail Saali who qualified under section 29 of the Land Act as bona fide occupants directly or through inheritance of their father's interest under section 34 (21 of the Land Act' the appellants qualihed as persons who had acquired their interest by purchase from bona fide occupants under section 29 (51 of the Land Act' He relied on Kompala Distrlct Land, Board. - Vs - Nq'tlono,l Houslng Constt:rtctlon CorPoratlon, C"tull Appeal No' 4 of 2OO6 (scu). LearnedCounselsubmittedthatthefindingofthetrial judge was in tandem with section 29 (51 and the decision of the Supreme Court in the above cited case' That the Court of Appeal was therefore wrong in overturning the finding of the trial Judge. 13 force in 1998 and the Land Reform Decree was thereby repealed. He argued that having been repealed in 1998' the . Land Reform Decree could not have been applicable to the transaction of 2O01. He further argued that since the Land ' Act was already in force in 2001, section 29 thereof fully regulated the second purchase of kibanja by the appellants 336 339 342 345 348 351 354 357 He prayed that these grounds be upheld' and that the appellants be found to be bona ltde occupants under section 29 (5) of the Land Act having bought their bibanja interest from persons who qualified as bona fide occupants under section 29 (1) ofthe Land Act' In opposition to the above submissions of Counsel for the appellants, Ms Nandugga Kabugo contended that the learned Justices of the court of Appeal properly arrived at the frnding that the appellants were not bona lide occupants on the suit land within the context of section 29 (5) of the Land Act. She argued that in arriving at that linding' the learned Justices of the Court of Appeal were alive to their duty as a first appellate Court and complied with it' They re-evaluated, assessed and scrutinized the evidence on record as was exPected of them' She explained that the learned Justices of the Court of Appeal first addressed themselves to the provision of section 29 (21 of the Land Act to acquaint themselves with its contents and signifrcance and that after re-evaluating' assessing and scrutinizing the evidence on record vis-a-vis the holding of the learned trial Judge, they ruled, rightly in her view, that the appellants were not bona fide occupants under section 29 l2l. They had not occupied or utilized the suit land for twelve-years or more before the coming into 360 14 363 366 372 375 378 381 384 force of the 1995 Constitution' She submitted further that any reference by the learned Justices of the Court of Appeal to the law cited by the learned trial Judge and to his conclusions only formed part of their re-evaluation of the evidence on record as there is no set format to which re- evaluation should conform' She relied on Uganda Brewerlles Vs. Ilganda Railuays Corporatlon' SCCA No' 6 of 2001 to suPPort that view' On whether the appellants were bibanja holders under section 29 (5) of the Land Act, having purchased the suit land from Kiggundu Kamadi and Ismail Saali' the children of Ismail Ssewankambo who allegedly occupied and utilized the suit land since 1974, Ms Nandugga - Kabugo submitted that section 29 (51applies to persons who have acquired the persons recognized to be lawful bona fide She argued that the learned Justices of the Court of Appeal found that Kiggundu Kamadi and Ismail Saali, the children of Ismail Ssewankambo' were not bona fide occupants on the suit land, either under sections 29 (21 or 34 (21 of the Land Act, their father or they themselves having not owned any bibanja thereon but on a neighbouring Plot 976. Consequently, the appellants could not claim the protection conferred by section 29 (5) of the interest of occupants. / Land Act. 15 369 1a-7 393 396 399 402 405 408 She further submitted that the claim that Ssewankambo utilized the suit land unchallenged 1974 was an attempt by Counsel for the appellants to lead newevidenceatthisStagecontrarytorule30(i)ofthe Rules of this evidence in Ssewankambo 1974. Court. She pointed out that there was no the lower Court to show that Ismail utilized the suit land unchallenged since On the applicants' bibanja purchase transactions of 1996 and 2O01, Ms Nandugga - Kabugo submitted that the 1996 transaction was concluded before the Land Act' 1998 came into force. The appticable law at the time was the Land Reform Decree of 1975' She argued that the 2001 transaction though concluded when the Land Act was already in force, it did not meet the requirements of section 29 12) of the Land Act' She prayed that the two grounds must fail. The central issue in these two grounds is whether Kiggundu Kamadi and Ismail Saali on their own or through theirfather,Ismailssewankambo,ownedbibanjaon' occupied, utilized or developed the suit land before the 1995 Constitution of Uganda came into force ? The learned trial Judge in his judgment found that Kiggundu Kamadi and Ismail Saali owned bibanja on the suit land as their father Ismail Ssewankambo had occupied' utilized and developed the suit land since 1974 and that by Ismail since 411 390 16 414 417 4?O 423 426 429 435 virtue of their length of occupation of the suit land before the 1995 Constitution carne into force' Kiggundu Kamadi and Ismail Saali qualified to be bona fide occupants on the suit land and that as they sold their bibanja interest in the suit land to the appellants, the latter became bona fide occupants under section 29 (51 of the Land Act' This is how he dealt with the matter:- "It is the euidence of PW2 that the bibanja theg sold to the plaintiffs were part of their father's bibanja' Theg haue been on that land for a long time' And that theg haue bibanjq there. This euid'ence of Kibanja holding on the suit land bg PW2 and his relotiues u)as neuer changed (sic) bg the defendant' That piece of euidence remainedintact.Euenindefence,DW6'Mukaloziwho is an uncle to the defendant ond PW2, testified that the familg of tate Ismail Ssewankambo hos been on thqt lqnd since 1974 up to date' DW6 knows the truth but somehow he tied to divert a bit from the truth in his testimong. His euidence corroborates that of PW2 that hp2andhisrelativeshauebeenonthedisputedland as bibanja holders for a long time' Bg uirtue of the long stag on that land as child'ren of late Ismail Ssewankambo, theg are protected under Article 237 (8) of the Constitution of Uganda uthich reads: 'Article 237 (8) thereof:- 17 438 441 444 447 450 453 459 Upon the coming into force of this Constitution and until Parliament enacts an appropiate laut under clause (g) of this Article, the latufut or bona fide occupqnts land shall land' of mailo land, freeholder , leasehold enjog secl.trity of occupancg on that 462 18 Kamadi Kiggundu and his ertire familg haue neuer been euicted from the suit lond' Theg haue their interest there. From the aboue qtoted prousion and the euidence on second, Kiggundu Kamadi ond Ismail Saali, the sons o.,f Ismail Ssewankambo' are or were bona fide occupants' And according to the euidence on record of PW2, DWl and DW6, it is obuious that the childrenoflsmailssewankamboarestillenjoging secuitg of ocanpancg on the part of the kibanja theg did not sell off. Theg haue pouers to pass on their bibanja interest to ana otlwr person of their choice, the plaintiffs inclusiue. Consequentlg, therefore, under section 29 (5) of the Land Act, 1998 as amended' the plaintiffs are protected........" On appeal, the learned Justices of the Court of Appeal found, after re-evaluating and scrutin2ing the evidence on record, that neither Kiggundu Kamadi and his sibling Ismail Saali nor their father Ismail Ssewankambo ever owned any bibanja, occupied, utilized nor developed the suit land at all 456 465 468 471 474 477 480 483 but that Ismail Ssewankambo owned a neighbouring Plot ' 976. They further held that Kiggundu Kamadi and lsmail Saali had no authority to sell the suit land of the appellants as they did not own it. The learned Deputy Chief Justice, who wrote the lead judgment, quoted a passage in the judgment of the trial Judge and said;- "In this connection it is of uital importance to point out thqt section 29 of the Land Act, 1998 intended to preserue and. giue ctothing to beneficiaies o/ transactionshoweuerenteredintoonmailoorregistered lqnd, before the coming into force of the 1995 Constittltionandnotthoseenteredintoafierthatdqte. The 1995 Constitution wqs promulgated on 8th October 1995". Then she quoted a passage of the evidence of the 2'd respondent (PWl) as follows: 'I am in Court because of the kibanja I bought in Kulambiro. I bought the first part in 1996 and then I bought the other part in 2001------' Afier the purchase I constructed 3 storage houses' I began the constntction of mg building in 1996 / 486 Then the learned Deputy Chief Justice went on:- 19 489 492 495 498 501 504 507 510 Then she re-evaluated the evidence of the appellant (DW1), PW2 and DW6 and said:- "I thus accept the appellant's straight fonuard euidence that the bibanja are on her registered land' Plot 975' Block 215 and that Kiggundu (PW2) and his siblings including Sa'ali Ismail own the neighbouing Plot 976' "Most importantlg, the appellant reveals in her euidence that it rttas in 1996 that the respondent's relatiues started reporting to her some encroachers on her land who were persisting with corustruction despite warnings that the land belongs to somebodg. This euidence was not contradicted at all, I am conuinced, therefore that the purchase must haue taken place in 1996 and 2001 not 1994' Consequentlg, the transaction is lsic/ not couered under section 29 of the Land Act, 1998' The law in force then was the Land Reform Decree 1975' The respondents bought the bibanja from Kamadi Kiggundu (PW2) and Ismail Saali, both sons of late Ssewankambo. These tuo, who happened to be the appellant's relatiues, had no authoitg to sell bibanja which were not theirs"' 20 513 516 (r6 528 531 534 Theg could not sell tphat was not theirs' The purported sale was therefore uoid ab initio'" The learned Deputy Chief Justice then re-evaluated the evidence of the second respondent which she reproduced as: "I don't know the size of the lond I bought in 1996' Euen I don't knou the size of the land I bought in 2OO1' I bought kibanja. I :auas not concerned with the land title' I qm a Muganda, I know the rules gouerning kibanja' I did not try to find out who was the owner of the land' I did not get the consent of the mailo ou)ner-------' I did not ask the seller whether theg were paging Busuulu to the mailo land owner. I am not disputing her oranership'" The learned Deputy Chief Justice then concluded from the above evidence ofthe second respondent that: "-------that was not the conduct of a bona fide purchaser keen on getting ualue for his moneg' It utas inanmbent upon him to get to the root of the land title euen though his interest was onlg in bibanja' He had to obtain his/her consent to purchase the bibanja on her registered land." She relied on Sheik Mohammcd Lubowa - Vs' Kttato Entnrprlses Ltd' CA No'4 oJ 7987. / 519 522 21 537 540 543 546 549 552 555 The facts of that case are similar to the facts of the case now under consideration' In that case, the respondent's case was that they purchased the disputed land from Nakibale who was the second defendant. The appellant's case, however' was that he was the registered owner of the land in dispute and the respondents were trespassers as they were putting up houses on the land without the appellant's consent' The appetlant counter- claimed and sought in the counter- claim the respondent's eviction amongst others' The Court of Appeal, predecessor of this Court' held that had the trial judge directed himself properly on the evidence of the appellant, he would have come to the conclusion that the entry was unlawful as it was done without the consent of the appellant' Learned Counsel cited another case of Jog I\tmushdbe and Anor - Vs' - Anglo Afrt'can Ltd and Anor, SCCA No.7 of 7999. In that case, there was a tenancy agreement between the Departed Asian Property Custodian Board and the appellants over a house on Plot 45, Ben Kiwanuka Street' Kampala. When Laximide Dalia obtained repossession of the property, the appellants refused to recognize his title as the landlord. This court in dismissing the appeal, held that ) 561 22 t refusal Iandlord 567 576 579 582 by the aPPellants to recognrse determined the tenancy and Dalia as rendered their them trespassers on the Premises' The learned Deputy Chief Justice went on to say:- uh was not sulficient to content gourself information from LCs alone' Ofientimes /'Cs proued less knowledgeable about the history/ ancestry of some families and their properties' The first respondent, Margaret Kato behaued in a similar mcrnner as the 2"d respondent, her husbond. When she was negotiating to bug the second part of the kibanja instead of trying to find out the owner of the lond which she was buging, she merelg asked the appellant to Proue her ownershiP' Atl this adds up to one thing, namelg' that euer since the respondent paid for the bibanja' theg had ample notice that the uendors utere selling whqt was not theirs. Theg cannot claim to be bona fide occupants' Theg are tresPzssers'" It is an established principle of the law embodied in section 72 (tl of the CPA and Rule 30 (1) of the Supreme court Rules that this court as a second appellate court will only interfere with the lindings of fact by the first appellate with haue s85 564 570 573 23 s88 ' 591 594 597 609 In learned Court where it has erred in law by failing to treat the evidence on record as a whole to a fresh and exhaustive scrutiny which the appellant was entitled to expect or where it has applied a wrong principle. See Banco Arabe Espanol - Vs. - Bolnk of tlganda, SCCA.I\Io. 8 oJ 7994' the instant case, I am Deputy Chief Justice satished that the first writing as a appellate Court, did re-evaluate, scrutinize and weigh the evidence on record as a whole, as shown above' and came to her own conclusion that neither Ismail Ssewankambo nor his children, Kiggundu Kamadi and Ismail Saali, occupied, developed nor owned any bibanja on the suit land. I am also unable to fault her Iindings that the appellants' bibanja purchase transactions of 1996 and 2001 were not covered by section 29 of the Land Act 1998. Section 29(21of the Land Act was intended to give security of occupancy to persons who have been in possession of a mailo or registered land unchallenged by the registered owner for a continuous period of twelve or more years before the 1995 Constitution carne in force' The above two transactions were concluded after the 1995 Constitution had come into force' The evidence of occupation of the suit land by Ssewankambo Ismail' the father of Kiggundu Kamadi and Ismail Saali is not 24 600 603 606 612 615 618 624 627 630 633 b5b uncontroverted as Mr Kyazze submitted. I am satisfied that a careful scrutiny of the evidence on record, as shown herein earlier, reveals that neither Ismail Ssewankambo nor his children Kiggundu Kamadi and Ismail Saali ever owned any bibanja on nor occupied the suit land since 1974 or at all. In such circumstances, Kiggundu Kamadi and Ismail Saali did not qualify to be bona fide occupants on the suit land. Consequently, the appellants who bought the suit Iand from them did not acquire any Kibanja interest and therefore had no protection under Article 237 18) of the Constitution and section 29 (5) of the Land Act, 1998. They are thus not bona fide occupants on the suit land, but trespassers. These two grounds therefore fail. I now turn to ground 2 which was paraphrased as follows:- Whether the appellants lawfully acquired the suit land and if so whether they have interest therein? Mr. Kyazze contended that the issue in this ground related to the manner in which the appellants acquired their bibanja interest on the suit land. He argued that this did not relate to the lawful occupancy under section 29 (11 of the Land Act. He criticized the learned Justices of the / 639 25 621 Court of Appeal for mistaking the issue of lawful acquisition of land with lawful occupancy and consequently arrived at a 642 .- wrong conclusion' He pointed out that the learned trial Judge was guided by the decision of the Court of Appeal in Ssessanzi Kulablrororwo - Vs - Rablnah' Civil Appeal No.55 of 2OO2, where the Court considered the issue of acquisition of bibanja and held that where a purchaser of a Kibanja makes all necessary inquiries such as from the local council of the area before buying the kibanja, he is said to be a bona- fide lawful purchaser for value without notice in case of a third party claim' Learned Counsel submitted that in the instant case' the appellants made inquiries from one John Kasule' the LocalCouncillChaipersonofKulambirovillagewho confirmed to them that the sellers were the owners of the bibanja on the land registered in the name of Anusu Kagodo who had died in l95os'They were not aware of the respondent as she was not even registered as the proprietor of the suit land at the time and was also outside the country. He argued that the appellants having made the inquiries they did, and since the registered proprietor from whom they would have sought consent before purchase had long d.ied, the sellers were in a position to sell off their Kibanja interest and the appellants who bought the bibanja from them acquired the land lawfully, and, having lawfully purchased the suit land', the appellants acquired an interest 648 651 654 657 660 663 26 645 666 669 672 675 678 681 684 687 in the form of bona fide occupancy. He criticized the learned Justices of the Court of Appeal for holding that it was incumbent on the appellants to get to the root of the title even though their interests were only kibanja and had to obtain consent from the registered proprietor in the circumstances of this case. He submitted that the learned Justices of the Court of Appeal were wrong to find that the appellants did not lawfully acquire the suit land nor did they acquire any interest therein. He prayed that this be overturned. Ms Nandugga - Kabugo, on the otl:er hand submitted that the learned Justices of the Court of Appeal did not mistake lawful acquisition of land for lawful occupancy' She contended that the Record of Appeal shows that the learned Justices of the Court of Appeal carefully scrutinized the evidence of the 2"d appellant regarding how he acquired the suit land. After weighing the evidence against the test of a diligent prospective purchaser of a kibanja interest' and gsided by the principle set out in Shekh Mohammcd Lubowd - Vs - Kitara Enterprises Ltd' (supra) where this Court had held that consent of the registered land owner was mandatory for a bona fide lawful purchase of a kibanja' the learned Justices of the court of Appeal found that the 2nd appellant's inquiries fell short of the reasonable standard even though his interest was only in kibanja' 690 693 699 702 705 708 711 714 28 L,earned Counsel pointed out that the evidence available on record shows that even when the respondent introduced herself to the appellants and made attempts to persuade them to regularize their interest, the appellants arrogantly refused to recognize the respondent's title' She submitted that in view of the above, the learned Justices of the Court of Appeal rightly concluded that the appellants were not bona- fide lawful purchasers of the suit land and consequently acquired no interest in the suit land' She prayed that this ground be dismissed The learned trial Judge found that the appellants have acquired interest in the suit land' This is how he arrived at that decision. "In the instant case, both parties agreed in the agreed facts during the scheduling conference that the plaintiffs bought bibanja on the suit land that belongs to the defendant as a mailo land owner hauing inheited the said land. from one Enusu Kagodo' It uas also agreed bg the parties that the ptaintiffs are in possession of the said bibanja ond thot theg haue permanent house qnd crops thereon. With these admissions bg the parties' it is clear that the ptaintiffs haue interests in the land in dispute". The learned trial Judge retied solely on the admissions of facts at the scheduling conference to hnd that the appellants have acquired interests on the suit land' 696 717 720 723 should point out that this Court Tsekooko JSC' observed in Admintstrator General Jomes (supra) "That agreed. facts and d'ocuments qt scheduling conference form part ofthe euidence on record qnd are to be euqluated along with the other euidence on record before Judgment is giuen". That is still good law' On appeal to the Court of Appeal, the learned Deputy chief Justice dealt with the issue in her lead Judgment as 726 follows:- 729 732 735 738 I Vs Buqnika "I thus accept the appellant's straight fonaard euidence that the bibanja are on her registered land' Plot 975' Block 21.5, and that Kiggundu PW2 and his siblings including Sqali Ismail own the neighbouring Plot 976' They could not sell rt.that was not theirs' The purported sale was therefore uoid ab initio' The 2nd respondent,s testimony throws more lights on this: nI d.on't knota the sizes of the land I bought in 1996' Euen I don't know the size of the land I bought in 20O1' I bought kibanja. I qm a Muganda, I knout the niles goternlng klbanJa. I did not try to find out taho was the owner of the mailo land' I did not bother asking the child.ren the outner of the land' I did not get the consent of the mailo land owner"""' I did not ask the sellers 29 741 747 750 762 whether theg were paging Busulu to the mailo lond ou)ner ...... I am not disputing her ownership" The learned Deputy Chief Justice then went on' "This obuiouslg uas not the conduct of a bona fide purchaser keen on getting ualue for his moneg' It utqs incumbent upon him to get to the root of the land title euen though his interest was onlg in bibanja' He hod to obtain his/her consent to purchase the bibanja on her registered land. See Shekcr Dlohammcd Lubouta - Vs - Kltara Enterprlses Ltd, Plot No'4 of 79a7 where it uas held that consent of the tond title holder is mandqtory' This hqs been so since the Busuulu and Enwjjo Law 1928' Also see Jog I\tmushabe&Anor-Vs-trtl/sAnglo-Afrtco;nLtdand. Anor, SCCA No-7 OF Tggg - where refusal to acknowledge the title of landlord was held to amount to trespass' n was not sulficient to content himself with the information from LCs alone' Ofientimes LCs hq'ue proued less knowledgeable obout the history/ ancestry of some families and their ProPietor' The first respondent Margret Kato behaued in similar mQnner qs the 2nd respondent' her husband' WTten she was negotiating to bug the second part of the kibanja' instead of trying to find" out the owner of the land u'thich she was buging, she merelg asked the appellant to proue her ownership' All this adds up to one thing' 765 744 756 759 30 771 777 768 774 780 The reference she made of bona fide occupant was related to the vendors who did not have the power to sell the bibanja as they did not own any bibanja on the suit land nor met the requirements of section 29 12) of the Land Act. Consequently the appellants did not acquire any interests on the suit land. I thus cannot fault the learned Deputy Chief Justice in her findings in this regard' This ground too, therefore, fails. The next is ground 4 which is paraphrased thus: 'Vlhether the leo.rned Jttstlce of the Court of Appeal erred in ldut and in foct, uthen theg acceptcd etidence outslde the respondent's pleadlngs tttlth no legal basls 789 31 783 786 namelg, that euen since the respondents paid for the bibanja theg had ample notice that the uendors were setling what was not theirs' Theg cannot claim to be bonafide occupants. Theg are trespassers'" The above passage from the judgment of the learned Deputy Chief Justice shows that she did not mistake a bona- fide purchaser with a bona fide occupant' She re- evaluated the evidence on record vis a-vis the test for a bona fide purchaser of a kibanja and concluded that the conduct of the appellants fell short of the reasonable standard of a bona fide purchaser' They did not make inquiries with the family of late Kagodo which they ought to' 792 801 804 807 Plot 975'. Mr. Kyazzae contended that the holding of the Court of Appeal that the persons from whom the appellants purchased the suit bibanja owned Plot 976 and not Plot 975 was erroneous because it was based on fresh evidence outside the pleadings of the respondent and inconsistent with the agreed facts. He pointed out that the appellants' ptaint shows that:- (1) the suit property was described in paragraph 4 (a) that the plaintiffs (appellants) purchased bibanja on land comprised in Kyadondo Block 215' Plot 975 situate at Kulambiro' The respondent's written statement of Defence made no averrnent anywhere that the persons who sold bibanja to the appellants (Kiggundu Kamadi and Ismail Saali' children of Ismail Ssewankambo) owned Plot 976 and had no bibanja on the suit land comprised in Plot 975' agreed on during the scheduling that the aPPellants bought (21 The facts conference bibanja on were the suit land that belongs to the defendant (now respondent) as the mailo owner' It was also agreed that the appellants were in 816 1' 798 810 813 and wronglg held that Ktggundu Ko;mo;di arn,d Saoli Ismdllulhosoldthebibo:njatotheappellant.sown Block 215 Plot 976 oind not the sult land comprised in possession of the said bibanja permanent house and crops thereon' and had a 828 831 834 837 840 Learned Counsel argued that in view of the above' the findings of the Court of Appeal that the suit bibanja are the respondent's registered land Plot 975, Block 215; that Kiggundu Kamadi (PW2) and his siblings including Saali Ismail own the neighbouring Ptot 976, and that they could not sell what was not theirs and further that the purported sale was void abi nitio, were erroneous' His contention was that it is a rule of pleadings that parties are bound by their pleadings and cannot depart therefrom' except upon amendment. A party must prove his/her case as alleged in the pleadings' He or she cannot give evidence that depart from their pleadings. He cited Order 6 rule 7 of the Civil Procedure Rules (CPR) and Inter frelght Forward'ers (U) Ltd - Vs - EAD, SCCA No'33 of 1992 to support that view' 843 . 819 822 825 (3) He criticized the learned Justices of the Court of Appeal for departing from the facts agreed on at the scheduling conference' He cttad Admlnlstrator @neral - Vs - Buanlka Jamcs qnd other, SCCA No'7 of 2003 for the proposition, that agreed facts and documents at scheduling conference form part of the evidence 846 849 852 855 861 864 867 on record arrd are to be evaluated along with other evidence on record before judgment is given' He submitted that the learned Justices of the Court of Appeal have allowed' learned Counsel for the respondent to add.uce fresh evidence from the bar to the effect that the bibanja in question were no longer on the suit land comprised in Plot 975 but on another land comprised in Plot976. He pointed out that the ROA shows that no leave was either sought or obtained to adduce additional evidence on appeal. He cited rule 29 (1) of the Court of Appeal Rules' It was his further contention that the learned Justices of the Court of Appeal misdirected themselves when they based their conclusion on fresh evidence inconsistent with the pleadings of the respondent and consequently that the conclusion is erroneous. He prayed that the hnding be set aside. On the other hand Ms Nandugga-Kabugo contended thatthelearnedJusticeoftheCourtofAppealdidnot accept any evidence outside the pleadings of the respondent to make the findings complained of but carefully re- evaluated and assessed the evidence on record to arrive at the findings. They also similarly found from the same evidence that Kiggundu Kamadi and Ismail Saali did not know the boundaries of their land and sold the suit land to 870 34 858 873 . 876 879 888 891 the appellant believing that they were selling what was theirs whereas not. She submitted that the respondent's written statement of defence and counter - claim contain averment that Kiggundu Kamadi' Ismail Saali and their father Ssewankambo owned a portion of land different from Plot 975. She prayed that the findings complained of be upheld. The issues raised here are:- (1) that the learned Justices of the Court of Appeal based their findings that Kiggundu- Kamadi' Ismail Saali and their father Ismail Ssewankambo owned or occupied land other than Plot 975' on evidence outside the pleadings of the respondent in contravention of 06 rule 7 of the CPR that the learned Justices of the Court of Appeal allowed Counsel for the respondent to adduce additional evidence from the bar in contravention of rule 30 (1) of the Court of Appeal Rules and That the respondent's WSD and counter claim d.o not contain averment that Kiggundu-Kamadi' Ismail Saali and their farther Ismail Ssewankambo owned a portion of land different from Plot 975. t2l (3) ao7 892 894 35 900 903 906 ono 912 915 o,t Q 921 For convenience, I reproduce here below the text of 06 rule 7 which reads: " No pleading shall, not being a petition or application except bg wag of amendment, raise anA netu ground of claim or contqin any allegation of fact inconsistent uith the preuious pleadings of the partg pleading that pleading'" ln Inter fretght Forwarding (U) Ltd - Vs' - Eqst Afirtcan Deueloptnent Bank, Civil Appeal No'33 of 1993' which was cited to us by Counsel for the appellants' the claim was founded on an alleged breach of contract; the cause of action being negligence' At the trial, issues were framed reflecting the Pleadings' The trial Judge gave Judgment in the alternative that if there was no negligence, then the defendant was liable as a common carrier. This was not pleaded in the plaint' In allowing the appeal, this Court, Oder JSC (Rip) observed thus:- "A partg is expected and' is bound to proue the case as alleged bg the pleadings and as couered in the issues framed. He will not be allowed to succeed on a case set up bg him and. be allowed at the tial to change his case as set-up q case inconsistent with what he alleged in his pleadings except bg wag of amendment of the pleadings". 924 36 927 933 936 939 942 945 Indeed parties must adhere to their pleadings except by amendment to ensure fair play' The facts of the above case differ from the facts of the instant case in that in the instant case, the WSD and counter claim of the respondent in paragraphs 20-29 contain averments relating to the vendors and their father Ssewankambo owning or having occupied a portion of land neighbouring but different from the suit land. The pleadings went as follows:- "20 The said Isimagii Ssewankambo for reasons well known to him sold off and transfened his land that he initiallg occupied to other parties and thereafier him and his children settled. on the portion which hitherto belonged to the Kengan friend to Kagodo and which portion of the land formed 2O'O Dectmals of land of the late Kagoro that taas not distibuted to the beneficiaies afier his death. 21 From the Kengan portion, the said "Ismaigiri Ssewankambo and. Iater his children ertended their tentacles and in the process encroached on the portion of land that belonged" to mg late father which portion formed part of his estate upon his death and so rightfullg belonged to me as his suruiuing child' Hauing entered on the said portion of land that rightlg belonged to mg late father and laufullg acquired bg me 951 37 a 930 948 his children namela; 957 960 963 966 969 s75 (it (iii) (iu) (u) (ui) Mugerwa Kiggundu Kamodi Lukwago lbrahim Kafero Isa Wasswa Ssentongo 38 bg wag of inheitance, Isimgii Ssewankqmbo and later (i) Ismail Saali 954 972 Purportedty sold the land descibed in the plaint as "Bibanja" Customary holding to the plaintiffs (cf.Annexitttre to the plaint)". It is thus clear that the evidence adduced in support of the fact that Kiggundu Kamadi, Ismail Saali and their father Ismail Ssewankambo occupied a portion of land neighbouring but different from the suit land was given in accordance with the respondent's pleadings and within Order 6 rule 7 of the cPR; as well as within the principle Iaid down in Interfreight ?orutarders (U) Ltd's Case (supura). The findings of the learned Justices of the Court of Appeal that Kiggundu Kamadi, Ismail Saali and their father Ssewankambo owned or occupied land other than Plot 975 were therefore not based on evidence outside the pleadings of the respondent and did not thus contravene 06 rrle 7 of the CPR. The Record of Appeal also shows that the learned Justices of the Court of Appeal did not receive any additional evidence in contravention of rule 30 (1) of the 978 981 984 987 990 oo? 999 1002 Rules of the Court of Appeal at all. The learned Deputy Chief Justice after re-evaluating the evidence of PW2, DWl and DW6 concluded that:- "It is euident from this euidence that the sellers Kamadi and Ismail Saali did not know the boundaies of their land. Theg must haue thought theg were selling what wqs theirs. I thus accept the appellant's straight fonaard euidence that the bibanja are en her registered lqnd, Plot 975, Block 215 and that Kiggundu PW2 ond his siblings including Saali own the neighbouing Plot 976." This ground too must fail. I now turn to ground 5 which was paraphrased as follows:- "\trlltether the learned ,htstlces oJ the Court ot Appeal ered 7n laut and in fdct uhen theg lwld thoi the demolition oJ the str.r:,ctttres ort the sult land wrzs not done bg the respondent?" Mr. Kyazze contended that the learned Justices of the Court of Appeal erred in law and fact when they found that the demolition of the appellants' structures on the suit land was not done by the respondent or her agent, but that it was carried out by Kampala City Council (KCC) in accordance with the Town and Country Planning Act, Cap 1005 996 39 1008 1017 1020 1023 1029 30. It was his further contention that in arriving at that conclusion the learned Justices of the Court of Appeal placed much reliance on the letter from the Principal Assistant Town Clerk but overlooked the fact that the respondent orchestrated the demolition. He argued that the learned Justices of the Court of Appeal disregarded the unchallenged evidence of Sempijja Peter (PW4) who was present at the site when the demolition was taking place. His testimony was that the respondent instructed the Grader driver who demolished the structures and later she paid him. According to learned Counsel, that piece of evidence was corroborated by the evidence of the respondent herself who admitted that she paid for the work that had been done. Mr. Kyazze wondered why the respondent would pay for a Grader and workers for a demolition being carried out by Kampala City Council. He submitted that the learned Justices of the Court of Appeal erred in law and fact when they found in those circumstances the way they did. In opposition to the above submissions, Ms Nandugga - Kabugo supported the findings of the learned Justices of the Court of Appeal that the demolition of the appellants' structures on the suit land had not been done by the respondent but rather by the KCC in accordance with the Town and Country Planning Act. She argued that the 1032 40 101 1 1014 1026 1035. 1038 1041 1044 1047 1053 1056 learned Justices of the Court of Appeal arrived at those findings after they had carefully re-evaluated the evidence on record. The learned trial Judge found that the demolition of the appellants'structures on the suit land was done by the respondent. After evaluating the evidence on record he concluded thus:- PW3 and PW4 gaue direct euidence that the defendant and DW6 used force from the grader to demolition the three incomplete structures. Their euidence was not challenged in cross-examination qnd in defence euidence. It is cleqr therefore that the demolition of the three incomplete structures was done bg the defendant." On appeal the learned Deputy Chief Justice who wrote the lead judgment with which the other two Justices of the Court of Appeal agreed, found that the demolition was not done by the respondent but rather by the KCC in accordance with the Town and Country Planning Act, Cap 30. She dealt with the issue as follows:- "The record indicqtes that the demolition was done in accordance with the Town and Country Planning Act, Cap 3O. The notice from KCC - Nqkaua Diuision dated 2Ah Nouember, 2003 reads:- 'Re: Remova,l of lllegal sttttctute 1059 41 1050 1062 1065 1068 1071 1074 1077 1080 c,c. Sgd: Hlgobero T. Stephen Principal Assistant Toun Clerk Nqkawrr Division City Aduocate Senior City Law Officer' On the 2nd January, 2004, the Ag. Senior Law Enforcement Olficer reported to the Principal Assistqnt Town Clerh Nakawa Diuision, that the demolition of the stntchre in Kganja Kulambiro hod been successfully completed according to his instruction, afier expiry of the remouql notice. Ex. D9. Later on in 2OO7, the appellant was giuen permission bg KCC to clear the rubles from the PIot with a grader. Police was in attendance. Earlier on, a notice/ summons dated 20- 1O-2OO3 had been issued by KCC to the 7't respondent to 1086 42 It has come to Council's notice that gou hante cqused constntction of an illegal sttttcture contra,ry to Cap.SO, Regulation of buildtng ntles. You qre therefore gluen 28 dags' notice wlthin tohlch to rentoae the sqld sttttcture. Failure to complg to (slc) this dlrective, Councll sha'll haue no dlternrrtlve but to demollsh 7t at gour own cost. BU a copg of thls notice, the Senior Citg Laut olficer is lnsfiitcted to ensz'tre compliance. 1083 1089 1095 1098 1 101 1104 1107 11 10 discuss her approued plan and land title to the suit land which she failed to respond to. It is thus plain thot the appellant hqd no role to play in the demolition, which was lawfullg catried out bg KCC under their lauful mandete." As stated earlier in this judgment, this Court as a second appellate Court will not interfere with the Iindings of facts made by a first appellate Court except where the first appellate Court has erred in law by failing to treat the evidence on record as a whole to a fresh and exhaustive scrutiny - (See. Bqnco Arabe Bxpanol -Vs.- Bank of Uganda (supra). The next is follows: ground 6 which was paraphrased AS 1113 43 1092' In the instant case, though the learned Deputy Chief Justice did not make reference to the other pieces of evidence on record in this regard, I cannot fault her as there is no set format to which the re-evaluation should conform. It is a question of style (See.Frcnc'is Sembuga -Vs- App Ports Serrrices (Ul Ltd, SCCA No. 6 of 1999. She re- evaluated the evidence on record and her findings are supported by the evidence on record. In the result, this ground too must fail. 1119 1131 1134 1137 '(Whether the leqrned Jrtstices of the Court, of Appeal ened in law and in fact when theg set qside the award of special and general damages autarded to the appellant bg the trial Judge." Mr. Kyazze contended that the learned Justices of the Court of Appeal erred in law and in fact when they set aside the special and general damages awarded to the appellants by the trial Judge. He pointed out that it is a well- established principle of law that an appellate Court will not interfere with nor reverse an award of damages made by a trial Court except where it is satisfied that the trial Court acted on a wrong principle of the law or that the amount awarded was extremely high or too low as to amount to entirely erroneous estimate of the damages. 1140 44 'l 1'16 1122 1125 1128 He relied on Francls Sembuga - I/s - All ports Seruices (U) Ltd, SCCA No. 6 of 1999 to support that proposition. Indeed in that case which was founded on breach of contract, the question arose whether an appellate Court can interfere with an award of damages made by a trial judge and this Court, Tsekooko JSC, observed thus:- "Art oppellate Cour-t, nonnallg lnterferes unth auqrd oJ dannages on certqin princlples. To justLfg Gt t appetlate Court retnrsing the amount oJ damages awqrded bg a fito'l Judge, tlrc appellate 1143 1146 1149 1152 1 155 1 158 1161 1164 Court should be satlsfied either that the triql Judge acted on sonte wrong prlnclple of law or thqt the qmount awqrded rras so extremelg high or so tEry sm:oll q.s to make |t, ln the Judgment of the appellate Court, qn entirelg erzroneous estimate oJ the damages to which tlrc platntiJf is entltled. See, Patel - Vs- Patidqr (7944) 7 7 EACA.7; TRAIL - Irs - Bouker Council of Kisrllnu (1971) EA 97 at 96." On the other hand, Ms Nandugga - Kabugo contended that the learned Justices of the Court of Appeal were alive to the principle governing interference by an appellate Court with an award of damages made by a trial Court as set out 1167 45 Learned Counsel submitted that in the case under consideration, the learned Justices of the Court of Appeal set aside the award of special and general damages made by the trial judge to the appellants on erroneous premise that the appellants were trespassers on the suit land, and neither bona I-rde occupants on nor did they laufirlly acquire the suit land and therefore, that they had no interest thereon. l,earned Counsel argued that it has been shown in the submissions for the appellants that the above conclusions of the learned Justices of the Court of Appeal were erroneous and prayed that the decision and orders of the Court of Appeal in this regard be set aside. 1170 1173 1176 1182 1 185 1 188 1 191 In that case, the learned Justices of the Court of Appeal interfered with the award of damages made by the trial Court and awarded a lower figure. This Court did not interfere with the award despite the Court of Appeal's interference. On general damages, learned Counsel submitted that the learned Justices of the Court of Appeal carefully re- evaluated the evidence on record and found that the appellants were trespassers on the suit land and therefore, 1 194 46 1179 a in Admlnlstrator Ggnero,l - Vs - Bwcnika Jam.es & Others, SCCA No. 7 of 2OO3. The principle echoed in that case was that: "It ls ttlte laut thqt an appellate Court should not lnterfere with an sward of damages bg a trial CourA unless the qwqrd is bqsed on an lncorect princlple or is manlfestlg too lo.w or too hlgh." Learned Counsel contended that in the case under consideration, special damages had not been proved as required by law. She submitted that such an award cannot stand. She cited HaJt Asum,qn Mutekanga - Vs- Equator @owers (U) Ltd, SCC/I No.7 oJ 7995 for the proposition that special damages and loss of profit must be specifically pleaded and strictly proved. This rule applies whether the suit proceeds interpartes or expa-rte. I 1200 1203 1206 1212 1215 1218 that the award of general damages in such a situation cannot stand. She supported the decision of the learned Justices of the Court of Appeal setting aside the award of damages by the tria-l Court to the appellants. It is important to reiterate that it is a well-established principle of law that an appellate Court shal1 not interfere with an award of damages by the trial Court unless the appellate Court is satisfied that the trial Court has either acted on a wrong principle or that the amount awarded was so high or so low as to amount to entirely erroneous estimate of the damages to which the successful party is entitled. In the instant case, the trial Court awarded to the appellants damages as follows:- "------- without proof bg documentary euidence, I feel that Shs.9O,O0O,OOO/= claim would be on a higher side. I uould award ---- "(d) Special damages of Shs.3O,OOO,OOO/: (e) General damages of Shs.5,0O0,O0O/: (f) Interest on (d) and (e) aboue at 22o/o per annum from the date of judgment till pagment in full; @) Costs of the suit". 47 1197 1209 1221 1224 1227 1230 1233 t r?o 1242 1245 There was no basis for the general damages. These are presumed to be direct and nahral or probable consequence of the action complained of (see. Strolm Bnr,cks Aktte Blog -Vs- Hutchinson (leos) Ac s2s - 526). In uieut of the finding that the respondents are trespcssers, these awards cannot stand. Theg are accordinglg set asidd. 48 1236 On appeal, the learned Deputy Chief Justice who wrote the lead judgment with which the other two numbers of the Court of Appeal agreed, dealt with the issue as follows:- "In uiew of the clear euidence on record under issue No.2 and 3 (supra) it is hard to see how these awards could haue been arriued at. They were not proued as required bg law, the special damages had to be specifically pleaded and strictlg proued. Theg cannot be inferred. See HaJt Asutnr:n Mutekanga - Vs- Eguator @outers (U) Ltd., SCCA No. 7 of 1995. I have read the record of appeal and I agree with the learned Deputy Chief Justice that in the instant case, 1248 1251 1254 1257 1260 1263 1266 1272 special damages had not been proved. In the plaint, the special damages were pleaded as follows:- (1) Value of building demolished - Shs. 80,000,000/= (2) Professional fee paid to the builders - shs. 10,ooo,ooo/= Shs. 9O,OOO,OOO/= The record shows that no evidence had been led to prove the value of the building demolished and the amount actuaJly paid as professional fees to the builders. The law requires special damages not only to be specifically pleaded but that they must also to be strictly proved. The proof requirement has thus not been met in this case. Secondly, there is a finding by the Court of Appeal based on the evidence on record that the demolition of the building was carried out lawfully by KCC under its lawful mandate. Thirdly, there are findings by the Court of Appeal, on the evidence on record that the appellants did not lawfully acquire the suit land and thus acquired no interest thereon but that they are trespassers. General damages are the direct and natural or probable consequence of the act complained of. The respondent had not been found guilty of any act against the appellants to attract general damages. 49 1269 i275 1278 1281 1284 1287 1293 1296 1299 In the circumstances I cannot fault the decision of the learned Justices of the Court of Appeal setting aside the award of damages. This ground would, therefore, fail. Ground 7: This ground was paraphrased as under: "Whether the learned Justices of the Court of Appeal erred in law and fact uhen theg allowed the respondent's counter-claim and granted the orders sought therein including general damages of UGx.1O0,0O0,O0O/= without ang justification qnd sulficient euidence on record o It was Counsel's contention that the decision of the learned Justices of the Court of Appeal was wrong as:- (1) It presupposes that the judgment was based on detailed pleadings but not on evidence. 50 1290 Learned Counsel for the appellants submitted that the learned trial Judge had dismissed the respondent's counter claim on the grounds that no evidence had been adduced to prove the claims alleged therein. He pointed out that the learned Deputy Chief Justice in her lead Judgment noted that the counter -claim was a detailed reproduction of the entire appellant's case and evidence with reliefs sought, and that there was ample evidence on record to support the counter-claim. 1305 1308 131 1 1314 1317 1323 He submitted in the alternative that the award of UGX 1OO,OOO,O0O/- was excessive, unjustified and not supported by evidence. He argued that though an award of general damages is within the discretion of the Court, that discretion must be exercised on credible evidence. He complained that the Court of Appeal has ordered the eviction of the appellants from the suit land on the wrong assumption that the appellant's bibanja were not on the suit land but on the un-pleaded Plot 976. He prayed that this ground be upheld. In opposition to the above submissions, Ms Nandugga- Kabugo supported the decision of the Court of Appeal allowing the respondent's Counter-claim and granting the award of general damages of UGX 100,000,00O/=. She argued that it is apparent from the record that the learned Justices of the Court of Appeal re-evaluated the evidence on record and found that there was ample evidence to support the counter-claim. She contended that the learned trial Judge erred in rejecting the evidence on record in this 1326 51 1302 1320 (2) That the counter-claim appeared to have been founded on the assumption that the appellants never filed a reply to the counter --claim, yet the appellants contested the claims therein and prayed for their dismissal. 1329 1332 1341 1344 1347 1350 regard. She submitted that failure by the learned Justices of the Court of Appeal to allude to any piece of evidence that supported the counter-claim was their style of re-evaluation as the extent and manner of re-evaluation are depended on the circumstances of each case. She cited Uganda Breuterles -Ys. - Uganda Ralluags Cotporatlon, (supra) for the proposition that there is no set format to which re- evaluation of evidence should conform. She submitted that it is apparent from the face of the record that the learned Justices of the Court of Appeal did re-evaluate the evidence on record. On the quantum of the general damages awarded, Ms Nandugga-Kabugo submitted that the learned Justices of the Court of Appeal re-evaluated the evidence on record and found that the respondent had suffered inconvenience caused by the high handedness of the appellants which denied her (respondent) possession and development of her land for a continuous period of seventeen years which, in her view, justified the amount awarded. She prayed that the decision of the Court of Appeal be upheld. The learned trial judge noted that the respondent did not name the children of Ssewankabo as defendants in the counter- claim nor adduced evidence to prosecute the same and concluded that the counter-claim was abandoned. He said thus:- 52 1335 1338 1353 1356 1359 1362 1365 1368 1374 1377 'As earlier on herein above stated, the defendant and her law5rer never adduced evidence in prosecution of the counter-claim. In my view, therefore, the counter-claim was abandoned by the defendant and it is accordingly dismissed with costs to the plaintiffs". The learned Deputy Chief Justice in her lead Judgment dealt with this matter as follows:- "According to the pleadings the counter-claim was a detailed reproduction of the entire appellants' case and euidence with the following pragers namelg that:- (a) The platnttJfs' suit be dismissed utith costs. (b) An eulctTon order to issue ago;lnst the defendant and euerybodg clalnlng tltle under her. (c) Permqnent inJunctlon restraining defendant from furlher trespassing on defendant's land. ldl General d,annages tor trespass. the the (e) Costs of the suit There was alreadg ample euidence on record to support the appellant's counter-claim that it was in respect of her father's share of the estate of her late grandfather, late Enos Kagodo. She was alreadg the ta 1371 1380 1383 1386 1389 1392 13S5 1398 1401 1404 1407 registered propietor of the suit land. The pleadings were detailed and so u.,as her defence euidence. The learned Judge erred when he decided to reject, especiallg when there was no defence filed in respect thereof. See Hatl Mutekenga - Vs- @uator @ouoers MLtd, SCCA No.7of1995. Hauing found that the respondents to be frespassers on the appellant's land, I would set aside the dismissal and allow the counter-claim. An euiction order would also be granted against the respondents with an injunction restraining them from further trespassing and or interfeing with the appellant's land." The learned Deputy Chief Justice suggested lead judgment that there was no defence filed counter-claim when she said, ln to her the That statement, with respect, is not correct as the ROA shows a reply or defence to the counter-claim from page 1O6 to 108. It might have been an oversight on her part. But it is curious that even the trial Judge and the lawyers representing the parties at the trial did not refer to the "When there was no defence filed in respect thereof." i410 1413 1416 1419 1422 1428 1431 1434 counter-claim and its defence in the scheduling conference memorandum. I would have expected that after reading the counter-claim and the defence thereto, issues arising therefrom would have been drawn for determination by Court. This was not done. Be that as it may, the counter-claim, read together with the defence thereto raised three issue:- (1) Whether the appellants lawfully acquired the suit land from the vendors and have interest therein, (21 Whether Ssewankambo and his children were lawful owners of the bibanja on the suit land and (3) Whether the appellants are bona hde occupants on the suit land having purchased the same from the children of Ssewankambo. From the above, it is clear that (2) above raised questions between the respondent and the children of Ssewankambo. I would have expected the respondent or her lawyers to have added title to the counter-claim setting out the n€unes of the relevant children of Ssewankambo as defendants to the counter-claim in accordance with O Vlll rule 8 of the Civil Procedure Rules. This has not been done. 1425 1437 1440 1443 1458 1446 1449 1452 In the Court of Appeal the issues are covered under:- Be that as it may, from the above issues arising from the counter-claim, it is clear that these are a repetition of what had - been raised and dealt with in the main suit and on the evidence adduced. Had the learned trial Judge properly directed his mind to the issues raised in the counter-claim, coupled with the evidence on record he certainly would have decided differently. All the three issues have been answered by the learned Justices of the Court of Appeal in the negative when they dealt with the appeal. The issues were covered in the trial Court under (a) whether the plaintiffs have any interest in the suit land and (b) whether the plaintiffs have a cause of action against the defendant. Issue No. 2:- Whether the Judge was correct in holding that the respondents lawfully acquired and have interest in the suit land. For the reasons given above, I cannot fault the learned Justices of the Court of Appeal in allowing the counter- claim. 5C! 1455 1461 Issue No 1:- whether the respondents were bona fide occupants of the suit land. 1464 1467 1470 1473 1476 1482 '1485 1488 On the quantum of general damages of UGX 100,000,000/= awarded to the respondent, the learned Justices of the Court of Appeal took into consideration the conduct of the appellants which they described as high handed coupled with the inconvenience they caused to the respondent for a long period of about seventeen years. These appeared to have been the factors which influenced the discretion of the Justices of the court of Appeal. I am aware that general damages are matters of discretion of the trial Judge and that appellate Court should not interfere with such an award unless it is satished that the trial Court acted on wrong principle or that the amount is so high or low as to amount to entirely erroneous estimate of the damages to which the successful party is entitled. In the circumstances I am satislied that the amount awarded in this case is so high as to amount to erroneous 57 1479 I think it is also necessary to bear in mind the right of all persons seeking access to Court to vindicate their rights. An award of exorbitant damages may have adverse effect, hrstly, by turning litigation into prolit making business and secondly discouraging or restricting Court accessibility to the well to do only. 1494 1500 1503 1506 1509 1512 estimate of damages the respondent as the successful party was entitled to. I would reduce the award from UGX 100,000,000/= to UGX 3O,0O0,00O /=. ln the result, this ground is allowed in part. I now turn to ground 8 which was paraphrased thus:- "Whether the learned Justices of the Court of Appeal erred in law and fact u.then theg failed in their dutg to properlg re-eualuate the euidence on record and thus cqme to a wrong conclusion!" Mr. Kyazze contended that he demonstrated in his submissions that the learned Justices of the Court of Appeal summarily considered the evidence on record, in advertently ignored material pleadings in the trial Court, failed to consider the facts agreed on during the scheduling conference, placed reliance on new evidence inconsistent with the pleadings despite protest from the appellants' Counsel in the Court of appeal, ignored the defence to the counter-claim and departed from the findings of fact by the trial Judge without alluding to any other evidence. 151 5 58 1491 1497 Learned Counsel submitted that the learned Justices of the Court of Appeal have failed to apply relevant provisions of the law in the context of the facts before them 1521 1524 1533 1536 1539 and failed to execute their duty under rule 29 (1) of the Court of Appeal Rules (3) Order the respondent to pay costs of this appeal and costs in the Courts below:- (4) As the appellant had already taken possession of the suit land, order the respondent to compensate the appellants at the current market value of the bibanja interest and all the developments that they had put on the land. He relied on Zaabue - Vs - Orien Bank, SCCrl No. 4 of 2OO7, for the proposition that if a bona fide transfer has been made to a third party, after the appellants'lawful acquisition, then the respondent must pay to the appellants the current market value of the property. The current market value would be determined by a qualified valuation surveyor approved by an independent body. In opposition to the above submission, Ms Nandugga- Kabugo contended that the learned Justices of the Court of 59 1 518 1527 1530 He prayed that this Court:- (1) Allows the appeal, set aside the decision and orders ofthe Court ofAppeal; (2) Uphold the decision and orders of the High Court; 1542 1551 1554 1557 1560 1563 1566 Appeal were alive to their duty as a first appellate Court as set out in Ugande Brewerles - Vs - Uganda Rallwags, SCCrl lVO. 6 OF 2OO7 and duly complied with it. She submitted that she demonstrated in grounds I - 7 above that the learned Justices of the Court of Appeal complied with their duty. She prayed that the appeal be dismissed with costs to the respondent, here and in the Courts below. Rule 3O (1) of the Court of Appeal Rules gives the Court power as a first appellate Court to re-appraise the evidence on record and draw its inferences of facts. That provision reads:- "(1) On appeal from a decision of the High Court acting in the exercise of its oiginal juisdiction the Court mag:- (a) re-appraise the euidence and draw inferences offact; (b) In its discretion, for sufficient reasons, take odditional euidence or direct that additional euidence be taken bg the trial Court or bg a Commissioner" In .Fr. /VARS.EMSIOir BEGIIIWISA AND OTHERS -vS- ERIC TIBEBAGA, CIVIL APPEAL NO. 17 of 2OO2, Mulenga JSC, (RIP) traced the legal obligation on a first appellate Court to re-appraise evidence in the common law, rather 1569 60 1545 1548' 1572 1578 1581 1584 1587 1590 1593 than in the rules of procedure. He was considering the argument of Counsel that Court was under no legal obligation under rule 29 of the Court of Appeal Rules, 1996, now rule 3O(1) above to re-evaluate the evidence on record. Then he said:- "I notice the light change from the wording of the otheruise identical predecessor to that rule, i.e. r.29 (1) of the Court of Appeal for East Africa Rules 1972 which prouides that "the Court shall haue power, (a) to re-appraise euidence". In mg view, houteuer, that change did not alter the purport of the rule. Bg either tuording, the rule declqres the Court's pouer to re-appraise euidence, rqther thqn impose an obligation to do so. The legal obligation on first appellate Court to re-appraise euidence is founded in the common lana, rather thon in the rules of procedure. It is a uell settled pinciple that on a first appeal, the parties are entitled to obtain ftom the appeal Court its oun decision on issues of fact as uell as o..f lau. Although in a case of conJlicting euidence the appeal Court hqs to make due qllowqnce for the fact that it has neither seen nor heard the witnesses, it must ueigh the conflicting euidence and draw its own inference and conclusion. This pinciple has been consistentlg enforced, both before and afier the slight change, I haue just alluded to". 1596 1575 ' 61 1599 1602 1605 1608 161 1 1614 1617 1620 62 The learned Justice cited Coughlan - Vs. Cumberland (1898) lCh.7O4, where the Court of Appeal of England said on the principle that: oEuen where, as in this case, the appeal turns on a question of fact, the Courl of Appeal has to bear in mind that its dutg is to rehear the case and the Court must reconsider the material, before the Judge with such other materials as it may haue decided to admit. The Court must then make up its ou)n mind, not disregarding the judgment appealed from, but carefullg weighing and considering it: and not shinking from ouer-ruling it if on full consideration the Court comes to the conclusion that the judgment is wrong Where the question anses which witness is to be belieued rather than another and the question turns on manner and demeanou4 the Court of Appeal alwags is, and must be, guided by the impression made on the Judge uho saw the pitnesses. But there mag obviouslg be other ciranmstances, quite apart from manner and demeanou1 which mag show uhether a statement is credible or not; and these circttmstances maA 7 1623 1626 1629 1632 1635 1641 1644 bJ warrant the Court in differing from the Judge, euen on a question of fact turning on the credibilitg of pitnesses uhom the Court has not seen.' This Court has recently reiterated that principle in Bogere Moses - Vs. - Uganda, Criminal Appeal No. I of 1997 where it said: "What couses concem to us about the Judgment, hotaeuer, is that it is not apparent that the Court of Appeal subjected the euidence as a whole to scruting that it ought to hque done. And in particular it is not indicated anyuhere in the Judgment that the materiql issues raised in the appeal receiued the Court's due consideration. While we would not attempt to prescibe ang format in which a judgment of the Court of Appeal should be witten, we think thot where a material issue of objection is raised on appeal, the appellant is entitled to receiue an adjudication on such issue from the appellate Court euen if the adjudication be handed out in summary form ..... In our recent decision, in Kifamunte Henrg - Vs - Uganda, we reiterated that it was the dutg of the first appellate Court to re-ltear the case on appeal 1638 1647 1653 1656 1665 As seen above, the emphasis is not on the rule of procedure, i.e. rule 30 (1) of the Court of Appeal Rules which gives power to a first appellate Court to re-evaluate the evidence on record, but rather on the established, common Law principle stated above which gives legal obligation to a first appellate Court to give the evidence on record, as a whole, a fresh and exhaustive scrutiny and to make up its mind on it. \ 1650 1659 1662 bg reconsidering all the mateials which were before the tial Court and make up its oun mind -- --. Needless to saU that' failure to eualuate the material euidence as a uhole constitutes an error in law-----." In the instant case, it is apparent from the face of the record that the Court of Appeal subjected the evidence on Record to a fresh scrutiny though the extent of the re- evaluation may raise concern but that is a matter of style as there is no set format to which re-evaluation of evidence by a hrst appellate Court should conform. For instance, on the issue whether the appellant lawfully acquired the suit land and have interest therein, the learned Deputy Chief Justice dealt with the matter thus:- 1668 64 / 1671 1674 1677 toSu 1683 1686 "the respondent bought the bibanja from Kamadi Kiggundu (PW2) and Ismail Saali, both sons of Ssewankambo. These two who happen to be the appellants'relatiues had no authority to sell bibanja which u)ere not theirs. The appellant explained her relationship to the uendors thus: 'theirs father was a son to my aunt. He was called Ssewankambo. The mother of Ssewankambo was called Mariam Namubiru. She benefited from the estate of the late Kagodo and got 1 acre. Ssewankabo bought from them. Ihis ,b 1 plot 175 at that time. The family of Ssewankambo sold to others. This acre does not form any part of my land. My land is plot 975 and lherrs is plot 976 and that; where their house is. / got my fathels share of the estate of my late grandfather. I got the title in early 2002 from the Ad m i n i strator G e nera I's office: - l"hrs euidence was not contradicted bg Kiggandu Kamadi (PW2) who wqs the onlg witness from the familg. He sfares.- "l know Nuulu Nalwoga as the mailo land owner of the land where there is our fathels kibanja. I first saw / 1692 65 1689 1695 1698 1701 1704 1707 1710 1713 I thus accept the appellant's straight forward euidence that the bibanja are on her registered land, plot 975 block 215 and that Kiggundu PW and his siblings including Saali Ismail own the neighbouring plot 976. ) 1716 66 Nalwoga since childhood as a member of our family because she has a relationship with my aunt. Our kibanja is very big. I know Enos Kagodo, he was my great grandfather. My father came to own this piece of land long time ago------. We sold our kibania to him and Mr and Mrs kato. I could not tell Kato of any landlord because the landlord was not known to us --- Nalwoga is not disturbing us because she knows that we are bibanja holders.' DW6, Mukalazi Motrammed Ilagodo 62, confirmed that Ssewankanbo's land neighbours that of Nalwoga: 'l know some few children of Ssewankambo. There are two boys on that land--Nalwoga's land is different --. It is euident from this evidence that the sellers, Kamadi and Ismail Saati, did not know the boundaries of their bibanja. Theg must haue thought theg were selling uhat was theirs. I 1719 1722 1725 1731 Theg could not sell whot utas not theirs. The purported sale was therefore, uoid ab inition. The 2"a respondent's testimong throuts more light on this:- 'I don't knout the size of the land I bought in 1996. Euen I don\ knout the size of the land I bught in 2O01. I bought kibonia. I uas not concerned uith the land title. I am a lhtganda, I knout the rules gouerning kibania. I did not trg to find out utho uas the oumer of the mailo land. I did not bother aslcing the children the ouner of the land. I did not get the consent of the mailo ou)ner -. I did not ask the sellers uthether theg utere paging Bustrulu to the mailo land ouner -. I am not disputing her oumership.' 67 1728 1734 1737 The above passage from the judgment of the Court of Appeal indicates that the learned Justices re-evaluated the evidence on record and thereby complied with the duty imposed by the established common law principle stated above. Though I would have wished the re-evaluation had been in a greater detail, but that is a matter of style. 1740 7 1743 1746 1752 In the circumstances I would not fault the learned Justices of the Court of Appeal in this regard as they did comply urith the duty imposed on them as first appellate Court. In the result, the ground would fail. Conclusion Finally, I would allow the appeal in part, to the extent that the general damages awarded by the Court of Appeal to the respondent are reduced as stated above. The appellants would pay 80% of the taxed costs of this appeal, here and in the Courts below. LJ t'lr-+--.-h 1755 Dated at Kampala this day of 1758 1761 rr L,a fl rnj *--O G. M. OKELLO AG. JUSTICE OF THE SUPREME COURT. 68 2014. 1749 r I , ICORAM: KATUREEBE; KITUMBA; JJSC; ODOKI; TSEKOOKO; OKELLO; AG,JJSCI ' CIVIL APPEAL NO. 03 OF 2013 BETWEEN r. MARGARTT I(ATO} 2. JOEL I(ATO. l AND NIruLU NALWOGA RESPONDENT. [Appeal from the decision of the Courl of Appeal of Uganda at Kampala (Mpagi- Behigeine, DCJ; Kitumba; and Arach-Amoko, JJA) dated 21.t March, 201 1, in Ciuil Appeal No. 17 of 2OO9l. JUDGMENT OF KATUREEBE JSC. I agree with the Judgment of my learned brother, Okello, JSC that the appeal be allowed in part in that the general damages awarded by the Court of Appeal to the respondent be reduced for the reasons stated in that judgment. As all the other members of the Court agree, this Appeal is allowed in part. The award by the Court of Appeal of damages of Shs. IO0,O00,O0O/= One hundred million) is reduced to Shs. 3o,0o0,O00/= (thirty million only). The appellants will pay SOVo of the taxed costs of this appeal in this Court and in the Courts below. a ,L day of .. APPELLANTS 20t4. I *zZ*-Z------a B.M, KATUREEBE JUSTICE OF TI{E SI'PRIME COURT / THE REPUBLIC OF UGANDA IN THT SUPRIME COURT OF UGANDA AT I(AIITPALA f4*J- Dated at Kampala this \ 7 t (CORAM: 1. MARGARETKATO 2.IOEL KATO THE REPUBLIC OF UGANDA KATUREEBE, ISC ODOKT,TSEKOOKO, OKELLO AND KTTUMBA Ag. IISc) BETWEEN APPELLANTS AND NULU NALWOGA RESPONDENT - [Appenl from the judgment of the Court of Appenl at Kampala (Mpagi Bahigeine DC| Katnrma, Arach Amoko, JIA) dated 17tt, Februnry, 2011 itt Court of Appeal Ciui Appeat No.79 of 20091 IUDGMENT OF KITUMBA,ISC, I have had the benefit of reading in draft the judgment of my learned brother Okello J.S.C and for the reasons he has ably given, I agree with it. I a-lso concur with the orders he has proposed. Dated at Kampala, this------ day of - lu-1t9/1---- 2014. Cr.tG Cit \.,-\,*-. C.N.B. KITUMBA AG.JUSTICE OF THE SUPR.EME COURT 7U ) IN THE SUPREME COURT OF UGANDA ATKAMPALA CIVIL APPEAL NO. 03 OF 2013 r IN THE SUPREME COURT OF UGANDA AT KAMPALA (CORAM: KATUREEBE, KITUMBA, JJSC, ODOKI, TSEKOOKO AND OKELLO, AG. JJSC) 1 2 MARGARET KATO} JOEL KATO ) AND NUULU NALWOGA ) :::::]:::::: RESPONDENT JUDGMENT OF ODOKI, AG JSC I have had the benefit of reading in draft the judgment prepared by my learned brother Okello, Ag JSC and I agree with his judgment and the orders he has proposed. 2{ Dated at Kampala this ... BJO o AG. JUSTICE OF THE SUPREME COURT c ,/ I I t APPELLANT THE REPUBLIC OF UGANDA CIVIL APPEAL NO. 03 OF 2013 BETWEEN lAppeal trom the decision of Coutt of Appeat {Bahigelne DCJ, Kavuma and Arach Amoko, JJA, deted 21"t March 2011, in Civil Appeat No 17 of 2OOC|. day of ...M+a}..2014. I I THE REi,I;BUC OF LGAI\jDA IN THE SUPREME COURT OF UCIAI\DA AT IGTIPATA 5 l0 25 l5 Between APPELLANTS. velsus l.ip1x'itl titn tlr'jtrfu'tttt'ttt ol tlx'('<rul <tl-.'lp1x';l at K;unlnla (MltyjJ]alrytirc, l)(.'1., kutnut &,,htrb.lmtkt,.ll.4), rl; ul I7 Manlt 201 I it ('<tut t '.'l14xv (ir .'114x'al .\tt. 7!) til 2(X)9.) 30 Judgment dTsekooko. Ao. JSC. I have had the advantage of reading in d-raft the judgment prepared by my learned bnrther, Okello Ag. JSC. I agree with his conclusions that the appeal succeeds in part. I also agree with his proposed order as to costs' 1 MARGARETKATO 2. JOELKATO Delivered at Kam 'fsekooko .J ustie of the Supreme Court. p,r^ iln" ?...* a^y oJ.UE)\mu,. I J.W \ 35 Ps.lofl Cnil Aplxnl No. 07 oI'2013. {Coram: Katureebe, JSC., Odoki, Tsekooko, Okello and Kinmba, Ag. JJSC.} 20 NULU NAL\AOGA RESPONDENT )