Natukunda v Friday (Civil Appeal 5 of 2023) [2024] UGHC 848 (29 August 2024)

# **THE REPUBLIC OF UGANDA, IN THE HIGH COURT OF UGANDA AT FORT PORTAL CIVIL APPEAL NO. 005 OF 2023 (ARISING FROM KJJO-21-CV-LD-013-2020)**

**NATUKUNDA FLORENCE ::::::::::::::::::::::::::::: APPELLANT**

**VERSUS**

**FRIDAY JAMES :::::::::::::::::::::: RESPONDENT**

#### **BEFORE HON. MR. JUSTICE VINCENT EMMY MUGABO**

#### **JUDGMENT**

This is an appeal against the judgement and decree of H/W Babu Waswa, the Magistrate Grade 1 of the Chief Magistrate's Court of Kyenjojo at Kyenjojo delivered on the 12th of January 2023 wherein he decreed that the suit property is jointly owned by the parties herein, ordered for equal distribution of the same, and awarded costs of the suit to the respondent.

#### **Background**

The appellant filed Civil Suit No. 13 of 2020 against the respondent in the Chief Magistrate's Court of Kyenjojo at Kyenjojo, seeking a declaration that she is the owner of the suit property, an order for vacant possession, a permanent injunction, general damages, and the costs of the suit. The appellant claims that she is the lawful owner of the suit land situate at Kiseruka Cell, Kijuma Ward, Kyenjojo Town Council, having purchased it from Kataranga James. She further claims that she constructed a residential house on the suit land with assistance from the respondent, with whom she was cohabiting. The parties then moved, together, into the suit property, but in 2019, the respondent forced the appellant to leave their residential house.

In his written statement of defence, the respondent denied the appellant's claims and counterclaimed that the suit property was joint property acquired during their cohabitation, to which he was entitled to equal shares.

In his judgment, the trial magistrate held that the suit property was jointly owned by the parties in equal shares. The appellant was ordered to refund 50% of the value of the suit property to the respondent and to pay the costs of the suit.

Being dissatisfied with part of the decision of the trial magistrate, the appellant appealed to this court on the following grounds, as set out in the amended memorandum of appeal:

- 1. The learned trial magistrate erred in law and fact when he ordered that the suit be equally shared amongst the parties in total disregard of the appellant's evidence that she contributed more towards the purchase price. - 2. The learned trial magistrate erred in law and fact when he failed to evaluate and consider the evidence towards the construction of the house on the suit land hence arriving at an erroneous decision - 3. The learned trial magistrate erred in law and fact when he awarded the costs of the suit to the respondent after ordering that the parties equally share the suit property.

#### **Representation and Hearing**

Mr. Ijuka Joab represented the appellant whereas the respondent was unrepresented. The hearing proceeded by way of written submissions. Parties filed written submissions which I have considered in this judgement.

## **Duty of the First Appellate Court**

This being a first appeal, this court is under a duty to reappraise the evidence, subject it to exhaustive scrutiny and draw its own inferences of fact, to reach its independent conclusion as to whether the decision of the trial court can be sustained. This duty is well explained in the case of *Father Nanensio Begumisa and three others v. Eric Tiberaga SCCA 17of 2000* where the court held thus:

*"It is a well-settled principle that on a first appeal, the parties are entitled to obtain from the appeal court its own decision on issues of fact as well as of law. Although in a case of conflicting evidence, the appeal court has to make due allowance for the fact that it has neither seen nor heard the witnesses, it must weigh the conflicting evidence and draw its own inference and conclusions***."**

It is not the function of a first appellate court to merely scrutinize the evidence to see if there is some evidence to support the lower court's finding and conclusion; it must make its own findings and draw its own conclusions. Only then can it decide whether the trial court's findings should be supported. In doing so, court should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses *(see: Peters v. Sunday Post [1958] E. A 424).*

Against this background, I now re-evaluate the evidence presented at trial against the appellant's grounds of appeal.

# **Consideration by Court**

In this appeal, I will handle grounds 1 and 2 concurrently since they both relate to the parties' extent of contribution and ownership in the suit property. I will then handle ground 3 separately.

# **Grounds 1 and 2**

Counsel for the appellant argued grounds 1 and 2 jointly. Counsel for the appellant submitted that at the trial, the appellant had adduced evidence of the source of funds which she used to acquire and develop the suit property. Counsel for the appellant argued that there was evidence on record showing that the appellant acquired a loan of UGX. 3,600,000/= from Barclays, now Absa Bank, to purchase the suit property as per Pexh 1, a loan payment schedule.

Counsel for the appellant submitted that the respondent had only contributed UGX. 800,000/= while the appellant had contributed to UGX. 2,700,000/= towards the acquisition of the suit property. Counsel for the appellant argued that in much as the respondent contended that he contributed UGX. 2,000,000/= towards the purchase of the suit property, he did not adduce evidence to that effect save for UGX. 800,000/= that the respondent got from the sale of a bull given to him by his mother.

Counsel for the appellant argued that the respondent had admitted during cross-examination that he and the appellant never jointly sourced funds to acquire and develop the suit property.

Counsel also argued that the learned trial magistrate had failed to evaluate the evidence of contribution towards the construction of the residential house since the funds used for construction were not from a common source. Counsel for the appellant argued that the appellant had adduced evidence that she acquired an additional loan of UGX. 5,300,000/= from Centenary Bank, as per Pexh 2 and 3, to develop the suit property into a residential house.

Counsel for the appellant also submitted that during the trial, PW2, who was hired by the appellant to do the finishing work on the residential house, testified to that effect and that this evidence was not challenged by the respondent at the trial.

Counsel for the appellant referred this court to the case of *Ambayo Joseph Waigo v. Aseruka Jackline CACA No. 10 of 2015* and argued that the learned trial magistrate had not applied the doctrine *of stare decisis* hence arriving at an erroneous conclusion.

On the other hand, the respondent submitted that the learned trial magistrate properly evaluated the evidence on record. The respondent argued that he had jointly acquired the suit property with the appellant as per the purchase agreement dated 27th of February 2012 and admitted in evidence as Dexh 2.

The respondent also argued that although the appellant had led evidence that she acquired a loan of UGX. 3,600,000/=, she did not apply all the money to purchase the suit property and there was evidence on record that the respondent paid the outstanding balance after selling a bull that had been given to him by his mother. The respondent argued that it was never stated anywhere that the parties had acquired the suit property with varying shares. The respondent referred this court to the case of *Julius*

## *Rwabinumi v. Hope Bahimbisomwe SCCA No. 10 of 2009*.

The respondent further argued that as per his testimony, PW2 was only hired to do the finishing works on the suit property and this implied that the construction of the suit property had been jointly financed by the parties herein, and hence the appellant had failed to prove to the court that

she had contributed more than the respondent. The respondent referred this court to the case of *Okech Wilson v. Odong Balam HCCA No. 10 of 2014* and argued that the appellant had the onus to prove to the court that she had contributed more than what the respondent had contributed.

## **Court's Consideration of Grounds 1 and 2**

It is not contested that the parties herein, who were staying together in cohabitation, contributed towards the acquisition and development of the suit property. What is in contestation is the extent of each party's contribution and by implication the amount of share, in the suit property, that each party is entitled to.

At the trial, the appellant, who testified as PW1, told the court that she started staying with the respondent in a rented house in 2010 and in 2012, she developed a desire to acquire land where the parties could build a home. Subsequently, she acquired a loan from UGX. 3,600,000/= from Barclays Bank so that she could buy a plot of land where the parties would build a home. This plot of land was eventually bought on the 27th of February 2012.

The appellant further testified that after purchasing the plot, she suggested to the respondent, with whom they were cohabiting together, to construct the house thereon. In the years 2013 and 2014, she acquired more loans from Centenary Bank to the tune of UGX. 5,300,000/= and applied the money towards the development of the suit property. The appellant's loan repayment schedule from Barclays Bank was admitted in evidence as Pexh 1 and loan agreements with Centenary Bank in 2013 and 2014 were admitted in evidence as Pexh 2 and Pexh 3, respectively.

PW1 further testified that after moving into the suit property with the respondent, they started developing a misunderstanding, and the respondent left the house but came back in December 2019 and attempted to evict her from the suit property.

During cross-examination, the appellant told the court that although she had acquired a loan of UGX. 3,600,000/=, she only paid UGX. 2,700,000/= as the first instalment towards the acquisition of the plot of land and used the balance to cater for other family needs with the consent of the respondent. The appellant also stated that the appellant paid UGX. 800,000/=, which was proceeds from the sale of a bull donated to him by his mother, as the last instalment of the purchase price of the plot on which the suit property sits.

PW2, Muhairwe Godfrey, a builder, also told the court that in 2017, he was hired by the appellant to do the finishing works on the suit property and at all material times, the appellant was in charge of the building process and that he always received payment from her.

The respondent, who testified as DW1, told the court that he purchased the suit property jointly with the appellant at a consideration of UGX. 3,500,000/=, and they paid UGX. 2,700,000/= as the first instalment with the balance to be paid in one month. When one month lapsed, the respondent raised the balance of UGX. 800,000/= by selling a bull that had been given to him by his mother, and then paid the final instalment. A land sales agreement in the names of both parties was admitted in evidence as Dexh 2.

That after completing the payment of the suit property, the parties herein jointly raised funds and started constructing a residential house thereon, and in 2014, the parties, together with their three children started staying on the suit property. The appellant further told the court that the duo lived on the property peacefully until 2020 when the appellant shifted to Nyamango, her new workstation.

During cross-examination, the respondent told the court that he contributed to UGX. 2,000,000/= towards the purchase of the suit plot but did not have proof to that effect or any proof that he contributed towards the construction of the residential house. The appellant also told the court that he and the appellant used to raise money jointly to construct the house since they lived as husband and wife. DW2, Mujumbi Wilson, also told the court that in 2012, the parties herein bought the plot jointly. This evidence was also corroborated by DW3, Kisembo Ronald.

In concluding that the parties herein jointly contributed towards the purchase and development of the suit property in equal measure, the learned trial magistrate held that:

> *"Judging from the conduct of parties, the land sales agreement, and its addendum, the facts surrounding such conduct and transactions indicate that the defendant sold a bull his mother gave him but both documents show that the land was bought by both parties, as Mr. and Mrs. Friday James. The agreements do not show how much each party contributed towards the purchase price.*

> *It is my finding that both parties contributed to the purchase and construction of the suit property in equal measure.*

> *Accordingly, the plaintiff is not the sole owner of the suit property, the same is jointly owned with the defendant and the defendant is not a trespasser thereon."*

With due respect, it is not very clear how the learned trial magistrate computed the respondent's contribution to the suit property and determined it as the equal contribution of 50% in the acquisition and development of the suit property.

In the case of *Ambayo Joseph Waigo v. Aseruka Jackline (supra),* the Court of Appeal observed that although evaluating the evidence of each spouse's contribution towards the acquisition and development of property is no mean task, such contribution is a question of fact. Quoting the case of *Pettit v. Pettit [19691] 2 ALL ER 385 HL*, the Court of Appeal went on to state that:

> *"The extent of the share of each spouse is a question of fact in each case, and the mere fact that evaluation of the respective shares may be difficult for want of clear evidence does not justify the wholesale application of the maxim "equality is equity". The court can draw inferences from the conduct of the spouses. Such conduct may include a contribution towards the purchase, mortgage repayments et cetra."*

In line with the above principles, I will reappraise the evidence of each party's contribution to the suit property as presented to the trial court.

The appellant, a teacher by profession and practice, testified that she got salary loans from Barclays Bank and Centenary Bank to finance the purchase and development of the suit property. She attached the loan repayment schedule and loan agreements to prove her source of funds. Nonetheless, since the suit property was not acquired by way of mortgage, it's hard to tell whether the appellant applied all the money towards the acquisition and development of the said property.

At the trial, the appellant stated that the only contribution the respondent made towards the acquisition of the suit property was UGX. 800,000/= which was the final instalment of the purchase price. On the other hand, the respondent testified that he contributed to UGX. 2,000,000/= towards the purchase of the plot and then made various contributions towards the construction of the residential house thereon. However, there is no proof of contribution towards the construction. Also, the UGX. 2,000,000/= the respondent claims to have contributed is disputed save for only UGX. 800,000/= which was proceeds from the sale of the bull which had been given to the respondent by his mother.

At the trial, the respondent told the court that in 2012, he was working as a security personnel with Kyenjojo District Local Government, earning a salary of UGX. 290,000/= and had in the year 2011 acquired a salary loan of UGX. 3,500,000/=.

The learned trial magistrate did not believe the evidence of the appellant but instead applied wholesomely the doctrine of *equality is equity* to declare equal contribution and ownership without evaluating individual contribution towards the purchase of the suit land.

Looking at the peculiar circumstances of the case, I tend to understand that the challenge before the learned trial magistrate was that of extracting the truth from falsehoods as contained in the testimonies of the parties herein.

In the case of *Ambayo Joseph Waigo v. Aseruka Jackline (supra),* which is almost in four corners with the instant one, the Court of Appeal held that:

> *"In the face of conflicting oral testimonies, one of the tools used to extract the truth from falsehood is ascertaining whether the evidence of a particular witness in respect of any particular fact or set of facts is in conformity with reallife experience and collateral circumstances. If the*

*testimony tallies with what happens in real life in the given situation, then the probability is that it is truthful. Where the testimony deviates from what ordinarily happens in real life, then the probability is that it is untruthful unless a reasonable explanation is given to account for the deviation."*

Quoting *Sarkar's Law of Evidence. 14rn Edition. 1993 Reprint. Volume 1, on pages 924 – 925*, the Court of Appeal went on to state that:

> *"There is no better criterion of the truth, no safer rule for investigating cases of conflicting evidence, where perjury and fraud must exist on the one side or the other, than to consider what facts are beyond dispute and examine which of the two cases best accords with these facts, according to the ordinary course of human affairs and the usual habits of life. The probability or improbability of the transaction forms a most important consideration in ascertaining the truth of any transaction relied upon [Bunwari V. Hetmaruin, 7MIA 148; see Ramgopal V. Gordon Stuart & Co., 14 MIA 453; See Leelamund v. Bassiroonnissa, 16 WR 102]"*

In the instant case, the parties were cohabiting and had 3 issues together. Tired of renting, they chose to buy a plot of land so that they could build a home, which is now the suit property. The appellant, who is a teacher, got a loan from Barclays Bank of UGX. 3,600,000/= on the 22nd of February 2012, and on the 27th of February 2012, the parties purchased the plot in issue at UGX. 3,500,000/= but paid a first instalment of UGX. 2,700,000/= and the balance was to be paid within a period of one month. The balance

was, however, paid on 7th September 2012 by the respondent after selling a bull that her mother gave her.

The respondent testified that he was a security personnel at the time earning a salary of UGX. UGX. 290,000/= and had, in the year 2011, acquired a salary loan of UGX. 3,500,000/=. Although he stated that he contributed towards the purchase and development of the suit property, his only proof of the source of funds is the sale of a bull given to him by his mother. These proceeds were used to pay the last instalment of the purchase price.

PW2, Muhairwe Godfrey, who is a builder, told the court that he was hired by the plaintiff during the roofing and shuttering of the residential house. He stated that he was paid by the appellant and, at all relevant times, believed that the appellant was the owner of the suit property.

The key question here is whose version, among the parties, should the court believe? This can be answered well when one looks critically at the capabilities of each party at the time and acquisition and the development of the suit property.

In the case of *Ambayo Joseph Waigo v. Aseruka Jackline (supra),* the Court of Appeal held that:

## *"In seeking to establish whose version was more in conformity with reality, the starting point is an examination of the capabilities needed to do what they claimed to have done in a real-life situation"*

In the instant case, the appellant was a schoolteacher, and she acquired a loan 3 times, to contribute towards the purchase and development of the suit property. It is possible that she may not have applied the entire loan on the suit property but is highly probable that she applied the larger part of it to acquire and develop the same. It is also evident that from the loan that the appellant acquired, what was not applied to the construction of the residential house was applied to the acquisition of necessities for their home. PW2 testified to having been hired, supervised, and paid by the appellant to do the roofing and shuttering of the house. Although PW2 did not start the foundation, his evidence on roofing and shuttering the house was not controverted.

On the other hand, the respondent only identified one source of the money he used to acquire the suit property – that is the proceeds of the bull he had been gifted by his mother. Unlike the appellant, the respondent did not state any other source, be it a loan or side business, where he could have got money to contribute towards the development of the suit property. While there could have been a non-monetary contribution towards the development of the suit property, the respondent did not led evidence in that area.

It is my finding that the appellant was financially better placed to have contributed more to the acquisition and development of the suit property than the respondent given the parties' source of funding.

It was the respondent's testimony that when the appellant shifted to Nyamango, her new workstation, development of the suit property stopped. The respondent did not carry on with the developments on the house although he explained that he could not finish the house because the appellant had started claiming sole ownership of the same.

Decision of Hon. Justice Vincent Emmy Mugabo Page **13** of **17** Although this court had no opportunity to observe the demeanour of the witnesses, I find that, in reaching his finding, the trial magistrate did not appreciate the weight or bearing of circumstances admitted or proved, but only wholesomely applied the *equality is equity* doctrine, and this creates the ground to overturn the trial courts finding on the issue of the

contribution of the parties to the acquisition and development of the suit property *(see: Peters v. Sunday Post Limited 1958 EA 424)*

In the instant case, the failure of the learned trial magistrate to appreciate the significance of the collateral circumstances when accepting the truthfulness of the respondent's evidence would justify this court to overturn the trial court's finding that parties herein contributed equally to the acquisition and development of the suit property.

I would thus allow grounds 1 and 2 and set aside the trial court's decree that the parties herein own equal shares in the suit property.

Having allowed grounds 1 and 2 of the appeal, it becomes incumbent upon this court to determine the respondent's share in the suit property.

Pursuant to section 80 of the Civil Procedure Act, this court sitting as an appellate court has the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the Act on courts of original jurisdiction in respect of suits instituted in it.

Upon re-evaluation of the evidence before the trial court and in consideration of the peculiar circumstances of this case, I would declare that the respondent is entitled to a 30% share in the suit property.

## **Ground 3**

In arguing ground 3 of the appeal, counsel for the appellant submitted that by awarding costs to the respondent after decreeing that the suit property is jointly owned by both parties in equal shares, the trial magistrate acted erroneously. Counsel argued that this being a family matter, the best verdict would have been to order each party to bear its own costs of the suit. Counsel referred this court to the case of *Ambayo Joseph Waigo v.*

*Aseruka Jackline (supra),* where the Court of Appeal ordered each of the parties to meet their own costs of the suit both in the high court and court of appeal because it was a family matter, the suit had spent a long time in court and there was a need to end the litigation.

On the other hand, the respondent submitted that the trial magistrate had the discretion to award costs and in any case, the respondent was a successful party who was entitled to costs. The respondent referred this court to the case of *UTC Vs. Outa (1985) HCB* and section 27 of the Civil Procedure Act Cap 282.

## **Court's Consideration of Ground 3**

It is trite law that costs follow event unless the court orders otherwise (see section 27 of the Civil Procedure Act). It is also trite that a successful party can only be denied costs if it is proved that but for his conduct the action would not have been brought.

In the case of *Impressa Infortunato Federice Vs. Irene Nabwire (Suing By her next Friend Dr. Julius Wambette SSCA No. 03 of 2000*, Order, JSC, as he then was, held that:

> *"In my view, the effect of the provisions of section 27 in question of the Civil Procedure Act is that the judge or court dealing with the issue of costs in any suit, action, cause or matter has absolute discretion to determine by whom and to what extent such costs are to be paid. Of course, like all judicial discretions, the discretion on costs must be exercised judiciously. How a court or a judge exercises such discretion depends on the facts of each case…The factors which determine the exercise of discretion in favour of one*

## *party and against another in a case do not necessarily apply to any other case. If there were mathematical formula, it would no longer be discretion."*

In the instant case, the appellant filed a suit against the respondent because the respondent had attempted to chase her from the suit property. I have already not that the learned trial magistrate reached his finding without properly weighing the material circumstances of the case, and that the respondent does not own equal shares in the suit property.

In the circumstances, I therefore find no basis for awarding the respondent costs of the suit and therefore ground 3 of the appeal succeeds.

I find that the parties herein were in cohabitation, and in that cohabitation, they have children whom they have a responsibility to raise, jointly. It is my considered view that in the spirit of reconciliation, this is a deserving case where each party has to bear its own costs.

Resultantly, this appeal succeeds with the following orders;

- (a) The suit property is jointly owned by the parties herein and the respondent is entitled to only a 30% share of the value of the suit property. - (b) The appellant shall pay 30% of the value of the suit property as determined by either a registered valuer mutually agreed upon or out of the consent of the parties within 6 months from the date of this judgement. - (c) Each party shall bear its own costs in this court and the court below.

It is so ordered.

Dated at Fort Portal this 29th day of August 2024.

**Vincent Emmy Mugabo Judge**