Musoke v Sserwadda & 2 Others (Civil Appeal 10 of 2024) [2025] UGHC 58 (29 January 2025)

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### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT KIBOGA

# CIVIL APPEAL NO.0010 0F 2024

### (FORMERLY MUBENDE CIVIL APPEAL NO. 005 OF 2023)

### (ARISING FROM CIVIL SUIT NO.005 OF 2019)

DAUDI MUSOKE....................................

#### **VERSUS**

**1. SSERWADDA STEVEN**

2. KATUNGI AMOS

3. KAZINEZA JAMES::::::::::::::::::::::::::::::::::::

# BEFORE: HON. MR JUSTICE KAREMANI JAMSON. K

#### JUDGMENT

#### Introduction.

Daudi Musoke (hereinafter referred to as the appellant) was the plaintiff in the Chief Magistrate's Court of Kiboga at Kiboga while Sserwadda Steven, Katungi Amos and Kazineza James (hereinafter referred to as the respondents) were the defendants.

### Background.

The appellant at trial sued the 1st respondent for breach of contract while the 2nd and 3rd respondents were sued for trespass onto a Kibanja situate at Bulaza cell, Kigando parish, Nsambya sub-county in Kyankwazi district. The appellant sought orders for cancellation of the sale agreement between him and the 1st respondent, a permanent injunction restraining the defendants or their agents from further trespass on the suit kibanja, general and punitive damages and a declaration that the appellant is the rightful owner of the suit land and the respondents are trespassers.

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# Decision of the trial court.

The trial court found that the appellant was estopped from jumping out of the agreement made between him and the $1^{st}$ respondent and that the suit land belonged to the $2^{nd}$ and $3^{rd}$ respondents. The trial learned magistrate thus dismissed the suit with costs to the $2^{nd}$ and $3^{rd}$ respondents.

# Grounds of appeal.

The appellant being dissatisfied with the findings of the trial court appealed to this court on the following grounds:

- 1. The learned trial magistrate erred in law and fact when he failed to find the 1st defendant in breach of contract of purchase of the suit land. - 2. The learned trial magistrate erred in law and fact when he relied on hearsay evidence of DW2 and DW3 that the appellant declined to receive payment for the suit land whereas not. - 3. The learned trial magistrate erred in law and fact when he held that the $2^{nd}$ and $3^{rd}$ defendants were the owners of the suit land measuring 8 acres. - 4. The learned trial magistrate erred in law and fact when he held that when the plaintiff agreed to sell 8 acres of his land, he could no longer get out of the transaction and was estopped from doing so. - 5. The learned trial magistrate erred in law and fact when she failed to evaluate the evidence on record hence coming to a wrong conclusion.

The appellant prayed that the judgment and decree of the trial magistrate be quashed and set aside and substituted with an order allowing the appeal and any other reliefs the court deems fit and proper.

### Representation.

The appellant was represented by Ms. Edinah Musiime of M/S Lukwago & Co. Advocates while the respondents were represented by M/S The Legal Aid Project of the Uganda Law Society.

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### First appellate court's duty.

This is a first appellate court in this matter. The duty of the first appellate court was clearly elucidated in the case of **Kifamunte Henry V Uganda SCCA No.1 of 1997** and the case of Father Narsensio Begumisa & 3 Ors V Eric Tiberaga SCCA No.170 of 2000 [2004] KALR $236$ where it was held that:

"This being a first appeal, this court is under an obligation to re-hear the case by subjecting the evidence presented to the trial court to a fresh and exhaustive scrutiny and re-appraisal *before coming to its own conclusion*"

The appellate court has to always bear in mind the fact that it did not have the opportunity of hearing and seeing the witnesses testifying to test their demeanour.

# Consideration of the grounds of appeal.

I have looked at the grounds of appeal as framed in this appeal, grounds 1 and 2 simply rotate around analysis of the evidence and the alleged coming to wrong findings by court.

I will therefore handle them together since even the learned counsel argued them together.

I will therefore re-evaluate the evidence adduced and find out whether the trial magistrate came to a right or wrong decision.

- 1. The learned trial magistrate erred in law and fact when he failed to find the $1st$ defendant in breach of contract of purchase of the suit land. - 2. The learned trial magistrate erred in law and fact when he relied on hearsay evidence of DW2 and DW3 that the appellant declined to receive payment for the suit land whereas not.

# Analysis

It is complained about that the learned trial magistrate failed to find the 1st defendant was in breach of contract of purchase of the suit land.

Mann

Breach of contract refers to the breaking of the obligation which a contract imposes which confers a right of action for damages on the injured party. See: Ronald Kasibante V Shell Uganda Ltd HCCS No.542 of 2006.

According to Section 9 of the Contracts Act, a contract has been defined to mean an agreement made with the free consent of parties with capacity to contract, for lawful consideration and with a lawful object, with intention to be legally bound.

Counsel for the appellant made a general submission on the appeal without submitting on each separate ground of appeal. From her submissions, counsel averred that the trial magistrate erred when he found that the agreement between the appellant and the 1st respondent was admitted as DE1 when it was not admitted as an exhibit at all.

On the other hand, counsel for the respondents submitted that there was a valid contract between the appellant and the $1^{st}$ respondent and that the $2^{nd}$ and $3^{rd}$ respondents bought the suit land upon establishing that the appellant had sold his land to the 1st respondent.

I have looked at record of proceedings and I do find that counsel for the appellant did not properly addressed her mind on what Exh. D1 was. On page 15 Paragraph 4 of the record of proceedings, Exh. D1 was the sale agreement between the $1^{st}$ , the $2^{nd}$ and $3^{rd}$ respondents. It was not the sale agreement between the appellant and the $1st$ respondent. From the record of proceedings at the trial, the agreement executed between the plaintiff and the $1^{st}$ defendant was never exhibited. In his evidence in chief, the appellant/plaintiff denied selling the land in issue to the $1^{st}$ defendant/respondent.

However, it was proved by the evidence of appellant/plaintiff's own witness PW4 Detective Sgt Mweyambe Isaac which supported by the evidence of $2^{nd}$ and $3^{rd}$ defendants that the appellant and the 1st defendant entered into an agreement for sale of land. It was the evidence of PW4 on page 10 of the record of proceedings that in his investigations, he established that the appellant/plaintiff had entered into an agreement with the 1st respondent to buy the suit land at four million shillings (shs. 4,000,000/=) and that the 1st respondent /defendant made a part payment of one million shillings (shs. 1,000,000/ $=$ ) leaving a balance of three million shillings (shs. 3,000,000/=). This fact was confirmed by the 2nd and the 3rd respondents in their evidence who were present when the said agreement was entered into.

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According to the $2^{nd}$ and $3^{rd}$ defendants they did not know whether the balance of shs. 3,000,000/= was ever paid by the 1st respondent or not. The 1st respondent did not appear in court, the case proceeded ex parte against him. He did not therefore present his version.

DW3 Mugerwa Christopher stated that the appellant sold the suit land to the family of Maureen and shs. 1,000,000/= was paid but the appellant refused to accept the balance of shs. 3,000,000/= claiming that he had changed his mind.

From the proceedings, it was not established who a one Maureen was or whether she had a connection with the $1^{st}$ respondent.

Whereas the appellant in his evidence did not mention that he had sold the land to the $1st$ respondent, there was overwhelming evidence to show that indeed there was a contract for sale of the suit land between the $1st$ respondent.

The trial magistrate found that the $1^{st}$ respondent initially paid shs. 1.000.000= out of the purchase of shs. $4.000.000$ to the appellant. That later on he offered the balance of shs. $3,000,000/$ = to the appellant and it was rejected. It was not shown as to where the money ended after the alleged rejection.

From the above proceedings and the evidence adduced, is my finding that it was not proved on a balance of probabilities that there was a contract of sale of the land in issue at shs.4000.000=, that shs.1.000.000= was paid balance and that a balance of shs.3.000.000= not was paid. There was therefore a breach of contract by the 1st defendant.

Ground 3,4 and 5 will be handled together since they all touch on the findings by court on the ownership of the land in issue.

- 3. The learned trial magistrate erred in law and fact when he held that the $2^{nd}$ and $3^{rd}$ defendants were the owners of the suit land measuring 8 acres. - 4. The learned trial magistrate erred in law and fact when he held that where the plaintiff agreed to sell 8 acres of his land, he could no longer get out of the transaction and was estopped from doing so.

THAM

5. The learned trial magistrate erred in law and fact when he failed to evaluate the evidence on record hence coming to a wrong conclusion that the appellant was estopped from

### **Analysis**

In all cases of ownership of land, it is proved by presentation of an agreement of purchase of the land, being registered on a land title or showing possession of the same.

The learned counsel for the respondent submitted that the $2^{nd}$ and $3^{rd}$ respondents purchased the suit land from the 1st respondent upon the appellant selling it to the 1st respondent. Counsel cited the case of Ismail Jaffer Allibai and 2 ors V Nandlal Harjivan Karia and Another S. C. Civ. Appeal No.53 of 1995 where order JSC stated that

".....on completion of a contract of sale of immovable property, property passes to the purchaser, and the vendor holds it as a trustee for the purchaser. The legal title, on the other hand remains with the vendor until transfer is effected. The equitable title which passes to the purchaser is considered to be superior to the vendor's legal title which is extinguished on payment of the purchase price by the purchaser."

From the evidence of the 3rd-respondent Kazineza James (DW2) (at page 16 of the record of proceedings), he stated that him and the $2^{nd}$ respondent bought the suit land from the $1^{st}$ respondent after the appellant had sold the same to the $1^{st}$ respondent. The 3rd respondent (DW2) clearly stated that upon discovering that the appellant was claiming the land sold to them by the $1^{st}$ respondent, they refused to pay the entire sum of purchase price to the $1^{st}$ respondent until an agreement was reached between the appellant/plaintiff and the 1st respondent.

The appellant contended that the $2^{nd}$ and $3^{rd}$ respondents were immediate neighbours of the appellant and it was wrong for them to purchase the suit land from the 1st respondent yet they had knowledge that it belonged to the appellant.

The evidence adduced by the respondents showed that a meeting was later convened at the Resident District Commissioner's' (RDC) office and an agreement was entered between the appellant and the 1st respondent. In that agreement, the appellant agreed to sell the suit land

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to the 1st appellant at four million shillings (shs. 4,000,000/=). Whereas the appellant in his evidence did not refer to the said agreement while maintaining that he never sold the suit land to the 1st respondent at all, PW4 his own witness stated that the appellant presented to him an agreement he entered with the 1st respondent in which the appellant agreed to sell the suit land to the appellant at 4,000,000/= and a part payment of 1,000,000/=. This was confirmed by DW1 Katungi Amos who was present when the said agreement was being executed.

The appellant/plaintiff (PW1) did not challenge that evidence of receiving the 1,000,000/=.

Therefore, the appellant having entered into an agreement for sale of the suit land with the 1st respondent he could not challenge respondents/defendants in an action of trespass since they were the new owners of the land having bought the same. It did not matter whether the 1st respondent obtained the appellant's consent before sale since he did not require any because the $1^{st}$ respondent had legally bought it.

In the circumstances the $1^{st}$ respondent passed on good title to the $2^{nd}$ and $3^{rd}$ respondents.

In the case of John Katarikawe V William Katwiremu and Anor [1977] HCB 187, Ssekandi J held as follows:

"A contract for sale of land is not perfected until an effective transfer of title has been made but failure to do so does not affect the contract until the land is transferred to other persons and that a buyer under contract acquires equitable transfer.

I further do agree with the position in the case of **Ismail Jaffer Allibhai (supra)** as cited by counsel for the respondents that in a contract for sale of immovable property like land, the property in the land passes to the purchaser as an equitable holder of title and the said title is superior to the vendor's legal title. See also Halima N Wakabi V Asaba Selevano civil appeal no. 0064 of 2008.

It has already been established that there was a valid land sale agreement between the appellant and the $1^{st}$ respondent based on the legal position established by the cases above.

It therefore did not matter whether the 1st respondent had completed payment of the purchase price or not. At that point, the 1st respondent had equitable ownership of the suit land and

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therefore had all rights to deal with it as he deemed fit which included selling to the 2nd and $3rd$ respondents.

It therefore follows that in the absence of any other contrary position, the $2^{nd}$ and $3^{rd}$ defendants obtained good title and were the rightful owners of the suit land. The trial magistrate was right in finding so. Grounds 3 and 4 therefore fail.

As for ground 5 it is about evaluation of evidence and the final verdict. The trial magistrate found that the appellant was estopped from denying the agreement for the sale of the land and more so by rejecting the balance of shs.3,000,000/ $=$ The learned trial magistrate made a finding that there was sale of the land but he did not pronounce himself on the payment of the balance of shs.3,000,000/= that was not paid to the appellant.

In the case of **Johnson and Anor. vs. Agnew [1979] 1 All ER 883,** Lord Wilberforce stated;

"..... in a contract for the sale of land, after time has been made, or has become, of the essence of the contract, if the purchaser fails to complete, the vendor can either treat the purchaser as having repudiated the contract, accept the repudiation, and proceed to claim damages for breach of the contract, both parties being discharged from further performance of the contract; or he may seek from court an order for specific performance with damages for any loss arising from any delay in performance ....

In this case, the sale agreement between the appellant and the 1st respondent was not tendered in court therefore terms concerning duration were never established. However, it was clearly established that the appellant was paid only shs. $1,000,000/=$ out of the agreed shs. $4,000,000/$ = leaving a balance of shs. 3,000,000/=.

It therefore follows that the appellant is entitled to the balance of shs.3.000.000 $=$ as the purchase price from the $1^{st}$ respondent.

### Consequently, this appeal partially succeeds with the following orders:

- 1. The $1st$ respondent is in breach of the land sale agreement between him and the appellant for failure to complete the purchase price. - 2. The $2^{nd}$ and $3^{rd}$ respondents are the rightful owners of the suit land and not trespassers.

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- 3. The 1st respondent is ordered to pay the appellant shs.3,000,000/= being the balance of the purchase price for the suit land. - 4. The appellant is warded $\frac{1}{2}$ (a half) of taxed bill of costs.

I so order.

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KAREMANI JAMSON.

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**JUDGE**

29.01.2025