Kampala District Land board and Another v Babyeyaka and Others (Civil Appeal 16 of 2002) [2003] UGSC 48 (17 December 2003)

i a THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT MENGO ODER, TSEKOOKO, KATTYEIIIAMBA AND MULENGA, KATO JJ.S.C.) 1 2 1_ 2 3 4 5 5 CIVIL APPEAL No. 15 OF 2OO2 BETWEEN I(A}'PALA DISTRICT IJAND BOARD ] ........APPELIJANIS GEoRGE MITALA ] AND VAT{A}ISIO BABWEYAKA I EDWARD KIZITO ] ROBERT TI'MUSIIME ].........RESPONDENTS RoBERT KIKo!{EKo ] SENGENDO SSEMPAI..A ] APOI,LO NABEETA I [Appeal from the judgment of the Court of Appeal at Kampaia (^[fukasa-Kjkonyogo, DCU, Oke7lo and Twinomujuni 'J,J.A) daeed 6'th Augrust, 2OO2 in CiviT AppeaT No.20 of 2002l This is a second appeal arising from Ehe judgment the CourE of Appeal which allowed an appeal by Respondent.s against the decision oE the High Court. The facts of the case may be simply stated: - 1 of Ehe (CORAM: WDGMENT OF TSEKOOKO, .JSC 't The first appellant. is a body corporate created under the Land Act, 1999, and is responsible for administration and management of Iand in Kampal-a District. The respondents, who are some of the twenLy original plaint.i.ffs at the tria1, were occupants of a plot of land situaLe at Ndeeba in t.he suburb of the City of Kampala, Kampala District, and described as plot 1O2g block ? Kibuga, hereinafter referred to as the ',suit 1and". On Bth November, 2oOO, the 1"r appellant allocated Ehe suit land to t.he 2nd appellant for a lease. A formal lease was subseguent.ly offered to the lat.ter. He accepEed the lease offer and was on 20/1,!/2000 registered as the propriet,or of the suj-t. Iand. A CertificaEe of Title in respect thereof was accordingly issued to him. The respondents who felt aggrieved by the leasing sued the appellants jointly and severally seeking, int.er aIia, declarat,ions that the respondents were bona f ide/lawful occupants and,/or cust.omary owners of the suit land; Ehat, Lhe 1-"t appellant wrongfully leased the suiE land Lo Ehe 2nd appellant and thaE. Ehe latt.er obtained the lease thereof wrongfully, unlawfully and f raudulent,ly. Both appellants filed Lheir respective writt.en StaEements of Defence in which t.hey denied the respondent.s' c1aim. 2 t r After pleadings in the High Court were closed, Katutsi, J, held a scheduling conference at which facts agreed upon were recorded as follows: - L. ?he 6 pTaintiffs are occupants of the sui t property. 2. Second defendant is the registered proprietor of the sujt property described as feasehoTd Val_.292 Folio 9 BTock 7 pTot LOZB at Ndeba. 3. The first defendant is the statutory owner of Ehe suit property. Thereafter 2l seEs of documents for the respondent.s were admitted in evidence. None was admitted for the 1"t appellant but ilpbotocopies of drafts for compengatjon for a77 the plaintjffs, were admitted as exhibit. DI for the second appellant. 2 Whether the plaintiffs are customary owners of suit Land. Whether the sui t land was avaiTabTe for leasing the second defendant at the time of the grant Lease. WheEb,er the second d.efendant - obtained certificate of titTe 7awfu77y. 3 the to of 4 the This was followed by the framing of five issues this way: 1-. Whether the plaintiffs are iawful or bonafide occupants of the sujt _?.and. 3 5. Remedies. The learned trial judge delivered 2]-/t2/200L. In it, he alluded to his brief judgment on section 30 (1) of t.he Land Act, 1998. He then stated: ',fhere is no evidence on record nor is it agreed thaE plaintiffs were persons occupying the Tand by virtue of the repeaJed laws mentioaed abowe. There is no evidence nor was it conceded or argued that the pTaintiffs entered upon the suit property with the coDsent of the registered owner. There is .no evjdence to sugrgest that, the pTaintiffs were customary tenaats whose tenancy had not bEen disc-Losed or conpensated for by the regist,ered owner. fn 4 \ It should be not.ed that alrhough the plaint alleged Ehat. the lease was regist.ered fraudulently, fraud was not made an issue. The suit was fixed for hearing on t/)_t/2001. ApparenEly t.he hearj-ng did not Lake p1ace. Somehow, on 3t/1,0/}OOL counsel for the respondents filed their wriEten submissions. The Znd appellant filed his written submissions on L/LL/2OOt which was followed by the written submission of t.he lst appellant, which was filed on s/Lt/2007. short there is nothing on plaintiffs under t}le a.rnbit Ehe Land Act, 1998,, record to of secCion bring the 30 (7) ot The learned judge then briefly discussed who is a "bona fide occupant" in terms of S.3O (2) of the Act. Thereafter he held that. the respondents were not. bona fide occupants. So he answered the first and second issues in the negat,ive. In consequence he answered the third and fourt.h issues in the affirmative. It is a 1ittle puzzling thaE the learned trial judge fixed a date for hearing evi-dence, but he apparently cancelled that, and relied on document.s. He then decided the suiE on basis thaE there was no evidence. In Ehe Court, of Appeal there were eighE grounds of appeal . The seventh ground of appeal complained that, t.he judge erred when he decided the case against the respondents without affording t.hem proper hearing. Oke11o, iI .A, delivered the lead judgment with which the ot.her rTustices of Appeal on the panel agreed. At. page 7 of hj-s judgment., the learned .TusLice of Appeal lamented the conduct of t.he trial by Lhe t.ria] judge j.n Ehese words : nAt the scheduling conference &el,d on ZS/9/2OOL, adnitted facts were recorded. Docunenlary evidence t+as received and issues for determinatlon of the court rere f rarned. Thereafter the case was set 5 t down for hearing on J./17/2007. However, the pronised hearing was not conduct,ed, thus shutting ouf oraJ. evidence. CounseJ, for boEh partjes and the triaJ, court appear to have agreed, tftat the fra.med issues coul,d be determined on the law (SiC. ) admitted facts and the d.ocumentary evjdence received aJ,one. Counsel, for both parties then fiTed written su.bmjssjons which were foTlowed by Ehe judgment of the Court. .[Io oraJ, evjdence was caJ,J.ed. I think that was a flaw. The jud,gaent of the tria-L judge jndicated that those jssues could not have fairTy .been detera,ined without oral evid.ence. The trial judge remarked in hjs judgment on severa-l, occasjons that there waa no evidence to prove this or that. Thl_s ehortcoming cou.Id have .been avolded had the promised hearing been cond,ucted. The Tacking evldence couJd probabTy have been adduced. .t,earned counee-L for the appelJ.ants made hal,f-hearted complainE before us a.bout this polnt and abandoned jt. Ire even abandoned ground Z which r{ras on the point. I therefore cannot pursue the point any furthern This means t.hat. the learned ,Justice of Appeal held that t.here was a mist.rial . I cannot comprehend why the learned Erial judge d.id not hear oral evi_dence on +/:-t/2)Ol . If t.here was change_ of heart by any party about adducing oral evidence, 6 ./ this should have been recorded. In his lamentation about absence of evidence to prove cert.ain points, as quot.ed earlier, t.he learned Justice of Appeal does not. bLame it on failure by any party to adduce evidence. Could t.his have been due Eo Ehe inexperience of Lhe t.rial judge and advocat.es in the impJ_ementat.ion of the new rules of Order XB of Cp Rules which had come into force j-n 1998? There is no ready answer. However I can certainly say thaE by the Eime the trial judge wrote his judgement he was aware t.hat. mat.erial evidence should have been adduced t,o enable him decide the case on merit. I t.hink that at that st,age it would have been prudenE for the trial judge to have stopped writing Ehe judgment. He should have asked the parties to adduce evidence or give reasons for noL doing so. Failure t,o do so rendered the trial a mistrial . In spite of the misgivings which the Court of Appeal had about the conduct of the trial, t.he court did not order a reErial but. decided the appeat on merits and reversed the decision of the trial judge. It can be said t.hat in normal circumstances, where a t.rial is conducted properly, the CourL of Appeal would be justified in deciding the merits of the appeal on the basis of whaEever material there was on the record. But. Ehe t.riaI in this case was fundament.ally defective. The appellants filed t.he following grounds of appeah 7 i u7. The learned .Tustices of Appeal erred in law when Ehey held that the oecupation of the suit Tand by the respondenEs without any .Lease or Ticence f rom the cont.rolTing authority constituted their customary right of occupancy. 2.The Jearned r.Tustices of Appeal erred in law and fact, when they held the respondents to be customary owners of Ehe suit l,and without evidence to prove the custorns applicable. 3.The J,earned rlusCices of Appeal erred in when they hel,d that the respondents oceupied the suit tand or bought it those who had occupied it unchalTenged 40 years. fact had from for 4.The learned Justices and fact when they DistricE Land Board the suit J.and. of Appeal erred in 7aw held that the Kampala had no authori ty over 5. fhe .Learned .Tustices of Appeal erred in law when they heJ.d that the procedure prescribed in the Land Regulat,ions, S.l No.76 of 200L, waa appTicable to Che a-Ll,ocation of the suit land. 8 6. The Tearned ,.Tustices and fact when Ehey had not been pJeaded of AppeaT erred in Law re-Zied ol2 f raud which and strictLy prove. It is obvious that. most., if noE all, Ehe objections in the above grounds of appeal hinge on evidence partly contained in the documents admit,ted at the scheduling conference and part,ly on speculation abouE. missing oral evidence which was never given because of the procedure adopted by the trial court. In the light of what I have pointed out above and of the order I intend to propose, it is not desirable t.o discuss the wriLten submissions filed by both sides. In be my opinion adduced to Ehis is a establish case where oral evidence should claims of each of the parties. I would therefore allow this appeal , seE aside the decisions and orders of Ehe two courLs below except orders made during scheduling conference. I would order t.hat the trial of the suj.t should proceed by recording whatever oral evidence each party may wish Lo adduce. The scheduling conference which was held on 26/9/200L should form the basis of the resumed Erial . The case should be remit.ted back Eo the High Court for that. purpose. Considering that which has led Lo is ttre error of the Lrial court would order that each 9 it thi s I I decision, I \ parEy bears iLs own cost.s here and in the CourL of Appeal . The costs in the t.rial court should abide the resulEs of t.he resumed trial . Dated at Mengo tnis...l.:A....aay of....5-*..r;.rr,.cr-2 003 . iI .W.N. TseJr oko .TUSTI OF SUPREME COURT [,, )\ Lr. lver, lY J ffi, lrt /fuir,ttea- l" Wr U-rvu,^agO< 1-" frr+?"a [,u 4' [t A-.; ,,) v lo THE v\ 7 v-) Arpr'q"" AM T ) W el^k .) 4 THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT MENGO (CORAM: ODER, TSEKOOKO, MULENGA, KANYEIHAMBA .lJ,s.c.) AND KATO, CIVIL APPEAL NO.16 0 F 2002 BETWEEN AND VINANSIO BABWEYAKA EDWARD KIZITO ROBERT TUMUSIIME ROBERT KIKOMEKO SENGENDO SSEMPALA APPOLO NABEETA UDGMENT OF DER J (Appeal from the judgment of the Court of Appeal at Kampala (Mukasa-Kikonyogq DCJ, Okelto and Twinomiiini, n.n,) aitea 2/5/2OOZ in Civil Appeat No. 6 /g/ 2OO2) 1 2 3 4 5 6 APPELLANT :::::: RESPONDENTS I have had the advantage oF reading in draft the judgment of my learned brother, Tsekooko, JSC. I agree with him that ffre appeal should be alloweo and that the decision and orders of the court oi Rppeat and of the High Coun should be set aside. The case should be remitted to tne High Court for completion of the trial. I also agree with orders for costs as proposed by Tsekooko JSC. 1. KAMPALA DISTRICT LAND BOARD 2. GEORGE MITALA Since the other members of the Court also agree, the orders of the Court shall be as proposed by Tsekooko JSC. ..day of o)\A (k A. H. O. ODER JUSTICE OF SUPREME COURT \ Dated at Mengo this......l .r.. .;. ..2003 IN I }IF, SL]PREMI] COLJR-I OT' UGANDA AT MENGO (CORAN{: ODER' TSEKOOKO' MLILIiN(;A' KANYEIHAMI}A' KATO 'l'ls( ) ('lvlL AI'PEAt. NO. t6 0F 2002 BETWEEN I 2 I. VANANSIO BABWEYAKA 2. EDWARD KIZI'I'O 3. ROBERT TUMUSIIME 4. ROBERT KIKOMEKO 5. SENGENDOSSEMPALA 6. APOLLONABEETA l'}Pt:l.l.AN I ::::::: :::: :::: ::: :: : RESPONDENT ..2003 KAMPALA DIS'I'RICT LAND BOARD} GEORGE MIIALA } ANI) ) l l I I ) ) (Appeal .from the juclgment of the Court of Appeat,(Mukasa-Kikonyogo' DCJ, okello ond Trinomuiuii LL''\ at rimp^iu^aated 6't' August 2002 in Citil APPeal No' 20 o'f 2002 JUDGMENT OF MULENGA JSC. I have had the benefit of reading in draft the judgment of my brother Tsekooko, JSC. I agree with him that the appeal should be allowed' I also agree with the orders he has proposed' day of .... Datcdat Merigo this I J N Mr.rlenga .IIISTICE OF TIIE, ST]PREME COI']RT THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT EMNCIO CTVIL APPEAL NO. 16 OF 2OO2 BETWEEN 1. KAMPALA DISTRICT LAND BOARD 2. GEORGE MITALA :::::: ::: ::::::::: APPELLANTS 1. VANANSIO BABWEYAXA 2. EDWARD I{IZITO 3. ROBERT TUMUSIIME 4. ROBERT KIKOMEKO 5. SENGENDO SSEMPALA 6. APOLLO NABETA : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : RESPONDENTS I I I I I I (Appeal front the jurlgntetrt . of tlrc Court Kontpolrt (ltlukasa- Kikonyogo, D.C.,J., Tttittomujurri, J.J.A, ) doted 6th August, 2OO2 No. 20 of 2OO2). of Ap1rcal at Okello t rr trl in titil Apperrl t t( Dated at Mengo this...t (lal of , 2003 ^!r4 ,bl t G.w. KANY HAMBA (CORAM: ODER, TSEKOOKO, MULENGA, I<A||YEIHA.IIIBA, KATO, J.J,S.C.) I l WDGMEI{T OF I{AI{YEIHAMBA. J.S.C. I have had the benefit of reading in draft the judgment of Tsekooko, ,JSC. I agree rvith him that the appeal should be allorred. I also agree rvith the orders he has proposed. AND l qusrlqE !E fHE qqrBEuElerJBT I I 2 l'II E RltPtrllt.t(' or' [:(;ANDA t\ I'il[] st Pt{t.t\1t.. ('()tiR't ()1.'t (; \\t).\ AT I\TENGO (CORAM: ODER,TESEKOOKO, l\{ULENGA, KANYEIHAMBA KATO JJ.S.C) JUDG t\t ()tf ('. l\1. TO. JSC. ctvil. APP||AL NO. l6 0F 2002 KAMPALA DISTRICT I,AND BOARD } GEORGE MITALA }:::::::::::::::::::::::: APPELI,ANTS .\lil) VANANSIO BAB\YEYAKA EDWARD KIZITO ROBI.]RT TUIIIUSIINTE ROBT]RT KIKO]IIEKO SENGENDO SSENIPALA APOI,I,O NABE,ETA t : ::::::::::: :::::: ::::RESPONDENTS I ., 3 4 5 6 (Appeal from the judgment of the court of Appeal (Mukasa-Kikonyogo, DCJ, Qlello and Jrvinomujuni JJ.A) at Kampala dated 6th August, 2002 in Civil Appeal r:No.20of2002.. , I havg had the idvantale of reading the judgment of my bqother 'I'sekooko, JSC, 'in draft. I agree with lum;rhat'$ris- appeal should be allowed. I also agree with the orders he has propbsed. Iwould allow thg appeirl.. Dated at Mengo this 1t4 aay or .bar*r.*.((noot I \ t ..r) It I.t't'\\'l,t tiN a l l l ) I I ) tr . t,, . C.M. KATO JUSTICI.J, OF THE SUPREME COURT