[2023] UGHC 384

# **THE REPUBLIC OF UGANDA**

# **IN THE HIGH COURT OF UGANDA AT MASAKA**

# **HIGH COURT CIVIL APPEAL NO. 3 OF 2021**

# **(ARISING FROM CHIEF MAGISTRATES COURT OF MASAKA AT MASAKA CIVIL SUIT NO. 042 OF 2019)**

**KAWEESA JOHN :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT**

# **VERSUS**

- **1. KAFEERO ROBERT** - **2. NALUBWAMA MARGARET** - **3. NANDUGA SARAH ::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENTS**

# **JUDGMENT**

*Before the Hon. Lady Justice Victoria. N. N. Katamba*

# **BACKGROUND**

The Appellant filed Civil Suit No. 042 of 2019 against the Respondents seeking inter alia, a declaration that the Respondents are trespassers on his Kibanja situate at Ssenya village Kkingo subcounty, Lwengo District and a permanent injunction restraining them from interfering with it.

It was the Appellant's case that the suit Kibanja was gifted to him, intervivos, by his now deceased father, Lubwama Joseph, during his lifetime.

On the other hand, the Respondents vehemently defended the suit and stated that the Plaintiff and their father were biological brothers. That the Late Joseph Lubwama assigned or gifted the suit Kibanja to his brother (the 2nd and 3rd Respondents' father, the Late Ndugga Falasiko) on 11/04/1974. They also categorically stated that they have been in occupation and utilization of the suit Kibanja with their father since 1974 and that the Plaintiff has never had possession of the same.

Both parties attached copies of their documents that are the basis of their ownership claims to their pleadings and eventually had them admitted as exhibits on the record of the Court in the course of the trial.


The trial court dismissed with costs the Appellant's suit and found that he is not entitled to any of the remedies sought. The Appellant was dissatisfied with the decision of the trial court, and thus opted to seek a second opinion in the matter by way of institution of this appeal.

#### **Representation**

The Appellant represented by **M/s Semwanga, Muwazi & Co. Advocates**

The Respondent was represented by **M/s Xander Advocates**

#### **At institution of the Appeal, the Appellant raised six grounds of appeal to wit;**

- 1. The learned trial Magistrate erred in law and fact when she found that the suit Kibanja interest forms part of the estate of the late Nduga Falasiko which caused a miscarriage of justice. - 2. The learned trial Magistrate erred in law and fact when she found that the Appellant's deceased biological father never delivered the suit Kibanja interest to him thereby never fulfilled the conditions for a gift *intervivos* which caused a miscarriage of Justice. - 3. The learned trial Magistrate erred in law and fact when she found that the 1st Respondent having purchased a portion of the suit Kibanja interest from the 3rd Respondent is the rightful owner of that portion which he acquired which caused a miscarriage of Justice. - 4. The learned trial Magistrate erred in law when she found that the 2nd and 3rd Respondents cannot be held to be trespassers and also the 1st Respondent who purchased from the owners thereof cannot be held to be a trespasser which caused a miscarriage of Justice. - 5. The learned trial Magistrate erred when she dismissed the Appellant's suit and allowed the Respondents' defenses which were full of contradictions, departure from pleadings and grave illegalities which caused a miscarriage of Justice. - 6. The learned trial Magistrate erred when she evaluated the Appellant's witnesses' evidence separately from the Respondents' witnesses' evidence and failed to properly evaluate the evidence as a whole, took a very unbalanced view of the Appellant and his witnesses' evidence in finding that the suit Kibanja interest formed part of the estate of the Late Nduga Falasiko in dismissing the Appellant's suit and allowing the defence case which caused a miscarriage of Justice.


### **The duty of this Court as a first Appellate**

The duty of a first Appellate Court is to re-appraise or re-evaluate evidences as a whole and come to its own conclusion bearing in mind that it has neither seen nor heard the witness and should make due allowance in that regard.

The Supreme Court has re-echoed the above principles in a number of cases like *Uganda Revenue Authority versus Rwakasanje Azariu & 2 Ors; CACA No. 8/2007; Fr. Narsensio Begumisa and 3 Ors versus Eric Kibebaga; SCCA No. 17 of 2002 and Banco Arabe Espanol versus Bank of Uganda; SCCA No. 08 of 1998.*

I therefore have the duty to re-appraise the evidence and reach my own conclusions thereon subject to the caution that I did not see, hear, or observe the witness.

**Decided cases have also established that "***where the trial court has erred, the Appellate Court will only interfere where the error has occasioned a miscarriage of justice. The Appellate Court has a duty to reevaluate the evidence of the trial court while considering facts, evidence and the law. The court can interfere with the findings of the trial court, if the court misapplied or failed to apply the principles applicable to the offence charged" in this civil case, the issues that were raised before court for determination.*

# *APPELLANT'S SUBMISSION*

The Appellant submitted that the suit land was bequeathed to him as a gift deed *intervivos* dated 22/11/2015 which was duly tendered on the court record as an exhibit, PEX1. He further submitted that the deceased did whatever was necessary to properly vest the suit *Kibanja* in him as per his evidence on the record of this court.

The Appellant further submitted that whereas his father did not indicate the boundaries of the *Kibanja* that he gave to him, he took off time to show him its boundaries.

The Appellant also denied having executed DEX1 in which it was indicated that he acquired the suit land on a different date.

The Appellant further criticized the learned Trial Magistrate whom he accused of having omitted to evaluate the testimonies of Pw5, Pw3 and Pw4 which he said corroborated his position that his father gave him the suit Kibanja.


The Appellant submitted that not being Administrators of the estate of the Late Falasiko Ndugga, they had no powers to sell a part of the *Kibanja* to the 3rd Respondent. He referred this court to *Section 25 of the Succession Act Cap. 160 which provides that all property in an intestate devolves upon the personal representative of the deceased upon trust for those persons entitled to such property.*

In conclusion, the Appellant submitted that the learned trial Magistrate erred when she found that the Respondents were not trespassers because to him, the testimonies of Pw1, Pw2, Pw3, Pw4 and Pw5 demonstrate that the Late Joseph Lubwama did not gift the suit Kibanja to the Late Falasiko Ndugga.

# **RESPONDENT'S SUBMISSIONS**

In their submissions, the Respondents supported the findings of the learned trial Magistrate. They submitted that the Appellant admitted DE4 as a genuinely executed document. This DE4 is the Respondents' gift deed upon which the Late Joseph Lubwama is said to have given the land to Falasiko Ndugga. The Respondents maintain that the Appellant's statement made over the said document amounts to an admission. The Appellant testified over the said document thus, and I quote, *"This is how my father used to write his name."*

The Respondents also submitted that the Appellant contradicted himself when relied on a gift deed in which he demonstrated the suit *Kibanja* was given to him on **22/11/2015** yet he also relied on a letter dated 08/07/2016 in which it was stated that his father gave him the suit Kibanja on **28/07/2020.**

The Respondents argued that they have had possession of the suit land since 1974; that the Appellant's *kibanja's* boundaries are unascertained and his claim to the same is not tenable at law.

In addition to the above, the Respondents submitted that the 3rd Respondent purchased the suit land with the consent of other family members of the Late Ndugga Francis and that as such she cannot be said to be trespasser.

In conclusion, the Respondents prayed that this Honourable Court be pleased to uphold the decision of the trial court and dismiss the instant appeal with costs.


# **DETERMINATION OF COURT**

I have carefully examined the submissions of the parties and the record of the trial court and below are the findings of this court.

# *Ground One: The learned trial Magistrate erred in law and fact when she found that the suit Kibanja interest forms part of the estate of the late Nduga Falasiko which caused a miscarriage of justice.*

The annexures on the pleadings and the evidence of the Respondents demonstrates that the Appellant's father ( Lubwama Joseph - deceased) assigned the suit *Kibanja* to his brother and father to the 2nd and 3rd Respondents ( Nduga Falasiko). This was evidenced by DE4, the deed of assignment. This exhibit was tendered on the court record without any objection by the Appellant.

It is surprising, therefore, to see that the Appellant is now seeking to attack the validity of this exhibit by claiming that it was a concocted document. He never raised any contention about it at the trial when the Respondents sought to have it tendered on the court record nor has he availed any additional evidence by way of leave of court to prove that it is a forged document or concocted as he has referred to it.

In addition to the above, when the Respondents Advocates put the same document before the Appellant for Identification during cross examination he stated that the name appearing on the Respondent's deed of assignment, was written in the same way his now deceased father used to write it.

Furthermore, Dw6, Richard Ssengendo testified that the Appellant is his biological brother. This relation was not disowned by the Appellant. He testified that the 2nd and 3rd Defendants/Respondents are his Cousins, children of his now deceased uncle Nduga. Whereas he stated that the suit Kibanja once belonged to his father, Lubwama Joseph, his family ceased using it when they were very young and that then the Appellant was not yet born. He further stated that when he became of age, he asked his father to permit him to use it but he told him that he could not because he had given it to his brother, the now Late Francis Nduga. (This Court hereby takes Judicial notice of the fact that the name Francis is also referred to as Falasiko in the local Luganda dialect)

In conclusion, this court is satisfied that the learned trial Magistrate did not in any way error when she held that the suit land formed part of the estate of the Late Nduga Falasiko. Moreover,


the Defendant's pleading that they have used the suit Kibanja since 1974 was well corroborated by Richard Ssengendo who testified that his father's family ceased use of it when he was still young and before the Appellant was born.

Ground one is therefore answered in the negative.

I will then proceed to resolve grounds two, three and four jointly.

*Ground two: The learned trial Magistrate erred in law and fact when she found that the Appellant's deceased biological father never delivered the suit Kibanja interest to him thereby never fulfilled the conditions for a gift intervivos which caused a miscarriage of Justice.*

*Ground three: The learned trial Magistrate erred in law and fact when she found that the 1st respondent having purchased a portion of the suit Kibanja interest from the 3rd Respondent is the rightful owner of that portion which he acquired which caused a miscarriage of Justice.*

*Ground four: The learned trial Magistrate erred in law when she found that the 2nd and 3rd Respondents cannot be held to be trespassers and also the 1st Respondent who purchased from the owners thereof cannot be held to be a trespasser which caused a miscarriage of Justice.*

Having resolved ground one in the negative, directly implies that the Appellant's father had no Kibanja to deliver to him in the suit area because he no longer owned it by the time of the Appellant's birth.

Secondly, there is no evidence on the record of this court by way of introduction of the Appellant to the area local authorities, a survey report or otherwise that demonstrates that the suit *Kibanja* was ever delivered to the Appellant.

At best, what the Appellant has done is demonstrate to this court that he introduced himself to the Local authorities by way of a letter indicating that the suit Kibanja was given to him in 2010 which information contradicts his deed of assignment which shows that the Kibanja was given to him by his father in 2015.


Having found that the suit *Kibanja* forms part of the estate of the Late Falasiko Nduga, it is also my opinion that the Appellant who is not a beneficiary in Falasiko Nduga's estate, has no right to complain about the fact that there was evidence adduced to prove that the *Kibanja* was distributed to the 2nd and 3rd Respondents before selling it to the 1st Respondent.

The Appellant also has no *locus standi* to challenge the 1st Respondent's occupation of the suit land/Kibanja for the reasons given herein above.

Accordingly, I find that the above three grounds of appeal fail. I thus answer them in the negative.

# *Ground five: The learned trial Magistrate erred when she dismissed the Appellant's suit and allowed the Respondents' defenses which were full of contradictions, departure from pleadings and grave illegalities which caused a miscarriage of Justice.*

I do not consider what the Appellant has pointed out as contradictions pointing to deliberate untruthfulness nor illegalities what the Appellant has pointed out as deserving any consideration by this court because he is not a beneficiary in the estate of the Late Nduga Falasiko. He is not clothed with *locus standi* to raise them.

On the other hand, what I consider as grave contradiction and inconsistencies is the date on which he states that the suit property was given to him by his now deceased father. The Appellant's exhibited, PE1, which was his gift deed *intervivos* over the suit *Kibanja* is dated 22nd November 2015 while in DE1 which he owned up to as his document, he categorically informed area Local Council 1 chairperson, Mr, Andrew Vincent Mutebi, that the suit *Kibanja* was given to him by his now deceased father on 28th July 2010.

I find that the above inconsistencies go to the very root of the Appellant's claim. They point to deliberate untruthfulness, intended to mislead this Court.

In conclusion, I find that this ground also fails. It is therefore resolved in the negative.

*Ground six: The learned trial Magistrate erred when she evaluated the Appellant's witnesses' evidence separately from the Respondents' witnesses' evidence and failed to properly evaluate the evidence as a whole, took a very unbalanced view of the Appellant and his witnesses' evidence in finding that the suit Kibanja interest formed part of the estate of the Late Nduga Falasiko in dismissing the Appellant's suit and allowing the defence case which caused a miscarriage of Justice*.


*Order 43 rule (1) and (2) of the civil Procedure Rules as amended requires that a ground of appeal should be concise and specifically state or set out the ground of objection to the Decree from which the appeal emanates. See Attorney General vs. Florence Baliraine CACA No. 79 of 2003*

A critical examination of this ground of appeal discloses that it is not only argumentative and narrative but it is also generally a fishing expedition. It was drafted by the Appellant's Advocates to set this appellate court on wild goose chase, with the hope that it will find some fault with the trial Court's findings.

I am therefore, disinclined to engage in this fishing expedition, for which the appeal process was never intended to achieve. In a nutshell this ground is rejected.

In conclusion, it is my finding that the appeal has failed in whole and it is hereby dismissed.

Given that the some of the parties to this suit are relatives, I will award the Respondents with only a half of the taxed Costs of this appeal to promote the spirit of reconciliation.

# Orders:

- 1. The Judgment and Orders of the Trial Court are upheld. - 2. This Appeal is hereby dismissed. - 3. The Respondents are awarded a half of the taxed Costs of this Appeal.

Dated this 20th day of December, 2023.

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**VICTORIA NAKINTU NKWANGA KATAMBA JUDGE.**