Katamba & 2 Others v Mulira (Civil Appeal 21 of 2022) [2023] UGHC 478 (28 April 2023)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MUKONO CIVIL APPEAL NO. 021 OF 2022 (ARISING FROM CIVIL SUIT NO.38 OF 2015) **KATAMBA STEVEN & 2 ORS:::::::::::::::::::::::::::::::::::: VERSUS**

# MULIRA JAMES KATO:::::::::::::::::::::::::::::::::::: BEFORE HON. LADY JUSTICE CHRISTINE KAAHWA JUDGMENT

This Appeal arises from the Judgment of His Worship Muinda Tadeo; at the Chief Magistrates Court of Mukono at Mukono delivered on the 25th day of April, 2022 wherein he entered Judgment in favour of the Respondent/Plaintiff.

# **Background;**

The Appeal emanates from Civil Suit No. 038 of 2015 filed by the Respondent/Plaintiff against the Appellants seeking for order;

- a. A declaration that the Plaintiff is the lawful owner of the Suit land comprised in Block 115 Plot 783 land at Kazinga, Mutuba IV, Kyaggwe, Mukono District. - b. An eviction Order - c. Permanent Injunction - d. General damages.

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e. Costs of the Suit against the Defendants jointly and severally.

The Plaintiff's/Respondent's case was that at the time of selling the suit land, the $1^{st}$ and $2^{nd}$ Appellants/Defendants represented to the Plaintiffs/Respondent's mother Nantume Mariam Kato that the land

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belonged to NAMAKULA JANE as the proprietor and that the $1^{\rm st}$ and $2^{\rm nd}$ defendants'/Appellants were the owners and Administrators of the Estate of the late Serevesiti Kikonyogo Vide Administration Cause No.21 of 2003 Mukono. The Plaintiff subsequently paid an additional Ug. Shs. 3,500,000/= [Uganda Shillings Three Million, Five Hundred Thousand Shillings] notwithstanding their perversions and deceit in the prior transactions wherein they were witnesses to the same. That the $1st$ and 2nd Defendants signed transfer forms in respect of 1.49 Acres of the suit land. That the $1^{st}$ , $2^{nd}$ and $3^{rd}$ Defendants/Appellants and other third parties continued to trespass on the Plaintiff's/Respondent's land on a number of occasions which resulted into institution of Civil Suit No.38 of 2015.

The Appellants/Defendants ( $1^{st}$ , $2^{nd}$ and $3^{rd}$ Defendants) filed a written statement of defence and Counter Claim; which was later amended, and they denied the contents of the Plaint.

- a. They contended that the $1^{st}$ and $2^{nd}$ Defendants ( $1^{st}$ and $2^{nd}$ Appellants) are administrators of the estate of the late Kikonyogo Silvest who was the registered proprietor of land comprised in Kyagawe Block 115 Plot 210 land at Kazinga; - b. the said defendants sold land totaling to 2 acres to the Plaintiff's mother Maria Nantume Kato; - c. the $1^{st}$ and $2^{nd}$ Defendants also signed on transfer forms and mutations forms without filling in the rest of the contents and gave it to the Plaintiff's mother; - d. on the $2^{nd}$ November 2003 the 1st and $2^{nd}$ Defendants again sold land to the Plaintiff's mother 50 decimals still from the above

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mentioned land, mutation forms and transfer forms were again issued to the Plaintiff's mother

- e. That on the $8^{th}$ May 2004, the $1^{st}$ and $2^{nd}$ Defendants sold another 50 decimals to the Plaintiff's mother and also issued to her mutation forms and transfer forms, in total the Plaintiffs mother purchased 3 acres - f. The Plaintiffs mother gave to the Plaintiff the land she had purchased from the $1^{st}$ and $2^{nd}$ Defendants, the Plaintiff curved off 3 acres and the land is currently comprised in Block 115 Plot 767 Kyaggwe and registered in the Plaintiff's name. - q. That the residue comprised in Block 115 Plot 783 Kyaggwe measuring approximately 0.604 hectares (1.5 acres) remained in the names of the $1^{st}$ and $2^{nd}$ Defendants. - h. The Plaintiff took advantage of the many signed transfer and mutation forms which had earlier been issued to his mother to again fraudulently take 1.5 acres (0.604 hectares) of land comprised in Block 115 Plot 783 Kyaggwe and registered it in his names (herein referred as the suit land) - i. That unknown to the $1^{st}$ and $2^{nd}$ Defendants, the Plaintiff had fraudulently transferred their land into his names, they sold a Kibania on part of the said land to the 3rd Defendant and many others who have constructed houses on the land.

The $1^{st}$ and $2^{nd}$ Appellants/Counter Claimants also filed a Counter Claim against the Counter Defendant and prayed for a declaration that the counter defendant obtained the suit land comprised in Block 115 Plot 783 fraudulently, a declaration that the Counter-Claimants are the rightful

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owners of the Suit land, Permanent Injunction, general damages, costs of the Suit and any other relief that the Court may deem fit.

At trial, the Appellant/Defendants produced two witnesses, that is: DW1; KATAMBA STEVEN and DW2 WADADA STEVEN J while the Plaintiff/the Respondent produced 3 witnesses that is PW1; MULIRA JAMES, PW2; NANTUME MARIA KATO and PW3; BALALA CHARLES.

Four issues were raised for the determination by the lower Court,

- 1. Whether the Plaintiff acquired the Certificate of Title comprised in Kyaggwe block 115 Plot 783 land at Kazinga **Mukono District fraudulently?** - 2. Whether the sale of the Bibanja by the 1st Defendant to the 3rd Defendant? - 3. Whether the $1^{st}$ and $2^{nd}$ Counter Claimants' claim has merit? - 4. What are the remedies available to the parties?

Upon evaluation of the evidence, the trial Magistrate found the Respondent/Plaintiff had proved his case on a balance of probabilities against the Defendants and entered Judgment against them and hence this Appeal.

### **The Appeal;**

The grounds of the Appeal are:

1. That the learned trial Magistrate erred in law and fact when he proceeded to hear and determine Civil Suit No.38 of 2015 which

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had earlier been dismissed on the 28th day of June 2017 without any order of first reinstating the same.

- 2. That the learned trial Magistrate erred in law and fact when he dismissed the 1st and 2nd Appellants Counter-Claim which had not been contested by the Respondent through a written statement of defence. - 3. That the learned trial Magistrate erred in law and fact when he held that the Plaintiff/Respondent acquired the suit land comprised in Kyaggwe Block 115 Plot 783 land at Kazinga Mukono District lawfully. - 4. That the learned trial Magistrate erred in law and fact when he held that the 3rd Defendant/Appellant is not a bonafide purchaser of the Kibanja occupied by him on the Suit land comprised in Kyaggwe Block 115 Plot 783 land at Kazinga Mukono District. - 5. The learned trial Magistrate erred in law and fact when he totally failed to properly evaluate the evidence on record and thereby came to wrong conclusions.

The Appellant prayed that the Appeal be allowed and the reliefs in the main suit and Counter-Claim be granted; the orders of trial Magistrate be set aside; costs of the Appeal and the lower Court be paid by the Respondent and any other relief that this Court may deem fit.

#### **REPRESENTATION;**

Both parties filed their written submissions, the Appellants were represented by Mr. Tumusiime Justus while the Respondent was represented by Mr. Mucunguzi Timothy.

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#### **CONSIDERATION OF APPEAL**

This being the first Appeal, I am obliged to remind myself of the duty as a first appellate court which is to re-evaluate evidence as was mentioned in the Supreme Court case of **Father Nanensio Begumisa and 3** Others vs Eric Tiberaga SCCA 17/20 (22.6.04 at Mengo from CACA 47/2000 [2004] KALR 236.

"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."

I will, therefore, bear that principle in mind as I resolve the grounds of Appeal. In this case while arguing the grounds of Appeal, Counsel for the Appellant argued each ground separately and will follow the same order but first I will resolve the preliminary objection.

## **Preliminary Objection;**

Counsel for the Respondent contended that the Respondent had filed in this Court Miscellaneous Application No.469 of 2022 in which he prayed that the Appeal be struck out for non-service of Notice of Appeal, Memorandum of Appeal, letter requesting for the proceedings and Judgment and the record of Appeal. He prayed that costs be awarded to the Applicant, now Respondent in the Appeal.

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Learned Counsel for the Respondent argued that the Judgment in Civil Suit No.38 of 2015 was delivered on 25th April 2022; the Record of Appeal was filed on 26th October, 2022 after six months from the date of Judgment and the Respondent was served with the record of Appeal on the 31st of October, 2022. That the Appellants have never served the Respondent with a Memorandum of Appeal. Counsel further argued that the Appeal was filed out of time and in non-compliance with the requirements of Order 49 rule 2 and Order 5 rule 1 of the Civil Procedure Rules, (CPR). Counsel further contended that there is no proof on the record of Appeal that there was any letter requesting for records of proceedings.

In rejoinder Counsel for the Appellant contended that Appeals from the Magistrate's Courts are governed by the Civil Procedure Act CAP 71 (CPA) and Civil Procedure Rules (CPR) SI- 71-1. Counsel submitted that Section 79 (1) of the CPA provides "*that except as otherwise specifically* provided in any other law, every appeal shall be entered within 30 days from the date of decree or order of the Court." He relied on Order 43 rule 1 which states that every Appeal to the High Court shall be preferred in the form of a Memorandum of Appeal signed by the Appellant and presented to Court. He further argued that since Judgment was delivered on the 25th April 2022 and the Memorandum of Appeal was filed on 6th May 2022 and served on 13th May 2022, the Appeal was within the time stipulated for lodging of an Appeal. He referred to the affidavit of service of Odongo Daniel filed on the 26th October 2022.

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#### **Resolution;**

I agree with Counsel for the Appellant on the law governing Appeals from the Magistrates Court to the High Court is Section 79 (1) of the CPA and Order 43 of the CPR.

Perusal of the file indicates that Judgment was delivered on the 25th day of April 2022, and the Memorandum of Appeal was filed on the 6th day of May, 2022 and the same was served on the respondent's lawyers on 13th day of May, 2022 as per the affidavit of Odong Daniel deposed on the 25th day of October 2022 and filed on court record on the 26th day of October 2022. Therefore, the Appeal was filed within the time stipulated by the law.

Ground 1: That the learned trial Magistrate erred in law and fact when he proceeded to hear and determine Civil Suit No.38 of 2015 which had earlier been dismissed on the 28th day of June 2017 without any order of first reinstating the same.

Counsel for the Appellants submitted that the trial Magistrate was not procedurally right to hear and determine the Civil Suit No.38 of 2015 which had earlier on been dismissed on the 28th day of June, 2017 without any order of first reinstating the same. Counsel argued that at page 22 of the record of proceedings, Civil Suit No.38 of 2015 was dismissed by the trial Magistrate for non-appearance in Court of the Respondent/Plaintiff on the 28th day of June 2017 and that there is no formal or oral Application on Court record requesting for the same to be reinstated. He further argued that a suit dismissed under Order 9 rule 22 of the Civil Procedure Rules can only be reinstated under Order 9 Rule 23 of the Civil Procedure Rules upon an application by the Respondent/Plaintiff.

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Counsel contended that from the 29th day of June, 2017 there was no valid suit in court to be tried by the trial Magistrate thus the proceedings from the 8th day of April, 2021 are a nullity, illegal, null and void and prayed that the same be set aside by this honourable Court. He fortified his argument that a Court of law cannot sanction what is illegal and quoted the case of **Makula International Versus Cardinal Nsubuga**, that if this Court allows the decision of the lower Court, it will be condoning illegalities and praved that this Court should allow the Appeal and set aside the decision of the lower Court.

Conversely, Counsel for the Respondent submitted that even though the Record of Appeal at page 22 shows that the Civil Suit No.235/2015 was dismissed with costs on the 28th June 2017, the dismissal was a procedural error since there was a pending Civil Revision Cause No.1 of 2017. He further contended that the dismissal was done without knowledge and or service of the hearing notice upon Respondent/Plaintiff and that the Appellants conveniently and deliberately misled the Trial Magistrate on the 28th June 2017. Counsel contended that the Respondent did not bring this alleged dismissal to the Trial Magistrate after the Revision cause had been heard and the file sent back for further trial as the Respondent continued participating in the proceedings.

Furthermore, the Respondent/Plaintiff contends that the alleged dismissal was never brought to the attention of the High Court during the revision proceedings which shows the glaring crafty conduct of the Appellants.

126/04/2023 ## **Resolution;**

I have perused the record of proceeding in this matter and as correctly pointed out by both parties Civil Suit 235 of 2015 was dismissed on the 28th June 2017.

I have read the record in the **Revision Misc. Application 1 of 2017** Mulira James Kato versus Katamba Steven and 2 others and I observed that the Application for revision was filed on the 2nd February 2017 in Jinja High Court. There are several letters of calling for the file of the lower Court namely;

- a letter dated 2/02/2017 by Deputy Registrar Jinja High Court to i. the Chief Magistrate Mukono which was received by Chief Magistrates' Court Mukono on the 21/02/2017, - ii. a letter by Counsel for the Plaintiff to Chief Magistrate Mukono bringing to courts attention that a revision had been filed, this letter is copied to Deputy Registrar Mukono High Court; - iii. a letter dated 21/02/2017 signed on behalf of the Chief Magistrate Mukono forwarding entire case record to the Deputy Registrar Jinja High Court. The caption though is Civil Appeal 1 of 2017 although the parties are the same. - a letter dated 25th July 2019 from Deputy Registrar Mukono High iv. Court to Chief Magistrate Mukono requesting for the case file.

The above letters show that the Chief Magistrate's Court of Mukono was informed of the pending Revision Application before the High Court and the Trial Magistrate acted wrongly in dismissing a Suit that was pending revision in the High Court.

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The Revision Cause was heard on the 1st September 2020 and a Ruling was delivered on the 14th September 2020. The issue of dismissal of Civil Suit 235/2015 was not conversed or brought to the attention of the Judge. It is my considered opinion that had that dismissal been regularly done it would have been brought to the attention of the Court.

I therefore find that the dismissal that was made on the $28$ th June 2017 was done irregularly and therefore this ground fails.

Ground 3: The Learned Trial Magistrate erred in law and fact when he held that the Plaintiff/Respondent lawfully acquired the Suit land comprised in Kyaggwe Block 115 Plot 783 at Kazinga in Mukono District.

Ground 5: The learned trial Magistrate erred in law and fact when he failed to properly evaluate the evidence on record thus occasioning a miscarriage of justice?

Learned Counsel for the Appellants framed issues and proceeded to deal with the issues framed and he submitted on issues 2 and 4 of the Appeal jointly. These are reflected as grounds 3 and 5 in the Memorandum of Appeal.

The Appellants Counsel submitted that the main issue in contention before the trial Court was ownership of land comprised in Block 115 Plot 783, land at Kazinga Mukono District. He faulted the trial Magistrate at page 7 of his Judgment when he erred in law and fact by drawing conclusions that the "Plaintiff/Respondent purchased the suit land from the 1st and 2nd Defendants who issued him with transfer forms in the presence of PW3.

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The trial Magistrate further asserted that he did not find any cogent evidence that the Defendants signed empty transfer forms to the Plaintiff's mother in the other transactions as this would have been supported by evidence ascertained from the land registry whether the transfer forms and mutation forms signed to his mother were all not used. That indeed it was the same which the Plaintiff used to transfer in his names the suit land. He concluded that the Plaintiff rightly got registered on the title of the Suit land, therefore he acquired the same lawfully"

The Appellants' Counsel further contended that in order to understand the errors made by the Trial Magistrate in as far as determining ownership is concerned, the following questions have to be addressed;

- a. Was there proof that Mulira James Kato purchased the land from Katamba Steven and Ssemakula Silvest? - b. Was there proof that the Suit land was a residue on the land of Mukasa Elinesit? - c. Was there any fraud committed by Mulira James Kato?

While addressing question (a), Counsel for the Appellants/Defendants pointed out page 146 of the record of Appeal, where the $1^{\rm st}$ and $2^{\rm nd}$ Defendants in their Amended written statement of defence particularly paragraphs $5(7)$ stated that,

"The Plaintiff took advantage of the many signed transfer forms which had earlier been issued to his mother to again fraudulently take 1.5 Acres (0.064 hectares of land currently comprised in Block 115 Plot 783 Kyaggwe and registered it in his names herein referred to as the Suit land.

Under paragraph $5(11)$ of the amended defense that,

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"That the Defendants contend that the Plaintiff obtained 1.5 Acres of land currently comprised in Block 115 plot 783 Kyaggwe fraudulently as he has never purchased any land from the $1^{st}$ and $2^{nd}$ Defendants". Learned Counsel for the Appellant argued that the above facts were never rebutted by the respondents through a reply to the written statement of defence and therefore stands uncontested.

Counsel further pointed out that on page 153 of the Record of Appeal, the Respondent claimed in his plaint that he paid Ug. Shs.3,500,000/ $=$ (Uganda Shillings Three Million, Five Hundred Thousand) to the 1st and $2nd$ Appellants and in exchange they signed for him transfer forms of the suit land in 2006. In regard to this, the Appellants' Counsel averred that the evidence of payment of money and signing of the transfer forms was full of falsehoods and contradictions, therefore unreliable. Counsel pointed out on the contradictions at pages 19, 20 and 153 of the record of Appeal

Counsel submitted further, that PW3 who claimed to be the transaction Lawyer contradicted PW1 the alleged buyer, upon cross examination he claimed the payment was done in his presence in 2008, and all transfers were signed and filed on that same day in exchange of money and referred this court to page 28 of the record of appeal. Counsel pointed out to the fact that PW3 could not mention how much was paid by the Respondent just like PW2. That the transfer form which the Respondent attempts to rely on was signed in 2007 contrary to what all the witnesses had stated on page 129 of the trial bundle.

Learned Counsel contended that PW1 in his Plaint, evidence in chief and cross examination did not indicate anywhere that he made payments for

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the Suit land in the presence of PW2 or PW3. That PW2 on page 25 of the record of Appeal stated that she does not remember the people who were present when the respondent was making the payments. Counsel argued that such contradictions on the core issue of sale points to the deliberate lies by the Respondent to grab the Appellants' Land and that in the absence of Sale Agreement to clarify the same, the Respondent's claim remain speculative. He relied on the case of Sheik Husein Mayanja Versus Mubiru Christopher Civil Suit No.0129 of 2010, where justice Kwesiga citing the case of Edward Gatsinzi & Makasanga **Ritah Versus Lwanga Steven Cs. No. 690 Of 2004** at page 6 and 10 held that,

"Where a Sale of Land is involved, the purchase cannot be by mere presumption, there must be actual purchase by written Memorandum, duly signed by the parties and failure to prove the same would render the said claim baseless. Learned Counsel for the Appellants submitted on this point and contended that in the absence of a Sales Agreement duly signed by the parties in regard to the Suit land, the Respondent cannot be said to have legally acquired the same."

On the question of whether there was proof that the suit land was a residue on the land of Mukasa Elinesit Counsel for the Appellants invited court to note that the Respondent/Plaintiff claimed in his witness statement that he purchased the land as a residue from the land belonging to Mukasa Elinesti as per pages 127 and 128 of the record of Appeal. Counsel contended that the Suit land has never been registered in the names of Mukasa Elinesti but on the contrary it belonged to the late Serevesti Kikonyogo under the administration of the 1st and 2nd Appellants as per page 108 of the record of Appeal.

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Counsel submitted that the transactions of the Respondent and Namakula Jane were totally different and could not be transformed to the suit land without an Agreement from the 1st and 2nd Appellants as beneficiaries and administration of the same, he further argued that it was unbelievable that the Respondent could have paid money of such magnitude without any Agreement or acknowledgment from the 1st and 2nd Appellants, yet in the previous transactions all payments were documented.

While addressing the third question as to whether there was fraud committed by Mulira James Kato, the Appellants' Counsel argued that as per DW1's amended defence on pages 103 to 107 of the record of Appeal, three transfer forms were issued to PW2, who happens to be the Respondent's mother, this evidence was not challenged in cross examination. The Respondent's mother confirmed to the trial Court upon cross examination that the land she had purchased from the $1^{\rm st}$ and $2^{\rm nd}$ Defendants/Appellants was gifted to the Respondent also managed the subdivision process. Counsel submitted that out of the three transfer forms, only one was legally used to transfer the land comprised in Kyaggwe Block 115 Plot 767 measuring 3 Acres.

That the two transfer forms were never accounted for by the Respondent during the hearing of the case and the trial Magistrate misdirected himself on the fact when he held that it was the Appellants to account for the rest of the transfer forms. Counsel contended that since the transactions on the Suit land were managed by the Respondent, he therefore knowingly and fraudulently used the transfer forms with full knowledge that it had not been intended to transfer the Suit land.

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Counsel prayed that this Court finds that the Respondent fraudulently transferred the Suit land into his name and the same be cancelled since there is no reliable evidence confirming that the Respondent purchased the Suit land from the Appellants and as such the trial Magistrate failed to properly evaluate the evidence on record and thereby came to a wrong conclusion that Respondent lawfully acquired the Suit land.

Counsel for the Respondent opposed this ground and argued that under Section 59 of the Registration of Titles Act Cap 230 and the case of PATEL Versus PATEL [1992-93], a Certificate of Title is conclusive evidence of ownership. He submitted that in the absence of fraud specifically pleaded and proved against the Respondent, he is the lawful registered proprietor and that no one else especially the Appellants have no claim thereon.

The Respondent's Counsel further argued that the $1^{st}$ and $2^{nd}$ Appellants misrepresented **NAMAKULA JANE** as the authoritative proprietor of the Suit land and that the $1st$ and $2nd$ Appellants had full knowledge that they were the ones to deal with the suit land and not NAMAKULA JANE since they were the registered Administrators of the Estate which fact remained unchallenged. Counsel further argued that after ascertaining that Namakula Jane did not have authority, the Respondent proceeded to pay additional Ug. Shs. 3,500,000 (Uganda Shillings Three Million, Five Hundred Thousand) in respect of the Suit land as per page 150 and 19 of the record of Appeal.

Counsel argued that such amounted to fraud with the intentions of defeating the interest of the Respondent and relied on the case of FREEDRICK ZAABWE Versus ORIENT BANK SCCA No.4 of 2006

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where Court alluded to such perverted intentions to constitute fraud, the Court observed that,

A false representation of a matter of fact, whether by words or by conduct, by false or misleading allegations, or by concealment of that which deceives and is intended to deceive another so that he shall act upon it to his legal injury. Anything calculated to deceive, whether by single act or combination, or by suppression of truth, or suggest of what is false, whether it is by direct falsehood or innuendo by speech or silence, word of mouth, or look or gesture.

It is Counsel for Respondent's argument that Block 115 plot 767 is different from Block 115 Plot 783 and that the Appellants should not use the transactions that they had with the Respondent's mother to deprive him of his land. Counsel cited Section 101,102 and 103 of the Evidence Act Cap 6 that he who alleges a fact must prove it. He opined that in this case it's the Appellants who are challenging the proprietorship of the Suit land and fortified his arguments with the case of **JOVELYN BARUGAHARE Versus ATTORNEY GENERAL SCCA No.28 of 1993,** that the Appellants have not produced any evidence while the Respondent availed a Certificate of Title and Marked as Defence Exhibit 1 at page 129 of the record of Appeal. Counsel for the Respondent called the Appellants actions as a fishing expedition which courts have condemned and cited the case of **MUTESI Versus ATTORNEY GENERAL Misc. APP** No.0912 of 2017. He prayed that the Respondent should be allowed to enjoy the protection of the law under section 59 of the Registration of Titles Act in the absence of fraud. To this end Counsel for the Respondent submitted that the learned Trial Magistrate properly evaluated evidence and came to the right decision in finding that the Respondent lawfully

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acquired the Suit land comprised in Kyaggwe Block 115 Plot 783 land at Kazinga Mukono.

In regards to the allegations of fraud and forgery on the part of the Plaintiff/Respondent as claimed by the Appellants in their Counter Claim and amended Written Statement of Defence (WSD) Counsel submitted that these are utterly unfounded since there is already uncontroverted evidence on Court record at page 111 of the Record of Appeal as proved by PW3 an advocate of the High who witnessed the transfer forms being signed and money being exchanged as proof that the Suit land was purchased.

That during cross examination, DW1/1st Appellant stated that he got to know about the Respondent's registration in the Title in 2015 but had done nothing to protect their right to property as evident at page 30 of the record of Appeal. Counsel contended that the learned Trial Magistrate rightly concluded at pages 7 and 8 of the record of Appeal when he held that,

"A perusal of the Counter Claim points at a typical situation of a fishing expedition. In short, to create a case where one does not exist while hunting for evidence to support the defence case during the pendency of the suit. The Counter Claim established no nexus at all to establish an existing right over Block 115 Plot 783, which glaringly questions the basis of the cause of action of the Counter Claim......that the Appellants are only seeking to justify their fraudulent actions of selling off a Kibanja interest in land that they allegedly believed they were the registered proprietors..."

25/04/2023 Counsel prayed that this ground of Appeal be answered in the negative as the Respondent lawfully acquired the Suit land and the learned Trial Magistrate properly evaluated the evidence on record.

## **Analysis and Determination;**

In his submission in rejoinder, Counsel for the Appellants argued that the respondent was guilty of fraud since he took advantage of the many signed transfer forms in favour of his mother to have his name registered as proprietor of 1.5 Acres of land comprised in Block 115 Plot 783. Fraud is defined to denote actual fraud or some act of dishonesty as was in the case of **Kampala Bottlers Ltd versus Domanico (U) Ltd SCCA** No.22 of 1992, Waimiha Saw Milling Co. Ltd versus Waione Timber Co. Ltd (1926) AC 101, Assets Co. versus Mere Roihi (1905) AC 176 and David Sejjaka versus Rebecca Musoke CA No. 12 of 1985. He accordingly submitted that the transfer forms were issued to PW2 and out of the three, only one was legally used to transfer Kyaggwe Block Plot 767 measuring three acres, while the second transfer form was fraudulently used to transfer Block 115 Plot 783 measuring 1.5 acres into the name of the Plaintiff/Respondent.

## **Analysis Determination;**

Suffice to note that there is no record of sale between the 1st & 2nd Appellants and Respondent. I therefore agree with the findings in the case of Sheik Husein Mayania Versus Mubiru Christopher Civil Suit No.0129 of 2010, where Justice Kawesa citing the case of Edward Gatsinzi & Makasanga Ritah Versus Lwanga Steven CS. No. 690 Of 2004 at page 6 and 10 held that,

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"Where a sale of land is involved, the purchase cannot be by mere presumption, there must be actual purchase by written Memorandum, duly signed by the parties and failure to prove the **same would render the said claim baseless**". Important to note is that land transactions are governed by the Principles of a Contract, therefore in the absence of the basic principles like acceptance, there is no way the parties can be said to have contracted. Much as Counsel for the Respondent state that the Respondent paid to the Appellants Ug. Shs. 3,500,000/= [Uganda Shillings Three Million, Five Hundred Thousand] in respect of the Suit land, there is no legal backing to documentary evidence.

It is my considered opinion that, there was no Sale Agreement between the Respondent and the 1st and 2nd Appellants hence it was not proper for the trial Magistrate to hold that the Respondent had lawfully acquired the Suit land, there cannot be a purchase without payment of consideration to the right party, apart from the Respondent alleging that he paid money to the Appellants, there is no tangible evidence put forth by him.

This Court also finds that much as the Respondent claimed that he paid the Ug. Shs. 3,500,000/= [Uganda Shillings Three Million, Five Hundred Thousand] to the Appellants as consideration and a transfer form was executed in his favor, this seems contrary to the records on the consent to transfer which has a figure of Ug. Shs. $2,000,000/=[Uganda Shillings]$ Two Million]. The Land Title presented at page 132 of the record of Appeal does not have the $1^{st}$ and $2^{nd}$ Appellants names as the Administrator but bears only the Respondent as the original owner, such kind of inconsistencies and contradictions in evidence ought to be considered with keen attention.

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In the case Oryem David v. Omory Phillip, H. C. C. S No. 100 of **2018,** where it was held that:

"It is Trite law that grave inconsistencies and contradictions unless satisfactorily explained will usually but not necessarily result in the evidence of a witness being rejected. Minor ones unless they point *to deliberate untruthfulness will be ignored."*

Further,

"What constitutes a major contradiction will vary from case to case. The question always is whether or not the contradictory elements are material, i.e. "essential" to the determination of the case. Material aspects of evidence vary from case to case but generally in a trial, materiality is determined on the basis of the relative importance between the point being offered by the contradictory evidence and its consequences to the determination of any of the facts or issues necessary to be proved. It will be considered minor where it relates only on a factual issue that is not central or that is only collateral to the outcome of the case."

I have carefully read the submission of both sides and the evidence on record. The Respondent in his evidence, paragraph 4 of his witness statement at page 125 of the record of Appeal, stated that he bought the Suit land from the $1st$ and $2nd$ appellants. The record of Appeal at page 128 and 129 shows a Sales Agreement and translation. That Agreement was executed between the Respondent and Namakula Jane, this only leaves Court with doubt as to truthfulness of his assertions.

The said Agreement also shows that the land in issue was a residue of Mr. Elinesti Mukasa land and in paragraph 2 of the Respondents witness

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statement he states that the said Elinest was the then proprietor. The Land Titles that were exhibited do not show that the said land belonged to Elinesti Mukasa. These inconsistencies in my opinion show that immensely diminish the probative value of the Respondent's testimony.

This court also observed that there were two titles exhibited for Block 115 Plot 783, one showing that the respondent obtained title from the 1st and 2nd Appellants and the other showing the respondent as a first registered proprietor. This further casts doubt to the truthfulness of the transactions that led to the transfer into the Respondent's name.

This Court also observes that the Respondent/Counter Defendant did not file a reply to the Counter Claim. No reason was given for failure to do SO.

Consequently, I find no merit in the arguments of the Respondent and according, this ground of Appeal succeeds.

Ground 4 of the Appeal: That the learned trial Magistrate erred in law and fact when he held that the 3rd Defendant/Appellant is not a bonafide purchaser of the Kibanja occupied by him on the Suit land comprised in Kyaggwe Block 115 Plot 783 land at **Kazinga Mukono District.** (issue 3 as to whether the 3rd Appellant is a bonafide purchaser of the Kibanja on part of the Suit land as framed by the Appellant.)

Learned Counsel for the Appellants' submitted at **pages 94-96** of the record of Appeal, the 3rd Appellant confirmed to the trial Court that he was a lawful occupant having purchased a Kibanja interest from the 1st and 2nd Appellants and had greatly developed the Suit Kibanja and has

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residential and commercial houses while the Respondent had nothing on ground and this was proved during the locus visit. That the Respondent did not even know the people he had sued but got their names from the LC1 as per **page 36** of the record of Appeal.

In a nut shell Counsel for the Appellants prayed that this Court finds that the 3rd Appellant was or is a lawful occupant and not a trespasser as earlier found by the trial Magistrate.

Learned Counsel for the Respondent opposed this ground and contended that, the 3rd Appellant purchased three different pieces of land and did so with full knowledge of the interim injunction for the 2 pieces of land as per his testimony **on page 31** of the record of Appeal. He further argued that the $1^{st}$ and $3^{rd}$ Appellants received and acknowledged receipt of the **interim order dated 18th March, 2015**, by Affidavit dated 31st August 2015 Defence exhibit 3 is a Sales Agreement dated 15th August 2015 wherein the $3^{rd}$ Appellant allegedly purchased a kibanja from the $1^{st}$ Appellant and that by the $2nd$ Appellant endorsing the same as a witness is proof of dishonest. That Defence Exhibit 4 which is a Sales Agreement dated 12th August, 2014, the 1st Appellant was a seller and the 3rd Appellant was the purchaser.

## **Analysis and determination;**

Having considered the argument of both parties in respect to this ground, Court makes the following findings and considerations.

Counsel for the Appellants argued that the trial Magistrate erred in law when he found that the 3rd Appellant was a trespasser and had not properly purchased the suit land. A perusal of the record indicates that

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there was a Sale Agreement dated 31st October, 2015 between the 1st, 2nd and 3rd Appellants alienating the Suit land to the 3rd Appellant, Counsel for the Respondent opposed this and argued that the purported sale was irregular and aimed at defeating the Respondent's interest in the Suit land since it was done while there was an Interim Order date 18th March, 2015 forbidding the Appellants from further dealing with the Suit land pending the disposal of the main Suit.

In the case of **Patrick Kaumba Wiltshire Versus Ismail Dabule Supreme Court Civil Application No 03 of 2018**, it was mentioned that,

In the cases of Yakobo Senkungu and others vs Cerencio Mukasa, SC Civil Application No. 5 of 2013 and Guliano Gargio vs Calaudio Casadiothis Court stated that 'the granting of interim orders is meant to help parties to preserve the status quo and then have the main issues between the parties determined by the full court as per the Rules"

Considerations for the grant of an interim order of stay of execution or *Interim Injunction are whether there is a substantive Application pending* and whether there is a serious threat of execution before hearing of the *substantive Application.*

In the instant Application, it is established that an Interim Order was issued by the trial court date the 18th day of March, 2015 drafted in a questionable manner and I quote, "Misc Application No.29 of 2015 [Arising from Civil Suit No.38 of 2015"]. Such Applications ought not to be granted, the law is very clear that for an Interim Order to be

granted it must arise from a substantive Application but in this case an Order for Interim stay arose from the main Suit. Be that as it may, the Order was granted on the 18th day of March, 2015 and served on the Respondents or Appellants on the 28th day of March, 2015. Order 50 Rule 3 A (6), provides that the Applicant shall within the three days referred to in sub rule (5), present proof of effective service on the opposite party and where such is not presented within the **period stipulated, the order shall lapse** much as the three day rule as per the amendment did not apply at the time but an Interim Order remains an Interim Order, therefore the question as to the time within which the said Interim Order should have elapsed would be determined by the test of reasonable time.

Further perusal of the record indicates that, there was a Ruling delivered by His Worship Robert Mukanza on the 13th day of October, 2015, in Misc. Application 94 of 2015, arising from MA No.29 of 2015 in which he dismissed the Application for contempt of the Court Orders on the ground that the Applicants were issued with and Interim Order on the 18th day of March, 2015 and served on the Respondents on the 27th day of March, 2015 and pointed out that the Respondents could have proceeded with the said construction within the 9 days before they were served with the Interim Order, the Trial Magistrate faulted the Applicants for not diligently prosecuting their case. He also observed that Annexture C, photographs of men busy constructing did not bear time stamps when the photos were taken. It is not clear from the record whether MA No. 28 of 2015 for Temporary Injunction was disposed.

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This Court is persuaded by the evidence of DW1 and DW2 that the sale of the Kibanja interest as seen from the Agreements at 97 and 99 of the record of Appeal transferred a valid interest to the 3rd Appellant. It is observed that the land was disposed of in 2014 and 2015 respectively; the land that was sold in 2014 was done before the filing of the civil suit from where this Appeal arises. DW2 also stated that he consulted with the LCs and other persons in the neighbourhood who affirmed that the $1^{st}$ and 2nd Appellants were the owners of the land. I find that the 3rd Appellant was a bonafide purchaser. This ground of Appeal therefore succeeds.

## **Remedies;**

On the issue of the remedies, the Appellants' Counsel prayed that this Court be pleased to allow the appeal with costs, set aside the Judgment of the lower Court and the Respondent be ordered to pay the costs of the lower Court.

In conclusion therefore, this Appeal is therefore allowed with costs to the Appellants, Judgments and orders of the lower Court are therefore set aside.

**Dated** at **Mukono** this 28th day of **April 2023.**

Hon. Lady Justice Christine Kaahwa JUDGE