[1988] UGHC 1

| | $\mathcal{L} = \mathcal{L}$ | * W. . S. IN THE HIGH COURT OF UGANDA AT KAMPALA | | | |----------------|-----------------------------|--------------------------------------------------|------------------------|--| | | | FIND: CIVIL APPEAL NO 16 OF 1986 | | | | FRANCIS KIZITO | | | <b>APPELIANTB 2009</b> | | | | | $\ldots \ldots$<br>versus | | | | CHARLES MUKASA | | | . RESPONDENTS | | | FRANCIS BUNJO | | | | |

$\cdot, \cdot,$

Before: The Honourable Mr. Justice W. K. M. Kityo

## **JUDGMENT:**

This is an appeal against the judgment of the Chief Magistrate Mengo, dated 8th July 1987, involving a land dispute The dia to surwhereby the present appellant sued the two respondents and $11:$ Yon. claimed for entitlement to the vacant possession of the houses, presently under the control of the first respondent/ 5 $\mathcal{L} = \mathcal{L}$ defendant, having bought the same from second respondent/ defendant. The appellant thus successfully claimed for judgment to be made in his favour which according to him contained the following reliefs:- $\sim$

(a) An order of the court, granting him vacant possession

- (b) The permanent injuction: $\sqrt{ }$ - (c) Damages.

$\cdots$

(d) Costs of the suit; and any other relief the court

may deem fit.

Accordingly the appellant claims in this appeal, all the above reliefs which were granted to him as proyed in the lower $\mathcal{L} = \mathcal{L}$ court.

As regards the background to the instant appeal, in brief the following facts do exist on record. The appellant, (plaintiff in court below) based his claim of the onwership 20 of the house in issue, as being founded in the testamentally disposition made to him under the will of his late father -

$\cdots$ ------------------------------------

- which will was pleaded and tendered in the evidence and it is marked in the trial proceedings as the exhibit P1-. But, that same will or document, was by consent of both parties, found to be void on the sole ground that it was not witnessed, as the will or the rights created by it, as an issue any more, but the trial proceeded on their other possible considerations and no- ord'er granting -vacant -possession .oi .a .permanent 10 by law it ⁴ip a requirement. . Consequently the claim of onwership araising from it, was also,,rendered to be void or invalid and abandoned; therefore, the proceedings, did not deal with induction was made. ^t .. £.-•

following issues which are required to. .bo resolved by this court; and they areas follows:- 15 ■\_ *'* >-' t "t; : • According to the memorandum of appeal^' the appellant •J \* listed 5 grounds of appeal,'. J'^hxch^In brief, raised the

- view, But in the appellants\* V ' . ^k it should have been based on the Succession Law and the Judicature Act - S 8;. 1. That the judgment was bf?ed on the Sale of Goods Act, ie S 24 of that Act. - 2. That the widow who was living together with the 20 minor children oftthe deceased, in one of the three houses, were all not considered when the sale of the house was made. - J. That there was a letter from the .administrator were not considered though they, had been brought to the attention of the court. General, conserning that same estate of the deceased, that the contents in the said letter,

//i'f\* had been

In arguing the above grounds wrong , (thy late Mr. Sesanga) the learned counsel for the appellant argued that it was to rely upon the provision of in S 24 of the sale of Goods Act, to justify a sale- whi ch was unl-pful; because

*2.*

$\cdots \cdots$ it had been rightly decided in the same judgment, that the Kibanja and houses in issue belonged to the appellant, yet, instead of declaring the sale of them, to be unlawful or null and void the trial Magistrate merely ordered that the compesation of shs.2,000,000/ should be given to the $\mathsf{S}$ successful plaintiff/arpellant.

$\cdots \cdots$

$\mathcal{O}(\log n)$

$\cdots$

According to Mr. Sesanga's argument the houses in issue comprised of the property of a minor heir, which should not have been sold without first obtaining of either the court's or the Administrator General's consent; but $10$ instead, the houses were sold without that necessary consent $\cdots\, \cdots$ $-3122$ as required by law. The above arguments were intended to $\cdots$ cover both the grounds No 1 and 3 above. But, as regards the ground No 2, Mr. Sesanga, claimed that the welfare of the widow and the children of the deceased who were on the 15 $\cdots \rightarrow$ land in issue, was not considered, instead they were driven $\chi_{\mathcal{S},\mathcal{B},\mathcal{S}}$ $\mathcal{A} = \mathcal{A}$ out by the sale. He finally claimed that the widow was, $\cdots \quad \nu \quad \vdots \quad \nu$ $\cdots$ as a matter of fact, entitled to stay on the Kibanja according to the customary law. $\sqrt{2}$ $\cdot$ $\cdot$ 1.

On the other hand, Mr. Buyondo, the learned counsel 20 for the respondent, urgued that the appellant based his claim on a will, as shown in para 4 of the plaint and which will, was indeed tendered and marked as annexture A to the plaint. $\cdot$ $\cdot$ But, during the trial in the court below, the same will was $\cdots \cdot$ not only discovered but also agreed upon, by both sides to 25 be null and void. Therefore the plaintiff's claim necessarily collapsed as he failed to establish his claim as based in the will. He claim ought to have, been dismissed nevertheless the trial Magistrate made the wrong findings that the property in issue, belonged to the plaintiff. $\therefore 30$

$\mathcal{A} \in \mathcal{A} \times \mathcal{A} \times \mathcal{A}$

......../Mr. Buyonan

Mr. Buyondo went further to urgue that•according to the evidence which was adduced at trial, Mr. Bunjo was the apparent owner of the property in question; because he used to pay the City Council rates,- he used to collect the rent from the tenants and rnly gave .a part., of it to the appelant. 5 Therefore any delegent inspection of the City Counsil Registry by the purchaser\* of ..that property, would not enable the equirer to know any other owner than Mr. Bunjo.

Having listened to the views as reproduced ±ove, my perusal of the pleadings as on record,- confirms to me that 10 the sole claim of the appellant which was stated in the court below is to be found in para 4 of the plaint, which is the claim of the ownership based on *r.-* will, but which will, by consent of both parties, was declared to be null and void. Therefore the claim against both defendants if 15 based in the will, canno.t be sustained any nrofe.

But, the plr.intiff/appellant and the- 2nd defendant/ respondent both.?, being blood relatives of the deceased owner of the houses in issue, then the appellants' claim could possibly be directed to the 2nd-defendant alone, without 20 joining him with the 1st defendant/resroiidont and it will share from the proceeds of a sale but not the houses themselves. It should be based on entitlement as one of the heirs of their deceased father. Unfortunately, no such claim was made. In fact 25 that was the very prayer made by the appellants counsel. Therefore the challenge of the Trial Magistrate's relieance upom the Sales of Goods Act, in my view, not a proper one, a in issue and that the same sold property passed into the be a justifiable claim if it is for a for the Sale of Goods Act was relied upon, becuase there was sale of the property in issue and tnat the same sold property

/ownership

ownership of the purchaser, in .accordance 'with the provisions, in the section of the lav; that was referred to. The application of the section in question, narrowed the possible area and 5 extent of remedies which are applicable to the plaintiff's claim in the suit that was before the court.

Furthermore, ^I have confirmed from the pleadings in court below, that the plaintiff's pleaded claim as contained in para 4 of the plaint, ie. the claim of ownership based in a will. But the same will was tendered in at.tria},,. was by consent of both sides declared to be void. 10 collapse; For that reason, against the purchaser of the houses in issue, could not and can't succed as he disclosed no better title. The 1st defendant was,' according to the evidence that was adduced, 15 confirmed to be a purchaser of value withoutnotice. He had no way of knowing the appelant/;lain tiff claim to the.-, houses in.issue and therefore he acquired of ownership. • a. valid title Ac cordingly the claimed ownership based on that will must of .necessity the appellant/plaintiff claim

20 houses finding - of the -rcourt below; because tnc only foundation of the claim ie. the will, had collapsed. " It .follows .therefore that to say that the Kib.enja and belofkgsr to- th.cs-appellant, would not be a correct..

appellant/plaintiff which I need to comment upon is that 25 to be found in para 6 of the plaint where he pleaded:- The other important and relevant pleading of. the

that at thq. time of the purpd^t.ed sale, -the defendant had not customary holding or Kibnr.ja to the 1st 30 ''The plaintiff will aver title or any authority to sell this same

.... /ucie-nuunt

. J

*5'*

defendant and- the sale--transaction was It vividly appears to are that the above pleadings r.. were I say so because the appellant's counsel <ur.de> prayers as 5 . shown in the typed pr >ceedings page 3/ in his final for the appellant said ii The only issue is whether the property in question belonged to the plaintiff. Mr. Bunjo had austensible' authority and .he dealt with the property as the owner. 10 Mr. Bunjo be condemed to pay the vald'e of the suit property. The property was bought at shs.350,000/ considering the value of the shilling at the .uisuieri.t an award of maximum of shs.² million." null andvoid." i i submission where Mr. Blue, abandoned at the-end of hearing the evidence.

That was the state of pleadings and tlio issues as ¹⁵ reproduced for the proceedings of the court below. It is manifestly shown that the? original prayers for the order for vacant possesion and permanent induction were both abandoned and cannot be resurrected at **this** appeal, ,As Mr. Sesange has raised them in his grounds 20 of appeal. In the final result, this appeal as against the 1st respondent is dimissed with costs to the respondent. houses belong'^ to the ¹ it respondent, but the appellant is entitled to participate in the sharing of the proceed of sale as was suggested in the court 25 below,- from the 2nd respondents.

W. K. M. Kityd

Judge. 12/7/88.

/7

12/7/88: In presence of Mr.- Malinga for the appellant and in absence of Mr. Buyondo for the respondents. Judgment i.s read out and signed.

WinZip W. K. M. Kityo

Judge 12/7/88.