Wakilii

George Tuhirirwe v Carolina Rwamuhanda [2009] UGSC 5

Supreme Court · 2009 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second appeal to the Supreme Court from a Court of Appeal decision in a civil suit for a declaration of ownership and an eviction order.
Decision
Appeal allowed; Court of Appeal judgment set aside and judgment entered for the appellant, who is entitled to an eviction order against the respondent.

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Holding

The Supreme Court allowed the appeal. The Court of Appeal had relied on a 1984 letter that was never tendered or marked as an exhibit at trial, mistaking it for Exhibit P1 (which was in fact the appellant's certificate of title); that document constituted no evidence and could not ground its findings. The Court of Appeal also wrongly entered judgment for the respondent on substantive and counterclaim relief she had abandoned at trial. On the only live issue, the respondent was neither a lawful nor a bona fide occupant under section 29 of the Land Act 1998: her occupation was by permission or licence of the registered owner, and she had not remained on the land unchallenged for twelve years before the 1995 Constitution, having been challenged in the eleventh year.

Facts

The appellant is the grandson of the late Paul Ngorogoza, who owned Plot No. 138 and the adjacent Plot No. 4 at Mwanjari, Kabale Municipality. In his lifetime Ngorogoza gave Plot No. 138 to his daughter Anastanzia Tiwangye (the appellant's mother), transferred it into her name in 1973, and gave Plot No. 4 to Ponsiano Rwamuhanda (the respondent's late husband), reaffirming both gifts in clause 9 of his Will. The appellant inherited Plot No. 138 from his mother and became its registered proprietor. The respondent occupied Plot No. 4 and a portion of Plot No. 138. Evidence showed Ponsiano had been banished from the suit land by a 1974 letter and returned in 1981, when Anastanzia permitted him to stay one year while treating sick children and building on Plot No. 4; he remained beyond the year. After Anastanzia's death the appellant became registered owner, gave the respondent notice to vacate, and on her refusal sued in 1992 for a declaration of ownership and eviction.

Issues

  1. Whether the Justices of Appeal wrongly relied on a document that was not tendered in evidence at the trial and misdirected themselves on the exhibits.
  2. Whether the Justices of Appeal erred in finding for the respondent on substantive and alternative claims that had been abandoned at the trial.
  3. Whether the respondent was a lawful or bona fide occupant of the suit land within the meaning of section 29 of the Land Act 1998.

Orders

  • Appeal allowed.
  • Judgment and orders of the Court of Appeal set aside.
  • Judgment entered for the appellant with a declaration that he is entitled to an order of eviction against the respondent from the suit land.
  • Costs awarded to the appellant in the Supreme Court and in the courts below.

Key headnotes

Evidence — Proof of Facts — Document Not Tendered at Trial
A court's decision on a contested issue of fact must rest on evidence properly before it; a document that was never tendered and marked as an exhibit at trial constitutes no evidence and cannot ground a finding of fact.
Civil Procedure — Record of Appeal — Inclusion of Documents
Counsel must verify that a document placed in the Record of Appeal was actually received in evidence at trial; the absence of any exhibit mark or number on a document should put diligent counsel on notice and prompt inquiry before its inclusion.
Land & Property — Lawful Occupant — Section 29(1) Land Act 1998
A person who occupies land as a member of the registered owner's household or with the owner's permission does not thereby become a lawful occupant within section 29(1) of the Land Act 1998.
Land & Property — Bona Fide Occupant — Twelve-Year Requirement — Section 29(2) Land Act 1998
A person who has not occupied and utilised land unchallenged by the registered owner for twelve years or more before the coming into force of the 1995 Constitution is not a bona fide occupant; occupation challenged in the eleventh year does not satisfy section 29(2)(a).
Land & Property — Licence — Section 29(4) Land Act 1998
A person who is on land on the basis of a licence from the registered owner is not to be taken as a lawful or bona fide occupant.
Evidence — Witness Credibility — Appellate Deference to Trial Judge
Where a question turns on the manner and demeanour of witnesses, the appellate court must be guided by the impression made on the trial judge who saw the witnesses, unless special circumstances warrant differing from that impression.
Civil Procedure — Abandoned Claims — No Judgment on Relief Not Pursued
A court cannot make a finding or enter judgment for a party on substantive or counterclaim relief that the party abandoned at trial and on which neither counsel addressed the court.

Legislation cited (5)

  • Land Act 1998 s.29
  • Evidence Act Cap.6 s.115
  • Registration of Titles Act s.193
  • Rules of the Supreme Court r.94
  • Court of Appeal Rules r.86(4)

Cases cited (3)

  • Rodseth v Show (1967) EA 833
  • Executrix of the Estate of the Late Christine Mary Namatovu Tebaijjuka & Another v Noel Grace Shalita Stananzi (Supreme Court Civil Appeal No. 2 of 1998)
  • D.R. Pandya v R (1957) EA 336
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.