[2024] UGHCLD 232

# TIIE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (LAND DTVISION) CTVIL SUIT NO.462 OF 2013 LUGWAGO CONSTRUCTION COMPANY LIMITED=::: PLAINTIFF !,ERSUS l. HERMAN GASUZE BTIKENYA

(Legal representative of Charles William Buuza) 2. ANNET NANSAMBA 3. ALICE BI.]UZA DEFENDANTS

# BEFORE HON. JUSTICE PHILLIP ODOKI JUDGEMENT

### Introduction:

I

o

[1] The Plaintiff instituted this suit against the Defendants seeking for, a declaration that it is the owner of a kibanja and a house situate at Najjanankumbi Church Zone, Rubaga Division, Kampala District (hereinafter refened to as 'the suit land'); an order that the consent judgment in Mengo Chief Magistrates Court Civil Suit No. 410 of 1996 be set aside; an order of vacant possession of the suit land in is favor; and an order of payment of damages, mesne profit, interest and costs ofthe suit by the Defendants-

# The PIaintilf s case:

[2] The Plaintiffpleaded that on the 106 December 1993 it entered into an agreement with the late Charles William Buuza wherein it purchased the suit land from the late Charles William Burrza n1 a consideration ofUg. Shs. 21,600,000/:. After purchase, it took possession of the suit land and let it out to tenants. In 1996, the 2'd Defendant, a daughter of the late Charles Witliam Buuza, and the 3'd Defendant, a widow of the late Charles William Buuza, instituted Civil Suit No. 410 of 1996 before the Chief Magistrates Court at Mengo against the late Charles William Buuza seeking for, inter ali4 a declaration that they have a right of occupancy ofthe suit land, being the matrimonial home of the 3'd Defendant, and for a permanent injunction to restrain the late Charles William Buuza from evicting the 2nd and 3'd Defendants or in any way interfering with their occupancy. During the hearing of that case, Charles William Buuza died. He was replaced in the suit by the 1"t Defendant, who is his son and administrator of his estate . On the 14d June 2007, the I't Defendant on the one part and the 2"d and 3'd Defendants on the other part entered into a consent judgment in Civil Suit No. 410 of 1996. The terms of the consent judgment were that the 2nd and 3'd Defendants have a right of occupancy of the suit land which is a matrimonial home; the 2nd and 3'd Defendants were to take possession and occupy the house constructed by the late Charles William Buuza on the suit land; and a permanent injunction was issued to restrain the 1\$ Defendant, as legal representative ofthe late Charles William Buuza or anybody claiming from the late Charles William Buuza, from evicting or in any way interfering with the 2nd and 3rd Defendants' right of occupancy of the suit land.

o

[3] The Plaintiff contends in this suit that its purchase of the suit land, from the late Charles William Buuz4 was well within the knowledge of the 3'd Defendant, since in the 3'd Defendant's pleadings in Civil Suit No. 410 of 1996, she disclosed that the late Charles William Buuza had not shared the proceeds ofthe sale ofthe suit land with her and her children. The Plaintiff further contends that the consent judgment was entered into through fraudulent representations of the Defendants. In addition, the Plaintiff contends that as a result of the Defendants actions, it has suffered financial loses and inconvenience for which it seeks for compensation.

#### Defendants' case:

a

[4] The Defendants denied the PlaintifPs claim. The l"t Defendant pleaded that the 3'd Defendant had an equitable interest in the suit land having contributed and participated in its purchase. He further pleaded that the Defendants have at all times been in possession of the suit land. He denied that the Plaintiffexecuted any sale agreement with Charles William Buuza or that the Plaintiff executed any tenancy agreement with any tenant who occupied the suit land. He pleaded that it is Charles William Buuza who rented out the suit land to tenants who paid to him rent. According to him, if the Plaintiff purchased the suit land, the Plaintiffdid so secretly and with knowledge that the Defendants were in occupation and possession ofthe suit land. ln addition, he pleaded that in Mengo Chief Magistrates Court Civil Suit No. 410 of 1996, Charles William Buuza pleaded that he owned the suit land and was in possession of the same. He denied concealing any information at the time of executing the consent judgment. According to him, the Plaintiffis guilty of dilatory conduct because it waited for 6 years before it could challenge the consent judgment.

[5] The 2'd and 3'd Defendants also denied that Charles William Buuza sold the suit land to the Plaintiff or that the Plaintiff took possession or occupation of the suit land by itself or by its tenants. According to the 2nd and 3'd Defendants, at the time of filing Mengo Chief Magistrates Court Civil Suit No. 410 of 1996, Charles William Buuza was threatening to sell the suit land which was in occupation of the 2"d and 3'd Defendants together wrth other family members. The 2"d and 3'd Defendants pleaded that the averment in the plaint in Civil Suit No. 410 of 1996, which is to the effect that in 1993 Charles William Buuza sold the residential house on the suit land and did not share the proceeds of the sale, was an oversight and that is why the plaint was subsequently amended. They denied that the consent judgment was procured Iiaudulently.

#### Asreed facts:

o

[6] The parties filed a joint scheduling memorandum in which they agreed on the following facts.

- That the suit land originally belonged to the late Charles William Buuza. - ll That the 2"d and 3'd Defendants filed Mengo Chief Magistrates Court Civil Suit No. 410 of 1996. The plaint was subsequently amended. - That the parties in Civil Suit No. 410 of 1996 entered into a consent j udgment in which it was agreed that the 2'd and 3'd Defendant should take possession ofthe suit land.

#### Issues:

[7] The following issues were agreed upon by the parties for the determination ofthe court.

- i. Whether the Plaintiffpurchased the suit land from the late Charles William Buuza and if so, whether the sale is lawful. - ii. Whether the suit land is matrimonial property. - iii. Whether the consent judgment entered by the Defendants in Civil Suit No. 410 of ¹⁹⁹⁶ was procured through fraud. - iv. Whether the parties are entitled to the remedies sought in the pleadings.

# Evidence Dresentd:

[8] The Plaintiffadduced 3 witnesses. P. W. I was Samlie N. Lukwago, a director of the Plaintiff and the widow of the late Remegio Lukwago who was the Managing Director of the Plaintiff. P. W.2 was Kamwesi Peter, a resident of Najjanankumbi Church Zone and an alleged member of the Resistance Committee | (RCl) of the zone. P. W.3 was Hellen Namudu, a member of the Plaintiffand daughter of the late Remegio Lukwago. In addition, the Plaintiff adduced l6

documents which were admitted in evidence and marked as EPI - EP16. The l"rDefendant O testified as D. W I and did not adduce any other witness or documents

#### Legal representation and subm issions:

[9] At the hearing, the Plaintiffwas represented by Mr. John Mike Musisi of M/s JM Musrsr Advocates & Legal Consultants. The Defendant on the other hand was represented by Mr. lsaac Ekirapa ofN4/s Ekirapa & Co. Advocates. Upon closure ofthe hearing, the Court gave counsel directives to file written submission, which directives were duly complied with. I have given the submissions the due consideration in the determination of the issues before the Court.

### Burden and standard of oroof:

[10] The burden of proof in civil matters lies upon the person who asserts or alleges. Any person who, wishes the court to believe the existence ofany particular fact or desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he or she asserts, must prove that those facts exist. (See sectton I0I. 102 and 103 ofthe Evidence Act Cao 6 of the laws of Ueanda\ The opposite part can only be called to dispute or rebut what has been proved by the other pNty (See Sebuliba versus Co-ooerative Bank (1982) HCB 129).

[1 1] The standard ofproofrequired is on the balance of probabilities.ln Miller versus Minister of Percions (1947)2 ALL ER 372 Lord Denning stated;

"Thal the degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tibunal can say: 'we think it is more probable than not,' the burden of proof is discharged, if the probabilities are equal, it is not."

# Analvsis and determination of thc Court:

o

[12] Before I proceed to determine the issues in this matter, I note that counsel for the Plaintiff, in his final submission, raised a point of law that the 2"d and 3'd Defendant never appeared in the matter or showed interest in taking part in the proceedings or in the altemative authorized any one particular defendant, in writing, to act on their behalf. According to counsel for the Plaintifl, the failure by the 2nd and 3'd Delendant to appear and testifu imputes an admission to the Plaintiffs allegations against them. In support of his submission, counsel cited Order 1 rule ¹²of the Civil Procedure Rules S. I 7I - I the case of Ma\*ula Inlenntional s. His Eminence Cardinal Nsubusa and another reDort,ed in il982t HCB t ¹ and Fredrick J. X Zaabwe versus Orient Bank Ltd and 5 otherE \$eeLNo. tLp:[2!!6. Counsel lor the Defendants did not make any reply to the submission ofcounsel for the Plaintiff in that regard

[13] In my view the submission of counsel for the Plaintiff is misconceived. First, Order I rule l2 ofthe Civil Procedure Rules, which counsel for the Plaintiffrelied on, deals with a situation where there are more than one plaintiff or defendant. In such a case, one or more of the defendants may be authorized by any other of them, in writing, to appear, plead or act for that other in the proceedings. In the present case, the 2"d and 3'd Defendant filed their pleadings and appeared in court through their advocate in accordance with Order 3 rule I of the Civil Procedure Rules. There was no need for any ofthe defendants to authorize another defendant to represent them in court since they were already represented by an advocate. Order I rule 12 of the Civil Procedure Rules was thus not applicable. Secondly, in their Written Statement of Defense, the 2nd and 3d Defendants clearly denied all the allegations of the Plaintiff. The submission of the counsel for the Plaintiffthat they admitted the allegations of the Plaintiff is accordingly unfounded. Thirdly, there is no law which mandates any pafty to appear in court to give evidence to support their allegations in their pleadings. lt is the duty of the court to

evaluate all the evidence before it to determine whether based on the evidence and the law, judgment should be given in favor ofthe plaintiffor the defendant. The point of law raised by counsel for the Plaintiffis accordingly rejected for not having any merit.

o

# Issue 1: Whether the Plaintiff purchased the suit I from the late Charles William Buuza and if so, whether the sale is lawful

[14] Counsel for the Plaintiff submitted that the testimony of P. W.l shows that the Plaintiff purchased the suit land from Charles William Buuza at a consideration of Ug. Shs. 21,600,000i:. Although Charles William Buuza delayed to sign the sale agreement, he eventually signed it. After payment of full purchase price, Charles William Buuza handed vacant possession ofthe suit land to the Plaintiff. Thereafter, the Plaintiff rented out the suit land to tenants without any objection from Charles William Buuza or any member of his family. As proof that the Plaintiff took possession, P. W.l even signed a Memorandum of understanding with a neighbor ofthe suit land, Prossy Nakibuka, to construct a boundary wall. In addition, in the original plaint in Civil Suit No. 410 of 1996, the 3'd Defendant stated that Charles William Buuza sold the suit land, which position was maintained in the amended plaint and in her aflidavit. According to counsel for the Plaintiff, those pleadings are a clear admission by the 3d Defendant that the suit land was sold by Charles William Buuza in 1993. Counsel submitted that the Defendants did not challenge the authenticity of the acknowledgement of the purchase price by Charles William Buuza (EP5). In counsel's view, much as the Plaintiff failed to find the sale agreement, in law an oral contract is as effective as a written one. For that proposition of the law, counsel relied on the case of John Katarikawe versus l;l/illiam Katarikawe [197T HCB 187.

[5] Counsel for the Defendants on the other hand submitted that the acknowledgment of part payment of the purchase price by Charles William Buuza (EP5) clearly shows that the parties to the agreement had not concluded the terms and conditions of the transaction. Counsel pointed out that the acknowledgement was not signed by the Plaintiff and does not state in definite terms the location, the measurements and the neighbors ofthe suit land. Instead, the acknowledgement provides that the details ofthe agreement were to be in an agreement to be signed on the day of full payment of the purchase price. Counsel for the Defendants argued that this Court cannot enforce a contract which is not fully concluded. In support of his argument, counsel for the Defendants relied on Chitty on Contracts 23'd Edition at oape 43 for the proposition of the law that if the terms of a contract are unsettled or indefinite, there will be no contract. Counsel also relied on the English case of Mav & Butcher Limited versus R tl934l 2 KB 17 for the proposition of the law that lor a court to enforce a contract, there must be a concluded bargain which settles everything that is necessary to be settled

o

[ 6] Counsel for the Defendants further submitted that the evidence ofthe PlaintifFs witnesses does not offer any help regarding the alleged purchase ofthe suit land. According to counsel for the Defendant, P. W. 1 was not present when the alleged payment for the suit land was made and she did not know the measurement of the suit land. P. W.2 did not have any document from the local council to prove that the suit land was sold. P. W.3 did not also participate in the alleged purchase of the suit land. In addition, counsel for the Defendants submitted that P. W. I testified that Charles William Buuza signed a sale agreement but the agreement got lost. Counsel argued that all the oral evidence regarding the agreement is inadmissible under the Evidence Act. On the letter of the Plaintifls counsel regarding the boundaries ofthe suit land (EP8), counsel submitted that when the Plaintiff realized that it could not recover the suit land described in that letter, the Plaintiff changed its position by claiming only a portion ofthe suit land, which was a departure from pleadings not permissible in law.

o

[7] Furthermore, counsel for the Defendant submitted that the purported sale ofthe suit land was unlawful because the Plaintiff did not comply with Section 3 (3) (i) and 4(1) of the Lary! Reform Decree, 1975 which required the seller to give a 3 months' notice to the prescribed authority before sale and Section 4(2) of the same Act which prohibited transactions where customary tenants purported to transfer a legal interest in land.

[18] On the argument of counsel for the Plaintiff that the original plaint in Civil Suit No, 410 of 1996 is proof that Charles William Buuza sold the suit land, counsel for the Defendant submitted that once an amendment is allowed by court, the original pleading is expunged. Counsel further argued that D. W.l explained in his testimony that when they failed to get the land sale agreement, they amended the plaint since there was no proofofsale. On the evidence that the Plaintiff took possession of the suit land, counsel for the Plaintiff submitted that the receipts are not in the name of the Plaintiffbut in the name of S. N Lugwago.

^Il9] In rejoinder, counsel for the Plaintiff submitted that Section 3 (3) (i) and a(1) ofthe Land Reform Decree, 1975 was misinterpreted by counsel for the Defendant. According to counsel for the plaintifT, the sections refer to customary tenure on public land and, not kibanja. ln addition, counsel for the Plaintiffsubmitted that it was the evidence of P. W. I that the certificate oftitle was to be obtained from Buganda Land Board because the suit land is on Kabaka's land, which was restored back to the Kabaka by the Traditional Rulers (Restitution of Assets and Properties) Act Cap247 rn July 1993. Counsel thus argued that the suit kibanja was not subject to restrictions of sale under the Land Reform Decree, 1975.

[20] I have carefully considered the evidence presented by the parties on this issue and the position of the law. I agree with the position of the law as stated by the learned authors of Chiw^ on Contructs 23'd Edition at page 43 that

o

"lt is ^awell established rule lhat the porties must make their own contract, and this means thdt they must aSrge atlO ilr lC!!4; relllt tllfiale\t certaj4ty. lf lhe terms are untellled or indefinite, there will be no contract. " Underlined for emphasis

[21] Furthermore, in the English case of Mav & Burcher Limited versus R where the court was confronted with an issue as to whether or not the terms of the contract were sufficiently defined to constitute a legal binding confiact between the parties, at page 20 Lord Buckmaster stated that:

It has long been a well recognized principle of conlract law that Jn\_agtegugn!. between tuo Dalties to enter tnto dn dpreement in which some critical part of the contract matter is left undetermined is no contract at all. It is of course perfectly possible for two people to conlroct that lhey will sign a document which contains all the relevant terms, but it is not open to them to agree lhat they will in the future agree upon a matter which is vital lo the arrangement between them and has not yet been detelmined. " Underlined for emphasis.

[22] In the same case, at page 21, Lord Viscount Dunedin stated that

"To be a contract there must be a concluded bargain, and a concluded contracl is one which settles evervthinp lhat is necessary to be settled and ledves nothinc to be set ed bv apreemenl between the pdrties. Ofcourse it may leave something which still has to

be determined, but then lhat determinution must be a determination which does nol depend upon the agreement between lhe parlies. " Underlined for emphasis

o

[23] In the present case, P. W.1 testified that, although she was present when the late Charles William Buuza agreed to sell the suit land to the Plaintiff at a consideration of Ug. Shs. 21,600,000/:, her husband, the late Remegio Lukwago, who was the managing director of the Plaintiff, is the one who proceeded with the late Charles William Buuza to the office of the PlaintifFs lawyers where the transaction took place. She did not therefore witness the payment of the instalment of Ug. Shs. 10,000,000/: to Charles William Buuza mentioned in the acknowledgement (EP5) and whatever transpired at the office of Plaintiffs lawyers between the parties. Her testimony regarding what transpired at the office of the Plaintiff s lawyers is therefore only premised on the copy ofthe acknowledgment, other correspondences thereafter and what she was told by the late Remegio Lukwago.

[24] I shall begin with the acknowledgement of the Ug. Shs. 10,000,000/: by Charles William Buuza dated 10d December 1993 (EP5) signed by the late Charles William Buuza in the presence of the Plaintifrs lawyer John Mike Musisi and another person mentioned as Abdalla Mumbya. The acknowledgment states that:

"l CHARLES ,WLLIAM BUUZA hereby do ackrunledge receipt of Slt-r. 10,000,000./: from LUKIIAGO CONSTRUCTION COMPANY LIMITED as parr poymenl of the whole sum ofShs. 21,600,000,/- being lhe purchase price ofa kibanja at Najjanankumbi, ChurchZone, Makindye Division, Kampala District, details whereo are contained in an dpreement to be sisned on the duv of full ent o/ the purchase pnge." Underlined lor emphasis.

[25] The Defendants did not dispute the authenticity ofthis document. I shall therefore assume that it was truly signed by the late Charles William Buuza. From the above document, it is very clear that the late Charles William Buuza intended to sell the suit land to the Plaintiff at a consideration of Ug. Shs. 21,600,000/: and as a matter of fact, he actually received part payment ofUg. Shs. 10,000,000/:. It is also very clear that the details ofthe contract of sale of the suit land was not contained in the acknowledgment but was to be contained in an agreement to be signed on the day offull payment ofthe purchase price.

o

[26] The critical issue that this Court has to determine is whether the agreement that was envisaged in EP5 was ever entered into or signed. The Plaintiffls lawyers in their letter addressed to Charles William Buuza dated 246 February 1994 (EP6) indicated that the full purchase price for the suit land was paid to Charles William Buuza. No evidence was adduced to prove that Charles William Buuza received EP6 or that it was delivered to him. The only person indicated to have received the letter was the Plaintiff.

[27] In EP6, the Plaintifls lawyers indicated that despite receiving the full purchase price, Charles William Buuza had failed to sign the sale agreement despite several reminders and he had continued to receive rent from tenants when the suit land ceased to his property. The letter does to state when and from where the purchase price was paid to Charles William Buuza. No documentary evidence was adduced by the Ptaintiff to prove that Charles William Buuza actually received the balance of the purchase price. I find it rather strange that the balance of the purchase price would have been paid to Charles William Buuza without any acknowledgment from him. This is especially given the fact that in EP5 it was expressly indicated that the details of the contract of sale would be on the day of full payment of the

purchase price and also given the fact that the transaction was being handled by the Plaintiffs lauyers

o

[28] In the same letter EP6, the Plaintiffs lawyers indicated that one of the conditions ofthe contract of sale was that Charles William Buuza was to obtain a Certificate of Title of the suit land in the PlaintifPs name. No explanation was offered as to how that condition came to be agreed upon, from where and whether it was orally or in writing.

[29] P. W.1 testified that she was informed by her husband that later Charles William Buuza signed the sale agreement. This evidence was a complete departure from the Plaintills pleaded case in paragraph 6(c) of the plaint that Charles William Buuza failed to execute the sale agreement despite several reminders. The law on departure from pleadings was well stated in Jnterfreisht Forwatderc (U) Limited versus East African Development Banh (1990 - 1994) EA 117. At page 125, Oder J. S. C stated that

"The system ofpleadings is necessary in litigation. It operates to define and deliver it with clarity and precision the real matters in controversy between the parties upon which they can prepare and present their respective cases and upon which the court will be called upon to adjudicate between them. It lhus serves the do ble purposes of in/brming each party what is the case of the opposite party which will govern the interlocutory proceedings before the lrial and which the court will have to determine at the trial. See Bullen & Leake and Jacob's Precedents of pleading I2th Edition, page j. Thus, issues are formed on the case ofthe parties so disclosed in the pleadings and evidence is directed at the trial to the proofofthe case so set and covered by the issues framed therein. A party is expected and is bound to prove the case as alleged by him and as covered in the issues framed. He will not be allowed to succeed on a

case not so set up by him and be allowed at lhe trial to change his case or set up a case inconsistent with what he alleged in his pleadings except by way of amendment ofthe pleadings. "

o

[30] Be that as it may, a copy of the agreement mentioned by P. W.l was not adduced in Court. It is not known when and from where that agreement was signed. It is also not known the terms in that agreement. I find it rather strange that if indeed the agreement was actually signed, both the PlaintifPs lawyers who handled the transaction and the Plaintiff would not be having a copy of that agreement. P. W.l testified that the PlaintifPs oflice was broken into and the safe containing the sale agreement was stolen. I find it strange that the theft was not reported to the police. P. W.l testified that she only reported it to their lawyers. I do not believe that she told the court the truth in that regard, otherwise why didn't the lawyer of the Plaintiff indicate that fact in the plaint.

[31] In another letter by the Plaintiffs lawyers which was addressed to the Chairman RC1 dated 23'd December 1994 (EP8) they introduced the Plaintiffas the new proprietor of the suit land. The letter does not make reference to any sale agreement or attach a copy. Although P. W.2 testified that the letter was received by the chairman RCI, the copy which was admitted in Court does not bear any acknowledgment by the Chairman RCI to confirm that it was actually received.

[32] In that letter (EP8), the lawyers described the neighbors of the suit land to be, on the right is Miss Nakalanzi; on the left is Mr. Kasirivu; in front is the late Benedicto Kibirige; and behind is Mrs. Tamale Mukasa and Mr. Kizza Joseph. The letter does not indicate how the lawyers of the Plaintiffcame to know the neighbors of the suit land. When this Court visited the locus in

L4

quo, it was very clear that the neighbors ofthe suit land are, on the northem side is Benedicto Kibirige and Fr. Blaze. On the southem side there is the land of Tamale, Kiiza and Kanabi. On the eastem side there is Kibirige and on the westem side there is Nakalanzi, Namusoke and Jolly Bukenya.

o

[33] I found it rather strange when P. W. I and P. W.2 testified that Charles William Buuza did not sell to the Plaintiff his adjacent kibanja which had a house with several rooms and was being occupied by his children. Their evidence fundamentally contradicts the boundary of the suit land mentioned in EP8. When the Court visited the locus in quo, for the first time, P. W.2 mentioned that the kasenene tree and the muwowu tree were the demarcation separating the Kibanja which was sold to the Plaintiffand the kibanja of Charles William Buuza which was not sold. If indeed the neighbors of the land on the eastern side was the unsold kibanja of Charles William Buuza then why was it not indicated in EP8. It was also for the first time, at the locus, that P. W.2 testified that a sale agreement between the Plaintiff and Charles William Buuza was made lrom the office of the Plaintifls lawyers, the agreement shows the boundaries ofthe suit land and that he was the one who made the agreement. I found that evidence strange because P. W.2 had not given similar evidence in court (in his witness statement, during cross amination and in examination in chief).

[34] The purpose oflocus visit is to enable court to check on evidence given by the witness in court and not to fill gaps in their evidence. See: the case of Mukasa ve'rsus Ugand.a (1964) EA 698 and the case of Fernandes versus Noroniha 11969l EA 506. The evidence of P. W.2 regarding the boundary of the suit and the agreement of violate the law on locus visit and is accordingly rejected. Be that as it may, D. W.1 testified that the trees which were indicated by

- PW2 as boundary marks were planted in 1999 or 2000. I have believed D. W.l's evidence O because even in EP8 those boundary marks were not mentioned.

[35] I have also considered the fact that when Charles William Buuza filed his Wifien Statement of Defense in Civil Suit No. 410 of 1996 (EP4), more than 2 years after he was alleged to have received the full purchase price, he did not indicate in his defence that he entered into a contract selling the suit land to the plaintiffor that the full purchase price for the suit land had been paid to him. As a matter of fact, he stated that he was the sole owner of the suit land which was being occupied by the current Defendants against his will.

[36] I have not found merit in the submission of counsel for the Plaintiffthat there was an oral contract between the Plaintiff and Charles William Buuza. That argument is not supported by any evidence. It is unknown when and from where the alleged oral contract was entered into. No witness was adduced by the Plaintiff who testified that he or she was present when the alleged oral contract entered into. There is also no evidence of the terms of the oral contract. P. W.1 was not in the office of the PlaintifFs lawyers where the transaction took place. P. W.2 only got to know of the dealing between the Plaintiff and Charles William Buuza after EP8 was written by the Plaintiff s Layers. P. W.3 was equally not present at the office the Plaintifls lawyers where the transaction took place. EP5 clearly shows that the parties intended that the contract was to be in written form. No evidence was adduced to prove when and why that intention changed to make an oral contract. If indeed there was an oral contract then why did P. W. I testifu that Charles William Buuza signed the contract.

[37] I have also not found merit in the submissions of counsel for the Plainfiff that Charles William Buuza handed vacant possession of the suit land to the Plaintiff or that the Plaintiff

L6 rented out the suit land to tenants. In the alleged letter ofthe Plaintiffs lawyer addressed to the tenant called Kayibanda, demanding that he pays rent to the Plaintiff (EP7), it was indicated that the Plaintiff purchased the suit land from Charles William Buuza on the 296 December 1993 and yet the Plaintiff pleaded that it purchased the suit land on the 10s December 1993. No evidence was adduced in Court to prove that Kayibanda actually received the letter or that it was actually delivered to him. The only person who was indicated to have received the letter was the Plaintiff. No evidence was adduced to prove that Kayibanda actually paid rent to the Plaintiff and if so, how much.

o

[38] On the alleged Memorandum of Understanding which was signed between P. W.1 and Prossy Nakibuuka dated 2'd October 2002 (EP9) allegedly giving permission to Prossy Nakibuuka to construct a wall fence at the boundary of the suit land, it does not prove that the Plaintiff took possession of the suit land. First, in the letter of the Plaintifls lawyers to the chairman RCl(EP8), Prossy Nakibuuka was not indicated as a neighbor of the suit land. Secondly, although P. W.2 at the locus in quo testified that Prossy Nakibuuka was a neighbor to the suit land from the southem side, D. W.l testified that the neighbor to the southem side of the suit land were Tamale, Kiiza and Kanabi. Prossy Nakibuuka was not mentioned. In my view the version of D. W.l is more probable because even in EP8 it was indicated that the neighbor behind the suit is Mrs. Tamale Mukasa and Mr. Kizza Joseph and not Prossy Nakibuuka. Thirdly, EP9 was allegedly witnessed by the LCI chairman called B. B Katongole but without any stamp of the LC1. In my view, EP9 was merely created to mislead this Court.

[39] The other person who was alleged to have been the tenant of the Plaintiffwas Pamela M. Amwanyi. However, the alleged tenancy agreement which was adduced in court dated 28th July 2003 (EPl3) is between S. N Lukwago and Pamela M. Amwanyi. The Plaintiffis not a party to that tenancy agreement. The residential premises in that agreement is stated to belong to S. N. Lukwago and not the Plaintiff. The other alleged tenant ofthe Plaintiffwas Geoffrey Kugonza. However, the receipt dated 106 February 2006 (EP14) where he allegedly paid rent for February and March 2006 does not show that the rent was being paid to the Plaintifl It is unknown which property he was paying rent for. The receipts to Winston Primary School dated l3e March 2007 and 20n August 2007 (EPl5 and EPl6 respectively) do not also bear the name ofthe Plaintiffand they do not also indicate the property they were paying rent for.

o

[40] In addition, P. W.l testified that in early 2008, the owner of the school informed her that the school was evicted and yet it took the Plaintiffmore than 5 years to institute this suit. I find it rather strange that the Plaintiff could have taken that long ifindeed it was its tenant who was evicted from the suit land. I have found the explanation of P. W.1 that she got confused by the development that is why she did not take action unbelievable because the Plaintiffhad a lawyer. Furthermore, I found it strange that for all the years the plaintiffalled that it was possession of the suit land it had no utility brll in its name. P. W.l testified that she did not have any utility bills from the suit land which was in the name of the Plaintiff. D. W. I on the other hand testified that when he interacted with tenants in the building on the suit land, they said they rented the property through a broker and did not know the owner of the house- In the absence of any credible evidence creating a nexus between the tenants and the Plaintiff, I find the evidence of D. W.1 more credible.

[41] Furthermore, I have not found the pleadings ofthe 3'd Defendant in Civil Suit No. 410 of 1996 ofany probative value in the determination ofthis issue. The original plaint(EPl) which was filed in court on the 56 June 1996 was amended and therefore ceased to be the pleading to the 3'd Defendant. The Amended plaint which was filed on the 20u November 1997 (EP2) stated that Charles William Buuza was threatening to sell the suit land and to evict the 2nd and 3'd Defendants. As for the 3d Defendant's affidavit dated 4'1' May 1996 (EP3) wherein she indicated that in 1993 Charles William Buuza sold the suit land at Ug. Shs. 22,000,0001:, evicted them and they shifted to the boy's quarters of4 rooms where they stayed until 13n April 1996 when Charles William Buuza took thugs who demolished the house with the exception of only one room, that affidavit it does not prove any valid contract between the Plaintiff and Charles William Buuza. The 3'd Defendant did not state in the alfidavit that the suit land was sold to the Plaintiff. She did not state that after being evicted, tenants of the Plaintiff occupied any building on the suit land. D. W 1 testified that they heard from rumors that Charles William Buuza sold the suit land.

o

[42] From the above evidence, it is very clear to me that although Charles William Buuza intended to sell the suit land to the Plaintiff, the bargain was not concluded on the day EP5 was signed by him. The details of the confract were to be contained in an agreement which was to be signed on the day offull payment ofthe purchase price. No such agreement was ever signed. In the absence ofthe agreement that was to be signed, vital terms ofthe agreement such as the size ofthe land to be sold, the neighbors ofthe land and when he was to give vacant possession were not agreed upon. The terms of the contract were not sufficiently defined to constitute a legally binding contract between the parties. I therefore find that the Plaintiffdid not purchase the suit land from the late Charles William Buuza.

[43] Having made that finding that there was no binding contract between the Plaintiff and Charles William Buuza, I consider it inconsequential to proceed to determine whether the alleged sale was subject to the restrictions of sale under the Land Reform Decree, 1975 and whether the Decree was complied with.

Issue 2: Whether the suit land is matrimonial DroDerty

o

[44] Counsel for the Plaintiff submiued that the suit land was purchased by the Plaintiffin ¹⁹⁹³ five years before the Land Act Cap 227 came into force. According to counsel for the Plaintiff, there was no law at the time that would prevent Charles William Buuza from selling the suit land. In the altemative, counsel for the Plaintiff submitted that at the time the suit land was sold to the Plaintiff, it had long ceased to be family property since the 3'd Defendant had separated with Charles William Buuza and it was rented out.

[45] Counsel for the Defendants on the other hand submiued that a matrimonial property is the place where both spouses decide to call home and which they jointly contribute to it. In support of his submission, counsel relied on that case of John Tom Kintu Muwanga versus Mvlliotus Gafabusa KintuHigh coun Divirce Appeal No. 135 of 1997. Counsel argued that in the present case, P. W.l, testified that Charles William Buuza built on the suit land a 3-bedroom house with boys' quarters behind it where his mother and siblings stayed since childhood. He further testified that on numerous occasions Charles William Buuza stated that the 3'd Defendant contributed financially towards the purchase of the suit land. According to counsel for the Plaintiff, the 3'd Defendant acquired an interest in the suit property as matrimonial property and had the Plaintiffcarried out any investigations prior to the purported purchase, the Plaintiff would have discovered that fact.

[46] I note that case before this Court is not a divorce matter or succession dispute where the issue of matrimonial property would have been relevant. ln addition, at the time the alleged sale took place, that is on the l0t December 1993, the restrictions to sell land similar to those under section 39 ofthe Land Act,Cap227 was not in place. The court in the c ase of John Tom Kintu Muwanga cited by counsel was dealing with distribution property in a divorce appeal.

In my view therefore, this issue was wrongly introduced in this matter. It is accordingly struck out under Order l5 Rule 5 of the Civil Procedure Rules.

o

Issue 3: Whether the consent iudsment entered by the Defendants in Civil Suit No. 410 of 1996 was proc throush fraud.

[47] Counsel for the Plaintiff submitted that the evidence on the court record, shows that at the time the consent judgment was entered into, it was well within the knowledge of the Defendants that the Plaintiff had already bought and was in occupation of the suit land. The consent judgment was based on falsehood and concealment of that vital information to the Court. According to counsel for the Plaintiff, the consent judgment was entered into to deny the Plaintiffof its right to the suit land. Counsel prayed that this court should set aside the consent judgment.

[48] Counsel for the Defendants on the other hand submitted that the suit by the Plaintiff challenging the consent judgment is baned by limitation since the consent judgment was entered into on the 14s June 2007 and seated by the court on the 296 August 2007 and yet this suit was filed l2u September 2013 a month after the limitation period of 6 years set under Section 3(l) of the Limitation Act Cap 80.

[49] Counsel for the Defendants further submitted that the procedure adopted to challenge the consent judgment is erroneous and cannot be sustained in law. According to counsel for the Defendants, the right to set aside a consent judgment based on misrepresentation and fraud is only exercisable by parties to the consentjudgment and not strangers to the Consent Judgment. Counsel argued that there was no misrepresentation to the Plaintiff since it was not a party to Civil Suit No. 410 of 1996.

[50] In rejoinder, counsel for the Plaintiff submitted that Section 25 of the Limitation Act, provides that where a cause ofaction is based on fraud ofthe defendant, the period of limitation does not begin to run until the plaintiff has discovered the fraud. Counsel argued that in the present case, the Plaintiff discovered the fraud after the consentjudgment. In addition, counsel for the Plaintiff submitted that this case is for recovery of land for which time limitation is l2 years and not 6 years as argued by counsel for the Defendants.

t

o

[51] On the procedure adopted in challenging the consent judgment, counsel for the Plaintiff submitted that any person aggrieved by the consent j udgement, even ifthey were not parties to the suit, have a right to pursue their rights in the Courts of law. For that proposition ofthe [aw, counsel relied on the case of Mohamed Allibhai vercus l/,E Bukenva Mukasa Saorem Court Civil Aooeal No. 56 of 1996.

[52] I agree with counsel for the Plaintiff that any person aggrieved by a consent judgement, even ifthey were not parties to the suit, have a right to pursue their rights in the Courts of law. The party aggrieved by the consent judgment, who was not a party to the suit, may file an application for review ofthe consentjudgment before the same court which entered the consent judgment under Section 82 of the Civil procedure Act and Order 46 rule I of the Civil Procedure Rules. See the case of Mohamed Allibhai cited above The other remedy available to the aggrieved party who is aggrieved by the consent judgment and yet that party was not party to the suit, is to file a separate suit for that purpose. See the case of Wasike versus ll/amboko 11976 - I9E2l I EA 625 (CAK). I must add that such a suit has to be filed before the same court which entered the consent judgment. If the consent judgment is entered by a magistrate, as was in the instant case, the separate suit seeking to set aside the consentjudgment has to filed before the same court that entered the consent judgment and not before a High

Court. This is because, a decision of the magistrates can only set aside by the High Court on appeal under Section 220 of the Magistrates Courts Act or by revision under Section 83 of the Civil Procedure Act and not by a separate suit. If the consent judgment is entered by the High Court, the suit has to be filed in the High Court and not in the magistrate's court given that the magistrates court cannot set aside a consent judgment entered by the High Court. In my view, part of the Plaintiffs suit seeking to set aside the consent judgment which was entered by a magistrate in Civil Suit No. 410 of 1996 was wrongly filed before this court.

## Issue 4: Whether the oarties are enfitled to the remedies sought in the Bleadings.

[53] In the end, having found that there was no binding contract between the Plaintiff and Charles William Buuza; that the Plaintiffdid not purchase the suit land; and that the Plaintifls suit seeking to set aside the consent judgment entered by a magistrate in Civil Suit No. 410 of 1996 was wrongly filed before this Court; this suit is accordingly dismissed with costs to the Defendants.

I so order

o

I

Dated this 13s day of September 2024

lqP n

Phillip Odoki JUDGE.