Mpairwe and 2 Others v Byarhanga (Civil Appeal 21 of 2023) [2025] UGHC 84 (3 February 2025)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT HOIMA

#### CIVIL APPEAL NO. 21 OF 2023

#### 1. MPAIRWE BEATRICE

2. KAHEERU SOLOMON

## 3. BYARUHANGA SAM::::::::::::::::::::::::::::::::::: **VERSUS**

BYARUHANGA JAMES:::::::::::::::::::::::::::::::::::: [Appeal from the Judgment and Orders of H/W Atamba Aggrey, Ag. Senior Magistrate Grade I, Buliisa in Civil Suit No. 2/2018 delivered on the 19th day of April 20231

BEFORE: HON. JUSTICE BYARUHANGA JESSE RUGYEMA

### **JUDGMENT**

## **Background:**

- $\lceil 1 \rceil$ In the lower Court, the Respondent/Plaintiff sued the Appellants for recovery of land situated in Itutwe Village, Waaki Parish, Kihungya Sub-county, Buliisa District (suit land), a permanent injunction against the 3rd Defendant/Appellant from claiming any interest or right on the suit land, general damages arising out of breach of sale of land agreement and costs of the suit. - It was the Respondent's case that in September 2016, he purchased $[2]$ from the $1^{st}$ Appellant/Defendant 12 acres of land at a consideration of **shs**. 20,000,000/= cash. In around January 2019, when the Respondent went to Itutwe Village to inspect the land, he found that the $2^{nd}$ Appellant/Defendant (the husband of the $1^{st}$ Appellant), had sold it to other innocent buyers. That however, the 2nd Appellant/Defendant apologised to the Respondent/Plaintiff and agreed to offer him another piece of land partly covered with a big stone (the suit land) which the Respondent accepted and an agreement was executed accordingly. To his surprise however, in 2018, the $1^{st}$ and $2^{nd}$ Appellants sold the suit land which the $1^{st}$ Appellant had offered in exchange of the $1^{st}$ piece of land to the $3^{rd}$ Appellant/Defendant.

1 | Page

- The Respondent contended that the Appellants connived with each $[3]$ other to deprive the Respondent his land so as the $3rd$ Appellant can claim and receive compensation from the Government since the big stone on the suit land was needed for construction of the Hoima-Buliisa Road - The Appellants on the other hand denied the Respondent's $[4]$ allegations/claims that he purchased the suit land from the 2nd Appellant. The $1^{st}$ and $2^{nd}$ Appellant however contended that they sold the suit land to the $3rd$ Appellant and that therefore, he is the rightful owner of the land entitled to receive compensation from it. - The trial Magistrate on his part found that the $1^{st}$ and $2^{nd}$ Appellants $[5]$ who are wife and husband respectively first sold land to the Respondent and when the 1st Appellant failed to deliver the land, the Respondent was substituted land with rocks (suit land) and a new agreement to that effect was executed. As a result, he concluded inter alia, that the Respondent was the lawful owner of the suit land and the 3rd Appellant was ordered to deliver vacant possession of the land to the Respondent within 3 months from the date of the judgment. - The Appellants were dissatisfied with the judgment and orders of $[6]$ the trial Magistrate and preferred the present appeal on the following grounds: - - The learned trial Magistrate erred in law and fact when he 1. failed to evaluate the evidence on record as a whole thereby reaching a wrong conclusion that the suit land belongs to the Respondent. - The learned trial Magistrate erred in law and fact when he held $2.$ that the suit land belongs to the Respondent without justification. - The learned trial Magistrate erred in law and fact when he $\mathcal{S}$ . ordered the $3rd$ Appellant to hand over vacant possession of the suit land to the Respondent which occasioned a miscarriage of justice.

## **Counsel legal representation.**

The Appellants were represented by Mr. Robert Hatega of Ms. $[7]$ Baryabanza & Co. Advocates, Hoima while the Respondent was represented by Mr. Paul Baingana of Ms. JP Baingana & Associated Advocates, Kampala. Both Counsel filed their for consideration respective written submissions the $\quad\text{in}\quad$ determination of this appeal.

# Duty of the 1st Appellate Court.

This appeal being a first appeal from the Magistrate's Court, this $[8]$ court is to re-evaluate all the evidence that was presented before the trial Court and make its own inferences on all issues of law and fact, Fr. Narcensio Begumisa & Ors vs Eric Tibebaga S. C. C. A No. This court is therefore required to subject the 17 of 2002. evidence as a whole to fresh and exhaustive scrutiny bearing in mind that it never saw the witnesses testify and then come out with its own conclusions on the issues of fact and law.

# Consideration of the grounds of appeal.

$[9]$ The $1^{st}$ and $2^{nd}$ grounds of appeal shall be considered together because both grounds relate on how the trial Magistrate evaluated the evidence before him to arrive at the conclusion that the suit land belongs to the Respondent.

## Grounds 1 & 2: Evaluation of evidence, that the suit land belongs to the Respondent.

[10] Counsel for the Appellants submitted that the answer to the above grounds of appeal depended on a careful examination of P. Exhs. 1, 2, & 3 and determine whether there was substitution of the land, the subject of the agreement dated 28/9/2016 (P. Exh.1) with the suit land. Counsel contended that the trial Magistrate failed to properly consider the oral evidence and documentary evidence before him and as a result arrived at an erroneous decision that the suit land belongs to the Respondent. He contended further that none of the documentary evidence led to the conclusion that the suit land was a substitution for the Respondent's first purchased land from the $1^{st}$ and $2^{nd}$ Appellants because in the first instance, the purported $2^{nd}$ purchase (P. Exh.2) substituting the $1^{st}$ purchase did not mention anywhere that it was being executed a substitution of the $1^{st}$ agreement (P. Exh.1). Secondly, the purported $2^{nd}$ agreement (P. Exh.2) was not signed by the Respondent as the purchaser and the $1^{st}$ and $2^{nd}$ Appellant as the sellers.

- [11] Counsel concluded that the learned trial Magistrate failed in his evaluation of the evidence before him to recognise P. Exh2 as enforceable in law as it did not constitute a valid contract. - [12] Counsel for the Respondent on the other hand submitted that a perusal of both P. Exh.1 and P. Exh.2 show that the $1^{st}$ Appellant sold a piece of land measuring 13 acres to the Respondent as per **P. Exh.1** and on the $27/1/2017$ , the 2nd Appellant, husband to the 1st Appellant executed P. Exh.2 as a hand over document of the property/land sold to the Respondent but with the location of the property changed. - [13] I have carefully looked at the 2 documents, P. Exh.1, which is the sale agreement of a piece of land at Kihungya between the 1st Appellant and the Respondent dated 28/9/2016 and P. Exh.2 which is to the effect that the piece of land sold to the Respondent (as per P. Exh.1) has been shown to the Respondent. The land however shown to the Respondent described in **P. Exh.2** appear by virtue of location and neighbours, to be different from that one the Respondent purchased as per P. Exh.1. The piece of land sold to the Respondent was located at Kihungya while the land shown to him was at **Itutwe** and the neighbours were different. - [14] The Respondent explained that the piece of land showed to him in P. Exh.2 was a substitution of the land he bought from the $1^{st}$ Appellant on 28/9/2016 which he failed to take possession because of other interested parties thereon. The Respondent's explanation was not challenged at all by the Appellants. The $2^{nd}$ Appellant admitted making P. Exh.2, showing the Respondent the land he purchased from his wife, the 1st Appellant. In cross examination, the $2^{nd}$ Appellant/DW2 revealed that he had already seen a sale agreement in respect of the suit land (Referring to P. Exh.1) and clearly explained that he showed the Plaintiff [Respondent] land that the $1^{st}$ Defendant [Appellant] had sold to the Respondent and the same later sold to the 3rd Defendant /Appellant in the following words:

"The land that I had shown to the Plaintiff [Respondent] was sold to the $3^{rd}$ Defendant [Appellant]. It is the same land that has rocks".

The 2nd Appellant/DW2 however did not in evidence explain what happened to the $1^{st}$ agreement (P. Exh.1) and the subject matter land which the $1^{st}$ Appellant/DW1 admits she had sold to the Respondent. The $2^{nd}$ Appellant appeared merely to show that the land he showed the Respondent was the subject matter of the $1^{st}$ agreement (P. Exh.1) which I find a lie because the reality is that the land, subject of the $1^{st}$ agreement was no longer available. The 1st Appellant herself during cross-examination at page 11 of the proceedings conceded that she offered the Respondent another piece of land though she adds that it was out of intimidation. This is evidence that the land that was a subject of the $1^{st}$ agreement was no longer available and the $1^{st}$ Appellant had to offer the Respondent an alternative land. The alleged intimidation is a mere afterthought because it was neither pleaded by the Appellants/Defendants nor was it proved in evidence.

- [15] The above is clear evidence that the $1^{st}$ piece of land the $1^{st}$ Appellant sold to the Respondent was not available, she could not deliver the land to the Respondent as indeed found by the trial Magistrate and as a result, she had to offer another piece of land to the Respondent in substitution of the $1^{st}$ piece of land sold to the Respondent. - [16] Clearly, the above evidence proved that the Respondent is the lawful owner of the suit land. The claim by the $1^{st}$ Appellant that she was forced to sign and that she signed the initial sale agreement (P. Exh.1) under duress or coercion is not supported by any evidence. As already observed, neither duress or coercion was pleaded by the Appellants. **O.6 r.7 CPR** prohibits departure from pleadings, see Jani Properties Ltd vs Der-as-Salaam City Council [1966] E. A 281 where it was held that parties are not allowed to depart from their pleadings raising a new claim which is not founded in pleadings or inconsistent to what is pleaded. - [17] The $1^{st}$ Appellant also pleaded that the initial transaction of the sale of land to the Respondent arose from a loan transaction where the Respondent lent her **shs.** $5,000,000/$ = during her campaigns for member of parliament and when she failed to pay it, they agreed that the Respondent buys her land at shs. $20,000,000/=$ but he failed to pay the balance. The 1st Appellant however did not in evidence adduce proof of the alleged loan transaction. The executed agreement (P. Exh.1) indicate that the Respondent paid S.92 of the Evidence Act excludes oral averments or cash. evidence to vary, contradict, add or subtract terms of a written

5 | Page

agreement between the parties, see also D. S. S Motors Ltd vs Afri Tours & Travel Ltd & Anor H. C. C. S No. 12 of 2003 where it was held that the Parole Evidence Rule is to the effect that evidence cannot be admitted (or even if admitted it cannot be used) to add, to vary or contradict a written instrument. The 1st Appellant in this case could not be heard to claim that the Respondent failed to pay the balance when she executed agreement (P. Exh. 1) which is to the effect that the Respondent paid cash of Ugx. 20,000,000/= as consideration for the land.

- [18] In the pleadings the 1st Appellant admitted to had executed agreement (P. Exh.1). In evidence she admitted that she offered the Respondent an alternative land. I find that this alternative land is that land her husband, the 2nd Appellant/DW3 showed the Respondent as reflected in **P. Exh.2**. - [19] It is not correct as Counsel for the Appellants submitted that $P$ . Exh.2 was not endorsed by the parties. A close look of the document (P. Exh.2) show that it was endorsed by the $2^{nd}$ Appellant, husband to the 1st Appellant, who showed the Respondent the land the $1st$ Appellant sold to him. The document was also endorsed by the Respondent. Both the 2nd Appellant and the Respondent signed on the document at the spot adjacent to the sketch map of the land. It is immaterial that there is no evidence of authority from the $1^{st}$ Appellant authorising her husband, the $2^{nd}$ Appellant to show the Respondent the offered alternative land because the 1st Appellant herself admitted that she offered the Respondent an alternative land. - [20] In conclusion, I find that the trial Magistrate did not error in finding that the suit land belonged to the Respondent. The 1st and $2nd$ grounds of appeal accordingly fail. The suit land bearing a rock land situate at Itutwe village, Waaki Parish, Kihungya sub-county, Buliisa District belongs to the Plaintiff/Respondent and therefore he is entitled to any compensation therefrom.

- Ground 3: The learned trial Magistrate erred in law and fact when he ordered the $3rd$ Appellant to handover vacant possession of the suit land to the Respondent which occasioned miscarriage of justice. - [21] In evidence, the $3^{rd}$ Appellant/DW3 testified that he rented the $1^{st}$ Appellant's land for 3 years where he planted tobacco and that after 2 years, the $1^{st}$ Appellant opted to sell him the land. That after due diligence with the L. Cs, he purchased the suit land. Both the $1^{st}$ & $2^{nd}$ Appellants stated that they sold the land to the $3^{rd}$ Appellant. - [22] The $3rd$ Appellant/DW3 however, never adduced any evidence of proof of purchase of the land. Neither the $1^{st}$ Appellant nor the $3^{rd}$ Appellant presented any executed agreement of the sale of the land. On locus, the trial Magistrate established the suit land as unoccupied with big rocks on it. The trial Magistrate observed in his judgment thus:

"It should be noted that the $3^{rd}$ Defendant [ $3^{rd}$ Appellant] declined to present his sale agreements despite being given leave by court to do so. In cross examination DW3 $[3^{rd}]$ Appellant] stated that he does not remember the date when he purchased the suit land because his documents are with the lawyer".

- [23] Upon the above evidence, the record shows that the matter was adjourned for further cross examination. The 3rd Appellant failed to produce proof of purchase of the suit land. The above clearly show as the Respondent contended, that the Appellants connived with each other to deprive the Respondent the suit land he lawfully purchased from the $1^{st}$ Appellant for purposes of benefitting from the impending compensation payable for use of the land by extraction of stones for road construction. - [24] Besides, even if one was to find or argue that the $1^{st}$ Appellant sold the land to the 3rd Appellant, in his defence, the 3rd Appellant stated that for him, the land he purchased is not the suit land (i.e land comprised of the rocks). In brief, the 3rd Defendant conceded that he has no interest in the suit land which the $1^{st}$ & $2^{nd}$ Appellant claim to had sold him.

- [25] As a result of the above, this court is unable to fault the trial Magistrate for the declaration that the $3rd$ Defendant/Appellant has no interest in the suit land and the order that the 3rd Appellant hand the land to $\quad\text{ of }\quad$ the suit possession over vacant Plaintiff/Respondent. In the premises, ground 3 of the appeal accordingly fails. - [26] All in all, the appeal is found devoid of any merit. It is accordingly dismissed with costs to the Respondent.

Dated at Hoima this $3^{rd}$ day of February, 2025.

Byaruhanga Jesse Rugyema **IUDGE**