Lucky v Musana (Civil Appeal 6 of 2021) [2024] UGHC 1044 (17 October 2024)

## **THE REPUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA AT FORT PORTAL**

## **CIVIL APPEAL NO. 006 OF 2021**

## **(ARISING FROM FPT – 00 – CV – CS – 0097 OF 2018)**

5 **LUCKY HENRY ::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT**

## **VERSUS**

# **MUSANA MOSES :::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT BEFORE: HON. JUSTICE VINCENT WAGONA JUDGMENT**

#### 10 *Introduction:*

The appellant being aggrieved with the decision of His Worship Mwesigwa Dan, Magistrate Grade at Fort Portal Chief Magistrate's Court dated 11th March 2021 lodged this appeal to this court seeking an order to set aside the decision of the trial court and grant the orders sought in the plaint.

#### 15 *The History:*

Mr. Lucky Henry commenced civil suit no. 097 of 2018 against Mr. Musana Moses seeking a declaration that he is the owner of the suit land situate at Kyogya Cell, Mugusu Town Council, Kabarole District and the house thereon, a declaration that the defendant is a trespasser on the suit land, an order of vacant possession against 20 the Respondent, a permanent injunction restraining the defendant and his servants, agents or assignees and all those claiming title under the Respondent from further


**1 |** P a g e

trespass on the suit land or laying a claim thereof, an award of general damages and costs of the suit.

It was contended by the appellant that he acquired the suit land by way of purchase from the Respondent on 23th May 2018 at an agreed consideration of Ugx 5 10,000,000/= which he paid in cash and an agreement was executed to that effect. It was averred that the defendant had asked for three months within which to vacate the suit and subsequently refused hence the suit. The defendant was served and he never filed a defense. Court made an exparte order allowing the appellant to proceed exparte. After due consideration of the evidence, the trial magistrate found that the 10 appellant failed to prove his claim on a balance of probabilities and dismissed the suit. The appellant being aggrieved lodged this appeal.

## *Grounds of appeal:*

The appellant framed five grounds of appeal thus;

- 1. That the learned trial magistrate erred in law and in fact when he failed to 15 properly evaluate the evidence on record and hence held that there was a money lending transaction whereas not hence occasioning a miscarriage of justice to the appellant. - 2. That the learned trial Magistrate erred in law and fact when he held that the appellant did not buy the suit land contrary to the evidence on record hence 20 occasioning a miscarriage of justice to the appellant. - 3. That the learned trial Magistrate erred in law and in fact when he failed to evaluate the evidence on record and decided in favour of the appellant yet there was no evidence on record contesting the appellant's claim hence occasioning a miscarriage of justice to the appellant.


- 4. That the learned trial magistrate erred in law and fact when he failed to record the locus in quo proceedings thereby occasioning a miscarriage of justice to the appellant. - 5. That the learned trial Magistrate erred in law and fact when he relied on 5 evidence which was not on record thereby arriving at a wrong finding which caused the appellant a miscarriage of justice.

#### *Representation and hearing:*

The appellant was represented by Mr. Robert Lulleti of M/s Mugabe- Lulleti & Co. Advocates. The Respondent was served with the memorandum and a hearing notices

10 and never entered appearance. Thus I will consider this appeal exparte. Mr. Lulleti addressed me on the merits of the appeal through written submissions which I have considered.

#### *Legal Arguments:*

Learned counsel argued grounds 1, 2, 3 & 5 concurrently and submitted that the 15 appellant led evidence that he bought the suit land at shs 10,000,000/= and paid the same in full. That evidence of purchase was corroborated with PEX1, the sales agreement and the testimony of PW2 who was present during the said sale. That evidence of the appellant was not contested as such it is taken to be admitted.

Learned counsel further contended that parties are bound by their pleadings. That 20 the appellant did not in his pleadings or evidence allude to money lending. It was contended that the trial magistrate thus erroneously held that this transaction was a money lending one and not sale since there were no pleadings to that effect. That court was called upon to determine trespass on the suit land and the trial magistrate erred in law when he considered and took into facts which were not pleaded or


**3 |** P a g e

supported by the evidence on record. He this asked court to allow grounds 1, 2, 3 & 5.

With regard to the 4th ground, Mr. Lulleti contended that the trial magistrate did not record the locus proceedings contrary to regulation 3 of practice direction no. 1 of

5 2007. It was pointed out that no sketch map was drawn or evidence record and that the failure to do so has the effect of rendering the judgment of the trial court a nullity. He asked court to allow the appeal and the prayers it seeks.

## *Duty of this Court:*

This being a first appeal, my duty is to subject the evidence at trial to a fresh and 10 exhaustive scrutiny and a re-appraisal before reaching my own decision. I will make due regard to the fact that I did not see the witnesses testify to observe their demeanor. (*See Fr. Nanensio Begumisa & amp; 3 others Vs. Eric Tiberuga, SCCA No. 17 of 2014 [2004] KALR 236)*

## *Consideration of the appeal:*

- 15 The grounds of appeal will be considered as presented. In this case, the appellant's main contention was about ownership of the suit land. The plaintiff who testified as PW1 informed court that he bought the suit land on the suit land located atKyogya Cell, Mugusu Town Council, Kabarole District at shs 10,000,000/= (Ten Million Shillings) from Musana Moses. That he gave the defendant/respondent three months - 20 to vacate the suit land. That he later declined to vacate the same. The agreement was admitted as PEX1 and the demand by his lawyer as PE2. His evidence was supported by PW2who was presentand who endorsed on the agreement of sale.


The trial magistrate visited locus on 21st January 2021 and in locus notes, he observed that the house on the land was incomplete. He also observed that from the area chairperson who was invited who informed him that the transaction between the appellant and the Respondent was a money lending transaction and not sale of 5 the suit land. The former chairperson who also witnessed the agreement also indicated that what is indicated in the agreement is not what parties meant. It was on the said basis that the trial Magistrate observed that the sale was not sale of the suit land but a money lending transaction.

I have considered the evidence on record and locus notes. It is not disputed by the 10 appellant that the structure on the suit land was an incomplete structure. In the agreement of sale which was admitted as PEX1, the Respondent was to vacate the suit land within three months from the date of execution of the agreement. However, the house was not complete which the Respondent could not vacate as per the agreement.

15 Taking into account the evidence on record and the observation by the trial Magistrate at locus, I am inclined to agree with the finding of the trial Magistrate that the transaction in issue was a money lending transaction and not a sale. It is inconceivable as observed by the trial Magistrate how the Respondent could be given three months to vacate an incomplete structure. I therefore find that the learned trial 20 Magistrate properly evaluated the evidence and arrived at a proper finding. Therefore, grounds 1, 2, 3 & 5 fail.

In the same vein, the 4 th ground also fails. There are locus notes of the trial Magistrate.


This appeal therefore fails and it is accordingly dismissed with no orders as to costs since it was not defended by the Respondent.

I so order.


5 Vincent Wagona **High Court Judge FORT-PORTAL DATE: 17/10/2024**