Ziwa & Another v Makanga (Civil Appeal 38 of 2019) [2024] UGHC 729 (11 July 2024)

Full Case Text

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MUKONO CIVIL APPEAL No. 38 OF 2019 (ARISING FROM NJERU CIVIL SUIT No. 002 OF 2016) 1. BADIRU ZIWA 2. MARIAM ZIWA ::::::::::::::::::::::::::::::::::::

### **VERSUS**

# MAKANGA ISA :::::::::::::::::::::::::::::::::: BEFORE HON. LADY JUSTICE CHRISTINE KAAHWA **JUDGMENT**

This is an Appeal against the decision of Her Worship Nyamwenge Immaculate, the then Magistrate Grade 1 at Njeru Magistrates Court. The Respondent filed Civil Suit No. 002 of 2016 seeking orders that the Respondent is the rightful owner of the suit plot, a permanent injunction restraining the Appellants from interfering with the Respondent's suit land, general damages etc.

The Respondent pleaded in the lower court that he is the rightful owner of unregistered land at Nieru which borders a marram road to the West, his step sister Nabulime Basiime to the East, Gaswaga Duncan to the North and Kazibwe Rashid to the South.

The Respondent alleged that he received this land as a gift intervivos from his biological father the 1st Appellant and that he had been occupying the suit land since 1991, the year his father gave it to him. He also pleaded that he first constructed a grass thatched house on the land and then later a semi-permanent house and now a permanent house that was on the ring beam level at the time of filing the suit.

It was also the Respondent's case that he had occupied the land from 1991 with no interference until 2014 when he tried to sell the land due to the misunderstanding he was having with the $2^{nd}$ Appellant.

The Appellants on the other hand, who are wife and husband pleaded that they have never parted with ownership of or gifted the suit land to the Respondent. It was also the case of the 1st Appellant that he intends his land to be used by all his wives and children and that any child who feels tired leaves and buys somewhere else without selling the portion they have been using.

The trial Court having heard the witnesses of both parties found that the land was indeed gifted to the Respondent for exclusive use and condemned the Appellants to costs and damages for interfering with the Respondent's occupation of the suit land. The Appellants were dissatisfied with the decision of the trial Court and by a Memorandum of Appeal lodged in this Court on 5th June, 2019 they appealed on the following grounds;

- 1. The Learned Trial Magistrate erred in law and fact when she failed to properly evaluate the evidence on Court record thereby arriving at a wrong decision. - 2. The Learned Trial Magistrate erred in law and fact when she held that the 1st Defendant gave the suit land to the Plaintiff as a gift intervivos with intentions of irrevocably surrendering control over the same.

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- 3. The Learned Trial Magistrate erred in law and fact when she held that the 1st Defendant went ahead and planted boundary marks for the Plaintiff in the year 2014. - 4. The Learned Trial Magistrate erred in law and fact when she misdirected herself that there is a boundary between Badiru Ziwa and Makanga Issa. - 5. The Learned Trial Magistrate erred in law and fact when she misinterpreted the 1st Appellant's conduct of allowing the Respondent to stay on his land to be an intention of 1st Applicant giving Respondent land as a gift intervivos thereby arriving at an erroneous decision. - 6. The Learned Trial Magistrate erred in law and fact when she awarded. The Respondent General damages of Ug. Shs. $3,000,000/$ = [Uganda Shillings Three Million].

#### **Representation:**

At the hearing of the Appeal, Mr. Kintu George holding brief for Nazami Robert appeared for the Appellants. The Respondent was not in Court and not represented. The parties were directed to file submissions and the directives were only complied with by the Appellant. I have perused the Appellants' written submissions and I don't find it necessary to reproduce them in this Judgment. However, I will take them in to consideration in this Judgment.

Additionally, in their submissions, Counsel for the Appellant proposed to summarize the grounds since, according to him, they had been duplicated in the Memorandum of Appeal. He proposed the following grounds, which the Court adopts as follows;

- 1. The Learned Trial Magistrate erred in law and fact when she failed to properly evaluate the evidence on Court record thereby arriving at a wrong decision that the 1st Appellant gave the Respondent the suit land as a gift intervivos with intention to irrevocably surrender control over the same. - 2. The Learned Trial Magistrate erred in law and fact when she awarded the Respondent general damages of Ug. Shs.3,000,000/ $=$ [Uganda Shillings Three Million].

### **Analysis and Resolution:**

This is a first Appeal and the guiding principle is that it is the duty of this Court as the first Appellate Court to re-hear the case by subjecting the evidence presented at the trial Court to a fresh and exhaustive scrutiny and re-appraisal before coming to its own conclusion (see Father Nanensio Begumisa and three Others v. Eric *Tiberaga SCCA 17of 2000; [2004] KALR 236*). If there is any conflicting evidence this Court shall bear in mind the fact that it has not seen or heard the witnesses, it will therefore weigh the conflicting evidence and draw its own conclusions (Refer to Lovinsa Nankya v. Nsibambi [1980] HCB 81).

The first Appellate Court may interfere with a finding of fact if it is shown that the trial Court overlooked any material fact in the evidence of a witness or if the balance of probabilities as to the credibility of the witness is inclined against the opinion of the trial Court. This Court is therefore not bound necessarily to follow the trial Magistrate's findings of fact if it appears either that she has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.

I will resolve the grounds as they are submitted on in the written submissions of counsel.

Ground one: That the Learned Trial Magistrate erred in law and fact when she failed to properly evaluate the evidence on court record thereby arriving at a wrong decision that the $1^{st}$ Appellant gave the Respondent the suit land as a gift inter vivos with intention to irrevocably surrender control over the same.

The Appellants argue in their submissions that there was no evidence on record of the lower Court to show that the 1st Appellant intended in any way to give the unregistered suit land as a gift to the Respondent.

Additionally, Counsel argued that in order for an unregistered land to be given as a gift, then it needed to be perfected with a gift deed as per the laws that govern land transactions. Counsel submitted that there was no gift deed presented to the lower Court to prove a gift inter vivos.

The principle in our jurisprudence is that a gift inter vivos comes in to effect when three situations are fulfilled, that is; that there is intention to give the gift, the donor has delivered the property and that the property has been accepted by the Donee. See; Norah Nasozi & Anor Vs George William Kalule High Court Family Division CA No. 005/2012.

The case of Oyet Bosco & Anor. Vs Abwola Vincent, High Court, Gulu Civil *Appeal No. 68 of 2016* was instructive on what establishes a gift inter vivos Justice Mubiru Stephen held, that a *"gift inter vivos of land may be established by evidence"* of exclusive occupation and use thereof by the done during the life time of the donor. A gift is perfected and becomes operative upon its acceptance by the donee and such exclusive occupation and use may suffice as evidence of the gift".

I have perused the record of the lower Court and the Respondent testified as follows: that he was given the land by the 1st Appellant in 1991 and that he had been staying there until the time of filing the suit. That he first built a grass thatched house in 1991, then a semi-permanent house in 1998 and that at the time of filing the suit he had started building a permanent house which is at the wall plate level. This evidence was uncontested by the Appellants.

That in 2014, the Appellant made boundaries for the children and that though his boundaries were destroyed by the brothers to the 1st Appellant. He tried to sale the land in 2015, which led to the Appellants brothers to destroy his boundaries and that he reported the trespass to Police. This evidence was contested though it was corroborated by PW3, Mukyama Kyaterekera, a resident in the village where the suit land is located who testified in Court in his Cross Examination that he saw the 1st Appellant "donating" the land to Respondent in 2014.

The 1st Appellant on the other hand in his evidence in chief testified that the Respondent was just a licensee and that he was not given land for exclusive use. That he only gave the land to Respondent to use and leave when he gets tired but not to sell it. In his cross examination, he stated that the Respondent had been using the suit land for about 25 years. All the other two witnesses of the Appellants reaffirmed

the testimony of the 1st Appellant and further testified that the Respondent was just a licensee on the land.

I have perused exhibits PExh 1, PExh 2, & PExh 3 which were from Uganda Electricity Transmission Company limited for assessment and compensation of properties that would be affected by the company's works. The exhibits date as way back as 2009 and they are addressed to the Respondent.

The evidence on record indicates that the Respondent had been staying on the suit land since 1991 and that he had been using it exclusively.

The Trial Magistrate found that the exclusive use of the land by the Respondent is indicative of the land having been given as a gift intervivos.

For gift intervivos to be considered valid and irrevocable, the donor must demonstrate the intent of the gift, deliver the gift and have a donee accept it. This concept becomes particularly relevant when the claim is based on registered land, when additional formalities are essential for the gift to be irrevocable. See Ssekamwa Sande versus Mukaaya William Civil Suit 84 of 2023.

A gift inter vivos should be exclusively enjoyed without restrictions and interference from anyone. It vests ownership of what is being gifted from the donor to the donee. The evidence on record by the Appellants and the witnesses in support of his case is that the land was given to the Respondent to use and he did use for a period of time spanning about 25 years. The testimony in that regard shows that the Appellants did not give ownership but only user rights. From the evidence on record the transaction between the two parties fell short of being a gift intervivos.

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The transaction as described falls neatly into the concept of a licensee who is defined in **Thomas v Sorrell (1673):** "A license properly passes no interest nor alters or $A$ *transfers property in a thing.*"

I therefore find that the Trial Magistrate erred in the decision that Respondent had acquired the suit land as a gift intervivos. Ground one succeeds

Ground two: The Learned Trial Magistrate erred in law and fact when she awarded the Respondent the remedies she awarded in particular she erred when she awarded the Respondent general damages of Ug. Shs. 3,000,000/ $=$ [Uganda Shillings Three Million].

Having found as I have in ground 1, this ground is answered in the affirmative as the damages can only follow where a right had been breached which was not. The Appellants in the lower court prayed for the following remedies;

- 1. A declaration that he is the rightful owner of the land - 2. A permanent injunction restraining the defendants and their agents from interfering with the land. - 3. General damages - 4. Costs.

Lemed 19

An award of general damages is always at the discretion of the trial court. In Haree Construction Co. Ltd Vs. Afrifresh Enterprises Ltd MA No. 473 of 2023 while agreeing with Mbogo Vs. Shah (1968) E. A. 93 I held;

"..................................... the discretion of a Judge unless it is satisfied that the Judge in exercising his discretion has misdirected himself in some matter and as a result has arrived at a wrong decision, or unless it is manifest from the case as a whole that the Judge has

been clearly wrong in the exercise of his discretion and that as a result there has been injustice."

In this case it is evident that the Trial Magistrate misdirected herself and reached a wrong decision. He erred manifestly in not correctly appraising the evidence and misdirected himself in law by what she decided was a gift intervivos. Therefore, this Court is enjoined to correct the error and by interfering with the discretion of the lower Court.

This Court has already found that the Appellant is the rightful owner of the suit property and thus the permanent injunction will issue to restrain the Respondent and his agents from interfering with the suit property.

The interference occasioned the Appellant's injury and he testified that general damages are compensation for losses that don't have a specific price tag but still come from an injury caused by someone else's negligence.

These include physical pain, emotional distress and therefore Court must be guided by the value of the subject matter, the economic inconvenience that the Plaintiff may have been put through and the extend of injury suffered - Uganda Commercial Bank Vs. Kigozi [2002] IEA 305.

In this case the Plaintiff was put through denial of his land, unnecessary wrangles from a licencee whom he had graciously given use of his land for 25 years and the Court battles he had to go through.

I therefore find that an award of Ug. Shs.15,000,000/= [Uganda Shillings Fifteen Million] as general damages sufficient.

It is therefore ordered;

- 1. The Appeal succeeds. - 2. The Judgment of the lower Court is set aside. - 3. General damages for the Appellant at Ug. Shs. 15,000,000/= [Uganda Shillings Fifteen Million]. - 4. Interest at Court rate on 3 above from the date of Judgement to payment in full. - 5. Cost of the Suit in this Court and the Court below.

Delivered and dated at Mukono this 11th day of July 2024

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**Christine Kaahwa JUDGE**