1
THE REPUBLIC OF UGANDA
IN THE COURT OF APPEAL OF UGANDA (COA) AT KAMPALA
CIVIL APPEAL NUMBER 0209 OF 2013
HAJJI NUMANI MUBIAKULAMUSA……………………..5 APPELLANT
VERSUS
FRIENDS ESTATE LIMITED…………………………..…RESPONDENT
CORAM:
HON. MR. JUSTICE REMMY KASULE, JA
10 HON. LADY JUSTICE SOLOMY BALUNGI BOSSA, JA
HON. MR. JUSTICE KENNETH KAKURU, JA
JUDGMENT OF THE COURT
The appeal arises from the Ruling and order of the Hon. Justice
15 Geoffrey Kiryabwire J (as he then was) dated 21/11/2011 in High
Court Commercial Division, Miscellaneous Application No. 435 of
2011. This application was itself arising from High Court Civil Suit
No. 27 of 2003.
20 The High Court application from which this appeal arises was
brought by way of Notice of motion under Order 22 Rules 55, 56,
57 and Order 52 Rule 1 of the Civil Procedure Rules (CPR).
2
It sought the following orders.
1) That immovable property comprised in leasehold Register
Volume 149 Folio 8 Plot 1 Rubaga Road Kampala be
released 5 from attachment.
2) The costs of this application be provide for.
The grounds of the application as set out in the Notice of motion
were that;-
1. The immovable property comprised in leasehold Register
10 Volume 149 Folio 8 Plot 1 Rubaga Road, Kampala is not
liable for attachment as it is in the hands of the applicant
as the registered proprietor thereof.
2. The Judgment debtors Nasser Kiyingi and John Baptist
Kizza are not in occupation and use of the property.
15 The notice of motion dated 15th August 2011 was supported by the
affidavit of the appellant who attached a certificate of title indicating
that he had been registered as proprietor on 27.10.2010.
The motion was challenging the order of the High Court dated 18th
July 2011, which directed Nasser Kiyingi and John Baptist Kizza to
20 put Friends Estate Limited, the respondent, in vacant possession of
the above described suit premises.
3
The learned Judge rejected the application and dismissed it with
costs. He also made a number of other orders and declarations
against the appellants, hence this appeal.
At the hearing of this appeal learned counsel Cosma Kateeba and
Andrew Wamina appeared for the appellant. The 5 respondent was
represented by learned counsel Ms. Diana Kisubi.
Learned counsel for the appellant argued the grounds of appeal as
set out in the memorandum of appeal. The grounds of appeal are set
out as follows:-
10 1. The Learned Judge erred in law and violated
constitutional principles and principles of natural
justice when he cancelled the Appellant's certificate
of Title and issued an eviction order against the
Appellant in the absence of any formal proceedings
15 against the Appellant in a competent forum.
2. The Learned Judge erred in law and exercised a
jurisdiction he does not have when he purported to
review and issue a new decree in HC (OS) No. 27 of
20 2003 at the execution stage of the proceedings.
3. The Learned Judge erred in Law and fact in
dismissing Miscellaneous Application No. 435 of
2011 with costs after making a finding that the
25 warrant to give vacant possession had been issued
against the wrong persons who were not in
possession of the suit property.
4. The Learned Judge erred when he ignored the fact
30 that the order in Miscellaneous Application No. 552
of 2004 that the Respondents were ostensibly
4
executing did not grant any order of vacant
possession against anyone.
5. The learned trial Judge erred in law and fact when
he purported to convert Miscellaneous 5 Application
No. 435 of 2011 into a suit for rectification and/or
cancellation of title to Land and developments
comprised in Leasehold Register Volume 149 Folio 8
Plot No.1 Rubaga Road, Kampala.
10
6. The Learned Judge erred in law and in fact when he
held that the Appellant was not a bonafide purchaser
for valuable consideration without notice when there
was insufficient material to justify such a finding
15 and the procedure adopted did not lend itself to a
proper investigation of fraud.
7. The learned Judge erred in Law, exhibited bias and
occasioned a miscarriage of Justice when he
20 purported to consider and determine the competence
of the Appellant's defence of bonafide purchaser for
valuable consideration without notice before the
Appellant had presented the said defence.
25 8. The. Learned Judge exhibited bias and animosity to
the Appellant during the hearing and determination
of Miscellaneous Application No. 435 of 2011 thereby
occasioning a miscarriage of justice.
30 The appellant seeks the following orders from this court.
a) The Appeal be allowed and the ruling and orders of the
Learned Judge decision be set aside.
b) Miscellaneous Application No. 435 of 2011 be allowed.
35
5
c) A consequential order issue directing that the
Respondent and its Lawyers be sanctioned for abuse of
the process of Court.
d) High Court Miscellaneous Application 5 No. 435 of 2011
be remitted to the High Court for hearing on the
quantum of damages due and payable by the
Respondent and its lawyers to the Applicant for a
flagrant and inexcusable abuse of the process of court.
10
e) Costs of the Appeal and those in the High Court be paid
by the Respondent to the Appellant.
It was submitted by Mr. Kateeba learned counsel for the appellant
15 that the learned trial Judge erred when he delved into the issues of
fraud and went ahead to hold that the appellant was not a bonafide
purchaser for value, when the application required resolution of
only the issue of whether the property was subject to execution.
He submitted that the Judge was not required in the application to
20 determine the issue of ownership of the suit property. He submitted
that the issue of ownership should not have been determined at that
stage in the proceedings of that nature.
That the learned Judge having determined that the application before
him was incompetent, erred when he went ahead to make specific
25 findings as to ownership of the property.
Learned counsel further contended that the learned trial Judge erred
when he went on to make findings of fact that the there was fraud
and illegalities committed in the process of registration of the
6
appellant as proprietor of the suit property, as that matter was
not before him in that application.
He submitted that the reply to the notice of motion raised no counter
claim by the respondent alleging fraud and seeking cancellation of
title 5 on that account.
He submitted further that such matters could not have been raised
by way of notice of motion supported only by affidavit evidence. In
his opinion matters such as fraud require strict formal pleadings and
proof by way of oral evidence.
10 He submitted that issues of fraud can only be determined in a
regular suit, arising from regular pleadings after framing of issues.
He also submitted that the learned Judge exhibited bias when he
made up his mind that the appellant was not a bonafide purchaser
for value before hearing all the parties on that issue, which issue
15 was not before him in that application.
Mr. Kateeba further submitted that the order the respondent sought
to enforce, granting it vacant possession of the suit property had not
been specifically made by the Judge and as such it was null and
void.
20 He submitted that the order for vacant possession issued by the
Registrar was not consequent upon an order given by the Judge.
In reply Ms. Kisubi learned counsel for the respondent supported the
decision and reasoning of the learned trial Judge. She submitted that
7
the learned trial Judge was right when he made the order and
declaration he made in respect of ownership of the property. She
submitted further, that this was because the illegalities and the
fraud had been brought to his attention during the course of the
hearing of the application. That on the authority 5 of Makula
International vs Emmanuel Cardinal Nsubuga [1982 HCB 11] an
illegality once brought to the attention of the court cannot be ignored
as it overrides everything else including pleadings. She also referred
to the holding of this court in the cases of Belex Tours and Travel
10 Ltd vs Crane Bank and another Civil Appeal No. 71 of 2009 and
NSSF and Sentongo vs Alcon International; Supreme Court Civil
Appeal No. 15 of 2009 which were to the effect that an illegality
can be raised at anytime during a trial and that a Court of law
cannot sanction that which is illegal.
15 Learned counsel for the respondent submitted that there was an
illegality that was raised in the affidavit in reply by the respondent
which pointed to the fact that there was a violation of the court
order, an abuse of court process and fraud which the trial Judge
could not ignore.
20 She submitted further that it was the finding of the learned trial
Judge that he had made an order reinstating the respondent on to
the land title in respect of the suit property.
That, that the order arose from Miscellaneous Application No. 552 of
2004. That there was another order made by Hon Justice Okumu8
Wengi J, restraining any further dealings on the register of titles and
both orders had been entered on the register.
She submitted that both orders were cancelled from the register
using a consent order procured by fraud, in HCCS No 0771 of 2004.
Learned counsel went on to submit at length what 5 she considered
constitutes fraud in this case and generally supported the findings of
the learned trial Judge.
We have heard the submissions of counsel for both parties and we
have read the record and the authorities cited to us.
10 As a first appellate court we have a duty to re-appraise the evidence
and come to our own conclusions on issues of both law and fact. See
Henry Kifamunte vs Uganda (Supreme Court Criminal Appeal
No. 10 of 1997) and Fr. Narcensio Begumisa & others vs Eric
Tibebaaga (Supreme Court Civil Appeal No. 17 of 2002
15 (unreported).
In this particular case, the respondent had obtained from court an
order for vacant possession in respect of the suit property. The
pertinent part of that order reads as follows;-
“WHEREAS The under mentioned property In the
20 occupancy of the Respondents Nasser Kiyingi and
John Baptist Kizza has been decreed to Friends
Estate Ltd, the Applicant in this suit, you are hereby
directed to put the said FRIENDS ESTATE LTD
in the possession of the same, and you are hereby
25 authorized to remove any person bound by the decree
9
who may refuse to vacate the same and remove your
fees from the defendant for the execution of this
warrant.
This serves to direct the responsible 5 Police Officers to
ensure that this warrant is executed In a proper
manner.”
The learned trial Judge in his Ruling from which this appeal arises
10 sets out the facts leading to the issuance of the warrant of vacant
possession set out above a follows;-
“…. there is warrant of vacant possession in respect
of the suit property to which the applicant objects to
as registered property (Sic) having acquired the said
15 property for valuable consideration without notice of
any defect title.
The Applicant in a further affidavit in support dated
12th August, 2011 states at paragraph 3 that he has
been in effective occupation, possession and use of
20 the said property since 31st October, 2011. Going by
this affidavit this means that the Applicant has only
recently occupied the said suit property (though the
duplicate certificate title shows the property was
transferred to him on the 27th October 2010). The
25 Applicant further deponed that he had acquired the
suit property from M/S Mask Investments Ltd through
its director one Francis Mashate. He states that he
does not know the persons named in the warrant for
vacant possession namely; one Nasser Kiyingi and
30 John Baptist Kizza who he says are not in possession
of the suit property. The Applicant further deponed
10
that he has made several developments on the
property and that there is an outstanding loan on the
property with M/S DFCU Bank.
In reply to the affidavits in support, 5 one Anil Hasam
Shamji a Canadian Citizen but born in Uganda states
that he is the attorney and proxy of M/S Friends
EstatesLtd the first Respondent. Mr. Shamji in his
affidavit of 13th September, 2011states that the first
10 Respondent company repossessed the suit property
through the Ministry of Finance on the 14th July
1992.
However, in 2003 Mr. Shamji states that fraudsters
15 through one Nasser Kiyingi instituted High Court Civil
Suit (OS) No. 27 of 2003 and used court process to
transfer the suit property into the names of one
James Kalungi. Furthermore, Mr. Shamji from
paragraph 12 to 18 of his affidavit states that the
20 first Respondent filed Miscellaneous Application No.
552 of 2004 before myself as Judge to set aside
fraudulent transaction which I did on the 19th
January 2005 by setting aside all transfers that had
occurred on that suit property.”
25
Mr. Shamji in paragraph twelve of his affidavit states
that in 2004 one G. K. Kalule and James Kalungi
filed another suit No. 771 of 2004 in the Civil Division
of the High Court. Immediately thereafter the said
30 parties signed a consent judgment where Kalule gave
vacant possession of the suit property to Kalungi.
This consent judgment was again challenged by the
first Respondent in Miscellaneous Application No.
1005 of 2004 before The Hon. Justice Okumu Wengi
11
as an attempt to circumvent my orders in HCCS (OS)
27 of 2003. On the 9th May, 2005 The Hon. Justice
Okumu Wengi set aside the subsequent consent
judgment and added the first Respondent to the suit.
Mr. Shamji deponed that again 5 in 2008 through
Miscellaneous Application No. 154 of 200f, (arising
from HCCS No. 771 of 2004) on the 18th June, 2008 by
another consent order reinstated the consent
judgment that had been set aside by the Hon. Justice
10 Okumu Wengi without the knowledge of the first
Respondent. Two days later G. K. Kalule and J. B.
Kalungi entered into a consent judgment whereby
Kalungi was said to have sold the suit property to G.
K. Kalule. It is Shamji's testimony in paragraph 12 (i)
15 of his affidavits that these consent orders and
judgments were meant to circumvent The Hon. Justice
Okumu Wengi and my orders; without the involvement
of the first Respondent. Subsequent to this, a series of
transactions took place involving the suit property
20 and hence this present application.”
The learned trial Judge then went on to make a finding that
whereas the applicant sought to have the suit property released
from attachment, there was no warrant of attachment issued by
25 court, the only warrant issued being that for vacant possession, he
concluded that the application was incompetent.
He again went on to find that from the evidence before him the
warrant for vacant possession had been addressed and issued
against wrong persons who were at the time not in possession of
30 the suit property.
12
Learned Judge having found as above went on to state as follows at
page 8 of his Judgment
“That notwithstanding the reply to this motion by the
respondent has raised important issues that cannot
be brushed aside in such summary 5 manner and these
are illegality and fraud.
In the now often referred to case of Makula
International v Cardinal Emmanuel Nsubuga [1982]
10 HCB 11 (CA)
It was held once an illegality has been brought to the
attention of the Court it cannot be ignored. The Court
of appeal in that case held that a Court of Law
15 cannot sanction what is illegal and illegality once
brought to the attention of the Court, overrides all
questions of pleadings, including any admissions
made thereon. To my mind, fraud is the worst form of
illegality and Court must therefore address itself to
20 this.”
The learned trial Judge then went on to make a number of
observations. He traced the events that led to the issuance of the
warrant of vacant possession. He sets out on number of facts and
25 makes a number of findings as follows at pages 8-9 of his Ruling.
“I must observe that the events surrounding the suit
property are perplexing and most disturbing. As the
Judge in HCCS (OS) 27 of 2003 and MA 552 of 2004
where I made clear findings and orders, I am baffled
30 how this dispute could escalate to what we have now.
There was an admission of fraud by one Nasser
Kiyingi (alias Nasser Kiyingi) in that case which could
13
not be let to stand. It is now clear that the persons
affected by my orders in M.A. 552 of 2004 especially
one J.B. Kalungi decided to file a counter suit HCCS
771 of 2004 instead of going on appeal to the Court
of Appeal. 1 made a clear finding 5 that the transfer
vide instrument No. 343562 registered on the 1st June
2004 into the names of James Kalungi was tainted
with fraud and illegality and I set it aside. Even the
Bailiff Mr. John Baptist Kizza who handled the
10 alleged sale denied making a sale to Mr. Kalungi.
How could this finding be reversed without the order
or a superior Court on appeal? This I actually made
clear in yet another application M.A. of 655 of 2005.
How Mr. Kalungi, Mr. Kalule and their legal advisers
15 thought any binding legal effect would come of this
parallel suit defeats my understanding. This I find
was an attempt at circumvention of my order and
that is why Hon. Justice Okumu Wengi in M.A of 1005
of 2004 set aside the clearly worthless consent
20 judgment in the head suit in his words to
" ... give effect to the ruling of Judge Kiryabwire
(myself) of the 19/1/2005…”
25 Even in this case HCCS No. 771 of 2004 again Mr. J.
Kalungi and Mr. G. Kasule in M.A. 154 of 2008
without appealing the decision of Hon, Justice Okumu
Wengi again compromised his orders using a series of
consent order and judgments. This was clearly
30 irregular and illegal.
Perhaps the most alarming situation is the
cancellation of my orders and those arising out of
M.A. 1005 Of 2004 and M.A. 24 of 2005 being matters
35 before the Hon. Justice Okumu Wengi registered on
the white paper of the suit property on the pretext
that they were "entered in error" yet the original Court
orders are on the Land office file and stand
14
uncontested to this day. Clearly the removal of two
orders of the High Court (mine inclusive) in this
manner was both illegal and fraudulent and I
accordingly so find.
5
The learned trial Judge went on to find that the appellant was not a
bonafide purchaser for value without notice. At page 9 of his Ruling
he states as follows:-
“It is the case for the Applicant that he is a bona fide
10 purchaser for value without notice of these frauds
and therefore his title is protected. Given that the
Applicant himself became the registered proprietor
through a series of three transactions on the white
page on the 27th October, 2010 all done within five
15 minutes is very suspicious and would displace any
presumption of bona fides in this case.”
The learned Judge concluded by making the following findings and
orders at pages 10-11 of his Ruling:-
“In light of the above I hereby make the additional
findings and orders.
20 In terms of section 176 of the RTA the first
respondent was deprived of the suit property by
fraud involving multiple players who cannot be
regarded as bona fide purchasers for value
without notice. Consequently the applicant as
25 registered proprietor is not protected by that
section from ejection.
In terms of section 177 of the RTA, I order the
reinstatement of the first respondent as the
15
registered proprietor of the suit property and the
cancellation of all entries made after 20th October
2005. Court cannot condone a blatant abuse of
its process.
5
I further order in terms of section 98 of the CPA and
sections 33 of the Judicature Act that vacant
possession be granted against all those in occupation
of the suit property, the applicant inclusive.
10
To avoid further abuse of orders of this Court
through circumvention I order and direct that this
ruling be immediately brought to the attention of the
Chief Registrar Courts of Judicature , the Inspector
15 of Courts, the Chief Registrar of Titles and the
Inspector General of Police.
I so order.
I grant the first respondent the costs of this
20 application.
The applicant claims in his affidavit in support of the notice of
motion as set out in paragraphs 1 to 5 as follows:-
1. That I am an adult male Ugandan of sound mind and
25 the registered proprietor of Leasehold Register Volume
149 Folio 8 Plot No. 1 Rubaga Road, Kampala. A
Photostat copy of the title deed is annexed hereto
and marked "A ".
2. That lam in occupation and use of the property known
as Leasehold Register Volume 149 Folio 8 Plot No. I
Rubaga Road, Kampala and at the moment lam
16
undertaking
extensive renovation work on the property.
3. That on the 3rd day of August, 2011 while at the
property above described, I 5 was shocked to be
confronted by Court Bailiffs who threatened to occupy
the premises at the site in execution of the order of
vacant possession. Copies of order of vacant possession
and the letter requesting for police assistance are
10 attached hereto and marked "B" and "C" respectively.
4. That the Court Bailiffs are threatening to evict all
persons from the property.
15 5. That if the execution proceeds and the property is
occupied, I will be illegally dispossessed of my own
property.
20
The applicant later filed a supplementary affidavit expounding on the
above.
The respondent in its affidavit in reply deponed to by Anil Hasam
Shamji challenged the applicants’ assertions and firmly put the
25 respondent’s case as follows in paragraph 11 of the affidavit in
reply.
11 i) The title deed, annexture "A" to the Applicant's
affidavit of 4th August, 2011, which the Applicant
bases on to assert ownership is a forged and sham
30 title, which does not reflect, that on 20th October,
2005 FRIENDS ESTATES LIMITED was re-instated
on the title by Court Order in High Court Misc.
Application No.552 of 2004 Vide Instrument
No.359830.
35
17
ii) The Applicant's title does not reflect that on 18th
January, 2005, a Court Order was registered on the
title stopping any change or transfer of ownership
pending the disposal of Misc. Application No. 1005 of
2004 (H.C. Misc. Application 5 No. 24 of 2005)
registered as Instrument N 0.350458.
iii) The Applicant's title, which is a special title, tells
a lie on its face as contradistinguished with the
10 genuine certified true copy of title issued to the 1st
Respondent, following its re-instatement on the title,
a copy of which is annexed hereto marked "AS7".
iv) The Applicant is parading a parallel title
15 deliberately created in furtherance of fraud, in
contravention of Justice Kiryabwire's Order of 19th
January, 2005 declaring that the transfer vide
Instrument No.343562 registered on the 1st of June
2004 into the names of James Kalungi is tainted with
20 fraud and illegality and is set aside and that it
affects all further transfers made to the property.
v) The parallel title shown deliberately omits entries
which reflect to the interests of FRIENDS ESTATES
25 LTD.
vi) Any prudent search and due diligence at the Lands
Register should have revealed red flags about the
massive frauds as lawyers for FRIENDS ESTATES
30 LIMITED have written numerous letters to the
Registrar, of Lands and other authorities, the Court
Orders mentioned above were registered on the land
register caveat documents were lodged on the land
office files, albeit rejected on flimsy grounds. (Copies
35 are annexed collectively marked "AS8".
18
vii) The transfer in annexture "E" to the Applicants
affidavit of 12th August, 2011 does not support
payment of valuable consideration.
In paragraph 12 of his affidavit in reply Mr. Anil Hasam Shamji goes
on to set out in detail the alleged series of alleged 5 fraudulent and
illegal transactions committed by a number of persons before and
after the appellant had obtained a parallel title to the suit property.
Whereas the appellant obtained a parallel title to the suit property in
October 2010, the alleged fraudulent dealings as set out by the
10 respondent appear to have commenced sometime in 2004.
The affidavit in reply was deponed to on 13th September 2011 and
was filed at the High Court, Commercial Division, on the same day.
The hearing of the application from which this appeal arises
commenced on 14th September 2011. The same was adjourned to
15 19th October 2011, after the learned trial Judge had made the
following order.
“I order pursuant to Order 22 rules 55 and 56 that: (i)
the Registrar of Titles deliver to court the white page
on LRV 149 Folio 8 known as Plot 1 Rubaga Road for
20 court to further investigate the ownership of the
property at the next hearing of this investigation. (ii)
That DFCU Bank also to deliver the Special
Certificate of Title for the same property for the same
purpose at the next hearing of this investigation. (iii)
25 That this matter is adjourned to 19th October 2011 at
09.00 a.m. for further investigations. Other orders of
this court remain the same until then.”
19
On the 19th of October 2011, the application proceeded and was
concluded and the Ruling was delivered on 21st November 2011.
With all due respect to the learned trial Judge we find that he erred
in law when he proceeded to investigate the matter as he did under
Order 22 Rules 55 and 56 of the Civil 5 Procedure Rules.
This is because in his own ruling he found that the said law was
inapplicable in the circumstances of the case and that the
application having been brought under that law was incompetent.
Order 22 Rules 55 and 56 stipulate as follows:-
10 “55. Investigation of claims to, and objections to
attachment of, attached property.
(1) Where any claim is preferred to, or any objection is
made to the attachment of, any property attached in
execution of a decree on the ground that the property
is not liable to the attachment, the court shall proceed
to investigate the claim or objection with the like
power as regards the examination of the claimant or
objector, and in all other respects, as if he or she was a
party to the suit; except that no such investigation
shall be made where the court considers that the claim
or objection was designedly delayed.
20
(2) Where the property to which the claim or objection
applies has been advertised for sale, the court ordering
the sale may postpone it pending the investigation of the
claim or objection
5
56. Evidence to be adduced by claimant.
The claimant or objector shall adduce evidence to show
that at the date of the attachment he or she
had some interest in the property attached.
10 We agree with the learned trial Judge’s finding that the above law
was inapplicable in the circumstances, as the property in issue was
not subject to attachment. There was no warrant of attachment in
respect of the suit property. The court had only issued a warrant for
vacant possession.
15 Be that as it may, we also find that even if the application had
been competent, the appellant was not granted sufficient
opportunity to answer the extremely serious allegations set out in
the affidavit in reply which was filed in court a day before the
hearing. This in our view denied him an opportunity to a fair hearing.
20 The learned Judge appears to have based his decision on the
affidavit in reply and upon his own investigations and knowledge of
the facts that gave rise to the application and did not accord
sufficient opportunity to the appellant to answer the allegations
made against him.
21
Before proceeding to make findings on the allegations of fraud and
illegalities the learned trial Judge at page 8 of his Judgment made
the following statement;-
“Those notwithstanding the reply to the motion by the
respondent raised important issues that 5 cannot be brushed
aside in such a summary manner and these are illegality
and fraud”
This in our view violated the rules of natural justice because the
learned Judge with all due respect based his decision only on the
10 issues raised in affidavit in reply by the respondent to which the
appellant was not availed an opportunity to rebut or reply to by way
of rejoinder or otherwise.
In the case of Board of Education v Rice [1911] A.C. 179 at Page.
182, the House of Lords said of administrative bodies (Per Lord
15 Loreburn)
“……they must act in good faith and fairly listen to
both sides for that is the duty lying upon everyone
who decides anything.”
20 We find and hold that the same is true in respect of Courts of law, as
a right to a fair hearing is a non derogable right enshrined in
Articles 28 and 44(c) of the Constitution.
It does not matter in law that a fair hearing would have made no
22
difference to the Petitioner's case. The House of Lords (Lord Wright)
had this to say about this in the case of Medical Council v.
Spackman [1943] A.C. 627.
"If principles of natural justice are 5 involved It is
indeed in Immaterial whether the same decision
would have been arrived at in the absence of
the departure from the essential principles of justice.
The decision must be declared to be no decision at all.”
10
See also the case of Yowasi Makaru vs Electoral Commission
High Court Election Petition 1 of 1998, Judgment of S.B Bossa, J
(as she then was.) and Matovu and Others versus Seviiri [1979]
HCB 174 (CA).
1 5
We agree with Mr. Kateeba counsel for the appellant that the issues
raised in the affidavit in reply could not have been properly resolved
in an application of this nature. That they were serious issues of law
and of fact that required proper pleadings upon which evidence
20 would have been adduced.
We also agree with the Judgment of the Supreme Court in Ladak
Abdulla Muhamedi Hussein vs Isingoma Kakiiza and others
Supreme Court Civil Appeal No. 8 of 1995 which is to effect that
for a court to hold that a party is or is not a bonafide purchaser for
25 value without notice it must possess enough material to do so and
that court requires evidence to be adduced by both parties in order
to firmly determine that issue. In that case the Supreme Court
23
found that the findings of the lower court had been made
prematurely and should have awaited the hearing of the suit. We
find that in this case the Judge did not possess enough material
before him to make the findings that he did in respect of allegations
of fraud and 5 illegalities.
Accordingly grounds 1,3,4,5 and 6 succeed.
We have found no evidence whatsoever to support the appellant’s
contention in grounds 7 and 8 that the learned trial Judge exhibited
bias.
10 It now seems that every advocate whose views or submissions are not
acceptable to the court has to allege bias. Any allegation of bias
against a judicial officer is a serious matter that requires to be
proved. In this case no evidence of bias was shown by the appellant’s
counsel at all. We have not found anything that remotely indicates
15 that the Judge was biased. It is most unfortunate that such an
allegation was made by a senior member of the bar.
Both grounds therefore must fail.
This appeal therefore succeeds in part.
We accordingly make the following order:-
20 The Ruling and orders of the learned trial Judge in
Miscellaneous Application No. 435 of 2011 are hereby
set aside and substituted with an order dismissing that
application.
24
We clarify however that no finding has been made by this court as to
the lawful ownership of the suit property and or whether the
appellant is a bonafide purchaser for value without notice.
5
The parties are at liberty to have these issues as to the lawful
ownership of the suit property resolved by way of an ordinary suit
filed in a competent court.
As to costs, since the appeal has dealt in the main on the way the
10 trial Judge himself handled the conduct of the application in the
High Court and also since further ligation is likely to be held as
regards determination of the true owner of the suit property, we have
found it fair and just to order that each party bears its own costs
both of this appeal and also of the application in the court below.
Dated at Kampala this …05th 15 ...day of …September...2014.
……………………………………………..
HON. MR. JUSTICE REMMY KASULE
JUSTICE OF APPEAL
20
……………………………………………..
HON. LADY JUSTICE SOLOMY BALUNGI BOSSA
JUSTICE OF APPEAL
25 ……………………………………………..
HON. MR. JUSTICE KENNETH KAKURU
JUSTICE OF APPEAL