Tom Walusimbi v Andrew Kisawuzi (Civil Appeal No. 37 of 2013) [2025] UGCA 225 (11 July 2025)

#### THE REPUBLIC OF UGANDA

#### IN THE CO T OF APPEAL OF UGANDA AT KAMPALA

(Coram: Dr. Asa Mugengi, Musa Ssekaana, & Stella Alibateese, JJA)

#### CIVIL APPEAL 37 OF 2013

## Arisine from Hiph Court moala HCCS 19 of 2O1Ol

TOM WALUSIMBI ===== APPELLANT

#### VERSUS

ANDREWKISAWITZI = RESPONDENT

### JUDG DR ASA ENYI JA

#### INTRODUCTION

1 This is an appeal arising from the decision of High Court by Christopher Madrama J. delivered on 9th November 2012, where the court overturned <sup>a</sup> decision of the Chief Magistrate that held the appellant was the rightful owner of a vehicle in dispute.

#### BACKGROUND

The appellant contends that, one Geoffrey Mwase, presented himself as the respondent, the owner of Land Rover Free Lander Registration Number UAL 688F. The said Geoffrey sold to the appellant the vehicle at Shs. 25,000,000. The appellant met the alleged seller through a broker named Eddie Masai. An agreement was executed. The car keys, the original 1og book, signed transfer forms and a photo copy of the identity card of the respondent were handed over to the appellant. A search at Uganda Revenue Authority revealed that the respondent was the owner. While attempting to drive the car, it gave an alarm showing he was using the wrong key. The car was towed to Old Kampala Police Station. The appellant at the time of purchase had no knowledge that the seller 2

q

was not the respondent. The broker later told the appellant that the alleged seller had disappeared. Eventually the appellant realized that the owner ofthe vehicle was the respondent,

3 The appellant hled Civil Suit 166 of 2OO9 before the Chief Magistrate's Court claiming ownership of the vehicle and that it be delivered and surrendered to him. The trial magistrate found in favour of the appellant. He found that the respondent did not only part with the vehicle but a-lso the original log book and the car keys. The respondent by his conduct was precluded from denying authority to sell. The respondent being aggrieved by the decision of the trial magistrate appealed to the High court. The High court found in favour of the respondent overttrning the decision of the Chief Magistrate. The appellate Judge found that the vehicle was not sold in a market overt. The appellant being aggrieved by the decision of the High Court Judge has appealed to the Court of Appeal.

### GROUNDS OF APPEAL

- The appellant raised the following grounds of appeal. 4 - 1) The learned Judge on appeal erred in law and fact when he held that the Motor vehicle was not sold in a market overt' - 2) The learned trial Judge erred in law and fact when he applied the principle of market overt in the case. - 3) The trial Judge on appeal erred in law and fact when he failed to re-eva.luate the evidence on record and came to the wrong conclusion. - 4) The learned Judge on appeal erred in law and fact when he failed to resolve the preliminary point of law raised by the appeilant that the appeal in the High Court was defective for failure to serve the Memorandum of Appeal and the record of Appea-l within the prescribed time. - 5) The learned Judge on appeal erred in law and fact when he awarded costs against the appellant.

#### Representation

5 When the appeal came up for hearing, the appellant was represented by Mr Denis Kwezira, while the respondent was represented by Mr. James Bagonza.

#### ANALYSIS AND DETERMINATION

6 This is an appeal from a decision of the High Court arising from a matter in the Chief Magistrate's Court. Rule 32 of the Judicature (Court of Appeal Rules) Directions states that:

> "On any second appeal from the decision of the High Court acting in the exercise of its appellant jurisdiction, the court shall have the power to appraise the inferences of fact drawn from the trial court, but shall not have discretion to hear additional evidence..."

The duty of a second appellate court was stated in Kifamunte Henry u Uganda, Criminal Appeal 1O of 1997 as:

'On second appeal, the Court of Appeal is precluded from questioning the findings of fact of the trial court, provided that there was evidence to support those findings, though it may think it possible or even probable that it would not have itself come to the same conclusion; it can only interfere where it considers that there was no evidence to support the finding of fact, this being a question of 1aw."

Taking the above into consideration, I shall go ahead to determine the appeal.

7 I shall address grounds I and 2 together as they are similar arrd rotate on the same doctrine of law.

## DETERMINATION OF'GROUNDS l AND 2.

Ground 1. The learned Judge on appeal erred ln law and fact when he held that the Motor vehlcle was not sold ln a market overt.

pc. 3

&

Ground 2. The learned trlal Judge erred in law and fact when he applled the princlple of market overt ln the case.

## a) Appellant's submissions

- 8 counsel for the appellant submitted that the Judge's application of the doctrine of market overt to the case was an error for the following reasons. Firstly, the common law doctrine is no longer common law or even statutory law in England. Counsel submitted that the doctrine was embodied in England's Sale of Goods Act 1893. The Sale of Goods Act of 1994 abolished it effective 3'd January 1995. See Atigah's Sole of Goods, l2th Edition, pages 381 to 386. Counsel further submitted that the doctrine is not codified in the Uganda Sale of Goods Act. Parliament excluded the doctrine in the Sale of Goods Act. counsel submitted that the Makindye Magistrate's Court had made a compensation of Shs. 28,OOO,OOO. The court ordering the vehicle to be returned amounted to unjust enrichment. - counsel for the appellant further cited Section 14(3) of the Judicature Act which reads: 9

"The applied law, the common 1aw and the doctrines of equity shall be in force only so far as tlte circumstances of the Uganda and of its peoples permit, and subject to such qualifications as circumstances may render necessary."

Counsel argued that the doctrine should have been applied with such modifications as suit the country's situation. counsel submitted that in English law, a market overt is defined as "a place where goods are sold according to the usage of the market." He submitted that it is an error to define a market in Uganda as it is defined in England. In Uganda for second hand cases, it would mean a sale in the open. The sale in this matter was done by brokers. counsel submitted that the seller had possession of the motor vehicle, its original log book, identity card, and signed transfer forms.


# bl Respondent'ssubmlssions

10. Counsel for the respondent did not file submissions as directed by Court. Therefore, I shall continue to determine the appeal in absence of his submissions.

# c) Analysis and determination

- <sup>I</sup>1 . It is not in dispute that the appellant purchased the vehicle in dispute from <sup>a</sup> person who was claiming to be the owner, but was actually not the owner. The appellate Judge at High Court noted that "There seems to be no disagreement about the fact that Geoffrey Mwase impersonated the appellant [who is now the respondent] who is the original owner of the vehicle in question." The said Geoffrey Mwase was armed with the 1og book, the car keys and signed transfer form. He was eventually prosecuted and convicted in Criminal Case 347 of 29ll for theft of motor vehicle contrary to Sections 254 and 265 of the Penal Code Act. - 12. The dispute in question revolves around interpretation of Section 22 of the Sale of Goods Act, Cap 82O (now Section 29 of the Sales of Goods and Supply of Services Act) which reads: - '(1) Subject to this Act, where goods are sold by a person who is not the owner of the goods and does not sell them under the authority or with the consent of the owner, the buyer acquires no better title to the goods than the seller had, unless the owner of the goods is by his or her conduct precluded from denying the seller's authority to se11." - 13. A person purporting to be an owner of a good, who is not actually the owner, cannot pass on any title as he has no title. In short, a thief cannot pass on a better title than one he has. Nemo dat quod non habet', is a Latin legal maxim me€ming "No one can give what they do not have." It is a fundamental principle in property law that states that a person who does not own something cannot transfer ownership of it to another person. The only exception is where the owner

of the goods has by his or her conduct is precluded from denying the seller's authority to sell. If someone sells an item they do not legally own, the buyer does not acquire a valid title to the item. However, there are exceptions to this rule in various lega1 systems to protect bona fide purchasers (those who buy in good faith without knowing the seller lacks ownership rights).

13. The appellate Judge in arriving at his decision was alive to the fact that Mr. Geoffrey Mwase was convicted of theft. On a second appeal, the Court of Appeal is precluded from questioning the findings of fact of the trial court. so I have to go with the findings of fact by the High Court. I can only query his finding on the law. The appellate Judge noted, while citing Bishop sgote Motor Finance Corporotion Ltd. u Transport Brakes Ltd., Il949l 1 ALL ER 37 CA, which in my view is the correct Position, that;

> "According to the Sale of Goods by P. S. Atiyah and John Adams 9e edition, at page 319, in all cases the law has to choose between rigorously upholding the rights of the owner to his property on the one hand, and protecting the interests of the purchaser who buys in good faith and for value on the other hand. These competing interests as summarized by Lord Denning in the Blshopsgate case (supra) at Page 46

"ln the development of our law, two principles have striven for mastery. The first is the protection of property. No one carl give a better title than what he himself possesses. The second is the protection of commercial transactions. The person who takes in good faith and for value without notice should get a good title. The first principle has held sway for a long time, but it has been modified by common law itself and by statute so as to meet the needs of own times. The modification here in question is one conferred by the common law itself."

14. The appellate Judge found the exception to rule of nemo dat quod non-habet is where there is a sale in a market overt. The appellate Judge stated:

> "Before applying the first principle that no one can give a better title than he himself possesses, it must first be established that the transaction or the sale was made in malket overt. "Market Overt" is a place where goods are sold


pc. 6

according to the usage of the market. According to Words and Phrases Legally Defined Volume 3 third edition K-Q at page 105 the word "Market Overt" means:

"Where goods, other than goods belonging to the Crown, are sold in market overt according to the usage of the market, the buyer acquires a good title to the goods, provided he buys them in good faith and without notice of any defect or want of title on part of the seller. However, the title is liable to be defeated in the case of stolen goods. The rule is for the protection of the buyer, and the seller is not protected by it and an action for wrongful interference with goods lies in conversion against one who wrongfully sells the goods and delivers the goods of another in market overt... The place where the goods are sold must be a public and 1egal1y constituted market or fair, and the modern statutory market is within the rule as to the sale in market overt..." "The market to be a market overt must be an "open public and legally constituted one" (see tee v Bayes 918560 l8 CB 99, per Jervis CJ... "This shop in London must be one in which goods are openly sold; that is, as I take it, when they are sold in the presence and sight of any one of the public who may come into the shop upon legitimate occasion."

The trial Judge found that there was no evidence that the vehicle in question was sold in a market overt.

15. I have already stated that Section 22 of the Sale of Goods Act, Cap 820 (now Section 29 of th.e Sales of Goods and Supply of Services Act) provides that no person can pass on a good title in goods when he is not the owner of the goods ald does not sel1 with authority or consent of the goods. The said Section provides for an exception where th,e nemo dat rule does not apply. That is where the owner of the goods is precluded from denying his authority by virtue of his conduct. The doctrine of market overt is an exception where the seller by his conduct is precluded from denying his authority. Here the goods are sold in the presence and sight of any one of the public. An open market cannot allow all the owners of goods to se1l their goods at the same time in the same location because of space and time. Therefore, when there is a sa-le in an open market, the owner


of a good cannot deny the authority given to a seller to sell goods- In this case, Mr. Geoffrey Mwase sold through a broker, which was not a market overt.

16. Counsel for the appellant contended that the doctrine of market overt was embodied in England,s Sale of Goods Act 1893. The Sale of Goods Act of 1994 abolished it effective 3'd January 1995. Counsel argued that the doctrine should have been applied with such modifications as suit the country's situation. In my view, that is not the correct position of the law. The doctrine of market overt is not a new law or rule to the Act. Neither is it a modification of the Rule. A market overt is an exception where the owner of the goods is by his or her conduct precluded from denying a seller',s authority to seil. It is based on the principle of estoppel. When the England's Sale of Goods Act ceased applying in Uganda, the said conduct or exception was not abolished as it is still part of our current law. As long as the 1aw provides for an exception to the application ofthe rule ol nemo dat based on conduct of the owner, the doctrine of market overt will apply. In any case, refusing to apply the doctrine will not help the appellant',s case. This is because as Section 22 of the Sale of Goods Act provided, Mr. Geoffrey Mwase did not have any title to pass as he was not the owner of the goods nor had authority or consent. The exception would have exonerated him had the sale taken place in a market overt. The said conduct does not create liability. It is <sup>a</sup> shield and not a sword. Taking the above into consideration, grounds I and 2 of the appeal fail.

## DETERMINATION OF GROUND 3.

Ground 3. The trlal Judge on appeal erred in law and fact when he failed to re-evaluate the evidence on record and came to the wrong concluslon. # al Analysls and determination

16. The appellant did not submit on the said ground. The said ground is too general and is not concise. It offends Rule 86(1) of the Judicature (Court of Appea-l Rules) Directions which reads:

# "86. Contents of memorandum of appeal

1) A memorandum of appea-l sha1l set forth concisely and under distinct heads, without argument or narrative, the grounds of objection to the decision appealed against, specifying the points which are alleged to have been wrongfully decided, and the nature of the order which it is proposed to ask the Court to make..."

Furthermore, on a second appeal this Court cannot reappraise the facts or the evidence on record but make inferences from the facts ascertained by the lower court. Therefore, ground 3 is struck off.

#### DETERMINATION OF GROUND 4.

Ground 4, The learned Judge on appeal erred ln law and fact when he falled to resolve the prellminary point of law ralsed by the appellant that the appeal tn the Htgh Court qras defectlve for fallure to aerve the Memorandum of Appeal and the Record ofAppeal wlthln the prescrlbed time.

## af Appellants submissions

17. The appellant submitted that on appeal it raised an objection that the memorandum of appeal was not served on him within the prescribed time. It was argued that the omission to serve the memorandum greatly prejudiced him as he had limited time to prepare the appeal. He submitted that the appellate Judge stated the court does not have to decide whether the failure would be fata-l. The appellant submitted that the Court hnds that the appeal was incompetent for lack of service of the Memorandum of appeal.


## a) Analysls and dcterminatlon

1g. I have read the judgment of the appellate court. The extract where the court dismissed the preliminary point read:

> "Estoppels by conduct are imported by section 114 of the Evidence Act cap 6. In this, particular case, the conduct of the respondent not to raise the question of whether the appeal was competent on the ground of failure to serve the memorandum of appeal, at time when miscellaneous application number 276 of 2012 was argued, debarred the respondent from challenging the appeal on ground of procedural irregularity. When additional evidence was adduced, and the respondent proceeded to cross examine the witness, the respondent conducted himself to lead the court and the appeliant to believe the evidence of the additional witness would be considered on the merits in the appeal itself' In the circumstances, the respondent waived his right to have the appeal proceed to be heard on merit. That is to say, that the respondent cannot raise a point of law. However, the question of whether the memorandum of appeal had been served is a procedurai question that has to be handled preliminarily to avgld costs. The court therefore does not have to decide whether the failure to serve would have been fatal. In the circumstances of this case, the issue will not be decided and the appeal will be considered on its merit."

19. My understanding of the said judgment, the appellate Judge was aggrieved by the conduct of the appellant. The appellant led the court to believe that it was going to have the appeal determined on its merit. He called for evidence of additional witnesses. The court refused to entertain the preliminary objection because it was a orocedural question thal has to be handled preliminarilv to avoid costs. <sup>A</sup> preiiminary objection is called preliminary because it has to be haldled at preliminary stage. It should be disposed of in a preliminary manner before proceeding to handle the merits of a matter. It seems the appellant did not raise his preliminary objection as a preliminary point of law at the beginning of the appeal. I cannot fault the appellate Judge for refusing to entertain it.

20. Rule 32 of the Judicature (Court of Appeal Rules) Directions states that this court shall have the power to appraise the inferences of fact drawn from the trial court, but shall not have discretion to hear additional evidence. For me to determine whether the memorandum of appeal in the High Court was served on the appellant within prescribed time, I would need to look at the evidence as to when it was liled in High Court and when it was served. The record of appeal does not show when the memorandum of appeal in High Court was filed. Nor does it show when it was served. At this stage, I can only listen to points of law and rely on the inferences of facts by the appellate Judge. In his decision, the appellate Judge does not indicate that the memorandum of appeal was not served within the prescribed time. The court merely stated that "the issue will not be decided". In the absence of the entire record fi1ed in the High Court and inferences from the High Court, I cannot say with certainty that the respondent did not serve the respondent with a memorandum of appeal filed in High Court within the prescribed time. Therefore, ground 3 fails.

#### DETERMINATION OF GROUND 5.

Ground 5. The learned Judge on appeal erred ln law and fact when he awarded costs against the appellant.

# af Appellant'ssubmissions

<sup>2</sup>1. The appellant submitted that the general rule is that costs follow the events. However, a successful party can be deprived of costs. The appellant ciled Deura Nanji u Haridas Ka utda (1949l. 16 EA 35 where the Court of Appeal of East Africa held

> "That a successful party can be deprived of his costs when it is shown that his conduct, either prior to or during the course ofthe suit has led to litigation which but for his own conduct, might have been averted.


22. The appellant submitted that the respondent, a well-educated and employed person parted with possession of his motor vehicle to a person he claims to have known for two days. He handed over an original log book and signed transfer forms and car manuals. when Geoffrey Mwase drove off with the vehicle, the respondent did not make an immediate report to the Police. He submitted that this is not conduct of a prudent person. He submitted that the respondent was given a down palT nent of Shs. 5,000,000 by Geoffrey Mwase who denied having stolen the vehicle. He submitted that the appellant acted arrogantly and with high handed action which should not be rewarded with costs. The respondent fi1ed the suit prematurely, he did not wait for conclusion of the police investigation. He prayed that the courts sets aside the award of costs.

# b) Respondent's submisslons

23. Tlne respondent did not file submissions.

## cl Analysls and determination

(

23. Section 27 (21 of the civil Procedure Act states that "costs of any action, cause or other matter or issue shall fo1low the event unless the court or judge shall for good reason otherwise order. In Jennifer Behange, Rutangindo Aurelia, Paulo Bagenzi u school outfitters (u) Ltd, cACA No. 53 of 1999, the court held that <sup>a</sup> successful party is awarded costs unless there are good reasons to deny such party costs. The appellant filed a civil suit in the chief Magistrate's court where he was successful. However, his success was overturned by the High court on appeal. The respondent being successful on appeal, I do not see any reasons why he should be denied the costs of the appeal and the lower court. If the appellant had not filed the matter in the chief Magistrate's court, the respondent would not have met the legal costs of defending it and for prosecuting the appeal. His conduct before and during the sale of the suit vehicle are important in determining an award. of damages but not in respect of costs. I find no good reasons to justify denial of costs to the respondent in the lower courts.

24. Taking the above into consideration, this appeal is dismissed. I note that the respondent did not file submissions as directed by the court. Therefore, I will not award him costs of this appeal. Each party will bear its costs for this appeal. The appellant is awarded the costs of the lower costs.

Dated at Kampala I ) 'Ifi day or J r-{ <sup>2025</sup>

DR. ASA MUGENYI JUSTICE OF APPEAL

# THE R"EPUB LIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

(Coram: Dr. Asa Mugengi, Musa Ssekaona, & Stella Alibateese, JJA)

## CIVIL APPEAL 37 OF 2013

Arising from High Court Kampala HCCS 19 of 2O1Ol

TOM WALUSIMBI ======= = APPELLANT

## VERSUS

ANDREWKISAWUZI RESPONDENT

## JUDGMENT OF STELLA ALIBATEESE, JA

I have had the benefit of reading the draft judgement of Justice Dr. Asa Mugenyi and I agree with the reasoning and judgment. I have nothing useful to add.

| Dated and delivered at Kampala this | \$,<br>I I | day of | }^rl-,1 | 2025 | |-------------------------------------|------------|--------|---------|------|

Ste la Alibateese JUSTICE OF APPEAL

#### <sup>5</sup> THE REPUBLIC OF UGANDA

#### IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

#### CIVIL APPEAL NO: 37 OF 2013

TOM WALUSIMBI ::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT

#### VERSUS

ANDREW KISAWIZI RESPONDENT

#### JUDGEMENT OF JUSTICE MUSA SSEKAANA JA

I have heard the benefit of reading the leading Judgment of His Lordship Hon Justice Dr. Asa Mugenyi and I concur with the same.

YY, Dated at Kampala this....... l).......... day of <sup>2025</sup> 15 MUSA SSEKAANA JUSTICE OF APPEAL

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