[1993] UGHC 37

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

The Hom. Mr. Justice Effords - Ntende

## CIVIL SUIT NO. 655 OF 1981

HAJI BUMBAKALI KABUYE .......................... PLAINTIFF.

$V E R S U S$

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MRS WANDERA

2. VICENT SERWAMBALE $\ddagger$ $\ddagger$ $\ddagger$ DEFENDANTS. $\mathcal{F}_{\text{max}}$

SERO KADDU

BEFORE:- The Honourable Mr. Justice J. W. N. Tsekooko

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## J U D G M E N T

The plaintiff instituted this suit against three defendants. Before the hearing of the suit the 2nd defendant Vicent Serwambale died, and with leave of this court the case was withdrawn against him. Thus the suit proceeded against the first defendant Mrs. Wandera and the 3rd defendant Sero Kaddu sometimes called Serunjogi Kaddu. Actually the plaintiff called him Serunkuma when testifying.

According to the pleadings, the plaintiff allegedly purchased the disputed land on 19th April, 1971 from Martin Bombwe. It is situate at Busega Village, Natete in Kampala. He purchased a kibanja and according to him he subsequently erected a house thereon. Photocopy of sale agreement was attached to the plaint. It shows him having paid Shs. 1,500/= in cash. According to that plaint the plaintiff married Grace Mary Nagayi (though the validaty of the married is controversial according to evidence). However according to the plaintiff he erected a house on the kibanja and lived there with Nagayi until 16th June, 1981 when she died. The plaintiff was then expelled by the defendants from the home on that day. In the process he allegedly left property behind for which he is claiming now.

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For their part defendants alleged that the kibanja was purchased by the deceased Nagayi on 19th April, 1971 from the same vendor Martin Mombwe and paid cash Shs. 1,500/= after which she erected the house where she lived with the children till she died. In the alternative, the defendant pleaded that they . raised the money to erect the house and the plaintiff held ownership of the house in "constructive/result trust" for the benefit of the heirs sons and daughters of Nayiga. The defendants pleaded they intended to apply for letters of administration to the Nayiga's disputed house, but they didn't nor was it made an issue,

Four issues were framed for determination. These are:-

- Who is entitled to the disputed land and developments thereon. - 2. Whether the defendants evicted the plaintiff. - Whether the defendant unlawfully retained plaintiff's $3.$ holders property. These of the R

the setting of

4. Any remedies.

The plaintiff testified as PW1. He called Eriya K. Kasule as PW2 and M. Kiyingi as PW3.

. The defence witnesses were Martin Mambwe (DW1) the vendor of the disputed kibanja, Regina Wandera Nanfuka the first defendant (DW2). Michael Wandera testified as DW3 and the next witness to testify is the third defendant on the plaint but when testif. ying gave his proper name as Charles Serunjogi explaining that he is some times called Sero Kaddu - Sero being short of Serunjogi. He is DW4.

## ISSUE NO. 1

This issue in reality is pregnant with two issues. Ewnership or purchaser of the kibanja and ownership of the developments thereon. Counsel for the parties took similar view in their

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submissions and I shall consider the issue in that way.

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The plaintiff testified that he purchased land from Matiya Mombwe in 1981 (presumably '1971)• That his witnesses S. Wamala and plaintiff's wife (MaryNdgayi-?) who are both dead. He claimed he did not know whereabouts of the vendor (Mombwe). Yet PW2, Muluka Chief says in 197& Mombwe instroduced plaintiff as owner,of kibanja. He built house on land and completed it in 1980. He explained how the original Luganda sale agreement got photocopy lost but produced Exh. P.1 (ryr/ of sale agreement). He lived in the house (perhaps before completion) for 9 years before he was chased away. He had previously lived in a rented house with •Nagayx py/3 claims to have' transported timber either in 1971 or 1972 to Busega in a kibanja where there are some matooke claimed as his by the plaintiff. Plaintiff did 'not testify on this-Plaintiff claimed he did not have knowledge of whereabouts of Mombwe who is,prima facietthe key witness in the matter. It sounds strahge that although Nagayi introduced plaintiff to her family, and both know each other for over ¹⁰ years, the plaintiff claims he did not knew the clan of Nagayi-

For the defence the vendor of 'the plot Mr. Martin Mombwe testified first. I shall reproduce ^a portion of his evidence here for appreciation of the case:-

'■The plaintiff was introduced to me by Samwiri Wamala about **i •** ¹⁹⁷¹ because I was. selling land. The plaintiff informed me that he had a woman working in City Council who desired to purchase a plot. .

They (plaintiff and woman) viewe.d the land. I sold the land for Shs. 1,^00/=. It was paid by the woman in instalments. First deposit was Shs. 1,000/=. 2nd instalment was Shs. 500/=\* The woman paid the money. . ^A sale a'greemer.t was made. By consent of the plaintiff and the woman the sale agreement was first made

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in name of Kabuye (plaintiff). I retained a copy. After sometime the plaintiff returned with the same woman (his wife). ^They requested for the agreement to be made in name of the woman. This was after the parchase price had been paid. It was changed in the presence of Samwiri and my wife«" Although this agreement bears the same date (19/Vl-97.1) as the one made in the name of the ¹ plaintiff the two (really differ about the purchasers). He further testified "¹ did not want to have different dates"

"The agreement I made in Kabuye's (plaintiff) name was distroyed. I left Natete in'197^- I did not take any person , to Muluka Chief to introduce him as purchaser of ray kihanja44- The Wamala. mentioned in both agreement is the same.

Both Mr. Buwule learned counsel for the defendants and Mr. Tibaijuka made lengthy submissions on the first issue and each made references to the two sale agreements.

In his submissions counsel, for defendants emphasized the view expressed by the.vendor' that when plaintiff initially was looking for the kibanja .the plaintiff stated a woman in the City Council wanted to purchase it. He-urged me to accept that in fact this referred to Nayiga^ He submitted that the vendor (DW1) has explained why the other or 2nd agreement (Exh. D.'l)- was executed, i.e, to show the true purchaser. Oi^^point his arguments are supported by DWs ¹ and DW2. I shall refer to the secondary issue of jus terti and developments leter.on in this judgment.

Learned counsel for the plaintiff raised several issues one of which is jus terti to which I shall refer later. I shall also there refer to pleadings.

On the point of who purchaser the plot he maintained' that it was plaintiff as Exh. P.1 mentioned him as' the purchaser. He doubts whether Exh. D.1 (second agreement? was ever made at all-

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Otherwise, in his view, the fact of destruction of the original agreement should have been alluded too in the Written Statement of Defence. He therefore submit that Exh. D.1 is fake. Actually both in the original and in the amended statement of defence of 1986 the second sale agreement was pleaded and it alleged that it was Nagayi who purchased the plot. The matter of this second agreement was a subject of cross examination of the plaintiff. So I think the plaintiff was or ought to have been aware that. the original sale agreement was being challenged. The vendor explained that the original agreement between him and the plaintiff was destroyed and that he (the wendor) did not know that the plaintiff had in fact obtained photo copy of the original agreement. In other words the vendor believes that Exh. D.1 should have been the only agreement paper.

As mentioned, the two agreement are generally similar the essential difference being the name of the purchaser.

As mentioned by the plaintiff in the original agreement Nagayi though not specially mentioned as Nagayi seems to be a witness. In the second agreement Nagayi is referred to as the actual purchaser. Mr. Tibaijuka submitted that she merely signed at the back of the agreement (Exh. D.1). In my view unless such manner of signing is supported by evidence of fraud, the signature of the purchaser can be appended in any part of sale agreement. There is no suggestion of fraud here. Moreover original Luganda Ex. D.1 shows that the (Front) first page of the agreement was filled up after signature of the vendor. So to me it appears natural that the purchaser should have signed wherever there was space. Mark you, that signature according to the paper (Exh. D.?), i.e, Nayiga's signature appears last on that paper, immediately after the signature of the vendor albeit at the back of the same sheet. There is no shred of evidence suggesting it was added $... / 6$

or could have been added afterwards in the absence of the other persons named therein. Actually even in Exh. P.1, plaintiff had signed last as purchaser. I only note that S. Warnala's ^signature appears slightly different when Exh. P. ¹ and Exh. D.1 are •qmpared. But that was not raised in cross examination of witnesses especially DW1 (the vendor) nor during submissions. Again during cross examination the plaintiff introduced a further element of an additional Shs. 200/= allegedly paid, thus making a total of Shs. 1,700/= which doesn't appear in Exh. P.1.

Here I am obliged to reproduce the contents (English translations) of both Exh. P.¹ and Exh. D.1. Of course each document was translated by a different translater.

English translation of P.1 is Exh. P.2 and states:-

## "SALE AGREEMENT

19.4.71

I, MARTIN MQMBV7E have sold to Mr. ABUMBAKALI KABUYE part of my kibanja (Plot) No.' 18/507 situated at Natete. I have sold to him that part between the kitchen and the orange tree which remains on his side and the boundary between Lumonde plantations (Sweet potatoes) to Karitunsi trees then up to the end of Kabakaanjagala tree at the boundary of my neighbour. I have cold to him at the price of Shs. 1,500/= (Shillings one thousand and five hundred) only p. ayable. in cash which he has paid in full before the eye witness Mr. Samuel. Wamala.

We have made this agreement when we are both of sound mind and understanding without any of us being forced by any one to do it.

If any part to this agreement breaches the same, he will be responsible for any loss suffered: by any of them.

Dated 19th day of April', 1971

Signed before:- 1., Samuel Wamala (witness for the purchaser A. Kabuye)

2. Mrs. M. Kabuye (witness for the VENDOR M. MOMBWE) .

SIGNED '"by- me as Vendor:-

MARTIN MOMBWE

SIGNED by me as the PURCHASER. ^s

A. KABUYE"

The English translation of Exh. D.1 is Exh. "DlB^and states:

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"SALE AGREEMENT

19.4.71

C-. . • . •

I MARTIN MOMBWE, have' sold to MISS MARY GRACE NAGAYI part .of my kibanja (Plot) No. 18/567 situated at Natete.

I have sold to her that part, just behind the kitchen up to the orage tree which remains on his side, and also past potatoes plantation up to kalitunsi, and by the (Kabaka-injagala) post at the boundary of SANTO. I have sold the same to her for Shs. .1,500/= cash in the presence of Mr. SAMUEL WAMALA.., We have made this agreement when, all of us are sound mind and no one among us have been forced. Whoever breaches this agreement will have to shoulder any loss suffered by the other party. .

Those present are

1. S. WAMALA for the purchaser.

2. Muky, Mombwe for the vendo^r

Signed Regina Nasaka •< .-••• .... . . .. ... ..

", ,M. Mombwe "

The substance of the two translations was not doubted and no adverse comment was made on each translation by either party or their advocates. Translations are thus undisputed.

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^A glance at Exh. P.1 (photocopy) and'Exh. D.1 (original) suggests that the signature of the vendor on both documents appear to be the same. The vendorexplained why he made Exh\* D.1. The evidence of DW2 and DWJ substantially support the explanation offered by DW1. Mr. Tibaijuka forcefully submitted that Exh. D.1, if made, was without consideration. But again the evidence shows that Exh.- D.1 was a substitution for Exh. 1.1 whose, original DV/1 says he destroyed in process of executing Exh. D.1. I believe the explanation of DW1 on this point. In that respect Mr. Tibaijuka's submissions thereon are not valid. By parity of reasoning the submissions of Mr. Tibaijuka about contradicting or varying the agreement by any other evidence does not hold We are dealing with the same plot of land sold. The man who sold it is alive. He has testified on oath explaining the transactions and reasons or apparent existance of two agreements,- Nothing excludes his evidence on this matter since a dispute has arisen. More so when the plaintiff claimed that he left the original of Exh, P.1 at Natete. DV/1 is certain that he destroyed that alleged original(of Exh. P.1.) In my'view it is quite in order to receive evidence of DV/1 to explain absence of original of Exh. P.1. Equally it is in order for him to explain existence of Exh. D.1 and therefore who was true purchaser. See the ease of Visram.& Karsan Vs. Bhatt /19&57-EA. 789 whose principle (pages 79^ £0 795) supports admission of explanations of DW1. I am of the view that the case of Mohamed Rcshan Vs. Santa Singh '/19597 EA. 717 equally applies in principle. I think neither S. 90 nor 91 of Our Evidence Act would exclude DW1!s evidence to show what took place.

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not I have/found any reason gi ren in evidence why the vendor could .have falsely said he destroyed agreement between himself

and the 'laintiff. Nor is there any given reason in evidence to show that he has supported" Nayiga as the true purchaser for ill motive or false reasons\* DW1 was impressive when testifying.

There is the name. Regina Nasaka on Exh. D.1. Its existence was not probed but DW1 says his wife witnessed second agreement (Exh.- D.1).

I have anxiously perused and examined both agreements and considered the two documents in the light of all the evidence given by all witnesses for both sides. I have considered with due care the submissions by both learned counsel on the point of who is the true purchaser of the kibanja. I am satisfied and I find it as ^a fact that it was Mary Grace Nayiga (deceased) who purchased the disputed kibanja from DV/1 and not the plaintiff. Nayiga provided consideration and not the plaintiff. .1 don't believe the plaintiff on the point tha,t he purchased the land.

The fact that Nayiga. purchased the disputed plot does not of course conclusively answer the remaining part of the first issue. That question is who is entitled to the disputed land and the developments thereon.

As I have found as ^a fact that it is Nayiga who purchased the land, the point of who is entitled to ■the . land depends partly on who is her Seccessor in law. There were submissions about ownership of development on the land'also. Mr. Tibaijuka raised the doctrine of jus Terti and submitted that the defendants cannot rely i . ':'^V '>• ' *qxi* Nagayi'^s title to challenge the plaintiff. In principle that is. .a. correct statement of the law. See pages 1008-1009' of The Law of Real Property by Megarry & Wade (4th- Ed.) and pages l4ft to 1^3 of Salmond on Torts (l^th Edition). The first defendant is unaffected really as she has no claim over the property\* It is the third defendant who is affected. He e-.nd other Nagayi's children appear to have lived in the Houpe according to custom.

**1**

As the present nobody appears to have a title deed to the land. Not even the plaintiff nor may be the late Nayiga. In his defence the third defendant pleaded that he lived on the land and in the house because of being son of Nayiga. If 3rd defendant has failed to take out letters of Administration and plaintiff wanted to persue his rights in the house he could have forced the defendants to obtain letters of Administration. See S. 222 of Succession Act. This is unnecessary now.

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However the evidence which was adduced by both sides leave no doubt in my mind that in all probability Nayiga developed the plot as her own. If the plaintiff made contributions at all, such contribution was negligible.

On the evidence and pleadings even the principles of jus terti would not assist the plaintiff. This is so as I have found as fact that Nayiga purchased the land and that she developed it by building there a house. The plaintif. had more than one homestead. He had his other wives. The third defendant, his brothers and sisters have habitually lived in disputed house before and after the death of their mother.

From the evidence on record the ages of all of them (18 for girls and 21 for boys) confers no automatic right to any of them to take over the disputed hhouse by virtue of the Rules set out in the second schedule to the Succession Act as amended by Decree No. 22 of 1972 unless all or any of them get Letters of Administration to the estate of Nayiga. But as there is no satisfactory evidence that there was valid marriage between Nagayi and the plaintiff and as it appears that the latter (plaintiff) did not live in the house immediately before 'Nagayi's death, plaintiff has no legal or automatic right to live in the house and because of my findings made earlier on in this judgment, plaintiff has no claim to the land and the developments thereon. In my view the

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true position is that the land and the developments thereon belong. to the late Nayiga. That is the answer to the' 'first issue. The third defendant is living in the house because he has been habitually living there. .

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On the 2nd issue,.there is evidence that 3rd defendant lived in the house before dispute arose. That plaintiff wasn\*t-living there for about months before Nagayi died. Plaintiff removed his heads of cattle in circumstances showing he was not the owner of the disputed land. I find, on consideration of the evidence and the submissions made on 2nd issue, that the plaintiff was not evicted from the residence by any of the defendants.

## ISSUE 3

In my view the evidence given by the plaintiff as to the property he left behind is unsatisfactory. It is true, as his counsel submitted that, the plaintiff left.some old properties behind. On consideration of.evidence I accept DW^'s evidence that these were plaintiff'^s old clothes and ^a few other items used for domestic purposes. In my view the pjraintiff exeggerated what was **left** behind. In answer in cross examination, plaintiff testified that it was Nayiga's children who chased him out of the house. So why was the firsts defendant sued? She never retained his property in j '.j ' my view.

I believe that the plaintiff never demanded for whatever of his properties which might have been in Nagayi's house. I believe he was free to collect any of them if he.wanted to. There is no credible evidence of demand and refusal.

Again I find tha . even if I had held that properties listed by plaintiff were ledt behind, and that he was expelled by any of the defendants from Wagayi's house, the value placed on the items

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is most unrealistic.' If by ¹⁹⁸¹ properties such as clothes or utencial were second hand, they ucuxuob have regained in such a state as to attract value placed on them. In any case the Currency Reform Statute, ¹⁹⁸⁷ was not addressed. Therefore if I had held that any of the defendant's had prevented plaintiff from collecting any of his properties, I would have awarded him nominal damages as their value since their valuation is essentially guess work on the part of the plaintiff. He never impressed me as ^a truthful witness in his testimony.

My answer to the third issue is that none of the defendants unlawfully retained any of the plaintiff'^s property.

Because of the considerations and conclusions made on first, second and third issues the answer to the last issue (No. is that there is no remedy available to the plaintiff.

In the result, I dismiss this suit. The plaintiff will pay to the defendants the taxed costs of this suit. Naturally if any costs have to be claimed on behalf of the deceased defendant, such costs, if any, will be up to the date when the case -was withdrawn against him.

c- •.< w /• JfWTlp TSEKOOKO \* U D G E

6/1/19S? .

J. '.'..^-TSEKOOKC

'24/3/1992 at 9.10 a.m. . Okot for plaintiff. Buwule for defendants. No court clerk. Court: Judgment delivered in chambers ae o^pen court in presence of the above. ' / •

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