Nakagwe & Another v Busulwa (Civil Appeal 47 of 2021) [2023] UGHC 406 (8 August 2023)

### **THE REPUBLIC UGANDA**

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

## **CIVIL APPEAL NO. 47 OF 2021**

## **(ARISING FROM LAND CIVIL SUIT NO. 003 OF 2020)**

#### **1. NAKAGWE NOWERINA**

# **2. MULINDWA STEPHEN ::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANTS VERSUS**

## **BUSULWA RAMATHAN ::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

#### **JUDGMENT**

#### *Before the Hon. Lady Justice Victoria N. N. Katamba*

### **BACKGROUND**

The Respondent instituted Civil Suit No. 003 of 2020 against the Appellants and a one Kabiito Edward Ssalongo for an order of vacant possession of their residential holding following its sale to the Respondent by Kabiito Edward Salongo.

1 st Appellant is the wife of Kabiito Edward Salongo and the 2nd Appellant is the adult son of the 1 st Appellant and Kabiito Edward Ssalongo.

At the trial, the Respondents case was that he purchased the 1st , 2 nd Appellants' and Kabiito Edward Ssalongo's residential holding at Lukenke A Lwabenge sub county from Kabiito Edward Ssalongo and at the hearing he adduced a document which he referred to as the 1st Appellant's consent to the sale.

Kabiito Edward Ssalongo admitted all particulars of the Respondent's claim and also adduced a document which he referred to as the 1st Appellant's consent to the sale of the suit property.

The 1st Appellant denied having given her consent to Kabiito Edward Ssalongo's sale of the suit property and she denied knowledge of it until the Respondent appeared and made a demand for vacant possession. The 1st Appellant and Kabiito Edward Ssalongo were blessed with six children, two of whom are minors who still need the protection of a family shelter.


The trial Magistrate who heard the matter found for the Respondent and disregarded the 1st Appellant's denial of execution of the impugned consent reasoning that she had omitted or failed to adduce a handwriting expert opinion detaching her from the consent on the court record.

The 2nd and 3rd Defendants/Appellants were dissatisfied with the findings of the Learned Trial Magistrate and thus instituted the instant appeal.

#### **Representation**

The Appellant was represented by M/s Kaliba Associated Advocates

The Respondent was unrepresented but filed conferencing notes/ written submissions in opposition to the appeal.

At institution of the Appeal, the Appellant raised Three grounds of appeal to wit;

- 1. *The learned trial magistrate erred in law and fact when she held that the 1st Appellant consented to the sale of the suit property by Kabiito Edward Ssalongo to the Respondent yet there was overwhelming evidence to the contrary.* - 2. *The learned trial Magistrate erred in Law and fact when she issued an order of vacant possession against the 1st Appellant yet the suit property was her Matrimonial property which was unjustified in the circumstances of the case.* - 3. *The learned trial Magistrate erred in law and fact when she selectively evaluated the evidence of the Respondent against that of the Appellants thereby arriving at a wrong conclusion.*

The parties filed written submissions in this appeal and the same have been considered for the writing of this Judgment.

### **APPELLANT'S SUBMISSIONS**

The Appellants abandoned ground two and argued grounds one and three.

### **Ground one.**

It was submitted for the Appellants that the learned trial Magistrate erred in law when she transferred the burden of proof of the authenticity of the document (exhibit D1) that was adduced


before court by the Respondent and 1st Defendant as the 1st Appellant's consent to the sale of the suit property which she refers to as her matrimonial property.

It was further argued that the burden of proof lies with the party who alleges existence of certain facts to prove them and that as such the learned trial magistrate erred when she rejected the 1st Appellant's denial of the consent for failure to call a handwriting expert to extricate herself from it.

The Appellant also restated the law on requirement of a spousal consent before dealings in matrimonial property in particular S. 39(1) (c) of the Land Act which bar natural persons from transacting in land on which they reside with their spouses and from which they derive sustenance without the prior consent of the spouse. He submitted that the requirement as to form of the consent in regulation 64(3) of the Land Regulation 2004 in form 41 was never adhered to in the impugned exhibit D1.

The Appellants thus prayed that this court be pleased to answer this ground in the affirmative.

#### **Grounds 3:**

The Appellants argued that the trial Magistrate erred when she selectively considered the Respondent's evidence in exclusion of that of the Appellants and thus arrived at an erroneous conclusion.

The Appellants submitted that the record of the trial court shows that according to DW1, Kabiito Edward Ssalongo, the consent that was given to him was premised on DW1 buying for the 1st Appellant a bigger piece of land. The Appellants contend that the trial court had a duty to probe/investigate if at all the bigger piece of land had been procured by Kabiito Edward Ssalongo to resettle his family.

That the fact that the 1st Appellant never witnessed the sale agreement and also refused to vacate it to pave way for the Respondent's occupation point to the fact that she never gave her consent to the sale in the first place.

#### **RESPONDENT'S SUBMISSIONS**

#### **Ground 1.**

The Respondent argued that the Appellants were relying on technicalities to defeat his otherwise lawful purchase of the suit land. He maintained that rules of procedure should not be used to defeat a bona fide claim.

The Respondent further submitted that this being a land matter, it should be determined on its merits without undue regard to technicalities which are barred by Article 126(2)e of the Constitution of Uganda, 1995.

#### *Ground 3:*

The Respondent supported the findings of the learned trial Magistrate whom he said properly evaluated the evidence of both parties and arrived at a just conclusion. He prayed that the appeal be dismissed and a fresh execution process be ordered as pointed out by Her Worship Basajabalaba Jalia.

#### **DETERMINATION OF COURT**

I am alive to, and I have discharged the duty of this first appellate court which is to re-appraise the evidence and subject it to an exhaustive scrutiny and come to its own conclusions as was stated in a plethora of authorities like *Uganda Revenue Authority versus Rwakasanje Azariu & 2 Ors; CACA No. 8/2007; Fr. Narsensio Begumisa and 3 Ors versus Eric Tibebaga; SCCA No. 17 of 2002 and Banco Arabe Espanol versus Bank of Uganda; SCCA No. 08 of 1998.*

*Ground one: The learned trial magistrate erred in law and fact when she held that the 1st Appellant consented to the sale of the suit property by Kabiito Edward Ssalongo to the Respondent yet there was overwhelming evidence to the contrary.*

I have had opportunity to examine the Appellants' written statement of defence which was filed on 5th August 2020. It has on it a marriage certificate between the 1st Appellant and the 1st Defendant (Kabiito Edward Ssalongo) as an annexure and generally these parties' marriage is not in dispute.


The written statement of defence also bears no counterclaim and as such the Appellants had no duty to prove claims against the Respondents but simply defend themselves against the Respondent's allegations in the trial court.

# *S.101, 102 and 103 of the Evidence Act Cap. 6 of Uganda confer the burden of proof on that party who alleges or who stands to lose the case if no evidence is brought to support a claim/s.*

Accordingly, once the 1st Appellant denied execution of the impugned consent to the sale the suit property, the burden of proof remained with the Respondent/Plaintiff to prove that the 1 st Appellant executed the impugned document. This burden never shifted to the 1st Appellant.

The Respondent as claimant should have moved court to mandatorily require the 1st Appellant/2nd Defendant to submit a test sample of her handwriting/signature to be forwarded along with the impugned consent to a handwriting expert. This way, court would have been properly guided as to whether the signatory of the test samples handwriting/signature (1st Appellant) is the same person that executed the impugned consent.

In the absence of positive evidence attributing the impugned consent document to the 1st Appellant, I am of the firm opinion that the learned trial Magistrate erred when she shifted the burden of proof to the party that did not raise the allegations in issue.

As for the Respondent's claims that S.39(2) (c) of the Land Act amounting to technicalities raised to defeat his *bonafide* claims, I find that there were no bona fide claims to start with. The Respondent had a duty to ensure that the vendor properly obtained the 1st Appellnt's consent before parting with the contract price as a diligent purchaser.

Secondly. S.39(2) (c) of the Land Act is a provision in an Act of parliament. Provisions of statutes/ Acts of Parliament cannot be said to be technicalities. *See Kasirye & Byaruhanga and Co. Advocates vs. Uganda Development Bank SCCA No. 2 of 1997.*

*Also, principles in Article 126 including administering substantive justice without undue regard to technicalities, must be applied "SUBJECT TO THE LAW". See Mulindwa vs. Kisubika SCCA No. 12 of 2014.*

In conclusion, this ground is hereby allowed.


**Grounds three**: *The learned trial Magistrate erred in law and fact when she selectively evaluated the evidence of the Respondent against that of the Appellants thereby arriving at a wrong conclusion.*

I am also inclined to agree with the Appellants that the learned trial Magistrate Grade One selectively evaluated the evidence of the Respondent against the Appellants because she ought to have investigated as to whether the 1st Defendant/ Kabiito George Ssalongo had indeed bought a bigger piece of land to settle his family. Kabiito George Ssalongo presented this intention as the basis from which he procured the impugned consent to sell the suit property. Proving whether Kabiito had executed this promise or not would have gone a long way to guide the learned trial Magistrate on whether the impugned consent was ever granted.

The provision on the requirement for spousal consent before disposing of marital property was created to put an end to a common mischief. Since this mischief was rampant, it necessitated creation of an express legal provision to put an end to it. It is not surprising therefore that in order to avoid the legal requirement, a few errant individuals still find divers' ingenious schemes to bypass it and continue the mischief that the law sought to cure.

In conclusion this ground is also allowed, the appeal hereby succeeds on the above two argued grounds and the Appellant is awarded costs of the trial court and this court.

Orders:

- 1. An order issues setting aside the Judgment and orders of the trial court. - 2. An order issues dismissing the Respondent's suit in the lower court. - 3. The Appellant is awarded costs of this appeal and in the lower court.

Dated and delivered electronically this 8th day of August, 2023.

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### **VICTORIA NAKINTU NKWANGA KATAMBA**

### **JUDGE**