[2024] UGCA 137

# THE REPUBLIC OF UGANDA IN THI.] COURT OF APPEAL OF UGANDA AT KAMPALA CML APPEAL No. 139 OF ²⁰¹⁴

(Arisingfrom High Court Civil Appeal No. 3l of 2008) (CORAM: MUZAMIRU M. KIBEEDI, C, GASHIRABAKE & O. J. KIHIKA, JJA)

#### BAGTJLA. IOSE,PH t

#### KATO ROBERT 10 2

NALONGO KASULE 3

: : : : : : : :: : : : : : : : : : : : : : : : : :: : : : : : : : : : APPELLANTS

## VERSUS

LUBEGA GEORGE WILLIAM : :: :::: :: : : : : : : : : : : : : : : : : : : : : : : : : : : : RESPONDENT (Appeal .from rhe decision ol thc Iligh Court of Uganda at Kampala (l.und Division) before Hon .htstice Rubby Opio Au,e ri dated 28th .lune 201 I in lligh Court Civil /ppcal No. 3l of 2008) 15

### . I U DG M EN'I' OF CHIIISTOPH ER GASII I IiA I}A KE, . IA

### 20

## rl Introduction

This is a second appeal flrom the decision of the High Court of Uganda at Kampala (Land Division) delivered by Hon. Justice Rubby Opio Aweri (RIP) on 28th June 201I in which the learned judge (as then was) dismissed the appeal filed by the Appellants herein and upheld the order of the trial Magistrate Grade One, Nakasongola in Civil Suit No. 31 of 2007 dividing the suit land. The Appellants being aggrieved by the judgement and orders ofthe l't appellate Court preferred ^a second appeal to this court seeking to have the judgment of the High Court set aside and the orders of the Magistrate Grade One be submitted with a declaration that the appellants are the rightful owners of the suit land and a permanent

injunction restraining the Respondent from interfering with the Appellant's quiet enjoyment and possession ofthe suit land.

### 2) Backgrou n d

The facts giving rise to this appeal are notable from the pleadings of the parties on record, the judgments of the trial court and the l't appellant court. The Appellants herein filed Civil Suit No. 3l of 2007 against the Respondent in the Chief Magistrate's Court of Nakasongola claiming ownership of a piece of land at Migyera measuring 80 leet x 360 feet. According to the case presented before the trial magistrate, the Appellants claimed to have inherited the suit land from their late father, Didas Kasule who acquired it under a lease offer granted by Uganda Land Commission lor 0.2 hectares of land at Migera Buruli under minute ULC. Min. 8/3/84(a) (47 l) of February 1984 which was communicated in the offer letter dated 2l'r February 1984.

15 3l According to the Appellants they sought to develop the suit land in 2002but were blocked by the Respondent who claimed the suit land belonged to him which prompted the Appellants to file a complaint before the Nakasongola District Land Tribunal in 2004. Following the phasing out the District Land Tribunals, the claim was transferred to the Chief Magistrate's Court of Nakasongola.

4l The Respondent in his claim and defence before the trial court contended that he acquired the suit landin 1972 and donated half of the land to wit; 40 feet x ³⁶⁰feet to the late Didas Kasule, his friend then and the father of the l" and 2nd Appettants as well as the husband of the 3'd Appellant. The Respondent also contended that he built on the disputed land and lived on it until the building collapsed but he continued to use the land as family property. The Respondent

further contended that following the death of Didas Kasule he entered into an agreement dated 15'h January l99l with Mukasa John a son of the Late Didas Kasule in which they agreed to share equally with each party taking a portion measuring 40 feet x 360 feet. However, during the trial Mukasa John who testified on l51h July 2008 as DW5 told the trial Magistrate that he had been forced to sign the agreement on behalf of his other siblings and that the agreement was signed after he had been threatened, it was never his intention to sign as the land belonged to Didas Kasule (whom he referued to as Mzee)

- 5l In his judgment dated 4'h November 2008 the trial Magistrate, His Worship Lubowa Daniel decided the matter in favour of the Respondent and ordered that the land should be divided along the line of what had been decided in the agreement the Respondent executed with Mukasa John. The Appellants being dissatisfied with the decision ol the trial Magistrate filed an appeal in the High Court of Uganda at Kampala (Land Division) which was heard and decided on 28th June 2011. In his judgment, Rubby Opio Aweri (RIP), J., (as he then was) dismissed the appeal and upheld the order of the trial Magistrate dividing the land and ordered each pafi to bear its own costs. 10 15 - 6l The Appellants being dissatisfied with the decision of thc l-ligh Court on appeal preferred a second appeal to this Court on the following grounds: - 20 - l. The Learned judge failed in his bounden duty os lhetirsl appellate court to prope y or al all, evaluote the evidence on record, porlicularly relating lo ownership of the suit tand thereb! wrongly upholding lhe lriol mogistrate's decision on division of lhe suil land between the Respondent and a one Mukosa John

-)

2. The Learned judge having found that the agreement daled I5'h Jonuary l99l was null ond voitl controcted himself when he upheld the subdivision of ^esuil land under lhe same voitl ogreement,

## 7l Legal Rerrresentation

During the hearing of this appeal, the Appellants were represented by Allan Tumwesigye of Messrs. Lubega & Co. Advocates. The Court record indicates that the Respondent was represented by Wamimbi Emmanuel of Messrs. E. Wamimbi & Co. Advocates.

Court directed the lawyers of the parties to this appeal to file written submissions and address us on the issues in this appeal and the grounds on which it is premised which they accordingly adhered to.

#### ¹⁵ 8l Prcliminary Obicction

In his written submissions, Counsel for the Respondent raised a preliminary objection. Before I consider the submissions on the grounds of this appeal, it is pertinent that I first deal with the preliminary point of law that was raised by Counsel for the Respondent. I am a live to the fact that a party can raise ^a preliminary point of law at any stage of the proceeding before court has delivered its judgment.

9l l-aw JA., in Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd Il969l I EA 696 held that, "a preliminary objection consists of a poinr oflau,v,hich has been pleuded, or which arises by clear implication out ofpleadings, and which if argued as a preliminary point muy dispose of the suit.... " 25

l0] In Major General D. Tinyefuza v Attorney General Constitutional Appeal No. I of 1997 Justice Joseph Mulenga (RIP), JSC held that the usefulness of decisively disposing of a suit on a legal point, where appropriate, without going through a lengthy trial, cannot be gain said where such a point is raised , it is of course desirable that the court makes a decision on it before embarking on the trial even ifthe case is to continue.

^Il] The preliminary objection raised by Counsel is to the effect that on a second appeal, such as this one, court is only required to decide matters of law and not to re-evaluate the evidence. He cited Kifamunte Henry v Uganda SCCA No. 10 of 1997 where the Supreme Court held that; 10

> "Once il has been established lhat lhere wQS some compelenl evidence to supporl a finding of.fact, it is nol open, on second appeal to g,o into the sfficiency of that evidence or lhe reasonableness of lhe finding. Even if a L'ourl o/ .firsl inslance has wrongly rlirected itselfon a point arul lhe court of./irst appellate Court has wrongly held that the lrial Courl correclly directed itself, yet, if lhe Court of.first appeal has correclly direcled itself on the point, lhe second appellale Court cannot lake a differenl view R. Mohamed All llasham vs. R (1911) 8 E. A. C. A. 93."

- 12) Counsel submitted that this matter was originally filed in Nakasongola District Land Tribunal as Claim No. 1 5 of 2004, it was later transferred to Nakasongola Chief Magistrates'Court vide Civil Suit No. 15 of 2004 when govemment phased out Land Tribunals. The matter was heard on its merits and Judgement was delivered by His Worship Lubowa Daniel, Magistrate Grade One 20 - on 4'h November 2008 in favour of the Defendant/ the Respondent (herein). 25

l3l Iie submitted that the Appellants filed a first appeal in High Court of Uganda at Kampala Vide Civil Appeal No 3l of 2008, the Appeal was determined on its merits and judgement was delivered on 28'h June 20ll by Justice Rubby Opio Aweri dismissing the Appeal. He argued that the appeal before this Court is a second Appeal and that it is trite law that on a second appeal, such as this one, court is only required to decide on matters of law. The Second Appellate Court is

14] Counsel argued that on a 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 suppott the finding of fact, this being a question of law. He cited R v Hassan bin Said ll942l ⁹ E. A. C. A, 62 to support this argument. 10

not required to re-evaluate the evidence but may do so if it is necessary.

a

l5l Counsel contended that whenever a question arises as to whether a judgment can be supported on facts as found by the trial court and the first appellate court, such a question may be resolved by the second appellant court purely as a question of law. He submitted that, looking at the grounds of appeal formulated by the Appellants, they don't raise any point of law, they are rather mixed law and fact, which is wrong. FIe then asked this Court to uphold his objection and consequently dismiss this Appeal with costs to the Respondent.

l6] In reply to the preliminary objection Counsel for the Appellants submitted that this kind of objection should have been brought by way of application under 25

Rule 82 of the Court of appeal Rules or at the time of conferencing. He cited Rule 102 (b) of the Judicature (Court of Appeal Rules) Directions S. I 13-10 which provides that;

"/t the hearing ofthe Appeal, the Respondent shall not, n'ithout the leave of Courl, raise any objeclion as lo the compelence of the Appeal v'hich might have been raised by applicalion under rule 82 o.[these rules."

17) Counsel argued that the conferencing in this case was completed on 23'd April 2015 and the Respondent never raised this objection and that no application was filed by the Respondent as required by Rule 82 of the Court of Appeal Rules. He contended that no leave was sought to argue or raise this kind of objection contrary to Rule 102 (b) of the Court of Appeal Rules and asked this Court to overrule the preliminary objection.

l8] In further reply to the substance of the preliminary objection, Counsel submitted that the grounds as raised bring out points of law such as the validity of relying on an agreement dated l5th January 1991 having been found to be null and void. He contended that this is a point of law which cannot be argued without evaluating the evidence on record or this Court appraising the inferences of fact drawn by the trial court. He cited Rule 32 (2) of the Court of Appeal Rules in support of his submissions. 15 20

l9l Counsel relied on Kifamunte Henry v Uganda (Supra) and Rulc 66 (2) of the Court of Appeal Rules to argue that on a second appeal, the memorandum of appeal shall set forth concisely and under distinct heads numbered consecutively without argument or narrative, the grounds of objection to the dccision appealed ,q,

against, specirying, in the case of a first appeal the points of law or fact or mixed law and fact and, in the case ofa second appeal, the points of law or mixed law and fact, which are alleged to have been wrongly decided.

- 5 20] FIe contended that in this case, the memorandum ol appeal which was filed on l5tr'August 2014 raises grounds of mixed law and fact as required by Rule 66 (2) of Court of Appeal Rules. He argued that the point of law raised in the mcmorandum olappeal is whether the agreement having been found to be null and void can be relied upon to accord interest in land to the Respondent? He concluded with a view that this appeal is not barred by law and referred this Court to the 10 - decision in Lubanga Jamada v Dr. Ddumba Edward C. A. C. A No. l0 Of 2011.

21) As noted by both Counsel, this is a second appeal, the role of the Court of Appeal as a second appellate Court is set out under Rules 32 (2) of the Judicature

(Court of Appeal Rulcs) Directions S. I l3-10 which stipulates that; "On any second appeal from a decision of lhe High Court aclittg in the e.rercise of ils 15

appellate jurisdiclion, llre courl sltoll have power lo appraise the inlerences of facl drown by the triol court but shall not hove discrelion lo hear addilional evidence."

221 'l'he Court of Appeal is accordingly required to appraise the inferences of fact drawn by the trial court. Section 72 of the Civil Procedure Act, provides that 20

- (t) Except where olherwise expressly provided in this Act or hy any olher law for the lime being in force, an appeol shall lie lo the Court of Appeal Jrom every decree passed in appeal hy the lligh Court, on anj'of thelollowing grounds, namely lhat - a) lhe decision is conlrary lo loh) or lo some usage having lhe force of law;

)(

- b) lhe decision has failed to determine some malerial issue of law or usage ltaving lhe force of law; - c) o subslanlial error or delect in lhe procedure provided by this Act or by any other law for lhe time heing in force, has occurred which may possibly have produced error or defect in the decision. of the case upon lhe merits.

# (2) An appeal may lie under lhis seclion from an oppellole decree possed ex pdrte.

23) The effect of the above provision is to prohibit second appeals from being filed on matters of fact or matters of mixed fact and law. The duty of a second appellate court is entangled with the duty of a first appellate court although the two can be distinguished. The Supreme Court distinguished clearly the duties cast on each court in Kifamunte Henry v Uganda SCCA No. l0 of 1997. The Supreme Court had this to say;

"lle agree lhal on lirsl appeal,from a conviclion by a Judge lhe appellanl is enlitled to have lhe appellate Courl's own consideration and views of the evidence as a whole and its own decision lhereo . The Jirsl appellale courl has d duty lo review the evidence of lhe cose and lo reconsider the materials before the trial iudge. The appellate Coutt must lhen make up its own mind nol disregarding the iudgment appealed from but carefully weighing and considering it. ll/hen the question arises as to which wilness should be believed rather lhan anolhu and thal question lurns on manner and demeanour lhe appellale Courl musl be guided by lhe impressions made on the judge who saw lhe wilnesses. However, lhere may be other circumstances quite aporl from manner and demeonour, which may show whether a slolement is credible or not which may btarranl a court in dilfering from the Judge even on a question offacl lurning on credibility of witness which lhe appellale Courl has nol seen. See Pandya vs. R' (1957)

E. A. 336 ond Okeno vs. Republic (1972) E. A. 32 Charles B. Bitwire vs Ugonda - Supreme Courl Criminol Appeal No.23 of 1985\_at page 5.

Furlhermore, even where a lrial Courl has erred, lhe appellale Courl will inlerlere where the error has occosioned a miscarrioge ofjustice: See 5.331(i) of lhe Criminal Procedure Act.' Il does nol seem lo us thol excepl in cleuresl of coses, we ore required lo rc-evdluole lhe evidence like is o Jirsl appellate Courl sove in Constilutional cdses. On second appeal it is sul/icient to decide whether lhe Jirsl appellale Courl on approdching its task, applied, orfailed to apply such principles: See P. R. Pandya vs. R. (1957) E. A. (supra) K ru vs. Uganda (1978) FI. C. B. 123."

24) In the instant appeal, the contention of Counsel for the Respondent is that the grounds raised in th is appeal are not premised on a point of law which is contrary to the rules goveming second appeals in this honourable Court.

25) The settled position of the law is that Rule 86 of the Court of Appeal Rules regulates the contents of a memorandum ol appeal in civil appeals on a first and second appeal.'the application of Rule 86 of the Court of Appeal Rules must be in strict compliance with Sections 72 (l) and 74 of the Civil Procedure Act. The cited provisions ol the Civil Procedure Act mandatorily provide that second appeals must be based upon grounds of law and not of facts or mixed law and fact.

26) The above position has been held by both the Supreme Court and Court of Appeal to be the coffect position ol the law in several Court decisions. The Supreme Court in Mitwalo Magyengo v Medadi Mutyaba, SCCA No. ll of 1996 ,[998]UGSC 3 which was a second civil appeal involving a dispute over ^a "kibanja" held that Section 74(l) [now Section 72(1)] ofthe Civil Procedure Act precludes second appeals that are not based on grounds of points of law but are rather based on findings offact or mixed law and fact.

27) In Beatrice Kobusingye v Fiona Nyakana & Anor 2005 UGSC 3' the Supreme Court considered in detail Sections 74 ( I ) and 75 [now ⁷²(l) and 741 of the Civil Procedure Act and held that the same applied to Civil Proceedings before the Court ofAppeal and vested in court jurisdiction as regards second appeals ofa civil nature. The Court observed that second appeals to the Court of Appeal had to be on points of law and not on matters of fact or mixed law and fact.

28) Justice Remmy Kasule JA., in Lubanga Jamada v Ddumba Edward CACA No. l0 of 2011 observed that;

"An appeol on a poinl of low orises when lhe Court, whose decision is being appealed agoinsl, mode a Jinding on lhe cdse before it, bul got the relevanl law wrong or opplied it wrongly in arriving at lhat Jinding. The Courl reaches a conclusion on lhe focls, which is oulside lhe range lhal the soid Courl woultl hove orrived at, hod thal Court properly direcled ilself os lo lhe opplicahle low. The error must be os a result of misapplicotion or misapprehension t{ the low. A monifest disregard of the low is an error of law. A queslion of law is ahoul whal the correcl legal lesl is, as contrasted with a question offacl, which is concerned wilh whot aclually took place between the parties to the dispute. Wr'hen the issue is whether the facts salisjy the legal lesl, then a question of mixed law and focl arises.

ll/here on o second appeal in a Civil Cause, the grounds of appeal are not of law bul are olfindings offact or mked low and fact, and lhen such grounds are wrong in law and are eilher abondoned by lhe oppellonl or are slruck oul by Courl: See: Milwalo Magyengo v Medad Mutyaba, SCCA No. I I of 1996 and the Kenya case of MAINA VS MUGTRTA ll983l KLR 78."

29) I have reviewed the memorandum of appeal filed in this honourable Court on l5th August 2014 and the two grounds contained therein assert that the leamed judge failed to re-evaluate the evidence on record relating to ownership of the disputed land. Where the High Court ,as a first appellate court ,failed to properly re-evaluate the evidence belore it is a point ol law and as such ground one passes the test. The second ground ,that the Judge having found the agreement dated l5th January l99l null and void, he contradicted himself when he upheld the division of the disputed land under the same void agreement does not qualifo as a point of law.

³0] I agree with Counsel for the Respondent that it is the settled position of the law that on a second appeal the grounds of appeal must be premised on points of law only as I have articulated above.

31] In John Kafeero Sentongo vs. Peterson Sozi CACA No. 173 of 2012 my leamed brother Stephen Musota, JA., held lhal, "'l'here./bre. the duty of a second oppelldle courl is lo exumine u,hcthcr lhe principles v,hich tt.first appellate courl should hat,e upplied were propcrly applied and il'it did not,./br it to proceetl and apply the said principles." 15

## 32) WRTTTEN SUBMTSSTONS

- On the re-evaluation of evidence by the first appellate Court, Counsel for the Appellant submitted that this Court being a second appellant court, it does not have the duty to re-appraise the evidcncc unless the first appellate court failed in its duty to do so. lle cited the holding of Oder, JSC (RIP) in Kifamunte Henry vs Uganda, Criminal Appeal No. l0 of 1997 where the leamed justice noted that: - 20 - 25

"... lt does nol seem to u: lhot crcept in clcarest of-cases, \tte ore required lo re-evaluate the evidence like is a./irst uppellate ('ourt save in (:onslitutional case.s. On second appeal ir is sulJicient to decide v'hether the./irst appellate Courl on approaching its lctsk, opplied or failed to apply such principles: See P. R. Pandya vs. R. (1957) E. A. (supra) Kairu vs. Uganda (1978) FI. C. B. 123...."

5 33] Counsel for the Appellant argued that the I-earned Judge failed in his duty as the first appellant court when he noted at Pages l3-14 Lines 23-25 ofthe Record of Appeal that there is overwhelming evidence to prove that the land in dispute was owned by both the Respondent and the late Kasule who was the father of the l't and 2nd Appellant and husband of the 3'd Appellant.

34) He submitted that the Appellants' claim is that the suit land (80ft X 360ft) belonged to their late father Mr. Kasule Didas who had obtained a Lease offer from Uganda Land Commission by then in his own names without the Respondent. He argued that the dispute which the parties had related to the agreement dividing the suit land into half, and it was between the Respondent and one Mukasa-a brother of the Appellants who during the trial at page 68 of the Record of Appeal between lines 25-30 stated: 10 15

> "...1 wos threalened by Lubega's son (the late) and this happened severol times. I u'as forced to divide the plot and to accept lhal lhe plol belongs to both parties, and I was forced to sign on behalf of my other siblings. It v'as divided ofter being threotened but it was never my inlenlion os the lancl belonged to Mzee."

35] He submitted that with the above piece of evidence, there was no interest the Respondent could derive fiom the suit land when his basis was on a disputed and illegal agreement which the Learned Judge lound to have been obtained or made ²⁵ under duress and undue influence.

361 Counsel for the Appettant also faulted the Learned Judge for the finding that the Respondent built on part of the suit land, and he lived on the same as per page 14 between lines 3 to 5 of the Record of Appeal. He argued that there was no evidence at the trial to prove the above fact which could have accorded the Respondent interest in the suit land, and it was a serious error made by the Appellate court. He submitted that according to the evidence presented at the trial it can be seen that Respondent had never built on part of the suit land nor even settled there.

- 371 According to Counsel for the Appctlant, the only evidence which links the Respondent to have stayed on the suit land is that of DW4 which was not corroborated, and which is highly doubtable as she had to testif, to support her uncle-the Respondent. Even D. W3, Kabanda Sulaman was only called to witness the agreement between Mukasa and the Respondent and as the L. C. I Committee, they did not know the Plot's history in as far as ownership was concemed. P. W.5 & P. W.6 were only witnesses to a purported settlement which was disputed by the Appellants because they had interest in the suit land and had been staying there belore the Late Kasule passed away and are still staying on the same to date. 10 15 - 38] Counsel for the Appellant further submitted that the land in question was disputed but the dispute was not between the Late Kasule Didas before his death and the Respondent, but it was between the Children of the Late Kasule Didas and the Respondent especially regarding the agreement which had been procured under duress and undue influence, which was void. The dispute was that the Respondent was trying to take possession of the suit land using the said illegal agreement, but the said action was resisted by the Appellants as the person with whom the 20 25

Respondent shared the land, one Mukasa John was not authorized to have the Appellants' land divided. That is why the Appellants took the matter to Nakasongola Land Tribunal which was subsequently transferred to Nakasongola Chief Magistrate's Court after land tribunals were phased out.

39] Counsel for the Appellant argued that the first Appellate Court never addressed its mind on proper evaluation of evidence relating to ownership of the suit land thereby making an elror of law especially regarding the rights and interests of the parties in respect of the suit land in as far as the Appellants are customary tenants on the suit land. He referred to the evidence Kato Robert who testified at PW2 and the evidence of P. W.4 regarding the Appellant's family having been in occupation at the time in 1970's and/or I 980's and what was on the disputed land. He contended that this was corroborated by the evidence of D. W.3 at confirming that the Appellant's brother (Mukasa) was occupying the land before this dispute arose. He also argued that Mukasa, the son of late Kasule couldn't represent the whole family in as far as parcelling the disputed land was concemed. 10 15

40] Counsel for the Appellant further argued that the evidence of lease offer dated 21't September 1984 of the record ofAppeal does not indicate anywhere that the Respondent co-owned the suit land with the late Kasule Didas, so oral evidence brought by the Respondent to contract this written document is prohibited by Sections 90 &91 of the Evidence Act, which codifies the parole evidencc rule. He cited the case of Kasifa Namusisi & 2 Ors vs. Francis M. K Ntabaazi ,SCCA No. 4 of 2005 where the Supreme Court observed the import of Sections 90 and 9l 20

of the Evidence Act. Section 90 is to the effect that when the terms of a contract 25

have been reduced to the form ofa document, no evidence shall be given in proof of such terms except the document itself.

5 ⁴I ] Counsel submitted that Section 91 of the Evidence Act excludes oral evidence to contradict a written contract and prayed that this issue be answered in the affirmative.

42) Counsel submitted that at Page 12 lines ll to 2l of the Record of Appeal the Leamed Judge found that the agreement dated l5l01/1991 was made under duress and undue influence. He argued that the leamed judge arrived at this conclusion by relying on the evidence of Mukasa John a son to the late Kasule and 3'd Appellant and a brother to the l" & 2'd Appellants at Page 68 ofthe Record ofAppeal where he testified that he was threatened by the Respondent's son who was a soldier who forced him to divide the plot and accept that the land in dispute belonged to both parties. Counsel submitted that Mukasa clearly stated that he was forced to sign on behalf of his siblings, but it was never his intention to do so since the land belonged to his father and not the Respondent. 10 15

431 Counsel also referred this Court to Page 60 lines 30-32 of the Record of Appeal where Alice Namuddu Nalongo who testified as PW3 told Court that after the death ol her husband the Late Kasule, the Respondent came with his son and threatened to kill her if the Appellants do not vacate the suit land. Counsel argued that it is clear that all threats to life of the occupants on the suit land were being meted out against the occupants of the suit land by the Respondent and his sons. 20

441 He submitted that at Common law, a contract or agreement obtained through use of force, threat of force, undue persuasion is avoidable because there is no consent on the part of the victim or party threatened. He cited the case of Hassanali Issa & Co v Jeraj Produce Store [967[ t EA 555 where the defunct Court of Appeal for East Africa held that undue influence arises in contract where one of the parties is in position to dominate the will of the other and uses that position to obtain unfair advantage.

451 Counsel submitted that the Learned Judge rightly found that the agreement dated 15th Jan, l99l was devoid ofany legal effect but at Page 15 lines I to 3 of Record of Appeal upheld the order of the trial Magistrate dividing the suit land and yet the said division was based on an illegal agreement because there was no evidence to show that the land was co-owned or had been divided before the death of the late Kasule. He argued that this was a serious contradiction and error which occasioned a miscarriage of justice. He then prayed that this issue is resolved affirmatively, the appeal be allowed and the Judgment of the High Court be partly set aside and the orders of the lower court be substituted with the orders as prayed in the memorandum of Appeal with costs in this court and the lower court. 10 15

46) In reply Counsel for the Respondent opted to argue grounds I & 2 of the appeal jointly. FIe submitted that the Learned Trial Judge agreed with Leamed Trial Magistrate's finding in respect to the agreement dated l5'r'January 1991 as being voidable, but both the Trial Judge and Trial Magistrate didn't entirely base their decision on the said voidable agreement but rather relied on other pieces of evidence to rightfully come up with the correct decision. 20

471 Counsel opted to associate with the Leamed Judge reasoning that there was overwhelming evidence to prove that the land in dispute was owned by both the Respondent and the Late Kasule who was the father and husband of the Appellant. He referred to Page 5 of Judgment of the High Court, where Judge on appeal noted that the four had a dispute over ownership of the same which the local authorities resolved and parcelled between the two equally getting 40 X 360 ft way back in ^I991 . The leamed judge also stated that the Respondent built a house on part of the

48] Counsel argued that the Respondent's evidence was buttressed by that of Erinasani Mulindwa who testified as DW2 and told Court that he was one of those who sat in the dispute between the Late Kasule and the Respondent about the suit land thereby the land was divided between the two. I{e also referred to the evidence of Getrude Birungi who testified as DW4 and told Court that the Plot in question belonged to Kasule and the Respondent. That the Respondent built ^a muzigo on the same and called her to take care of it during the war. 10 15

suit land which he lived on but fled during the war of 1980's.

491 He submitted that the Respondent's evidence of having interest in the disputed land was surprisingly supported by the evidence ofone ofthe Appellants' witnesses, Abubakar Mukasa who testified as PW5 and told Court that in 1991, he was Secretary LC I Migera when a dispute arose over the disputed property between the Respondent and the people who were claiming interest from the late Kasule. PW5 also stated that Mr. Mukasa who was one of the warring parties decided to settle the matter by dividing the disputed land. However, the rest of the claimant never accepted the settlement. 20 25

501 Counsel submitted that the Learned Trial Judge properly subjected the whole evidence to exhaustive appraisal and arrived at the correct Decision and requested this Court to dismiss the appeal, uphold the judgment of the lower court and award costs in this court and the lower court to the Respondent.

5ll Counsel for the Appellant in a rejoinder submitted that upon finding the agreement dated l5th January 1991 void, the judge relied on evidence which had contradictions such as Erinasani Mulindwa who testifred as DW2 claimed that he sat in a dispute between the late Kasule and the Respondent, which was not true because the late Kasule died in the 80's according to the evidence of P. W.3, Alice Namuddu Nalongo at Page 60 lines 25 to 30 of the Record of appeal.

521 Counsel also pointed out that DW3 and DW4's story was a accepted by Court to contradict what was written in the lease offer contrary to Sections 90 and 91 of the Evidence Act. He argued that Mr. Mukasa whom the Respondent claimed sat in a meeting and agreed to divide the land had no power or authority to interfere in the late Kasule's estate without consent of others and without valid letters of administration. He contended that the dispute to the suit land started after the agreement was made in 1991 and not before. He further submitted that the Respondent did not adduce any other evidence to prove interest in the suit land apart from the impugned agreement to show that the land was shared. 15 20

53] He then requested this honourable Court to disregard the submissions by Counsel for the Respondent, allow the appeal and award costs of the appeal and in the lower court to the Appellants.

## 541 DECTSTON

The duty of the first appellate Court is well settled by the Supreme Court in Henry Kifamunte v Uganda (Supra) is to re-evaluate the evidence and reconsider the materials before the trial judge.

551 In the judgment of the first appellate Court at page 3, the learned High Court judge held that the leamed trial magistrate erred in law and fact when he misdirected himself on the effect of an agreement said to have been obtained under duress. The Leamed judge noted that at common law a contract or agreement obtained through use of force, threat of force, undue persuasion is avoidable because there is no consent on the part of the victim/party threatened. On page 4 of the judgment, the leamed judge held that;

".....1n lhe instanl case lhe trial mogislrale rightly found that lhere was duress in making the agreement devoitl of any legal effect, but he relied on lhe same conlracl lo decide thot the suit land be divided along the lines of whal had been in the agreement. Thot was a very serious conlrotliclion ancl error."

56] However, after making such a clear finding, the leamed Judge did not give his conclusion or result on ground one though finding as quoted above leads to inference that ground one of the appeal as presented in the first appellate was allowed. 20

The learned trial Judge proceeded to consider ground two to wiq' "I'he trial mdgistrdle erred in luu, and Jact when he failed to evaluale evidence regarding the rights of the parlies to lhe suil land thereby coming to a wrong conclusion."

571 On Page 4 of the judgment, the learned judge noted that there was overwhelming evidence to prove that the land in dispute was owned by both the Respondent and the late Kasule who was the father of the I't and 2nd Appellants and the 3'd Appellant. The leamed judge went on to state as follows;

"...... The four had a dispute over ownership of the same which the local authorities resolved and porcelled berween the two equally each getting 40' x 360.ft way back in 1991. t also dgree wilh the Respondent that he built o house on part o./ the suit land which he lived on but /led during the war of 1980s. The Respondent's evidence was buttressed by that of Erinasani Mulindwa Dw2 who testi/ied lhal he was one of lhose, who sal in the dispute between lhe late Kasule and lhe Respondent about the suit land whereby the land was divided between lhe two. Peler Bukenya Dw3 corroborated Mulindwa's story. The next important evidence in Jhvour of the Respondenl came from Getrude Birungi Dw(. She testified that the Plot in question belonged to Kasule and the Respondent. That the Respondent built a Muzigo on the same and called her lo lake core o/ it during the war. Thot, the Respondenl recognized Kasule's inlerest on parl of lhe suil land. lnterestingly, the Respondent's evidence also ./inds supporl from lhose of the Appellanls. For instance, Abubakar Mukasa Pu,5 testi/ied inter alia, lhat in l99l he was Secretary l,C I Migera when a dispute arose over the disputed properly between lhe Respondent and people who were claiming inlerest.from the lale Kasule.

That Mr. Mukasa who was one of the warring parties decided to settle the matter by dividing the suil land. Ilowever, the rest of the claimants never accepted lhe settlement. Wasswa Senyange Salim Pw6 testiJied that his Chairman appointed him togelher wilh a one Mukasa Abubaker Pw5 to witness an agreement between Mukasa and the Respondent, which he did. tlfter carefully analyzing lhe above evidence, it is cleor thal the land in queslion was dispuled and in one way or lhe olher, lhe local authorilies lried and wilnessed ils seltlement. Furlhermore, il is clear on lhe balance oJ probobilities, that the land in dispute was shared by the Respondent and the late Kasule Setting 40ft x J6p1 ft. T'hat is possible because lhe lale Kasule died a sudden death and could not have time

to tell his relatives of the above arrangemenl, By the above analysis this appeal is bound to fail. "

5 58] It is clear from the judgment of the learned Judge that he made an attempt to re-evaluate the evidence presented in the trial court. However I hasten to add that the learned Judge failed to subject all the evidence before him to evaluation as he duty bound to do. The learned Judge only considered the evidence of witnesses and disregarded the documentary evidence that was presented in form of a lease offer form dated 2l't September 1984.

59] According to the lease offer form, following an application dated 1't August i980 by the Late Didas Kasule, Uganda Land Commission under ULC. Min. U3l8a @) (471) of February 1984 offered the Late Didas Kasule a lease of 10 years on terms and conditions set in the lease offer letter/form.

60] A lease is defined by the Oxford Dictionary of Law, sth Edition at page 283 as a contract under which an owner of property (the Landlord or lessor) grants another person (the tenant or lessee) exclusive possession of the property for an agreed period, usually (but not necessarily) in return for rent and sometimes for a capital sum known as a premium.

61] The disputed land was acquired from Uganda Land Commission under ^a lease and this fact was not disputed in the Nakasongola District Land Tribunal or before the Magistrate Court or the first appellate Court. For a party to claim an interest in land under a leasehold tenure, which is premised on a contractual arrangement that party must adduce evidence of how they acquire that interest.

621 In the instant case no evidence was adduced in the trial court to prove how the Respondent acquired interest in the disputed land which was held under a lease from Uganda Land Commission. The First Appellant Court was duty bound to reevaluate the evidence presented to the trial court to confirm whether there was sufficient evidence to prove that the Respondent held an equitable or legal interest in the lease to warrant the issuance ofan order for division of the disputed land as claimed.

63] According to the evidence of the Respondent before the trial court, he acquired the disputed land measuring 80 x 360 feet in 1972 upon allocation by ^a one Kawesa, the Sub-County Chief of Nabiswera. In 1973 when the Late Kasule came allocation was already over so the Respondent parcelled the disputed land into two and gave 40 x 360 feet of the land to Kasule. The Respondent subsequently moved to Masindi. However, during cross examination the Respondent told court that the reason he was not on the lease offer form was because he gave a portion ofthe land to Kasule. 10 15

64) I have re-evaluated the evidence presented on this issue, and I find the Respondent's explanation as to why his name was not on the lease offer form unfathomable. If indeed Court was to rely on and believe the Respondent's claim, he should have adduced evidence proving the allocation of the land or a separate lease offer form or a lease application letter for his alleged portion (40 x 360 feet) of the land. 20

651 The Respondent's evidence and claim to the disputed land was hinged on the agreement executed on I 5th January I 991 with Mukasa, a son of the Late Didas Kasule which agreement the trial court and the 1't appellant Court found to be null and void because it was executed under duress. Upon the trial court making the said finding, the other evidence of Respondent's claim of interest or ownership of the disputed land rested on testimonies of Erinsani Mulindwa, DW2, Kabanda Sulaman, DW3 who both told court that they were called to settle a dispute concerning land between the Respondent and Mukasa.

66] According to DW2, he could not recall the year when this dispute happened but fbr DW3 hc stated that it was in 1991. DW3 also stated that that he did not know the history of the plots he only witnessed what was agreed upon. Another Witness Bukenya Peter told coun that he was part of the Local Council committee that sat to deal with the dispute between the Respondent and Mukasa, the Local Council sat twice and gave the disputing parties a month but before the month lapsed the Respondent and Mukasa made an agreement to share the land. Similar evidence was also givcn by Abubakar Mukasa, Getrude Birungi and Mukasa John. 10 15

67) With all due respect to the leamed Judge, there is no way such evidence could prove the Respondent's ownership of a lease over the disputed land. The only thing the evidence adduced could prove is that following the death of the Late Didas Kasule, a dispute arose between the Respondent and the family the Late Kasule on who owned the disputed land. 20

Section 9l of the Evidence Act Cap 6 provides that;

"When lhe terms of a contract or ol a granl, or of any olher disposilion of properly, have been reduced lo lhe form of a document, and in oll cases in which anl' mottet is required hy law to be reduced lo the form of a document, no evidence, excepl as mentioned in section 79, shall be given in pnnt of lhe terms of thdt conlract, grant or other disposition ofproperty, or of such matler except llre document itself, or secondary evidence of ils contents in cases in which secondary evidence is admissible under the prov is ions ^he re i n befo re co ntain ed. "

Scction 92 of thc Evidence Act;

"llhen the lerms of any such conlrdcl, granl or other disposilion of property, or any malter required by low to be reduced lo lhe form of o tlocumenl, hove heen proved according lo seclion 91, no evidence of any oral ogreemenl or slolemenl shall be admitled, as belween the pdrlies lo any such inslrument or their reptesenlalives in interest, for the purpose of contradicling, varying, adding lo or subtracling from ils lerms....."

- 68] Consequently, the oral evidence presented in the trial court from the witnesses of the Respondent and Abubakar Mukasa (PW5) could thus not be the basis of disregarding the documentary evidence contained in the lease offer form that the lease over the disputed land was granted to the Late Didas Kasule. 20 - 69) lt is my considered view that firstly had the l't appellate Court duly exercised its duty to re-evaluate the evidence and reconsider all the materials before the trial magistrate as required and guided by the Supreme Court in Henry Kifamunte v Uganda (Supra) it would not uphold the order of the trial magistrate

to divide the disputed land along the line of what had been decided in the agreement with Mukasa which agreement the trial Court and the l't appellate Court found to be null and void.

5 701 Secondly had the 1" appellate Court duly exercised its duty to re-evaluate the evidence and reconsider all the materials before the trial magistrate as required it would have come to a conclusion that the Respondent did not present evidence to the required standard in civil matters ofa balance of probabilities to prove that he had a legal or equitable interest in the disputed land that would entitle him to have the land divided into two equal portions of 40 x 360 feet. 10

7l) Owing to the above, it is my considered view that the first appellate Coun failed in its duty to re-evaluate the evidence as required and this Court is duty bound to re-evaluate the evidence as the l't Appellate Court would have done. Following the re-evaluation of the evidence conducted above, it is my finding that;

- a) The agreement between Mukasa and the Respondent was executed under duress as held by the trial court and the l " Appellate Court; and - b) The Respondent did not adduce evidence to the required standard of ^a balance of probabilities to prove that he had a legal or equitable interest in the lease ofthe disputed land.

721 This appeal therefore succeeds in favour of the Appellants. The judgment and orders of the High Court and Magistrate Grade One, Nakasongola are hereby set aside and substituted with the following orders; 25

- l. The disputed land measuring 80 x 360 feet situated in Migera belongs to the Estate of the Late Didas Mukasa - 2. A permanent injunction is hereby issued restraining the Respondent from interfering with the Appellants' quiet enjoyment and possession of the suit land - 3. The costs of this appeal, in the High Court and the Chief Magistrate's Court of Nakasongola are awarded to the Appellants.

Dated at Kampala this 05 day of J,arts- ²⁰²⁴ fl.

Christopher Gashirabake JUSTICE OF APPEAL

## THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA CIVIL APPEAL No. 139 OF 2014

(Arising from High Court Civil Appeal No. 31 of 2008)

(CORAM: MUZAMIRU M. KIBEEDI, C. GASHIRABAKE & O. J. $\mathsf{S}$ KIHIKA,JJA)

#### 1. BAGULA JOSEPH

**::::::::::::::::::::::::: APPELLANTS** 2. KATO ROBERT 10 3. NALONGO KASULE

#### **VERSUS**

LUBEGA GEORGE WILLIAM :::::::::::::::::::::::::::::::::::: 15 (Appeal from the decision of the High Court of Uganda at Kampala (Land Division) before Hon. Justice Rubby Opio Aweri dated 28^th *June 2011 in High Court Civil Appeal No. 31 of 2008)*

## JUDGMENT OF OSCAR JOHN KIHIKA, JA

I have had the benefit of reading in draft the judgment of my learned brother Hon. Justice Christohper Gashirabake, JA. I agree with the reasoning and the proposed orders. I have nothing useful to add.

The appeal is allowed in the terms set out in the judgment of Hon. Justice Christohper Gashirabake, JA.

Dated at Kampala this .05^th day of ................................... 30 OSCAR JOHN'KIHII JUSTICE OF APPEAL

$\mathbf{1}$

# THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

[Coram: Muzamiu M. Kbeedi, Christopher Gashirabake & Oscar John Kihika, JJA]

### CIVIL APPEAL No. 139 OF 2014

- BAGULA JOSEPH 1 - KATO ROBERT 2 - NALONGO KASULE APPELLANTS 3

### VERSUS

LUBEGA GEORGE WILLIAM RESPONDENT

# JUDGMENT OF MUZAMIRU MUTANGULA KIBEEDI JA

(Appealfrom the decision of Hon. Justice Rubby Opio Aweri dated Z\$th June, 2011 in High Court Civil Appeal No. 31 of 2008 of the High Court of Uganda at Kampala (Land Division)

I have had the advantage of reading in draft the judgment prepared by my Learned brother, Hon. Justice Christopher Gashirabake, JA. I agree with the reasoning and orders proposed.

As Hon. Justice Oscar John Kihika, JA likewise agrees, the unanimous decision of the court is that the appeal is allowed in the terms set out in the ludgment of Hon. Justice Christopher Gashirabake, JA.

It is so ordered.

.la Dated at Kampala this Ci" day of I r, r r ( \'n?c\*^ "r-Lc;\,-e- ,(. 4)-' ( 2024

Muzamiru Mutangula Kibeedi JUSTICE OF APPEAL