Naggayi v Nandawula (Civil Appeal 55 of 2021) [2023] UGHC 382 (17 November 2023)

#### **THE REPUBLIC OF UGANDA**

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

#### **CIVIL APPEAL NO: 055 OF 2021**

#### **(Arising from Kalisizo Civil Suit No: 17 of 2018)**

**NAGGAYI ADROCO…………………………………………………….….. APPELLANT**

#### **VERSUS**

# **ANNET NANDAWULA……………………………………….……..…….. RESPONDENT (ADMINISTRARIX OF THE ESTATE OF SSESSIRIYA BIRUNGI LWAKASOLE) JUDGMENT**

**(Appeal against the Judgment & Orders of Her Worship Mfitundinda George, Magistrate Grade One at Kalisizo under the Chief Magistrates Court of Masaka)**

#### **BACKGROUND**

The Respondent instituted Civil Suit No. 17 of 2018 in the Chief Magistrates Court of Masaka at Kalisizo against the Appellant & others. The Respondent sought to recover a piece of land situate at Kalisizo North LC1 in Kalisizo Town council.

The Respondent/Plaintiff's case was that she held letters of Administration to the estate of the Late Ssesiria Lwakasole Birungi who was the owner of the suit Kibanja. That the 1st Defendant/Appellant without any color of right, trespassed onto the Kibanja and sold parts of it to the rest of the defendants. The Plaintiff/Respondent sought a declaration that the Defendants were trespassers on the suit land, an eviction order, a permanent injunction and costs of the suit. The Defendants denied being trespassers. The 1st Defendant/Appellant averred that she is the holder of letters of administration to the estate of her late husband, Tonny Mugambe who owned the suit kibanja. That the rest of the defendants purchased portions from the 1st Defendant. Judgment was entered in favour of the plaintiff, hence this appeal.


#### **Representation**

The Appellant was represented by **Nnyanzi & Nnyanzi** Advocates

The Respondent was represented by **M/s Stabit Advocates**

The Appellant filed an amended Memorandum of Appeal raising the following grounds of appeal:

- *1. The learned Trial Magistrate erred in law and fact when he failed to properly evaluate the evidence on record and thereby made an erroneous decision that the suit kibanja belongs to the Plaintiff and that the 1st Defendant was a trespasser on the suit land.* - *2. The learned Trial Magistrate erred in law and fact when he held that the suit kibanja does not belong to the 1st Defendant but forms part of the estate of the Late Ssesiriya Birungi Lwakasole against the weight of the evidence on record.*

#### **The duty of this Court as a first Appellate**

The duty of a first Appellate Court is to re-appraise or re-evaluate evidences as a whole and come to its own conclusion bearing in mind that it has neither seen nor heard the witness and should make due allowance in that regard.

The Supreme Court has re-echoed the above principles in a number of cases like *Uganda Revenue Authority versus Rwakasanje Azariu & 2 Ors; CACA No. 8/2007; Fr. Narsensio Begumisa and 3 Ors versus Eric Kibebaga; SCCA No. 17 of 2002 and Banco Arabe Espanol versus Bank of Uganda; SCCA No. 08 of 1998.*

I therefore have the duty to re-appraise the evidence and reach my own conclusions thereon subject to the caution that I did not see, hear, or observe the witness.

**Decided cases have also established that "***where the trial court has erred, the Appellate Court will only interfere where the error has occasioned a miscarriage of justice. The Appellate Court has a duty to reevaluate the evidence of the trial court while considering facts, evidence and the law. The court can interfere with the findings of the trial court, if the court misapplied or failed to apply the principles applicable to the offence charged" in this civil case, the issues that were raised before court for determination.*


#### **Appellant's submissions:**

The Appellant argued both grounds jointly.

She submitted that whereas the Respondent relied on the will of the Late Ssesiriya Lwakasole to claim a beneficial interest in the suit kibanja, she adduced a photocopy of the said will which bore a 5th signature in original ink.

The Appellant further argued that whereas the Respondent admitted in her evidence that the suit kibanja initially belonged to the Late Thomas Lwakasole, she did not know how the Late Ssesiriya Lwakasole came to own the kibanja.

The Appellant also argued that even the Respondents witnesses testified that the suit kibanja belonged to the Late Thomas Lwakasole and not his wife (the Late Ssesiriya Lwakasole Birungi) for whose estate the Respondent is Administrator.

In addition to the above, the Appellant also criticised the learned Trial Magistrate for having overlooked the fact that the Respondent departed from her pleadings. That having sued as owner of the suit Kibanja, she changed her claim when she testified that she is suing as an Administrator of the estate of the Late Ssesiriya Lwakasole Birungi.

In conclusion, the Appellant prayed that this court be pleased to allow the grounds of appaela and set aside the decision of the learned Trial Magistrate.

#### **Respondent's Submissions:**

#### **Ground one**;

The Respondent submitted that the learned Trial Magistrate visited locus and found that the clear boundaries of the kibanja that Brother Bazeketta and Irene Nakamwa sold to the 1st defendant's husband was given to the Plaintiff/Respondent in the will of the Late Lwakasole Birungi.

The Respondent supported the findings of the learned Trial Magistrate, that he rightly found that the transaction between Brother Bazeketta and the 1st Defendant's husband was null and void.

#### **Ground two**;

The Respondent reiterated that the trial court having found that the sale transaction between the Appellant's now deceased husband and a one Bazekette and Nakamwa was null and void, rightly concluded that the suit kibanja belongs to the estate of the Late Ssesiriya Lwakasole Birungi.

She relied the famous authority of *Makula International Ltd vs. His Eminence Cardinal Nsubuga & Anor to buttress her argument that court cannot sanction what is illegal.*

The Respondent then prayed that this Honourable court be pleased to dismiss the appeal with costs to her.

#### **Determination of court:**


I have carefully examined the submissions of the parties and the record of the trial court but before addressing the grounds of appeal, I will delve into the preliminaries.

First among the preliminary matters I wish discuss are the Appellant's grounds of appeal. I find that the Appellants grounds of appeal are generally narrative and argumentative contrary to *Order 43 rule (1) and (2) of the civil Procedure Rules as amended which require that a ground of appeal should be concise and specifically state or set out the ground of objection to the Decree from which the appeal emanates. See Attorney General vs. Florence Baliraine CACA No. 79 of 2003*

The grounds could have been framed simply as below;

*Ground one*: *The learned Trial magistrate erred when she held that the suit kibanja belongs to the Plaintiff and that the 1st Defendant was a trespasser on the suit land.*

*Ground two: The learned Trial magistrate erred when he held that the suit kibanja does not belong to the 1st Defendant but forms part of the estate of the Late Ssesiriya Lwakasole.*

Given that the Respondent has not complained against the impugned framing, this court will pardon the Appellant for the flaw and adopt the reframed grounds as the intention of the Appellant.

The Second preliminary is in respect to the Respondent's objection to the appeal for having been filed out of time. The Respondent contends that Under S.79 of the Magistrates Act, an appeal to the High court must be filed within 30 days.

Whereas I agree with the Respondent that indeed an appeal to the High court should be filed within 30 days, I am inclined to agree with the Appellant's submission that time does not run where the intending Appellant requests the Trial court for the record of proceedings. It is only until the record has been made available that the 30 days begin to run.

In the instant case, Judgment was delivered on 20th October 2021. The Appellant wrote a letter requesting for a certified copy of the record of proceedings and Judgment dated 25th October 2021. The letter was received at the registry of the Trial court on 2nd November, 2021 before expiration of the 30 day's period. The record was certified on 10th February 2022. The initial memorandum of appeal was filed on 10th December 2021 before the certified copy of the record was even made available to the Appellant.

In the premises, I find that the appeal was instituted within the time allowed at law, the Respondent's objection is misconceived and it's hereby rejected.

## *Ground one*: *The learned Trial magistrate erred when she held that the suit kibanja belongs to the Plaintiff and that the 1st Defendant was a trespasser on the suit land.*

I have considered the pleadings and the evidence that was adduced and relied on by the trial court. I have observed that the 1st Defendant in her written statement of defence which was filed in the trial court on 9 th April 2018 pleaded in paragraph 3(c), that her husband, the Late Mugambe Tonny purchased the suit kibanja from the Late Lwakasole Tomas' beneficiary- a one Brother Bazze Katongole. She further pleaded that her husband also purchased another part from Irene Nakamwa. She attached the agreements as "A" and "B" to her defence.

In cross examination, the Respondent testified at page 7 of the record of proceedings that the disputed Kibanja formed part of the Late Tomas Lwakasole's bigger kibanja. That Thomas Lwakasole left 3 children to wit, Brother Katongole Bazeketa, Nakyanzi and Nabasumba. Brother Katongole Bazeketa was the heir of the Late Tomas Lwakasole. Without disclosing the source of her information, the Respondent also testified that she heard that Brother Bazeketta sold a portion on the Late Tomas' Kibanja. That she even never saw the Late Tomas.

At the trial, the Appellant testified that her husband, Tonny Mugambe, who was the brother to the Respondent's father (Ssenkubuge Peter), bought the suit Kibanja from Brother Bazeketa on 7th April 2011. Exhbit DE1 was admitted as the sale agreement on the record of the court.


The Appellant further testified at page 19 of the record of proceedings that the other portion of the disputed Kibanja was also purchased by her husband, the Late Tonny Mugambe from Nakamwa Irene, another beneficiary of Tomas Lwakasole. An agreement witnessing the purchase was also tendered on the record as defence exhbit (DE3)

In light of the above evidence on record, I find the Appellant's evidence more believable as contrasted with that of the Respondent who is stated on the record to be the Administrator of the estate of the Late Sesirya Lwakasole, wife to the Late Tomas Lwakasole who owned the land.

The Respondent's case also presented a challenge of the fact that whereas she obtained Letters of Administration in the estate of the Late Cecilia Lwakasole, and was claiming under her will, she admitted that the will had never been proved in a court of competent jurisdiction.

When a document is required to be attested, it cannot be relied on in evidence until it's execution has been proved. **See Section 67 of the Evidence Act Cap. 6.**

*S. 188 of the Succession Act Cap. 162 provides that no right as executor or legatee shall be established in any court of justice, unless a court of competent jurisdiction within Uganda has granted probate of the will under which the right is claimed, or has granted letters of administration under section 181 of the same Act.*

There is no proof on record that the Respondent has ever proven the execution of the alleged will of the Late Cecilia Lwakasole nor that probate has ever been granted in her estate under the will.

The above finding shows that the learned Trial Magistrate erred when he relied on the alleged will to arrive at a conclusion that the suit land belonged to the Respondent, in her capacity as Administrator of the estate of the Late Cecilia Lwakasole.

On the other hand, the Appellants evidence on record in exhibits DE1 and DE3 demonstrates that her deceased husband, Tonny Mugambe lawfully came on to the suit land as a purchaser. The fact that the Appellant (also Administrator of the Late Tonny Mugambe) lawfully came onto the land, gives her a right to enjoy possession. The burden of proof that the Appellant encroached on extra land outside her kibanja squarely lay on the Respondent who failed to discharge this burden because she testified that she did not know the boundaries of her Kibanja.


I have also examined the Judgment of the learned Trial Magistrate, the record and the pleadings of the parties and I have found no illegality concerning the Appellant's now deceased husband's purchase agreements, over the suit land. An illegality must be distinctly traversed, if court is construe it as such.

In conclusion, I agree with the Appellant that the learned Trial Magistrate erred when he relied on the unproven will to arrive at a conclusion that the suit kibanja belongs to the Plaintiff/ Respondent and that the Appellant/1st Defendant is a trespasser.

Resolution of ground one has also settled ground two. Ground two is equally allowed and in sum, the appeal hereby succeeds. Given that the parties are in some way related, this court shall encourage the spirit of reconciliation by among others making an order that each party shall bear its costs of the trial and this court.

I so order.

Dated this 17th day of November, 2023.

Orders:

- 1. The Judgment and orders of the Trial Magistrate are hereby set aside. - 2. The suit Kibanja does not form part of the estate of the Late Ssessiriya (Cecilia) Birungi Lwakasole. - 3. Each party will bear its costs of both the trial and this court.

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### **VICTORIA NAKINTU NKWANGA KATAMBA**