Musoke v Ssesanga (Civil Appeal 11 of 2021) [2024] UGHC 732 (23 February 2024)

## THE REPUBLIC OF UGANDA

#### IN THE HIGH COURT OF UGANDA AT MUKONO

## CIVIL APPEAL No. 11 OF 2021

# (ARISING FROM LAND CIVIL SUIT No. 182 OF 2016 OF THE CHIEF MAGISTRATES COURT OF MUKONO AT MUKONO)

MUSOKE SUZAN ####################################

#### **VERSUS**

SSESANGA HENRY : ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! !

## BEFORE HON, LADY JUSTICE CHRISTINE KAAHWA

### JUDGMENT

## **Background:**

[1] 남자 [카드라이어 자유] 남자 [1]

This is an Appeal against the decision of His Worship Muinda, the then Magistrate Grade 1 at the Chief Magistrates Court of Mukono at Mukono. The Appellant filed Civil Suit No. 182 of 2016 seeking orders among others that the Respondent is a trespasser on the suit land, a permanent injunction restraining the defendant from interfering with the Plaintiff's occupation of the suit land, an eviction Order among others.

to any comments


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The Appellant alleged in the lower Court that she is a beneficiary in the estate of the Late Musoke Samuel and that she received the suit land as her share in the estate. The Appellant further alleged that when she received the land in 2005, she started cultivating the same without any interferences until 2016 when the Respondent started laying claims over the land.

The Respondent on the other hand alleged that he received the land as a gift intervivos from his late mother, Nabukeera Olivia. It was averred by the Respondent that the said land was purchased from the Late Musoke Samuel. The Respondent pleaded that when he went to visit the Late Musoke Samuel at hospital, the deceased intimated to him his intentions of wanting to sell the suit land in order to pay off his medical bills. That the Respondent then paid UGX 200,000/= to the deceased on an understanding that the balance of UGX 1,000,000/ $=$ of the purchase price was to be paid by his mother to the widow and Kakembo Paul. The Respondent relied on exhibit PEXH3, a land Sale Agreement between Oliver Nabukeera and Kakembo Paul.

At the hearing of the suit, the three witnesses that were presented for the Appellant told court that the land belongs to Musoke Suzan, the Appellant, having received it from the Administrator of the Estate of the Late Musoke Samuel as her share in the estate. The witnesses told court that the only land the Late Musoke Samuel sold to the Respondent was in 1999 which he is currently occupying with a residential house.


The witnesses further told Court that the suit land is being cultivated by Musoke Suzan and that the Sale Agreement dated 10<sup>th</sup> May, 2000 which the Respondent was using to claim ownership was made on a different understanding. The witnesses testified that the Respondent in 2000 had marital wrangles and did not want his wife to take his property. That he then approached Kakembo Paul to make an Agreement, in the names of his mother, Olivia Nabukeera showing that the land he bought in 1999 from the late Musoke Samuel belonged to his said mother. That the said agreement was made on an understanding that it shall later be revoked after the marital issues had been solved. That unfortunately, the Respondent and his mother refused to revoke the said agreement.

The lower court found that the Appellant had not adduced enough evidence on the balance of probabilities to grant the Orders sought and dismissed the suit with costs. The Appellant, dissatisfied with the Judgment appealed to this Court on the following grounds;

- 1. That the Learned Trial Magistrate erred in law and fact when he ignored the immense contradictions and inconsistences in the defense case particularly regarding the Respondent's contested purchase of the suit land, thereby arriving at a wrong decision. - 2. The Learned Trial Magistrate erred in law and fact when he erroneously held that the agreement dated 10/5/2000


executed between the Respondent and one Kakembo Paul pertaining to the estate property is valid in law whereas not.

- 3. That the Learned Trial Magistrate erred in fact when he failed to find that the agreements dated $7/11/1999$ and $10/5/2000$ pertained to one and the same property that was sold by the late Musoke Samuel. - 4. The Learned Trial Magistrate erred in law and fact when he failed to find that the defense evidence adduced in Court contradicts the findings at the locus.

## **Representation:**

At the hearing of this Appeal, Mr. Mututa Martin represented the appellant and Mr. Matovu Robert appeared for the Respondent.

## **Submissions:**

Counsel did not submit on the grounds in the Order as stated in the memorandum of appeal and the Court lays out the submissions in the same order adopted by Counsel.

On Ground 2, the Appellant submitted that an estate of the deceased can only be dealt with by a representative lawfully appointed by Court and that the Respondent alleges that his late mother bought the suit land from Kakembo Paul and Mary Nakitende in 2000. That the suit land belongs to the estate of the late Musoke Samuel which had no Administrator until 2004 when Kakembo Paul was appointed by Court as the representative of the


estate. Counsel invited court to look at exhibit PExh. 2, Letters of Administration of the estate of the Late Musoke Samuel.

Counsel contended that Kakembo Paul and Mary Nakitende had no authority to deal with the estate of the deceased in 2000 and could not pass on a good title to the Late Olivia Nabukeera. He invited court to find that the lower Court erroneously held that Kakembo Paul was an Administrator of the estate of the late Musoke Samuel and therefore had lawfully sold the land.

The Respondent on the other hand submitted on ground 2 that his evidence showed that the sale and purchase of the suit land was originally between the deceased and the Respondent which happened when the deceased was at the hospital receiving treatment. That at that time the Respondent paid UGX 200,000/ $=$ to the deceased and that the instructions to complete the sale were given by the deceased to his son Kakembo Paul who subsequently received the balance of the purchase price from the Respondent's mother, Olivia Nabukeera.

The Respondent therefore invited this Court to find that the sale of the suit land was originally executed between the late Musoke Samuel and the Respondent and that the agreement between Kakembo Paul and Olivia Nabukeera was merely formalizing an existing sale.

On ground 1, the Appellant submitted that the evidence of the Respondent at the lower court had contradiction and inconsistences

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which the trial Court ignored and hence arriving at a wrong conclusion. The Appellant submitted that during cross examination, the Respondent told court that save for the land that he purchased in 2000 from the Late Musoke, the land he purchased in 1999 was not along the road. Counsel highlighted that this was a contradiction since both Sale Agreements show that both pieces of land touch the road.

Additionally, the Appellant submitted that both Agreements have the same description, size and same neighbors and yet the Respondent had bought an earlier neighboring land in 1999. Counsel stated that the Respondent having allegedly bought the suit land in 2000, then the latter Agreement should have reflected that he was the neighbor since he owned a neighboring plot.

Further the Appellant submitted that the Respondent and his witnesses stated in the lower Court that the LC1 stamp, some witnesses and some words were added on the Agreement dated 10.5.2000 two years after its alleged execution as it was observed that the ink adding them was different from that of the words in the rest of the document.

Again, it was submitted for the Appellant that the document gifting the suit land to the Respondent showed that the land had a house and yet at the locus visit, it was observed that the land had only crops and no house. Counsel prayed that Court should disregard


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exhibits Pexh. 3 & Pexh. 4, the Sale Agreements, as the same were not translated into the language of Court.

In reply, Counsel for the Respondent submitted that since the two Plots belonged to the Respondent it was therefore not a contradiction for stating that one of the Plots was not touching the road yet it was and that since the Plots were neighboring each other, it was not necessary for the Respondent to mention himself as a neighbor to his own land.

Regarding the forgery allegations on the Sale Agreement Pexh.3, Counsel submitted that such allegations were never proved at the trial Court and that proof of such allegations goes beyond the naked eye of the Appellant.

As to the prayer of rejecting the exhibits, Counsel submitted that it is not the duty of the Appellate Court to determine the suitability of exhibits and that since the same were admitted in the lower Court and the Appellant cross examined on them, it is not proper for the appellate court to reject them at this stage.

On grounds 3 & 4, the Appellant submitted that the trial Court failed to evaluate the evidence as a whole and only considered the evidence of the Respondent to arrive at the Judgment subject to this Appeal. The Appellant submitted that from the description of the land in the Agreements, Dexh. 3 & Dexh. 4, it is a clear indication that they are in respect of the same land which supports the case of the Appellant that the agreement made in 2000 was

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merely intended to conceal the true ownership of the land bought by the Respondent in 1999 from his wife and not in respect of a land sale arrangement. The Appellant submitted that the Agreement was clothed with criminality and that the trial Court overlooked that fact hence creating a miscarriage of justice.

Additionally, the Appellant submitted that it was erroneous for the trial Court to overlook the fact that the LC1 stamp and some witnesses were added on the Sale Agreement made in 2000. This fact as per Counsel for the Appellant was brought out in the evidence of DW3 but Court overlooked the same hence arriving at a wrong conclusion.

In reply to grounds 3 & 4, the Respondent submits that the evidence is clear that there are two Agreements dated $7/11/1999$ and 10/05/2000 executed in the names of different parties and that they cannot be called the same and one Agreement and that there was no evidence in the lower Court to show that there was any marital wrangles between the Respondent and his wife.

The Appellant filed submissions in rejoinder. Save for responding to the objections raised by the Respondent, the submissions in rejoinder were substantially reaffirming her earlier submissions. I do not find it necessary to reproduce the submissions in rejoinder. I will deal with the points of law raised by the Respondent when resolving the grounds of the Appeal.


## **Resolutions of the grounds:**

The Respondent raised points of law in regards to the competence of the Appeal stating that the Appeal was filed out of time and that the grounds of the Appeal in the Memorandum are argumentative and therefore offensive.

Section 220 of the Magistrates' Court Act Cap 16 and Order 43 Rule 1 of the Civil Procedure Rules (CPR) govern Appeals from the Magistrates Court to the High Court.

Order 43 Rule 1 of CPR the provides that every Appeal to the High Court shall be preferred in the form of a Memorandum signed by the Appellant or his or her advocate and presented to the Court or to such officer as it shall appoint for that purpose.

Section 79(1) of the Civil Procedure Act, cap 71 (CPA) provides that an Appeal shall lie within 30 days from the date of the Decree or Order. In computing the limitation period, the time taken when making a copy of the decree, order and the proceedings shall be excluded. See Section 79(2) of the CPA.

In the instant case, the decree being appealed from is for a Judgment delivered on 11<sup>th</sup> December, 2020. The Memorandum of Appeal was filed in this Court on 24<sup>th</sup> March, 2021 and endorsed by the Registrar of Court on 25<sup>th</sup> March, 2021.


I note from the record of the lower Court that the Appellant requested for a certified copy of the record of proceedings on $17<sup>th</sup>$ December, 2020, 6 days after the delivery of the Judgment.

Unfortunately, the record of the lower Court is silent on the day when the record of proceedings was availed to the Appellant. However, I observe that a certified copy of the record of proceedings has a cashier's stamp of the payment of Court fees dated 9/03/2021. The assumption is that the proceedings were availed to the Appellant on the date of the cashier's stamp.

The 30 days to file the instant Appeal therefore started running on 9<sup>th</sup> March, 20231 Having filed the Memorandum of Appeal in this Court on 24<sup>th</sup> March, 2021, 15 days after receiving the record of proceedings, the Appellant was still with in time to file her Appeal. This objection therefore fails.

In regard to the grounds of Appeal being argumentative, I have looked at the grounds and do not see any ground that is argumentative. The objections are overruled.

I will proceed to determine the Appeal.

It is the duty of this Court as a first Appellate Court to re-hear the case by subjecting the evidence presented at the trial Court a fresh and exhaustive scrutiny and re-appraisal before coming to its own conclusion (see Father Nanensio Begumisa and three Others v. Eric Tiberaga SCCA 17of 2000; [2004] KALR 236). If there is any conflicting evidence this Court shall bear in mind the fact


that it has not seen or heard the witnesses, it will therefore weigh the conflicting evidence and draw its own conclusions (Refer to Lovinsa Nankya v. Nsibambi [1980] HCB 81).

This Court may interfere with a finding of fact if it is shown that the trial Court overlooked any material fact in the evidence of a witness or if the balance of probabilities as to the credibility of the witness is inclined against the opinion of the trial Court. It therefore goes without saying that this Court is not bound necessarily to follow the trial Magistrate's findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.

I will resolve the grounds as they are stated in the Memorandum of Appeal.

Ground 1: That the Learned Trial Magistrate erred in law and fact when he ignored the immense contradictions and inconsistences in the defense case particularly regarding the Respondent's contested purchase of the suit land, thereby arriving at a wrong decision.

In regards to this ground, the contradictions and inconsistences the Appellant alludes to are that the Respondent told Court that the Kibanja that he purchased in 1999 was not on the road but rather the one that he bought in 2000 and that yet both land is along the road.

The Appellant also argues that during cross examination, the Respondent acknowledges that both agreements have the same size, purchase price and neighbors and yet in 2000 when the Respondent's mother was allegedly buying the suit land, the Respondent, who was a neighbor to the suit land, wasn't reflected in the agreement as such.

The other inconsistence pleaded is that LC1 Stamp and the witnesses were inserted on the agreement made in 2000 two years after its execution.

#### In Orvem David versus Omory Phillip H. C. C. S No. 100 of 2018 it was held that;

"it is trite law that grave inconsistencies and contradictions unless satisfactorily explained will usually but not necessarily resulting the evidence of a witness being rejected. Minor ones unless they point to deliberate untruthfulness will be ignored."

I have perused the submissions of both Counsel, the record of proceedings and exhibits admitted in the lower Court. I note at page 12 of the record of proceedings that during cross examination of DW1, the Respondent, it was stated that the land he bought in 1999 was not bordering any road.


A look at the Dexh, 4 and Dexh, 3 which are the land sale agreements dated 7/11/1999 and 10/05/2000, the description of the land shows that land is situate along Njerere Road, opposite the road going to Mr. Bukenya's home.

Additionally, the record of the trial Court at page 13 shows that the lower Court observed that the document dated 10/05/2000 has a different ink on witnesses from 5 to 7 and that the stamp of the LC1 Chairperson was inserted on the document 2 years later. The exhibit itself shows that the stamp was inserted on $2/2/2002$ .

I have perused the Judgment of the lower Court and I observe that the Judgment is silent about the above stated irregularities and It is my strong conviction that the above inconsistencies. irregularities if considered would have had a strong weight in properly resolving the dispute between the parties.

This lends credence to the Appellant's case that the Agreement made in 2000 was cover for the Respondents hiding his property from the wife.

It was erroneous for the Trial Magistrate not to pronounce himself on the stated contradictions and inconsistences. This ground is therefore answered in the affirmative.

GROUND 2: The Learned Trial Magistrate erred in law and fact when he erroneously held that the Agreement dated 10/5/2000 executed between the Respondent and a one


### Kakembo Paul pertaining to the estate is valid in law whereas not.

I note from the record of the lower Court that the suit land belonged to the Late Musoke Samuel. DW2, Betty Nagujja, daughter to the late Musoke Samuel during cross examination stated that the deceased died in January or February, 2000. The record of the lower Court also shows that on 16<sup>th</sup> July, 2004, Kakembo Paul was granted letters of Administration of the Estate of the Late Musoke Samuel. The Letters of Administration were exhibited as PExh.2.

It was the Respondent's case that he got the suit land from his mother as a gift intervivos. It was the evidence of the Respondent in PExh.3, which is the sale agreement dated 10/5/2000 that his late mother bought the suit land from Kakembo Paul.

The Appellant argues that the suit land being part of the Estate of the late Musoke Samuel would only be dealt with by an Administrator and that in 2000 Kakembo Paul had no power to deal with the suit land. On the other hand, the Respondent says that the initial Sale Agreement was orally made between the Late Samuel Musoke and himself and that Kakembo Paul was merely formalizing what was already agreed upon. Counsel for the Respondent argues that there was no law barring the Respondent from entering into an Agreement orally with the late Musoke Samuel.


Whereas I agree that there was no law barring the Late Musoke Samuel from entering into an oral Sale Agreement with the Respondent, I also find that such Agreements if disputed need to be proved. No evidence was led to prove that the Late Musoke Samuel ever had an oral land sale arrangement with the Respondent. The evidence led at the trial Court to prove the allegation of an oral Sale Agreement was that of Respondent which was against that of PW2, Kakembo Paul and PW3, Mary Nakitende the widow of the Late Musoke Samuel who all denied the existence of such an Agreement.

DW2, Betty Nagujja, daughter to the late Musoke Samuel stated in her evidence in chief that her late father had instructed Kakembo Paul and Mary Nakitende to sell the suit land to the Respondent. She however contradicted herself in cross examination at page 15 of the record of proceedings when she said that she does not know whether her father ever sold to the defendant the suit land or whatever happened. The rest of her evidence pertaining the sale of the suit land to the Respondent was hearsay.

I am therefore inclined to find that the evidence as presented in the lower Court does not suggest that there was any oral arrangement between the Late Musoke Paul and the Respondent for the sale and purchase of the suit land.

In relation to the validity of the Sale Agreement between Oliver Nabukeera and the Kakembo Paul it is worth noting that the


Agreement was purportedly executed on the 10<sup>th</sup> May 2000. The evidence on record shows that Musoke Samuel died in January or February 2000 see the evidence of PW1, PW2, evidence in cross examination PW3 and DW2 at pg 113 and 117 of the record of Appeal respectively.

In paragraph 5 of the witness statement of Paul Kakembo he states that he applied for Letters of Administration which he obtained in 2004 the Letters of Administration were tendered as an exhibit for the Plaintiffs.

Under section 180 of the Succession Act an Administrator of a deceased person is his or her legal representative for all purposes, and all the property of the deceased person vests in him or her as such. Therefore, with a grant of Letters of Administration no person has any right whatsoever to sell or otherwise deal with the property of the deceased person. See John Kihika and Kaidoli William versus Absolom Tinkamanyire CACA NO. 86 of 2014.

In effect therefore the Agreement made between Oliver Nabukeera and Kakembo Paul before the appointment of a legal representative would render that Agreement null and void abnito.

The said Agreement being null and void would therefore render the subsequent gift intervivos of no effect since the said Nabukeera could not pass an interest that was fraught with illegality.

This ground succeeds.


**GROUND 3: The Learned Trial Magistrate erred in fact when** he failed to find that the Agreements dated 7/11/1999 and 10/5/2000 pertained to one and the same property that was sold by the late Musoke Samuel.

The Appellant argued that the Agreements marked PExh.3 and PExh.4 which are dated $10/5/2000$ and $7/11/1999$ respectively were in relation to the same land.

PW2, Kakembo Paul who signed the Agreement dated 10/5/2000 as the vendor told Court that the spirit behind making the said Agreement was to help the Respondent. He stated that the Respondent and his mother the late Olivia Nabukeera approached him after the death of Musoke Samuel, and requested that he makes a Sale Agreement showing that the land that the Respondent had bought in 1999 belonged to Olivia Nabukeera. The witness told Court that the Respondent had intimated to him that he was having marital wrangles and was worried that if the purchase agreement to the land that he was occupying showed that it was his, then he might lose it in the course of solving the said wrangles.

Additionally, the witness testified that it was agreed that the Sale Agreement of 2000 would be revoked after the marital wrangles had been resolved though the Respondent refused to surrender the same later on. This evidence was corroborated by PW3, Mary Nakitende, the widow to the Late Musoke Samuel.

I have perused the two exhibits and I note that the said exhibits have the same land size, description and purchase price. From my observation, these Sale Agreements seem to be in regard to the same land.

The Respondent submitted that the suit land neighbors the land he had bought in 1999 and that he could not have described that he was neighboring his own land. However, the Sale Agreement dated $10/5/2000$ does not list him as a party or even a witness. The Sale Agreement is between his late mother, Nabukeera Olivia and Kakembo Paul.

However, the Sale Agreement of 2000 if it had been made validly then his mother Oliver Nabukeera would have named the Respondent as neighbor.

This Court also takes note of the fact that the gift intervivos to the Respondent from his mother was witnessed by the Mary Musoke in 14/08/2003 see the stamp at the bottom. This piece of evidence supports the Appellants case that Nabukeera was giving back the land which was already owned by the Respondent

In addition, and as stated in ground 1, the lower Court observed that the Agreement dated 10/05/2000 was altered as some additions were made to it years after its alleged execution. Such actions make the Agreement suspicious.

It is upon this background that I am inclined to believe the evidence of the Appellant that the Agreements dated 7/11/1999 and

10/05/2000 were in regards to the same land, which is not the suit land.

In the circumstances, I answer this ground in the affirmative.

# GROUND 4: That the Learned Trial Magistrate erred in law and fact when he failed to find that the defense evidence adduced in Court contradicted the findings at the locus.

The record of the lower Court shows that it visited locus. However, the record is silent of the findings and observations Court at the locus save for the evidence given. Courts especially lower should first acquaint themselves with a procedure of a particular course of action before embarking on it.

The trial Magistrate in this case did not properly conduct the locus hearing and this Court cannot therefore exhaustively answer this ground of Appeal given that the record has no findings or observations of the lower court while at locus in quo hearing.

Having answered grounds 1, 2 and 3 of the Appeal in the affirmative, this appeal partially succeeds and the Judgment of lower Court is set aside and replaced with the following Orders:

- a. That the Respondent is hereby declared a trespasser on the suit land. - b. An Order issues restraining the Respondent from interfering with the Appellant's occupation of the suit land.

- $\ensuremath{\mathsf{c}}.$ The Respondent is ordered to vacate the suit land if he is in possession. - d. The Appellant is awarded costs of this Appeal in this Court and the Court below.

#### I so order.

Dated at Mukono this 23 rd<br>Dated at Mukono this 23 rd

## **CHRISTINE KAAHWA JUDGE**