THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
CASE NO: HCT-00-CV-CA-0078 OF 1998
AHMED KATENDE SALONGO :::::::::::::::::::::::::::: PLAINTIFF
VERSUS
HAJI YASIN KIKOMEKO & ANORS :::::::::::::::: DEFENDANTS
BEFORE: HON. MR. JUSTICE J.B.A. KATUTSI:
JUDGMENT:
In the city of Kampala, at place called Bakuli, there is a piece of land known and described as Block 4 plot 663. Part of this land was later divided into plots 719 and 721. Appellant who hereafter will be referred to as plaintiff sued both respondents hereafter referred to as defendants for an eviction order from these plots. In a judgment that turned out to be a complete fiasco the Learned Trial Magistrate entered judgment supposedly in favour of the plaintiff in the following terms:
“(a) No eviction order is awarded to the plaintiff since he is not the lawful proprietor of the suit land.
(b)
Special damages of shs.900,000/= as the purchase price of the suit land.
(c)
General damages of shs.500,000/=.
(d)
Costs of the suit.
From this quagmire of a judgment both parties appealed to this court. At the hearing it was agreed by both counsel that the appeal that was filed first Appeal while Appeal No. 79/98 be treated as Cross-Appeal. This judgment therefore will be in line with that consensus.
Plaintiff sued both defendants in trespass praying for an eviction order and general damages for trespass. His case was briefly that he by an agreement date 20th May, 1993 purchased the suit property from Norah Twemanye in the presence of John Kizza, Jane Nabwemi and George Kamya Kirabira for shs.900,000/=. Both defendants without his permission or consent built a building on this land. He requested them in writing to vacate the premises but no avail. He examined John Kizza who was the registered proprietor of the premises at the time of sale. John Kizza testified that he was the registered proprietor by virtue of letters of Administration and that the suit premises went to Norah Twemanye as a beneficiary who later sold it to the plaintiff. After the sale he signed a transfer instrument in favour of the plaintiff who thereafter became the registered proprietor. Jane Nabwemi testified that Norah Twemanye was her elder sister and that she had sold the suit property to the plaintiff and signed for him an agreement of sale. Another witness for the plaintiff was George Kamya Kirabira who said he was a brother of Norah Twemanye who sold the suit property to the plaintiff. He signed the purchase agreement on the side of Norah Twemanye. Later Norah Twemanye and the first defendant approached him with a request that he joins them to disposes the plaintiff of the suit property. He refused us to do so would have been dishonesty.
When it came to the case for the defendants the record of the lower court became a complete mess. This first defendant for reasons best known to the trial magistrate became DW5 while the second defendant became DW3. One wonders whose witnesses they were. Be that as it may, the first defendant testified that he bought a house and a Kibanja from the second defendant and a piece land from Norah Twemanye. Later he placed a caveat over the suit premises. He later found that dispute the caveat plaintiff had had the caveat removed and got himself registered as the proprietor. He went to his lawyers who had the caveat reinstated. The second defendant testified that his later mother was the daughter of Simeon Mpindi the original proprietor of the suit land. His mother had houses on this land. When Mpindi died that part where his mother had house was given to her. After his mother’s death he succeed to these houses but not to the land on which the houses stood which went to Norah Twemanye. As far as he was concerned this land was still with Norah Twemanye, as she had never sold it.
Norah Twemanye who turned out to be a rascal testified that after the death of Mpindi, Kizza became his successor in title. As a successor in title John Kizza distributed the estate to the beneficiaries but not fairly. She succeeds to the share, which had gone to Joweria Nakamanyiro the mother of the second defendant. She sold part of the land to a lady called Akiki. She swore she did not know the plaintiff and never to have sold land to him. She said that Yasin Kikomeko the first defendant was a caretaker of the suit premises. However in cross-examination the true image of a rascal in her emerged. She said that John Kizza had distributed the land but later sold it. She agreed that the signature on the agreement presented by plaintiff resembled hers but disowned it. She went on to admit that Jane Nabwemi had sold the land and passed shs.500,000/= to her which she accepted. She however said she did not know the person to whom Jane Nabwemi had sold the land and that the said Jane Nabwami passed the money to her and told her that she had sold part of the land. There were two witnesses who said they were the LC officials who had entertained the dispute, which they resolved in favour of the defendants. Then there was Opio Robert who described himself as the Registrar of Titles. His testimony was that though plaintiff had become the registered proprietor of the suit property, the High Court had issued an order directing that caveats, which had been removed, be reinstated. He read this order as an order that the certificate of Title be cancelled and did cancel the Titles accordingly. On that evidence the learned trial magistrate wrote a judgment, which she said, was in favour of the plaintiff. She wrote:
“Judgment is entered for the plaintiff and the following awards are made.
(a)
No eviction is awarded to the plaintiff since he is not the lawful proprietor of the suit land.
(b) Special damages of shs.900,000/= as the purchase price of the suit land.
(c)
General damages of shs.500,000/=.
(d)
Costs of the suit. Talk of awarding Air. This was classic. Who was to pay the purchase price since Norah Twemanye was not a party to the suit? If plaintiff was not the lawful proprietor how could he get general damages and costs? Both parties appealed and from the circumstances surrounding the both parties were justified. Plaintiff’s grounds of Appeal are as follows.
1.
The Learned Trial Magistrate erred when she held that the Appellant was not the lawful proprietor of the suit land where as she had found that the Appellant had lawfully bought the suit land.
2.
The Trial Magistrate erred when she declined to make an eviction order against the respondent upon finding that the respondent had no lawful interest in the suit land.
3. The Trial Magistrate erred when she ordered that the purchase price of shs.900,000/= as special damages be refunded to the Appellant when she had upheld the validity of the land sale agreement between the Appellant and one Norah Twemanye.
4.
The Trial Magistrate erred to award special damages of shs.900,000/= whereas in the pleadings in the trial court and at the hearing the Appellant never asked for award of special damages of shs.900,000/=.
On their part defendants had more woes, which they expressed in a total of 9 grounds of Appeal. They ran as follows:
1.
The Trial Magistrate erred in law and in fact having made a finding that the plaintiff was not the lawful proprietor of the suit land.
(a)
When she found and established that the plaintiff had any other interest in this land other than the registered one.
(b) When she awarded general and special damages to the plaintiff.
2.
The Trial Magistrate erred in law and in fact when she awarded special damages of shillings nine hundred thousand (shs.900,000/=) to the plaintiff that was neither pleaded nor specifically proved in evidence.
3.
The Trial Magistrate misdirected herself when she based her finding on the fact that the plaintiff had got registered first before the second defendant that was not applicable in the circumstances and thereby misapplied the authority of CHRISTOPHER ZIMBE VERSUS TOKANA KAMANZA (1954) 7 UL.R 31.
4.
The Trial Magistrate erred in law and in fact when she found that the second defendant had no interest in the suit land that he had sold to the first defendant which finding was contrary to both the pleadings and evidence.
5.
The Trial Magistrate erred in law in fact and contradicted herself having found that the first defendant had bought the land from PW1 and the second defendant when she subsequently held that the first defendant had no interest in the land.
6. The Trial Magistrate erred in law and in fact when she ruled contrary to evidence and found that PW1 a party to and author of exhibit P1.
7.
The Trial Magistrate erred in law when she failed to make any funding on the question whether PW1 the alleged vendor of exhibit P1 was protected under the ILLITERATES PROTECTION Act (cap 73).
8.
The Trial Magistrate erred in law when she failed to apply the relevant sections of the evidence Act (cap 43) in the evaluation of exhibits P1 thereby reaching erroneous conclusions.
9.
The Trial Magistrate erred in law in fact when she generally failed to make a correct assessment and evaluation of the evidence on record and thereby reaching wrong and misdirected conclusions.”
As will be seen later seen later I think with respect the draftsman of the grounds in cross-appeal was under a serious and grave misconception that the more grounds you advance no matter the merit the more chances of success!
Before I embark on considering the merits of this appeal I would like to express an opinion on
