Kaggwa v Musiimenta (Civil Appeal 10 of 2022) [2024] UGSC 41 (20 June 2024)

oy . THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA

Coram

Mwondha; Tibatemwa-Ekirikubinza; Tuhaise; Chibita; Musoke, JSC CIVIL APPEAL NO. 10 OF 2022 DR. DAVID KAGGWA... .ss see csssseses cesses cesses cen seese APPELLANT VERSUS [AUDREY MUSIIMENTA.............0.1s sess 000000000000 RESPONDENT (Appeal against the Judgment and Decree of the Court of Appeal in Civil Appeal No. 195 of 2017 before Hon. Justices Cheborion, Musota and Madrama, JJA., delivered on the 1 day of March, 2022.) JUDGMENT OF PERCY NIGHT TUHAISE, JSC This is a second appeal arising from the judgment of the Court of Appeal which upheld the decision of the High Court in Civil Suit No. 78 of 2011 and substantially dismissed Civil Appeal No. 195 of 2017. Background of the appeal The Respondent, Audrey Musiimenta, was the registered proprietor of land comprised in Kyadondo Block 221, Plot 772, land at Nalyako (the suit land). In 2002, she borrowed a sum of Uganda Shillings (UGX) 4,000,000/= (four million) from Emily Migyisha to facilitate her travel to

“the United States of America (USA). She executed a transfer form and handed over the duplicate certificate of title to the land to Emily Migyisha. Upon her return to Uganda, the Respondent found ongoing construction on the suit land. She discovered that the land title had been transferred into the names of Emily Migyisha and John Junior Sekindi and later sold to Dr. David Kaggwa, the Appellant. The Appellant had taken over possession of the land and his agents were constructing on it. The Respondent filed Civil Suit No. 78 of 2011 against Emily Migyisha (1* Defendant), John Sekindi (2"! Defendant), John Junior Sekindi (3 Defendant), Dr. David Kaggwa (4! Defendant/Appellant) and the Commissioner Land Registration (5 Defendant) for recovery of the suit land, damages for trespass to land, damages for fraud, a permanent injunction, cancellation of title and costs of the suit. The Respondent's evidence was that she fully paid back the 1 Defendant a sum of United States Dollars (USD) 2,735; that she had executed the transfer forms as security in the event that she defaulted in her obligations towards the 1 Defendant; and that, upon payment, the transfer forms were supposed to be destroyed and the certificate of title handed back to her through her sister Mrs. Grace Mubangizi. The 1st Defendant's evidence was that the Respondent sold the land to her at UGX 6,000,000/= (six million); that she transferred the land into her names and those of John Junior Sekindi, her son; that she and the 2 Defendant sold the land to the 4'" Defendant, Dr. David Kaggwa; and that

she never received any money as alleged from the Respondent, since the transaction was not a loan. ‘The Appellant's evidence was that he purchased the land from the Ist and 24 Defendants who were the registered proprietors. The plaint in paragraph 2 (b) indicated that John Junior Sekindi (3! Defendant) was a minor. However, he was not served with summons as provided under order 32 rule 3 (4) of the Civil Procedure Rules, and his minority was not proved. Court was therefore not in position to appoint a guardian ad litem for him, and the suit was dismissed against him. The learned trial Judge found that the transaction between the Respondent (Plaintiff) and 1* Defendant was a money lending agreement and nota sale; that the registration of the Emily Migyisha and John Junior Sekindi on the title was procured by fraud and did not confer good title to the suit property upon them; that the 4" Defendant is not a bona fide purchaser for value without notice of fraud; and that he did not acquire any interest in the suit land from the 1s and 2 Defendants that can be: protected by law. Court ordered as follows:-

1. The 4th Defendant is declared to be in trespass on the suit property

comprised in Kyadondo Block 221 Plot 772.

2. The 4th Defendant shall pay general damages to the Plaintiff in the sum of U. Shs. 30,000,000/=.

3. The 4!" Defendant shall within 14 days of this Judgment, vacate the suit property failing which, he will be liable for eviction by the plaintiff.

4. A permanent injunction doth issue against the 1*, 2. and 4% Defendants collectively restraining them from trespassing onto the suit property. This particular order to apply to the 4" Defendant at the expiration of the 14 days.

5. An order directing the 5 Defendant to cancel the names of Emily Migyisha and John Junior Sekindi from the register and reinstate that of the Plaintiff.

6. An order of general damages against the 1st and 2™! Defendants in the sum of U. Shs. 100,000,000/=.

7. Costs of the suit to be met by the 1+, 24 and 4% Defendants.

‘The Appellant was dissatisfied with the decision of the learned trial Judge. He filed an appeal to the Court of Appeal against the Respondent only. Of the six grounds of appeal lodged at the Court of Appeal, the Appellant only successfully challenged the trial Court’s award of general damages of UGX. 30,000,000 against the Appellant. The decision of the learned trial Judge was essentially upheld, and the appeal was substantially dismissed with the Appellant to pay three quarters of the costs. ‘The Appellant then lodged this appeal to the Supreme Court, on the following grounds:-

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