Mafabi Tom v Moses Musambwa (Civil Appeal No. 70 of 2023) [2025] UGHC 478 (2 July 2025)

### **THE REPUBLIC OF UGANDA**

### **IN THE HIGH COURT OF UGANDA HOLDEN AT MBALE**

### **CIVIL APPEAL NO. 070 OF 2023**

#### **(ARISING FROM MBALE LAND CIVIL SUIT NO. 002 OF 2022)**

**MAFABI TOM :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT**

#### **VERSUS**

### **MOSES MUSAMBWA :::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

### **BEFORE: HON. JUSTICE LUBEGA FAROUQ**

#### **JUDGMENT**

### 1. **Introduction**

2. The Plaintiff/Appellant instituted Land Suit No. 002 of 2022 against the Defendant/Respondent for a declaration that the suit land belongs to the Plaintiff, a declaration that the defendant is a trespasser, permanent injunction, eviction order, general damages and costs of the suit.

### 3. **Background**

- 4. *The Appellant's case:* - 5. The Appellant's claim in the lower court was that the suit land situated at Mangho upper, Busamaga Mbale City measuring about ¼ an acre bordering Hebert Gidudu in the East, Fatuma in the South and Mangho Road to the main road to Wanale in the North contains houses belonging to the Respondent and he is in occupation. - 6. The Appellant contended that he acquired the suit land by way of purchase between 2000 to 2011 from late Dominic Mutenyo at Ugx: 12,000,000/= and an agreement was executed to that effect. That upon acquiring the said land, the Appellant took possession by way of farming and later established a home on it were he partly resides. - 7. The appellant further alleged that in the year 2015, the Respondent who is a son to the Appellant without the Appellant's/Plaintiff's consent entered on part of the Appellant's land and constructed a semi-permanent house and even dag a foundation and poured building materials and started a

permanent house. That the Appellant issued verbal warnings stopping him from building on the suit land but he insisted. He insists that the suit land should be family share and yet the authority to distribute the land and other properties is with the Appellant.

- 8. *The Respondent's case:* - 9. The Respondent/Defendant in his written statement of defence denied the contentions in the plaint and averred that, he is a biological son of the Appellant and that, upon his circumcision in 2000, he was given the suit land by his father (Appellant). That he immediately started using the land for cultivation in 2005 and in 2015, he constructed his first temporary house on the suit land and started living on the same without any interruption from anyone.

# 10. **Issues for the trial court's determination**

- (a) Who is the rightful owner of the suit land? - (b) Whether the suit land measuring 38 by 75 feet was gifted to the defendant by the plaintiff? - (c) Whether the defendant is a trespasser on the suit land? - (d) What remedies are available to the parties? - 11. The trial magistrate found that the Respondent is the rightful owner of the suit land and stated that the Respondent is not a trespasser on the same. - 12. The Appellant was dissatisfied with the above decision hence, this appeal.

# 13. **Grounds of Appeal**

- (a) That the trial magistrate erred in law and fact when she held that the suit land belongs to the Respondent hence occasioning a miscarriage of justice. - (b) That the learned trial magistrate erred in law and fact when she ignored the evidence of the Appellant that the suit land is a family property and believed the uncorroborated evidence of the Respondent as a result reached a wrong decision.

- (c) That the decision of the trial court is tainted with fundamental misdirection and a non-direction in law and in fact as a result led to a miscarriage of justice. - 14. He prayed that the appeal be allowed, the judgment and orders made by the lower court be set aside, judgment be entered for the Appellant and the costs of this appeal and those of the lower court be awarded to the Appellant.

## 15. **Legal Representation**

- 16. Counsel Mwambu Thomas represented the Appellant and Nakirijja Sylvia represented the Respondent. - 17. This Appeal proceeded by way of written submissions and all parties complied. I have considered them in the determination of this judgment.

# 18. **Duty of the first appellant.**

- 19. This court takes note that it is the first appellate with the duty to evaluate all the evidence on the court record and come to its own conclusion but without isolating the trial court's judgment and also considering the fact that it did not see the demeanor of the witnesses. (*See: Moses Bogere V. Uganda SC Crim. App. No. 10 of 1997 and SC Crim. Appeal No. 03/2013 Akbar Hussein Godi V. Uganda)* - 20. In **Kifamunte Henry V. Uganda Criminal Appeal No.10 of 1997,** the Supreme Court of Uganda held that-

*"It is the duty of the first appellate court to rehear the case on appeal, by reconsidering all the materials on the trial court, and make up its own mind. The court stated, failure by the first appellate court to evaluate the material as a whole constitutes an error in law."*

## 21. **Analysis of court**

22. Grounds No. 1 and 2 will be resolved together whereas Ground No.3 will be resolved separately as below.

- 23. Ground No.1: *That the trial magistrate erred in law and fact when she held that the suit land belongs to the Respondent hence occasioning a miscarriage of justice.* - 24. Ground No.2: *That the learned trial magistrate erred in law and fact when she ignored the evidence of the Appellant that the suit land is a family property and believed the uncorroborated evidence of the Respondent as a result reached a wrong decision.* - 25. I have carefully reviewed the lower court record and noted that the Appellant and the Respondent are father and son. The Appellant's case in the lower court stemmed from his land which the Respondent claimed was given to him by his father, (the Appellant). Given that back ground, I will discuss the law on *gift intervivos* in relation to the evidence on the court record as below. - 26. A gift is the voluntary and gratuitous transfer of property. The donor must not draw any personal benefit, either directly or indirectly. The gesture must be entirely gratuitous and a reflection of liberal intent on the part of the donor in regard to the donee. The donor's intent in transferring title to the donee must be immediate, unequivocal and irrevocable. (*See: Onyuta Willy and two others V. Akena Lot Lamex Civil Appeal No. 89 of 2019)* - 27. The conditions that must be met for *a gift inter vivos* to be valid were reechoed in **Onyuta Willy and two others V. Akena Lot Lamex (Supra)** and these includes-

*"(i) The individual making the transfer actually must intend to make a gift; it must be demonstrated that the donor's objective was to make a gift when he or she transferred the property; (ii) The donee must have accepted the gift made to him or her; the donee must agree to the transfer of property that the donor made in his or her favour. In general, such acceptance is presumed once the third condition is met; i.e.*

*(iii) The delivery of the property that is the subject-matter of the transfer by the donor to the donee. This delivery confirms the donor's intent to make the gift. There will be no gift if the donor is not competent to give and / or the donee competent to receive. The moment in time when a gift takes effect is dependent on the nature of the gift; the statutory provisions governing the type of gift and the steps taken by the donor to effectuate the gift."*

- 28. The judge further noted that- *"Equity will not perfect an imperfect gift. In legal terms, this means that equity will not regard the beneficial interest as having been transferred to the intended donee before legal title does so, except where it would be unconscionable for the donor to revoke the gift they purported to make. Courts will otherwise refuse to intervene to perfect a gift that is not complete."* - 29. In **Kamadi Lugonvu V. Sauda Nandawula & Others Civil Appeal 135 of 2014 [2019] UGCA 400**, the Court of Appeal held that *"the issue of a gift inter vivos requires establishing the instrument used to transfer the property."* - 30. In this case, DW1 testified that his father gave him the suit land in 2005 after his circumcision. That at the time, the land was being used by Wabwoga for cultivation of tomatoes. He started using the suit land in 2010 by planting matooke. In 2013, he constructed a temporary house which he removed in 2015 and constructed a permanent house. - 31. DW1 testified in chief that the only person who was present when he was being given the suit land by his father was DW3. However, DW3 testified that, he was not present when the Appellant was giving the Respondent the suit land. Hence, the two contradicted each other in that regard. - 32. DW3 further stated that, when his father was giving him his piece of land, he showed him the suit land as the land he was going to give the Respondent and that he indeed, gave it to him.

- 33. The Appellant who testified as PW1 on the other hand, denied giving the Respondent the suit land. He stated that some time back, he left and went to Kenya but when he came back, he found when the Respondent had constructed a temporary structure on the suit land. He asked him to leave but he refused. He reported the matter to the clan leaders. - 34. The clan leader who testified as DW2 said that, the land dispute between the Appellant and the Respondent was reported in June, 2022 and yet the Respondent started using the suit land in 2010. This is inconceivable. - 35. If the Appellant had indeed not given the Respondent the suit land, he wouldn't have allowed him to construct a permanent house thereon. The evidence of DW3 indicates the Appellant and the Respondent are neighbors to each, hence, he was able to watch the Respondent develop the suit land without interrupting him since 2013 to 2022. - 36. The Appellant alleged that, when he came back from Kenya, he found when the Respondent had put up a temporary structure on the suit land and he stopped him but he refused. No evidence was however tendered to support his allegation. - 37. The observation of court at locus in quo indicates that the suit land is well developed with a permanent structure where the Respondent resides with his family, a structure on foundation and other houses belonging to the Respondent. - 38. DW1 further testified that his father planted boundary marks around the land which he gave him but removed them and planted flowers. That fact was not disputed. - 39. I note that DW1 said he was given the suit land in February, 2005 but according to PEXH.1, the said land was purchased on 1st of June, 2005 which means by February, the suit land was not yet purchased by the Appellant and he could not give what he did not own. - 40. Customarily, when land is given as a gift *inter vivos*, it is prudent to inform or involve the clan head, the elders of the clan or village, or the

LC1 authority. This helps to prevent disputes or contrivances such as the one in the present case.

- 41. I also note that the evidence of DW2, the deputy clan head indicates that while in their meeting, the Appellant informed them that he had given the Respondent a different piece of land. The clan committee advised him to sale that other piece of land to solve his problems since the Respondent had already developed the suit land. This was a reasonable just advice. - 42. Be the above as it may, the fact that the Respondent took possession of the suit land in 2010 and started developing it without any one interfering with his possession, I have been inclined to believe that the Appellant gave the suit land as a *gift inervivos* to the Respondent who accepted it by taking possession and developing the same. - 43. However, due to the numerous land disputes in Uganda today, holders of customary land are encouraged to follow the steps outlined by this Court in paragraph 40 of this judgment, in order to avoid such disputes. Alternatively, they may opt to formalize the gift in writing. - 44. Ground No. 1 and 2 are answered in the negative. - 45. Ground No.3: *That the decision of the trial court is tainted with fundamental misdirection and a non-direction in law and in fact as a result led to a miscarriage of justice.* - 46. In light of my analysis and finding under Grounds No.1 and 2, this ground automatically fails. - 47. This appeal is hereby dismissed. - 48. The parties being related, each of them will bear his own costs. I so order.

**……………………………. LUBEGA FAROUQ Ag. JUDGE**

*Judgment delivered via the emails of the Advocates of the parties on 2nd day of July, 2025*