Nsubuga and 3 Others v Nsubuga Rose and 2 Others (Civil Appeal No. 30 of 2019) [2022] UGHCLD 235 (16 December 2022)

Full Case Text

#### THE REPUBLIC OF UGANDA

#### IN THE HIGH COURT OF UGANDA AT KAMPALA.

#### CIVIL APPEAL NO.30 OF 2019

(Arising from Mengo Civil Suit No.5 of 2009)

**1. STANLEY NSUBUGA**

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2. JANET NSUBUGA::::::::::::::::::::::::::::::::::: **3. LUBINGA ALI KASOMA HASSAN VERSUS**

**1. ROSE NSUBUGA**

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2. DAVID SSEBYALA::::::::::::::::::::::::::::::::::: **3. MOSES KAAYA**

### **BEFORE: HON JUSTICE JOHN EUDES KEITIRIMA**

#### **JUDGMENT**

This Appeal arises from the judgment in Mengo Chief Magistrates Court Civil Suit No.05/2009 delivered on 14th March, 2019. The Respondents filed the above suit in Mengo Chief Magistrates Court against the Appellants herein seeking orders that; the impugned sale transaction between the defendants be nullified, a permanent injunction against the defendants stopping them from asserting ownership and

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entertaining any transaction ol the suit land, gcneral damagcs lor trespass, inconvenience plus intcrcst thereon al25Yo from thc date of award and costs

'l'hc suit procceded with both parties and alicr hcaring, a judgment was dclivcred in the plaintiffs' favor; court dcclared the dcfendants as trcspassers on the suit land, nullified the land sale agrecmcnt between the l" and 2nd defendants on onc hand and thc 3'd and 4tr'Delbndants on another hand in Kibuga Block 16 l'}lot 964 , that the suit land belongcd to the plaintiffs, issued a pcrmanent injunction against the Delendants stopping thcm from asserting owncrship, issued an eviction order against the 3'd and 4th Defendants.

The appellants being dissatisficd with thc judgrrcnt ol thc I-camcd 'l'rial Magistrate appealed to this Flonorable Court.

## Summary of thc Rcspondcnts'(plaintiffs) claim.

'fhe facts constituting the plaintiffs' cause ofaction as was set out in thcir plaint was that the plaintiffs at al[ material times have been the owners ol the suit land comprised in Kibuga lllock l6 Plot 964, having purchascd thc samc, Iivcd thcrcon and developed it. 'Ihat thcy cven instituted Civil Suit No. t 709/2020 against I Iajj i Juma Kintu who fraudulently registered his name on the title and sought canccllation ol the same.

'l'hat the 1 't and 2"d dclcndants bcforc the conc lusion o f the casc again st thc said I Iajj i Juma purported to scll the suit land to thc 3'd and 4'h Defendants who have since

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forced their way onto thc land, tricd to evict the plaintills and to dcmolish their structurcs.

## Summary of thc Appcllants'(dcfcndants') claim.

'fhc defendants in thcir wril.tcn statement of dcfencc denicd the f acts in thc plaint and contended that the suit land formerly belonged to the Late Stanley Nsubuga thc father o f the I 't and 2"d defendants and grandfather ol the I '' Defendant .'l'hat thc suit land was transferred by thc widow of the latc Nsubuga to feo Kafeero and after negotiations between the two families, the administrator ofthe estate of 'l'eo Kalcero agreed to sell it back to the lamily olthc late Stanley Nsubuga who wcrc rcprcscnted by l" plaintiff and thc 2nd dcfendant. That a sale agrecment was cxccutcd bctwccn thc'l-eo Kafero as Vcndor and Rose Nsubuga, Maria Nsubuga, Alozious Kalanzi and Steven Kayiwa as buycrs on 8rl' June,2005 but thc titlc was transl'crred into thc l " plaintifl-s and 2nd Dcfendant's names to hold in trust lor the lamily mcmbcrs of Stanly Nsubuga including thc l" plaintilL l'hat thc lamily of thc Latc Nsubuga on 26'h October 2008, hcld in a meeting and decided to sell part of the remaining lamily property so as to construct a new family homc. 'l'hat the plaintiffs ncvcr lived on thc part that was sold to the 3nd and 4th Delendants and that thc 2nd and 3'd plaintifls are not bencficiaries of the estate of thc latc Stanlcy Nsubuga.

l'hree issues werc raised at thc schcduling confercnce lor considcration of court, which were;

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- 1. l{hether or not the I't and 2od defendants had copacity to sell the land comprised in Block l6 plot 964 - 2. ll'hether or nol lhe 3nd and 4'h de/endanls were bonaJide purchasers of the suit land or trespassers - 3. Remedies available to the parties.

During the hearing, the plaintiffs' adduced evidence through two witnesses; the 1" and 2'd plaintiffs and the defence was built on evidence of the l't, 3rd and 4th defendants since the 2nd defendant passed away beforc testifying.

## Decision of thc lower court.

The trial court on the l't issue found for the Respondents (plaintifTs) and held that Stanley Nsubuga and Janet Nsubuga (1" and 2nd) defendants had no capacity to sell the suit property since it was clear that the sale agreement executed between 'feo and the buyers as per PEl was a sale to them and not to the family. Further, the trial magistrate held that even if he was to conclude that it was family property, still, the sellers had no letters of administration to sell to the 3'd and 4rh defendants.

The trial Magistrate further held that the 3'd and 4th defendants were malfide purchasers of the suit land as these apparently knew about the case in court conceming the suit land; Civil Suit No.l709l2000. That ilthey had cared to know the facts of that case they would have known that Rose Nsubuga was one of the ptaintiffs in that case, and one of the family member and her participation in the

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execution of the sale agreement was necessary. The 3rd and 4th defendants were found to be trespassers.

On the third issue of the available remedies; the court held that the sale agreement between the 1st and 2nd defendants and the 3rd and 4th defendants be nullified to the extent that if affects the land occupied by the plaintiffs, that the suit land belongs to the plaintiffs, issued a permanent injunction against the defendants and ordered that the $3^{rd}$ and $4^{th}$ defendants be evicted from the suit land.

Dissatisfied with the judgment of the lower court, the Appellants lodged an Appeal listing the following grounds; -

- 1. The learned trial magistrate erred in law and fact when he failed to properly evaluate the evidence on record thereby arriving at a wrong decision. - 2. The learned trial Magistrate erred in law and fact when he declared that the suit land belongs to the Respondents. - 3. The learned trial Magistrate erred in law and fact when he held that the $3^{rd}$ and $4^{th}$ Appellants be restrained from asserting ownership of the suit land or entertain any dealings therein. - 4. The learned trial Magistrate erred in law and fact when he held that the $3^{rd}$ and $4$ th Appellants are trespassers on the suit land.

Counsel filed submissions with supporting authorities which I have considered in determining this appeal.

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# I)uty of thc cou rt.

1'he legal obligation of a first appellate court is to reappraise evidence adduccd in the lowcr court. 'l'hc partics are cntitled to obtain from thc appellatc court its own decisions on issucs of f'act as wcll as ol'law. 'l'hc appcllatc court has to makc duc allowance of the fact that it has neither seen nor heard the witnesscs. See Fr. Narcensio llegumisa &Olhers V Eric Tihebaga SCCA No.l7/2002; Runco Arahe Espuniol V I)ank of Uganda SCCA No.008/1998.

# Prelimina ry ()bjcctions.

Counsel for thc Respondents raised preliminary objcctions to thc cllccl that therc are grave errors and irregularitics orchcstrated by the appcllants and thcir counsel which can disposc of the appeal without delving in its merits.

It was submiltcd by Counsel that thcre exists two mcmorandum of appeal, fixcd for diffcrcnt datcs but originating from thc samc filc.'l-hat thc currcnt appcal came up lor hearing on 7'h November, 2019, court made dircctives rcgarding submissions. 'l-hat howcvcr, thc Appellants had earlicr on scrved unto thc respondents a hearing notice olthe same fixed for 3'd April 2020.

I have seen the two hearing notices for the samc appeal but with varying hearing dates fixed. This irregularity was occasioned by the court and should not be visited on the parties

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However, what I find strange is that the memorandum of appeal on record was received by court on I 8'h February ,2019, yet the same was signed by the appellants on l61h April 2019 ! This memorandum of appeal is for a judgment delivered on 14th March,2019!

This same memorandum bears the signature of Nsubuga Janet yet the same had died even before the hearing and determination of the suit in the trial court. The record also bears another memorandum of appeal; this is said to have been said signed by the appellants excluding the late Janet Nsubuga but the signatures of the other appellants look quite different from the ones who signcd on the othcr memorandum of appeal.

The decree tha was signed on 4th July, 2019 indicating that the judgment was delivered on 14th March, 2019 whereas not; the judgmcnt was delivercd on 4th March,2019. Section 79 (l) (a) of the Civil Procedure Act is to the effect that every Appeal from the Magistrates courts to the High Court is supposed to be entered within thirty days from the date of the decree or order of the court. The Trial Magistrate passed judgment on 4th March, 2019 and the Appellants should have appealed by 3'd April, 2019.'there is no explanation at all given why the memorandum of appeal on record was filed on l8th February, 2019 before the judgment was delivered! 'Ihis is an impossibility that has not been explained. This is an anomaly which in my view is fatal to this appeal as it was not explained. The

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time frame in which an appeal is filed is of utmost importance as it determines whether the appeal was properly filed or not as there is a limited time frame to file an appeal. This coupled with the irregularities that were pointed out by the respondent with regard to the memoranda of appeal which interestingly had one signed by a deceased person makes this appeal defective.

I thereby uphold the preliminary objections in the said respect and the appeal will be dismissed with costs to the respondents.

Hon. Justice John Eudes Keitirima

16/12/2022