Ssenyonga and Another v Kibirige (Civil Appeal 29 of 2021) [2024] UGHC 697 (8 July 2024)

### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT MPIGI

# CIVIL APPEAL NO. 29 OF 2021

### (Arising from Civil Suit No. 120 of 2013)

1. SSENYONGA (MR.) $\mathsf{S}$

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2. SSENYONGA (MRS) APPELLANTS

### **VERSUS**

JOSHUA KIBIRIGE...................................

#### BEFORE: HIS LORDSHIP HON. JUSTICE OYUKO ANTHONY OJOK 10

# Judgment

The appellants brought the instant appeal against the decision of her Worship Mukoya Maureen, Magistrate Grade one delivered on the 8<sup>th</sup> day of November, 2021 at Mpigi Magistrate's Court.

#### Brief background: 15

The respondent sued the appellants for the recovery of land and a house at Kinaawa, Nsangi Sub-County, Wakiso District. The respondent's claim was that he had been the owner of the suit land since October, 2004 and prayed for an eviction order against the appellants, general damages, a permanent injunction, interest and costs of the suit.

The appellants on the other hand denied the respondent's claim and contended that by the time the alleged sale agreement in respect of the suit property by the respondent was entered into, the appellants were already in occupation having bought the same from Christine Mubiru at a consideration of UGX $750,000/$ = on the 23<sup>rd</sup> June, 2003 and the plot measures 25ft by 22ft. Judgment in the main was

25 made in favour of the respondent hence this appeal.

The grounds of appeal as per the memorandum of appeal were as follows;

- 1. That the Learned Magistrate erred in law and in fact when she failed to evaluate the evidence as a whole thus arriving at an erroneous decision. - 2. That the Learned Magistrate erred in law and fact in holding that the Appellant's Kibanja was part of the kibanja which was attached and sold in execution of a decree in Civil Suit No. 0076 of 2003.


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- 3. That the Learned Magistrate erred in law and fact in that she ignored the fact that by the time the Civil Suit No. 0076 of 2003 was filed against Mubiru Francis and Subsequent warrant of attachment, the appellant had already purchased their kibanja measuring 25ft by 22ft and were in possession. - 4. That the Learned Magistrate erred in law and fact when she ignored the evidence of Mibiru Francis who confirmed that he authorized his wife to sell the kibanja to the appellants and thereby arriving at a wrong decision that there was no interest in the suit kibanja that was passed to the appellants. - 5. That the Learned Magistrate erred in law and fact in that she ignored the evidence of the appellants that the $2<sup>nd</sup>$ appellant bought the suit kibanja on 23<sup>rd</sup> June, 2003 and she immediately took physical possession and thereby arriving at a wrong decision that the appellants are trespassers on the suit land. - 6. That the Learned Magistrate erred in law and fact when she added another issue on the agreed upon issues for determination by the parties and shifted the burden of proof leading to a miscarriage of justice.

# Representation:

Counsel Lubega Vincent appeared for the appellant while the respondent was unrepresented. Only the appellant filed written submissions. 20

Resolution of the appeal:

Duty of the first appellate court:

In the case of Selle v. Associated Motor - Boat and Co. (1968) E. A 123, it was held that:

"The duty of the first appellate Court is to re-hear the case by considering the 25 evidence on record, to evaluate it and draw its own conclusions in deciding whether the judgment of the trial court should be upheld and deal with any question of law raised on appeal."

The first appellate court therefore has the duty to re-appraise the evidence on record and make its own decision bearing in mind that it neither heard no saw the 30 witnesses give their testimonies in the lower court.

# Submissions:

Counsel for the appellants submitted on all the grounds of appeal jointly.

Counsel submitted that the 2<sup>nd</sup> appellant(DW1) testified that she was approached by Kayemba Ricadi who told her that there was a plot of land being sold by

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Christine Mubiru who took her to Christine Mubiru (DW2) who was with her husband Mubiru Francis (DW3). That she inspected the plot of land and made inquiries from the neighbours and local council officials and was informed that the plot originally belonged to Samuel Katavi who had sold it to Mubiru Francis

the husband of Christine Mubiru. Upon making her inquires and due diligence, 5 the $2^{nd}$ appellant executed a sale agreement on the $23^{rd}$ day of June, 2003 upon purchase of the suit land measuring 25ft by 22ft. The agreement was witnessed by the Chairman LC1 and she immediately took physical possession of the same and constructed a house thereon. That she stayed on the suit land without any interferences from anybody until 2013 when she was sued by the respondent. 10

Counsel went on to submit that the respondent on the other hand stated that he bought a plot of land on 26<sup>th</sup> October, 2004 from Twaha Ssemuju. That before purchase he did due diligence and found that the land was attached and sold as a result of the court order which was issued in Nsangi Civil Suit No. 076 of 2003.

- That he further told court that after he had bought and taken possession of the said 15 property, Mubiru Francis and his wife Nakibule forcefully entered upon the said property on $17/7/2007$ and took possession of the same without his consent. He added that he regained possession of the said property as a result of the judgment decree and a warrant issued against Mubiru Francis and Nakibule on 8th September, 2011. That the land he purchased had structures which were 20 - unfinished, upon possessing the land, he finished the structures by installing doors and windows. And the appellants were tenants in one of the houses on the suit land whom he told to vacate and instead they told him that they had purchased the same in 2004. - Counsel further submitted that it was the testimony of PW2 that when he bought 25 the suit plot in May, 2004 the appellants were not occupying any of the houses on the said land. That he sold the land to PW1 in October, 2009 at UGX 7,000,000/ $=$ however, no sale agreement was tendered in court to prove that this transaction actually took place nor are the measurements of the land known. - Furthermore, that Civil Suit No. 0076 was filed on 7<sup>th</sup> August, 2003 against 30 Mubiru Francis for recovery of land and judgment was entered on 30<sup>th</sup> September 2003 and thereafter a warrant of attachment and sale of land was issued and PW2 bought the same and was issued with an order for delivery to purchaser of land at a sale in execution on 13<sup>th</sup> December, 2004. That in the instant case by the time of - attachment of Mubiru Francis' (DW3) plot of land in execution, the 2<sup>nd</sup> appellant 35 had already bought the plot measuring 25ft by 22ft and therefore the said land was unavailable in October, 2004 for attachment in execution of the decree in Civil Suit No. 0076 of 2003 since the interest in the said kibanja had already passed on to the $2<sup>nd</sup>$ defendant for over a year. That had the trial Magistrate properly

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analyzed the evidence then she would have found out that Mubiru Francis had a bigger kibanja and the 2<sup>nd</sup> appellant had already bought the piece measuring 25ft by 22ft. Thus, the trial Magistrate misdirected herself in reaching her decision and occasioned a miscarriage of justice.

Analysis of court: $5$

I have carefully considered the pleadings, evidence adduced, exhibits tendered that are on court record and the submissions for the appellants. I will adopt the appellants' approach of resolving all the grounds of appeal jointly.

It is my considered view that the trial Magistrate properly evaluated the evidence on record before reaching her decision. DW3 Mubiru Francis from whose wife the $2<sup>nd</sup>$ appellant purchased the suit land during cross examination stated that the kibanja that was sold was only a portion of the land that was in dispute. That however they were evicted from the whole kibanja by the bailiff during execution. That the respondent is the one who chased them off the land and eviction was in

November, 2003. That he had subdivided the kibanja and Kibenje had taken the 15 remaining portion of the kibanja then DW3's wife sold it. That what was sold was the portion that was cut off from the bigger part of the kibanja.

In reexamination he stated that it was his wife that sold to the $2<sup>nd</sup>$ appellant and the sale took place around June, 2003. And could not remember when the respondent evicted them. That there is no difference between the kibanja he was evicted from and that which was sold by his wife which is the same kibanja the respondent bought.

Whereas, there were some contradictions in the respondent's evidence in the lower court, I have gone through the entire court record to understand how the appellants and the respondent obtained their respective interests in the suit land. It ought to be noted that whereas the appellants claim that they bought the suit land before the respondent, there had been a suit instituted by Byarugaba Emmanuel against Mubiru Francis that is Civil Suit No. 0076 of 2003 where of he was acclaiming a refund of the purchase price of UGX 200,000/ $=$ for land that he

had bought and UGX 600,000/ $=$ for building materials. Byarugaba's claim was 30 that he had bought a plot of land from Muibiru Francis on 10/5/2000 at Kinaawa; a sale agreement was executed to that effect. Whereof Byarugaba started construction and in 2001 Mubiru sold to Nambalirwa and eventually to another party in 2003. Upon, realizing all this Byarugaba decided to claim for a refund which eventually resulted into Mubiru Francis being sued and judgment was 35 entered in favour of Byarugaba. It was upon execution that PW2 bought the suit land by public auction and resold the same to the respondent. Whereas, Mubiru sold to the $2^{nd}$ appellant he did so illegally because he had initially sold the suit

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land to Byarugaba Emmanuel. The 2<sup>nd</sup> appellant therefore did not obtain good title from Mubiru Francis who had sold to her land that he had already sold earlier.

I am in agreement with the trial magistrate who in her judgment stated that:

"I find that indeed there was civil suit no. 0076 of 2003 and Civil Suit No. 006 of 2010 together with an order for delivery to purchaser of land at sale in execution situate at Kinaawa Zone, Nsangi Sub-county, Wakiso District by the then trial Magistrate to PW2. I find that this particular piece of kibanja is actually the suit land that was purchased through a court order in execution due to failure by the then judgment debtor Mubiru Francis vide judgment in Civil Suit No. 0076 of 2003 dated September, 2003 to pay the judgment debt."

Whereas, DW3 Mubiru Francis testified that he had allowed his wife DW2 to sell the suit land, they had no good title to pass to the $2^{nd}$ appellant because DW3 was well aware that he had already sold the same to Byarugaba Emmanuel. So, he used his wife to resell the same piece of land to the $2<sup>nd</sup>$ appellant.

The trial Magistrate in her decision also noted that during the locus visit she found a house in contention occupied by the appellants measuring approximately 21.9ft by 22ft. That the other houses were occupied by the respondent and the toilet was shared by both the Respondent and the appellants which matched the description of what the respondent described as the suit land.

In the circumstances I find that the trial magistrate properly evaluated the evidence on record and reached a correct decision. The 2<sup>nd</sup> appellant if anything should be suing Christine Mubiru who had no good title in the suit land to pass on to her.

This appeal is found lacking in merit and is accordingly dismissed with costs. The lower court decision is hereby upheld.

I so order.

Right of appeal explained.

OYUKO ANTHONY OJOK JUDGE 08/07/2024

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