Kawuki v Sematiko (Civil Appeal 131 of 2023) [2024] UGHCLD 132 (27 May 2024)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (LAND DIVISION) CIVIL APPEAL No.131 OF 2023**

**(Appeal from Makindye Chief Magistrate Civil Suit No.34 of 2020)**

**KAWUKI ANDREW ::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT**

#### **VERSUS**

**JOSEPHINE SEMATIKO ::::::::::::::::::::::::::::::::::::: RESPONDENT**

# **BEFORE; HON. LADY JUSTICE NALUZZE AISHA BATALA JUDGEMENT**

#### *Introduction;*

1. Kawuki Andrew herein after referred to as the Appellant brought this appeal against Josephine Sematiko herein after referred to as the respondent against the decision of Her Worship Basemera Sarah Anne Chief Magistrate of Chief Magistrate's Court Makindye in Civil Suit No.34 of 2020 delivered on the 30th of August 2023, by which judgment was entered in favour of the Respondent (plaintiff in the lower court) against the appellant (defendant in the lower court) for; orders that the respondent /plaintiff is the rightful owner of the suit

land and that the appellant/defendant was found to be a trespasser on the suit land and costs of the suit be provided to the respondent/plaintiff.

#### *Background;*

- 2. In the lower court, the respondent sued the appellant for trespass and that the respondent/plaintiff is the lawful owner of the suit land located at Kiganda Zone Katwe Parish, Makidnye Division, Kampala district for orders that; a declaration that the appellant/defendant is a trespasser over the suit property, that the appellant/defendant grants the respondent/plaintiff vacant possession of the suit property, Permanent injunction prohibiting the appellant/defendant, his agents as well as his successors in title from interfering with the plaintiff's property and costs of the suit. - 3. Briefly the respondent/plaintiff's case is that he acquired ownership of the suit property by virtue of an assignment deed executed between her and one Kasenge Gerald on the 18th of July 2017. That Kasenge Gerald's interest in the suit land arose from the decision of court in High Court Civil Suit No.533 of 2003 which suit was instituted by Kasenge Gerald and the


matter was decided in his favor in 2017 with orders that he was the lawful owner of the suit land.

- 4. The appellant/defendant without any claim of right, unlawfully entered onto the suit land and started collecting rent from the tenants and later demolished the structures on the suit land and took possession of the suit property. - 5. The appellant/defendant alleges that he purchased the suit property from the respondent/plaintiff on the 22nd of march 2003, a sales agreement was executed and upon full payment of the agreed consideration, the respondent/plaintiff handed over to the defendant the original copy of the sales agreement pursuant to which she acquired the suit property. - 6. The appellant/defendant took control over the suit properties and started collecting rent from the tenants until he decided to demolish the structures and that until when Civil Suit 34/2020 was determined the appellant/defendant had been enjoying quiet possession of the suit property free from any disturbances.

- 7. The trial court entered judgement in favor of the respondent/plaintiff and awarded the reliefs mentioned earlier on. - 8. Being dissatisfied with that decision, the appellants appealed on the following grounds, namely; - - i) The learned trial magistrate erred in law and fact when she found and held that the defendant (appellant) is a trespasser in disregard of the fact that the respondent had sold the suit land to the appellant, thus coming to a wrong decision to the detriment of the appellant. - ii) The learned trial magistrate erred in law and fact finding the appellant a trespasser, when in fact the sale deed placed and handed over possession of the suit property to the appellant thereby coming to a wrong decision to the detriment of the appellant herein. - iii) The learned trial magistrate erred in law and fact in finding that the respondent was the owner of the suit land, in disregard of an existence of a non-rescinded executable sale agreement between the appellant and the respondent.

- iv) The trial learned trial magistrate erred in law and fact when she found that the respondent was the lawful owner of the suit land in disregard of the fact that the appellant was in law estopped/barred from asserting ownership thereof having sold the same to the appellant. - v) The trial learned trial Magistrate erred in law and fact basing on the deed of assignment to determine ownership in disregard of the existence of an earlier sale agreement between the appellant and the respondent, thus coming to a wrong decision to the detriment of the appellant. - vi) The learned trial Magistrate erred in law and fact when she wrongly construed the deed of assignment contrary to the contents and context therein when the same was a reconveyance /re sale agreement to the respondent making the respondent duty bound to recognize the appellant's presence, occupation and use of the suit land. - vii) The learned trial Magistrate erred in law and fact when she failed to realize that the sale by the respondent to one Kasenge Gerald was diffused by the deed of assignment

leaving the sale to the appellant the only prevailing sale agreement for recognition.

- viii) The learned trial Magistrate erred in law and fact when she awarded general damages to the respondent as against the appellant premised on and suits and applications which were in the domain of High court, and premised on allegedly destroyed rentals not backed by pleadings. - ix) The learned trial Magistrate erred in law and fact when she in view of the above grounds, erroneously condemned the appellant to payment of costs to the respondent. - x) The learned trial Magistrate erred in law of fact when she failed/omitted to conduct a fresh trial following the sending back of the suit file by the Grade I magistrate who conducted the initial hearing, but later discovered had no jurisdiction to handle the same. - xi) The learned trial Chief Magistrate erred in law and fact when she found that the sale agreement of the appellant was over taken by the judgment in HCCS NO.533 of 2003 delivered on wherein the respondent was not a party nor was the sale to him in issue thus coming to a wrong decision.

xii) The trial learned magistrate erred in law and fact when she misapplied the doctrine of priorities cum competing equities and their priorities, in disregard of the doctrine of bonafide purchaser thus coming to a wrong decision.

## *Representation;*

- 9. The appellant was represented by Counsel Abbas Bukenya of Kabega Bogezi, Bukenya advocates whereas there was no representation from the respondent. Both Counsel proceeded by way of written submission which I have considered in the determination of this appeal. - 10. Counsel for the appellant argued grounds 1,2,3,4,5,6,7,11 and 12 jointly, grounds 8 and 9 separately and abandoned ground 10 - 11. The appellant seeks orders setting aside the judgment and orders of the court below, the appellant be declared not a trespasser over the suit land, a declaration that the deed of assignment was in law a re-purchase of the suit property to the respondent following which the respondent was simultaneously duty bound to observe and recognize the respondent's sale to

the appellant, declare the appellant the lawful owner of the suit land, this court maintains the appellant in physical possession, and use and the respondent pays the costs of the appeal and of the lower court.

## *Duty of the appellate court;*

- 12. This being a first appeal, this court is under an obligation to re-hear the case by subjecting the evidence presented to the court below to a fresh scrutiny and re-appraisal before coming to its own conclusion. *(See***;** *Nanensio Begumisa and three Others vs Eric Tiberaga SCCA 17 of 2000)* - 13. It is a well-settled principle of law that on a first appeal, the parties are entitled to obtain from the appellate 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, the nature of this duty was put more appropriately in **Selle vs Associated Motor Boat Co. [1968] EA 123**. - 14. An appeal is by way of retrial and the principles upon which this Court acts in such an appeal are well settled, briefly put they are; *that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect*. - 15. In particular, this Court is not bound necessarily to follow the trial judge's findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.

*(See; Abdul Hameed Saif Vs Ali Mohamed Sholan (1955), 22 E. A. C. A. 270)*

## *Power of the appellate court;*

16. Section 80(i) of the Civil Procedure Act Cap.71 grants the High Court appellate powers to determine a case to its finality, providing that subject to such conditions and limitations as may be prescribed in the appellate court shall have the power to determine a case finally. The appellate court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the Act on courts of original jurisdiction in respect of suits instituted in it.

# *Analysis and determination of grounds 1,2,3,4,5,6,7,11 and 12;*

- *17.* In arguing grounds1,2,3,4,5,6,7,11 and 12, counsel submitted that both the appellant and the respondent know each other and page 5 of the record of proceedings is to the same effect. - *18.* Counsel further submitted that during trial a sale agreement (DEX1) executed between the appellant and the respondent on the 22nd march 2003 which agreement was witnessed by Ssebwato peter (DW2) formed the basis of the appellant/defendant's possession of the suit property and started collecting rent from the premises on the suit land. - *19.* Counsel for the appellant further submits that the sales agreement (DEX1) being challenged by the respondent, was tendered in as the appellant's evidence and to the appellant's dismays the trial chief magistrate under weighed the

importance of the said sales agreement and concluded that it was over taken by the judgement in HCCS No. 533 of 2003.

- *20.* Counsel for the appellant submitted that the trial magistrate relied on the decision in HCCS No.533 of 2003 to reach to a finding that the appellant's interest in the suit property was subject to the said decision, however it should be noted that the appellant was not a party to HCCS NO.533 OF 2003 and it was a wrong misconstruction of facts to hold that the appellant's interest in the suit property was extinguished by the decision in the said suit. - *21.* Counsel for the appellant further submits that the deed assignment dated 18th July 2017 that was signed between Kasenge Geralad and the respondent was later in time and the same couldn't take precedent and override the sales agreement dated 22nd March 2003 (DEX1) which was signed between the appellant and the respondent leading the trial chief magistrate to an erroneous decision. - *22.* It was the submission of counsel for the appellant that the said sales agreement dated 14th February 2003 between Kasenge Gerald and the respondent was never exhibited in

court and it was erroneous for the learned chief magistrate to rely on the un exhibited document to reach to a finding that there was a prior sale transaction between Kasenge Gerald and the respondent.

### *Respondent's submissions;*

- *23.* Counsel for the respondent submits that the said sales agreement dated 22nd March 2003 between the appellant and the respondent was over taken by the decision in Civil Suit No.533 of 2003 since the decision vested the suit land to one Kasenge Gerald as the lawful owner. - *24.* Counsel for the respondent further submitted that there was no omission on the part of the learned trial chief magistrate relying on the doctrine of priority regarding the two sales agreements over the same suit land. - *25.* The learned trial chief magistrate relied on the sales agreement dated 14th February 2003 executed between the respondent and Kasenge Gerald to have taken precedent over the sales agreement dated 22nd March 2003 since the doctrine of priority over equitable interest is to the effect that the first in time prevails.

- *26.* Counsel for the respondent further submits that the decision in Civil Suit No.533 of 2003 was a judgement in rem by nature and it was binding on all parties to the suit and third parties who were not party to the suit as held by court in the decision of **Eleazer Masereka And 3 Ors Vs Augustine Mbuiraghe and Others Civil Suit No.20 Of 2007** - *27.* Counsel for the respondent further submits that the appellant was accorded the right to be heard in Civil Suit No.533 of 2003 when he applied for review of the same decision via Misc. Application No.27 of 2005 which was dismissed by court and that the trial magistrate rightfully declared the respondent as the owner of the suit land via the assignment deed and we maintain that grounds 1,2,3,4,5,6,7,11 and 12 be answered in the negative.

### *Submissions in rejoinder;*

28. Counsel for the appellant in rejoinder submits that the appellant was never a party to Civil Suit No.533 of 2003 and filing the review application neither made him a party to the said suit. Counsel further relied on the court of appeal decision

in **Hilda Mutashwera Vs Constance Ryngombe CACA No.181**

**Of 2015** where it was held that an order of court is only binding to the litigants not the whole world.

- 29. Counsel further submitted that the doctrine of priority in equitable interests could not apply in the case at hand since there was no way the appellant could have known of Kasenge Gerald's prior interest in the suit property and counsel relied on the decision in **Philips vs Philips(1862)4** where it was held that where, however the competition(competing interests) is between an equitable interest and a mere equity, the position is analogous to that between a legal estate and an equitable interest, the equitable interest overrides a mere equity. - 30. It is the submission in rejoinder that the appellant qualified to be a bonafide purchaser since Kasenge Gerald never took possession of the suit land and there was no way the appellant could have known of the existing prior interest in the suit land and that it was erroneous to rule that Kasenge Gerald's interest took priority over the appellant's interest.

#### *Analysis;*

31. The gist of grounds,1,2,3,4,5,6,7,11 and 12 take me to the following legal questions, whether the sale of the suit land

between the respondent and Kasenge Gerald took priority over the sale between the appellant and the respondent? Whether the decision in Civil Suit No.533 of 2003 was binding onto the appellant? Whether the appellant can be referred to as a bonafide purchaser?

- 32. As to whether the sale between the respondent and Kasenge Gerald took priority over the sale between the appellant and the respondent or not, counsel for the appellant submitted that there was no copy of the sales agreement executed between the respondent and Kasenge that was exhibited in court and that it was erroneous for the trial chief magistrate to infer the sale from the decision in Civil Suit No. 533 of 2003 which the appellant wasn't party to. - 33. I will draw reference to page 11 of the record of proceedings which is item 12 on the record of appeal index, during the cross examination of the appellant/defendant(DW1) by counsel, the appellant cleared stated how from the record he knew Kasenge Gerald as the first buyer further at page 12 of the record during the cross examination of Ssebatwo peter (DW2) who witnessed the sales agreement between the

appellant/defendant and the respondent rightly stated that the appellant informed him how the plaintiff (respondent in the instant) appeal had earlier sold the suit land.

- 34. The above factors take to the understanding that indeed there existed a prior sale of the suit land before the appellant had purchased the same. The fact that the appellant mentioned that he knew Kasenge Gerald as the first buyer, that means Kasenge Gerald had purchased the same before the appellant. The appellant's argument that the trial chief magistrate relying on the unexhibited sales agreement and basing on the decision in Civil Suit No.533 to infer that there existed a prior sale of the suit land between the respondent and Kasenge Gerald is misplaced. - 35. The perusal of the record and specifically the testimony of the appellant/defendant and the witnesses as referred earlier even without considering whether the sales agreement was exhibited or not and without looking at the decision in Civil Suit No.533 of 2003 would take a prudent judicial officer who holds an aim of ensuring that ends of justice are met in all cases to a finding that there was a prior sale of the suit land to Kasenge Gerald before the appellant had purchased the same.

- 36. In situations where there are two competing equitable interests over suit property, the law of equity states that the prior equitable interest prevails since equitable interests prevail on the rank of creation*. (See; Kari & Others Vs Ganarani (1997)2 NWRR Page 380 and Hanbury and martin modern equity (sweet and maxwell) at page 27.* - 37. When the law of equity is applied to the instant case, it is not doubtable that there existed a prior sale of the suit land before the appellant had purchased the same suit land and that Kasenge Gerald was the first owner of the suit land before the appellant had purchased the same. - 38. Kasenge Gerald is said to have purchased the suit land on the 14th of February 2003 as per page 2 of the trial chief magistrate's decision which is item 2 on the record of appeal index whereas the sales agreement (DEX1) between the appellant and the respondent is dated 22nd March 2003, that impliedly means that the transaction between Kasenge Gerald


and the respondent took priority over the sale between the appellant and the respondent.

- 39. As to whether the decision in Civil Suit No.533 of 2003 was binding onto the appellant or not? It is the position of law that an order of court is binding on the parties to the said suit, I agree with the decision in **Hilda Utashwera vs Constance Ryanombe (supra)** where the court of appeal held that an order of court is only binding to litigants and not to the whole world and court cited **Housing Fiancé Bank Ltd And Ors Vs Edward Musisi By The Court Of Appeal Misc. App No.158 Of 2010** as referred to by counsel for the appellant in his submissions in rejoinder. - 40. However, in the instant case, the fact that the order in Civil Suit No.533 did not bind the appellant cannot be the basis of reaching to the finding that there was no prior sale of the suit land before the appellant had purchased the same. - 41. Even without looking and considering the decision in Civil Suit No.533 of 2003, the record of proceedings and specifically the testimony of the appellant/defendant suggests


that there was a prior sale of the suit land and that Kasenge Gerald was the 1st owner of the suit land.

- 42. Therefore, ruling out the fact that the orders in Civil Suit No.533 of 2003 were not binding onto the appellant since he was not a party to the said suit does not substantially affect the finding that there existed a prior interest before the appellant had purchased the suit land, the main question is as to priorities as to equitable interests. - 43. As to whether the appellant can be referred to as a bonafide purchaser or not? Counsel for the appellant in rejoinder submitted that the appellant is a bonafide purchaser who did not know of any existing interests in the suit land. - 44. It is a re-known principle of law that the defence of a bonafide purchaser for value without notice is available to parties of registered land not unregistered land. - 45. I will draw reference to the decision in the case of *Hajji Abdu Nasser Katende vs Vithalidas Haridas & Co. LTD* **Court of Appeal (Civil Appeal NO. 84 of 2003)** this Court while discussing the doctrine of a *bonafide* purchaser for value without notice stated the position of the law as follows at

pages 21-22 of the lead Judgment of M. Mukasa –Kikonyogo DCJ;- *"It suffices to describe a bonafide purchaser as a person who honestly intends to purchase the property offered for sale and does not intend to acquire it wrongly. For a purchase to successfully rely on the bonafide doctrine as was held in case of HANNINGTON NJUKI VS WILLIAM NYANZI H. C. C. S NO. 434 /1996 must prove that;*

*(1) he holds a certificate of title*

*(2) he purchased the property in good faith*

*(3) he had no knowledge of the fraud*

*(4) he purchased for valuable consideration*

*(5) the vendors had apparent title*

*(6) he purchased without notice of any fraud*

*(7) he was not party to the fraud*

46. *A bonafide purchaser of a legal estate for value without notice has absolute, unqualified and answerable defence against the claims of any prior equitable owner. The burden to establish or prove the plea lies on a person who sets it up. It is a single plea and is not sufficiently*


## *made out by proving purchase for value and leaving it to the opposite party to prove notice if he can."*

- 47. It appears clearly to me that the doctrine of *bonafide purchaser for value without notice* is a statutory defence available only to the person registered as proprietor under the registration of titles Act. It is not an equitable remedy although its history stems from the common law. - 48. In the instant case, the record of appeal, pleadings at the lower court and the submissions of both parties take me to a fact that the suit land is unregistered land and the appellant has never had a legal interest in the same land, both parties are claiming title under equity. - 49. I do not agree with the submissions of counsel for the appellant that the defence of bonafide purchaser was available to the appellant in this case. - 50. I am therefore in agreement with the learned trial chief magistrate's position, therefore grounds 1,2,3,4,5,6,7,11 and 12 are answered in the negative.

## *Determination of grounds 8 and 9;*

- 51. Counsel for the appellant submitted that taking into account the submissions of grounds 1,2,3,4,5,6,7,11 and 12, it is to that effect that the learned trial chief magistrate was wrong in law and fact to award general damages and costs to the respondent. - 52. In response, counsel for the respondent submitted that the learned trial magistrate was right to award general damages and costs to the respondent to put right the loss he suffered. - 53. The learned trail chief magistrate in her judgement at page 10 which is item 2 of the record of appeal index ordered that UGX 5,000,000 is awarded to the plaintiff/respondent as general damages and costs of the suit to be borne by the defendant. - 54. I will draw reference to the decision in *Catholic Diocese of Kisumu vs. Sophia Achieng Tete Civil Appeal No. 284 of 2001 [2004] 2 KLR 55* court set out the circumstances under which an appellate court can interfere with an award of damages in the following terms: *"It is trite law that the assessment of general damages is at the discretion of the trial court and an appellate court is not*

*justified in substituting a figure of its own for that awarded by the Court below simply because it would have awarded a different figure if it had tried the case at first instance. The appellate court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles, (as by taking into account some irrelevant factor leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate."*

- 55. The basis upon which the trial magistrate awarded the general damages was that the appellant/defendant was a trespasser on the suit land and that he is the person who destroyed the structures on the suit land, therefore I don't find the basis pegged on wrong findings as the appellant alleges. - 56. That being the case, after due consideration of the evidence on record and provisions of section 98 of the civil procedure act and section 33 of the judicature act, I find an

award of shs *5,000,000/= fair* and adequate as general damages.

- 57. I am of the view that the allegation of miscarriage of justice is misplaced and only an attempt to pervert the cause of justice by the appellant. - 58. The conclusion of this court is that the trial chief magistrate court correctly arrived at its conclusion when it decided in favor of the respondent/plaintiff in its judgement. - 59. In the final result, this appeal fails and the same stands dismissed with no order as to costs.

**I SO ORDER**.

## **NALUZZE AISHA BATALA**

**JUDGE**

**27th/05/2024**