Kyobe v Nalweyiso and Another (CIVIL APPEAL NO. 75 OF 2023) [2024] UGHC 1208 (26 September 2024)

Full Case Text

### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA **LAND DIVISION**

### CIVIL APPEAL NO. 75 OF 2023

### (ARISING OUT OF CIVIL SUIT NO. 064/2013 CHIEF MAGISTRATES **COURT NABWERU)**

# KYOBE ARTHUR ::::::::::::::::::::::::::::::::::::

#### VERSES

### 1. NALWEYISO BETTY

# 2. SENKALI PASKALI :::::::::::::::::::::::::::::::::::: BEFORE: HON. LADY JUSTICE NABAKOOZA FLAVIA. K RULING.

- 1. This is an appeal from the decision of the magistrate Grade 1 of Nabweru, Her Worship Mbabazi Edith delivered on 29/03/2018. - 2. The 1st Respondent sued the Appellant, the 2nd Respondent and two others (Lubega Alozio and Kiwanuka Sentamu Salongo) jointly and severally for a permanent injunction restraining the defendants or their agents from further trespass and destruction of the Plaintiff's land; a rescission of all the agreements that were entered in respect of the suit land which was matrimonial property; a declaration that the Plaintiff's rights in the suit land were affected and the suit land rightly belongs to her and her children as family land and that it was never in any way lawfully removed from them; general damages for trespass, causing a public fracas, anguish, inconvenience, and fraudulent misrepresentation by the Defendants, costs of the suit and any other and further relief that the court would deem appropriate. - 3. It was the plaintiff/ $1^{st}$ Respondent's case that she was married to the $3^{rd}$ Defendant (Kiwanuka Sentamu Salongo). That in 1988, they acquired the suit land measuring 30 meters by 39 meters from a one Francis Kiggundu and started using it as customary occupants by building a house. That both the 1st Respondent and Kiwanuka Sentamu Salongo developed and contributed to the maintenance of the suit land. That later, the 3rd Defendant (Kiwanuka Sentamu Salongo) left the 1st Respondent on the suit land together with their 4 children. That on the 29/07/2000, the 3rd Defendant sold the suit land to the 4th Defendant's wife (the Appellant) a one

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Nakiranda Amina without knowledge and consent of the 1st Respondent. That Nakiranda Aminah embarked on evicting the plaintiffs/1st Respondent together with her children and destroyed the property thereon; and constructed a house thereon, ignored meetings held between her, the plaintiff and local authorities. That the Plaintiff/1st Respondent then sued Nakiranda Amina and the 3rd Defendant (Kiwanuka Sentamu Salongo) in the Land Tribunal at Kampala vide Land Claim No. 55 of 2005 and obtained judgment in her favor.

- 4. That despite the judgment and injunctions, Nakiranda Amina continued occupying the suit land and putting developments thereon. That after her death, the 4th Defendant/ Appellant sold the suit land to the 1st Defendant (Lubega Alozio) on 22/07/2008. That the purchaser was aware of the disputes on the suit land and was also advised by Police against dealing in the land until the matters were settled. That the 1st Defendant also purported to sell a portion of the suit land to the 2nd Defendant (Senkali Paskali) who descended on the suit land and started using the structures that were left by the Appellant's deceased wife. - 5. The 1st Defendant (Lubega Alozio) and the 2nd Defendant/ 2nd Respondent (Senkali Paskali) filed their respective written statements of defence unlike the 3rd defendant and Appellant herein/4th Defendant who did not file any written statement of defence. - 6. The 1st Defendant contended that he bought the suit land from the Appellant/ Kyobe Arthur who was a husband of the late Amina Nakiranda. That the Appellant's wife has also bought the disputed land from Salongo Ssentamu, the Plaintiff's husband. That at the time he bought the suit land, it was not in occupation of the plaintiff but Kyobe Arthur hence being a bonafide purchaser without notice and he has since sold the land to the 2nd Defendant/ Senkali Paskali. - 7. The 2nd Defendant on his part denied the allegations of fraud and illegality. He contended that he is the owner of the suit land having purchased it from the 1st Defendant.; and that he is a bonafide purchaser of the suit land without notice. - 8. During trial, the following were the issues for resolution; - - Whether the disputed property forms part of matrimonial property/ family $\dot{i}$ . property within Section 39(1)(c) of the Land Act Cap 227? - Whether or not the defendant's actions in respect of the suit land were lawful? $\dddot{1}$ . - iii. What remedies are available?

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- 9. In resolving the above issues, the learned trial magistrate found in favour of the 1st Respondent. She declared her as the rightful owner of the disputed property; that the Defendants are trespassers except for DW2; that the sale between the 1st, 2nd and 3rd Defendants were invalid, null and void; that the 1st, 3rd and 4th Defendants do return the purchase price to the 2nd Defendant; and that the 1st, 2nd, and 3rd defendants pay to the Plaintiff general damages of 10,000,000/-, among others. - 10. The Appellant being dissatisfied with the above decision, appealed to this court on the following grounds; - 1. That the learned Magistrate erred in law and fact in holding that the Appellant is a mere trespasser on the suit land in absence of evidence to prove the same. - 2. That the learned Magistrate erred in law and fact when she decided that the 1st Respondent is the rightful owner of the suit land and at the same time decided that the suit land is a residential holding. - 3. That the learned Magistrate erred in law when she failed to properly assess the evidence on record concerning the different sale transactions involving the suit land thus leading to a wrong decision. - 4. That the learned Magistrate erred in law and fact when she opted not to conduct a locus visit thus occasioning a miscarriage of justice. - 5. That the learned Magistrate erred in law and fact when she ordered that the Appellant be one of those to refund the purchase price to the 1st Respondent and by deciding that the 2nd Respondent is not culpable for the refund of the purchase price. - 6. That the learned Magistrate erred in law and fact when she awarded the 1st respondent excessive general damages worth 10,000,000/-. - 11. Representation: The Appellant was represented by Counsel Norah Matovu, the 1st Respondent was represented by Counsel Nabunya while the 2nd Respondent was self-represented. Only the Appellant and the 1st Respondent filed written submission. - 12. I have perused and appreciated the background of the appeal as per the record. Before going into its merits, I find it necessary to first establish its competence. - 13. It was Counsel for the 1st Respondent's submission that service was effected on the 3rd and 4thdefendants who chose not to file their respective written statements of defense to the suit. That Counsel for the plaintiff prayed for the matter to proceed ex parte against the 3rd defendant and Appellant/4th Defendant. That the 3rd

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Defendant appeared once in court while the Appellant/4th Defendant appeared several times, an indication that they were effectively served. He added that court entered a default judgment against the 3rd and 4th Defendants.

14. It was Counsel for the Appellant's argument that the trial Magistrate decided in the 1st Respondent's favor that there was a marriage between the 1st Respondent and the 3rd Defendant because the 3rd Defendant did not file a defence to prove otherwise. That the Appellant had been initially invited to appear in court as a witness of the 1st Defendant to whom he had sold the suit land after the demise of Amina Nakiranda.

### **Resolution by Court**

- 15. The right of appeal is a creature of statute and must be guided expressly by statute (see Hamam Singh Bhogal T/a Hamam Singh & Co. v. Jadva Karsan (1953) 20 EACA 17). This means that where a right of appeal has not been spelt out, an Appellant has no locus in any appeal lodged. This was equally submitted on by Counsel for the Appellant. - 16. I have perused the record of the lower court in CS No. 64 of 2023 but, did not find any pleading/ written statement of defence filed by the Appellant. Under page 22 of the record of proceedings shows that Counsel Mulindwa told court that the 3rd Defendant and 4th Defendant/Appellant were effectively served but did not file their respective written statements of defence hence prayed to proceed ex parte against them. The prayer was granted and a default judgment was entered against them and matter set down for hearing. - 17. Under Order 9 rule 3 (6) of the Civil Procedure Rules, the filing of the defense is treated as a submission, by the defendant, to the jurisdiction of the Court. Therefore, the implication of the Appellant/ $4th$ defendant's failure to file a defence is that he never submitted to the jurisdiction of the Chief Magistrates court Nabweru vide CS No. 64 of 2013. - 18. The record also shows that following the closure of the hearing, the lower court delivered a final judgment on the matter. Despite not submitting to the jurisdiction of the lower court, the Appellant lodged the instant appeal disputing the findings of that court. - 19. It is trite law that where a party does not file a defence and judgment is passed against him/her, recourse is under Order 9 rule 12 of the Civil Procedure Rules. The right of appeal against an ex parte decree under Section 67(1) of the Civil

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Procedure Act Cap.282 is only for appeals where a Defendant filed a defence, and therefore submitted to the jurisdiction of the trial court but did not appear for hearing. This is not the case here.

20. Thus, while rejecting a similar appeal in Agasitafa Kiganila Vs. Kagenda Haruna HCCA No. 46/2011, Mugenyi J., observed that:

The question then would be what is the import of section 67(1) of the CPA... It is my considered view that the general right of appeal prescribed in section 67(1) of the CPA should be construed together with the appropriate rules of procedure applicable to the CPA, which are the Civil Procedure Rules. As propounded hereinabove, the said rules provide an elaborate procedure available to a defaulting party that wishes to have its matter heard and determined inter parte, such as the present appellant. If such party sufficiently proves that they were prevented for good reason from attending court the ex parte judgment would be set aside. However, where, as appears to be the case presently, a defendant simply stays away from court proceedings despite being present when the matter was fixed for hearing, an attempt by such party to be heard on appeal would appear to me to be an abuse of court process....

- 21. Similarly, in the case of Komax Motor Vehicle Company Limited and 2 Others, (HCMA No. 15 of 2023), my learned brother Okello J observed that a Defendant who does not file a written statement of defence cannot be heard. I am persuaded by the above authorities. - 22. In this case, the Appellant filed no defence to the 1st Respondent's claim in CS No. 64 of 2013. Therefore, being a defaulting party, he has no right of appeal. Consequently, the instant appeal is an abuse of court process; and is hereby dismissed with costs.

Signed, dated and delivered at Kampala this. 26 day of September 2024.

Nabakooza Flavia. K