[2025] UGHCLD 67

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA CIVIL APPEAL NO. 123 OF 2023 (Arising from Chief Magistrate's Court of Uganda at Entebbe Civil Suit No. 048 of 2011)**

- **1. JOSEPH KASOZI LUBEGA** - **2. DDUNGU NSAMBA** - **3. SEGUYA RONALD**

**4. MUWONGE JOHN :::::::::::::::::::::::::::::::::::::::: APPELLANTS**

## **VERSUS**

**KAGGWA SONKO ::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

# **BEFORE; HON. LADY JUSTICE NALUZZE AISHA BATALA**

## **JUDGMENT**

# *Introduction;*

1. This is an appeal against the judgment and orders of Her Worship Nakitende Juliet, the Chief Magistrate, in the Chief Magistrates Court of Uganda at Entebbe delivered on the 15th day of December, 2021; Kaggwa Sonko v Joseph Kasozi Lubega, Ddungu Nsamba,

Seguya Ronald & Muwonge John. In the lower Court, the Respondent sued the appellant seeking orders interalia, a declaration that the suit Kibanja belongs to him, permanent injunction restraining the defendants their agents, servants and any other person claiming interest under them from blocking a communal access road and trespass, general damages, interest and costs of the suit.

2. The trial Court delivered judgment in favor of the Respondent holding that the Respondent was the owner of the suit Kibanja, the Appellants were declared trespassers and Court ordered them to restore the access road they had blocked to its original size to enable the Respondent have access to his land, general damages of Ug shs 4,000,000/=, interest and costs of the suit. The appellants bring the instant appeal being dissatisfied with the judgement and orders of the trial Court.

## *Background;*

3. That in 2002, the Respondent purchased a Kibanja situate at Kiwafu Central B, Entebbe Municipal Council from Mohammed Bukenya who had purchased the same from John Lubega who were both deceased at the time the suit was instituted. In 2002, the

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Respondent constructed a pit latrine thereon and started construction of a house but was later stopped by Entebbe Municipal Council due to lack of approved building plans and at the time the house was half way to roofing.

- 4. That the Appellants pulled down the pit latrine and the said house structure blocked the access road to the suit Kibanja, beat up the Respondent's children while clearing the suit Kibanja which the Respondent reported to Kitooro police and the LC1. That LC1 and LC111 Courts ruled in favour of the Respondent but the appellants disregarded the orders therefrom. The Respondent contended that he was the rightful owner and that he missed out on potential investment. - 5. The Appellants on the other hand denied the allegations of denying the Respondent access to his land and causing any loss whatsoever. They stated that they were not obliged to allow the Respondent any access to any land since their late father John Lubega never sold the alleged plot of land to a one Bukenya and thus the Respondent did not own any land. That the Appellants were not parties to the Local Council Courts proceedings thus the same were a nullity and of no consequence.

- 6. The appellants raised a counterclaim seeking orders inter alia, an eviction order, an injunction to declare the Respondent a trespasser on their father's land who was at all material times the owner and was in possession of the same, general damages and costs. That in 2008, the Respondent wrongly entered and took possession of part of the said land and built on it and was stopped by the Entebbe Municipal Council. That the Respondent refused and is still refusing to vacate despite the demands from the Appellants thus trespassing - 7. The matter proceeded inter parties and subsequently the trial Court rendered its judgement in favour of the Respondent, holding that the Respondent was the owner of the suit Kibanja, the Appellants were declared trespassers and Court ordered them to restore the access road they had blocked to its original size to enable the Respondent have access to his land, general damages of Ug shs 4,000,000/=, interest and costs of the suit. - 8. It is against that background that the appellants, aggrieved with the judgment appealed to this Court. The appeal is founded on seven (7) grounds of appeal, namely; - **i) The Learned Trial Magistrate erred in law and fact when she failed to properly evaluate the evidence**

**of the appellants against that of the Respondent before arriving at her decision.**

- **ii) The Learned Trial Magistrate erred in law and fact when she found that the appellants were trespassers on the Respondent's land in total disregard of the evidence on record thereby occasioning a miscarriage of justice.** - **iii) The Learned Trial Magistrate erred in law and fact when she declared that the Respondent is entitled to an access road on the appellants' land in total disregard of the locus visit findings.** - **iv)The Learned Trial Magistrate erred in law and fact when she misconstrued the locus in quo visit findings thereby occasioning a miscarriage of justice.** - **v) The Learned Trial Magistrate erred in law and fact when she relied on a contested sale agreement with the late Bukenya Muhammad as a buyer from whom the present respondent purportedly bought from**

**yet the late Muhammad Bukenya never signed it as a buyer to confer interest on the respondent.**

- **vi)The Learned Trail Magistrate erred in law and fact when she failed to properly follow the evidence of an expert witness as regards questioned and original documents as to handwritings and signatures thereby arriving at an unjust decision.** - **vii) That the Learned Trial Magistrate erred in law and fact when she failed to exhaustively evaluate the entire evidence on record thereby arriving at a wrong conclusion.**

#### *Representation;*

10. At the hearing of the appeal, the appellants were represented by M/S Rwakafuuzi & Co. Advocates while the respondent was represented by M/s Moriah Advocates. Both parties filed written submissions which I have considered in the determination of this appeal.

### *Resolution and Determination of the grounds of appeal;*

11. Before addressing the merits of the grounds of appeal raised by the appellant, it is imperative to outline the role and mandate

of this Court as an appellate court within the judicial hierarchy of the Republic of Uganda. The essential function of this Court, as reiterated in numerous decisions of superior courts, is to review the proceedings and decisions of the trial Court to determine whether there were errors in law, fact, or procedure that occasioned a miscarriage of justice.

12. It is trite that an appellate court does not rehear the case afresh or substitute its own views merely because it might have reached a different conclusion. Rather, the duty of the Court is to determine whether the trial court properly evaluated the evidence before it, applied the correct legal principles, and arrived at a decision that is supported by the facts and the law. This position was succinctly put in the case of **Kifamunte Henry v Uganda [Criminal Appeal No. 10 of 1997],** where the Supreme Court emphasized that: **"It is not the duty of an appellate court to retry the case, but rather to examine whether there was evidence to support the findings of the trial court and whether the conclusions were reached judicially and in accordance with the law."**

- 13. However, it remains cautious not to interfere with the trial court's findings of fact unless it is apparent that such findings were based on no evidence, misapprehension of evidence, or resulted in a manifest miscarriage of justice. In exercising its appellate jurisdiction, this Court stands as a safeguard against judicial error and a guarantor of justice, ensuring that the law is consistently and correctly applied across all levels of the judiciary. - 14. In the instant appeal, therefore, this Court is enjoined to consider the record of proceedings, the grounds of appeal, and the submissions of counsel to determine whether the learned trial Magistrate erred in law or fact, and whether such error, if any, occasioned a miscarriage of justice warranting this Court's intervention. - 15. I am further guided by the decision of the Supreme Court in *Narcensio Begumisa & Others versus Eric Tibebaga Supreme Court Civil Appeal No. 17/ 2002*. In that case, the Court held that; *"It is a well settled principle that on a first appeal, the parties are entitled to obtain from the appeal Court, its own decision on the issues of fact as well as law. Although in case of conflicting evidence, the appellate Court has to make an allowance for the fact that it has*

*neither seen nor heard the witnesses, it must weigh the conflicting evidence and draw its own inferences and conclusion……even where as in this case, the appeal turns on a question of fact, the Court of Appeal has to bear in mind that its duty is to rehear the case and Court must reconsider the materials before the judge with such other materials as it may have decided to admit. The Court must then make up its own mind not disregarding the judgment appealed from, but carefully weighing and considering it; not shrinking from overruling it if upon full consideration the Court comes to the conclusion that the judgment is wrong…."*

16. I will now proceed and determine the grounds of appeal in the respective order in which they were argued. Grounds one and seven were argued together and shall be equally be considered together. The grounds are that;

### *Grounds 1 & 7*

*i. The Learned Trial Chief Magistrate erred in law and fact when she failed to properly evaluate the evidence of the appellants against that of the respondent before arriving at her decision.* *ii. The Learned Trial Magistrate erred in law and fact when she failed to exhaustively evaluate the entire evidence on record thereby arriving at a wrong conclusion.*

## *Appellant's submissions*

- 17. Counsel for the appellants submitted that the Respondent claimed in his pleadings that he had purchased the same from the late Muhammad Bukenya in 2002 and he started constructing on the same in 2004 until Entebbe Municipal Council stopped him. That Muhammadi Bukenya purchased the same from John Lubega vide sale agreement dated 21st July 1981 marked PExh2 That it is apparent and evidently clear that his presence on the suit plot was objected to by the appellants when he attempted to construct. That PW2, Matovu Haruna testified claiming to have witnessed PID 1, the purported sale agreement between him and the late Muhammad Bukenya dated 6th May 2002. - 18. PW3, Seremba Charles testified that he witnessed the sale agreement between the late Muhammad Bukenya and the late John Lubega, that the same was signed in 1981 and that it was written by the late John Lubega at his home in Kiwafu. That on the day of signing the agreement, there were no LC present and no other

people to witness the agreement. He also affirmed that Muhammad Bukenya the purported buyer did not sign on the agreement. The Respondent also testified during cross examination at page 7 of the lower Court's record that before purchase the land was occupied by the appellants, children of the late Lubega who had lived on the same since birth.

19. That the late Bukenya Muhammad from whom the Respondent claims to derive interest did not sign the sale agreement dated 21st July 1981 thus the Respondent could not take benefit of it, the same was contested and subjected to scrutiny by a handwriting expert who found that there were fundamental differences between the sample handwriting in the exhibit B and the questioned handwriting in exhibit A as per the laboratory report dated 13/10/2016. That the late Muhammad Bukenya did not own the suit land to be in position to pass it on to the Respondent.

# *Respondent's submission*

20. The Respondent in response to grounds 1 & 7 raised a preliminary point of law stating that the said grounds offend the provisions of Order 43 rule 1(2) of the civil procedure rules which provide that the memorandum of appeal shall set forth concisely

and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative, and the grounds shall be numbered consecutively. Counsel relied on the authority of

**Attorney General v Florence Baliraine CACA No. 12 of 2001** where Court stated that the grounds of appeal must specify the points which are alleged to have been wrongly decided. That General grounds which do not specify the points of objection offend the provisions of rule 86(1). The Respondent prayed that the grounds 1 and 7 be struck out.

## **Analysis by court;**

21. Before delving into the merits of the grounds, I wish to first address the preliminary objection raised by Counsel for the Respondent that the grounds of appeal contravened Order 43 Rule 1(2) of the Civil Procedure Rules, for not setting forth distinct, concise grounds and for being general. Counsel cited the case of **Attorney General v Florence Baliraine, CACA No. 12 of 2001** to

support the objection.

22. The grounds in question allude to the fact that the trial Chief Magistrate failed to properly evaluate the evidence of the appellants' vis a viz the entire evidence on record thereby arriving at a wrong

conclusion. Both grounds do not specifically state the evidence the appellants are challenging as required by law.

- 23. Court in the case of **Ranchobhai Shivabhai Patel Ltd and Anor v Henry Wambuga & Anor CA No. 06 of 2017 cited in Re: Washington Amy Elizabeth CACA No. 123 of 2023**, stated that "the ground was found to be too general and does not specify in what way and in which specific areas the learned Justices of appeal failed to evaluate the evidence. It does not set out the particular wrong decision arrived at by the learned Justices of appeal. - 24. The above authority is in all fours with the instant appeal, grounds 1 and 7 are general thus offending the provisions of Order 43 rule 1(2) of the Civil Procedure Rules therefore the same are hereby struck out.

**Ground 2:** The Learned Trial Judge erred in law and fact when she found that the appellants were trespassers on the respondent's land in total disregard of the evidence on record thereby occasioning a miscarriage of justice.

## *Submissions for the Appellants.*

25. That the Trial Court in its judgement on page 7 found that the plaintiff bought the suit land from Muhammad Bukenya who also

13 $$\rightarrow$$ $\rightarrow$ $\rightarrow$ $\rightarrow$ $\rightarrow$ $\rightarrow$ $\rightarrow$ $\rightarrow$

bought the same from Lubega John and therefore any claim by another person over the same land is unlawful and any entry upon the same amounts to trespass. The appellants were declared trespassers. Counsel relied on the authority of Justine EMN Lutaaya v Stirling Civil Engineering Company Civil Appeal No. 11 of 2002 to define trespass.

- 26. Counsel stated that when the respondent encroached on the suit land, he was immediately resisted and asked to vacate and desist from any further attempts of encroachment and trespass. - 27. That the suit plot has always been a bigger portion of the land owned by the appellants derived from the late John Lubega. That since the Respondent was and is not in possession, he had no locus to maintain an action in trespass, he did not have any legal claim in the suit plot as per the evidence presented at trial therefore it was erroneous for the trial Magistrate to find that the appellants trespassed on the Respondent's land.

#### **Submissions by the Respondent**

28. Counsel for the Respondent on the other hand submitted that the Trial Chief Magistrate rightly declared the Appellants trespassers on the Respondent's Kibanja. That DW2 and DW3 stated during

cross examination that they were not using the suit Kibanja because of the injunction. That it was uncontroverted evidence of the respondent that upon purchase of the suit land in 2002 he embarked on the construction on the suit land in 2004 until when the appellant's blocked his access road to the suit land. The 1st appellant is noted to have stated during reexamination that it was the Municipal council that destroyed the foundation because the plaintiff had no approved plan and it was not the appellants that destroyed the building.

- 29. That locus in quo, Court noticed a slight entry into part of the suit land by the immediate neighbor a one Kasozi and based on that evidence the respondent was in possession and the learned Trial Chief Magistrate was alive to all the facts and the law on trespass. - 30. In rejoinder Counsel for the appellants submitted that the respondent did not make out a case or establish any factual basis to maintain an action in trespass against the appellants. The Respondent was not in possession, be it physical or constructive to sustain a cause of action in trespass thus the Trial Chief Magistrate misdirected herself in that regard when she declared the appellants trespass.

31. The Respondent's claim of the Kibanja was challenged from the onset and he never assumed any possession and could not be said to have gained any rights in the suit Kibanja to maintain an action in trespass therefore the Trial Magistrate was wrong to conclude that the respondent was in possession.

#### **Analysis by court;**

- 32. Trespass to land has been clearly discussed and explained in the decision of **Justine E. M. N Lutaaya vs. stirling Civil Engineering Co. Ltd SCCA No. 11. of 2002**, where Mulenga Jsc. held that: *"Trespass to land occurs when a person makes an unauthorized entry upon land, and thereby interferes, or portends to interfere, with another person's lawful possession of that land. Needless to say, the tort of trespass to land is committed, not against the land, but against the person who is in actual or constructive possession of the land. At common law, the cardinal rule is that only a person in possession of the land has capacity to sue in trespass.* - 33. The Respondent claims to have purchased the suit land in 2002 from the late Muhammad Bukenya, who had acquired the

same from the late John Lubega. After this, he commenced construction on the land in 2004. This activity on the land was corroborated by both oral evidence and the observations at the locus in quo, as noted by the trial Chief Magistrate.

- 34. It was further stated that the Respondent's construction was halted by the Entebbe Municipal Council due to lack of approved plans, not because of any dispossession by the Appellants. This supports the argument that the Respondent was, at the time, in possession of the land or had commenced acts of possession sufficient under the law to support a trespass claim. Although the Appellants argue that the Respondent never took possession, the evidence shows otherwise, He began construction works which the locus visit confirmed his presence and activity on the land. - 35. The Appellants obstructed his access, including blocking the access road, acts which are typical of trespass when directed against one in possession. When it comes to proof of possession, acts such as fencing off, cultivating, or building on land, even if minimal, may constitute sufficient possession to protect one's rights against trespassers.

- 36. Based on the evidence adduced before the trial Court, the Respondent was in possession which was confirmed at locus visit as Court noted that the land had a foundation of a structure said to have been a pit latrine. It is trite that findings of fact by a trial court particularly based on evaluation of oral evidence and locus visits should not be lightly disturbed by appellate courts unless manifestly wrong or unsupported by evidence. - 37. The trial Magistrate visited the locus in quo, observed the layout, and found that the Respondent had commenced possession and was interfered with by the Appellants. Be that as it may, the appellants claim the suit Kibanja as children of the late John Lubega who had long ceased to have interest in the suit Kibanja following disposing of the same to Muhammad Bukenya who subsequently sold it to the Respondent. - 38. This Court finds that the trial Magistrate did not error in law or fact when she found that the Respondent had taken possession of the suit land. The Appellants' subsequent entry onto the land, blocking the road access constituted trespass. The Respondent had a sufficient possessory interest to sustain an action in trespass under the authority of **Justine E. M. N Lutaaya vs. stirling Civil Engineering Co. Ltd SCCA No. 11. of 2002.**

- 39. The Appellants' reliance on the argument that they are children of the late Lubega does not entitle them to forceful re-entry or self-help against a person in possession. They were required by law to seek redress through proper legal channels if they believed the Respondent's possession was unlawful. There is no compelling reason shown by the Appellants for this court to interfere with that factual determination. - 40. Therefore, this ground fails.

### *Ground 3 and 4*

*The Learned Trial Chief Magistrate erred in law and in fact when she declared that the Respondent is entitled to an access road on the appellant's land in total disregard of the locus findings.*

*The Learned Trial Chief Magistrate erred in law and in fact when she misconstrued the locus in quo visit findings thereby occasioning a miscarriage of justice.*

## *Appellants submissions*

41. Counsel for the appellant submitted that the Trial Chief Magistrate in her judgement held that it was Court's finding that

since the time of purchase, there existed a proper access road leading to the plaintiff's land and there was no contention over the same and that it was unlawful for the defendants to deny him access. That there was no reasonable basis for the Learned Trial Chief Magistrate to conclude that there existed an access road and that the respondent was entitled to one when at locus in quo, Joseph Lubega Kasozi (DW1) testified that there has never been a road to the suit land and it is the reason why the church fenced off its portion and that whatever path people were using then was an illegal one.

42. That it was also established that the toilet structure the Respondent had put on the suit plot was demolished by Entebbe Town Council and not the appellants. No evidence was adduced at locus that there existed an access road which was blocked by the appellants.

#### **Submissions for the Respondent;**

43. Counsel for the Respondent stated that it was the lower Court's findings that there existed an access road leading to the Respondent's plot but the same was blocked by Muwonge John, the 4th Appellant who constructed a wall fence leaving only a

foot path. That the access road originally the road was about 9- 10 ft wide but now it is small and the road leads to the public road. That the learned Magistrate properly complied with the Chief Justice's practice directions No. 1 of 2007 and arrived at the right conclusion that the Respondent is entitled to an access road so that he can utilize his property.

44. In rejoinder, the appellants submit that the respondent's averment that there was a road about 9-10 ft wide which was blocked by the 4th appellant was not supported by any evidence to the satisfaction of Court. That the locus visit was improperly handled and the trial Chief Magistrate failed to properly consider the evidence available on account that she did not visit the said locus to be able to appreciate the state of affairs and this occasioned a miscarriage of justice since the 4th appellant was not asked to present his case even when it was prudent that he be heard.

#### **Analysis of court;**

45. The gist of the two grounds is whether the trial Chief Magistrate properly conducted and interpreted the locus in quo visit, and

whether she rightly concluded that the Respondent is entitled to an access road across the appellants' land. The conduct of a locus in quo visit is governed by Practice Direction No. 1 of 2007 issued by the Chief Justice of Uganda, which provides for Judicial Visit to a Locus in Quo.

- 46. That during the hearing of land disputes the Court should take interest in visiting the locus in quo and while there; - a) Ensure that all parties, their witnesses and advocates are present. - b) Allow the parties and their witnesses to adduce evidence at locus in quo. - c) Allow cross examination by either party or his/her counsel - d) Record the proceedings at the locus in quo. - e) Record any observation, view, opinion or conclusion of the court including drawing a sketch plan.

# **(See Akileng Musa v Okiror John Robert HCCA No. 0041 of 2019)**

47. The purpose of the visit is to enable the trial court to better understand the evidence, clarify issues of boundaries, possession,

developments, or access and perhaps, assist in the visual inspection of disputed facts.

- 48. Whilst conducting locus in quo, the trial magistrate must be present and should record all observations and proceedings made at the locus. All parties and their witnesses should be allowed to be present and to give further clarification if necessary. The Magistrate should not receive new evidence unless it is to clarify existing evidence and the locus findings must be recorded and form part of the court record as failure to adhere to these requirements can amount to a miscarriage of justice - 49. It is the appellants' argument that at the locus in quo, no clear evidence of a pre-existing access road was recorded. DW1 (Joseph Lubega Kasozi) testified that there had never been a road and what existed was an illegal path. The 4th appellant, who allegedly constructed the wall that blocked the access, was not heard at the locus, nor given an opportunity to respond. Therefore, the Magistrate's conclusion that an access road existed and had been blocked was not justified or based on proper procedures. - 50. The Respondent on the other hand testified that an access road existed and was used until it was blocked by the 4th Appellant. At

the locus, the Magistrate observed that only a narrow footpath remained where there had allegedly been a wider 9–10 ft road. The Magistrate relied on this visual inspection to conclude that the Respondent was being unlawfully denied access. The Chief Magistrate complied with Practice Direction No. 1 of 2007, and her findings were supported by both testimony and physical observation.

- 51. From the record, it is clear that the issue of the road access to the Respondent's land was central to the dispute. The trial Magistrate conducted a visit to the locus in quo, and according to the Respondent, it was observed that an access route had been narrowed due to wall construction by the 4th Appellant, reducing it to a footpath. While the Appellants argue that the 4th Appellant was not heard, there is no evidence on the record to suggest that his right to a hearing was denied during the court proceedings as a whole. It is also not a strict requirement that each party be re-heard at the locus unless clarification is needed. - 52. Moreover, it is a celebrated principle that evidence observed at the locus can rightly form the basis of a judicial finding, so long as

it is properly recorded and not contradictory to the evidence on record.

- 53. The Magistrate observed that the road access was physically blocked, and based on both the oral and visual evidence, concluded that the Respondent had been denied reasonable access to his land. An owner or lawful occupier of land is entitled to reasonable access to their property. Blocking such access without justification can amount to a violation of property rights under Article 26 of the Constitution of Uganda, and can form the basis for a court order to restore access, even if through a portion of another person's land subject to equitable considerations. - 54. The trial Chief Magistrate did not error in law or fact when she declared that an access road existed and had been unlawfully obstructed, Interpreting the locus in quo visit, which was conducted in accordance with the Chief Justice's Practice Direction No. 1 of 2007, granting access to the Respondent as a necessary and equitable remedy to ensure the Respondent's enjoyment of his land. - 55. The argument that the path was "illegal" does not override the principle that reasonable access to land must be maintained, particularly where such access had existed and was subsequently

blocked. Grounds 3 and 4 of the appeal fail. The learned trial Chief Magistrate properly evaluated the evidence and correctly applied the law governing locus in quo visits and access to land. Her finding that the Respondent is entitled to access is upheld.

#### *Ground 5 & 6;*

The Learned Trial Chief Magistrate erred in law and fact when she relied on the contested sale agreement with the late Bukenya Muhammad as a buyer from whom the present respondent purportedly bought from yet the late Muhammad Bukenya never signed it as a buyer to confer interest on the respondent. The Learned Trial Chief Magistrate erred in law and in fact when she failed to properly follow the evidence of an expert witness as regards questioned and original documents as to handwritings and

signatures thereby arriving at an unjust decision.

## *Appellants submissions*

56. Counsel for the appellant submitted that the judgement on page 6 states that "However be that as it may, there is clear evidence that the plaintiff bought the suit land from Muhammad Bukenya who also bought from Lubega John". That the above conclusion was not supported by the evidence on record. The Respondent sought to reply on the agreement between the late Muhammadi Bukenya and the late John Lubega dated 21st July 1981. In support of his claim, PW3 Seremba Charles claimed to have been a witness to the land sale agreement stating that the same was written by Lubega John at his home in Kiwafu. He further mentioned that on the day of signing the LC was not present and no other people to witness the said agreement not even Muhammad Bukenya the buyer signed the same.

57. That the purported sale agreement fell short of what amounts to an agreement in the strict sense, it does not bear the names and signature of the buyer. That for a contract to be valid and legally enforceable there must be capacity to contract, intention to contract, consensus ad idem, valuable consideration, legality of purpose and sufficient certainty of terms. If in a given transaction any of these is missing it could as well be called something else. That if indeed the late Muhammad was party to the said agreement of 21/7/1981 and wanted to be bound by it, he would have signed the same. The named witness PW3 Seremba Charles did not sign as well. - 58. That the agreement bore a signature of the late John Lubega which was also contested. DW4, Chelangat Sylvia a handwriting expert compared the handwritings and signatures and found that there were fundamental differences between the sample handwritings in Exhibit B and the questioned handwritings in Exhibit A and she concluded that in her opinion, it was unlikely that the author of the sample handwriting in exhibit B wrote the questioned handwriting in Exhibit A. The contested sale agreement was unenforceable and thus could not confer interest in the suit land to the respondent. - 59. While arguing ground 6, the Appellants counsel relied on a plethora of authorities in explaining the role of the handwriting expert and how different courts have relied and applied the opinions of the handwriting expert. That DW4, the handwriting expert examined Exhibit A and B and found that there was fundamental difference between the samples. That the standard of due diligence imposed on the unregistered land is much higher than that expected of a purchaser of registered land.

#### *Respondent's submissions*

- 60. That the Learned Trial Chief Magistrate reached a correct conclusion that the suit land was a property of the respondent. It was the respondent's uncontroverted evidence that he purchased the suit Kibanja measuring 100 X 50ft from a one Bukenya Muhammad in 2002 as per PEX2. That upon visiting locus, the suit property measuring 100 X 50ft indeed exists. That the agreement in contention was between John Lubega and Bukenya Muhammad who had passed on at the time of instituting the suit. The Respondent called two witnesses who testified on the agreement. That the sale agreement was contested for not being signed by the late Muhammad Bukenya. - 61. That non-signing of the agreement does not render the agreement unenforceable. Counsel relied on the authority of Akileng Musa v Okiror John Robert HCCA No. 0041 of 2019 where Court noted that an unsigned contract may still be enforceable if the parties conduct demonstrates their assent to the agreement, that signatures are not required for a written contract to be binding on the parties. - 62. That the handwriting expert indicated that the signature in the agreement PEXH2 was found similar to that of the specimen

provided by the appellants hence lending credence to the fact that the late Lubega sold the land to Bukenya Muhammad who later sold to the plaintiff.

63. In rejoinder the appellants counsel submitted that the appellants did not only contest the signature but also denied their late father/grandfather ever selling the suit Kibanja. That the Respondent's case was full of inconsistences and contradictions and thus he could not have derived good title from the late Bukenya Muhammad.

#### **Analysis by court;**

64. The primary issue for determination was whether the sale agreement between the late John Lubega and Bukenya Muhammadi was valid and capable of passing interest to the respondent. Section 10 of the Contracts Act lays down the basic elements of a valid contract to include, offer and acceptance, Intention to create legal relations, consideration, capacity of parties and certainty of terms. It is not a requirement under the law that a signature must exist for a contract to be valid, so long as there is clear evidence of mutual assent.

65. As cited by Counsel for the Respondent the authority of **Akileng Musa v Okiror John Robert HCCA No. 0041 of 2019,** the High Court held that a contract may be enforceable even if unsigned, provided that the parties' conduct indicates agreement on essential terms and signatures are not required for a written contract to be binding on the parties. However, the same authority also laid down the risks that one runs having an unsigned agreement to wit; its prema facie not legally binding with the parties not able to enforce the terms and conditions therein, the agreement may lack clarity and precision in terms of obligations, duties and responsibilities of both parties, misrepresentation, and unforeseen situations during performance of the contract.

- 66. Needless to say, the agreement in question was one conveying interest from Lubega John to Bukenya Muhammadi and the said Bukenya Muhammad did not sign the agreement but went ahead to deal with the land, disposed it off to the Respondent thereby assenting to the agreement. - 67. The respondent testified that he purchased the land in 2002 from the late Bukenya Muhammad, who had earlier purchased the

land from the late John Lubega as evidenced by the sale agreement dated 21st July 1981.

- 68. Though the appellants disputed the signature of John Lubega and noted that Bukenya did not sign the agreement, the respondent produced witnesses (including PW3 Seremba Charles) who testified as to the existence and execution of the 1981 agreement. Even in the absence of a signature by the buyer (Bukenya), if there is evidence of part performance or possession, the transaction may be held enforceable under the doctrine of part performance, especially in land transactions. - 69. Expert evidence, including handwriting analysis, is opinion evidence, and courts are not bound by it as per Section 45 of the Evidence Act, Cap. 6 allows courts to consider expert opinion, but it must be weighed alongside all the evidence. - 70. DW4, the handwriting expert called by the appellants, stated that there were fundamental differences between the signature on Exhibit A and known samples, concluding that it was unlikely that the questioned document was signed by John Lubega. - 71. However, the respondent produced other witnesses (PW2 and PW3) who confirmed witnessing the transaction, corroborated the

sale by the late Lubega to Bukenya and spoke to possession and subsequent sale thus the trial Chief Magistrate was therefore entitled to evaluate and balance the expert report against the oral evidence and conduct of the parties.

- 72. Furthermore, the handwriting expert did not conclusively state forgery, only noting "differences," and courts generally require a high standard before declaring a transaction invalid solely on such basis. - 73. The trial Chief Magistrate properly evaluated the agreement between Lubega and Bukenya and found it to have legal effect despite the absence of a signature by the buyer. The court was also justified in not giving binding weight to the handwriting expert's opinion, especially given the oral evidence and conduct of the parties that supported the transaction. - 74. Thus, the finding that the Respondent lawfully acquired the suit land through Bukenya Muhammadi was supported by evidence and sound legal reasoning. Thus Grounds 5 and 6 also fail. - 75. In that regard, this appeal fails with costs to the respondent, the judgment of the lower court and all the orders made there in is upheld in this regard.

**I SO ORDER**.

# **NALUZZE AISHA BATALA**

# **Ag. JUDGE.**

#### **02nd /06/2025**

# **Delivered on the 02nd day of June,2025 electronically via**

**ECCMIS.**