Bisigwaho v Beshubeho & 2 Others (Civil Appeal 50 of 2020) [2024] UGHC 826 (17 April 2024)

# 5 **THE REPUBLIC OF UGANDA**

# **IN THE HIGH COURT OF UGANDA AT KABALE**

# **CIVIL APPEAL NO. 0050 OF 2020**

# **(ARISING FROM CIVIL SUIT NO. 293 OF 2012, KABALE CHIEF MAGISTRATE'S COURT)**

10 **BISIGWAHO PEACE**:::::::::::::::::::::::::::::::::::::::::::::::::::::::: **APPELLANT**

VERSUS

- 1. **BESHUBEHO PATRICK** - 2. **KYAMPAIRE CHRISTINE** - 3. **TURYATUNGA BOSCO**::::::::::::::::::::::::::::::::::::::::::**RESPONDENTS**

# 15 **BEFORE: HON. JUSTICE SAMUEL EMOKOR**

# **JUDGMENT**

This Appeal arises from the Judgment delivered by the Chief Magistrate at Kabale Chief Magistrates Court on the 23/10/2020 in consolidated Civil Suits No. 0292 of 2012 and 0293 of 2012 wherein he dismissed the Plaintiff's (Appellant) Suit.

# 20 **Background.**

The Appellant jointly sued the first and second Respondents under Civil Suit No. 0293 of 2012 for recovery of land situated at Bwaro Village, Bubare Parish, Bubare Sub County in Kabale District and also jointly sued the first and third Defendants in Civil Suit No. 0292 of 2012 for recovery of land situate at Kanaba Village, 25 Bubare Parish, Bubare Sub County in Kabale District. The two Suits were consolidated becaused the subject matter was similar (plots adjacent). The Plaintiff/Appellants case was that she is the wife of the 1st Defendant/Respondent having been customarily married in 1982 and had 7 issues together. That the Plaintiff and the 1st Defendant embarked on acquiring several properties including

5 the Suit properties that she had been in possession of by cultivating thereon crops for the family until when the 2nd and 3rd defendants trespassed on the same.

The Respondents/Defendants on the otherhand denied the claims of the Appellant/Plaintiff with the 1st Defendant contending that he bought the Suit land before he married the Plaintiff and the Suit Property is his personal property and

10 that he sold the same in 2008 to buy more land to consolidate near his home which the Plaintiff is now cultivating as family land.

The Trial Chief Magistrate on 23/10/2020 delivered his Judgment dismissing the Plaintiff's Suit and stating that the 1st Defendant lawfully sold the Suit property to the second and third Defendants and that the same was not family land nor jointly

15 owned.

The Appellant being dissatisfied with the findings of the learned Chief Magistrate appealed to this Court on the following grounds;

- **1) The learned Chief Magistrate erred in law and fact in holding that the Suit land is not family land contrary to overwhelming evidence in** 20 **Court.** - **2) The learned Chief Magistrate erred in law and fact in holding that the transactions of sale of the Suit land at Kanaba to Turyakunda Bosco and land at Bwaro to Kyampeire Christine were valid and lawful.** - **3) The learned Chief Magistrate erred in law and fact when he ignored to** 25 **hold that the crops growing on the Suit land belonged to the Appellant and deserved award of special damages to the Appellant.**

# 5 **4) The learned Chief Magistrate erred in law and fact when he misconstrued the evidence on record and dismissed the Suit.**

# **Representation.**

At the hearing of this Appeal Messrs Beitwenda & Co. Advocates represented the Appellant while Messrs Onyango & Co. Advocates represented the Respondents.

# 10 **Duty of this Court.**

The duty of this Court is to reappraise the evidence on record and come up with its own conclusion bearing in mind the fact that it neither saw nor observed the demeanour of the witnesses.

# **See Active Mobile Spare Ltd versus Crane Bank & another SCCA No. 0021 of** 15 **2021.**

# **Ground 1, 2 and 4.**

The Appellant's Counsel jointly argued grounds 1, 2 and 4 submitting that it was an agreed fact that the Appellant and the 1st Respondent were customarily married in 1982 and accordingly lived as husband and wife and between them 20 they have 7 issues.

Counsel contends that the Plaintiff/Appellant testified that she together with the 1 st Defendant/Respondent purchased the Suit land from Rutina and an agreement was made to this effect but the same remains in possession of the 1st Respondent. That after the acquisition of the Suit land in 1985 the Appellant and the 1st 25 Respondent started utilizing the same as family property on which they grew

5 peas, beans and sorghum for maintenance of the family and the proceeds also were used to purchase more land.

Counsel also relies on the testimony of PW2 who testified that she was a daughter to the Appellant and the Respondent and that since her birth the family has cultivated beans, sweet potatoes and sorghum on the Suit property. It is also the submission of Counsel that the 1st 10 Respondent confirmed in cross-examination

that the Appellant was cultivating the Suit land and that the 2 nd Respondent admitted as much.

Counsel for the Appellant in reference to the 1st Respondent's testimony points out that the 1st Respondent states that he purchased the Suit land way before he

- 15 married the Appellant that is on the 20/05/1978 and 30/05/1979 and that the property he purchased in 1985 is not the Suit land. According to Counsel the 1st Respondent failed to produce any evidence to prove the above assertion and that what is interesting is that the vendor for the two properties in 1978 and 1979 was the same. Counsel attacks the two sale agreements as being forgeries by the - 20 Respondents and faults the trial Court on relying upon the same to pass Judgment in favour of the Respondents.

To illustrate that the sale agreements were photocopies and forgeries Counsel asserts that DW2 testified that he signed both agreements as Chairperson of Bwaro Cell but did not stamp the agreements and that the Local Council system 25 had not been in place at the time.

Further that "Cells" did not exist in 1978 and it is not possible that DW2 could have been a Chairperson from 1978 to date. Counsel also points out that the sale

- 5 agreement of 1979 was in a similar handwriting including the names of all the witnesses and especially Rwabinumi who was illiterate and yet signed the same. It is therefore the contention of Counsel that the sale agreements were forgeries and the Suit land was not purchased in 1978 and 1979 before the marriage of the Appellant in 1982 as alleged. - 10 Counsel argues that the Suit property was family property as defined under the provisions of **Section 38A(4)** of the **Land (Amendment) Act** and that the same is protected under **Section 39** and is not subject to sale without the prior consent of a spouse that should be in writing. Accordingly Counsel contends that the Appellant testified that she was never informed of the intending sale neither did - 15 she give her consent and that the Respondents all confirmed that the Appellant did not sign their sale agreements but rather that it was her daughter who signed.

Counsel was also critical of the Trial Chief Magistrate for alluding to the fact that the 1st Respondent sold the Suit land to purchase more land for the benefit of the family arguing that the issue should have been the process through which family 20 land is sold and bought.

Counsel therefore prays that grounds 1, 2 and 4 are upheld.

Counsel for the Respondents in his Written Submissions contends that the 1st Respondent testified that he owned the Suit property having bought the pieces of land in 1978 and 1979 respectively and the purchase agreements were admitted 25 in evidence as DX1 and DX2 respectively. Accordingly Counsel contends that the 1 st Respondent had all the rights to sell the Suit land to the 2nd and 3rd Respondents since it was his individual property. To this effect Counsel relied on 5 the decision in **Julius Rwabinumi versus Hope Bahimbisomwe SCCA No. 10/2009** in which the Court held that property may be acquired separately by each spouse before or after marriage.

On the issue raised by the Appellant's Counsel that the sale agreements tendered in were photocopies and forgeries it is the contention of Counsel that the 1st 10 Respondent testified that the sale agreements were stolen and that prior to their admission the Appellant's Counsel intimated to Court that he had no objections to its admission hence leading to the same being admitted as DX1 and DX2.

Counsel also argues that the submissions that the sale agreements were forged is misplaced and misconceived since this was never pleaded by the Appellant in the

15 plaint nor did the Appellant lead evidence in this respect at the trial and that the Appellant is departing from her pleadings and introducing new facts in this Appeal.

According the Respondent's Counsel Provisions of **Section 39** of the **Land Act** are being misapplied to the facts of this case since the properties in issue are not family land and that the 2 nd and 3rd 20 Respondents lawfully purchased the same.

Counsel for the Respondents therefore invites this Court to dismiss the Appeal.

# **Determination.**

I have carefully studied the entire record of the Trial Court. I have also given due consideration to the submissions of both Counsel in this matter. An Appellate 25 Court will interfere with findings of a trial Court if it forms the opinion that the procedure adopted in arriving to those conclusions was erroneous as the trial 5 Court did not back the findings with proper and acceptable reasoning based on thorough evaluation of evidence on record.

The Court of Appeal in several instances has held that findings of fact which were based on no evidence or on misapprehension of the evidence or in respect of which the trial Court demonstrably acted on wrong principles in reaching those

10 findings may be reversed.

# **See Peter versus Sunday Post Ltd (1958) EA 429.**

Three issues were framed for determination before the trial Court with the central issue being whether the Suit properties were family land.

- In resolving this issue, the trial Chief Magistrate relied on the documentary evidence of the purchase agreements in DX1 and DX2 presented by the 1st 15 Respondent as proof of purchase in 1978 and 1979 respectively from Rwakinumi before the solemnization of the marriage between the 1st Respondent and the Appellant in 1982, the Trial Chief Magistrate rejected the claim that the suit properties were bought in 1985. - 20 Both Counsel in this matter cited the dictum of Lady Justice. Dr. Ester Kisakye in **Julius Rwabinumi** versus **Hope Bahimbisomwe (Supra)** wherein she described matrimonial property. This case suggests that in a marriage there is property that is subject to individual ownership by a spouse and property which is jointly owned by the spouse because they both contributed to it. - 25 I hold the view however that matrimonial property and family property (or land as in this case) can be distinguished. 5 The latter would appear to take a more expansive interpretation that is not limited to contributions made to attainment of property as in the former.

This is demonstrated in the definition of family land under **Section 38A (4) of the Land Act (as amended)** that provides thus:

*"Family land" means land-*

- 10 *a) On which is situated the ordinary residence of a family.* - *b) On which is situated the ordinary residence of the family and from which the family derives sustenance;* - *c) Which the family freely agrees shall be treated to qualify under paragraph (a) or (b) or* - 15 *d) Which is treated as family land according to the norms, culture, customs, traditions or religions of the family"*

The facts of this appeal are that the Appellant testified that upon purchase of the Suit property with the 1st Respondent they utilized the same as family property and grew there on peas, beans and sorghum for maintenance of the family.

20 It is therefore plain that the Suit properties did not constitute the ordinary residence of the family despite the fact that the family derived sustenance from the same. This would therefore require this Court to explore whether the family treated this property as family land.

"Treat" is defined by the **Oxford Law Dictionary** as an understanding or 25 agreement between individuals.

5 "Treating" in the context of family land can be described as an agreement or understanding among family members regarding the use, ownership or distribution of land or property within the family. The family must agree to consider that very piece of land as family land either under dual purpose for ordinary residence and sustenance or for sustenance alone.

## 10 **See Christine Hope Kanyima versus Mercantile Credit Bank Ltd and another HCMA No. 0085 of 2021.**

The Defendants in their testimony attempted to cast doubt on the Plaintiffs use of the Suit property but the evidence of the Plaintiff that she grew beans, peas and sorghum on the suit property is well corroborated by that of her daughter 15 PW2 who testified that since her birth it is the Plaintiff and her children who were

utilizing the suit property until the 2nd and 3rd Defendants took over the same. The 1st Respondent under cross-examination admitted as much.

Indeed the trial Magistrate in his Judgment acknowledged that the Plaintiff did utilize the suit property observing as follows:

"*Plaintiff claimed she purchased Suit land with 1st* 20 *Defendant in 1985. This was contested and challenged by 1st Defendant who claimed he Purchased Suit land in 1979. Whereas it is agreed that Plaintiff was at one time cultivating the Suit land, it was not guaranteed that it was family land…"*

The above position ties in with the appellants' Counsel's critic of the trial Chief 25 Magistrate in admitting the sale agreements in DX1 and DX2 attacking the same as being forgeries. This is what the trial Magistrate had to say in his Judgment;

5 *" The Plaintiff failed to produce independent documentary evidence to support her claim of jointly purchasing the Suit land with 1st Defendant yet on the other hand, 1 st Defendant presented a purchase agreement in 1979 (ExhDX2) proving that he purchased the land at Kanaba village from Rwakinumi"*

A perusal of the submissions filed by the Appellant/Plaintiff's Counsel in the lower

- 10 Court reveals that he did raise issues objecting to the sale agreements on the basis that they were forgeries and as in his submission in this appeal Counsel raises the issue of the sale agreement of 1979 (DX2) bearing the same handwriting including the names of witnesses such as that of Rwabinumi who was illiterate yet is said to have signed the same. - 15 The argument of Counsel is corroborated by the testimony of Ndahebire Gastone (DW3) who under cross-examination revealed that Rwabunimi was illiterate and his signature on the sale agreement was put there by someone else. It must be observed that Rwabunimi was the vendor of the property and if his signature was forged which I find to be the case then it renders the entire document suspect and - 20 it is not prudent for any court to rely upon it. The trial Chief Magistrate therefore erred in considering Dx2 as a valid sale agreement.

I have closely looked at DX1 and DX2. Zaverio Kitaburaza (DW2) testified to signing both sale agreements but I take issue with how he signs his names in the two sales agreements. In DX1 he writes out his full names "Kitaburaza Zaverio" 25 while in DX2 he alters the spelling to **"Kyitaburaza**" he also completely drops his first name "Zaverio" A man's name is his honour and I find it therefore strange that DW2 would write his name on 2 different sales agreements spelling the same differently. The hand writing in DX1 and DX2 for the names also differs greatly

- 5 with the letters "a" in DX1 in Kitaburaza being completely closed for all 3 "a" s while the same in DX2 in "Kyitaburaza" is not completely closed for all the 3 "a" s. The letter "Z' in DX1 is also written in the ordinary format while in DX2 it is given some style that joins the bottom of the "Z" to the middle (resembling a noncapital "Z"). - 10 The Court of Appeal in **Hon. Kipoi Tonny Nsubuga versus Ronny Maluku Wataka and 2 others Election Petition Appeal No. 0007 of 2011** held that it is not prohibited for a trial Judge to compare signatures/handwriting in the abence of expert evidence; but Court has to exercise great caution because of the lack of expertise on the matter. - 15 The trial Chief Magistrate for some strange reason did not address Counsel's concerns on the alleged forgeries.

I have no doubts that the signatures of DW2 were forged in DX1 and DX2 with no attempts to even get the forgery right.

I would therefore uphold Counsel's submissions that DX1 and DX2 are forgeries.

- 20 The argument of the Chief Magistrate that the sales agreement being documentary evidence gave the 1st Respondent an edge over the Appellant who did not have documentary evidence is therefore flawed in view of the fact that the documentary evidence in Dx1 and Dx2 are forgeries and the Appellant was in occupation and utilization of the suit property. - It therefore follows that the 1st 25 Respondent under **Section 39** of the **Land Amendment Act** did require the written consent of the Plaintiff prior to sale of the family land.

5 It is not disputed that the Plaintiff did not sign on any of the sale agreements entered into by the 1st Defendant and the 2nd and 3rd Defendants. The evidence that the Plaintiff's daughter who is a nurse signed these sale agreements does not do away with the requirement under **Section 39** of the **Act**.

It is also surprising that none of Local Council leaders witnessed the sale agreements between the 1st Respondent's and the Purchasers, (2nd and 3rd 10 Respondents) The decision to omit the participation of the local leadership appears to have been deliberate on the part of the parties because they wanted to avoid the truth that the transaction involved family land and they did not have the blessings of the 1st Respondent's spouse.

15 The significance of involving the Local Council leadership in land transactions as a safeguard was emphasized in **Jennifer Nsubuga versus Michael Mukundane and another CACA No. 0208 of 2018**.

The 1st, 2nd and 4th ground are therefore upheld.

## **Ground 3.**

20 The Plaintiff did not lead any evidence for consideration as to special damages. It is trite law that special damages must specifically be pleaded and proved by the party that seeks to rely on them.

**See Gapco (U) Ltd versus A. S Transporters Ltd SCCA No. 0007/2007**.

This ground therefore fails.

- 5 In the final result this Appeal partially succeeds. The Judgment and Orders of the trial Chief Magistrate are hereby set aside and substituted with the following orders; - 1) A declaration that the Suit land is family property. - 2) The sale agreement (s) entered between the Defendants are declared null 10 and void. - 3) An order of eviction is issued against the 2nd and 3rd Defendants. - 4) A Permanent injunction is granted against the Defendants. - 5) The costs in this Appeal and the lower Court shall be borne by the 1st Defendant Beshubeho Patrick.

15 Before,

………………………………… **Samuel Emokor Judge** 20 **17/04/2024**