Mugenyi and Another v Mwesige and Another (HCT-01-CS-LD-CA 4 of 2019) [2024] UGHC 223 (26 April 2024)

### **THE REPUBLIC OF UGANDA**

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

# **HCT – 01 – CS – LD – C. A NO. 004 OF 2019**

# **(ARISING FROM FPT – 00 – CV – CS – LD – 0021 OF 2007)**

### **1. MUGENYI PELUCE**

# **2. MWESIGE RICHARD :::::::::::::::::::::::::::::::::::::: APPELLANTS**

# **VERSUS**

### **1. MWESIGE JAMES**

# **2. OLIVER MWESIGE :::::::::::::::::::::::::::::::::::::::: RESPONDENTS BEFORE: HON. JUSTICE VINCENT WAGONA**

# **JUDGMENT**

### **Introduction:**

The appellants being aggrieved by the decision of his Worship Omalla Felix, the Chief Magistrate Fort Portal in land Civil Suit No. 021 of 2007 delivered on 7th June 2017 lodged an appeal to this Court seeking orders that the judgment of the lower Court be set aside.

### **Background:**

The appellants were the defendants in land civil suit No. 021 of 2007 originated by the Respondents who sought among others; a declaration that they were the lawful owners of the suit land; and a declaration that the appellants trespassed thereon. It


was contended by the Respondents that they had bought the suit land from the 3 rd defendant (Kyahuka Mugara Jonathan) on 15th August 2006.

The appellants on the other hand contended that the dealings between the Respondents and Kyahuka Mugara Jonathan (3rd defendant) were fraudulent. It was contended that the Respondents had purchased the suit land with knowledge of the appellants' interests therein and did not conduct the required due diligence. That the appellants were the lawful owners of the suit land and did not commit any alleged acts of trespass. It was contended that the 3rd defendant (Kyakuha Mugara Jonathan) had no land to pass to the Respondents at the time of the purported sale having previously sold the same to the appellants. The Respondents detailed a counter claim in this regard and sought among others a declaration that they were the lawful owners of the suit land and an order of eviction and vacant possession; and in the alternative, a refund of the money paid with interest.

In reply to the counter claim, the 3rd defendant/ 3rd counter claimant indicated that he bought the suit land and later sold the same to the Respondents

The learned trial magistrate entered judgment in favour of the Respondents declaring the respondents the rightful owners of the disputed land and ordered that the 3rd defendant refunds the purchase price to the appellants.

### **Grounds of appeal**:

The appellants framed 6 grounds for determination thus:

**(1)The learned Chief Magistrate erred in law and fact when he failed to properly evaluate the evidence of fraud on record in respect of the sale agreement dated 26th April 2002 (DE2) and in the transactions between**


**the plaintiffs and the 3rd defendant in the sale agreement dated 15th August 2006 (PE1) consequently declaring the plaintiffs the owners of the suit land which occasioned a miscarriage of justice to the defendants/appellants.**

- **(2)That the learned Chief Magistrate erred in fact and law in invalidating the sale agreement dated 17th July 2002 (DE3) and consequently declaring the Defendants/Appellants sale agreement (DE1) null and void thereby occasioning a miscarriage of justice to the appellants.** - **(3)That the learned Chief Magistrate erred in law and fact when he declared the 1st and 2nd defendants/appellants as not being trespassers but failed to declare them rightful owners of the suit land occasioning injustice to them.** - **(4)That the learned Chief Magistrate erred in fact and law when he failed to declare the plaintiffs' trespassers contrary to the prayers in the counter claim and weight of evidence on record hence occasioning a miscarriage of justice.** - **(5)That the learned Chief Magistrate having made a finding that the sale agreement of 26th April 2002 (DE2) is similar to the agreement dated 17th July 2002 (DE3) by way of signatures of the parties and the chairperson L. C.1, erred in fact and law to validate the sale to the plaintiffs basing on the initial agreement (DE2).** - **(6)That the learned Chief Magistrate having made a finding at page 3 of the judgement that the defendants/appellants believed they bought the Suitland genuinely and went on to occupy it on the basis of that purchase and having not found them trespassers erred in fact and in law to declare**


**the plaintiffs the rightful owners of the Suitland disregarding the fact that the defendants/appellants were bonafide purchasers for value without notice of any fraud.**

### **Representation and hearing:**

*Mr. Augustine Kayonga* appeared for the appellants when the case was called for mention while Mr. Richard Bwiruka appeared for the Respondents. A schedule to file written submissions was issued to the parties on 28th April 2022 where the appellants were to file their written submissions by 30/5/2022, the Respondent by 30/6/2022, a rejoinder by 15/7/2022 and judgment was to be issued on notice. Since then, none of the parties complied with the directions issued by Court. I have thus been constrained to consider the memorandum of appeal and proceedings of the lower court in arriving at my findings herein.

# **Duty of this Court:**

This being a first appeal, my duty as a first appellate court under section 80 of the Civil Procedure Act is to subject the evidence of the lower court to a fresh and exhaustive scrutiny and draw fresh and independent inferences and conclusions. In doing so, I will apply the law strictly and consider the evidence adduced in the lower court. I will bear in mind the fact that I didn't have the opportunity to see the witnesses testify and I will therefore make the necessary due allowance in that regard. *(See Panday Vs R (1967) E. A 336 and Narsensio Begumisa & 3 others Vs. Eric Kibebaga, SCCA NO. 17 of 2002*.

**Consideration of the appeal:**


I will thus consider all the grounds of appeal under one general issue being; *Whether or not the learned Chief Magistrate rightly evaluated the evidence on record in arriving at the finding that the Respondents were the rightful owners of the suit land?*

*PW1 Mwesige James* testified that on 15th April 2006, he bought the suit land from Mugarra Kyakuha Jonathan (3rd defendant) at shs 2,200,000/=. That an agreement was made (PE1) dated 15/8/2006 witnessed by Mbaire William, Alituha Peter and the chairman of Nyakagongo called Kamuhanda Richard. That on 10/9/2006, a one Basemera Edith, Mugenyi Richard, Mpaka Augustine, Mpaka's Wife and Samu came with pangas and destroyed his barbered wire fence and cut some banana suckers. The appellants wanted to claim ownership of the suit land. The 3rd defendant had given him an agreement (PE3) where he bought the suit land from Francis Mwirumubi. That he was not aware that the appellants had bought the land from the 3 rd defendant. In cross examination, PW1 stated that PE3 was authentic.

*PW2 Oliver Mwesige* testified that on 14th April 2006, Mugarra came to their home and told them that he wanted to sell land near theirs. That he gave them an original agreement showing that he bought the suit land from Mwirumubi who was also a neighbor. That so they bought the land at shs. 2,200,000/=. That an agreement was executed to that effect (PE1). In cross examination PW2 stated that before buying the suit land, the 2 nd appellant used to work on this land as an employee of the 3rd defendant and Pelusi Mugenyi was a neighbor and mother to the 2nd appellant.

*DW1 (Pelusi Mugenyi)* testified that Kyakuha Jonathan Magarra and Basemera Edith sold the land to her on 10/8/2003 for shs 1.500.000/-. An agreement (DE1) was made.. The buyers were Pelusi Mugenyi and Mwesige Richard. The witnesses were


Kamuhanda Oliver, Kasangaki George William, Richard Kamuhanda and chairperson L. C. I Monday William. That the subsequent sale of the land to Oliver Mwesige and Mwesige James on 15/08/2006 was not proper since she had already bought the land. That the plaintiffs knew the land was hers before they bought the same as they were immediate neighbors. That she had cultivated the land for 3 years from the time she bought. That for all that time, the plaintiffs would see her working on the land.

*Basemera Edith (DW2)* stated that they sold the suit land to the appellants at shs 1.5million. That she owned the land jointly with the 3rd defendant. That they bought the land from Mwirumubi. That the 3rd defendant sold the suit land to the Respondents fraudulently since she kept the original agreement *DE3* and had passed it to the appellants.

*DW3 (Mwirumubi Francis)* testified that he sold the suit land to the 3rd defendant. That after completing payment, they made another agreement. That there are two agreements made on 26/4/2002 and 17/7/2022 respectively. That however there was an alteration made on the agreement dated 26/4/2002. That the date written therein and the phrase "that all money was paid" were just added. That he knew Basemera. She signed on the agreement dated 17/07/2002. That 3rd defendant told them that he was buying land for Basemera Edith and also handed over the agreement to her. That he was present when the same was handed over to her. Other people present were present including the chairman L. C. I, Kasangaki, Kajoina and his wife Magadalene Mwirumubi. That after four years, the 3rd defendant met DW3 and told him that he had sold the land that DW3 had previously sold to him and told DW3 to testify on the agreement dated 26/4/2022 not the one of 17/07/2002. That the 3 rd defendant intimidated him that he would detain him if he did anything to the contrary. In cross

 examination DW3 confirmed that DE3 is the agreement he made with the 3 rd defendant on 17/07/2002. That Basemera signed on the agreement made on 17/7/2002. That the second agreement was the final one and it nullified the 1st agreement and that the chairman L. C 1 was present on both occasions.

*DW4 (Maria Mangadalena Mwirumubi)* wife to DW3 corroborated the evidence of DW3. She stated that the land in question was hers and her husband and they later sold it to Edith Basemera, a daughter to the 1st defendant and 3 rd defendant. That 3 rd defendant Kyakuha was the husband of Basemera.

*DW5 (Mwesige Richard)* corroborated the testimony of DW1, DW2 and DW3 regarding acquisition of the land in dispute.

*DW6 (Oliver Kamuhanda)* clarified that she was present when the land was sold to the appellants. In cross examination she stated that Kyakuha bought from Mwirumubi and later sold.

*DW7 (Richard Kamuhanda),* testified that he was the secretary who wrote the agreement during the making of DE3 where DW3 (Mwirumubi Francis*)* was selling the land to 3 rd defendant (Kyakuha Mugara Jonathan) who was buying for Basemera Edith (DW2). In cross examination DW7 stated that he was the same person that had earlier written out PE3 where DW3 (Mwirumubi Francis*)* was selling the land to 3rd defendant (Kyakuha Mugarra Jonathan).

## **DECISION**:

I have examined the judgment of the learned Chief Magistrate viza Viz the evidence on record. The learned Chief Magistrate hinged his analysis on the agreements between the parties. He rightly observed that four sales agreements were in issue.


That is the two when Mugarra Jonathan Kyakuha was buying from Miwumubi (PE3 & DE2), one involving a sale of the suit land by Mugara Jonathan Kyakuka and Basemera to the appellants (DE1) and the last one between the Respondents and the said Mugarra Jonathan (PE1). He rightly observed that the signature of Mugarra Jonathan Kyakuha was on all the agreements.

The trial magistrate concluded that because the sale agreement (DE3) where Basemera (DW3) was included as a purchaser did not cancel the first, the same was an illegality and any sale premised on the same was equally illegal. In my reevaluation I have noted that both PE3 and DE3 were signed by Kyakuha Jonathan Magarra and witnessed by DW7 the chairperson L. C.1. Mwirumubi (DW3) who sold had clarified in his evidence in chief and cross examination that the said the 3rd defendant was buying the land for Basemera Edith. The evidence is that although Basemera Edith was not included in the agreement (PE3) at the time of purchase, she was included as a joint owner in the subsequent agreement (DE3) made after final payment. Indeed DE3 states that 3rd defendant (Kyakuha Mugarra Jonathan) was buying for Basemera Edith (DW2).

DW2, Basemera Edith also clarified that the land was bought jointly with the 3rd defendant. DW4 (Maria Mangadalena) stated that a one Mugarra Jonathan Kyakuha desired to buy the land in dispute for Basemera Edith (DW2). That DW2 inspected the land and liked the same and later negotiations about the price commenced. This evidence was not challenged in cross examination. DW2 and DW3 all supported this position. DW3 indicated that in the last agreement made for D3 and DW2 (DE3), the purchasers were two that is Kyakuha Jonathan Mugarra and Basemera Edith. That they both signed the agreement and it was witnessed by those present and the LC chairperson. Whereas PE3 did not mention Basemera (DW2), DE3 clarified that


the 3rd defendant had bought the land on her behalf. The evidence on record was clear on how the suit land got into the names of Kyakuha Jonathan Mugarra (the 3rd defendant) and Basemera Edith (DW2). I therefore find that the learned Chief Magistrate erred in his evaluation of the evidence when he arrived at the conclusion that because the sale agreement where Basemera (DW2) was included as a purchaser did not cancel the first, the same was an illegality and any sale premised on the same was equally illegal. I find that both PE3 and DE3 were valid and had to be read together.

The Magistrate was faced with two sales. *PW1 Mwesige James* testified that on 15th April 2006, he bought the suit land from Mugarra Kyakuha Jonathan (3rd defendant) at shs 2,200,000/=. On the other hand *Basemera Edith (DW2)* stated that she and the 3rd defendant had sold the suit land to the appellants. That the 3rd defendant later sold the suit land to the Respondents fraudulently since she kept the original agreement *DE3* and had passed it to the appellants. The sale agreement with the appellants DE1 shows that they sold to the appellants on 10/08/2003 while PE1 shows that the 3rd defendant sold to the respondents on 15/8/2006 well knowing that he had participated in the earlier sale to the appellants and thus had no good title to pass on to the respondents.

Additionally, it is settled equitable maxim that where there are two equitable claims, the first in time takes precedence and this amply played in the facts before court. This was clearly was explained by the Court of Appeal in **Balamu Bwetegaine Kiiza & Another versus Zephania Kadooba Kiiza, CACA No. 59 of 2009**, where it was stated that;

*"It would appear to us that there are two claims of competing interests regarding the suit land by both parties to this appeal. The determination of*


*these competing interests is a point of law though it will also be necessary in resolving this to consider the facts of this appeal.*

*Under classical land law, there are two interests that the law recognises. These include legal and equitable. According to D. J. Bakibinga, Equity & Trusts, (Law Africa, 2011), at Page 46 & 47, it is generally recognised that a legal interest is valid and enforceable against the whole world (in rem). This means that if, subsequently, a person obtains a legal or equitable interest in the same property, his or her interest is subject to the interest of the first owner. Equitable interests however, are enforceable as against another claimant (in personam).*

*Where there are competing equities therefore, the maxim qui prior est tempore, potior est juelle (he who is first in time has the stronger right) becomes applicable. It deals with priority where there is a conflict between two competing equitable interests in property and the general rule is that equitable interests in property take priority according to the order in which they are created." (Emphasis is mine)*

In this case, it was clear that the appellants were the first to buy. The purchase by the Respondents came later. I find that the purchase by the appellants took precedence and the subsequent one by the Respondent was thus a nullity. The learned Chief Magistrate erred in the manner in which he evaluated the evidence on record in arriving at his findings.

The grounds of appeal by the appellants succeed and thus the appeal with the following orders:

- **1. The appeal is allowed.** - **2. The judgment of the learned Chief Magistrate dated 7th June 2017 is hereby set aside.** - **3. The claim by the Respondents in the lower court is dismissed with costs awarded to the appellants.**


- **4. The appellants are declared the lawful owners of the suit land on the basis of the counter claim.** - **5. The Respondents are ordered to vacate from the suit land within one month from the date of delivery of this judgment and in default an order of eviction from the suit land is hereby issued against the Respondents shall be enforced.** - **6. General damages of shs 5,000,000/= are awarded to the appellants on the counter claim for none use of the land and inconveniences caused to the appellants by the Respondents' actions.** - **7. A permanent order of injunction is hereby issued restraining the Respondents, their agents or assignees and any person from interfering with the appellants' possession and use of the suit land.** - **8. An order declaring that the sale between the Respondents and one Kyakuha Jonathan Mugarra a nullity is hereby issued.** - **9. There is no order as to costs in this court since the appeal was not prosecuted.**

**I so order.**

**Vincent Wagona High Court Judge / FORTPORTAL**

**DATE: 26/04/2024**