Ssemyalo v Kyamufumba (Civil Appeal 8 of 2023) [2024] UGHC 1243 (14 October 2024)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MASAKA**

#### **CIVIL APPEAL NO. 08 OF 2023 (ARISING FROM LAND CIVIL SUIT NO. 93 OF 2019)**

| SSEMYALO | |-----------------------------------------------------------------------------------------------------| | GODFREY:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPELLANT | | VERSUS | | KYAMUFUMBA:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT |

### **Before: HON JUSTICE LAWRENCE TWEYANZE**

## **JUDGMENT.**

#### **Introduction.**

- 1. This is an Appeal in which the Appellant being dissatisfied with the judgement and orders of Her Worship Nvanungi Sylvia, Chief Magistrate at the Chief Magistrates Court of Masaka at Masaka under Civil Suit No. 93 of 2019, Judgment is dated 30th January 2023. The Appellant brought this Appeal seeking orders that the orders of the Chief Magistrate be set aside with costs herein and the Court below. - 2. The brief background of the Appeal as can be gathered from the record of the Lower Court is that the Appellant as Plaintiff Ssemyalo Godfrey filed a suit against the Respondent/Defendant seeking for a declaration that he is the legal owner of the suit Kibanja situate at Kasijjagirwa Kimaanya-Kyabakuza in Masaka City. He sought for eviction orders, a permanent injunction, general damages and costs of the suit all arising from trespass to his Kibanja. The facts in brief are that the Appellant bought the suit Kibanja from the Administrator Ssempungu Godfrey, the beneficiary of the Estate of the late Bulasio Musoke. That without permission or consent of the Plaintiff the Defendant trespassed to the suit Kibanja.

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- 3. The Defendant on the other hand disputed the claim and stated in his defence that he bought the Kibanja in dispute from a one Buyondo John who obtained the same as a gift intervivos from his father Musoke Bulasio. That at the death of Buyondo a one Ssempungu Administrator of the Estate of late Bulasio Musoke encroached on the suit Kibanja and removed a fence. That in a meeting with the LC1 Committee, it was resolved that Ssempungu refunds the purchase price and buy back the suit Kibanja, but he instead illegally sold it to the Plaintiff. That the suit Kibanja does not form part of the Estate of the late Bulasio Musoke. - 4. The trial Magistrate delivered judgment in favour of the Respondent and dismissed the suit with costs. The Appellant being dissatisfied with the said Judgment hence filed this Appeal.

## **The Grounds of Appeal.**

- 5. The Appellant raised six (6) grounds of Appeal in his Memorandum of Appeal namely that; - *i. The Learned Chief Magistrate erred in law and fact to hold that the Appellant was not the rightful owner of the suit Kibanja but that the Respondent was the rightful owner of the suit Kibanja contrary to the weight of evidence.* - *ii. The Learned Chief Magistrate erred in law and fact to hold between Ssempungu and Buyondo it was Buyondo who had and did pass title to the respective buyer contrary to the ponderance of evidence and the law.* - *iii. The Learned Chief Magistrate erred in law and fact to base her findings solely on the sale agreement P Exh 1 to the exclusion of other evidence.* - *iv. The Learned Chief Magistrate erred in law and fact to rely on a sketch plan not exhibited in evidence and in any case misinterpreted its import by ignoring other evidence touching on the same.*

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- *v. The Learned Chief Magistrate erred in law and fact by misinterpreting the evidence of Haji Bekunda mistaking its import and ignoring evidence of its context.* - *vi. The Learned Chief Magistrate erred in law and fact in reaching her decision to dismiss the suit contrary to the weight of evidence and thus came to a wrong decision thus causing a miscarriage of Justice.*

#### **Representation and hearing.**

6. The Appellant s were represented by M/s Nnyanzi & Nnyanzi Advocates. While the Respondent was represented by M/s Ssekyewa, Matovu Co. Advocates. Both Counsel filed written submissions that have been considered herein.

#### **Duty of the first appellate Court.**

7. The duty of a first Appellate Court is to scrutinize and re-evaluate the evidence on record and come to its own conclusion and to a fair decision upon the evidence that was adduced in a Lower Court. **See:** *Section 80 of the Civil Procedure Act Cap 71*. This position has also been re-stated in a number of decided cases including J.*F. Zaabwe vs Orient Bank Ltd CACA No. 4 of 2006*; where **Oder, JSC** stated thus:

*"First, it is trite law that the duty of a first appellate Court is to reconsider all material evidence that was before the trial Court, and while making allowance for the fact that it has neither seen nor heard the witnesses, to come to its own conclusion on that evidence. Secondly, in so doing it must consider the evidence on any issue in its totality and not any piece in isolation. It is only through such re-evaluation that it can reach its own conclusion, as distinct from merely endorsing the conclusion of the trial Court"*.

8. In case of conflicting evidence, the appellate Court has to make due allowance for the fact that it has neither seen nor heard the witness, it must weigh the conflicting evidence and draw its own inference and conclusions (*See Lovinsa Nankya Vs Nsibambi (1980) HCB 81).*

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### **Preliminary Matter/Objection**

- 9. The Respondents' submitted that the instant Appeal is not competently before this Honourable Court for the reason that the Appellant did not extract a decree before lodging the Memorandum of Appeal as required by law. Counsel cited Section 220 (1) (a) of the Magistrates Court Act that Appeals from Magistrates Grade One and Chief Magistrates, lie from decrees and orders to the High Court. Counsel submitted that failure to extract a formal decree before filing an Appeal is a defect which goes to the root of the jurisdiction of Court. That the legal position is to the effect that the decree Appealed against must be filed with the Memorandum of Appeal because that is what is being Appealed against, and that in the absence of a decree, there is no basis of the Appeal. - 10. Counsel cited the case of *Migadde Richard Lubinga & Ors –vs- Nakibuule Sandra & Or's [Civil Appeal No. 53 of 2019]*, that the learned Judge in that case struck out such an Appeal where no decree had been extracted.

## **Determination of the preliminary objection.**

11. Section 220 (1) of the Magistrates Courts Act provides as follows:

*"Subject to any written law and except as provided in this Section an Appeal shall lie from the decrees or any part of the decrees and from the orders of Magistrates' Court presided over by a Chief Magistrate or Magistrate Grade 1 in the exercise of its original civil jurisdiction to the High Court."*

12. The contention on the proposition that an Appeal preferred without a formal or extracted decree, or order, accompanying it is incompetent, was resolved by the Court of Appeal in *Kibuuka Musoke William & Anor. vs. Dr. Apollo Kaggwa Court of Appeal Civ. Appeal No. 46 of 1997*, where the Court of Appeal overhauled this long held proposition of law, and, in departing there from, stated in no uncertain terms that: – *"... the extraction of a formal decree embodying the decision complained of is no longer a legal requirement in the institution of an Appeal. An Appeal by its very nature is against the judgment or reasoned order and not the decree extracted from the judgment or the reasoned order."*

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- 13. Further in *Banco Drabe Espanol vs. Bank of Uganda; Court of Appeal Civ. Appeal No. 42 of 1998,* it declared such requirement, albeit it being expressly provided for in its rules of procedure, to be moribund and contravening the provision of Article 126 (2) (e) 1995 Constitution which enjoins Courts of Judicature to always render substantive justice without undue regard to rules of technicalities; and further, explained that: – *"The extraction of the decree was therefore a mere technicality which the old Municipal law put in the way of intending Appellants, and which at times prevented them from having their cases heard on merits. Such a law cannot coexist in the context of the 1995 Constitution Article 126 (2) (e) where the Courts are enjoined to administer substantive justice without undue regard to technicalities."* - 14. The High Court has, by its decisions in cases such as *Mbakana Mumbere vs. Maimuna Mbabazi - H. C. Civ. Appeal No. 3 of 2003 (Per Mukasa J.)*, *Tumuhairwe Lucy vs. The Electoral Commission & Anor. (Mbarara - H. C. Civ. Appeal No. 2 of 2011(Per Bashaija J.), John Byekwaso & Anor. vs. Yudaya Ndagire (Per Tuhaise J.),* taken cue from, and followed, the Court of Appeal's departure from the old proposition of law requiring the extraction of a formal decree to accompany the lodgment of an Appeal. - 15. With the above authorities, I reject this preliminary objection raised by the Respondent as it lacks merit. Moreover, the Appellant later attached the decree dated 24th March 2023, and the Respondent did not demonstrate any prejudice suffered.

#### **Locus standi.**

- 16. The Respondent's Counsel submitted that that the Appellant 's suit was from the outset incompetent given that the Appellant had no locus standi to sue the Respondent in trespass when he has never been in possession of the Suitland. - 17. I must reject this preliminary objection as the same goes to the arguments in the main grounds of Appeal raised. It can be resolved in the main


grounds of Appeal. Moreover, the Respondent did not raise this point at the trial in the Lower Court. Therefore, this preliminary objection is rejected at this stage.

18. I therefore, find that all the preliminary objections lack merit and are rejected. I will now turn to consider the merits of this Appeal hereunder;

## **Consideration of the Appeal**

- 19. I have read the record of the Lower Court, the judgment, pleadings, Witness Statements and submissions by the parties to this Appeal. I have also read the authorities cited and relied upon by both Counsel. This Court is required under Section 80 of the Civil Procedure Act Cap 71 to scrutinize and re-evaluate the evidence on record and come to its own conclusion and to a fair decision upon the evidence that was adduced in a Lower Court. See: *F. Zaabwe vs Orient Bank Ltd CACA No. 4 of 2006* (supra). - 20. I shall therefore proceed to reappraise the evidence and come to my own conclusion as required by law. In so doing, I am of the view that although the Memorandum of Appeal sets forth 6 grounds, they actually relate to the following two questions a determination of which will dispose of this Appeal: - *1. Who is the lawful/rightful owner of the suit Kibanja?* - *2. What remedies are available to the person envisaged in (1) above?* - 21. Court shall proceed to answer the above questions in turn.

## **1. Who is legally entitled to the suit Kibanja?**

- 22. The Appellant and the Respondent all lay claim to the suit property. The Appellant claims that he bought a suit Kibanja from the Administrator Ssempungu Godfrey, the beneficiary of the Estate of the late Bulasio Musoke. That without permission or consent of the Plaintiff the Defendant trespassed unto the suit Kibanja. - 23. On the other hand, the Respondent claims that he bought the Kibanja in dispute from a one Buyondo John who obtained the same as gift

Page **6** of **12** intervivos from his father Musoke Bulasio. That at the death of Buyondo, a one Ssempungu Administrator of the Estate of late Bulasio Musoke encroached on the suit Kibanja and removed a fence. That in a meeting with the LC1 Committee, it was resolved that Ssempungu refunds the purchase price and buys back the suit Kibanja, but he instead illegally sold it to the Plaintiff. That the suit Kibanja does not form part of the Estate of the late Bulasio Musoke.

24. The trial Magistrate at pages 2-4 of the Judgment concluded on the issue with a finding that the Respondent/Defendant was the lawful owner of the suit Kibanja and not the Appellant. The trial Magistrate stated as follows; -

"*On the issue on who is the rightful owner of the suit land at Kasijjagirwa - Kyabakuza.*

*It was the evidence of Ssemyalo (Plaintiff) PW1 that he bought the suit Kibanja from the Administrator of the Estate of Bulasio Musoke called Ssempijja on the 14.1.2019. He tendered in P. E.1 a sale agreement showing the sketch map defining the size of the suit Kibanja which he estimated to be 2 acres. PW1 says at the time he bought the suit Kibanja was free on encumbrance. Plaintiff adduced evidence of 4 witnesses to corroborate his evidence to wit.*

*PW2: Naluwooza Judith a sister to the late Bulasio who told Court that his brother distributed his Kibanja to his sons. That the boys took the Lower part while the girls took the grave yard. That the boys sold off their shares while the Plaintiff bought the girls portion. She said nothing about the Defendant. PW3: Namirembe Judith told Court that Buyondo wrongfully sold the girls' share to the Defendant. That the Defendant was even warned in vain.*

*Another witness, Nanziri Grace (PW4) came to confirm to Court that the beneficiaries of the Estate of the late Bulasio Musoke sold it off to the Plaintiff. She confirmed that she was not around but only signed the agreement later.*

*Ssempungu Godfrey - PW5 who is also the administrator of the Estate of the late Bulasio Musoke presented Letters of Administration to confirm his authority over the Estate. He confirmed having sold the Estate forming the*

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*suit Kibanja to the Plaintiff in the presence of their advocate. Ssempungu also confirmed that at the time he sold, the Defendant was already on occupation of the suit Kibanja. He further told Court that he registered the Kibanja with Buganda Land Board in 2013, but denied the sketch map appearing on the letter confirming Kibanja ownership issued by Buganda Land Board. Ssempungu's contention is that his brother Buyondo who sold the suit Kibanja to the Defendant was not merely a neighbor to the Estate of late Bulasio Musoke. Ssempungu alleges that the suit Kibanja actually forms part of the Estate of their late father Musoke Bulasio. That they (Buganda Land Board) messed up the map. He also says Buyondo sold to Bekunda rightly but wrongfully to the Defendant.*

*The Defendant (DW4) counteracted this evidence and told Court that Buyondo sold to him in 2012 as per the D. E.1. That Ssempungu (PW5) removed the boundary marks and the Defendant called for an LC1 meeting. That at the time Buyondo was still alive. That Buyondo went ahead to confirm that he sold his share to the Defendant in the presence of his siblings Ssempungu and Namirembe. That the family members promised not to disturb the Defendant. However, after the death of Buyondo, a one Namirembe, and another Nanziri plus Sempungu sold the suit Kibanja to the Plaintiff Ssemyalo. That a meeting was called by LC1 Chairperson, during which Ssempungu was advised to refund the purchase price but instead opted to sell without redeeming the suit Kibanja first.*

*Other defence witnesses like Mary Bukenya (DW1) a woman Representative on the LC1 Committee wrote D. E.1 in which Buyondo sold his share to the Defendant.*

*Ssengendo Anslem - DW2, who was the Chairman LC1 when Buyondo was selling the suit Kibanja, also confirmed having signed and stamped - D. E.1.*

*DW2 confirmed that he held a meeting when the Defendant complained about the family of Buyondo. He authored D. E.2 which was form of verdict, in which he directed Ssempungu and Namirembe to refund 4,100,000/= purchase price paid to Buyondo by the Defendant. But that the 2 siblings went ahead to sell to Plaintiff before refunding the money.*

*DW3, Miwanda Godfrey came to confirm that he is the one who helped Buyondo find the Defendant to purchase the suit Kibanja. He also confirmed having witnessed the Chairperson LC1 (DW2) instruct Ssempungu and*

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*Namirembe to refund the purchase price to the Defendant. But instead, they sold the suit Kibanja to the Plaintiff without refunding the money.*

*During analysis of evidence, this Honorable Court ownership by raising one key question. And that is; Between Ssempungu and Buyondo who lawfully passed title during sell? And, or did they have lawful interest to pass in the 1st place?*

*DW4, Buyondo told Court that Buyondo sold to him first and then sold the remaining portion to the Defendant. And that they both go up to Ssempungu's land."*

25. In coming to a conclusion that the suit Kibanja does not form part of the Estate of the late Bulasio Musoke administered by Ssempungu, the trial Magistrate considered the evidence of the neighbour Bekunda (DW5) and what was observed at locus. The trial Magistrate considered the evidence on record and at pages 4-5 of the Judgment, it was stated that;

*"Court made its findings basing on the sale agreement entered between Ssempungu and the Plaintiff Ssemyalo. Looking at P. E.1 agreement of 14/1/2019 under paragraph 2; it says the beneficiaries are the owners of a Kibanja at Kasijjagirwa measuring 185 X 160 X 74 X 91 X 44 X 134 feet as per the sketch plan attached; and their ownership is by virtue of succession from the late father Musoke Bulasio.*

*Court turned the leaf and looked at the sketch map referred to on the agreement. The same is at the back of the attached letter confirming Kibanja ownership issued by Buganda Land Board to Ssempungu Godfrey. On the sketch map, the stated measurements are clearly indicated. Among the neighbours sited are Buyondo and Bekunda (DW5).*

*Court earlier noted from the testimony of Bekunda (DW5) saying that Buyondo first sold to him and kept another portion for himself which goes up to that of Ssempungu. And that the same is what he sold to the Defendant.*

*Indeed, when Court visited locus in quo on the 01/0/2022, it was observed that there was a path running from the main road in the North down to*

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*Bekunda's (DW5) Kibanja in the South, separating suit Kibanja from the grave yard on the Estate administered by Ssempungu. Court found that the defence evidence of Bekunda (DW5) along with P. E.1 i.e. agreement of 14/1/2019, together with the attached sketch map simply confirmed that Buyondo's share of Kibanja was merely adjacent to the Estate of the late Bulasio Musoke now administered by Ssempungu. The suit Kibanja therefore does not form part of the Estate of the late Bulasio Musoke.*

*It's very clear in the eyes of Court that Buyondo lawfully sold his Kibanja interest to the Defendant. And it goes without saying that Ssempungu's interest does not extend to the suit Kibanja. Ssempungu therefore illegally passed title in the suit Kibanja where he had no interest at all. The suit Kibanja is properly and lawfully in the hands of the Defendant"*

- 26. The above is what formed the basis of the decision by the trial Magistrate, who as well visited the locus in quo, which was the suit Kibanja and established that the suit Kibanja is separated by a path from the graveyard on the Estate administered by Ssempungu. - 27. Upon clear scrutiny of the record, the suit Kibanja is separated from that the land that belongs to the Estate of the late Bulasio Musoke, and the Respondent was in possession of the suit Kibanja at the time when the Appellant is said to have purchased it. The record and the testimony of DW2-Ssengendo Anselm Ssalongo, the LC1 Chairman indicates that the Respondent purchased the suit Kibanja in 2012 from Buyondo, the son to the late Bulasio Musoke. That Buyondo sold the Kibanja where he was staying. The LC1 Chairperson testified that he does not know that Ssempungu sold the suit Kibanja to Ssemyalo. DW2's testimony at this point was not challenged by cross-examination. DW1, testified that he bought the suit Kibanja in 2012, from a one Buyondo who had acquired it from his late father Bulasio Musoke. This kind of evidence was not as well challenged on cross-examination. I find that the Appellant during trial did not present sufficient evidence to indicate that the suit Kibanja belonged to him and that it still formed part of the Estate of the late Bulasio Musoke. To the contrary, there was available evidence that the Respondent who has been in possession of the suit Kibanja properly acquired it from Buyondo John, the son to the late Bulasio Musoke, and

Buyondo John was using he suit Kibanja at the time he sold it to the Respondent.

- 28. From the above, the Appellant at trial failed to prove two things, thus, that the suit Kibanja still formed part of the Estate of the late Musoke Bulasio and also, he did not prove that he had rightfully acquired the suit Kibanja from Ssempungu. Without proof of these, the Appellant cannot be said to be a lawful/rightful owner of the suit Kibanja. On the issue of trespass, it was found by the trial Magistrate that the one alleging trespass to land must prove actual or immediate possession and found that the Defendant lawfully occupied the Kibanja in dispute and he is not liable in trespass. I agree with the trial Magistrate's finding that the Appellant/Plaintiff did not acquire proper title in the suit Kibanja from Ssempungu and that the Respondent/Defendant lawfully occupies the Kibanja in dispute. - 29. Therefore, I do not find any error of either law or fact on the part of the trial Magistrate in this regard. There was no evidence led by the Appellant before the learned trial Magistrate that the Appellant had any protectable interest in the suit Kibanja.

## **2. What remedies are available to the person envisaged in (1) above?**

30. From the re-evaluation of the evidence above, it is my finding that the Appellant is not the lawful/rightful owner of the suit Kibanja and to the contrary, the Respondent/Defendant is the rightful owner of the suit Kibanja where he is in posession. Therefore, this Appeal fails and is hereby dismissed with costs to the Respondent. The judgment and orders of the trial Magistrate are upheld.

It is so ordered.

Judgment signed and delivered by email at Masaka this 14th day of October, 2024

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**LAWRENCE TWEYANZE JUDGE. 14th October, 2024.**