Senyonga v Tumuhiirwe and 4 Others (Civil Appeal 18 of 2018) [2025] UGCA 103 (14 April 2025)

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA CML APPEAL No. 18 OF <sup>2018</sup> ARISING FROM HIGH COURT CIVIL APPEAL NO 033 OF 20I5 ARISING FROM CIVIL SUIT NO I63 OF 2OI2

ISSA SENYONGA APPELLANT

# VERSUS

- I AIDAH TUMUHIRWE - 2 MARIAM NAKYEYUNE - 3 NULIAT NANYONJO - 4 MASTULA NANYONGA - 5 MBAZIIRA MASUUD

RESPONDENTS

(Arisingfrom High Court Masaka Appeal 33 of 2015 whichwas an appealJrom a decision of the Magistrate's Court Masaka Civil Suit 163 of 2012)

## CORAM:

HON. MR. JUSTICE GEOFFREY KIRYABWIRE, JA HON. MR. JUSTICE MUZAMIRU M. KIBEEDI, JA HON. MR. JUSTICE CHRISTOPHER GASHIRABAKE, JA

## JUDGMENT OF THE COURT

## INTRODUCTION

This is a second appeal arising from the Judgment of High Court by Hon. Justice Dr. Flavian Zeija vide High Court of Uganda at Masaka, Civil Appeal No. 33 of 2015, delivered on 27th of July 2017. The High Court entered a Judgment in favour of the Respondents for vacant possession ofthe land and payment ofcosts.

## BACKGROUND

The brief facts ofthe appeal are: The matter concerns a land dispute among family members over the estate of the late Haruna Sajjabi, who died intestate in 1976.

1l

The Appellant, stepson ofthe I st Respondent, and his siblings were beneficiaries of the estate, which was distributed under Sharia Law. In 2010, the Respondents sued the Appellant in the Chief Magistrate's Court, claiming the land he occupied was part of the estate and should be shared. The Appellant argued he had possessed the land since 1977 after purchasing it from Paul L. Kaweesa and later acquired another portion in 1991 from estate beneficiaries, asserting it was not part of Sajjabi's estate.

In Civil Suit No. 163 of 2012, the trial magistrate ruled in favour of the Appellant, disrnissing the Respondents' clairn due to lirnitation and declaring hirn the rightful owner. However, on appeal, the High Court of Masaka, led by Justice Dr. Flavian Zeija, overturned the decision, ruling for the Respondents and ordering vacant possession of the land. Dissatisfied, the Appellant filed a second appeal.

## GROUNDS OF APPEAL

The following are the grounds of appeal in this matter:

- l. That the Leamed Appellate Judge erred in law when he failed to reappraise and re-evaluate the evidence of whether the suit land formed part of the late Haruna Ssajjabi's estates hence arriving at a wrong conclusion. - 2. That the Leamed Appellate Judge erred in law when he relied on a tenancy agreement which was never exhibited at trial hence occasioning <sup>a</sup> miscarriage of justice. - 3. That the Learned Appellate Judge erred in law when he held that the suit was not barred by limitation.

## ISSUES FOR DETERMINATION

The following issues were agreed for determination;

- l. Whether the learned Appellate Judge erred in law when he failed to reappraise the evidence of whether the suit land formed part of the late Haruna Ssajjabi's estate hence arriving at a wrong conclusion. - 2. Whether the leamed Appellate Judge erred in law when he relied on <sup>a</sup> tenancy agreement which was never exhibited at trial hence occasioning a miscarriage of justice.

3. Whether the leamed Appellate Judge erred in law when he held that the suit was not baned by Lirnitation Act.

#### REPRESENTATION

At the hearing, the Appellant was represented by Mr. Jimmy Lubaale while the Respondents were represented by Mr. John Mary Muwaya.

#### DUTY OF APPELLATE COURT

We wish to recall the duty of a second appellate Cour1. Section 72 of the Civil Procedure Act, Cap 7l (CPA) provides:

"... (l) Except where otherwise expressly provided in this Act or by any other lawfor the time being inforce, an appeal shall lie to the Court of Appealfrom every decree passed in appeal by the High Court, on any of the following grounds, namely that-

- (a) The decision is contrary to law or to some usage having theforce of law - (b)The decision has failed to determine some material issue of law or usage having the force of lau - (c) A substantial error or defect in the procedure provided by this Act or by any other law for the time being in force has occurred which may possibly have produced error or defect in the decision of the case upon the merits ... "

The role of the second appellate Court was exhaustively discussed in the case of Kifamunte Henry v Uganda, Supreme Court Criminal Appeal No. 10 of 2002, where the Court held:

"...on second appeal the Court of Appeal is precluded from questioning thefindings of.fact of the trial Court, provided that there was evidence to support those findings, though it may think it possible, or even probably, that it'tuould not have to come to the same conclusion; it can only infer where it considers tltat there was no evidence to support thefinding offact: this being a question of law: R v Hasson bin Soitl (1942) 9 EACA 62."

We shall apply the above principles when resolving the issues in this matter.

# GROUND ONE: That the Learned Appellate Judge erred in law when he failed to re-appraise and re-evaluate the evidence of whether the suit land formed part of the late Haruna Ssajjabi's estates hence arriving at a wrong conclusion.

## Submissions of Counsel the Appellant

Counsel for the Appellant argued that he lawfully acquired the suit land through purchase and that the first appellate court erred in not properly re-evaluating the evidence. He submitted a photocopy of a 1977 sale agreement with Paul Kawesa, where he established a coffee factory. However, the trial court treated this as an identification document, not as an exhibit under Section 62(8) of the Evidence Act, even though the Appellant explained the original was lost. Paul Kawesa testified to confirm the agreement, providing the best evidence under Sections 58 and 59 of the Evidence Act.

Counsel for the Appellant also proved purchasing another portion in 1991 from Abbas, Bumali, Mary, and Mastula-beneficiaries of Haruna Sajjabi's estateand took possession. He built a maize mill and coffee factory, operating since 1977, demonstrating adverse possession. Contrary to the Respondents' claim, no evidence showed the property belonged to Sajjabi's estate. The record confirms the Appellant occupied the land uninterrupted from 1977 until the suit was filed in 2010. The Appellant argued that the Appellate Judge emed by ignoring DW2's testimony on page T9,paragraph 10, which stated the land wasn't part of the estate. DWI and DW2's evidence detailed valid transactions. The trial Judge noted at paragraph 17 that it was unclear why the land wasn't distributed or contested until 2010, despite the Appellant's use since the 1980s. Proper reevaluation would have clarifred these issues, and failure to do so led to an erroneous conclusion.

#### Submissions of Counsel for the Respondent

Counsel for the Respondents argue that the appellate Judge properly reappraised the evidence and correctly found that the suit land was part of the late Haruna Sajjabi's estate. The first appellate court acknowledged its duty to scrutinize the evidence, basing its findings on the record. Through three witnesses, the Respondents established that the land belonged to the estate and had been converted by the Appellant for personal use, leading to an agreement where the Appellant agreed to pay UGX 1,500,000 annually as rent.

Counsel further argued that the Appellant's testimony supports this. On page 77, paragraph 2, he admitted his plot was on Haruna Sajjabi's kibanja. On page 79, line 7, he acknowledged that letters of administration were obtained in 1986 due to estate disputes, contradicting his clairn that the estate was fully distributed in 1976. Inconsistencies in his evidence, including contradictory figures for the purchase price (UGX 35,000, 45,000, and 75,000), weaken his case. DW2's testimony on page 79 also contradicted the Appellant's claims regarding the land's prior use and ownership. DW3 Sempagona David Lubowa's evidence on page 8l confirmed that the land was part of the estate and under administration as late as l99l .

Counsel for the Respondent concluded that the appellate Judge, after carefully reevaluating the evidence, rightly concluded that the land was paft of Haruna Sajjabi's estate and subject to distribution among the beneficiaries, including the Appellant. Counsel prayed that this ground of appeal be dismissed

#### Court findings

This Court has reviewed both parties' submissions and the record of proceedings in line with legal principles goveming second appeals. A second appellate court does not re-evaluate evidence but examines whether the first appellate court properly reappraised it and whether any misdirection caused a miscarriage of justice. This principle is established in Maniraguha Gashumba v Sam Nkundiye, Civil Appeal No. 23 of 2005, citing Pandya v R I t 9571 EA 336 and Okeno v Republic 119721F,A32.

The Appellant argued that the Appellate Judge failed to reappraise the evidence regarding whether the suit land was part of the late Haruna Sajjabi's estate, leading to a wrong conclusion. He claimed to have bought the land in 1977 from Paul Kawesa and later from Bumali, Mary, and Mastula in 1991, asserting it did not belong to the estate. However, the Appellant's testimony at page 77 suggests the land was part of Sajjabi's kibanja. Additionally, DW3 Sempagona David Lubowa's testimony on page 8l confirmed the estate was still under administration as late as I <sup>991</sup>, contradicting the Appellant's claim of full distribution in 1976.

The Appellate Judge correctly evaluated the Respondents'claim that the land was part of the estate and that the Appellant agreed to pay UGX 1,500,000 in rent annually. The trial court's dismissal on the grounds of limitation overlooked the continued recognition of the land as part ofthe estate. Therefore, this Court finds that the first appellate court properly reappraised the evidence and reached a sound conclusion. Ground One of the appeat fails.

# GROUND TWO: That the Learned Appellate Judge erred in law when he relied on a tenancy agreement which was never exhibited at trial hence occasioning a miscarriage ofjustice.

## Submissions of Counsel for the Appellant

Counsel for the Appellant argued that the leamed Appellate Judge erred in law by relying on a tenancy agreement that was never exhibited at trial, causing a rniscarriage ofjustice. The tenancy agreement was identified by PWI as PID No.1 on page 72, paragraph 13, but was never formally admitted as an exhibit. It is well-established law that documents for identification cannot be relied upon as evidence unless formally tendered and admitted. The failure to admit the original tenancy agreement left it unproven, as noted on page 43, paragraph 28 of the record.

The trial Judge relied on this unadmitted agreement to support the Respondents' claim for rent, leading to the wrong conclusion that it validated their clairn, which should have been barred due to limitation. The Respondents conceded this in their submissions, acknowledging the tenancy agreement was never exhibited,

resulting in a miscarriage of justice. They sought to rely on the principle of estoppel, which was never raised during trial or appeal.

## Submissions of Counsel for the Respondents

Counsel for the Respondents submitted that the Learned Appellate Judge correctly relied on the tenancy agreement marked as PID l. The Appellant admitted during cross-examination that he executed the agreement. They argued that the doctrine of estoppel applies, even though the agreement was not formally exhibited at trial. Section I 14 of the Evidence Act, Cap 6, states that when <sup>a</sup> person's actions or omissions cause another to believe something to be true, they cannot later deny it in a proceeding. Therefore, the Appellant cannot deny the validity of his own document, and the Appellate Judge's findings were correct. They prayed that this ground be answered in the negative.

#### Court findings

In considering Ground 2, the Court finds merit in the Appellant's claim that the Appellate Judge erred in relying on the tenancy agreement, which was not formally exhibited at trial. It is well established that a document must be formally tendered and admitted as an exhibit under the Evidence Act for it to be relied upon in court.

However, the Respondents invoked estoppel, arguing that despite the agreement not being exhibited, the Appellant had acknowledged executing it during crossexamination. Under Section I l4 of the Evidence Act, a person cannot deny the truth of a declaration or act that led another to rely on it. The Appellant's admission of executing the tenancy agreement estops him from denying its contents, even if it wasn't formally admitted as an exhibit.

Thus, while the failure to exhibit the tenancy agreement was a procedural lapse, the Appellant's admission and the application of estoppel justified the Appellate Judge's reliance on the agreement. The ground is dismissed, and the Appellate Judge's findings are upheld.

This Court, in its appellate capacity, will not disturb the lower court's decision unless there is a clear error of law or procedure resulting in a miscarriage of justice. Since the Appellant's adrnission and the application of estoppel were properly considered, this ground ofappeal fails.

# GROUND THREE: That the Learned Appellate Judge erred in law when he held that the suit was not barred by limitation.

### Submissions of the Appellant

Counsel for the Appellant argues that the learned Appellate Judge erred in law by holding that the suit was not barred by the Limitation Act. Specifically, the Appellant relies on Sections 6(2),20, and 2l of the Lirnitation Act. Section 6(2) states that the right to recover land from a deceased person accrues at the time of death, which in this case was 1976, marking the start of the limitation period.

Section 20 of the Limitation Act provides that any action to claim a share of <sup>a</sup> deceased person's estate must be brought within twelve years from the date the right to that share accrued. Since the Appellant's father passed away in 1976,the Appellant argues that the suit is barred by the twelve-year limitation period, as it was filed 35 years later.

Counsel for the Appellant further submits that the trial Judge incorectly applied Section 22(1) of the Limitation Act, suggesting that the Appellant had acknowledged the title of the person entitled to the land. The Appellant argues that he never held the land in trust for his siblings and that the land was not part of the estate distribution. Additionally, the tenancy agreement executed by three ofthe children is invalid, as they did not have the authority to act on behalfofthe entire family.

ln conclusion, Counsel for the Appellant asserts that the failure to apply the Limitation Act properly led to incorrect conclusions by the trial Judge, resulting in a miscarriage ofjustice. The Appellant requests that the appeal be allowed and the Judgment of the lower court be set aside.

#### Submissions of counsel for the Respondents

Counsel for the Respondents submit that the learned Appellate Judge correctly held that the suit was not barred by the Limitation Act. They rely on Section 6(2), which provides that the right to recover land from a deceased person accrues on the date ofdeath. However, they argue that the estate ofthe Late Haruna Sajjabi was not fully settled in 1976, as evidenced by the Appellant's application for Letters of Adrninistration in 1986 due to disputes in the estate. If the estate had been distributed in 1976, there would have been no property to administer in 1986.

Counsel for the Respondents further highlight that the Appellant's actions in 2010, specifically the execution of a tenancy agreement, marked the acknowledgment that the property was part of the estate, not the Appellant's personal property. This, according to Section 22(l)(a) of the Limitation Act, restafted the limitation period.

Counsel for the Respondents reject the Appellant's claim that the three beneficiaries who executed the tenancy agreement lacked authority, as this was raised without proper evidence. Based on these arguments, the Respondents contend that the suit was timely and that the Appellate Judge's ruling should be upheld. They request that the appeal be dismissed with costs.

#### Court findings

Upon reviewing the submissions on Ground 3, the Court finds the Appellant's claim that the suit is barred by the Limitation Act to be without merit. Section 6(2) of the Limitation Act stipulates that the right to recover land from a deceased person accrues on the date ofdeath, provided the deceased was in possession of the land. However, evidence reveals that the estate of the Late Haruna Sajjabi was not fully settled in 1976. The Appellant applied for Letters of Administration in 1986, suggesting ongoing disputes. Ifthe estate had been fully distributed in 1976,no adrninistrator would have been needed in 1986. Additionally, the issue regarding the suit property remained unresolved until 2010, when the tenancy agreement was executed. This agreement acknowledged that the property was part ofthe estate, thus restarting the limitation period under Section 22(l)(a) of the Limitation Act.

The Court also disregards the Appellant's argument that the three beneficiaries lacked authority to execute the tenancy agreement, as it is unsupported by evidence. Based on these findings, the Court concludes that the Appellate Judge correctly dismissed the claim of limitation, as the suit was not time-barred. The Appellant's ground of appeal is dismissed, and the Appellate Judge's ruling is upheld.

## **Final Decision**

The Appeal is dismissed on all three grounds of appeal. The decision of the learned Appellate Judge is upheld.

Orders:

- 1. The Judgment and orders of the lower court are affirmed. - 2. The Appellant's appeal is dismissed with costs.

## IT IS SO ORDERED

Dated at Kampala this $1$ day of Man 2025

# HON. MR. JUSTICE GEOFFREY KIRYABWIRE, JA.

cipee di

HON. MR. JUSTICE MUZAMIRU M. KIBEEDI, JA.


HON. MR. JUSTICE CHRISTOPHER GASHIRABAKE, JA.