Bukusike v Namugabwe (Civil Appeal 139 of 2016) [2023] UGHCLD 291 (8 February 2023)

Full Case Text

#### THE REPUBLIC OF UGANDA

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

#### CIVIL APPEAL NO. 139 OF 2016

(Arising from Civil Suit No. 21 of 2016 of the Chief Magistrates Court of Iganga at Mayuge)

#### **BUKUSIKE DANIEL KASANGO**

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**APPELLANT**

## NAMUGABWE EDITH

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### RESPONDENT

# **BEFORE: HON MR JUSTICE MICHAEL ELUBU** JUDGMENT

This is an Appeal arising from the Judgment and Orders of His Worship Kintu Imuran Isaac in Civil Suit No. 21 of 2016 of the Chief Magistrates Court of Iganga at Mayuge.

### **Background**

The Respondent, Namugabwe Edith, filed Civil Suit No. 21 of 2016 in the Chief Magistrates Court of Iganga sitting at Mayuge. The Appellant, **Bukusike Daniel Kasango** was the Defendant in that suit. The Respondent's claim was for a declaration that a house and plot (the suit property) located at DFI Kavule, Mayuge Town Council in Mayuge district is owned jointly by the Appellant and herself (the Respondent); An Order that the suit property be shared; and Costs of the suit.

The plaintiff called four witnesses. Her case was that in the month of June 2013, she got married to the Appellant and lived with him as his wife. They had one child together. The defendant however chased her out of a house they had constructed jointly. That the Respondent purchased the plot with money she obtained on the 2nd of April 2014 through a loan from DFCU Bank. The loan was for Ugx. 5,600,000/=. That she handed the money for the purchase, in cash, on the 4th of April 2014, to the appellant to pay for the plot from one Esther Ndagire, the seller. The plot was located at DFI Kavule, Mayuge Town Council. That Ugx. $2,100,000/$ = was the purchase price. The Respondent then asked for Ugx. 800,000/= to pay for bricks and another Ugx. 500,000/= for cement. The handover of the money to the appellant was witnessed by Namutibwa Jenipher - PW 2, a sister of the respondent who was nursing her at the time of her sickness.

That at the time of the purchase the Respondent was bedridden in a place called Buyemba. So the entire transaction was handled on her behalf by the Respondent.

That the respondent asked the appellant to give her the land purchase agreement but he has not given it to her. Two days later, the Appellant returned with an agreement bearing his name as purchaser.

At this point, the Respondent started protesting as the money used for the purchase of the plot was provided by her and not the Appellant. That the Appellant refused to change the name on the land sale agreement which prompted the Respondent to report the Appellant to the Local Council I. PW 3 Makokha Moses is a neighbour of the parties in DFI in Mayuge Town. He knew the two were husband and wife. That he is a member of the LC I where he serves as Secretary of Information. As part of the LC I he came to learn that the appellant had purchased the land in his name and yet obtained the money from the respondent.

That the Appellant admitted before the Local Council 1 that it was the Respondent who gave him money to purchase land. At the time they were staying at the house built on the suitland. That the Appellant thereafter disappeared for 2 weeks without coming home to the house. The Appellant started mistreating the respondent. In fact PW 3 often saw the appellant beat the respondent. One night the appellant got a club and chased the Respondent from the house which was their matrimonial home. That from that point it was the assertion of the appellant that the respondent did not own any part of the house.

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The appellant denied the respondents claim and called four witnesses. His case was that the suit land belongs solely to him. That he purchased the land from one Esther Ndagire on the 4th of April 2014 and the agreement of sale was drafted one Bwagu Francis. He disputed being party to any agreement for the Respondent to obtain a loan from the Bank. That the Respondent did not contribute to the purchase of the suit plot or the construction of the house, he developed the suit land with a house having 3 rooms. That as a mother of their child, the Respondent had merely gone to stay with the Appellant as a female friend while they prepared to legalize their marriage. They lived together from December 2015 up to Idd day July 2016. That there were misunderstandings between the 2 parties which arose from the Respondent's failure to perform domestic work such as cooking and grazing animals. That the respondent has also committed Adultery. That the suit land had been purchased for the child the appellant shares with the respondent called Kasango Wilson. The learned Trial Magistrate determined the matter and gave Judgment and orders in favour

of the Respondent.

The Appellant being dissatisfied with this finding filed this appeal with the following grounds of Appeal:

- 1. The Trial Magistrate erred in law and fact when he failed to evaluate the evidence on record thereby occasioning injustice to the Appellant. - 2. The Trial Magistrate erred in law and fact when he failed to hold that the Respondent departed from her pleadings thereby occasioning miscarriage of justice to the Appellant. - 3. The Trial Magistrate erred in law and fact when he failed to hold that the Appellant is the rightful owner of the suit land. - 4. The Trial Magistrate erred in law and fact when he failed to hold that the Respondent was just a witness to the sale agreement when the Appellant was buying.

# **Submissions**

The Parties were granted leave to file written submissions and the same are on court record. In determining this matter, the court is reminded that being a first appeal, it must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect (See Uganda Breweries Limited Vs. Uganda Railways Corp S. C. C. A. No. 6 of $2001$ ).

In civil matters, the degree of proof (standard) is on a balance of probabilities. (See Miller v Minister of Pensions [1947] 2 All ER 372). The Respondent's claim against the Appellant was for a declaration that the suit is owned jointly by the parties

# Ground 1

The Trial Magistrate erred in law and fact when he failed to evaluate the evidence on record thereby occasioning injustice to the Appellant.

On this first ground it was contention for the Appellant that the Trial Court relied on the hearsay testimony (evidence) of PW2, PW3 and PW4.

Section 59 of the Evidence Act outlines what amounts to hearsay. In sum, this provision stipulates that oral evidence must refer to a fact seen, heard or otherwise perceived by the witness testifying. Evidence falling outside the parameters of this section is hearsay.

The 9th Edition of **Black's Law Dictionary** describes hearsay evidence as traditionally, the testimony that is given by a witness who relates not what he or she knows personally, but what others have said.

In Kinyatti v Republic [1976–1985] 1 EA 234, hearsay or indirect evidence was described as an assertion of a person other than the witness testifying, offered as evidence of the truth of that asserted rather than as evidence of the fact that the assertion was made. That it is not original evidence.

From the record, it is the evidence of Namutibwa Jenipher $-$ PW 2, that the Respondent handed the Appellant Ugx. 2,500,000/= in her presence. The money was for the purchase of the suit land. At the time, the Respondent was ill and bedridden and it was PW2 who was attending to her. This evidence withstood cross examination and was not discredited in any way. Looking at the legal definitions for hearsay, the testimony of PW 2 regarding the handover of the money to the appellant cannot be described as hearsay. It is a narration of events witnessed by PW 2 personally.

In the case PW 3, Makoha Moses, he was present as one of the witnesses when the appellant paid the vendor for the land. PW 3 added that it was he who had reported the Appellant to the LC I for mistreating the Respondent. He testified that during the LC I hearing of that matter, the Appellant admitted and said that though he bought the land in his names, it should have been in the names of the Respondent who had given the him the money to purchase the land. Again this cannot be described as hearsay. It was a narration of what the witness heard the appellant say regarding the circumstances surrounding the purchase. It is those circumstances of the purchase which are in issue in this case.

The other basis for criticizing the decision of the lower court is that the Respondent signed the land purchase agreement as a witness and is therefore bound by Section 91 of the **Evidence Act Cap. 6.** On this point, first of all the respondent herself disputes being at the execution of the agreement. Secondly, as stated above PW3 was present when the Appellant was purchasing the suit land. He signed the agreement as a witness. It is his evidence that the respondent was not physically present on the day of the purchase when the agreement was written. His testimony was that it was the appellant who advised that she be included. The appellant however testified that the respondent signed as a witness. The record of evidence also shows that the respondent protested the authenticity of the agreement because she disputes the signature assigned to her on that document.

In summary Section 91 of the **Evidence Act** as it applies to this case stipulates that:

When the terms of a contract ... have been reduced to the form of a document ..., no evidence, ..., shall be given in proof of the terms of that contract, ..., or of such matter except the document itself...

It should be noted that the section applies to the terms binding the parties to an agreement. In this case however, the Respondent is not a party to the land sale agreement. As it stands it was between the appellant and Esther Ndagire. Secondly, but more fundamentally, the sale agreement was only admitted for identification but not formally tendered as evidence. Evidence tendered for identification is not properly proved as evidence and cannot be relied on by the court. This court cannot therefore evaluate evidence regarding the land sale agreement.

The above notwithstanding, I will examine the claim that the house solely belongs to the Appellant and is not jointly owned with the Respondent.

It is a principle of law that the court must always evaluate evidence as a whole. In this case, there are two divergent positions, one by the appellant and the other by respondent. Looking at other evidence however, there is the testimony of PW 3. His assertion was that the Respondent was not present on the day the land was purchased. This assertion was not discredited. I have also considered the evidence of PW 2 who stated that the money for the purchase of the plot was given to the appellant, by the respondent, in her presence. This court has also considered the Bank statement produced by the respondent which indicates that she obtained a loan on the 3rd of April 2014 and the land was then paid for on the 4th of April 2014. That, circumstantially, created a direct link between obtaining the loan and the purchase the land. Lastly DW 3, Mutesi Hadijja, who is the 3rd wife of the appellant and was the person occupying the disputed house, admitted in cross examination, that the house on the land was not hers but belonged to the respondent.

Having considered the totality of the foregoing evidence it would appear that, on a balance of probabilities, the assertion by appellant that he singularly bought the land and built the

house is not supported by the evidence on record. He utilised funding obtaining by the Respondent to purchase the house.

The appellant thereafter took possession of the premises forcefully (and therefore fraudulently) when he ejected the respondent on Idd day 2016.

Fraud is defined in the **Oxford Dictionary of Law** as a false representation by means of a statement or conduct made knowingly or recklessly in order to gain a material advantage. An observation made in Sarkar on Evidence Vol III Lexis Nexis at page 2237 is that fraud vitiates all contracts however solemn. It goes to the root of and invalidates every transaction.

My finding is that the alleged purchase by the appellant was fraudulent. His forceful dispossession of the respondent allowed him to wrongfully takeover the premises and appropriate them to his sole use.

For that reason, the first ground of appeal that the Trial Magistrate erred in law and fact when he failed to evaluate the evidence on record thereby occasioning injustice to the appellant fails and is dismissed.

## Ground 2

# The Trial Magistrate erred in law and fact when he failed to hold that the Respondent departed from her pleadings thereby occasioning a miscarriage of justice to the Appellant.

The crux of this ground of Appeal is that the Respondent departed from her pleadings which offends The Civil Procedure Law and Rules.

It was the appellant's contention that the Respondent's claim against the Appellant was originally for a declaration that the Respondent jointly owns the suit property with the Appellant. That she contributed to the purchase of the plot and to the construction of the house using a loan of Ugx. 5,600,000/= obtained from DFCU Bank.

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In her testimony however, the Respondent stated that she purchased the suit land with money obtained from a DFCU Bank loan she got on 2nd of April 2014.

It is argued that this testimony was a departure from her own pleadings by the Respondent. That the consequence of the departure from pleadings is that it is a good ground for rejecting the party's evidence and such a litigant may be taken to be a liar.

The Courts have generally held that parties are bound by their pleadings. In Interfreight Forwarders (U) Limited v East African Development Bank Civil Appeal No. 33 of 1992, is was stated that the system of pleadings is necessary in litigation. It operates to define and deliver with clarity and precision the real matters in controversy between the parties upon which they can prepare and present their respective cases and upon which the court will be called upon to adjudicate between them. It thus serves the double purposes of informing each party what is the case of the opposite party which will govern the interlocutory proceedings before the trial and which the court will have to determine at the trial. Thus, issues are formed on the case of the parties so disclosed in the pleadings and evidence is directed at the trial to the proof of the case so set and covered by the issues framed therein. A party is expected and is bound to prove the case as alleged by him and as covered in the issues framed. He will not be allowed to succeed on a case not so set up by him and be allowed at the trial to change his case or set up a case inconsistent with what he alleged in his pleadings except by way of amendment of the pleadings.

The above holding succinctly states the position. The pleadings form the basis of the case. The trial court also determines the matter depending on the issues in controversy between the parties.

As he saw it, the trial magistrate framed the following issues:

- a. Whether the parties jointly contributed towards the acquisition of the suit property? - b. Whether the plaintiff has any interest in the suit property - c. What remedies were available?

As can be seen from the above, the matter before the court was principally whether the respondent made any contribution towards the purchase of the suit property. This was the real matter in controversy between the parties and what is revealed by the pleadings.

The issues framed and evidence adduced go to answer this precise question. It cannot be said that the respondent was in any way prejudiced in the manner the matter proceeded. He robustly met the case set up by the respondent and was able to put forward his version of circumstances.

From the above, I find that the Respondent did not depart from her case because what the court had to determine is if the Respondent had an interest in the suit property and it found that the Respondent has, through the loan obtained. It was just as guided in Interfreight Forwarders (U) Limited (supra) where the court held that issues are formed on the case of the parties so disclosed in the pleadings and evidence is directed at the trial to the proof of the case so set and covered by the issues framed therein.

For the above reason the respondent did not depart from the pleadings. I find that even if she had, the court would still give he the latitude because she was a self-represented litigant who did not know the strict legal regime regulating the framing of pleadings.

For this reason, it is the finding of this court that the respondent did not depart from her pleadings

## Grounds 3 & $4$

The Trial Magistrate erred in law and fact when he failed to hold that the Appellant is the rightful owner of the suit land.

The Trial Magistrate erred in law and fact when he failed to hold that the Respondent was just a witness to the sale agreement when the Appellant was buying.

My determination of the previous grounds of appeal disposes of these two. Accordingly, the Grounds of appeal in 3 and 4 also fail.

In the result, this Appeal stands dismissed with costs to the Respondent. The judgement and orders of the lower court are confirmed.

**Michael Elubu Judge** 8.2.2023