Karugaba and 2 Others v Kabalisa and Anor (Civil Appeal 17 of 2020) [2024] UGHC 263 (29 April 2024)

# **THE REPUBLIC OF UGANDA, IN THE HIGH COURT OF UGANDA AT FORT PORTAL CIVIL APPEAL NO. 017 OF 2020 (ARISING FROM FPT-00-CV-CS-254 OF 2014) (ARISING FROM FPT-00-CV-AC-061 OF 2014)**

| 1.<br>KARUGABA DEO<br>2.<br>RWAKYAKA ADOLF<br>3.<br>NYAKAISIKI TEDDY | | :::::::::::::::::::::::::::::::::::: APPELLANTS | |----------------------------------------------------------------------|--|-------------------------------------------------| | VERSUS | | | | 1.<br>KABALISA MARGRET | | ::::::::::::::::::::::::::::::: RESPONDENTS | | 2.<br>KAKARA PRISCILLA | | |

## **BEFORE HON. MR. JUSTICE VINCENT EMMY MUGABO**

#### **JUDGMENT**

This is an appeal against the judgment and decree of His Worship Kaggwa John Francis, the then Chief Magistrate of the Chief Magistrate's Court of Fort Portal delivered on the 6th day of November 2020 in favour of the respondents. Being dissatisfied with the whole judgement and decree court, the appellants filed this appeal.

#### **Background**

The parties herein are children of the late Gregory Byarufu. The respondents applied for letters of administration in the Chief Magistrate's Court of Fort Portal at Fort Portal vide Administration Cause No. 61 of 2014, which the appellants caveated. The respondents then filed Civil Suit No. 254 of 2014 against the appellants seeking orders that; - (i) the caveat lodged by the appellants be vacated, (ii) the applicants together with the 1st appellant be granted letters of administration, and (iii) the estate of the late Gregory Byarufu be distributed according to the provisions of succession laws on intestacy.

In his judgement delivered on 6th November 2020, the trial Chief Magistrate vacated the caveated lodged by the appellants, ordered parties to select persons to be granted letters of administration for the estate of the late Gregory Byarufu, and decreed that the estate of Late Gregory Byarufu be divided according to the succession laws of intestacy.

Being dissatisfied with the decision of the trial Chief Magistrate, the appellants appealed to this court on the following ground: *The learned trial Chief Magistrate erred in law and fact when he held that the Late Gregory Byarufu did not distribute his estate before his death.*

### **Representation and Hearing**

The appellants were represented by Ms. Ruth Ongom while the respondents were represented by Mr. Mugabe Robert. Only counsel for the appellants filed written submissions which have been considered by this court.

## **Duty of the First Appellate Court**

This being a first appeal, this court is under a duty to reappraise the evidence, subject it to exhaustive scrutiny and draw its own inferences of fact, to reach its independent conclusion as to whether the decision of the trial court can be sustained. This duty is well explained in the case of *Father Nanensio Begumisa and three others v. Eric Tiberaga SCCA 17of 2000* where court held thus:

*"It is a well-settled principle 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 inference and conclusions***."**

It is not the function of a first appellate court to merely scrutinize the evidence to see if there is some evidence to support the lower court's finding and conclusion; it must make its own findings and draw its own conclusions. Only then can it decide whether the trial court's findings should be supported. In doing so, court should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses *(see Peters v. Sunday Post [1958] E. A 424).*

Against this background, I now re-evaluate the evidence presented at trial against the appellant's grounds of appeal.

#### **Submissions by Counsel for the appellant**

Counsel for the appellants argued that there was evidence that the late Gregory Byarufu died intestate and left a document, which was admitted in evidence as DE1 in which he confirmed he gifted his property as gifts *inter vivos* but the document was disputed by the respondents. Counsel argued that whereas the respondents argue that DE1 is a will, it was a document giving his properties as gifts *inter vivos.*

Counsel also argued that there was no proof of forgery of the said document and the respondents did not bother to adduce evidence of a handwriting expert to prove that the said document was not authored by the late Gregory Byarufu.

Counsel for the appellants further argued that the burden of proof rested upon the respondents to prove that the late Gregory Byarufu did not distribute his property before his death. Counsel referred this court to the case of *Yakobo M. N. Senkungu & 4 others Vs Cresensio Mukasa SCCA No. 017 of 2014.*

### **Consideration by Court**

In Civil Suit No. 017 of 2014, the trial court framed 4 issues determination, to wit; -

- 1. Whether the late Gregory Byarufu distributed his estate *inter vivos.* - 2. Whether the late Gregory Byarufu left any property forming his estate. - 3. Whether the plaintiffs are entitled to a share in the late Gregory Byarufu's estate. - 4. What remedies are available to the parties?

The trial court found that the late Gregory Byarufu did not distribute his properties as gifts *inter vivos*, and instead left his estate undistributed, entitling each of his beneficiaries to a share as per intestacy laws.

In its judgement on page 3, the trial court held that *"in my opinion, the witness of DE1 meant it to be construed as a will, DW1 and DW II in their evidence told court that the deceased left the document which they considered to be a will."*

On page 4 of the judgment, the trial court noted that *"the document does not indicate when the deceased gave the said properties as gifts but shows the property one should take. In my opinion, I don't construe it as a gift inter vivos. The document indicates that he gave all properties to the only children of his youngest wife and herself nothing to his other children."*

On page 5 of its judgement, the court held that *"this honourable court found that the late Gregory Byarufu did not distribute his property inter vivos and* *that he died intestate. This court finds that the estate of the late Byarufu Gregory is intact."*

Upon thorough scrutiny of the lower cord record, I find that the evidence that the appellants relied on to prove that the Late Gregory Byarufu died after distributing his property is DE1 dated 1st of January 2003. The trial court construed DE1 as a purported will since it did not indicate on which date the said properties were distributed. The court also relied on the evidence of DW1 and DW2 who stated that late Gregory Byarufu left a will.

Additionally, the trial court also based its finding on evidence of the 1st plaintiff that the 2 acres at Kyakanjali which are mentioned in DE1 belonged to the father of late Gregory Byarufu and had gifted it to her brothers. This fact was admitted to by the 1st and 4th defendants and confirmed during the locus visit where it was found that the land is occupied by Happy Byarufu, the plaintiffs' brother, and Kakyo Dorothy, a beneficiary to the plaintiffs' brother.

I note that the heading of DE1 is *"WILL AND TESTAMENT."* As noted by the trial court, the DE1 does not tell when the properties in issue were distributed. During cross-examination, DW2, Kisembo Jane, the wife of the Late Gregory Byarufu, told the trial court that her husband left a will. Also, PW2, Byaruhanga Patrick, the chairperson of Rwibale Village where the Late Gregory Byarufu lived before his death told the trial court that the will was read at the last funeral rites of the late Gregory Byarufu, but people doubted it.

I also note the appellants' list of documents at the trial included DE1 which was described as *"the will dated 1/1/2003*." I am also cognizant of the fact that the late Gregory Byarufu died in January 2009 and DE1, which was, allegedly, authored in 2003, was first brought to the attention of family members at the last funeral rites of the Late Gregory Byarufu.

It is a trite law that for a gift *inter vivos* to take irrevocable roots, the donor must intend to give the gift, the donor must deliver the gift and the donee must accept the gift *(See: Sajjabi John vs Zaiwa Charles, Civil Appeal No.50 of 2012).*

Upon thorough scrutiny of the evidence on record, my conclusion is that DE1 is not a gift deed purporting to distribute the properties of the late Greory Francis as gifts *inter vivos*. If, indeed, DE1 was a gift deed, there is no reason it would have been brought to the attention of the family members at the last funeral rites of the late Gregory Byarufu yet he would have intended to pass over the gifts during his existence. Equally, and contrary to the findings of the trial court, DE1 does not qualify as a will since it does not meet the requirements of validity of the will as provided for under the Succession Act Cap. 162. as amended. Therefore, DE1 has no evidential weight in proving the appellants' claim.

Counsel for the appellants argued that the trial court errored when it shifted the burden of proof to the defendants. In the case of *Yakobo M. N. Senkungu & 4 others Vs Cresensio Mukasa SCCA No. 017 of 2014*, the Supreme Court held thus:

> *"In civil trials, the burden of proof is the obligation to present evidence on the subject of the lawsuit; that is, to prove or disprove a disputed fact. Various burdens of proofs are associated with varying matters; in matters of fraud, the burden lies first on the claimant or party who asserts*

## *that the transaction was tainted with fraud to adduce evidence to that effect."*

However, the evidential burden keeps shifting and its position at any time is determined by answering the question as to who would lose if no further evidence were introduced *(See: Kabaco (U) Ltd Vs. Turyahikayo Bonny Civil Suit No. 014 of 2021)*

In the case of *J. K. Patel Vs. Spear Motors Ltd SCCA No. 004 of 1991*, the Supreme Court held that the burden of proof rests before the evidence is given to the party asserting the affirmative. It then shifts and rests after the evidence is given on the party against whom judgment would be given if no further evidence is adduced. Therefore, it can be stated that when a party presents evidence adequate to establish a presumption of truth in their assertion, they are deemed to have shifted the burden of proof. This means their claim is presumed true unless countered by evidence from their opponent *(See: Manson (Uganda) Ltd Vs. Century Bottling Co. Ltd & 2 Others Civil Suit No. 0597 of 2001).*

In the present case, the respondents at the trial did state on a preponderance of probabilities that the late Gregory Byarufu died intestate and left his estate undistributed. The appellants on the other hand stated that the late Gregory Byarufu had gifted all his property as gifts *inter vivos* and therefore had left no estate to distribute. This allegation by the appellants was sufficient on a preponderance of probabilities to shift the burden on the appellants to prove their claim. In proving their claim, the appellants tendered DE1 whose authenticity was rejected by the trial court.

Overall, I have no reason to fault the trial court's findings as they are supported by the evidence on record. Resultantly, it is my finding that this appeal is without merit and is hereby dismissed. Each party shall meet its own costs.

It is so ordered.

Dated at Fort Portal this 29th day of APRIL 2024.

**Vincent Emmy Mugabo Judge 29/APRIL/2024**