Kasoma v Mukiibi (Civil Appeal 24 of 2023) [2025] UGHC 80 (26 February 2025)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT LUWERO **CIVIL APPEAL N0. 0024 OF 2023**

(Arising out of Chief Magistrate's Court of Luweero in Civil Suit No. 106 of 2018)

KASOMA FRED::::::::::::::::::::::::::::::::::::

## **VERSUS**

### MUKIIBI RAFAIRI MUGEGERE:::::::::::::::::::::::RESPONDENT

**BEFORE: Hon. Lady Justice Rosette Comfort Kania**

### JUDGEMENT

### **Introduction**

The Appellant was the plaintiff in Luwero Chief Magistrates Court Civil Suit No.106 of 2018 that was instituted for a declaration that he is a bonafide purchaser for value without notice of fraud, and acquired a good title for part of land comprised in Mailo Register Bulemezi Block 715 at Kabanyi, an order of specific performance against the defendant, a permanent injunction restraining the defendant from trespassing on the suit land, general damages and costs of the suit.

At trial, the appellant/plaintiff together with two other witnesses testified for the plaintiff against the defendant. The defendant on the other hand denied all claims and said he only sold 1 acre and 50 decimals to the appellant.

At trial, both parties led evidence before the trial court to prove their respective cases and on 26<sup>th</sup> September, 2022, the suit was decided in favour of the appellant. The trial magistrate declared that there is a purported sale of land described on the sale agreement dated 16/5/2012 but the same is void because the respondent/defendant had no legal capacity to deal with property as his own without going through the inheritance process first. The defendant was ordered to refund to the appellant three million seven hundred and fifty thousand, general damages to a tune of fourteen million and costs of the suit.

The appellant being dissatisfied with the decision of the Learned Trial Magistrate, appealed to this honorable court on the following grounds;

- 1. That the leamed trial Magistrate erred in law and fact in holding that the defendant could not deal with the suit propcrty as his property but only as an administrator ofhis father's estate, a lacl that was not in dispute and no evidence was led about it. - 2. That the learned trial Magistrate erred in law and fact in holding that the sale ofthe suil land was void yet no evidence was led to dispute the del'endant's ownership of the suit land. - 3. That the leamed trial Magistrate erred in law and t'act when he declined to order for specific perlbrmance ofthe contract ofsell ofthe suit land upon holding that there was a valid agreement belween the parties. - 4. Thal the leamed trial Magistrate erred in law and tact in holding that the suit land as registered in the late Eliazari Mugegere yct there was no evidcnce, documenlary or otherwise let to prove that fact. - 5. The trial Magistrate erred in law and lact in holding that an administrator and a beneficiary cannot deal with estate property evcn when there is no one disputing his ownership. - 6. That the leamed trial magistrate erred in law and in fact in relying on extraneous iacts for which no issue was raised and or resolved in making his decision. - 7. That the leamed trial magistrate erred in law and in fact when he ordered the defendant to refund the purchase price instead ol'ordering him to lransfer the suit land into thc plaintiff-s names.

ln his written submissions, the Appellant argued Grounds 1,2,4 and 6 jointly, then 3 and 7 together, the Respondent lbllowed the same order.

## Representation

'the Appellant was represented by United Advocates while the Respondent was represented by M/S K. Christopher Advocates & Solicitors. Both parties were directed to file Written Submissions, and both complied accordingly.

## Appellant's Submissions

# Ground 1,2,,4 and 6

'l-hat looking at the parties' pleadings in the lower court to wil, the plait page 5-19. defence page 20- 28,reply to the det'ence page 29-3 I .appellanl's witness statement page 32-39 and thc respondent's witness statement page 40-43, there was no dispute on the respondcnt's owncrship ofor authority to deal with the suit land and the questions lbr determination ofcourl were whether therc was a sale of land as described in the sale agreement of 1615l20l2 and what remedies are available to the parlies.

't'hat the rcal qucstion throughoul the trial was actually on acreage, where the respondent/def'endant was alleging that he only sotd 1.5 acres to the plaintiflTappellant as opposed to thc appellant's assertion that he bought approximately 6 acres from the respondent, which land was described in the agreement of 161512012.

'l'hat at no point did the parties ever talk about Eliazari Mugercrcre, bcing the owncr ofthe suit land or that that the respondent lacked capacity to deal with it. That the only mention about Eliazari Mugerere was in the witness statement of DW3, Ngobya Daniel. the purported surveyor, who ncver produced any evidence to show thal he was indeed a surveyor and who confirmed that the purported suryey was conducted in thc absence ofthe appellant.

# l)utv of thc aDDcllant court

It is the duty oflhe lirst appcllate court to review and re- evaluate the evidence before the trial court and reach its own conclusions, considering that the appellate court did not havc the opportunity to hcar and sce the witnesses testify. In Peters v Sunday Post Iimited ll958l I EA, on page 429' the court of Appcal lbr Ilast Aliica held that:

"An appellate court has indeed jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon the evidence should stand. But this is ajurisdiction which should bc exercised with caulion; it is not enough that the appcllant court might itselfhave come to a different conclusion."

'l hc Suprcnre Courl ol'Uganda reallirrned this principlc in Kifamuntc l{cnry-vs- Uganda SCCA no.l0 of I 997.

Thcrefore. a first appellate court is mandated to re-evaluate the evidence before the trial court as well as the judgement and arrive at i1s own independent judgemenl on whether or not to allow lhe appeal. A lirst appellate court is enrpowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity ofseeing and hearing the witnesses flrsl hand. as per thc case of Selle & anothcr vs Associated Motor Boat Co. Ltd & others [968] E. A.

ln the case of Banco Arabe Espanol vs Bank of Uganda SCCA no. 8 of 1998, the Supreme Court held that as a first appellate court, thc court has power and ultimate duly to re-evaluate the evidcnce befbre lhe trial court, subject it to fresh scrutiny and Come to its own conclusions, while doing so, tht: court should be mindlul that unlike the trial court, it docsn't havc the privilege of physically obscrving the witncss testily, listening thcir response to one's qucslions and obscrving thcir demeanor.

Irurther in the case ol'Fathcr Nanensio Begumisa and 3 others vs Eris Tiberaga SCCA no.l7 of 2000[2004] KALR 236, it was stated that on a lirst appeal, the parties are entitled to obtain lrom the appeal court its own decision on issues of l-act as well as of law. Although in a case of conflicting evidence the appeal court has to makc due allowance lbr the lact that it has neither seen nor heard the witnesses, it must weigh the conflicting evidence and draw its own inl'erence and conclusion.

Thereiore, the judgment ol'the appellate court, musl rellect its conscious application of mind and rccord lindings supported by reasons. on all the issues arising along with the contentions put forth, and pressod by the parties lbr decision ofthc appellate court.


### The Trial court in the lower court.

On l6th May 2012, the ptaintif?appellant purchased land lrom the respondent dcscribed in the salc agreement as bcing part ofthc land compriscd in []ulemezi I]lock 715 at Kabanyi and the appellant Iully paid thc purchase pricc. on assurance that the defendant/rcspondent had the certificate of title to the suit land. And that on thc I 11012012, the rcspondent/defendant handed over ?r certificate ol title known as Bulemezi Block 715 plot 48 & 49 at Kabanyi, to the plaintiff and indicated that the same falls within the land as purchased.

In his statement oldefense dated 7th September 201 8, the del'cndant/rcspondcnt dcnied the plaintill's claim in paragraph 4 of the plaint and stated lhat the claims were liivolous, vexatious and that the plaintiffiappellant had no right to claim the whole Block 715. In the defense, it is f'urther staled that the plaintiff cntered in a land agreement with thc de f'endant fbr sale of land; however, much as the plaintiff claims that himself in pcrson, the defendant and other pcople inspected the land, the plaintiff did not take the vigilance to lake measurements of the land hc was buying but simply mentioned Block 715 in the said land sale agreement dralted by himsclf.

In his evidence, the plaintiffalleged that he bought the disputed land on Block 715 at Kabanyi from the defendant fbr 3,750,000/= and that the delcndant handed him title for Block 715 ptot 48 and 49 at Kabanyi but it tumed out thal lhe physical land thcy inspected did not exist on the title. PW3 in his lestimony stated that there was a clause in thc salc agreement which was amendcd 1o stale lhat the def'endanl shall hand over a copy ofthe title to thc plaintiff and that the defendant failed to deliver the title. The sale agreemenl markcd (PEl ) dcscribed the land sold to be bordered by the Catholic mission, Musa body, late Kityo and Ziramalwa, and it acknowledgcd payment ol thc agreed purchase price marked (PE2) and the certilicate (withheld) oltitle to Block 715 plots 42, 48 and 49 marked as (PID I ) were all attached to supporl the evidence.

In cross-examination, the plaintiff made it clear that the agreed acreage (size of the land) sold was not mentioned on the agreement at page l0 ofthe record ofproceedings and he t'urther stated lhat he did not know on which plot the purchased land l'ell though he had carried out a scarch on Block 715 plot 42 belbre he purchased the land and later lbund out that lhe land was falling on plot 21, however. def'endant/respondent did not havc the title to the plot.

In his defence. the defendant stated that he sold to the plaintilTonly one acre and 50 decimals ofland bordered by the Catholic Church, Musa body, thc defendant and Ziramalwa and the plaintilT paid a total of 3.4 million, leaving a balance of 350.000i= and becausc hc did not know on which plot thc land fell, he surrendered to him a title to Block 7l 5 plot 48 and 49 and they later discovered that the land falls on Block 2l .

# (lourt's dctcrmination,

(irounds 1.2.{ and 6 as rcst ntr:rl hv hoth sidcs.

I have looked at the sale agreemenl and indeed, apart Iiom describing that the land is on Block 7l 5, thc plot number is not indicated. 'l'hc land was Iurthcr dcscribed by the usc ofthc neighbors.

From the record ofthe trial court, I note that throughout the entire hearing. there were some agreed (acts like the fact that both the plaintifflappellanl and the def'endant/respondent agreed that they cntered into a sale agreement where the defendant sold a piece of land to the plaintifl'. [t was also agreed that the plaintiflpaid for the land he purchased. Irurther, it was agrced that the defendant gave the plaintiff titles olblock 715 plots 48 and 49 becausc he was not so sure which was the exact plot sold. See paragraph 5 olthe written statement ofdelence and paragraph 5 olthe defendant's witncss slalement-

At scheduling, only lwo issues were raised;

- l. Whether there was a sale of land as described in the agreement of 16/512012? - 2. What remedies are available to the parties?

ln thejudgment and in resolution ofthe first issue, the learned trial magistrate properly evaluated that there was a purported sale as evidenced by the sale agreement between the parties, however, that the del'endant had no capacity to deal with property as his own without going through the inheritance process first.

One would wonder where in the record and during hearing the topic of inheritance process come from.

According to the sale agreement dated l6th May 2012. thc appellant bought land from the rcspondcnt on the part ol the land comprised in Bulemezi Block 715 land at Kabanyi. however, the exact plot number was not indicated. The respondent during hearing as per the record of proceedings testilied during cross examination that he signed the sale agreement after it had bcen read to him and he understood its contents. That it was signed from his home in the presence of his wife. That he was sclling his land to the ptaintiff ol 1.5 acrcs and not a kibanja. That at the timc. it was his daughter inlaw cultivating the land. That he took thc plaintifTand his lirther to Bukalasa land olllce to mutate the plaintifls title fiom the title ofBlock 715 plots 48 and 49 which he thought the suit land sits.

DW3; a surveyor lestified that hc was instructed by thc dcl'endant to survey lllock 715 spccilically thc land that he sold to the plaintilf and he found out that it was on plot 2l and not 48 or 49. l'hat whcn he proceeded 1o Bukalasa land registry to process lhc white page and add the defendant as an administrator. the registrar of title inlbrmed him that the letters of administration to the estate of late I:liazari Mugegere were granted to the respondent in thc Chiel Magistrates Court of Luweero which court did not have pccuniary jurisdiction required and wcre advised to gct lcttcrs of administration Itom the High Court. [t is therelbre impcrative to note that. this is majorly what the trial magistrate relied on to say that the respondent did not have capacity to sell without having gone through the due process of inheritance.

Whereas I agree wilh Section l9l of the Succession Act as amended that provides that no right ol any part of the property of a person who has died intestate shall be established in courts ofjustice unless letlers of administration have been granted by court, I disagree with the leamed trial magistrate's linding that the respondent herein had no capacity to sel[. Firstly, because thc issue of letters ol' administration never arosc throughout the hearing of the suit, then. there was no one contesting the capacity ol the del'cndanVrespondent to sell the suit land. Furthcr, there is evidence that actually the deltndant had letters of administration obtained from the Chiel magistrates' court.

DWI/ the respondent herein testified that. the registrar of titles intbrmed him that thc letters of administration to thc estate ol'late [:liazari Mugegere were granted to the rcspondcnt in the C]hief Magislrates Court of l.uwccro bclow thc pecuniary jurisdiction required (small estatcs) and hc was advised to get letters ol administration fiom the High Court. It should be noted that this was done afler the respondent had sold the land to the appellant and he had gone to that o|lce to get a solution to give the appellant his title.

Counsel fbr the appellant in his submissions cited the case ol Marvcl Contractors and Road Maintcnance limited v Munyanganizi Civil Apcal 200 of 2014) UGCA 269, wherc court held that beneficiaries selling their interest in land subject to grant of letters of administration is not an illegality.

Denying the appellant, the land he bought in 2012 by hiding undcr lack ol'capacity would bc occasioning an injustice to the appellant since none from the estate ofEliazari ever contcsted the sale and lhe respondent too admitted that he sold the suit land to the appellant. The del'endant/respondent never stated anywhere that he had no powers to sale the suit land, he actually said he only sold I acre and 50 decimals and was willing lo make it up to the appellant and make it 2 acresl In such circumstances, it would be so unl'air lbr cou( to cancel such a sale on issucs that were not backed up with evidence in the trial court.

The trial magistrate tbrmulated her own issues that were not in dispute at all. She erred in law and fact as the issuc of letlers of administration was never in dispute.

l'he issue that needcd to be answered is as to whcther there was a sale of land described in the agreement, yes therc was. The land located on Block 715. As to the exact plot, which now the respondent states falls on plot 2l . the respondent should through the legal process, cause mutalion of the I acre and 50 decimals and give the appellant his title.

I thcrclbrc disagrcc with thc learncd trial magistrate's findings in slating that. although there rvas <sup>a</sup> purportcd sale of thc dcscribcd Iand in thc agreemcnt. thc del'endant had no capacity to dcal with property as his own without going through the inhcritance process flrst. Ile had lettcrs but liom <sup>a</sup> chicl' Magistratcs Court, and the appcllant was not purchasing the entire block 7l 5. 'l hc appellanl and the respondent entered into an agreement to sale land. and indeed. lhe rcspondcnt rcccived considcration.

The evaluation of evidence was completely wrong thus occasioning the appellant a miscarriage of justice.

Hence grounds 1,2,4 and 6 are answered in affirmative.

## Grounds 3 and 7

Section 2 ofthe Conlracts Act as amended read logether with scction l0(l) defines a contract as, an agreement made with the lice consenl ol'thc parties with the capacity to contract lor a lawlul consideration and with a lawf-ul object, with thc inlention to be legally bound.

'fhe appellant/plaintilT led evidence to show that indeed hc purchased land from the respondentidef'endant, made paymcnts. -fhe respondent admitted that indced he sold land to the appellant and was paid money as agreed. 'l'he trial court also held that there was a sale of land and ordered the respondent to rclund the plaintiff s/appellant's money ol 3 million and seven hundred lif'ty thousand. The appellant further lcd cvidence to show that they had a written sale agreement betwecn the appellant and rcspondent.

ln thc case ol'Green (ireenboat Entcrtainmcnt Ltd vs City Council of Kampala C. S no.0580 of 2003 a contract was dctincd ls:

" in law, when we talk ofa contract, we nrean an agrecment enlbrceable at law. For a contract to be valid and legally enlbrceable there must bc: capacity to contractl intention to contract; consensus and ideml valuablc consideration; legality of purpose; and sulllcient certainty of terms. If in a givcn transaction any ofthcm is missing. it could as well be called something othcr than a contract. "

[]'rom the evidence belbre this ]lonourable Court, the respondent agreed to sale part of the land on Block 715 at Kabanyi 10 the appellant at 3.750,000/: and that the def'endant. He was paid and he cvcn handed him title for Block 7l 5 plot 48 and 49 at Kabanyi but it turncd out that the physical land they inspectcd did not exist on the title but was on another title.

It is scttled law that a grant of lctters ol' adnrinistration remains valid untiI revoked sce Anecho Haruna Musa-vs-Twalib Noah and 2 others, HCCS N0.0009 of 2008. 'fherefbrc, I find that the delendanVrespondent had legal capacity to deal with his late f'ather's estate at the time of'sale as he had letters of administration that had nevcr been revoked by any court. If indced lhe respondent was adviscd due to the size of thc estalc to gct new lctters ol administration, thcn he should do so wcll knowing doing so does not invalidatc lhe carlier transactions he dealt whilc the letters of administration had not been rcvoked.

I have rcad Scction 64 of the Contracts Act and the case cited by counsel lbr the respondent. 'l'he section 64 as amended provides that:

" where a party to a contract, is in breach, the olher party may obtain an ordcr ofcourt rcquiring the party in breach to specifically perlbrm his/ her promise under the contract. A party is cntitled to

specific performance of a contract whcre, it is not impossible lor a person against whom a claim is made, to perfbrm the contract."

In Thompson vs Pullinger (10. R, at pg.301) KOTZE, CJ, held that, " the right of a plaintiff to the specific performancc ola contract wherc lhe def'endanl is in position to do so is beyond all doubt." "lt is true that courts will exercise a discretion in delermining whether or not decrecs of specific perlbrmance should bc made. They will not, ol' course , be issued where it is impossible for the def'endant to comply with them."

I believe, the respondent has power to fulfill his part ofthe bargain and grant the appellant his title of the one acre and 50 decimals that he purchased.

I Ilnd that both parties agreed to exislence of the transaction, and actually, the respondent testifled that he was in the late stages ofensuring the appellant gets his one acrc and 50 decimals and the title. 1-he respondent neither disputed the sale nor lacks capacity to validatc the transaction title. This court therelore orders that lhe respondent complies and fulfills his obligation under the agreement.

Grounds5andTsucceed.

In conclusion theretbrc, this appeal is allowed

Ilo e Conr lirn Kania

Judge 26tr'February 2025