Sseguya v Lwanga (Civil Appeal 29 of 2022) [2024] UGHC 496 (15 April 2024)

### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT MPIGI

### CIVIL APPEAL NO. 29 OF 2022

#### SSEGUYA RASHID.............. ......................................

#### **VERSUS**

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LWANGA CHRISTOPHER RESPONDENT

# BEFORE: HIS LORDSHIP HON. JUSTICE OYUKO ANTHONY OJOK

### Judgment

- The appellant brought the instant appeal against the decision of Her Worship $10$ Kabugho Byakutaga Caroline, Magistrate Grade one in civil suit No. 51 of 2019. The grounds of appeal as per the memorandum of appeal are as follows: - 1. That the learned Trial Magistrate Grade one erred in law and fact when she failed to take into account the absence of the landlord's consent thereby arriving at a wrong decision. - 2. That the learned Trial Magistrate Grade one erred in law and fact when she ignored the inconsistencies in the size of the kibanja thereby arriving at a wrong conclusion. - 3. That the learned Trial Magistrate Grade one erred in law and fact when she misdirected herself on the evidence relating to the gift intervivos to the plaintiff. - 4. That the learned Trial Magistrate Grade one failed to apply the law properly to the facts in relation to consent of the landlord in land transactions. - 5. That the learned Trial Magistrate Grade one did not properly evaluate the evidence and thereby came to a wrong conclusion and occasioning a miscarriage of justice.

#### Brief facts:

It was the appellant's case that he is the registered proprietor of the suit land 30 comprised in Busiro, Block 351 Plot 1110 at Budo. In June 2019, he realized that the respondent was trespassing on a part thereof measuring 80ft by 76ft of his land that is valued at approximately UGX 2,000,000/ $=$ . He stopped the respondent from trespassing on his land but the respondent ignored him. The appellant then filed a suit at the Chief Magistrate's court at Nsangi. 35

The respondent filed his written statement of defence denying the appellant's claims and contended that he purchased the suit land located at Nakiragala

$1$ | Page

$20$

Budo Cell Wakiso as a kibanja interest at UGX 7,000,000/= from Nanfuka Salima on 23<sup>rd</sup> June, 2019. A sales agreement was made to that effect and he constructed a residential house thereon in which he is currently residing.

In reply to the defence, the appellant contended that the suit property is registered land and not subject to any kibanja interest. He added that Nanfuka $\mathsf{S}$ Salima has never owned a kibanja interest on it and he was not even aware of any party transacting on it. The matter was heard and judgment was entered in favour of the respondent.

#### Representation:

Mr. Mukiibi Cornelious appeared for the appellants while Mr. Luwujja 10 Kenneth represented the respondent. Only the appellants filed written submissions.

#### Resolution:

#### The duty of the first appellate court:

The first appellate court has a duty to re-assess the case before it by 15 considering the evidence on record, re-evaluating it and drawing its own conclusions, in deciding whether the judgment of the trial court should be upheld, as well of course, deal with any questions of law raised on appeal. (See: Selle v. Associated Motor Boat & Co. [1968]E. A 123).

Grounds 1 and 4: $20$

That the learned Trial Magistrate Grade one erred in law and fact when she failed to take into account the absence of the landlord's consent thereby arriving at a wrong decision.

That the learned Trial Magistrate Grade one failed to apply the law properly to the facts in relation to consent of the landlord in land transactions.

Counsel for the appellant submitted that it is not in dispute that the appellant is the owner of all mailo land comprised in Busiro, Block 351 Plot 1110 at Budo on which the respondent alleged to have acquired a part thereof in a kabanja from Salima Nanfuka. That the appellant was not aware of any land

- sale transactions on his land. That however, the seller of the suit land did not 30 provide the respondent with any proof of payment of busulu nor of consent having been obtained from the land lord. That the respondent being aware that the land he was buying was a kibanja, he should have taken the essential steps to inquire on whether consent had been acquired. Counsel cited the case - of Joy Tumushabe & Another v. M/s Anglo-African Ltd and Another, S. C. C. A 35 No. 7 of 1999, where it was held that; the principle of law settled among others is that in selling/purchasing of a kibanja on a titled land, the consent of

the landlord is mandatory. That in the instant case the trial Magistrate omitted to consider the necessity of the landlord's consent before sale.

I have carefully considered the evidence on record and the submissions of the appellant. It was the evidence of the appellant that he got the suit land while it was not titled and he processed the title. That Nanfuka Salima had no interest in the land which was originally owned by Kiviri Nyirinkwaya who gave him the land as a form of payment of the debt that he owed him.

The respondent on the other hand stated that he bought the suit land from Nanfuka who bought the same from Kiviri and had a sale agreement to that effect. And that the land he bought was 50ft x 20ft and another piece of 40ft x 20ft, both were bought from pieces from Nanfuka. He stated that he confirmed with the family of Kiviri that the suit land was sold to Nanfuka by Kiviri Nyirinkwaya.

DW2 Nanfuka told court that she bought 20ft x 50ft and later bought more land which totalled to 70ft x 60ft. That she bought the land as an individual. It was never bought as a couple that is she never bought it together with the appellant and the family of Kiviri was aware of the purchase.

DW3 confirmed that the DW2 came with an agreement showing that she was the owner of the suit land having bought it from Kiviri Nyirinkukya. That he saw Sseguya in 2021 when he came to their office to report that his wife

$20$ Nanfuka had sold his land and when he was asked for the title of the land, he did not have it.

DW4 confirmed that her husband sold land to Nanfuka and she was introduced to her after the sale. That she was not aware of the fact that her late husband sold land to the appellant. She added that when they wanted to $25$ acquire a title for their land, Nanfuka brought her husband (the appellant) to assist them process a title for their land. So, the appellant connected them to a lawyer called Mukiibi who processed a land title. That they agreed to give the appellant and Nanfuka a lot of land for assisting them as consideration for their help. That that was when DW4's husband added Nanfuka land in 30 addition to what she had already brought from him. That what was given to the appellant and Nanfuka was in addition to what Nanfuka had already bought from them.

DW4 further stated that Nanfuka is the one who sold to the respondent and she had no problem with the sale. She confirmed that the respondent is on the 35 part that Nanfuka sold to him and the part that was given to them by Kiviri is bushy. During the locus in quo visit it was observed that the land borders Sam Kuteesa's estate, Nyirinkwaya Kiviri and the appellant who has about 1/2 an acre below the suit land which was bushy. The respondent was found with a 40

permanent house on the suit land in which he lives with his family.

$10$

$\mathsf{S}$

From the evidence above, it is clear that the respondent purchased land from Nanfuka which she bought in 2012 from Kiviri way before the appellant got his land and these two pieces of land are distinct and this was confirmed by the trial court during the locus in quo visit. As such there was no need for the appellant's consent before sale because the land does not part of what he was given by Kiviri as confirmed by DW4. Nor was it part of what the appellant was given jointly with Nafunka where spousal consent would have been essential.

I accordingly find that the trial Magistrate made no error in reaching her decision as there was no need for consent before sale from the appellant since $10$ he was not Nanfuka's Land lord.

This ground of appeal therefore fails.

$\mathsf{S}$

Ground 2: That the learned Trial Magistrate Grade one erred in law and fact when she ignored the inconsistencies in the size of the kibanja thereby arriving at a wrong conclusion.

Counsel for the appellant submitted that the inconsistencies in the testimony of DW1 were grave and went to the root of the matter in regard to the size of the land and consent of the land lord. That the issue of size in this matter is very fundamental and ought not to have been treated lightly.

I have carefully perused the evidence on the court record and indeed there $20$ were inconsistencies in regard to the size of the suit land. The appellant himself did not know the measurements of the suit land and went by what the respondent included in his pleadings. It is not uncommon for owners of untitled land not to know the measurements of their land. Such land is usually

- described by its boundary marks/borders or neighbours. As is, in this case, the $25$ land measurements were estimates and in my view the inconsistencies were minor. The extent of occupation by the respondent was ably determined during the locus in quo visit which cleared the confusion if any. The trial magistrate was therefore not in error to state that the inconsistencies in the instant case were minor because they did not point to deliberate $30$ - untruthfulness.

This ground of appeal also fails.

Ground 3: That the learned Trial Magistrate Grade one erred in law and fact when she misdirected herself on the evidence relating to the gift intervivos to the plaintiff.

Counsel for the appellant submitted that the trial Magistrate erred in law and fact when she misdirected herself in regard to the evidence on the gift intervivos that was given to the appellant because it was his uncontroverted evidence that he extended a friendly loan to Mr. Kiviri and the half acre was

payment for the same and not a gift to both the appellant and respondent as she observed. That a gift intervivos takes effect when there is intention to give the gift, the donor must deliver the property and the donee must accept the gift. That in the instant case the respondent did not tender in any evidence to show that Mr. Kiviri gave the half acre to both the appellant and the respondent as a gift. That where a gift rests merely in promise (written or verbal) or unfulfilled intention it is incompetent and imperfect and the court will not compel the intending donor. (See: Pennington v. Waine [2002] 1 WLR 2075).

It is my considered view that the trial Magistrate rightly found that land which 10 belonged to the appellant was what was given to both him and Nanfuka as payment for their assistance in processing a title for Kiviri's land. This piece of evidence was corroborated by DW4 the widow to Kiviri. Therefore, there was no friendly loan extended to Kiviri whereof the appellant chose to pay himself in form of land. the trial Magistrate therefore did not misdirect herself as 15 alleged by the appellant.

This ground of appeal also fails.

Ground 5: That the learned Trial Magistrate Grade one did not properly evaluate the evidence and thereby came to a wrong conclusion and occasioning a miscarriage of justice.

This ground of appeal is too general, argumentative and inconcise. It therefore offends the provisions of Order 43 Rule 1(2) of the Civil Procedure. This ground of appeal is hereby struck out.

In a nut sell this appeal is found lacking in merit. It is hereby dismissed with costs.

I so order.

Right of appeal explained.

OYUKO ANTHONY OJOK 30 JUDGE 15/04/2024

$\mathsf{S}$

$20$

$25$