Abaho Tumushabe v Beinababo (Civil Appeal 35 of 1995) [1996] UGHCLD 5 (6 December 1996)

THE HTC8I CGU1T GF U3A-TDA CIVIL APPEAL HO, **35** CF **1995** (CF. TGIHAL CIVIL SUIT 27/93 HffftUNGIRl)

#### ABAHO TUMU3IIABE APFELLA'IT

STANLEY BEEIABADO HESPOIID-JJT

#### Biyopja 11011. JUSTICE JOWL

#### JUDGMENT

Tliis is an appeal by Abaho Tumushabe against the judgment of the Magistrate '-rade One sitting at Eukungiri on 21/Q3/L995. The respondent is Stanley Beinababo.

The brief baclcgixund to this appeal in Civil Suit No. 2?/93 in liukungiri Court Stanley Beinababo the instant respondent sued the appellant for recovery of land. The suit land had been purchased by the appellant from one Benon Tindinsirelcaa who vzas a brother to the respondent. He paid the purchase price agreed up between the parties by instalments and after he liad completed paying for the land the respondent purchased this same price of land from Benon Tlndirourekwa who sided with the respondent in his claim that the land was his on grounds that his sale of the land was conditional on his obtaining consent to sell the land out of the family vjhlch cansont he had not obtained\* The respondent filed ^ivil Suit 27/93 Bukungiri for recovery of the suit land from the appellant\* The learned trial Magistrate found for the respondent hence this appeal against his Judgment and orders\*

decision The appellant advanced fine grounds against the Judgment and of the learned trial Magistrate vdiich are as follcusw

- 1. Ths trial Magistrate erred in holding that the **suit** property belonged to the respondent contrary to **Lbw and evidence.** - 2\* That the trial Magistrate erred in Law in holding that the owner of land required the consent of a person who is not a joint proprietor before such land can be sold\*

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- 3\* The trial Magistrate erred in holding that receipt of money by the seller of the Suit property and subsequent occupation of the same by the buyer did not constitute a valid sale\* - 4\* without prejudice to the above the trial Magistrate erred in NOT ordering the refund of the purchase price and is not ordering compensation to the appellant for developments on the said land\*

5\* The trial Magistrate ee erred in finding that the appellant was a tresspasser\*

**id** 1-5 20- -25 Mr\* KaZouru learned Counsel for the appellant submitted tiiat from the evidence on record the land in issue had been given to the respondent by his father and what was left was formal transfer\* According to the respondent's father Erisa Kamahanga who was CH 2 in the proceedings before the lower court\* all he required of the respondent was to be consulted in the even the land was to be sold Mr\* Kakum pointed out and that EK 2 having given his consent to the transaction between the appellant and the respondent the consent of no other person, was required\* Counsel argued that it was surprising for the learned trial Magistrate to hold that the subsequent purchase by the respondent was valid ; nimply because the respondent was the brother of the seller\* Mr\* Kakuru further contended that the Magistrate having found that the respondent uas the owner of the land but that the appellant had paid money to Denon Tindinuxjkwa and vias in occupation lawfully\* he should have ordered for refund of purchase price and compensation for any developments done by the appellant when in occupation\* He finally submitted that the learned trial Magistrate arrived at the wraig conclusions because he did not evaluate the evidence os he was wont to do\*

30 Mr\* Kahungu — Tlbayiita learned Counsel for th© Respondent supported tho judgment of the learned trial Magistrate because the sale between the appellant and Bcnon Unditnirokwa was conditional on the consent of the jjrothors of the Latter and no consent of his father was required\* Counsel argued that according to FU 1 no vacant possession was given to the appellant and therefore the appellant rightly held to be a tresspasser\*

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He pointed out that it must be borne in mind that EN 2 was over 90 years old and that the learned trial Magistrate evaluated the evidence on record and arrived at the right conclusion\*

I sliall handle the grounds of appeal in the same order in vttch learned Counsel for the appellant argued them\* Ho argued grounds 1\* 2\* 3 and 5 of his appeal together and ended with ground 4\*

The learned Oounsel for the appellant complained that the learned did not subject the evidence that was adduced to an evaluation then apply it to the law and as a result had not arrived at the right conclusions\* Though there is no standard as to how long a judgment should be\* it is a legal requirement\* that the evidence adduced before a trial court must be evaluated by the trial magistrate or judge by taking lute account the case for both parties in order to arrive at a just and balanced conclusion\* At the trial of the suit under consideration the witnesses\* Their evidence covered thirteen full scap typed pages\* In his perfunctory treatment of this evidence the learned trial Magistrate in his two page judgment devoted fourteen lines to this evidence and concluded with the words\*-

''Having carefully considered the evidence on both sides arxi evaluated it\*\*\*\*\*\*\*4'\* He then proceeded to make his findings and give ills orders\* It is my view that it was not enough for the learned trial magistrate to say he had considered land evaluated the evidence\* This should have been apparent from his judgment\* which does not show he evaluated the evidence as he has claimed\*

witness box\* its own conclusions always bearing in cdnd that\* unlike the trial court\* it docs not have the benefit of seeing and watchiixj the witnesses in the It is trite law that a first appellate Court like this one may evaluate tlie evidence that was adduced before a lower court and cone to

So© Uilliamscn Zimond Ltd vs Braun [1770] EA 1

Pandya versus It [1957] LA 33o

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**A**

Bearing the weight of these authorities in mind. I shall now proceed to evaluate the evidence as was adduced before the trial court.

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In support of his case, the plaintiff who was FW 1 testified that he had bought the suit land from his brother FW 3 on 01/08/1991 at $\mathsf{S}$ $\Im$ s. 350.000/= which the defendant grabbed on 15/09/1991. Though the Plaintiff and FM 2 the were brothers to the FM 3 danied any knowledge of the sale of the suit land to the defendant. FW 3 himself testified that he considered the sale to the defendant conditional pending the consent of his brothers who included PW 1 and PW 2 and on consultation they $10<sup>1</sup>$ withheld their consent their late mother was buried on the suit laxi. $W$ 3 gave evidence that it was on this basis that he remeged on the sale transaction between himself and the defendant. From the evidence on record I believe that PM 3 informed PW 1 and PM 2 of the transactions between kimself and the defendant which was actor to $01/08/1991$ and that PW 1 and PW 2 were deliberately lying when they testified that they had $\epsilon$ 16 not known the defendant had bought the land in issue. When II. 1. the defendant testified that he paid the full price of $Sha_350.000/$ in three. instalments stretching from $27/11/90 - 17/1/91$ his evidence was not challenged. Even if one was to believe that the sale between $R/3$ and the defendant was conditional on consent by the brothers of $Ni$ 3 it is $20$ not believable that Pi 3 could have taken so long to obtain such consent and in the meantime receive all the purchase price. Surprisingly the plaintiff did not say that the transaction between the defendant and $RN$ 3 was null and void for lack of consent but that he know of no such transaction. It is extremely difficult to appreciate the requirement for 25 consent of the brothers. of Bi 3 then no proprietary interest of these brothers has been shown to exist. Di 2 testified, and the minesses for the plaintiff did not contradict him, that he was still the registered monrieur of the suit Link. He gave oridance that the condition to his gift of the suit land, as was the case with gifts to other children, was $30.$ that he would have to consent before it was sold. This evidence is in consolancy with that of DN 3, U. 1 and the fact that DH 2 execute a transfer of the suit land in which he was still then interested as a registered proprietor and the practice that had been struted then his

evidence on record had the learned trial. Magistrate subjected the to some degree of evaluation he would doubt have arrived at *&* conclusion tliat the plaintiff had not proved his case against the defendant to the standard of proof in Civil cases which\*—

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•'Must carry a reasonable degree of probability but not so high as required in a Criminal case\* If the evidence is such that tlie tribunal can say "'>.e think it more probable that not the burden is discharged but if the probabilities are equal it is not"

# I-ULIDt- vs MINISTER CF PEUSICKS

## [19472 <sup>2</sup> AH E\*R 372\*

From the transfers evidence the plaintiff has not this court he did not have knowledge of a previous transaction in respect of the suit land between the defendant and HI 3» that the said transaction was subject to consent by brothers of HI 3\* AU in an. the gain transaction was complete and not dependant on the consent of any cf the brothers of BI 3\* The Plaintiff cede a lot of capital on the fact that no formal sale contract had been executed and therefore the sale could not be considered complete\* I agree idth Hr\* Kakuru, learned counsel,for the appellant that between the parties a sain agreement was really a formality and that tills was sufficiently fulfilled by the executed in favour of the defendant by IN 2 and as such the Appellant cannot be considered a tresspasser\*

As grounds 1, 2, 3 and 5 ware argued together, I think the above discussion adequately disposes of than\*

In his faurth ground of appeal the Appellant complained that the learned trial Magistrate Iiaving found cut that ho had paid money to the Respondent and tliat ho occupied the suit land lawfully, the Magistrate should have ordered for refund of th© purchase price and coEpersatim for developments on the land effected by the appellant\* Counsel for the respondent conceded that the learned trial Magistrate sltould have ordered for the refund of the purchase price but sliould not have ordered for " -vt nr, the n-- -llant '.sis a <sup>J</sup>,.".•s.nftt.i'r,

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-6- Had I to find against the appellant\* I would not have ordered the refund as the person . who received it was not a party to the sale of 27/11/?0\* I would however also be put to great difficulty in attaching a figure to the quantum compensation in the event the appellant :zas entitled to\* No evidence was given to the learned trial Magistrate 5 in this regard\* As the above ee situation does not arise I shall dwell on it unnecassarllly\*

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10 In th© result grounds lf 2 and 3 and 5 of the appeal succeed and ground 4 now remino of theoretical interest since the appeal succeeds on the other grounds\* The Judgment and and orders of the Court below are set aside and the appellant shall have the costs of this appeal and of the court below\*

6/12/96

Kalairu — far appellant Kalaxngu \* Tibayieta — for the respondent absent\* Itobatanzl — Court clerk\*

Qourt:

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The judgment road in ctonbers in the absence of Kahungu Tibayieta\*

Sgdl HCtl. JUSTICE KANIA

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### THE REPUBLIC OF UGANDA

#### IN THE HIGH COURT OF UGANDA AT KAMPALA

#### CIVIL APPEAL NO. 35/95

ABAHO TUMUSHABE APPELLANT

**J**

**I**

#### VERSUS

STANLEY BEINABABO RESPONDENT

#### DECREE

This appeal coming for final disposal before His Lordship the Honourable Justice Kania, on the 6th day of December, 1996 in the presence ofMr. Kakuru, Counsel for the appellant and in the absence of counsel for the respondent,

It is hereby decreed and ordered as follows:-

- 1. That the appeal herein is hereby allowed - 2. That the judgment and orders ofthe Magistrate Grade I Rukungiri, His Worship E. O. Kisawuzi, dated 21st March 1995 are hereby set aside. - 3. That the costs ofthe appeal and the Court below are awarded to the appellant.

Dated at Kampala this ... 199 JUDGE --------------------------------------------------- COUNSEL FOR THE APPELLANT **Ac./.**