THE REPUBLIC OF UGANDA

IN THE COURT OF APPEAL OF UGANDA

AT KAMPALA
CORAM:
5 HON. MR. JUSTICE G.M.OKELLO, JA
HON. MR. JUSTICE A.TWINOMUJUNI, JA
HON. LADY JUSTICE C.K.BYAMUGISHA, JA

CIVIL APPEAL NO.25 OF 2002

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BETWEEN

GODFREY OJWANG:::::::::::::::::::::::::: APPELLANT

15 AND

WILSON BAGONZA:::::::::::::::::::::::::::: RESPONDENT

20(Appeal from the judgment and orders of the High Court of Uganda
at Kampala (Mwondha Ag. J) dated 16th August 2001 in H.C.C.S.No.1759 of 2000)

JUDGMENT OF BYAMUGISHA.JA
25

This is an appeal against the decision of the High Court of Uganda dated the 16th August
2001 in which the respondent’s claim against the appellant was allowed with costs and
the appellant’s counter-claim was dismissed with costs.
30The suit arose out of a claim for recovery of land. The respondent by his amended plaint
filed on the 29th May 2001 sought an eviction order against the appellant for trespass,

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 special and general damages. The facts that gave rise to the institution of the proceedings
in the court below were not seriously contested. On the 17th November 1992 the appellant
acquired a piece of land from one Francis Ndaga. The land was a customary holding
popularly known as Kibanja. It is situated at Nsambya West Zone, Makindye Division
5Kampala District. On the 12th April 1996 the appellant sold part of his customary holding
to the respondent for a consideration of shs 1,200,000/=. Subsequent to the said purchase,
the respondent wanted to acquire a registered interest and in the process of doing so he
discovered that the land was registered in the names of the Registered Trustees of
Kampala Archdiocese. The officials of the diocese in charge of managing the estates told
10the respondent that the appellant was a trespasser on the land and had settled there
without its knowledge and consent. The respondent went ahead to acquire a lease for 49
years and a certificate of title (exhibit p.5) was issued in his names. The title he acquired
included the piece of land, which the appellant had acquired from Francis Ndaga.

15After the acquisition of the title the respondent requested the appellant to vacate the land
and offered him compensation of shs 9,000,000/= which the latter rejected. Efforts to use
auctioneers to evict him were futile and the respondent filed a suit in the High Court at
Kampala claiming the reliefs I have stated earlier.

20In his written statement of defence and counter-claim, the appellant averred that he had
an equitable interest in the land and that the respondent was not a bona fide lessee as he
acquired his interest with full knowledge of the defendant’s interest. He alleged that the
respondent’s acquisition was tainted with fraud. The particulars of fraud were given as
follows:
25“Registering the lease with knowledge of the defendant’s unregistered interest on the
said land as evidenced by the structures erected on the land and the agreement of sale
for a portion of the land between the plaintiff and the defendant.”
In the counter-claim, the appellant averred that he had an interest in the land, which he
purchased from Francis Ndaga, and in turn sold a portion of it to the plaintiff. It was
30averred that when the respondent registered himself, he did so with full knowledge of the

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 defendant's unregistered interest. In doing so, the appellant averred that the respondent
was fraudulent. He therefore made the following prayers: -
a) Dismissal of the plaintiff’s suit.
b) An order that the plaintiff is not a bona fide lessee as he fraudulently registered his
5 interest without due consideration of the defendant’s interest.
c) A declaration that the defendant has an equitable interest in the suit property.
d) A permanent injunction retraining the plaintiff, his servants and or agents from
evicting the defendant from the suit property or otherwise interfering with his
occupation of the same.
10e) General damages.
f) Costs of the suit.
g) Any other relief that the court may deem fit.

In the reply to the written statement of defence and counter-claim, the respondent denied
15the allegations contained therein. He averred that the appellant’s initial entry onto the suit
land was illegal and a trespass and he never acquired any equitable interest in the suit
land. It was averred that the plaintiff’s knowledge of the defendant’s illegal presence on
the suit land before the acquisition of the lease did not derogate from the plaintiff being a
bona fide lessee. He denied the particulars of fraud that were alleged in paragraph seven
20of the defence.

At the scheduling conference held on the 17th May 2001 the parties agreed on the
following matters: -
1. That there was a purported sale.
252. That the defendant is in occupation of part of the suit land.
3. That the plaintiff is on part of the suit land.
4. That the plaintiff has a lease for the whole suit land including the part where the
defendant is staying.
5. That Kampala Archdiocese has an overriding interest in terms of freehold on all the
30 suit land.
Four issues were framed for court’s determination namely:

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 1. Whether the defendant has ever had any interest recognised under the law in the suit
land.
2. Whether the defendant was a trespasser on the suit land.
3. Whether the plaintiff is a bona fide lessee.
54. Remedies available to the parties if any.

The learned trial Judge answered the first issue in the negative; the second and third in
the affirmative. She awarded the plaintiff the sum of Ug.shs. 8,596,500/= as special
damages; shs.300, 000/= as general damages for trespass and costs of the suit. She found
10that the appellant was a trespasser on the suit land and was not entitled to any remedies.

Being dissatisfied with the outcome, the appellant filed the instant appeal. The
memorandum of appeal filed on his behalf contains the following grounds namely: -
1. The learned trial Judge erred in law and fact when she held that the appellant
15 never acquired any interest recognised by law in the suit land.
2. The learned trial Judge erred in law and fact when she held that the respondent
was not estopped from denying the propriety of the appellant’s interest in the
suit land.
3. The learned trial Judge erred in law and fact when she relied on a list of bibanja
20 holders which was neither annexed to the pleadings, seen nor tendered in
evidence as an exhibit.
4. The learned trial Judge erred in law and fact when she held that the appellant
was a trespasser on the suit land.
5. The learned trial Judge erred in law and fact when she held that the respondent
25 was a bona fide lessee of the suit land comprised in Leasehold Register Volume
2930, Folio 20, Kyadondo Block 15, Plot. No.1994.
6. The learned trial Judge erred in law and fact when she awarded special damages
of Ug.shs 8,900,000/= which were not proved, were remote and unforeseeable.
The appellant proposed the following orders
301. The setting aside of the judgement and decree of the lower court.
2. Entering the judgement for the appellant on the counter-claim.

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 3. Costs of the appeal and in the court below to be paid by the respondent.

At the hearing of the appeal, Mr Tadeo Asimwe counsel for the appellant argued grounds
one and four of the appeal together. He submitted that unregistered interest is recognised
5under the provisions of section 64 of the Registration of Titles Act (Cap 230 Laws of
Uganda). He relied on the following decisions namely Uganda Telecommunications Vs
Abraham Kitumba & Another C.A.No.36/95(S.C.) (unreported) and Somali
Democratic Republic Vs Annop Sunderali Treon C.A.No.4/88(S.C.) (unreported) for
the legal proposition that if a person purchases an estate which he knows to be in
10occupation of another other than the vendor, he is bound by all the equities which the
parties in such occupation may have in the land.

In reply, Mr Tebyasa, counsel for the respondent submitted that the first ground of appeal
was basically the first issues at the trial namely whether the appellant had acquired any
15interest in the land lawfully. He pointed out that the appellant never knew that Kampala
Archdiocese were the owners of the land. It was his submission that the respondent was
informed by Mr Makumbi that the portion of the land he bought from the appellant did
not belong to him. He further testified that he had a list of bibanja holders dating back to
1966 and the names of those the appellant bought his interest from were not among them.
20It was counsel’s submission that in order for the appellant to claim any interest in the
land, his title ought to be derived from someone who had a recognised right and title on
the land.

He pointed out that in 1992 when the appellant acquired his kibanja the law governing
25bibanja acquisition was the now repealed Land Reform Decree. He referred to the
judgment of the court in which the learned trial Judge addressed her mind to the
provisions of sections 1 and 4(1) of the Decree. He stated that the appellant had to show
that he gave notice to the controlling authority and as such the transactions were null and
void under section 4(2) of the Decree adduced no evidence. He cited to us the case of
30Paul Kisekka Saku Vs Seventhday Adventist Church SCCA No.8/93(unreported) in
which the provisions of the above sections were judicially considered.

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 Learned counsel referred to a letter dated 5th August 1999(exhibit D.4) in which counsel
for the appellant expressed ignorance about the authority of Kampala Archdiocese over
the land and asserted that the denial of Kampala Archdiocese as the owner of the land
5was an act of trespass. He relied on the case of Kibalama &Another Vs Margaret
Kiwana C.A.No.5/82(C.A.)(unreported) for his assertion.

It seems fairly obvious to me from the submissions made by both counsel that at the time
of the transactions between the appellant, the respondent and one Francis Ndaga the law
10applicable was the now repealed Land Reform Decree. Under section4 (1) a holder of a
customary tenure on public land had to give notice of not less than three months to the
prescribed authority before selling or transferring his/her interest. The transfer would not
vest any title to the transferee except the improvements or developments carried out on
the land. Subsection 2 made void any agreement or transfer by the holder of any
15customary tenure without the consent of the controlling authority.

In the instant appeal, there was no evidence adduced by the appellant to show that any
notice as required by the law was given to the controlling authority before he acquired his
interest from Francis Ndaga. In cross-examination he stated that he did not recognise
20anyone as having an overriding interest on his kibanja.

In the matter now before us, it was the appellant’s contention that he acquired his interest
from Francis Ndaga on the 17th November 1992. The said Ndaga was, according to the
appellant's own testimony, the son of Nakku Musana who apparently acquired his kibanja
25from the white fathers. Nakku Musana and his son Francis Ndaga did not testify at the
trial with regard to the acquisition of the land from the white fathers. However, the
testimony of Ntambazi Edward (P.w.2) an accountant in the estate office of Kampala
Archdiocese gave evidence to the effect that he had a list of all bibanja holders since
1966 and the list did not include Francis Ndaga Nakku Musana or the appellant. In
30dealing with the appellant's alleged acquisition the learned trial judge had the following
to say: -

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 "This land was acquired in 1992 by the defendant just 3 years before the 1995
Constitution came into force, and the Land Act of 1998 which was 7 years before its
enactment, consequently the law applicable to gives (sic) us clearly what ought to have
5been done was the Land Reform Decree No.3/75 which was the Law then and of
course taking into consideration Interpretation Act Ss 13(2)(a)(b)(c)(d) and (e) there of
section 1(1) of the Land Reform Decree having converted all land in Uganda to be
Public Land under Uganda Land Commission and section 4(1) of the Decree having
only allowed one to transfer a customary tenure on land after notice to the prescribed
10authority, the evidence reveal that there was no such notice. Section 4(2) of the Land
Reform Decree made the agreement or transfer without such notice void and of no
effect. It goes further to provide that even where notice is give the transfer (sic) didn't
acquire title or interest in that save for only improvements and or developments on the
land.
15Because of the defendant's failure to obtain consent from the registered proprietor in
accordance with section 4(1) of the decree which was either Kampala Archdiocese or
the Uganda Land Commission when the land was converted in Public land by the
Land Reform Decree he doesn't qualify by the specific provisions in section 30(1)(a) of
the Land Act to be referred too (sic) as a bonafide occupant. For the reason that he
20never entered on the land under the Laws prescribed under Section 30(1)(a) of the
Land Act. He entered the land in 1992 three years before coming into force of the
Constitution of 1995. I was convinced by counsel for the plaintiff argument taking in
consideration the evidence on record which section 4 of the Land Act the defendant
couldn't be described as a lawful occupant either. Section 4(1) described what a
25customary tenure is. There was no consent from the registered owner and he was not
settled on the land by owner and he was not settled on that land by Government. I was
persuaded by the case cited by counsel for the plaintiff Paul Kisekka Saku v. Seventh
Day Adventist already cited and the decision therein to the effect the defendant had
not acquired the land lawfully in accordance with land reform Decree 1975.
30Consequently I find that the defendant didn't acquire any interest recognised by law".

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 I agree with the findings of the learned trial judge that the law governing the acquisition
of land in 1992 was the now repealed Land Reform Decree. The provisions of the
relevant section was judicially considered by the Supreme Court in the case of Kisekka
Saku v Seventh Day Adventist Church (supra). The brief facts of the case were that the
5appellant purchased a kibanja in 1984 from one Nandawula who previously owned it.
The mailo owner subsequently sold her leasehold interest to the respondent church in
1987. The appellant demanded the sum of shs 3,966,809/= as compensation from the
respondent for his customary interest but the respondent was only willing to pay shs
1,500,000/=. The appellant sued the respondent for compensation. The suit was dismissed
10by the High Court on the ground that the appellant had not complied with the provisions
of section 5(1) of the Land Reform Decree by failing to obtain permission from the
prescribed authority. He appealed to the Supreme Court contending that he had lawfully
acquired the kibanja by customary practice. In dismissing the appeal, the Supreme Court
held that the transfer from Nandaula to the appellant was governed by section 4(1) of the
15Land Reform Decree which required the said transfer to be preceded by three months
notice of the intended transfer to the prescribed authority. The court went on to state that
since there was no such notice, the transfer was unlawful and void.

In the matter now before us, the appellant in his own testimony stated that he "had never
20recognised anyone having an overriding interest on his kibanja" to use his own words. He
also testified that he did not inquire about the history ownership of the kibanja. The only
information he obtained from Ndaga who sold him the land was that he (Ndaga) was the
son of Naku Musana who had been given that land by the white fathers. The land had no
developments on it. The appellant's own admissions are clear testimony that he had no
25direct or constructive knowledge about the ownership of the kibanja he purchased from
Ndaga. The evidence of P.W.2 to the effect that Kampala Archdiocese had no knowledge
of Ndaga or Naku Musana ought to be believed. I think the appellant was being naïve
when he testified that he did not recognise anybody else who had a superior title than
him. Under the now repealed Land Reform Decree, all land was vested in the Uganda
30Land Commission and therefore it was the controlling authority. Furthermore, his
admission that he did not make any inquiries as to the status of the land he was

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 purchasing shows lack of prudence on his part. On the appraisal of the evidence on
record, I would uphold the findings of the lower court that the appellant did not acquire
his kibanja lawfully and therefore his acquisition was not protected by the provisions of
section 29(5) of the Land Act (Cap 227 Laws of Uganda 2000) as learned counsel for the
5appellant submitted. The subsection provides as follows:

"Any person who has purchased or otherwise acquired the interest of the person
qualified to be a bona fide occupant under this section shall be taken to be a bona fide
occupant for purposes of this Act".
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The words "bona fide occupant" are defined in subsection 2 of the section to mean
"a person who before coming into force of the Constitution-
(a) had occupied and utilised or developed any land unchallenged by the registered
owner or agent of the registered owner for twelve years or more;
15(b) had been settled on land by the Government or agent of the Government, which
may include a local authority".

My understanding of the above provisions is that a person to qualify as a bona fide

occupant of land he/she must have occupied and utilised or developed the same for
20twelve years or more without being challenged by the registered proprietor. The second
instance is where the Government or a local authority settles the person on the land. The
evidence before the lower court was that his son Francis Ndaga introduced the appellant
to Nakku Musana before he purchased the land. He concluded a sale agreement with
Nakku Musana. Francis Ndaga and Mary Nakate signed it as sellers and himself as the
25buyer. In cross-examination he stated that there were no developments on the land. He
also stated that he did not inquire about the history of the land. Nakku Musana who is
alleged to have obtained the land from the white fathers did not testify. Therefore the
alleged occupation and utilisation of the land by Nakku Musana for a period of twelve
years or more was not supported by the evidence on record. The respondent cannot be
30said to have purchased land in occupation of another in order for him to be bound by all
equities that such person might have in the land. The provisions of section 64(supra) and

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 the decided cases on the subject do not support the appellant's claim. Iam therefore not
persuaded that the provisions of section 29(5)(supra) protect the appellant. The first
ground of appeal would inevitably fail.

5I shall now turn to ground six. This ground was concerned with the award of special and
general damages. The respondent in the amended plaint had claimed the sum of shs
8,265,000/=. This amount included the sum of shs 1,200,000/= being the purchase price
paid by the respondent to the appellant for the piece of land. This transaction like the one
between the appellant and Francis Ndaga did not comply with the relevant provisions of
10the Land Reform Decree. Therefore it was intrinsically and inevitably illegal in its
inception. The question is whether the money paid by the respondent is recoverable.
There are authorities such as Singh v Kulubya [1963] EA 408; and Broadways
Construction Ltd v Kasule and Others [1972] EA 76 which state that money paid
pursuant to an illegal contract is irrecoverable.
15
The rule has long been established that no man or woman can claim any right or remedy
under an illegal transaction in which he/she has taken part. A court of law cannot sanction
what is illegal and an illegality once brought to the attention of court, overrides all
questions of pleading and any admissions made thereon by the parties see: Makura
20International Ltd v Cardinal Nsubuga &Another [1982] H.C.B 11.

The attention of this court has been drawn to the fact that the respondent and the
appellant never sought the consent of the controlling authority before carrying out the
transaction of selling and buying the land in question. None of them can use the court of
25law to recover money paid through an illegal transaction. The respondent's case does not
fall within the exceptions to the rule that losses and gains remain where they have fallen.
The sum of shs 1,200,000/= is therefore irrecoverable. As for the rest of the monies
claimed under special damages, the law is that special damages must be pleaded and
strictly proved by the party claiming them as being a direct result of the wrongs
30committed by the defendant. The respondent claimed that he instructed the firm of M/s
Kangwamu &Co Advocates who wrote to the appellant a letter requesting him to vacate

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 the land. He stated that he paid the sum of shs 2,900,000/=. He produced a receipt
(exhibit P.3) as proof of payment. Counsel for the appellant in his submission before us
stated that money paid to advocates is treated as costs. With respect, I think costs are
recovered after court action. The respondent did not go to court. After being registered as
5proprietor he offered to compensate the appellant. The offer was rejected. He therefore
proceeded to evict the appellant as a trespasser on his land. He engaged a lawyer to do
some work for that purpose. The appellant resisted the eviction. But the respondent
incurred expenses and he is entitled to the sum claimed. The amount of money paid to the
lawyer was strictly proved, as the law requires. It would be awarded.
10
The other sum claimed was shs 3,000,000/= allegedly paid to M/s Ferry& Marks
Auctioneers for evicting the appellant. The respondent tendered a receipt (exhibit P.2)
showing that only shs 1,000,000/= was paid. The balance of shs 2,000,000/= was not
proved and therefore it would be disallowed. In my considered opinion, a total sum of shs
153,900,000/= was strictly proved and it would be allowed. The sum of shs 8,596,500/=
awarded by the learned trial judge would be set aside and substituted with a sum of shs
3,900,000/= as special damages.

As for general damages, counsel for the appellant submitted that the learned trial Judge in
20awarding general damages computed the period from 1996 yet the respondent acquired
the lease in 1999. According to counsel, the amount of money awarded should be revised
to shs 100,000/=. The certificate of title (exhibit P.5) shows that the term of the leasehold
was to run from 1st September 1999. The learned trial Judge erred when she computed the
period of trespass from 1996 when the appellant purported to sell his interest to the
25respondent. I therefore agree with the submissions of counsel for the appellant that the
amount of general damages ought to have been shs 100,000/=. This ground would also
succeed. These two grounds more or less disposes of the whole appeal and I do not think
it necessary to deal with the rest of the grounds.

30The appeal would partly fail and partly succeed with costs both here and in the court
below. The respondent would be awarded 4/5 of the costs. The amount of damages would

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 be reduced and substituted with a sum of shs 3,900,000/= as special damages and shs
100,000/= as general damages.

Dated at Kampala this…18th …day of…February……….2004.

5
C.K.Byamugisha
Justice of Appeal

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