Babihuga v Turigye (Civil Appeal 7 of 2023) [2024] UGHC 324 (26 March 2024)

Full Case Text

## THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT RUKUNGIRI

## CIVIL APPEAL NO. 007 OF 2023

### (ARISING FROM RUKUNGIRI CIVIL SUIT NO.019 OF 2019)

#### **BETWEEN**

### BABIHUGA CALED::::::::::::::::::::::::::::::::::::

#### **VERSUS**

TURIGYE PATIENCE

[Appeal from a Judgment of Chief Magistrate of Rukungiri Magistrate's Court (Her Worship Mbabazi Edith Mary) dated 7th April, 2021.]

## **BEFORE: HON. JUSTICE TOM CHEMUTAI**

### JUDGMENT

This is a first appeal. It arises from the Judgment of the Chief Magistrate of Rukungiri in Civil Suit No.019 of 2019, where the Appellant's suit was dismissed with costs.

The brief background to this appeal is that; the Appellant filed the above Civil Suit against the Respondent and sought for recovery of land situated at Kifunjo, Nyakinengo, Nyakagyeme in Rukungiri District. He sought for decalartion that the Respondent was a trespasser on the suit land, A permanent injunction to be issued against the Respondent, Eviction order, Mense profits, General damages and the costs of the suit.

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The Appellant on 11th March, 2007, purchased the suit land from one Kenneth Tumwesigye (herein referred to as the Seller). The Appellant paid $550,000/$ = (Five Hundred Fifty Thousand Shillings). The suit land was about 2 acres, unregistered. The said Seller sold the suit land because he wanted money to meet his medical expenses. The Seller had been cohabiting with the Respondent and had three issues. However, by time of execution of land transaction in 2007, the Seller and Respondent had parted ways since 2003.

Around 2019, the Respondent started trespassing on suit land and she is alleged to have harvested the Appellant's bananas on the suit land.

The Respondent's activities on the suit land prompted the Appellant to file Civil Suit No.019 of 2019 at the Chief Magistrate's Court of Rukungiri against the Respondent. The Respondent in her Written Statement of defence, stated that the suit land was a gift that she and the Seller inherited from the Seller's father called Beitomwe. That the suit land was a matrimonial property.

The trial Chief Magistrate gave her judgment in favor of the Respondent and held that the land sale transaction between the Appellant and the Seller was null and void for lack of the Respondent's consent. The Respondent was found not to be a trespasser on the suit land. The Respondent was ordered to refund the purchase price of Ug. shs $550,00/$ = to the Appellant.

The Appellant being dissatisfied with her decision, appealed to this Court in Civil Appeal No.007 of 2023.

The Appellant's Memorandum of Appeal has three grounds of appeal which appear as follows:

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- 1. That the learned trial Magistrate erred in law and fact in finding that there was a valid Marriage between the Respondent and the Seller. - 2. That the learned trial Magistrate erred in law and fact in finding that the suit land was family land. - 3. That the learned trial Magistrate erred in law and fact when she failed to properly evaluate the evidence on record thereby wrongly concluding that the Respondent was not a trespasser on the suit land.

### Representation

During the hearing of the appeal, the Appellant and Respondent were not represented by the Counsel. They both orally addressed the Court on the appeal.

## Submissions

The Appellant contended that he was approached by the Seller (Kenneth Tumwesigye) who was his neighbor. That the Seller was sickly and wanted money for treatment. That when he bought the suit land, the Seller was living alone. That he was not aware that the Seller was married to the Respondent. That after about 9 years in possession of the suit land, the Respondent appeared and claimed the land was her family land. The Appellant submitted that Chief Magistrate was wrong, and that she did not evaluate the evidence. That the Respondent does not have lawfully claim the suit land. The Appellant further stated the relatives of the Seller, including the Seller's father(who the Respondnet alleged to be the original owner) were his witnesses at the trial.

The Respondent contended that the suit land belonged to her and the Seller. She alleged that the Seller and her got married in 1992, in a customary marriage but they never registered the marriage. That the suit land belonged to the Seller's father. That in 2003, she ran away from the Seller and separated with him. That the Seller left behind a house in Nyakinengo Village, where he was living. That he was buried at his home and she is not living in the Seller's home.

## Consideration of the court.

The duty of the first appellate Court has been defined in several cases. In the case of Administrator General vs Bwanika James and Others, Supreme Court Civil Appeal No.7 of 2003, Justice Oder, JSC, held:

"It is a well-settled legal principle, embodied in Rule 29 (1) of the Court of Appeal Rules, that on a first appeal, the parties are entitled to obtain from the appeal court its own decision on issues of fact as well as of law. Although in a case of conflicting evidence the appeal court has to make due allowance for the fact that it has neither seen nor heard the witnesses, it must weigh the conflicting evidence and draw its own inferences and conclusions: See Coghland Vs. Cumberland (1898) 1 ch. 704 (Court of Appeal of England): and Pandya V R. (1957) E. A 336)"

Reference can be made also to Fr. Narsensio Begumisa and Others v Eric Tibebaga, Supreme Court Civil Appeal No.17 of 2002 and Goustar Enterprises Ltd Vs Oumo [2006] EA 77.

I have perused the judgment of the trial Chief Magistrate, the record of the appeal, and the parties' oral submissions.

It is not disputed that the Seller and Respondent had separated in 2003 by the time the Appellant purchased the suit land in 2007. The Seller was living alone as the Respondent had moved on and gotten another man.

The Seller sold the suit land because he needed money for his treatment and unfortunately, he passed on later. The Seller left a house which is currently occupied by his family members and not the Respondent.

The Appellant's witnesses who were relevantly of advanced age testified to that the fact the Appellant purchased the suit land from Seller. Mujuni Frank (PW4) the brother of the Seller testified to the fact that the land belonged to the Seller and that the latter sold it to the Appellant.

The Respondent contended that the suit land was a gift to her and the Seller from the alleged father-in-law. However, there was no evidence to prove her marriage with the Seller as the latter's family members disputed the same. Needless to say, by the time the Seller sold the suit land they had parted ways with Respondent. The Seller also left behind a house, which is not in possession of the Respondent. The Respondent surfaced after 12 years to claim the suit land which the Appellant had all along been using and was in actual possession of the same.

I, therefore, find that there was a valid land sale transaction of the suit land between the Seller and the Appellant. Hence there was no need for the

Respondent's consent since there was no proof of marriage and the suit land was not family land alleged by the Respondent.

I, therefore, find merit in the grounds of appeal, I accordingly allow the appeal with the following orders;

- 1. There is no evidence of a valid marriage that existed between the Respondent and the Seller of the land. - 2. The Appellant lawfully purchased the suit land from the Seller who was the lawful owner of the suit land. - 3. There is no evidence of possession of the suit land by the Respondent, hence it was not family land. - 4. The judgment and orders of the trial Chief Magistrate are hereby set aside - 5. The Respondent is to pay the costs of the appeal and those of lower Court to the Appellant

$26m$ day of $Mard$ 2024. Dated at Rukungiri this -------**TOM CHEMUTAI** JUDGE