Kaboggoza v Bangi (Civil Appeal 19 of 2023) [2025] UGHC 206 (20 April 2025)

### **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MASAKA CIVIL APPEAL NO. 19 OF 2023 ARISING FROM THE CHIEF MAGISTRATE'S COURT OF MASAKA AT BUTENGA CIVIL SUIT NO. 043 OF 2022 KABOGGOZA EMMANUEL::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPELANT VERSUS BANGI GLORIA:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT**

### **Before: HON JUSTICE LAWRENCE TWEYANZE**

### **JUDGMENT**

#### **Introduction.**

1. This is an appeal in which the Appellant being dissatisfied with the Judgment and orders of H/W Natembo Aisha, Magistrate Grade One at the Chief Magistrates Court of Masaka at Butenga-Bukomansimbi under Civil Suit No.043 of 2022, brought this appeal seeking orders that the decision of the lower Court be aside and costs of this appeal provided for.

#### **Brief Background to the Appeal.**

- 2. The background as per the lower Court is that the Respondent/ as Plaintiff instituted Civil Suit No. 043/2022 against the Appellant/Defendant seeking for a declaration that the suit property is jointly owned, orders that suit properties be sold and proceeds be shared equally, an order for general damages and costs of the suit. - 3. The Respondent/Plaintiff alleged that in the year 2007, she got into a relationship with the Defendant and started cohabiting for quite a number of years and begot three issues (two females and one male all minors). That during their tenure of cohabiting they got properties to wit: land where they constructed cohabitation home, a Motor Vehicle Registration Number UAN 584C and other properties were acquired which the Defendant already sold without consent of the Respondent/Plaintiff. That the Plaintiff is medical personnel who has for so long been working in hospitals for salary and she was using the same money and contributed for the purchase of the above properties. That the relationship between the parties worsened and started living apart. That the Plaintiff from the time when the relationship went sour has been demanding for disposal of the above properties and proceeds be shared but all in vain. That the Plaintiff due to the Defendant's conduct of deceitfulness caused financial, physical and psychological torture to the Plaintiff. That the cause of action arose in Bukomansimbi within the jurisdiction of this Honourable Court.

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4. The Plaintiff prayed for judgment against the Defendant for a declaration that the suit property is jointly owned, orders that the suit properties be sold and proceeds be shared equally, order for general damages and costs of the suit.

## **The Defence and Counter-Claim.**

5. The Appellant as Defendant filed a defence and Counter-Claim and alleged that the Plot and house at Kyanakabi and Motor Vehicle Reg. No. UAN 584C are not the only cohabitation properties. That more and other property of the cohabitation are; Plot and house situate at Ssembabule, and the agreement in respect of the same was written in the Plaintiff's names; A medical clinic situate at Ssembabule; a medical Scan machine and that the rest of the paragraphs are denied save for the jurisdiction of Court.

## **The Counter - Claim:**

- 6. The Appellant as Defendant / Counter-Claimant averred that the Counter Defendant intentionally left out some property of the cohabitation while listing the property and these are: - Kibanja and house at Ssembabule though it was registered in the Counter -Defendant's names; a Plot measuring 100 x 100 feet also in the names of the Counter - Defendant; a clinic also at Ssembabule; a medical Scan Clinic. That the Clinic was made from the proceeds after the Counter-Claimant selling off his Plot and coffee. That the Motor Vehicle was also bought from the interest made from the Clinic. That the parties further constructed a house on the Kibanja on (1) supra. - 7. That the Counter Claimant contributed as: The Counter-Claimant physically and financially contributed in the construction of the house at Ssembabule i.e. Removing of the remains of cut trees from the site. Transporting of bricks to the site. The Counter-Claimant paid for the same; Buying of 150 trees from the late Ssessanga. They were transported by Kaweesi; This was also paid by the Counter-Claimant; Buying of 60 iron sheets (Roofing) Red. They were transported by Mande Lugabi; Buying of windows and Doors. The transport for the same was also paid by the Counter-Claimant; The builders were brought and paid by the Counter-Claimant; The builders were brought and paid by the Counter-Claimant. Pouring of the ceiling was also made by the Counter-Claimant; Pouring of the concrete was paid by the Counter -Claimant. That the building was also bought by the Counter-Claimant. That building of the wall fence was also paid for by the Counter-Claimant. The Counter-Claimant prayed for judgment against the Counter-Defendant for orders that: That the properties in the Counter -Claim be declared as the property of the cohabitation. That the property be also shared amongst the parties, and costs of the Counter-Claim.

### **The Reply to the Defence and Counter-Claim.**

- 8. The Plaintiff admitted to owning a Plot and a house in Ssembabule and averred that the Defendant did not contribute any money and claimed in his Written Statement of Defence. That she used her money to start up a Clinic in Ssembabule from her salary earnings, the Defendant shall be put to strict proof on matters of contribution. The Plaintiff denied the claims that the Defendant procured a Scan for the Plaintiff's facility. - 9. The Counter Defendant averred that the Kibanja at Ssembabule was purchased by the Counter - Defendant without any contribution from the Counter -Claimant. That the Clinic is solely owned by the Counter - Defendant and the Counter -Claimant shall be put to strict proof. That the Ultra Sound Scan was solely her money that paid for the same, and the Defendant did not contribute even a penny, and the Plaintiff used that machine for only one year and it broke down. That in the year 2012 January, the Plaintiff bought another machine which she is using at the Clinic, and she prayed that the Counter-Claim be dismissed with costs. - 10. The Trial Magistrate Court found in favour of the Respondent and made Judgment to that effect. The Appellant being dissatisfied with the said Judgment delivered on the 3rd May 2023 filed this Appeal.

## **The Grounds of Appeal.**

- *i. The Learned Trial Magistrate erred in law and fact when she handled the matter without jurisdiction.* - *ii. The Learned Trial Magistrate erred in law and fact when she failed properly evaluate the evidence on record as a whole thereby occasioning a miscarriage of justice to the Appellant.* - *iii. The Learned Trial Magistrate erred in law and fact when she held that the property at Ssembabule solely belongs to the Respondent.* - *iv. The Learned Trial Magistrate erred in law and fact when she ordered for the sale of the suit properties thereby occasioning a miscarriage of justice to the Appellant and reached a wrong conclusion*.

## **Representation and hearing.**

11. The Appellant was represented by M/s Mbabaali Jude & Co. Advocates while the Respondent was represented by Counsel Tusingwire. At the hearing, the parties were present and Counsel for the parties were directed to file written submissions but none filed their respective submissions. This decision has been made without submissions from the parties.

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## **Duty of the first appellate Court.**

- 12. The duty of a first Appellate Court is to scrutinize and re-evaluate the evidence on record and come to its own conclusion and to a fair decision upon the evidence that was adduced in a lower Court. **See:** *Section 80 of the Civil Procedure Act Cap 71*. This position has also been re-stated in a number of decided cases like **J.***F. Zaabwe vs Orient Bank Ltd CACA No. 4 of 2006*. In case of conflicting evidence, the appellate Court has to make due allowance for the fact that it has neither seen nor heard the witness, it must weigh the conflicting evidence and draw its own inference and conclusions (*See Lovinsa Nankya Vs Nsibambi (1980) HCB 81).* - 13. Before I delve into the merits of this Appeal, I note that the facts arose from a dispute over property by parties who are not legally married (cohabitation). In Uganda, property disputes between cohabiting partners, who are not legally married, are resolved using general property, trust law, common law and equity principles, as cohabitation lacks statutory recognition akin to marriage. In such cases, Court requires evidence of direct or indirect contributions to property acquisition, with longer cohabitation and children potentially implying a "constructive marriage." In *Baryamureeba James vs. Kabakonjo Abwooli Civil Suit No. 20 of 2013*, a 35-year cohabitee was granted spousal-like rights under the Land Act, requiring her consent for disposal of the family land under Section 38A(1) (2) (3) of the Land (Amendment Act), 2004. In the case of *Bugembe Hussein vs. Namutebi Sarah Civil Appeal No. 0035 of 2020*, Court found that the parties who were not legally married and were only cohabiting, owned the suit property in equal shares, depending on each parties contribution to its acquisition. (See also *Natukunda Florence vs. Friday James Civil Appeal No. 005 of 2023*.). Court is guided by equitable principles and evidence like receipts or agreements, and these are instructive in resolving this appeal.

### **Determination of the Appeal.**

14. **Ground 2** appears too general which is framed as follows:

*The Learned Trial Magistrate erred in law and fact when he failed to properly evaluate the evidence on record as a whole thereby occasioning a miscarriage of justice to the Appellant.*

15. Order 43 rule 1(2) of the Civil Procedure Rules provides that the "Memorandum of Appeal shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative; and the grounds shall be numbered consecutively". It is thus an established position of the law that a ground of appeal must specify in what way and what specific aspect of the decision being appealed against was wrongly decided by the trial Court. In *Ronchobhai Shivabhai Patel Ltd vs Henry Wambuga & Another, SCCA No. 06 of 2017*, the ground of appeal

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was worded as "the learned Justices of the Court of Appeal erred in law and in fact when they failed to evaluate evidence on record and they arrived at a wrong conclusion". *Mugamba JSC* held that "this ground is too general and does not specify in what way and in which specific areas the learned Justices of Appeal failed to evaluate the evidence. It does not set out the particular wrong decision arrived at by the learned Justices of Appeal." The Court thus struck out the ground as being offensive to the rule 82(1) of the Judicature (Supreme Court) Rules which is in *pari materia* with rule 1(2) of Order 43 of the CPR.

16. In this case, ground 2 of appeal almost bears the same defect. It does not disclose in which way the trial Court did not evaluate the evidence on record and which specific evidence. Ground 2 is too general and does not point to a particular wrong in the decision of the trial Court and does not raise any legitimate complaint in light of the decision of the Trial Magistrate. In the circumstances, ground 2 of the appeal is struck out for being offensive to the applicable law of appeals, but only grounds 1, 3, and 4 stand and shall be resolved.

## **Ground 1:** *The Learned Trial Magistrate erred in law and fact when she handled the matter without jurisdiction.*

- 17. Oder J. S. C. (as then he was) defined jurisdiction as: "the authority which a Court has to decide matters that are litigated before it." The learned Justice explained that "the limits of that authority are imposed by statute." *See Paul K. Ssemogerere versus Attorney General Constitutional Appeal No. 1 of 2002.* Jurisdiction is the first test in the legal authority of a Court and its absence disqualifies the Court from exercising any of its powers. Jurisdiction means and includes any authority conferred by the law upon the Court to decide or adjudicate any dispute between the parties or pass judgment or order. A Court cannot entertain a cause which it has no jurisdiction to adjudicate upon. Jurisdiction must exist at the time of filing suit or latest at the commencement of hearing. *See Koboko District Local Government-vs- Okujjo Swali, Miscellaneous Civil Application No. 0001 Of 2016.* - 18. The position of the law is that issues of jurisdiction are substantive and go to the core of a case. If a Court lacks jurisdiction, its judgment and orders, however precisely certain and technically correct, are mere nullities and not simply voidable. Such judgment and orders are of no legal consequence and may not only be set aside any time by the Court in which they were rendered but may be declared void in every Court in which they are presented. (*See: Gabula vs Wakidaka, HCCA No. 29 of 2006 and Assanand & Sons (U) Ltd v. East African Records Ltd (1959) E. A 360.).*

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19. In this case, the Appellant does not point to what exact type of jurisdiction he seeks to fault the trial Magistrate, and thus he does not state whether it is pecuniary or geographical jurisdiction but nonetheless Court will address the record, pleadings and at the lower Court and the facts. In the Plaint, under paragraph 9, it is stated that the cause of action arose at Bukomansimbi within the jurisdiction of the Court. Under paragraph 6 of the Written Statement of Defence, the Defendant/Appellant stated that he submitted to the jurisdiction of the Court, and also filed a Counter-claim, without objecting to the jurisdiction of Court. Looking at the pleadings and the facts, the property in dispute was at Kyanakibi in Butenga/Bukomansimbi and another at Ssembabule.

### 20. *Section 213 of the Magistrates Court Act* provides that;

#### *"213 Suits for immovable property situate within jurisdiction of different Courts*

*Where a suit is to obtain relief respecting, or compensation for wrong to, immovable property situate within the jurisdiction of different Courts, the suit may be instituted in any Court within the local limits of whose jurisdiction any portion of the property is situate if in respect of the value of the subject matter of the suit, the entire claim is cognisable by that Court."*

21. In this case, since the property at Kyanakibi as per the Plaint was within the local limits of the Trial Court at Butenga/Bukomansimbi, and the other property in the Counter-Claim is at Ssembabule. The Trial Court had territorial jurisdiction pursuant to Section 213 of the Magistrates Court Act to handle the matter over the disputed property since ones in the Plaint fell under Butenga/Bukomansimbi and ones in the Counter-Claim fell under Ssembabule. On the pecuniary jurisdiction, the Appellant does not state exactly what the value of the property is and also he did not attach any valuation report to prove that the value was outside the pecuniary jurisdiction of the trial Court. Court cannot act on mere plain statements by the Appellant. This ground of appeal fails.

# **Ground 3:** *The Learned Trial Magistrate erred in law and fact when she held that the property at Ssembabule solely belongs to the Respondent.*

22. The Appellant faults the Trial Magistrate for finding that the property at Ssembabule solely belongs to the Respondent. From the record of the lower Court, and as rightly found by the Trial Magistrate, the Appellant as Defendant did not dispute the fact that the said property at Ssembabule was solely purchased by the Respondent/Plaintiff as per the purchase agreement which is on Court record. Any other explanation by the Appellant is barred by the parole evidence rule under *Section 92 of the Evidence Act Cap 8 (Revised Edition)* to the effect that; when the terms of any contract, grant or other disposition have been reduced into a document, oral evidence cannot be admitted to add to, vary or contradict the document.

- 23. The Trial Magistrate found that Appellant's role was only for helping in construction of the house on the said land, and that could not make him a joint owner. At the trial Court, the Appellant as Defendant did not provide evidence that the Respondent requested him to assist her in construction of her property, and as rightly found by the Trial Magistrate, the actions of the Appellant was in form of a donation to his Girlfriend without expecting any payments back, which cannot give the Appellant a right of joint ownership over property that was solely purchased by the Respondent. - 24. The maxim that *equity will not assist a volunteer* is applicable in the facts of this case and reflects the principle that a party seeking equitable assistance, such as an equitable remedy of an equal interest in the property as sought by the Appellant/Defendant/Counter-Claimant in the lower Court, is required to demonstrate that he was a joint owner of the property by way of purchase but not by just assisting in construction after the Respondent had purchased the property. *See George William Kalule versus Norah Nassozi CACA No. 29 of 2014.* Thus, in order to seek a claim of joint ownership, the Appellant was required to be a non-volunteer. In this case, the Appellant was in the capacity of a volunteer to his Girlfriend the Respondent with no actual terms that he would be a joint owner in the property after assisting in construction. - 25. I find that the Appellant failed in the lower Court to discharge the evidential burden to prove any credible agreement between the parties for him to be a joint owner after assisting with construction. There was no clear evidence led by the Appellant as Counter-Claimant to prove his case. Resultantly, the Appellant failed to prove on the balance of probabilities in the lower Court that he is jointly entitled to the property located at Ssembabule, which was solely purchased by the Respondent as per the agreements and evidence on record. - 26. In the circumstances, I do not find any error of either law or fact on the part of the Trial Magistrate in this regard. It is my finding that the Learned Trial Magistrate rightly found that the property at Ssembabule solely belonged to the Respondent. This ground (3) of appeal fails.

**Ground 4:** *The Learned Trial Magistrate erred in law and fact when she ordered for the sale of the suit properties thereby occasioning a miscarriage of justice to the Appellant***.**

27. The Appellant faults the Trial Magistrate for ordering for the sale of the suit properties. At page 6 of her judgment, the Trial Magistrate made a declaration that the suit property at Kyanakibi - Bukomansimbi Town Council and Motor-vehicle Reg No. UAN 584C are jointly owned by the Plaintiff (now Respondent) and the Defendant (now Appellant). Thereafter, the Trial Magistrate ordered that those properties be sold and the proceeds equally distributed between the parties.

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- 28. From the prayers of the Respondent/Plaintiff under paragraph 3 of the Plaint and the final prayers the Respondent prayed that the suit properties be sold and proceeds be shared equally. Similarly, under the Counter-Claim of the final prayers, the Appellant as Counter-Claimant prayed that the property also be shared amongst the parties. The record clearly indicates that the Appellant did not dispute the fact that suit property at Kyanakibi - Bukomansimbi Town Council and Motor-Vehicle Reg No. UAN 584C are jointly owned by the parties and this is why the Trial Magistrate came to the same finding. In my view, the viable option was to order for the sale of the jointly owned suit property at Kyanakibi - Bukomansimbi Town Council and Motor-Vehicle Reg. No. UAN 584C and equally share the proceeds as the parties could not continue to be joint owners. - 29. I do not find any error of either law or fact on the part of the Trial Magistrate when she ordered for the sale of the jointly owned suit property at Kyanakibi - Bukomansimbi Town Council and Motor-vehicle Reg No. UAN 584C and equally share the proceeds between the parties. The Learned Trial Magistrate reached a correct decision on this aspect and rightly based her decision on the evidence led on record. This ground (4) of appeal also fails. - 30. I do not find merit in this appeal and thus it fails. The appeal is accordingly dismissed with costs awarded to the Respondent for this Appeal and the lower Court. Therefore, the Judgment and decree of the lower Court is upheld. I hereby make the following orders: - a. The Appeal is dismissed. - b. The Judgment and the orders of the lower Court are upheld. - c. The Appellant to pay costs of this Appeal and the lower Court to the Respondent.

It so ordered.

Judgment signed and delivered electronically at Masaka this 20th day of April, 2025