Wakilii

Auma v Lakony (Civil Appeal No. 12 of 2019)

High Court · [2020] UGHC 124 · 2020 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from Chief Magistrate's Court dismissal of trespass and co-ownership claim
Decision
Appeal allowed. Appellant declared co-owner as tenant in common in equal shares. Title to be rectified. Vacant possession and permanent injunction granted. Mesne profits and general damages awarded.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the appellant proved she contributed UGX 7,500,000 to the purchase price on 1 October 1995, creating a tenancy in common in equal shares with the respondent. The trial court erred in relying on a flawed forensic handwriting analysis that used insufficient control samples and photocopies. The documentary trail of the respondent's financial difficulty and the timing of his payment to the Custodian Board one day after receiving the appellant's contribution corroborated her claim. The title deed issued in the respondent's sole name was a mistake requiring rectification. Appeal allowed.

Outcome

Appeal allowed. Appellant declared co-owner as tenant in common in equal shares. Title to be rectified. Vacant possession and permanent injunction granted. Mesne profits and general damages awarded.

Facts

The appellant and respondent are relatives. In 1995, the respondent, a sitting tenant, bid for property from the Departed Asians Property Custodian Board at UGX 15,002,191. He signed a purchase agreement on 6 April 1995 as sole purchaser. By May 1995, he was struggling financially and requested extensions to pay. On 1 October 1995, the appellant gave him UGX 7,500,000 in the presence of a witness at Nsambya Police Barracks. The next day, 2 October 1995, the respondent paid UGX 6,000,000 to the Custodian Board. A certificate of purchase dated 4 May 1998 was issued in both names. The appellant occupied side 7B of the building and collected rent. In 2010, the respondent stopped remitting rent to her. In 2012, he built a wall blocking her access to the front of her side and claimed sole ownership. The title deed was issued in his name alone. The appellant sued for trespass and co-ownership. The trial court dismissed her claim, relying on a handwriting expert who opined that documents evidencing her contribution were forged.

Issues

  1. Whether the appellant and respondent are joint owners (tenants in common) of the suit property.
  2. Whether the trial magistrate erred in declaring the respondent sole owner without a counterclaim.
  3. Whether the trial magistrate properly evaluated the evidence, including the handwriting expert's testimony.

Orders

  • Judgment of the trial court set aside.
  • Appellant declared co-owner as tenant in common in equal shares with respondent of LRV 208 Folio 20 Plot 7 Nehru Road Gulu District (side 7B).
  • Commissioner Land Registration ordered to rectify certificate of title to reflect appellant as tenant in common in equal shares.
  • Vacant possession of side 7B granted to appellant.
  • Permanent injunction restraining respondent from interfering with appellant's possession of side 7B.
  • UGX 71,000,000 awarded as mesne profits.
  • UGX 25,000,000 awarded as general damages.
  • Interest at 10% per annum on damages and mesne profits from date of judgment until payment in full.
  • Costs of appeal and trial court awarded to appellant.

Rules and key headnotes

Tenancy in Common — Distinction from Joint Tenancy — Unity of Possession
Unlike joint tenancies where each co-owner is equally and wholly entitled to the whole estate, in tenancies in common each co-owner holds a distinct share or proportion of the property. While a joint tenancy requires the four unities of possession, interest, title, and time, the only unity which exists between tenants in common is the unity of possession. Unlike joint tenants, with tenancies in common ownership interests do not have to arise at the same time; one person may own the property to begin with and then transfer or sell an ownership interest at a later date.
Expert Witnesses — Weight of Expert Opinion — Duty to Furnish Scientific Criteria
An expert is not a witness of fact and his or her evidence is only of advisory character. An expert therefore deposes and does not decide. It is incumbent upon an expert witness to furnish the court with the necessary scientific criteria for testing the accuracy of his or her conclusion so as to enable the court to form its independent judgment by application of the criteria to the facts proved by the evidence. The weight to be attached to an expert opinion depends on whether there is a demonstrably objective procedure that guided the expert to reach the opinion proffered.
Expert Witnesses — Handwriting Analysis — Requirement for Adequate Control Samples
The reliability of an expert opinion on handwriting depends on the reliability of the handwriting comparison and the reliability of the expert's skills. Best practices require contemporaneous exemplars for comparison purposes because they tend to be far more representative of the subject's writing habits and skill at the time the questioned item was purportedly written. The more business writing control samples compared with questioned samples, the more reliable the expert opinion is likely to be. If the questioned document is a duplicate or photocopy, the expert opinion is likely to be less reliable.
Documentary Evidence — Secondary Evidence — Photocopies
According to section 64(1)(c) of the Evidence Act, secondary evidence may be given of the existence, condition or contents of a document when the original has been destroyed or lost. To qualify as secondary evidence, it must have been produced from the original by mechanical processes which in themselves ensure the accuracy of the copy. Photocopying is not a mechanical process which in itself ensures the accuracy of the copy. It is a matter of common knowledge that after inserting words on a document which is already a photocopy and by interpolating the same, another photocopy of the interpolated photocopy may be obtained and thus the accuracy of photocopy is always surrounded by dark clouds of doubt.
Cross-Examination — Failure to Challenge Evidence — Inference of Acceptance
An omission or neglect to challenge the evidence in chief on a material or essential point by cross-examination would lead to an inference that the evidence is accepted, subject to its being assailed as inherently incredible or possibly untrue.
Registration of Titles — Rectification — Mistake in Register
There will have been a mistake in the register where the Registrar makes an entry that he or she would not have made, makes an entry in the form in which it was not intended, fails to make an entry which he or she would otherwise have made, or deletes an entry which he or she would not have deleted, had he or she known the true state of affairs at the time of the entry or deletion. The mistake may consist of a mistaken entry in the register or the mistaken omission of an entry which should have been made. Where a certificate of purchase under the Expropriated Properties Act names joint purchasers but the title deed is issued in one name only, this is a mistake calling for rectification.

Legislation cited (12)

Cases cited (18)

  • Burton v Camden LBC [2000] 2 AC 399
  • AG Securities v Vaughan [1990] 1 AC 417
  • Kimani v Republic [2000] 2 EA 417
  • Father Nanensio Begumisa and Others v Eric Tiberaga (Supreme Court Civil Appeal No. 17 of 2000)
  • Lovinsa Nankya v Nsibambi [1980] HCB 81
  • Habre International Co Ltd v Kasam and Others [1999] 1 EA 115
  • Pioneer Construction Co Ltd v British American Tobacco (High Court Civil Suit No. 209 of 2008)
  • R v Hart (1932) 23 Cr App R 202
  • James Sawoabiri and Another v Uganda (Supreme Court Criminal Appeal No. 5 of 1990)
  • Frazer v Walker [1967] AC 569
  • Kampala Bottlers Limited v Damanico Limited (Supreme Court Civil Appeal No. 22 of 1992)
  • Sejjaaka Nalima v Rebecca Musoke (Supreme Court Civil Appeal No. 2 of 1985)
  • Uganda Posts and Telecommunications v AKPM Lutaaya (Supreme Court Civil Appeal No. 36 of 1995)
  • Fredrick JK Zaabwe v Orient Bank and Others (Supreme Court Civil Appeal No. 4 of 2006)
  • Sebuliba v Cooperative Bank Limited [1987] HCB 130
  • M Kibalya v Kibalya [1994-95] HCB 80
  • NRAM Ltd v Evans [2018] 1 WLR 1563
  • Norwich and Peterborough Building Society v Steed [1993] Ch 116

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Auma v Lakony (Civil Appeal No. 12 of 2019) [2020] UGHC 124 (14 August 2020)
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.