Opwaka v Katuube (Civil Appeal 155 of 2022) [2024] UGHC 455 (24 May 2024)

## THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT IGANGA

CIVIL APPEAL NO. 0155 OF 2022 (Formerly Jinja High Court Civil Appeal No. 70 of 2021) (Arising From Civil Suit No. 059 of 2016)

OPWAKAMOSES ::::::::::::::::::::::::::::::::::: 10

#### VERSUS

KATUUBE JOHN::::::::::::::::::::::::::::::::::::

# BEFORE: HON. MR. JUSTICE BATEMA N. D. A. JUDGE

#### **JUDGMENT:**

This is an Appeal from the Judgment and orders of HER WORSHIP CHEMERI **JESSICA**, Chief Magistrate (as she then was) sitting at Iganga.

#### **Introduction:**

In Civil Suit No. 53 of 2011 at Iganga Chief Magistrates Court, Katuube John sued Waiswa Moses Opwaka for recovery of UGX. 7,760,000/= (Uganda Shillings Seven Million Seven Hundred Sixty Thousand only) being a friendly loan and return of two boat motor engines vide Tohatso Hos. Power 30 Mod. No. M30, A3 serial No. 78345 and Marine Hos. Power 5 No. 5L/6E/3/L/423/22 (value not stated)which Waiswa Moses Opwaka had rented.

A Consent Judgment was entered in favor of Katuube John on 18<sup>th</sup> May 2011. However at execution Waiswa Moses Opwaka, the Judgment debtor failed to pay and was committed to civil prison. In a bid to regain his freedom and extinguish the Judgment debt, Opwaka Moses negotiated for a top up loan of UGX. 2,000,000/= (Uganda Shillings Two Million only) from Katuube John, the Judgment creditor in order to recapitalize his business. This would enable him to pay off the decretal sum while at the same time servicing the new loan. Waiswa Opwaka Moses offered land located at Nakirurwe village, Nawaningi Sub-county, Iganga District comprising of a house and a plot as security for the loan facility. Katuube John took

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immediate physical possession of the mortgaged property with the knowledge of the LC1 Secretary, a one Otema Francis but thereafter refused, failed and/or ignored to advance the agreed loan to the property owner (Waiswa Moses Opwaka). When Opwaka Moses tried to re-enter his mortgaged property, Katuube John sued him in both criminal and civil trespass hence Civil Suit No. 59 of 2016.

The learned trial Chief Magistrate entered Judgment in favour of Katuube John declaring him the lawful owner of the three plots of land and the house thereon, awarding him general damages of UGX. 5,000,000/= and costs of the suit hence the instant appeal.

## **Grounds of Appeal:**

- 1. That the learned trial Chief Magistrate erred in law and fact when she failed to properly evaluate the evidence on record as a whole thereby arriving at a wrong conclusion. - 2. That the learned trial Chief Magistrate erred in law and fact when she held that there was no fraud committed by the Respondent so as to annul the sale agreement dated 1/09/2011. - 3. That the learned trial Chief Magistrate erred in law and fact when she held 50 without proof that the Appellant was a trespasser on the suit land. - 4. That the learned trial chief Magistrate erred in law and fact when she failed to rule that there was no consent of the wife allowing the Appellant to sale the suit property. - 5. That the learned trial Chief Magistrate erred in law and fact when without proof held that the acknowledgment of the debt of the Appellant was proof of the transaction dated 1/09/2011 giving away the suit land. - 6. The learned Chief Magistrate erred in law and fact when she failed to specifically resolve the counterclaim.


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- 7. That the learned trial Chief Magistrate erred in law and fact when she awarded the respondent general damages of Uganda shillings Five Million (UGX. 5,000,000) without any justification. - 8. That the decision of the learned chief Magistrate has caused a miscarriage of justice.

### Duty of this Court:

As a first appellate court, this court is duty bound to re-evaluate all the evidence that was actually adduced to the trial Chief Magistrate and make its own inferences, bearing in mind that it did not have the benefit of seeing the witnesses and observing the demeanor of the witnesses.

70 It is also trite law that the appellate court can only interfere and alter the findings of the trial court in instances where there was misdirection on a point of law or fact or an error by the lower court that goes to the root of the matter and occasions a miscarriage of justice. See Kifamunte Henry v. Uganda S. C. C. A No. 10/1997.

### **Resolution of the grounds of Appeal:**

Before, I delve into the merits of this appeal, I wish to note that the Respondent failed to comply with court directions issued on $1<sup>st</sup>$ November 2023 as far as schedules for filing written submissions were concerned. The Respondent having filed his written submissions in reply on 21<sup>st</sup> February 2024, almost three months after the dead line set by this court is a demonstration of inordinate delay and sheer complacency on the part of counsel which this court takes exception of. No reasonable justification was provided for the same and to that end, this Court only considered the Appellant's submissions at reaching its decision.

Turning to the grounds of Appeal, I note that the same were poorly framed in an argumentative and narrative manner contrary to the provisions of **Order 43 Rule** 2 of the Civil Procedure Rules.



The rule provides:

"The memorandum shall set forth concisely and under distinct heads, the ground of the objection to the decree appealed from without any argument or narrative and the grounds shall be numbered consecutively".

I will nonetheless while resolving the appeal on its own merits combine the 1<sup>st</sup>, 2<sup>nd</sup> and 5<sup>th</sup> grounds of appeal because they rotate around failure to evaluate the evidence on record to establish if the Appellant is the rightful owner of the suit land, I will further combine the 3<sup>rd</sup>, 6<sup>th</sup> and 7<sup>th</sup> grounds of appeal together and I will finally resolve the 4<sup>th</sup> and 8<sup>th</sup> grounds together.

#### **Grounds 1, 2 and 5:** $\mathbf{G}$

That the learned trial Chief Magistrate erred in law and fact when she failed to properly evaluate the evidence on record as a whole thereby arriving at a *wrong conclusion*

That the learned trial Chief Magistrate erred in law and fact when she held that there was no fraud committed by the Respondent so as to annul the sale agreement dated 1<sup>st</sup> September 2011.

That the learned trial Chief Magistrate erred in law and fact when without proof held that the acknowledgment of the debt by the Appellant was proof of the transaction dated 1<sup>st</sup> September 2011 giving away the suit land.

Opwaka Moses, the Appellant submitted that to the extent that both the agreements dated 6<sup>th</sup> July 2010 (P. E.1) and that of 1<sup>st</sup> September 2011(P. E.3) do not show the size of the land is proof enough that the learned trial Chief Magistrate never evaluated the evidence as a whole thereby arriving at a wrong conclusion regarding ownership of the suit land.

The Appellant further submitted that exhibit P. E.1 was for purposes of admitting the debt obligation of UGX. $7,760,000/$ = and the two boat motor engines that he had borrowed from Katuube John, the Respondent and not an agreement of sale of the Appellant's three plots of land (P. E.3). The Appellant buttresses his argument $4$ | Page



with the fact that no document(s) in settlement were produced in court to justify the impugned sale agreement of 1<sup>st</sup> September 2011.

The Appellant finally submits that the Respondent engaged in acts of fraud by authoring P. E.3 as a sale agreement well knowing the same did not reflect the three plots of land and their respective measurements referred to in paragraph 4f of the Respondent's plaint and worse still simply inserting in the word "Plot" as an afterthought. Another particular of fraud was the manipulation of a mortgage deed and a sale agreement. The Appellant alleged that the Respondent had convinced him and his wife (DW3) to sign on P. E.3 thinking that it was a mortgage agreement. That later the Respondent presented it as a sale of land agreement.

I have re-evaluated the evidence on record and appreciated the submissions of the Appellant and I have come to the conclusion that the learned trial Chief Magistrate did not properly evaluate the evidence on record as a whole and as a result, she came to a wrong conclusion in as far as ownership of the suit land is concerned.

130 The evidence on records hows that Opwaka Moses, the Appellant was by virtue of the consent Judgment in Civil Suit no. 53 of 2011 indebted to Katuube John, the Respondent to the tune of UGX. 7,760,000/= and also owed him two motor boat engines that he had hired from the Respondent but had failed to pay for and/ or return.

Unfortunately, Opwaka Moses failed to satisfy the consent Judgment and the same was executed by the Respondent leading to the arrest and imprisonment of the Appellant for the said civil debt. Opwaka Moses in a bid to regain his freedom and extinguish the Judgment debt asked for a top up loan of UGX. $2,000,000/=$ (Uganda Shillings Two Million only) from Katuube John, the Judgment creditor in order to recapitalize his business using his suit land as security for the decretal sum and top up loan. However, it was at this point that the Respondent decided to take advantage of the Appellant by treating the loans agreement as a sales agreement.

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Having re-evaluated the evidence on record, I find that Katuube John was the successful party in civil suit no. 53 of 2011 and was entitled to recover the decretal sum by way of attachment and sale of the property of the Judgment debtor (Waiswa Moses Opwaka). However, Katuube John ignored and flouted all the known legal procedure in the execution process as provided for under Order 22 of the Civil Procedure Rules.

The court record does not show the appointment of a court bailiff that conducted the sale in execution of the consent order/ decree arising from Civil Suit No. 53 of 150 2011. No warrant of attachment and sale let alone an order of sale where applied for. There is no valuation report on record to determine the value of the property attached. Most worrying of all, the Respondent/ decree holder was the actual purchaser of the suit property without the express permission of court in total contravention of Order 22 rule 67 (1) of the Civil Procedure Rules. This rule provides:

## "No holder of a decree in execution of which property is sold shall, without the express permission of the court, bid for or purchase the property".

To say the least, there was no due process of execution involving an authorized attachment and sale of the suit property. Everything that was done was illegal 160 through and through.

It cannot be overemphasized that since there was a consent Judgment on record, the transfer of property from the Judgment debtor to the purchaser should have been authorized and sealed by court. This court strongly condemns the growing vice of parties enforcing their own terms instead of following the known laws and established procedures of execution of court orders. This court rejects the invitation to sanitize and legitimize these otherwise assailable agreements signed by Judgment debtors behind bars.

The only document that Katuube John; the Respondent relied on giving him legal interest in the suit land was the impugned sale agreement of 1<sup>st</sup> September 2011, 170

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p. E.3. In the first place, this Court would not enforce a pre-prepared and one sided agreement purporting it to be a consent settlement signed under duress by one of the parties while they are in prison or behind bars at a police station. In many instances, the Judgment debtor has no room to read through let alone understand the legal implications of the agreement before him/ her but is simply promised to be released after signing. Such agreements are not enforceable because there is no consensus ad idem in respect of the common object for which the parties agreed to sign but even more importantly, they violate the doctrine of freedom of contract.

In the foregoing, whatever the Respondent did to enforce the Judgment, decree and orders in Civil Suit no. 53 of 2011 was null and void. The $1^{\text{st}},\,2^{\text{nd}}$ and $5^{\text{th}}$ grounds of Appeal are allowed.

#### Grounds 3.6 and $7$ :

That the learned trial Chief Magistrate erred in law and fact when she held without proof that the Appellant was a trespasser on the suit land.

That the learned trial Chief Magistrate erred in law and in fact when she failed to specifically resolve the counterclaim.

That the learned trial Chief Magistrate erred in law and fact when she awarded the Respondent general damages of Uganda Shillings UGX. 5,000,000/= without any justification.

The Appellant submitted the trial Chief Magistrate erred in law and fact when she 190 held without proof that the Appellant was a trespasser on the suit land. She relied on the fact that Katuube John was in physical possession of the suit land at the time court visited the locus.

Having resolved that the Respondent unlawfully attempted to acquire legal interest in the suit land, his continued physical possession and presence on the suit land amounts to trespass. I accordingly allow ground 3 of this Appeal.

Turning to the ground of counterclaim, the Appellant further submitted that the learned trial Chief Magistrate did not address the counter claim which 7 | Page


particularized acts of fraud and illegality especially in execution of the impugned land sale agreement dated 1<sup>st</sup> September 2011 yet a counterclaim by its nature is a separate suit which must be specifically resolved and determined by court.

I have appreciated and re-evaluated the evidence on record. Opwaka Moses under paragraph 2 of the counterclaim had sought for a declaration of court that he is the rightful owner of the suit land, recovery of the same, eviction orders, special and general damages, mesne profits and interest on general damages.

I note that the learned trial Chief Magistrate on pages 3-6 of her Judgment while discussing the issue of fraud on the part of Katuube John ably considered and resolved the counterclaim. Even then, I doubt whether Opwaka Moses would have succeeded by relying on some of those particulars of fraud bearing in mind the legal threshold of proving fraud. The proper way in my view was to question the procedure of execution with respect to attachment and sale of immovable property as we have done in grounds 1 & 2 & 5. Questioning and deciding the detailed particulars specified in the counterclaim weak as they would bear no legal consequences on the Judgment of the learned trial Chief Magistrate. It is moot. Ground 6 of the Appeal fails.

Regarding the aspect of general damages. The Appellant submitted that to the extent that the learned trial Chief Magistrate neither found/ identified acts of trespass nor stated the same in her Judgment, there was no justification for UGX. $5,000,000/$ = as an award of general damages.

I agree. The learned trial Chief Magistrate fell short of particularly mentioning the 220 acts of trespass justifying the general damages. The visit to locus in quo showed that it was the Respondent in actual physical possession and enjoyment of the suit property.

It is my opinion that a Plaintiff in physical possession and quiet enjoyment of a suit property is not entitled to claim-general damages in trespass as if he/she is locked out and has suffered any inconvenience. The learned trial Chief Magistrate erred in

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law and fact in awarding general damages to the Respondent. Ground 7 of this appeal succeeds.

## Grounds 4 and 8:

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That the learned trial Chief Magistrate erred in law and fact when she failed to rule that there was no consent of the wife allowing the Appellant to sale the property.

That the decision of the learned Chief Magistrate has caused a miscarriage of Justice.

The Appellant submitted that throughout the evaluation of the evidence, the learned trial Chief Magistrate did not weigh whether DW3, Rebecca Muteesa, wife to Opwaka Moses consented to have the matrimonial home sold to Katuube John as per P. E.3. The Appellant argued that it was on the three plots of land where the Appellant's family used to get their livelihood. The Appellant relied on Section 39 of the Land Act as Amended and the case of Alice Okiror & Anor v. Global Capital

240 Save and Anor. Civil Suit No. 149 of 2010, which both stipulate that spousal consent to a land sale agreement is mandatory.

At the lower court, Katuube John advanced two reasons to rebut this issue. Firstly, the Respondent argued that the mere fact that DW3 was not a party to the suit and was not complaining about the lack of consent meant that she was well aware of the sale of the suit land.

Secondly, the Respondent argued that to the extent that DW3 was a witness to P. E.3, then there was no need to have a distinct spousal consent from the same signatory.

Section 39 (1) of the Land Act read together with Regulation 64 of the Land 250 Regulations 2004, not only require spousal consent to be unequivocal and mandatory but also require it to be under a distinct and separate heading/ title from the sale agreement. The framers of the law wanted the buyer who was

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purchasing family land to ensure that they obtain distinct and separate spousal consent before paying for the same.

I note, that the suit land purportedly sold constituted a house where the Appellant and his family ordinarily resided and the plot surrounding the house, is where the family had originally been deriving sustenance through cultivation before they were forced to grant vacant possession to the Respondent.

I have closely looked at P. E.3, the impugned sale agreement and its English 260 translation version and I do not see any attachment for a distinct and separate written spousal consent as envisaged by the law.

The act of witnessing a sales transaction involving one of the spouses does not amount to legal spousal consent under the law.

In light of the above statutory provisions, I find that the learned trial Chief Magistrate erred in law and fact when she failed to rule on the issue of lack of spousal consent and its legal implication on P. E.3. Ground 4 of the Appeal is allowed.

I need not delve into the merits of Ground 8. It is an automatic conclusion that there was a miscarriage of justice. The Appellant was illegally deprived of his 270 property. There was no fairness, whether legal or equitable in the attachment and sale of the Appellant's property much as he was a Judgment debtor.

This Appeal succeeds and is allowed with costs.

I so order


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