Lutaya v Stirling Civil Engineering Company Ltd (Civil Appeal No. 11 of 2002) [2003] UGSC 62 (11 November 2003)

IN TTIE SUI'II.EMB COURT OF UGANDA HOLDEN AT MENGO Coranr:Oclcr,Tsekooko,Mulenga'Kanyeihamba'K:rtoJ'l'S'C' CIVIL APPEAL No'l1 of 2002 Betrvcetr Antl JUSTINEE.NI.n*.LUTAYA:::::::::::::::::::::::::::::::r::::::::At'PELLANT STIRLIN(; CIVIL ENGINEERING COMPANY LTD.::::::RESPONDENT @ppeal trgainst the whole decision of the Court of Anpeal (Okello' Mpagi- Bahigcine, EnsTvat.r' JJ A;;'; k;;plh datect 2s"7'o i' i' ci'it Appeal No 62/99) .tUD(; NTI,]NT oF ivll-jL ENGA .r.s.c. Justine L,.M.N.Lutaya, the appellant' sued Stirling Civil Engineering Co Ltd ' the respotrclcntinthel{ighCoirr.t,claimingclarrragestbrtr.espassonlandcomprisedin rnailo Register Kyaggwe Block 191 PIot 34 at B\^'awanya' "the suit land"' The Irrigh court disrnissed her suit. and subsequentry the coun of Appeal dismissed her first appeal. She now appeals to this Court' The appellant purchased the suit lancl in l98l' tbr purposes of stone quarryrng' She was registered as sole marlo orvner of the suit land on l6 June '81' In 1984' she glanted a lease of the sLrit land for 49 years' to Timber and 'lools Ltd" "'tT company", in rvhich she was a shareholcler' Her son Mulangira Lutaya' Karra and 1 the said Karia's f'ather were also shareholders in TT Company' By virtue of its shareholding, TT Company was non-African' The lease was registered as an encurnbrance on the lnailo title' TT Company was to carry out the quarrying business on trre suit rand. However, owing to insecurity in the area at the time, TT Cornpany did not move onto the land immediately ln lg88' Mulangira Lutaya disco'ered that the respondent was carrying out quarrying operations on the suit land, excavating stone, gravel and murram' for road construction' The respondent had entered onto the land, without the appelrant's consent or knowledge. Mulangira Lutava tried to stop the respondent's operarions' but in vain' He instructed advocates to take out court action' Two suits were taken out in the name of TT Cotrpany as lessee. The first, Civil Suit No M39/88' was filed in the Chief Magistrate's Coufi at Mukono' That court granted an injunction restraining the respondent but the respondent apparently ignored it' The second' Civil Suit No.475lgl.wasfiledintheHighCourt,butappearsnottohavebeenpursued' Initially,whencontacted,therespondentcontendedthatitentereduponthesuit land and carried out the said operations under Iicence given by one Ruth Sirimuzawo, who it took to be the owner of the land' In the meantime, Ruthsirimuzawo instituted in the High Court' Civil Suit No.897/88,againsttheappellant,T'fCornpanyandtrvoothers'lnitsjr'rdgment datedl0June,g4.tlreHighCourtheldthattheappellantwasthelawfulownerof the suit lanci. It also declared that no leasehold title ever vested in TT Company, becar"tsetlleagreementtolease,wasmadebeforeobtainingtheMinister,sconsent. Subsecluenttothatjudgment,therespondentagreedtonegotiatewiththeappellant onwlratitshotrldpayforthematerialsithadexcavatedfromthesuitland. Unflofttrnately, no agreement rvas reached ln May '95' the appellant decided to colnnlence the suit tiorn which this appeal emanates' 2 Iritheplaint.shepleadedthatshewastheregisteredproprietorofamailoestatein the suit land arrcl that a lease she had granted to the lessee company was nullified' She pra,ved lot, itlter alia, general, exemplary and aggravated damages for trespass' andtbrthevaltteofmaterialsexcavatedfromthesuitland,aswellasforinterest andcosts.Therespondent,whileadmittingthatitcarriedouttheoperatlons complained of under licence of Ruth Sirimuzawo, pleaded that the appellant sut'fered no loss, and in the alternative that she had no capacity to institute the suit' andthatshewasprecludedfrornsuing,whilethesuitsbyTTCompanvonthe same matter, were still pending' At the trial, five issues were frarned for determination.butthesuitwaseventuallydecidedonthefirsttwo,whichwere 1i'amed thus: l. whether the suit lund belongs to the plaintffi 2. whether rhe defendont trespassed on the plaintiffs luntl' The trial coult ans\\'eled both issLres in the negative. The tlrst appeal was on I I grounds ofappeal, but the Coun ofAppeal decided it on one ground only' It held thatnotwithstandingherruling,onaprelirninaryobjection,thattheplaintdisclosed a cause of action, the learned trial judge, after hearing evidence, rightly found that the appellant hacl no cause ofaction, and so lacked the capacitl'to sue. She was not bound by the holding on rhe prelirninary objection, which was based on an assumption that the averments of facts in the plaint were true' According to the Court ofAppeal, the holding that the appellant lacked capacity to sue, was enough to dispose ot'the aPPeal. The appeal to this Courr is on tbur substantive grounds. what purports to be a fifth ground is a verbatim reproduction of the grounds of appeal that were preferred in theCourlolAppeal.ltisanattempttoamplilythefourthgrotrnd,whichattempt J gIoSSlyoffendsr.8l(l)oftlreRulesolthisCourt.Ishallnotconsideritasaground of appeal. In brief-. the tbur grounds ale that Thc lcurned Justiccs oJ Appeul errcrl I. - in Jititing to re-cvnltutte and uppreciate all the evidence in the triol court and subicct it ro fresh and exhauslive scrutiny ond for those reusons came lo(ttterroneortsconclttsionlhottheappellanthodnolocttssltrndi; 2. - itt holding thul a ioint ob'ner cttttttot sue on her own in trespass; -J.-*t,ltenrheyhetlthattheappellunlntasojointownerofthesuitproperty und.|itiledtodedttce.,.....thotfortheperiottunderconsideralionthe appellunt tt'us lhe sole registered owner; ond 4. - ttlten tltq' tlisposetl of the oPpeol on one ground only ond failed to ctlttsiderrtndmlkeoJintlingonalltheothergroundsintheMemorandum of Appcd. At the hearing of the appeal, Mr. Lule, counsel tbr the appellant' chose to address the court on the case generally, without dividing his submissions on the lines of rhe grourrds of appeal. He criticised the court of Appeal for upholding the trial court decision, that the appellant had no locus standi to sue, rvhen the trial had proceeded on the premise, that she had a cause of action. He submitted that this denied the appetlant fair trial. His core submission, however, was that the holding that the appellant did not have capacitl' to sue, was a result of misdirection on the appellant's cause of action. He pointed out that the court based its decision on the fact that the appellant filed the suit when she was no longer owner of the suit land, but erroneoirsly failed to appreciate that she was entitled to sue in respect of trespass conrrnitted rvhile she was the mailo owner of the suit land. He submitted that apart tl-orn a minor typing error iu the plaint, the rest of the record clearly shorved that tl-re appellant's suit was restricted to thc trespass committed when she l wastheregisteredmailoowner.Cor:nselindicateclthatearlyinthetrialhehad diawn the trial court,s attention to the minor error in paragraph 3 of the plaint where it reads, "plaintiff is the registered proprietor" and asked court to amend it to read,,,plaintiffwastheregisteredproprietor.'.Hemaintainedthat,allalongthe responclentkneu,this.Inthenoticebeforesuit,whichtherespondentadmittedin the statement of def-ence, it was clearly stated that the appellant had already translLrrecl her interest in the suit land' Mr. Lule also contended that throughout the material tifre, the appellant had legal possession of tlie suit land, and was therefore, entitled to sue for tlespass on it' He argued that since the lease she l.rad granted was of no legal consequence as cleclared by the High Court in Civil Suit No' 897/88, TT Company did not at any tirne, have lau'tirl possession of the suit land' Mr.Mutaarve,counselfortherespondent,subrnittedthatthegranttotheTT company rvas larvlul and was still subsisting, as is evident frorn its registration as au encurnbrance on the certit-lcate of title annexed to the plaint. Counsel argued that upolr grar.rrir.rg that lease, the appellant parted with possession of the suit land' and could not sue fbr trespass on it. He further submitted, that the fact that TT corr]panl, fllecl the two suits, against the respondent, in regard to the same subject lnatter, conflrured that it, and not the appellant, was in possession of the suit land fiorn the conlmencerlent of the lease in 1984' I should observe at the outset, that Mr. Lule's assertion that the record clearly shou,s that the plaintiffs suit related to only the trespass that occurred while she was ntailo orvner, is not entirely accurate. True, the record confirms that, in the notice befbre suit, which notice was admitted in the statement of defence, the 5 Iespondentwasinformedthattheappellanthadalreadytransferredtheland.The record also corrflrms that during submissions on the preliminary objection on the appellant's capacity to sue, the appellant's counsel asked the trial court to amend theplaintinparagraph3bysubstituting.'lvastheregisteredproprietor..for''isthe registered proprietor" For reasons not apparent on the record' however' the alnendtnentwasnotefl.ected.Elsewhere,therecorddoesnotsupportMr.Lule's assertion.Thereiswhereitappearsthattheappellant.sclailnisrestrictedto clarlragetoherreversionaryinterestonly,andwhereitappealstoextendtotrespass cor.nrrittecl afier she transferred the suit land' Thus, it is averred in paragraphs 5 and 7 olthe plaint, respectively, that - "S...the defbndant also continues to erploit the plaintiffs land depletins tltt sltttt t', gravel , und nr urru t rcscrras " lttlrl " 7...the lu in ri has incurued o tttl ctttt titt ttcs toi ncur extensive l,tu nciul loss b bein la rivel o tltc ittt'tttnc ra trl uhle from the murrun\ I grovel, oggregate and other stone pro(lucts from the rock excavated and blasted. " Secondly, part ol the prayer in the plaint relates to materials taken after she transf-err.ed her title. Thirdly, the appellant's counsel has not been consistent in his subrrissions on the appellant's locus standi.ln this appeal, he is assertive that the appellant sued as the mailo owner who was in legal possession during the material period, because the purported lease was a nullity. During the preliminary objection in the trial colrrt, he contended, and was upheld by the learned trial judge, that the appellant was suing tbr damage caused to her reversionary interest in the suit land' That position appears to me to be tacit acceptance that TT Company was in possession during the material period. In the Court of Appeal' counsel was equivocal on the issue. In the written subrnissions, he made the point that after the High Court decision in Civil Suit No,897/88 declaring the lease a nullity, and 6 ) disnrissingRuthSirirnuzarvo,sadverseclaim,allinterestinthesuitlandwasvested in'the appellant. However, the main thrust of the submission was that the Court of Appealshouldupholdthetrialcourt'spreliminaryfindirrgthattheappellantsuedin respec! ol her reversionarl interest' The fbregoing rnay well have led, or substantially contributed, to overshadowing of the real questiorl iu controversy, and to its remaining unresolved in the end' I slrouldadd,lrowever,thattheframingoftheissuesalsodidnothelp.Theissues were uncecessarily tbcused on ownership of the suit land, without a time frame, or iclentillcation ot'the trespass under consideration. It is obvious that in answering rhe lrrst tu,o issues in the negative, namely that the suit land does not belong to the appellant, ancl rhat the respondent did not trespass on the appellant's land, the trial court tbcused on the tilne when the suit was filed, rather than the time when the trespass $,as comrritted. ln upholding the trial court decision, the court of Appeal reiterared that the appellant had ceased to be sole owner of the suit land' Both courrs held tliat tlie appellant had no capacity to sue because she was not the owner of the suit land when she filed the suit. Neither court considered the appellant's capacitytosuefbrthetrespasscommittedwhileshewasstilltheownerofthesuit lu nrl Whether or subnrissiotts not this t.esulted from the rnisleading aspects in the pleadings and ol' the appellant's counsel, which I have indicated, and/or from inaclc,quate tr.auring of issues, in my view upon proper evali-ration, the real question fbr deter.rtr iuat ion is cliscernable frorn the jungle of pleadings. The appellant came to coLrrt, by rvay of a suit in trespass, to recover against the respondent' damages as contpensation lbr unauthorised exploitation of her land, over a period. The respondentadrnittedtheexploitation'butdisputedtheclaimforcompensation' 7 \ mainly on the ground that no cause of action had accrued to the appellant as she had nor incurred loss. Accordiug to the respondent, the appellant having leased out the suit lar-rcl. she rvas only entitled to rent due from the lessee' and was not deprived of ealnings from quarry business As I have indicated' the courts below didnotconsidertlredisputefromthatperspective.Ithinktherefore,thatitis necessary and appropriate for this Court to consider the appellant's claim in respect of the trespass and exptoitation that occurred before she transferred the suit land' I proceed to do so. Trespasstolandoccurswhenapersonmakesanunauthorisedentryuponland'and therebl,ir-rtert.eres.orpo$endstornterfere,withanotherperson'slawfulpossession of that lancl. Needless to say, the tort of trespass to land is committed, not against the lancl. but against the person who is in actual or constructive possession of the land. At cor]lnron larv, the cardinal rule is that only a person in possession of the landhascapacitytosueintrespass'Thus,theownerolanunencumberedlandhas suchcapacitytosLle,butalandowner\\'hograntsaleaseofhisland'doesnothave thecapacitytosue,becausehepanswithpossessionoftheland.Duringthe subsistence ol the lease, it is the lessee in possession, who has the capacity to stte in respect oftrespass to that land. An exception is that rvhere the trespass results in darrage, to the reversionary interest, the landowner would have the capacity to sue irr respect of that damage. where trespass is continuous, the person *'ith the right to sue rnay, subject to the law on limitation of actions, exercise the right iurrnediately alter.the trespass cotnnlences, or any time during its continuance or atter it has ended. Similarly subject to the law on limitation of actions, a person who accluires a cause o[ action in respect of trespass to land' may prosecute that cause of action atier parting u'ith possession of the land' E I"or prrrposes ol the rule, Ilowever, possession The sliehtest amount of possession suft-rces l does not mean PhYsical occupation. All i:.11.596, lt p.(r00 the I)rir'1' Cor"rr.rcil ptrt it thus - "Thcirl-ttrtlshipsdonolconsiderthat'inordertoestablishpossession'it is naccssttr.l'.for tlte cloimant lo toke some octive step in relation to the land sut'lt us anc'lositrg lhe land or cultivaling it' The type of conduct which intlicules possessitttt nrttsl t'a1' with the type of lund' In the cuse of vucant und ttttcnclosed luntl which is ttot being cultivoted, there is little which can be done ttn the lund to indicate possession' Moreover' the possession tllticltllterespondentseekstomaintainisagainsttheappellantwhonever hutlutt,ytillelotheland.Ittthesecircumslunces,lheslightestomounlof 2rrsscssirrrr woull he sfficient'" ln two leacling authorities in East Afiica, it rvas held that a person holding a ccrtillcirtr' ol'title to land' has legal possession of that land. In Mol'a Drift F-nrm Ltd v'Iheuri ( 1973) 8.A. l l4. the court of Appeal tbr East Aliica considered the ,lt us u tc,1(t!t, I tltink thttt title curries with it tegul possessiafl,' there is n Wuta-Of'ei v Da ncl uah (196i) 3 I s rr( issuc in light ot'Kc-nvan stattrtory pt'ovisions. 'Ihe trial courl had disnlissed a strit b1' tlic, registcred proprietor ol land, on the ground that at the tirne of the unlawful entry cc.rnrplainecl o t-, thc proprietor was not in possession. or1 appeal, counsel for the proprietor arguecl that while the decision tnay have been in confo|tnity rvith the English lari. ir $ as inconsistent with s.23 of the Registration ol Titles Act of Kenl a. ln his.jtrclgrne nt, Spr) , V.P. said at p 1 15 - ,,lfindrhisrgunrcntirresislibleundldonotthinkitisnecessar.yto axantinelhelatofEngland.Icannotseehoy,opersoncouldpossiblvbe describel us ,lhe ubsolttte uttd intlefeosible oy,ner, of land if he could nol tutlscolrcsPusseronillobeel,icted.TheAclgivesoregisteredProprielor nilthittg in thc Act to so|, or e|,en suggest lhat his title is imperfect until he hus token Ph.Ysicul Possession. " Ancl in the sarrc case Sir William Duflirs P , said - ,,Tlte Jirt't tlrut the uppellunt was lhe registered proprielor as owner in fee sitnpleunderthe...,Act,ondossnchvestedwilhtheabsolutesnd indeJeusiblc ownership oJ'the lond, wus suJJicient lo vesl legal possession o./ the lond in the tpltelltnl, and thot possession wonld be stfficient to support tltc uction o.f lrespass oguinsl o tresposser wronqly on the lond.t' (e rlphasis is aclclecl) The second aulhority is the decision in United Cultivate C o. Ltd. v Usanda l)ro crties Ltd.. Civil A ppeal No. l/83 (C.A.) (unreported). In that case, Uganda Properties Ltd., the plaintiff, as registered freehold ownel of land with residential houses thereon. sued United Cultivate Co. Ltd., the defendant, in trespass for Lrnlawfully occupying the houses. Previously, the plaintifT had leased the houses lor 35 years. to a third party tbr occupation by the latter's officials. During the strbsistence of the lease. those oftlcials vacated the houses' Subsequently, without tlie corrsent or l<nowleclge of the plaintiff, the defendant took over and occupied the houses. It resisted the plaintiffs demand for vacant possession, claiming that the Cor crnment hlcl allocated the houses to it. The clainr had no legal backing, and so the ptaintifl'stred and obtained judgment in the High Court for, inter alia,' vacant possession. On appeal, the defendant argued that during the subsistence of the lease, the lessee had legal possession of the houses, and that consequently, the plaintitT coulcl not sue in trespass until expiry of the lease. The Court of Appeal conflrnted the trial coun tinding that the third party's otficials abandoned the houses, and it held that the plaintiff could sue in trespass. In the leading judgment, Nyamuchoncho J.A. cited Moya Drift Farm Ltd v Theuri (supra) with approval. ti) He noted that s.23 of the Kenya statute was sirnilar to s.56 of the Registration of Titles Act of Uganda, and said - ,,1 think the decisiorr in Moya',s case represenls whol the law should be in Llgantla. It is on authority. I therefore, hold thot fi person holding a certificate of riile hrc, hy virtue of thal title, legal possession, und cun sue in lresPuss.tl Mr'. Mutaawe submitted that both MoYa's case (supla) and I-.lnited Cultiv:rte's case were wrongly decided, and he invited this court not to follow them. He conrended thar the latter case was inconsistent with s.6l of the RTA of Uganda, as well as the current protection the Constitution accords to untitled but legitimate and bonct .lide occlrpants of land. With due respect, I do not agree rvith counsel's contention. l do not see any ir.rconsistency between the decision in United Cultir':rtc's clse (supra), and the provisions of s.6l of the RTA, or Art. 237 Clause (8) of tfie Colstitution. The impott of the decision in that case, as in MoYa's case (supra), is that in absence ofany other person having lawful possession, the legal possession is vested in the holder ofa certificate of title to the land. In the event of trespass, the cause of action accnles to that person, as against the trespasser. I do not rhink that it is necessary in this judgment, to examine in any detail the protecrion given to legitimate and bona Jide occupants ol land by the said statutory and constitutional provisions to rvhich counsel referred. Clearly, the provisions are not intended to protect a trespasser, which the respondent was. I would therefore, hold that Nlol:t's citse (supra) and Uganda Cultivate's case (supra) still correctly r.'flcct thc lari In the instant case the courts below did not make clear findings on possession of the suit land at the rnaterial time. In particular, the Court of Appeal did not advert to the Iink between capacity to sue in trespass, and possession of the land ll tl.esPassecioll'thoLlghcounselonbothsidesaddresseditontheissue.The appellantirltheir-rstantcase,wassoleregisteledmailoownerofthesuitlandfrom 16 Aug.'8 l. until 27 April '95' During that period she was its absolute and inclef'easible owner. As long as no other person was lawfully in physical possession. she had legal possession of the land, with the capacity to sue in trespass. It is in that connection, that counsel for the respondent forcefully argued that during the rnaterial period, the appellant was not in possession of the suit land. He subn.ritted that TT Company had the legal possession of the suit land by virtue ofthe 49 years lease granted to it in 1984, and continued to have it, as long as the lease continued to be registered on the certificate of title' According to the evidence, TT Company, never acquired physical possession of the suit lancl. It souqht to do so, through court action that I referred to earlier in this j udgnrent. l lor.r,ever, despite obtaining from the Chief Magistrate's court an order ot'injunction against the respondent, it did tlot succeed to gain physical possession' Tliat leaves for consicleration, whether by virtue of its registered lease, the compan), had legal possession of the suit land. The circumstances surrounding the lease were rrot subject of much evidence in this case. However, in the judgment of the Hi-eh Cor.rrt in CiVil Suit No.897/88, r'vhich was produced in evidence as Exh.D3, Mpagi-Bahigeine J., as she then was, found that the lessee was a non- All.ican col.npany, and that it did not obtain the Minister's consent prior to the agrecrnenr, as was required by larv. l'he learned judge held thal lherefore, "the proper\t tlid not ttest in the compony but reverted"(sic) to the appellant. As those thcts rvere apparently undisputed, I agree with the holding, because these facts rendered rhe purpofted lease an illegality under the Land Transfer Act (cap.202), which the court cannot overlook. In the instant case, the learned trial judge observed that in the earlier suit, the court made no order to cancel the lease, and ) I she sccrtrs to ltave placed significance on the continued appearance of TT Cofirpanv's narre on the certificate of title, as lessee' In my view' however' the ontission, by, thc court in the earlier suit, to order cancellation of the lease' and the continlled appearance of the company name on the register as lessee' did not legalise or Validate rhe lease. It was illegal and therefbre, void ab initio The purported lessee cor:ld not derive any lawful benefit or right from the illegal grant or contract. It ibllows therefore, that apart from failing to secure physicat possession, T1'Corrpany did not acquire legal possession of the suit land either. In the circgmstances, I find that while the appellant was still the registered mailo owner, no other person was in lawful possession of the suit land. In his submissions Mr. Mutaau,e urged this Court not to interfere with the concurrent finding ofthe trial couft and first appellate court that the appellant had no right to suc. with clr.re respect, I think that argument might be more persuasive but not necc-ssnrilr binclin_rr, in regard to a concurrent finding ol f-act. The holding in qlestion \\,as on a legal point, and as I have already indicated, it was erroneous. on the authorities I have cited, I rvould hotd that. by virtue ol her certificate of title, the appellanr had legal possession of the suit land, and theretbre, the capacity to sue in trespass. There was no serious dispute on the respondent's trespass on the stlit land' Earlier in this judgurent, I clescribed the tlespass that the appellant complained of, and which the respondent admitted. However, I am constrained to briefly comment on the tinclings of the courts below for clarity, in view of the order I intend to Propose' The trial court held that trespass was not proved to the required standard. The principal ground lbr this holding appears to be that the appellant failed to show in pleadingsortoprovebyevidence,thedatewhenthecauseofactionarose.The court uracle no |ef'erence to the respondent's virtual admission of the trespass' On I3 the other hancl. the court of Appeal held that the adrnitted trespass was of no legal consequence, because the appellant clid not have the capacity to stle at the time she fllecl the suit. In a suir tbr torr. the date when the cause of action arose is particularly material in detennining if the suit rvas instituted in time. The commencement date is also rnaterial rvhere. in a continuing tort such as unlawful detention, the duration of the ton is a lactol in the assessment ol damages. ln other continuing torts, that date is of linle signiticance. If it is outside the time lirnit, such pan of the continuing tort as is within the time limit, is severed and actionable alone. Trespass to land is a continuing toft, n'hen an unlawful entry on the land is followed by its continuous occupation or exploitation. Proof of such continuous unlawful occupation, is sutllcienr proof of trespass, even il'the date it commenced is not proved. With due respect to the learned trial judge, she erred in holding that in the instant case, trespass was not proved to the required standard. Given that the tl'espass was aclnittecl, there was no legal requirenrent tbr further ploof. But as it is, there was sufflcicnr proof hy the uncontradicted evidence ofthe appellant and her witnesses, that belrveen 1988, when Mulangira Lutaya first discovered the trespass, and April 1995, ."vhen the appetlant transferred the suit land, the respondent contintled the quarrying operations rvithout the appellant's consent' I also respectfully disagree with the holding by the Court of Appeal, that the admitted trespass was of no legal consequence. Upon tl.re respondent committing the trespass while the appellant was the owner of the suit land, there accrued to the appellant. a cause of action, which she retained as a chose in action. She did not tbrf'eit that clto"'a in aclio \vhen she subsequently transferred the suit land, as appears to be implicit in the judgrnent of the Court of Appeal' l.l In vierv of all the tbregoing, I am satisfied that ground 1 ought to succeed. Although counsel did not advert to the other grounds, in their respective addresses ro this coufl. I have to consider them briefly, because they were not expressly abancloned. Gr.ounds 2 and 3 are complaints of little significance to the merits of rhis case. ln the leading.iudgment, Okello J.A. erroneously stated that at the time of irrstitgting the suit, there were three registered mailo owners of the suit land, inclucling the appellant. In reality, however, there were only two, namely Mulangira Lutaya, and Pradip Karia. The certificate of title shows that only those two were registered as proprietors on 27.4.95 under Instrument No.MKO54813. The holding by the Court of Appeal that the appellant was a joint owner, and that she could not stle in respect of the suit land on her own, was a factual error. Horvever, it rvas an immaterial error which did not go to the root of the court's decision. Cround 6 ofl'encls r.8l (1) of the Rules of this CoLrrt, for failtlre to speciS the points allegecl to have been rvrongly decided. In my view, the ground as framed cannot slrccecd. If is not sufficient to simp.ly complain that a ground of appeal was not considerecl. If a lower appellate court decides a point wrongly because of ontitting to consider a ground olappeal, the proper way to frame the ground for the next appeal, is to specifl the point so wrongly decided as a result ol the omission. what is rnore, omitting to consider and/or decide on a ground of appeal per se, is not an error. While an appellate court has a duty to consider all grounds of appeal before it, it is not obliged in every case, to make findings and decisions on each ground. lt is larvful tbr an appellate coult to omit deciding any ground of appeal if it is satislred that the appeal is properly disposed of by the decision on any other l5 I ground. or. grounds. I f', in the instant case, the Cottrt of Appeal was correct to hold thiit the apltellarrt had no cause of action or capacity to sue, its decision would be gphc'ld, nolvithslanding the omission to consider the other grounds of appeal. Howe,u,er, I am constrained to say that it is preferable for an intermediate appellate court, ro make its findings on all material grounds of appeal, so that the final court of appeal gets aclvantage of its views on all aspects of the case. That leads me to another matter, which I should comment on, betbre taking leave of this appeal' l'he learned trial judge made no linding on what remedy she would have awarded to the appellant i1'the suit had succeeded. It appears that the practice ofa trial courl ruraking sLrch tindings has tallen into disuse. I think, that is a regrettable trend, u,hich ought to be reversed. Undoubtedly the practice has the advantage of saving tirne, and ol ensurir.rg that the assessment of the appropriate remedy is done by the trial .iudge who heard the evidence flrst hand. Although under S.8 of the Judicature Statute, I 996, this Court has power to make the award, which the trial court could have made, circurnstances may require that in the interest of justice, a case be ren.rittecl back to the trial court for such assessment. In my opinion, the circumstances of the instant case are regrettably such. Neitl.rer at the hearing of this appeal, nor in the tlial court, did counsel for either party make submissions on the issue of' rerrredl'. The evidence pertaining to the appropriate remedy, was not evalLrated bi' the tlial court. Indeed, part of it, in lbrm of a valuation report, was not recei"'ed bc'cause ol the trial judge's inexplicable refusal of a brief adjournment to enable thr'appellant to pay stamp duty due on that repofi. Fol the reasorls t liave indicated, I would allow this appeal, and set aside the .ir.rdgnrents o1' the High Coltrt and the Court of Appeal. I would instead enter a .judgment tbr the appellant on her claim for trespass on, and exploitation of the suit l l6 - land, bi'thc'rcspondent, while she was the registered Inailo owner thereof. I would rer"fiit the case to the High Court for assessment of the appropriate remedy, and order that the coLrft rehears and receives from either party, all admissible evidence that rvill enable it to reach a just decision. Finally, I would award to the appellant, costs ol this appeal and in the courts below. lt DA"ff D at Mengo the // day of luu*^k 2003. J N Mulenga JUSTICE OF THE SIJ'PREN'{E COURT. tl \ THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT MENGO (CORAM: ODER, TSEKOOKO, MULENGA, KANYEIHAMBA, AND KATO JJ S C.) BETWEEN JUSTINE E i/.N, LUTAYA APPELLCNI AND STIRLING CIVIL ENGINEERING CO. LTD:::::::::.:::::::::::::::::::::::r::::::::RESPONDENT (Appeal from a decision of the Court of Appeal in Kampala (Okello, Mpagi Bahigeine and Engwau, JJ A) dated 25.7.2001 in Civil Appeal No. 62 of 1999). JUDGMENT OF ODER J.S.C. I have had the advantage of reading in advance the judgment just delivered by my learned brother Hon, lVr, Justice lVulenga, JSC, I agree with the judgment and the orders he has proposed. Since the other Hon. Justices of the Supreme Court, Tsekooko, Kanyeihamba and Kato JJ,S,C also agree with him, the orders shall be as proposed by lt/ulenga, J.S.C Dated at Mengo this ' ...' ', \ \.,L< ) A.H.0. Oder JUSTICE OF THE SUPREME COURT ('.lr rl ( \ .day of.. .r*...2003 CIVIL APPEAL NO. 11 OF 2OO2 THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT MENGO (CORAM: ODER, TSEKOOKO, MULENGA, KANYEIHAMBA AND KATO JJ.SC.) CIVIL APP EA L NO.11 oF 20,02 BETWEEN JUSTINE E.N.M. LUTAAYA "'APPELLANT AND STIRLING CIVIL ENGINEERING CO. LTD" " " " " " "RESPONDENT [Appeal from a decision of the Court "I fll:ilat Kdmpdld [okello' Mpagi ' Bahigeine c.nd Engudu,-hrcl iiia zstitioot tn civil Appear No'62 of 79991 JUD GMENT OF TSEKOOKO JSC. I have had ihe advantage of reading in advance the judgment whictr stice Muienga, JSC, has delivered' orders he has Proposed' my learned brother the Hon. Mr' Ju I agreed with the judgment and the Delivered at Mengo this"'i'l' t J KOOKO JUSTICE OF SUPREME COURT day of. . .AIa u s vt4.,6-*(.zoos. \ THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT MENGO (coRA.hI: ODBR, TSEKOOKO, MULENGA, KANYEIHAMBA, KATO, J.J.S.C.) CTYIL APPEAL NO. I1 O? 2OO2 BETWEEN JUSTINE E.M.N. LUTAAYA : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : ; : APPELLANT AND STIRLING CTVIL ENGINEERING CO. LTD. ::::::::::::::: RESPONDENT JUDGMENT OF KA}iIYEIH AMBA, J.S.C. I have had the benefit of reading in draft the judgment o[ m.r. learnecl brother Mulenga, J.S.C., and I agree u'ith him that this appeal ought to be allorved. [Appeal against the uLhole decisiott of the Court of Appeal (Okello, ltlpagt-Bahigeirrc, Engwau, J.J.A.) at Kampala daterl 25,h July, 2OO1, in Ciuil Appeat No. 62/ 991. I also agree u'ith the orders he has proposed. I would award to the appellant costs of this appeal and in the courts below. Dared ar Mengo this ! !U" o^' .t /L/ trLk!*9.( roor. :) 'fv'rt - bn ./' i t r/(:1/,g .w lerwcul lr ,/ G AMBA \ JUSTICE OF THE SUPREME COURT JUSTINII E.NI.N. LU'TAYA AND STIRLING CIVIL ENGINEERING CO. LTED...... R.E,SPONDENT (Appeal against the Judgment ofthe Court ofAppeal at Kampala (Okello, Mpagi-Bahigeine, Engwau, J.J.A.) dated 25th July, 2001, in Civil Appeal No. 61 of 1999). I would allow it witl.r costs to the appellant Dated at Mengo this ... j i V"t, ' day of . N .f,t.t+,<ifut2oo3 C.M. Kato Justice of the Supreme Court / THE REPUBLIC OF UGANDA . INTHESUPRJMECoURToFUGANDA ATMENGO (CORAM: ODER, TSEKOOKO, MULENGA, KANYEIHAMBA. KATO, JJ.S.C.) CIVIL APPEAL NO. 11 OF 2OO2 BETWEF],N .APPEI,LANT JUDGEMENT OF C. M. KATO.JSC. I have had the advantage of reading draft judgment of my brother Mulenga, JSC. I agree with his findings that this appeal should be allowed. tr