[2023] UGHC 475

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MUKONO **CIVIL APPEAL NO. 0090 OF 2019** (ARISING FROM CIVIL SUIT NO.0007 OF 2017)

# KABUGO GODFREY !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! **VERSUS**

#### **MUKEERA MOSES** BEATRICE TALANGU WOTALI::::::::::::::::::::::::::::::::::::

# BEFORE HON. LADY JUSTICE CHRISTINE KAAHWA **JUDGMENT**

This is an Appeal arising from the Judgment of Her Worship Akello Irene; at the Chief Magistrates Court of Kayunga delivered on the 12^th day of November 2019 wherein he entered Judgment in favour of the Respondent.

The Appeal emanates from Civil Suit No. 0007 of 2017 filed by the Respondent against the Appellant seeking for among others;

- a. A declaration that the Plaintiffs are the lawful owners of their respective Bibanja at Bigoge Village in Kayunga District. - b. An order for vacant possession of the suit Kibanja portion to the Plaintiffs. - c. A permanent injunction restraining the Defendant from further interfering with the peaceful possession and utilization of the suit Kibanja. - d. General damages.

e. Costs of the suit.

The grounds of the Appeal are;

- 1. That the learned Trial Magistrate erred in law and fact when she failed to evaluate the evidence on record to establish that the Respondent had no cause of action hence arriving at a wrong decision. - 2. That the learned Trial Magistrate erred in law and fact when she failed to formulate the appropriate issues to resolve at the trial of the main suit. - 3. That the learned Trial Magistrate erred in law and fact when she failed to evaluate the evidence on record and find the respondent having sold the suit Kibanja and hence cannot be a proprietor again.

#### **Representations:**

The Appellant was represented by Mr. Denis Nyombi while the Respondent appears to be self-represented. Both parties filed written submissions.

### Ground one:

That the learned Trial Magistrate erred in law and fact when she failed to evaluate the evidence on record to establish that the Respondent had no cause of action hence arriving at a wrong decision.

It is the Appellants case that the land in issue belonged to Namusoke Gladys but the Plaint shows by annexure that the land is for Namusoke Glades.

That therefore there was no cause of action against the Defendant as the cardinal principles laying out a cause of action were not met by the pleadings. That there was no proof that the two Namusokes are one and the same person.

In parallel to that he asserts that the copy of the Agreement that was translated was not witnessed by a Commissioner for Oaths.

Furthermore, it was argued that in the absence of a duly registered deed of assignment/Memorandum of Understanding or a company resolution to that effect no demonstration of a protected interest has been proved.

Conversely the Respondents contend that they are the rightful owners of the different pieces of bibanja; that the claim that the Appellant was given the land by the grandmother was contested by that grandmother and thus support the findings of the Trial Magistrate that their occupation amounts to trespass.

It is the Respondents' case that the lower Court correctly appraised the evidence and arrived at a correct decision. That the grandmother stated that she had intended to sell part of her Kibania to her grandson the Appellant who later declined to buy. She denied having made any document for transfer of her interest to the Appellant. In a nutshell, a cause of action has been established by those facts.

In regard to the discrepancy in the spelling of the name Gladys or Glades and the omission to have the translated copy witnessed by a Commissioner for oaths it was asserted that Article 126 (2) (e) offers a way out.

It was contended that raising the issue of failure to pay stamp duty at this juncture when the objection was not raised in the lower Court was malafide and cannot be part of the Appeal.

# Ground two:

That the learned Trial Magistrate erred in law and fact when she failed to formulate the appropriate issues to resolve at the trial of the main suit.

The Appellant submits that that Order 15 of the Civil Procedure Rules (CPR) enjoins the Court to properly frame issues that arise from the pleadings of the parties.

That the trial Court omitted to frame an issue as to the ownership of two pieces of Kibanja and not land. He laid out the issues that were conversed in the lower court as follows;

- 1. Whether the Defendant is the lawful owner of the suit land. - 2. Whether the Defendant is a trespasser on the suit land - 3. What remedies are available to the parties.

He sums up by stating that land interest is governed by the land Act while ownership by the Registration of Titles Act.

On the other hand, the Respondent disputed these claims and submitted that the Trial Court was at all times aware that she was dealing with Kibanja disputes.

# Ground 3:

That the learned Trial Magistrate erred in law and fact when she failed to evaluate the evidence on record and find the Respondent having sold the suit Kibanja and hence cannot be a proprietor again.

The Appellant appears not to have addressed this ground. Can we take it that it was abandoned?

The Appellant prayed that the decision of the lower Court be set aside and costs be ordered in his favour.

The Respondent contend that the evidence on record is clear that the Respondents were the rightful owners of the land. The land is said to have been a gift from her mother.

Regarding the locus, it was submitted that the information at the locus in quo was used to supplement the evidence of the witnesses although that evidence was not used in decision making.

The Respondent prayed that the Appeal be dismissed with costs.

#### **Resolution:**

#### Ground One:

The issue of names was explained in the evidence as discerned from the record of Appeal. In this case it is quite clear that there was merely a misspelling of the name and in any case no other person has shown up to claim the land and state that she is the one who executed the agreement under the names of Namusoke Glades. This Court is satisfied that the error has been explained sufficiently.

In relation to the omission to pay stamp duty; it is my considered opinion that this was not framed as a ground of Appeal and cannot be traversed at this stage especially in light of the fact that it did not form an issue in the lower Court.

### Ground two:

The ground was mainly on the omission of the lower Court to frame the issues correctly.

The framing of issues in my view is the responsibility of both the Court and the parties and that is why there is a requirement to have a scheduling conference. At the time this is held, the parties should each present their issues and if the Court is not satisfied with the framing then it may assist in framing the issues.

The case for the Appellant as garnered from the submissions is that the issue at hand is for legal interest and not ownership. He reproduced the issues.

The Courts view is that the issues seem to have been properly framed by the Court and also traversed in the decision of the lower court. Issues 2 and 3 as drawn suffice on legal interest and ownership.

I therefore find in the negative on ground two.

# **Ground three:**

The Appellant contends that the lower Court failed to evaluate the evidence on record and found the Respondent as proprietor when in fact the Respondent had sold the Land. In order for the Courts to resolve this issue it must be ascertained who the lawful owner of the land or legal interest is. From the record it is easy to glean.

Appeal is dismissed.

The decision of the Trial Court is maintained.

**DATED** at **MUKONO** this 25^th day of **September 2023.**

Christine Kaahwa **JUDGE**