Nsubuga v Kalimunda (Civil Appeal 66 of 2019) [2023] UGHC 470 (19 December 2023)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MUKONO **CIVIL APPEAL NO.066 OF 2019**

JAMES NSUBUGA:::::::::::::::::::::::::::::::::::

## **VERSUS**

FRED KALIMUNDA::::::::::::::::::::::::::::::::::::

# **BEFORE HON. LADY JUSTICE CHRISTINE KAAHWA**

# JUDGMENT

## **Background:**

The Appellant brought a suit in the Chief Magistrates Court of Lugazi to recover 4 acres of suit Kibanja, general damages for trespass, eviction orders and a permanent injunction.

The cause of action emanated from a Loan Agreement and the Appellant was the borrower. The lower Court found against the Appellant and hence the Appeal.

The grounds of Appeal are as follows;

- 1. That the learned Trial Magistrate erred in law and fact when he believed the purported execution of Judgement against the Appellant without any admissible documentary proof to that effect. - 2. The learned Trial Magistrate erred in law and fact when he held that the Respondent had lawfully acquired the Kibanja of the Appellant at Buvunya in an unlawful purported purchase.

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3. The Trial Magistrate erred in law when he denied the Appellant Judgement in his favour with costs when the Appellant had substantially proved the case and was entitled to all the prayers sought.

#### **Representation:**

The Appellant was represented by Seryanzi and Co. Advocates.

#### **Appellants case:**

On ground 1 the Appellant submitted that in the lower Court he proved the Judgment given by HW Kasakya Muhamadi in Civil Suit No. 49 of 2002 that his Kibanja at Kiduusu was attached in Execution of the Decree, it was allegedly surprising that 4 acres in Buvunya had been sold.

Additionally, that there was no warrant of attachment on the Court record. That section 63 of the Evidence Act provides that documents must be proven by primary evidence.

On ground 2 Counsel asserted that finding that the suit kibanja was sold under a Court Order was erroneous as the sale was unlawfully acquired as the purchase was riddled with irregularities and impropriety.

It was contended for the Appellant that Sekaana in Civil Procedure Practice in Uganda states the circumstances when Execution will be wrongful, when Execution is neither authorized

nor justified by a warrant of Execution nor by Judgment or decree which issued it.

That from the pleadings of both parties, there is clearly no doubt that there is a Court Judgement attaching the Appellants kibania at Kiduusu and not Buvumya. That therefore this was clearly irregular. No evidence of warrant of attachment of the land at Buvumya was attached.

On ground three Counsel posited that costs should not have been denied and yet the Appellant/Plaintiff had proved all the claims in the plaint and the Defendant had not met the required standard of proof to prove his case.

For the Respondent, there were no submissions that were failed to affirm the decision of the lower Court.

## **Analysis and Determination:**

The first Appellate Court is bestowed with the duty to reappraise the evidence on record as a whole and come to its own conclusion bearing in mind that it has neither seen nor heard the witnesses and should make due allowance in that regard and this was elucidated in the case of **Uganda Revenue Authority Vs.** Rwakasaiia Azarious & 2 Others, Court of Appeal Civil **Appeal No. 8 0(2007).** This Court shall bear that in mind while determining this Appeal.

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Ground 1: That the learned Trial Magistrate erred in law and fact when he believed the purported Execution of **Judgement against the Appellant without any admissible** documentary proof to that effect.

Order 22 Rule 7 of the Civil Procure Rules provides that the holder of a Decree, if she or he desires to execute it, shall apply to the Court that passed the decree or to the Court where it has been sent for Execution.

The Application in the instant case ought to have been in writing. In the instant case the lower Court record does not bear such an Application. It however bears warrant of arrest in Execution sealed on the 13<sup>th</sup> November 2019. This may be the case for the reason that exception for a decree for payment of money and the Judgement debtor being in the precincts of the Court when the decree is passed, and the Court issues a warrant of arrest. This however is not the scenario in this case as the Judgement was read on the 5<sup>th</sup> September 2019. To that extent therefore the proceedings were irregular.

I observe though a notice to show cause why the Execution should not issue was taken out sometime after the decree had been passed but no other application is sighted. The provisions of Order 23 Rule 1 of the CPR were not complied with.


Ground 2: The learned Trial Magistrate erred in law and fact when he held that the Respondent had lawfully acquired the Kibanja of the Appellant at Buvunya in an unlawful purported purchase.

What seems clear from the record is that the land at Kiduusu was subject of a decree. There is however no nexus between the land at Buvumya and the decree from where this appeal arises. The loan Agreement or Sale Agreement DEX1 dated 31<sup>st</sup> December 2007 states among others that the bailiff having been ordered by Lugazi court to attach and sale the land at Namasubi Buvunya arising from Civil Suit 49 of 2002.

The contention of the Appellant seems to me to be that the land in Civil Suit 49 of 2002 was not land at Buvunya and therefore could not be attached.

The gist of the Plaintiff/Appellant's case in the lower Court was for trespass to land and he contended that he owned a Kibanja measuring about 4 acres and that he lost his Kibanja to the Defendant in 2012 after a false purchase from Luyinda Zalika in a purported execution agreement. The debt owing in that case was $430,000/$ = and the Lugazi court then ordered that land at Kiduusu be attached to pay the decretal amount.

The Bailiff however executed for land at Buvumya which in my view is irregular and was not in compliance with the Court Order.

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The Bailiff Order therefore was void ab initio and so was the subsequent attachment.

Ground 3: The Trial Magistrate erred in law when he denied the Appellant Judgment in his favour with costs when the Appellant had substantially proved the case and was entitled to all the prayers sought.

Section 27 of the Civil Procedure Act provides for costs at the discretion of the Judge or Court and that the primary consideration in award of costs is that they should follow the event unless there is reason to rule otherwise.

In the instant case having found the way the Court did there was only one option for the court. It is my view point therefore that the Court was correct in making that award.

The argument of Counsel on irregular Execution does not lend credence to the submissions since the Court made findings and supported them with reasons and therefore acted within the law.

The lower Court though as found earlier acted erroneously in its findings and this Court allows the appeal with costs in this Court.

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**Dated** at **Mukono** this .........day of **December 2023.**

$\overline{c}$ **Christine Kaahwa JUDGE**