THE REPUBLIC OF UGANDA
IN THE SUPREME COURT OF UGANDA
(CORAM: ODOKI, CJ, TSEKOOKO, KANYEIHAMBA, KATUREEBE AND
CIVIL APPEAL NO. 15 OF 2007
B E T W E E N
GEORGE TUHIRIRWE: :::::: :::::: :::::: :::::: APPELLANT
A N D
CAROLINA RWAMUHANDA: :::::: :::::: :::::: :::::: RESPONDENT
(An appeal from the Judgment and Orders of the Court of Appeal at Kampala (Mukasa-Kikonyogo, DCJ, Kitumba and Kavuma, JJ. A), dated 12th September 2006, in Civil Appeal No. 38 of 2005.
JUDGMENT OF G. M. OKELLO, JSC:
This appeal is against the judgment and orders of the Court of Appeal which reversed the judgment and orders of the High Court in a suit instituted by the appellant.
The appellant is the grand son of the late Paul Ngorogoza, the father of his mother, late Anastanzia Tiwangye, and of the respondent’s late husband, Ponsiano Rwamuhanda. He owned the suit land, Plot No. 138 and the adjacent Plot No. 4. Both of which are located at Mwanjari in Kabale Municipality.
In his lifetime, Paul Ngorogoza made a gift of Plot No. 138 to Anastanzia and transferred it into her name. He also gave Plot No. 4 to Ponsiano. He later re-affirmed these gifts in clause No. 9 of his Will (Exh. D1). The appellant later inherited from his mother Plot No. 138 and became the registered proprietor thereof. The respondent occupied Plot No. 4 and a portion of Plot No. 138, while the appellant occupies only the remaining portion on Plot No. 138.
Subsequently, the appellant gave notice to the respondent to vacate the portion of plot 138 that she occupied, which notice the respondent ignored. When the respondent ignored the appellant’s notice to vacate the portion of Plot No. 138 occupied by her, the appellant instituted in the High Court Civil Suit No. 64 of 1992 (HCCS No. 64/92) claiming, inter alia, a declaration that Plot No. 138, the suit land, was his and an order of eviction against the respondent, mesne profits plus costs of the suit.
In her amended written statement of defence, the respondent denied the appellant’s claims and pleaded that the suit land had belonged to her late husband Ponsiano by bequest. In the alternative, she claimed that she and her family have been customary tenants on the suit land which they lived and developed since 1955.
At the trial, three issues were framed as follows:
Whether the defendant is a lawful or bona fide occupant on the land under dispute;
(2) Whether the plaintiff is entitled to evict the defendant from the land under dispute;
The trial judge answered the first issue in the negative and the second issue in the affirmative and declared that Plot No. 138 belongs to the appellant. He accordingly granted an order of eviction against the respondent from the suit land with costs.
On appeal by the respondent, the Court of Appeal reversed that judgment and orders of the High Court and entered judgment for the respondent, hence this appeal to this Court.
The Memorandum of Appeal comprised the following grounds of appeal, namely:
The learned Justices of Appeal erred in law and fact, in that they wrongly relied on a document not tendered in at the trial, misdirected themselves on that document and on Exh. D2 and Exh. D1 and failed to declare the appellant the owner of the suit land.
(2) The learned Justices of Appeal erred in law and fact when they made a finding in favour of the respondent on both her substantive and alternative claims when both had been abandoned at the trial and also erred in giving her the remedy of a lawful and bona fide occupancy.
At the hearing of this appeal, Mr. Tibaijuka Atenyi appeared for the appellant while Mr. Blaise Babigumira represented the respondent. Both counsel filed written arguments in accordance with rule 94 of the Rules of this Court. Mr. Babigumira had given a notice to raise a verbal objection to the rejoinder filed by Mr. Tibaijuka. His reason was that the rejoinder was filed unreasonably late. It was filed 46 days after the respondent’s reply.
After an exchange of views on the matter with the court, Mr. Babigumira abandoned the point as there appears to be a lacuna in the law regarding the time-frame for filing such a rejoinder. Mr. Tibaijuka apologized for that delay and the matter was closed.
The complaints in ground 1 are firstly that the learned Justices of Appeal wrongly relied on a document that was not tendered in evidence, at the trial. It was allegedly sneaked into the Record of Appeal by counsel for the respondent and that the unsuspecting Justices of Appeal regarded it as Exh. P1 and relied on it as such. Secondly, that the learned Justices of Appeal misdirected themselves not only on that document but also on the letter Exh. P2, written by late Paulo Ngorogoza on 20-03-1974, directing Ponsiano Rwamuhanda not to utilize both plots 138 and 4 and also on the Will of the late Ngorogoza dated 09-03-1982 (Exh. D1). Learned counsel argued that because of the said misdirections, the learned Justice of Appeal failed to declare the appellant the owner of the suit land.
Mr. Tibaijuka asserted that the document which was not tendered in evidence at the trial but which was wrongly relied on by the learned Justices of Appeal was a letter purportedly written by Paulo Ngorogoza in 1984, directing that Plot No. 138 be exchanged with Plot No. 4. The respondent had referred the letter to the appellant during cross-examination but the appellant denied its authenticity and it was not tendered in evidence. No further evidence was adduced to prove the alleged exchange of the two plots.
However, when the Will of the late Pual Ngorogoza (Exh. D1) was shown to the respondent, she confirmed that her father in law left a Will in which he bequeathed a part of his land at Mwanjari, Kabale Municipality to one Kitariko, another part to her family and the third part to Anastanzia