Nantume and Another v Kakaire (Civil Appeal 71 of 2017) [2023] UGHCLD 286 (23 March 2023)

Full Case Text

# THE REPUBLIC OF UGANDA

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

# CIVIL APPEAL NO. 071 OF 2017

(Arising from Civil Suit No. 11 of 2014 of the Chief Magistrates Court of Iganga at Busembatia)

| 1. NUSULA NANTUME | | | |----------------------|-------|------------| | 2. WAAKO ASHIRAF | | APPELLANTS | | | VS | | | KAKAIRE MOSES | | | | KONKO | . | RESPONDENT |

#### **BEFORE: THE HON MR. JUSTICE MICHAEL ELUBU**

# **JUDGEMENT**

The Appellant filed this Appeal against the Judgment and Orders of **Her Worship** Nassozi Rehema of the Chief Magistrates Court of Iganga, sitting at Busembatia, delivered on the $22nd$ of July 2017.

# **Background**

The Respondent, Kakaire Moses Konko, filed Civil Suit No. 11 of 2014, in the Chief Magistrates Court of Iganga, at Busembatia. The Appellants, Nusula Nantume and Wako Ashiraf, were the Defendants in that suit. Nusula Nantume also filed a counterclaim against the Respondent.

The subject matter was land situate in Nawangisa Trading Centre in Namlemba Parish, Namalemba Sub County in Iganga District.

The Respondent's claim against the Appellants was for a declaration that the suit land is the joint property of both the Respondent and the 1st Appellant; General Damages; Special Damages; a Permanent Injunction restraining the Appellants or their agents or servants from trespassing on the suit land; and Costs of the suit.

In her Counterclaim, the 1st Appellant's claim was for recovery of building materials or their value (stated at Ugx 1,074,000/ $=$ ) which were unlawfully converted by the Plaintiff; General Damages; Interest; and Costs of the Counterclaim.

The Plaintiff (Respondent) called four witnesses. It was his case that the 1st Appellant was his cousin, a daughter of his Uncle's wife. That he and the 1st Appellant, jointly acquired the suit land (Plot) on the 16th of October 2007, from one Yazid Menya Mulondo (PW2) and paid 1,400,000/- for it. The plot, which measures 50ft by 100ft, is located at Nawangisa Town Council in Namalemba Parish, Namalemba Sub County in Iganga District. That a sale agreement was drafted by the LC1 Chairperson Bulaimu Kabenge and witnessed by Badaza David (PW3), the seller Yazid Menya Mulondo (PW2), Wanume Muhammed Waiswa (PW4), LC1 Chairperson (Bulaimu Kabenge) and the 1st Appellant who signed as a purchaser. The land remained idle for a while. In 2012 however, the Respondent dug a pit latrine on the land. He then ferried 8000 bricks, 1 trip of lake sand and 1 trip of plaster sand to the plot.

It was also in 2012 that the Respondent learnt that the 1st Appellant had, without his knowledge, sold the suit land to the 2nd Appellant. This prompted the respondent to make radio announcements asserting his ownership and warning off anyone who would trespass on land.

After the announcement, the 1st and 2nd Appellant approached the respondent seeking an amicable settlement of the land issue. That at the meeting, the 1st Appellant admitted selling the plot illegally because of poverty. She offered the Respondent UgX 900,000/= as compensation. The Respondent had initially agreed to the settlement but rejected it when the 1st Appellant wanted to pay in instalments starting with UgX 300,000/ $=$ .

That the sale agreement was kept by the Respondent, in house, for safe custody but it went missing. That he does not know how it went missing. That the Appellant also produced another sale agreement.

That while their joint land purchase agreement had 7 witnesses, the one relied on by the Appellant, had only 5. The Respondent stated that some of the materials placed on the suit land went missing. He stated that the bricks were made at his home and that had never carried away any of the construction materials from the suit land.

The Appellants were the defendants in the lower Court. They denied the Respondents (Plaintiffs) claim in their Written Statement of Defence and called five witnesses.

The case for the 1st Appellant was that she knows the Respondent. That it was the 1st Appellant's mother who introduced the Respondent to her, since he lived nearby while she was far away in Bugerere. That the suit land, which she sold to the 2nd Appellant, belonged to her and not the Respondent. She purchased it on the 16th of October 2007 from Yazid Menya. She has a purchase agreement witnessed by David Badaza (PW3), Muhammed Wanume (PW4), Badru Bamulesewa, Ibrahim Mutagana (DW3), the LC1 Chairperson and Vice Chairperson (Sosipita Waiswa). It was in fact the Vice Chairman who had drafted sale agreement.

That at the time the $1^{st}$ appellant sold the plot to the $2^{nd}$ appellant it was vacant. That the 1st Appellant gave the Respondent UgX 1,500,000/= for the purchase of bricks and the DPC which were poured on the plot. That the Respondent ferried away all her materials which he then used to construct his own house. That when he was queried, he responded that it was the 1st appellants mother who had taken the materials. At the time the 1st Appellant had started constructing a toilet on the suit land but when the respondent took away all the construction materials, the 1st Appellant got frustrated and decided to sell the suit plot.

The 1st Appellant asked the Respondent to buy the suit land but he turned down the offer saying the 1st Appellant parents would not be happy if he bought the land. The respondent then suggested his sister, Mutesi, purchase the plot.

That it was Mutesi who introduced the 1st Appellant to the 2nd Appellant as a prospective buyer of the plot. The 1st Appellant sold the plot to the 2nd Appellant at Ugx. 2,300,000/= and they executed a sale agreement on $3^{rd}$ July 2014. Those present as witnesses were: Ssemugerere Tony, the 1st Appellant's son, Twaha Musobo, Mbase, Mwoga Mugaza, Besibabi, Mubiru Yazidi, Mubiru and Muzamir. That it is the Chairperson Mutagana who drafted this sale agreement.

The 1st appellant therefore asserts the suit land belonged to her and she purchased it with her hard earned money. The respondent was a broker who was paid a fee.

The case for the 2nd Appellant is that the 1st Appellant sold him the plot at Nawangisa, at 2,300,000/-, and they executed a sale agreement dated the 3rd of July 2014. He paid all the money in cash. That it is the Local Council I Chairperson, called Mutagana Sospita, who drafted that sale agreement. He signed the agreement and he came along with a witness called Gyaza Mwoga, while the rest of the witnesses were from the village. The 2nd Appellant was handed two agreements by the 1st Appellant. The $2^{nd}$ Appellant said he was stopped from constructing on the Suit land.

The trial magistrate entered judgment in favour of the Respondent. She found that he was entitled to 25ft X 100ft of the suit land as a share of the plot. He was also awarded General Damages of Ugx. 1,000,000/= together with costs of the suit.

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The Appellants being dissatisfied with that finding filed this Appeal with one ground, namely:

1. The Learned Trial Magistrate Grade I failed to properly evaluate the evidence on court record, which if she had done, she would have found that the Defendant solely bought the suit land, later sold it to the 2nd Defendant now the rightful owner.

# **Submissions**

The parties proceeded by way of oral submissions.

As a precursor, this Court is reminded that this is a first Appeal. The principle therefore is the court must reconsider the evidence, evaluate it itself and draw its own conclusions bearing in mind that it has not had the opportunity to see the witnesses testify and should make due allowance in that respect. (See Uganda Breweries Limited v Uganda Railways Corp SCCA No. 6 of 2001).

In civil matters, the degree of proof (standard) is on a balance of probabilities. (See Miller v Miller of pensions [1947] 2 ALLER 372).

Ground One.

The Learned Trial Magistrate Grade 1 failed to properly evaluate the evidence on court record, which if she had done, she would have found that the Defendant solely bought the suit land, later sold it to the 2nd Defendant now the rightful owner.

It was submitted for the Appellants that had the Trial Magistrate properly evaluated the evidence on the court record she would have arrived at the conclusion that the suit land solely belonged to the 1st Appellant and was not the joint property of the Respondent and the 1st Appellant. That the Respondent's evidence was riddled with major contradictions namely: the price at which the 1st Appellant and the Respondent allegedly purchased the of the suit land; the person who drafted the sale of land agreement for the 1st Appellant and the Respondent; and finally who, between them, had custody of that agreement.

That while the Trial Magistrate put a lot of weight on the Appellants' witnesses forgetting certain facts she did not do the same for the Respondent's witnesses. Additionally, that there was corroboration of the Appellants' case by some of the Respondent's witnesses.

In reply, it was submitted for the Respondent that the Trial Magistrate properly evaluated the evidence on record. That the Respondent was consistent and never discredited. That while there were some contradictions in the evidence, they were minor and did not affect the merits of the case.

That the evidence adduced by the Appellants was full of major contradictions and the Trial Magistrate was right to disbelieve it. That the trial Magistrate noted the demeanour of the Appellants' witnesses and rightfully concluded that they were lying.

# Determination.

This sole ground of Appeal, as indeed this whole case, turns on the evaluation of the evidence. The Respondent's case was that he co-owned the suit land together with the 1st Appellant. As noted, a first appellate court, has a duty to re-evaluate the evidence adduced before the lower court.

It is common ground that the suit land originally belonged to Yazid Menya Mulondo, who testified as PW2. In was the testimony, of both the Respondent, as PW1, and Yazid Menya (PW 2), that the 1st Appellant and the respondent jointly acquired the suit land (Plot) from him at Ugx. 1,400,000/=. It is also true that the $1^{st}$ Appellant sold the land to the $2^{nd}$ Appellant.

The respondent did not produce a copy of the written agreement because, he stated, it was written in an exercise book kept by the 1st Appellant. But the 1st Appellant disputed all this and asserted that she purchased the suit land on her own from PW2 and the agreement drafted to that effect was tendered in evidence through Sosipateri Byakika, PW4.

The divergent positions are that each party claims that the sale agreement relied on by the opposite party is a fraud. Obviously any process by which an advantage or property is knowingly obtained by fraud is void. This court must therefore through the evaluation of the evidence and by investigation, testing and scrutiny make a finding of fact as to which of the two sale agreements, is on a balance of probability, the genuine one.

In the circumstances, PW 2, Yazid Menya, the vendor, becomes a witness of extremely crucial value. His evidence was that he made a joint sale to the respondent and the 1st appellant. That only one agreement of sale was ever made and executed by him. His account of events does not appear to have been discredited in any way. He rejected the sale agreement relied on by the appellants.

It has long been established that the fact that the witnesses have been consistent and have not contradicted themselves during cross-examination, is one of the aids which courts employ in assessing the veracity of witnesses (see Benedicto Ofwono vs **Uganda 1977 HCB 235).**

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The appellants stated that the respondents evidence was riddled with inconsistencies. The specific complaint was with regard to the price at which the 1st Appellant and the Respondent are said to have jointly purchased the land. The Respondent had told court that it was at 1,400,000/- while the PW 2 said he sold at 1,350,000/- coming down from his asking price of 2,000,000/-. PW 4, an uncle to both parties, also said it was $1,400,000/-$ .

The discrepancy here is 50,000/-. It was also on record that 'Bataka' had to be paid on that day. PW 3 and PW 2 all allude to this fact. The other area disputed is who drafted the sale agreement?

It is settled law that grave inconsistencies and contradictions unless satisfactorily explained, will usually but not necessarily result in the evidence of a witness being rejected. Minor ones unless they point to deliberate untruthfulness will be ignored (See: Alfred Tajar v Uganda, EACA Cr. Appeal No.167 of 1969, Serapio Tinkamalirwe v Uganda, S. C. C. A. No. 27 of 1989). The gravity of the contradiction will depend on the centrality of the matter it relates to in the determination of the key issues in the case.

In my view the contradictions pointed out are not central to the main issue in question which is whether this was a joint purchase or the 1st Appellant was sole purchaser. These said discrepancies would not fundamentally negative the evidence of PW 2. The discrepancy on price could plausibly arise from the fact that the witnesses were testifying in 2017 to a transaction that had been concluded almost 8 years before and whose written agreement was not in Court.

I should note that the key defence witnesses particularly one Fatuma Nalwoga DW 5 and Sospiter Byakika DW 4 were found by the trial magistrate to have very wanting demeanours.

Byakika was said to be the one who drafted the sale agreement where the Plaintiff was allegedly only present as a broker and not a purchaser. She found that his demeanour was wanting and a clear sign that he was lying. He insisted that the vendor and purchaser do not sign a sale agreement, that the only important persons were the witnesses present – an outrageous proposition meant to explain anomalies on the agreement.

Nalwoga on the hand said she introduced the Respondent to the 1st Appellant and he was simply a broker. The trial magistrate noted from the demeanour of this witness that she was lying.

In Rusoke vs Uganda [1977] HCB 189 it was noted by the court that while I agree that a Trial Magistrate is entitled to take into account the demeanour of a witness to arrive at a just decision, he should be very careful not to be deceived by the demeanour of a witness who may be a clever liar or an honest but nervous witness and forget to look at the whole evidence and consider whether it sufficiently proves the charges.

I have taken note of the comments on demeanour alongside all the evidence brought in this matter by both sides. I find that taken as a whole the demeanour lends credence to the findings that these witnesses were not completely truthful.

In view of my findings here, I find that this ground of appeal lacks merit and cannot stand.

In sum this Appeal is dismissed. The Orders of the trial court are confirmed.

The Respondent is awarded the costs, here and in the Court below.

Michael Elubu Judge 23.03.2023