[2025] UGCA 238

# THE REPUBLIC OF UGANDA

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

[CORAM: LUSWATA, BYARUHANGA-RUGYEMA, ALIBATEESE, JJA]

#### CIVIL APPEAL NO. 681 OF 2023

(Arising from Family Division Civil Suit No. 175 of 2020]

# JINGO SAMUEL BAGENZEKUKOLA:::::::::::::::::::::::::::::::::::: **VERSUS**

#### 1. NORAH NAKUBULWA

2. JOHN KALUNGI KALULE::::::::::::::::::::::::::::::::::: [An appeal from the judgment and orders of the High Court of Uganda at Makindye Family Division before Mulangira. J, in Civil *Suit No. 175 of 2020 dated the 30^th June, 2022]*

#### JUDGMENT OF BYARUHANGA JESSE RUGYEMA, J. A.

#### **Background:**

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- The Appellant/Plaintiff sued the Respondents in the High Court $[1]$ Family Division seeking inter alia, a declaration that he is the lawful owner of a plot of land and a house located at Kawempe along Tula Road, that the suit property does not form part of the estate of the late John Kalule Kibirige Bugeza Musulo, general damages and costs of the suit. - The facts giving rise to the Appellant's cause of action were that the $[2]$ Appellant obtained the suit land by way of a gift *intervivos* from a one Mayi Nabanoba on 18/6/1978. According to the Appellant, he was bequeathed the land when he was young, aged nine months in

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the presence of many witnesses including his late father, John Kibirige Bugeza Musulo and his later mother, Solomy Nakiganda' That upon execution of the gifl intervivos, the Appellant and his parents entered the suit land and the parents built there a house and stayed on the land.

- t31 That however, due to personal reasons, the Appellant's father left the gift land (suit land) and together with the Appellant went to Kireka "A", Kamuli B, Namugongo Division, where they stayed with Edith Namubiru, his father's other wife, the mother of the 2"d Respondent. The Appellant's mother was left on the suit land' In 1989, the Appellant's father separated with the Appellant's mother who later left the suit land and shifted to Kawempe "B", her parents' home. In 1996, when the Appellant's father again had disagreements with Edith Namubiru, he chased her away from her matrimonial home in Kireka "A" and settled her on the suit land. - l4l Upon the death of Edith Namubiru in 2014, she was buried in Kazo (Kawempe Division, Kampala) and the suit land remained under the occupation of the 1'' Respondent on the basis that it belonged to the 2'd Respondent, Edith Namubiru's son. - t5l On 14/7/2018, a WILL purported to have been written by the Appellant's father, John Kibirige Bugeza surfaced declaring the deceased's various properties which included the suit property that was allegedly donated to the Appellant as a gift intervivos by Mayi

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Nabanoba. When the Appellant's step mother, a one Sarah Margaret Lukuyisa applied for Letters of Administration for the estate of the Appellant's father, the 2"d Respondent and others lodged a caveat against her petition for Letters of Administration and contested the validity of the WILL vide Makindye Family Division C. S. No. 269 of 2019.

- t61 The Appellant contended that the suit property does not belong to the estate of the late John Kibirige Bugeza Musulo, but that it belonged to the Appellant and the same ought to have not been included as part of the estate of his late father. - l7l In their joint defence, the Respondents denied the Appellant's claims and contended that the gift agreement of the suit land relied on by the Appellant was questionable for it refers to the purported donor as "Samson" while the Appellant is "Samuel" and that the signature of the late Kibirige Kalule Bugeza Musulo as the donor was a forgery. - t81 Lastly, the Respondents contended that since the suit property was included in the purported WILL, the Appellant's action should not have been entertained because the administration of the estate and validity of the WILL were subject of the ongoing court proceedings vide C. S. No. 269 of 2019.

- t91 The record of the trial court however shows that C. S' No. 269 of 2019 was settled by a Consent judgment. The Consent is referred to as P. Exh.9 in the proceedings but it was never made part of the Appellant's record of appeal. As a result, this Court did not have the opportunity of Perusing it. - [10] In his decision, the learned trial Judge, found inter alia, that the alleged gift deed did not refer to the Appellant/Plaintiff. He in addition found that the WILL being relied on by the Appellant provided among other things that the suit property was gifted to the 2"d Respondenl/Z"d Defendant and the 1" and 2'd Respondents had been in occupation of it for a long time. He concluded that the suit land belonged to Kalule John Kibirige Bugeza Musulo, the deceased father of the parties and other living children. The suit was accordingly dismissed with costs to the Respondents/Defendants. - [11] The Appellant was dissarisfied and aggrieved by the decision of the trial judge and lodged the present appeal on the following grounds of appeal: - 1. That the learned trial judge erred in law and fact when he failed to properly and judiciously evaluate all the evidence adduced on record and reached at an erroneous decision resulting in a miscarriage of justice' - 2. That the learned trial judge erred in law and fact when he found that the ptaintiff had not proved that he was the lawful owner of the suit land on the balance of probabilities'

3. That the learned trial judge erred in law and fact when he did not consider the expert evidence adduced by the plaintiff .

## Duty of the 1"'Appellate Court:

[12]This court is required under Rule 30 of the Judicature (Court of Appeal Rules) Directions S.1 No.13-10 of this court to re-appraise the evidence of the trial court and come to its own decision. In Sanyu Lwanga Musoke vs Sam Galiwango, S. C. C. A. No. 48 of 1995, Karokora. JSC, held that:

> "...it is settled law that a first Appellate Court is under the duty to subject the entire evidence on the record to an extensive scrutiny and to re-evaluate and make its own conclusion while bearing in mind the fact that the court never observed the witness under cross'examinatton so as to test their veracity..."

This Court is therefore in the premises duty bound to re-appraise the evidence and come to its own conclusion as required by law.

## Counsel legal representation:

[13] On appeal, the Appellant was represented by Mr. Joseph Buwembo of M/s Buwembo & Co. Advocates, Kampala while the Respondents were represented by Ms. Aine Mbabazi Twijukye of M/s Kabulire, Mbabaali & Co. Advocates, Kampala. Both Counsel filed their respective conferencing notes and submissions for consideration in the determination of this appeal.

Resolution of the grounds of appeal:

- Ground 1: That the learned trial Judge erred in law and fact when he failed to properly and judiciously evaluate all the evidence adduced on record and reached at an erroneous decision resulting in a miscarriage of justice. - [14] Counsel for the Respondent submitted that this ground of appeal is incompetent for it offends Rule 86 (f ) of the Court of Appeal Rules. - [15]I agree. Rule 86 of the Judicature (Court of Appeat) S.f . f 3-1O provides that:

"A memorandum of appeal shall set forth concisely and under distinct heads, without argument or narrative, the grounds of objection to the decision appeal against specifying the points which are alleged to have been wrongly decided" [Emphasis].

In Arim Clive vs Stanbic Bank (U) Ltd C. A. C. A. No. 101 of 2013 Kenneth Kakuru, JA. (Rip) held:

> "A ground that merely alleges that the trial iudge failed to properly evaluate evidence, without stating what evidence or how the alleged misapprehension occurred renders the appeal incurably defective. It opens the door to a fishing expedition, to the prejudice of the Respondent".

Similarly, in Sietico vs Noble Builders (U) Ltd S. C. C. A. No. 3 of 1995, Odoki JSC (As he then was) emphasised that:

"Every ground of appeal must challenge a particular holding or decision of the trial court and not be framed as a general discontent with the judgment". [Emphasis].

- [16] This ground does not articulate how the trial court misdirected itself and does not identify which evidence was improperly evaluated or ignored. It is too general and vague, failing to clearly identify the specific errors or issues of law or fact being challenged in the trial court's decision. The ground surely lacks any identifiable holding, ratio decidendi, or specific factual or legal error being contested thus it fails to meet the threshold required for an appellate review. - [17] Properly framed grounds of appeal should specifically point out errors observed in the course of the trial, including the decision, i.e., specify the points which are alleged to have been wrongly decided which the Appellant believes occasioned a miscarriage of justice. Consequences of offending Rule 86(1) of the Court of Appeal are that such ground of appeal is Iiable to be struck out for being offensive. - [18] In the present case, to the contrary, the trial court offered clear reasoning, examined both parties, testimonies, analysed the alleged gift deed, and addressed expert evidence. Without stating what was allegedly overlooked or misconstrued, the Appellant's general objection in this ground of appeal amounts to no ground of appeal' This renders Ground 1 incompetent and liable to be struck out, Katumba Byaruhanga vs E. K. Musoke C. A. C. A. No. 02 of ¹⁹⁹⁸

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t19991 KALR 621. See also A. G. Vs Baliraine C. A. C. A. No.79 of 2003 where such an offensive ground of appeal was struck out. As a result, this ground of appeal is accordingly struck out.

- Ground 2: The learned trial judge erred in law and fact when he found that the plaintiff had not proved that he was the lawful owner of the suit land on the balance of probabilities. - [19] Counsel for the Appellant submitted that the Appellant acquired the suit land from Mayi Nabanoba in 1978 when he was 9 months and came to learn of it when his other step mother, Sarah Lukuyisa in 2019 gave it to him in the presence of Kensaze Betty Samali (PW4). Counsel pointed out that the Appellant was a minor at the time he received the gift, and that therefore, it was logical that his parents, specifically his father developed and used the land. The Appellant had no knowledge of the gift deed up to 2019, thus there was no way for him to claim ownership of the land without proof or knowledge of the gift deed before 2019, thus, the present suit. - [20] Counsel for the Respondents on the other hand submitted that the suit land belonged to the late John Kalule Kibirige, the parties' father, who at all material times dealt with the property as his own and included it in his last WILL thereby showing that it formed part of his estate. Counsel contended that the suit property therefore formed part of the estate of the late John Kalule Kibirige and that

the purported gift deed bequeathing the property to the Appellant was a forgery.

## Consideration

- [21] It is trite as rightly put by the learned trial judge that under Ss. lOl & lO2 of the Evidence Act, it is an established rule of law that the burden of proof lies on helshe that alleges. In civil matters, the standard of proof is on the balance of probabilities, Nsubuga vs Kavuma t19781 HCB 307 and Sebuliba vs Cooperative Bank If 982] HCB f 29. It is also settled law that a party can only be called to dispute or rebut what has been proved by the plaintiffs and his or witnesses, Lugazi Progressive School & Anor vs Serunjogi & Ors [200r-2005] HCB Vol.2 121. - 122)ln his bid to prove his case that he is the lawful owner of the suit land, the Appellant/Plaintiff majorly relied and adduced evidence on the following: - (a) A gift deed dated 18/6/I978 (P. Exh.l).

That he acquired the suit land located at Kawempe along Tula Road measuring 15 decimals by way of a gift intervivos from Mayi Nabanoba. That this was during the life time of the donor who gifted the land to the Appellant in the presence of many witnesses who included his late father, John Kalule Kibirige Bugezi and his late mother, Solomy Nakiganda. Lastly that the deed was written by his father on behalf of Mayi Nabanoba, the donor.

## (b) Stay on the land from 1978 up to 1981.

That the Appellant was at the time aged 9 months when he was gifted the land, and together with his parents entered the land upon which the parents built a house and resided there until 1981. Thereafter, he left the suit land with his father and moved to Kireka "A" where he stayed with his father's other wife, Edith Namubiru, the mother of the 2"d Respondent. They left his mother on the suit land. His mother was also later to leave the suit land in around 1989 upon separation from his father.

- [23] The learned trial Judge found that the Appellant/Plaintiff failed to prove his case that he is the lawful owner of the suit land on the following reasons: - (a) The Appellant/Plaintiff did not adduce sufficient and credible evidence that he is the donee of the suit property. The gift deed referred to the donee as "Samson Gingo Kalule" yet the Appellant is identified as "Samuel fiingo Bagenzekukola". - (b) Both Emmanuel Lutaaya (PW3) in cross examination and Kensaze Betty (PW4) in her witness statement clearly stated in their evidence that the suit land did not belong to the Appellant/Plaintiff alone but that it belonged to all the children of the late Kalule John Kibirige.

(c) The WILL being relied on by the Appellant/Plaintiff provided among other things that the suit property was gifted to the 2'd Respondent/Defendant and the 1" and 2"d Respondents/Defendants have been in occupation of the land for quite a long time.

The above findings of the trial Judge are found by this court to have been supported by the evidence before the trial Judge under the aspects below:

(a) The Gift deed dated 18'h June 1978:

- [24] The Gift deed relied upon by the Appellant admitted in evidence as P. Exh. 1 named the donee of the gift property (suit land) as "samusoni Gingo Kalule". The Appellant's names as he conceded during cross examination are "fiingo Samuel Bagenzekukola" as also reflected in his birth certificate, National Identity Card and the Statutory declaration (P. Exh.8). Further, the evidence of ASP. Kayonzi Henry (PW1) of the Directorate of Forensic Service, is to the effect that the Appellant's 2 sim cards were registered in the names of "Bagenzekukola Jjingo" and his installed WhatsApp application in his phone no.256772492280 is also registered as "J. S. Bagenzekukola". - [25] On the face of it, the two names appear different and therefore, the first presumption is that they refer to 2 different people.

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- [26] Counsel for the Appellant admitted the name variance but submitted, that the variance is minor and not an identity dispute. That the name "samson Ggingo Kalule" and "Jjingo Samuel Bagenzekukola" refer to the same individual as per the statutory declaration sworn by the Appellant (P. Exh.8) and that Kansaze Betty (PW4), the Appellant's half-sister, testified that they occasionally call the Appellant "ffingo Samson". Counsel for the Appellant concluded therefore, that the trial Judge erred in Iaw and fact in finding that the gift deed did not refer to the Appellant despite the existence of a statutory declaration to verify the names and that no other person was presented to rebut the Appellant's identity. He relied on the authority of Mandera Amos Vs Bwowe Ivan, EPA No. 91 of 2O16. - [27] This court is not persuaded by the above argument. In Mandera Amos vs Bwowe, the main dispute revolved around the ownership of the 'O' Level Certificate presented by the Appellant in support of his candidature as MP for Buyamba Constituency, Rakai District. The certificate bore the names of "Nandera Amos" while the Appellant's names were "Mandera Amos". In finding that there could have been another person called "Nandera Amos" who sat and obtained the 'O' Ievel Certificate in question, the learned trial Judge blamed the appellant for failing to prove that no such person existed. The Court of Appeal held that:

"...the use of a statutory declaration was sufficient to prove and explain the misspelling of the appellant's

name...the trial judge should have found that the certificate belonged to no other person than the appellant".

This court justified its findings thus:

"... We find that the Appellant has satisfied court that the certificate he presented at his nomination belonged to him and the only challenge was the mis-spelt name, which discrepancy has been resolved by the relevant body IUNEB]".

- [28] I find this case of Mandera Amos vs Bwowe distinguishable from the instant case. It was a case of a mis-spelt name unlike the present case. Besides, in that case, the Appellant's name was further clarified by UNEB and in this case, there is no evidence of other clarification save the evidence of the Appellant's half-sister, PW4, who besides having an interest in the suit land for the benefit of the Appellant, merely stated alP.l47 of the record of the proceedings that: "We used to know him as Jiingo Samson" without explaining how the Appellant acquired such a name and why they referred to him using such a name. - [29] Secondly, whereas in Mandera case the Appellant took a statutory declaration to clarify the spelling of his name before contemplation of the petition, i.e. at the stage of nomination of members of parliament, in the instant case, the Appellant's declaration (P. Exh.8) was registered with URSB on L8/IO/2O21 yet he filed the suit on

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19/8/2O2O. The declaration in question was in this case made after the filing of the suit.

[30] Besides, in the instant case, the Appellant declared in his statutory declaration (P. Exh.8) under Par.4 thus:

> "That I have appeared on some documents as SAMUSONI GINGO KALULE and others as GINGO SAMUEL. Copies of such documents are attached hereto and marked "C"",

A perusal of the Appellant's supplementary record of appeal which included his statutory declaration, show no evidence of "any such documents" that bear the Appellant's name as "SAMUSON GINGO KALULE". He merely purported to attach such documents to the statutory declaration as marked "C" but they were not actually attached.

- [31] In conclusion, the inference drawn out of the Appellant's declaration (P. Exh.8) is that it was a mere afterthought which was intended to defeat the interests of the Respondents in the suit land the Appellant had filed against them. The inconsistencies in the Appellant's own testimony and discrepancies in his identification regarding his name undermined his credibility and the integrity of his evidence. The ownership of the name "Samusoni Gingo Kalule" as the donee of the suit land was neither explained nor proved. - [32] Counsel for the Respondents referred this court to the authority of Goobi Rodney vs Christine Nabunya, H. C. C. A. No. 4 of 2007 for

the proposition that a donor unknown to the donee's family cannot make a valid gift. That it is logically unfathomable that a stranger can gift you land.

In Goobi Rodney vs Christine Nabunya, Court held thus:

"It would certainly be preposterous for the Defendant with biological children to give her nephew property from which she derived a living and continue paying City rates. It is also questionable how an aunt could bequeath to her nephew two houses and yet she had her own biological children".

- [33] With respect, the above assertion is not supported by any law. The main element of a valid gift intervivos is that the donor must intend ownership to pass as a gift, Halsbury's laws of England, 4'h Edition Reissue Vol. 2O paras 1 & 2, and the gift is perfected and becomes operative upon its acceptance by the donee, Ovoya Poli vs Wakunga H. C. C. A. No. 13 of 2OI4. It is therefore not a requirement for ^a valid gift intervivos that there has to be a relation or blood proximity between the donor and donee. - [3a] In the instant case, it is the evidence of the Appellant that the suit land was gifted to him by a one Mayi Nabanoba in 1978 when he was 9 months and it was accepted on his behalf by his parents who witnessed the donation by their endorsements. Upon acceptance, they took possession of the land on his behalf.

- [35] From the above, I find that Goobi Rodney vs Christine Nabunya case was either decided per incuriam or in the circumstances particular to that case and not for the general proposition that ^a donor unknown to the donee's family cannot make a valid gift. A stranger can gift property to any person. This court therefore agrees that a valid gift intervivos may be made regardless of whether the donor and donee are personally acquainted. The relationship between the parties is not a legal criterion for validity of a gift intervivos for a donor has freedom to devolve his/her property as he/she wishes. This is why we have charities or foreign needy persons who benefit from gifts without having any blood relationship with the donor. - [36] In this case however, the Appellant claimed that the gift deed was brought to his attention by his stepmother, long after the death of his father. It is the Appellant's father who settled the 2"d Respondent's mother, Edith Namubiru on the suit land. I find it inconceivable that the Appellant's father who the Appellant claims is the one who wrote and witnessed the gift deed in favour of the Appellant, would fail and or refuse to disclose the deed to the Appellant when he became of age. It is also surprising that the Appellant's father, instead proceeded to settle the 2"d Respondent's mother on the land without regard to the Appellant's interest thereon.

[37] Lastly on this aspect, during cross-examination, the Appellant stated that his father was an Accountant. It is therefore, also inconceivable that the Appellant's father who was an educated Accountant by profession would fail to write the known right names of the Appellant on the Gift deed he wrote for the donor in favour of his son. One would think that the Appellant's father would have a feeling and realise that the Appellant's known names on his documents i.e. the Birth Certificate and Identity Card, would easily be interpreted as different from those on the gift deed, and therefore, refer to two different persons.

## (b) Evidence of Emmanuel Lutaaya (PW3) and Kansaze Betty (PW4): Ownership of the land.

- [38] To justify his findings that the suit property belonged to the estate of the late Kalule John Kibirige (the father of the parties), the trial Judge, inter alia, relied on the evidence of both PW3 and PW4 as corroborating the evidence of the Respondents which is to the effect that the suit property belonged to their father and it therefore formed part of his estate. - t3glThis Court finds that the above findings of the trial judge are supported by the evidence on record. Emmanuel Lutaaya (PW3), the brother of the Iate Kalule John Kibirige testified in his witness statement that in around 2019 when the Appellant/Plaintiff approached him with an agreement (Gift deed) in which one Mayi

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Nabanoba, heir to Erina Nabanoba donated to him her land, he told the Appellant that the Appellant's father or mother had mentioned that fact of the gift deed to him on more than one occasion and that therefore, he knew that fact. However, while in court he added thus:

> "The late Kalule John and my sister the late Solome Nakiganda were renting. They moved from the mizigo where they were renting, they moved to that place and started building a house in dispute in Kawempe".

During cross examination, he turned around from what he had earlier stated in his statement that the Appellant's father and mother had mentioned the fact of the gift deed to him and stated thus:

> "What my brother in law told me was that the suit land was not for Jjingo [Appellant] alone but also for his other slsters. What I know is that my brother in law is the one who gave that Iand to his children... My sister told me that the suit land house is for her children and that Jjingo fAppellant] is only the head..l don't know a one Mayi Nabanoba".

[40] Then, Kansaze Betty Samali (PW4), the Appellant's half-sister during cross examination at pgs. 147 & 148 of the record of proceedings stated thus:

> "The Defendants [Respondents] are currently staying in the suit land. They have stayed there for a long time and by the time John Kalule died they were on the same land. The Plaintiff's [Appellant] mother who happens to be my mother had long separated from Jjingo's [Appellant] father". fiingo's father bought that land for his children.

- [41] Clearly, the above evidence which from the Appellant's own witnesses supports the trial judge's findings that the suit property belonged to the estate of the late Kalule John Kibirige, the father of both parties. This court finds no reasons to fault the trial judge and or to interfere with his findings. - (c) The WILL dated 2l/7/1996: - l42llit is apparent from the record of the proceedings before the trial judge that the WILL was tendered, and without obiection, admitted as P. Exh.3 during the preliminary stage of the trial/conferencing of the suit. This meant that the parties were in agreement that the copy of the WILL tendered in evidence was a true copy of the original though the Respondents were contesting the signature of the purported author thereon as a forgery. Nevertheless, nowhere in his entire evidence did the Appellant rely on the contents of the WILL as entitling him ownership of the suit land. Its contents bequeathed the suit land to the 2"d Respondenl, aI P.22 of the Record of Appeal, the WILL provided thus:

"I have left my house at Kawempe with my wife Edith Namubiru with all her life. When she leaves the world, the same will be for my son John Kalungi".

The Appellant introduced in evidence the WILL for purposes of forensic examination comparison as proof that the hand writing thereon which he purports to be that of his father who he said is the one who wrote the Gift deed on behalf of the donor, is the same as that on the WILL. In short, he was asserting that the WILL is genuine and a valid testamentary duly endorsed by his father.

t43l The WILL having however been introduced in evidence by the Appellant as evidence, I find that the trial Judge would be entitled to rely on it and its contents while evaluating the evidence on record before him. The trial Judge found thus:

> "On total evaluation of the Plaintiff's witnesses' evidence and the defence witnesses' evidence...the suit land belongs to Kalule John Kibirige Bugeza Musulo, the deceased father of the Plaintiff, the defendants and other living children. The WILL being relied on by the Plaintiff [Appellant] provides among other things therein that the suit property was gifted to the 2d Defendant lRespondent]".

[44] In view of the above, this court would not fault the learned trial judge on this finding. The finding is supported by the evidence on record. The trial judge however, though there was a provision in the WILL bequeathing the suit land to the 2'd Respondent, he nevertheless erred by decreeing the land to the 2"d Respondent. This is because in the defence vide Makindye Family Division C. S. No. 269 of 2019 [P. Exh. 5], the 2"d Respondent and others contested the

WILL, that the purported signature thereon and handwriting of the deceased were forged. The 2'd Respondent could not therefore benefit from the WILL he was contesting as being forged. Indeed, nowhere in their pleadings in this case and in their evidence, did the Respondents and their witnesses, Kalule John Bugeza (DWl), Solome Nakitto (DW3) and Nsubuga Willy (DW4) state that the suit Iand was bequeathed to the 2'd Respondent. Their evidence was that as children of the late John Kalule Bugeza Kibirige Musulo, they were beneficiaries of his estate with an interest in the suit land. That therefore, the suit land formed part of the estate of their deceased father.

- [45] Besides, this court finds it inconceivable that the Appellant's step mother, Sarah Lukuyisa who disclosed and gave the Appellant the Gift deed had petitioned for Letters of Administration (vide H. C. A'C. No. 130 of 2Ol9 with a WILL (P. Exh.3) attached and had included the suit property as part of the estate of the deceased, yet she at the time knew of the purported WILL bequeathing the suit land to the 2'd Respondent and was in possession of the Deed gifting the land to the Appellant. I find that the Appellant must have been in connivance with his step mother, Sarah Lukuyisa to defraud and or defeat the Respondents' beneficial interest in the suit land. - [46] It is the Appellant who relied on and asserted that the WILL is valid for his other purpose of proving that his father, the testator, is the one who wrote the Gift deed, despite the same WILL bequeathing the

suit property to the 2"d Respondent. The net effect of the Appellant's case therefore, is the contradiction that the suit land was gifted to the Appellant and at the same time, the same land was bequeathed to the 2'd Respondent. The Appellant embraced the WILL as authentic and valid. Such contradiction would in the circumstances of this case, ordinarily adversely affect the Appellant's case unless the Appellant was contending that his father wrongly bequeathed the suit property to the 2"d Respondent which was neither his case, nor that of the 2nd Respondent at the trial. Either way, since it has been found by this court that there is no evidence that the Appellant is the named donee in the gift deed (P. Exh.t) which itself was never proved, the outcome of this ground of appeal remains the same, it is devoid of merit'

- l47lln the premises, this court finds that the trial judge properly evaluated the evidence on record and/or subjected it to a thorough exhaustive scrutiny and rightly found that the Appellant/Plaintiff had not proved that he was the lawful owner of the suit on the balance of probabilities. Ground 2 of the appeal is as a result found devoid of any merit and it accordingly fails. - Ground 3: That the learned trial judge erred in law and fact when he did not consider the expert evidence adduced by the Plaintiff.

- [48] Counsel for the Appellant submitted that the expert witnesses; Asp. Kayonzi Henry (PWl) and SP Sebufu Eriya (PW5) proved that the author of the gift deed was the late John Kalule Kibirige which was endorsed by Mayi Nabanoba, the donor as per the forensic report (P. Exh.7). That therefore, there was no basis for the trial judge's finding that the signature of the donor on the gift deed was superimposed on the document. - [49] I have perused the gift deed (P. Exh.l). There is in the first instance no evidence that the signature of the donor was superimposed on the document. It if were so, both the expert witnesses PWI and PW5 would have found so. However, I find that the expert witnesses' report which is to the effect that the writer of the Gift deed (P. Exh.1) was John Kalule Kibirige, the father of the Appellant, was based on the forensic examination of a CHEQUE purportedly drawn by the late John Kalule Kibirige and his WILL dated 2L/7/1996 (P. Exh.3). - [50] Starting with the cheque, it is not properly dated. Its year of execution is not known. It was admitted on court record in its photocopy form while attached to the Forensic Report [P. Exh.7]. Its original was neither submitted to the expert witnesses as was admitted by PWS during cross examination nor an explanation given for the whereabouts of the "original" while tendering in evidence the photocopy. By its incomplete date, one cannot be able to tell whether it was drawn during the life of the deceased, John Kalule Kibirige to rule out a possibility of another person, not being John

Kalule Kibirige being the person drawing it and being the same person writing the gift deed that came to the knowledge of the Appellant in 2019, long after the death of the deceased, who died in 2015. The imperative of dates on a document is to authenticate the same, Amizu vs Nzeribe [1989] 4 NWLR [pt.f 18) at 755.

- [51]In this case, the Appellant did not lay a foundation as to how the cheque came to exist apart from the evidence of PWI, that it was forwarded to the Appellant's phone through WhatsApp by a one "David Bro" or call him "David Namisango"' The said "David" did not testify in court as to how he came to possess the said cheque and when it was drawn (since its date is incomplete without a year). without the evidence of David [Namisango], its actual source remains a mYSterY. - [52] The Appellant had an option of adducing and presenting to the forensic examiners for comparison of the signature on the gift deed with any other undisputed documents bearing the known signature of the deceased. This is because deceased was an accountant and therefore, must have had his signatures on various official and or private documents. The Appellant did not and/or failed to take that option. - t53lAs regards the WILL, as already observed in this judgment, it was introduced in evidence without contest by the Appellant during the preliminary stage at the trial as a photocopy and without any

objection. It was admitted as P. Exh.3 but the Appellant wanted it on record as it had been used for purposes of the forensic examination comparison with the Gift deed writings and signature to determine whether the writer was the same person.

- [54] It is the law that documents are proved by primary evidence. In this case there was a need to have the original CHEQUE and the WILL admitted in evidence as primary documents under 5.63 of the Evidence Act for purposes of its proof and evaluation by Court. In the premises that the CHEQUE and the WILL were introduced in evidence as secondary evidence under 5.62 of the Evidence Act, it had to be in accordance with 5.64 of the Evidence Act which provides thus: - "(l) Secondary evidence may be given of the existence, condition or contents of a document in the following cases- - (a) When the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of court, or .... - (b) When the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his or her representative in interest. - (c) When the original has been destroyed or lost or is in the possession or power of any person not legally bound to produce it, and who refuses to or does not produce it..."

[55] In the instant case, no foundation was laid out to court to bring the WILL and the CHEQUE in the ambit of 5.64 of the Act. As a result, although the photocopy of the cheque came on record by virtue of the admission of the Forensic Report that was admitted without any objection, the photocopy of the WILL was also admitted without objection. The trial judge considered both the WILL and the CHEQUE during the evaluation of evidence and concluded at P.200 of the record of appeal thus:

> "I am of the considered view that the two handwriting and forensic experts failed to corroborate the evidence of the Plaintiff that the gift was written by the late Kalule Kibirige Bugeza Musulo.

> .. Ihe Stanbic Bank cheque does not have a full date and it was evidence of PWl, the forensic expert that he extracted the same the way it was without a date...the cheque indeed had no year of execution. This made it impossible for the court to appreciate their expert evidence. Lack of original documents being availed to court and the expert made verification hqrd to achieve on the balance of probabilities".

[56] Under 5.66 of the Evidence Act, if a document is alleged to be signed or to have been written by any person, the signature or the handwriting of so much of the document as is alleged to be in his or her handwriting must be proved to be in his or her handwriting. S.72(1) of the Act, provides for the comparison of the signature with the one which is to be proved. The comparison of signature must first be established by the expert or a person acquainted with the handwriting of the author or court itself as an expert of experts, see Premchandra & Anor vs Maximov Oleg S. C. C. A. No. 9 of 2OO3 (usc).

[57] While expert opinions can be valuable, they are not binding on the court. The court ultimately determines the credibility and weight of expert testimony, and then puts its own judgment based on all evidence presented, Kimani vs R. [2002]2 E. A 417 (CAK). It was held in Iwa Richard Okeny vs Obul George H. C. M. A. No' 63/2Ot2 [20r9] UGHCCD 1sO.

> "A court will not act on the opinion of the expert unless the facts upon which the opinion is based are proved in evidence" '

t58l In the instant case, this court finds that the trial judge rightly rejected the expert opinions of PWI and PWS as proof that the Gift deed was written by the Appellant's father because the expert Report (P. Exh.7) was based on a CHEQUE and a WILL that had not been proved as authentic and both documents were contested by the Respondents. In the premises that the signature of the testator remained contested and unresolved, the WILL stood unproved. The Iearned trial Judge rightly discountenanced the 2 documents despite having been admitted in evidence without any objection. [59] Lastly, Counsel for the Appellants sought this court to invoke S.90 of the Evidence Act for the application of the 3o-year old document rule also known as the "Ancient" document rule which allows a document to be admitted in evidence without the need for a witness to prove its execution. S.90 of the Act provides thus:

> "Any document purporting or proved to be thirty years old, is produced from any custody which the court in particular case considers proper, the court may presume that the signature and every other part of the document, which purports to be in the handwriting of any particular person, is in that person's handwriting."

- [60] Counsel concluded that the Gift deed which is 47 years, should have been presumed to be genuine as it was from proper custody and properly executed. That the trial judge therefore erred in law and fact in disregarding the presumption under S.9O of the Evidence Act and thereby occasioned a miscarriage of justice. - [61]Though the 3O-year old document rule is a short cut to establishing the authenticity of old documents, it is not a substitute for careful consideration of all evidence and potential challenges to the document's legitimacy, see Sandha Singh (Deceased) vs Amrik Singh & Ors, AIR 2006 P & H9: 120061 142 PLR 20 where it was held that;

"The rule in Section 9O of the Evidence Act [Equivalent of 5.90 UEAI is not absolute one and even in cases where the document

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is produced from proper custody, the court has a discretion to draw the presumption or require the proof of execution...the court must have regard to the surrounding circumstances and apply its mind as to whether the presumption should be drawn or not".

- [62] In the instant case, the Gift deed is dated 1978 and therefore it is over 30 years, thus qualifying the Appellant to benefit from the presumption of its genuineness under S.9O UEA. To benefit from this provision, the Appellant must meet the criteria or condition imposed by the Act. The document must have been in the custody of a proper custodian i.e. custody of a natural person or institution named in the document, or another proper custodian. - [63] The learned trial judge observed at P.208 of the Record of Appeal thus:

"The plaintiff...state [that] the impugned gift agreement was given to him in 2019 by his step mother, Sarah Margaret Lukuyisa. The plaintiff never called his said step mother as his witness as a person who for a long time has (sic) custody of the same gift agreement. She was a key witness for the plaintiff in this suit. Hence the evidence on the chain of the custody of the gift agreement and where she got it from and from whom she received that golden documentary evidence... It is not proved by the plaintiff on the balance of probabilities that he received the said gift agreement from his

29 | P a g e

said step mother. The chain of documentary evidence was broken by the plaintiff".

- [64] I agree with the above observation of the learned trial judge. The trial judge would not consider or presume the document (gift deed) genuine without proof of its origin and or custody. The Appellant did not offer any explanation why his step mother failed to testify in court and explain how she came to have custody of the Gift deed yet during his life time, the Appellant's father, who wrote it and witnessed it, never revealed it to the Appellant when he became of age. A presumption of the authenticity of a document can be rebutted where there is doubt as to the integrity of the source. In this case, the Appellant had an option of adducing evidence of any other person, who witnessed the gift deed, if still alive, for example, Victoria Nakiyingi, or Mutongole Ignatius Bulega, to prove the Gift deed but he failed to do so. - [65] As a result, I find that the learned trial judge did not consider the expert evidence on grounded principles of law and therefore there was no error in law and fact that occasioned the Appellant any miscarriage of justice. Ground 3 of the Appeal is found devoid of merit and it also accordingly fails. - [66] This appeal is in the premises dismissed, but with an order setting aside the learned trial judge's order decreeing the suit land to the 2"d Respondent/Defendant and substituting it with an order that the

30 lPage

suit land belongs to the Iate John Kalule Kibirige Bugeza Musulo's estate. since the parties are all the children of the late John Kalule Kibirige Bugeza Musolo disputing over estate property, each party shall meet his/her costs of the appeal.

-/+ Dated at Kampala this day of ..... Q. Y.'. 1....., zozs.

> Byaruhanga Jesse Rugyema JUSTICE OF APPEAL

> > 31 | P a g e

#### THE REPUBLIC OF UGANDA

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

[CORAM: LUSWATA, BYARUHANGA-RUGYEMA, ALIBATEESE, JJA]

### CIVIL APPEAL NO. 681 OF 2023

(Arising from Family Division Civil Suit No. 175 of 2020)

JJINGO SAMUEL BAGENZEKUKOLA::::::::::::::::::::::::::::::::::::

#### **VERSUS**

#### 1. NORAH NAKUBULWA

2. JOHN KALUNGI KALULE::::::::::::::::::::::::::::::::::: [An appeal from the judgment and orders of the High Court of Uganda at Makindye Family Division before Mulangira. J, in Civil Suit No.17 of 2020 dated the 30^th June, 2022]

#### JUDGMENT OF STELLA ALIBATEESE, JA

I have had the benefit of reading the draft judgement of my learned brother Justice Byaruhanga Jesse Rugyema and concur with his reasoning and orders proposed. I have nothing useful to add.

Dated and delivered at Kampala this $10^{th}$ day of $JV$ 2025

Dhibaters

Stella Alibateese JUSTICE OF APPEAL

### THE REPUBLIC OF UGANDA

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

[CO RAM : LU SWATA, BYARUHANGA-RUGYEMA, ALIBATEE SE, JJA]

## CIVIL APPEAL NO. 6AI OF 2023

(Arising from Family Division Civil Suit No. 175 of 2O2Ol

# JJINGO SAMUEL BAGENZEKUKOLA: : : : : : : : : : : : : : : : : : : : : : : : : :APPELLANTS VERSUS

## I. NORAH NAKUBULWA

2 JOHN KALUNGI KALULE...... RESPONDENTS

lAn appeal from the judgment and orders of the High Court of Uganda at Makindge Family Diuision before Mulangira. J, in Ciuil Suif No. 175 of 2020 dotedthe 3othJune,2O22l

# JUDGMENT OF HON. LADY JUSTICE EVA K. LUSWATA JA

I have had the benefit of reading in dra-ft the Judgment of my learned brother Hon. Justice Byaruhanga Jesse Rugrema. I agree with it and I have nothing more useful to add.

Since Hon. Lady Justice Stella Alibateese also agrees with the judgement of Justice Byaruhanga Jesse Rugrema, we agree that the appeal is dismissed.

Each party shall meet the costs of the appeal.

t( )/- Dated at Kampala this day of .... 2025. Jv"l

> LUSII/ATA JUSTICE OF. APPEAL