[2025] UGHC 313

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KABALE CIVIL APPEAL NO. 031 OF 2023 ARISING FROM LAND SUIT NO. 082 OF 2016

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**VERSUS**

KAMUKAMA DIDAS ::::::::::::::::::::::::::::::::::::

## JUDGMENT OF HON. JUSTICE KAROLI LWANGA SSEMOGERERE

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# **Brief Facts:**

This is an appeal from the judgment and decree of the Learned Trial Magistrate, Grade I, Olupot Paschal of the Kabale Chief Magistrate's Court dated November 2, 2023 in a suit between the parties over ownership and use of the suit land.

In 2016, in Land Claim No. 82 of 2016, before the Chief Magistrate's Court at Kabale, the respondent sued the appellant for recovery of land situated in Kabindi Cell, Bushuro Parish, Kitumba Parish, Kabale District. Respondent sued for a declaration that he was the rightful owner of the suit land, a permanent injunction restraining the appellant her agents, assignees from trespassing on the suit land and asserting ownership of the same; special and general damages and costs of the suit.



- The respondent's cause of action allegedly arose from a sale of land from $\overline{5}$ one Nsingwire Alphonse (the "seller") on March 16^th, 2015 for a consideration of UGX 6,000,000, at the execution of which UGX 5,000,000 was paid as part consideration. The balance of the consideration. amounting to UGX 1,000,000 was paid to a one Hilda Musekura. That the respondent at the time of purchase inquired about whether the seller was 10 married or not. And the seller, his other children, neighbors and LC authorities confirmed to the respondent that the seller had been separated for over 17 years, and that the appellant had married another man. At the time of sale, it was alleged the appellant was not living in the home. - Subsequent to the sale, the respondent assumed immediate possession and 15 use of the suit land after paying the balance of the purchase price and planted crops on the land without any disturbance from the seller. The respondent installed a temporary fence on the suit land. - Upon the seller's death, the appellant entered the respondent's land $20$ claiming it was hers, and had in her possession an agreement dated May 13^th, 1983. She alleged it was her own property, and did not constitute part of the estate of her late husband. Respondent denied the veracity of the said agreement, alleging it was a forgery, and in the alternative that the respondent was a rightful owner who had bought the same for valuable $25$ consideration. Respondent sued for lost use, damage to his crops, general damages and men se profits.

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- In his judgment delivered on November 2, 2023, the learned Trial $\mathsf{S}$ Magistrate found for the respondent, after determining the first of the two issues in his favor: - Whether or not the sale agreement between the appellant and $(i)$ respondent was lawful; - 10 - $(ii)$ Whether the appellant was the widow of the seller, Alphonse Nsingwire;

In his judgment, the learned Trial Magistrate found the following relevant facts. First, he found at pages 4 and 5 of his judgment that there was a sale agreement between the respondent and the deceased seller ("PEX 1"). He also dismissed the appellant's contention the agreement was void due to lack of spousal consent a requirement under Section 39(1) of the Land Act, Cap 237 (formerly Cap 227) (the "Land Act"). He found that the condition precedent for spousal consent required establishment of the following namely:

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"That the spouse ordinarily resides with his or her spouse, and that the land on which they reside must be the source of their sustenance"

This finding came from the summary of the appellant's evidence at page 5 of his judgment where the appellant stated that she did not reside on the suit land, rather that she resided in Gangu, Busabaala, Wakiso District while her husband, the seller lived in Kabale district. Second, the learned Trial Magistrate found that neither of the appellant's children lived in Kabale district. It was also a finding of fact, based on a locus visit conducted on February 17^th, 2023, that there was no house of residence on the land. In cross examination, the Magistrate at page 6 also found that the appellant admitted that her deceased husband, the seller bought the suit land in 1983.

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- He also found that neither the appellant nor her dependent children of $\mathsf{S}$ majority age were ordinarily resident on the suit land. In conclusion, he decided the first issue in favour of the respondent, finding the transaction did not require spousal consent under Section $39(1)(c)(i)$ of the Land Act. - In resolving the second issue, the Learned Trial Magistrate found that the 10 Appellant was married to the deceased seller based on her testimony. He found at page 6 of his judgment that the seller married the appellant in 1975, and had paid dowry. He also found that at the time of the seller's 1983 purchase, the appellant and deceased seller were married. He also found that the marriage continued to subsist at the time of sale, and that the 15 appellant was therefore a widow of the deceased seller. The learned Trial Magistrate found the allegation of separation inconsequential to the finding that the appellant was married to the deceased. In any event, the facts that were relied on by court did not establish a requirement for spousal consent under Section $39(1)(c)(i)$ of the Land Act. $20$

The Learned Trial Magistrate determined the suit was in favour of the respondent, declared him rightful owner of the suit land, issued a permanent injunction and awarded general damages to the respondent. He also issued an eviction order directing her and her agents to vacate the suit land and costs to the respondent, hence this appeal.

The appellant framed 3 grounds of appeal. These are:

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- 1. The Learned Trial Magistrate erred in law and fact when he held that the suit land belonged to the respondent, whereas not, contrary to the evidence on record. - 2. The learned Trial Magistrate erred in law and fact when he came to a conclusion that the transaction between the Respondent and the deceased husband of the Appellant was lawful and didn't require spousal consent contrary to the evidence on the record thereby occasioning a miscarriage of justice; and - 3. The learned Trial Magistrate erred in law and fact when he failed to properly evaluate the entire evidence on the record contrary to the overwhelming evidence on the record thereby occasioning a miscarriage of justice.

### Representation:

The appeal was argued by M/S Beitwenda & Co. Advocates, for the appellant. M/S Mutungi & Co. Advocates represented the respondent. Both $20$ parties proceeded by way of written submissions.

#### Oral argument:

On May 14, 2025, respective counsel appeared before me and adopted their arguments for resolution by court. 25

#### Background:

It is settled law as specified by the appellant that it is the duty of the first appellate court to reappraise the evidence and make its own inferences on


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issues of law and fact, this is the central holding in Kifamunte Henry v $\mathsf{S}$ Uganda Supreme Court Civil Appeal No. 10 of 1997.

In Beyanga Apollo v Lucia Baryezo Babyayanga and another 2025 UGHC 180 decided April 15, 2025, this court using the rationale in Kifamunte set forth the duty of the first appellate court to evaluate evidence on the record and make its' own conclusions.

#### Discussion and Analysis: Analysis: Analysis to the threat that the bad bad.

I now turn to the resolution of the appeal.

Appellant argued the first and third grounds together. These are: 15

Issue 1: The Learned Trial Magistrate erred in law and fact when he held that the suit land belonged to the respondent, whereas not, contrary to the evidence on record.

Issue 3: The learned Trial Magistrate erred in law and fact when he failed to $20$ properly evaluate the entire evidence on the record contrary to the overwhelming evidence on the record thereby occasioning a miscarriage of justice.

In support of their position, Counsel for the appellant argued that it was $25$ the duty of the respondent to establish whether the suit land was a family land which required one to have spousal consent. The appellant attacked the lack of due diligence, and lack of involvement of the LC authorities in the purchase. They also found the evidence of the final payment contradictory in material terms; to the effect that part of this payment went 30 to the brokers or mobile money or a one Hilda. They summed up their $\mathsf{S}$ argument by citing the mistake of court in finding there was a genuine transaction with grave inconsistencies in the evidence. In support of their proposition, appellant's counsel cited the decision of the Court of Appeal. Twehangare Alfred versus Uganda, Criminal Appeal No. 139 of 2001.

The respondent supported the findings of the Trial Magistrate, stating he had properly evaluated the evidence adduced by the parties. Respondent relied on the appellant's evidence to the effect that she had been a resident of Gangu cell, Busabaala in Wakiso district for about 15 years.

It is noteworthy that appellant's testimony if believed entirely, would mean that at the time of trial she would have been resident of Busabaala from 2007, which was at least 8 years from the date of the transaction on the land. I agree with the respondent's position, as the material dates relevant to the transaction, namely the transaction in which the seller sold the suit land to the respondent in 2015, and the date of the respondent's residence in Wakiso starting from 2007 if her evidence was based in the most favorable light, to be neither close. Rather they were consistent with the other findings by the Trial Magistrate, to effect that (a) the appellant did not ordinarily reside on the suit land; (b) neither did she have dependent children of majority age resident on the suit land. I also found that the locus visit conducted during trial did not find any residence on the suit land.

I agree with the material findings of fact by the Learned Trial Magistrate, minor contradictions notwithstanding pointed out by the appellant. 30


## Accordingly, Grounds 1 and 3 must fail. $\mathsf{S}$

## Ground $2$ :

This ground was to the effect that:

The learned Trial Magistrate erred in law and fact when he came to a conclusion that the transaction between the Respondent and the deceased husband of the Appellant was lawful; and didn't require spousal consent contrary to the evidence on the record thereby occasioning a miscarriage of justice.

This ground raises a matter of law, and ideally should have been argued 15 first. Section 38A(4) of the Land Act protects family land. Section 38A(4) states that the term ordinary residence means,

"A place where a person resides with some degree of continuity apart from accidental or temporary absences and a person is ordinarily resident in a place when he or she intends to make it his or her home for an indefinite period."

In support of their position, the appellant states in their appeal that DW2, DW3 and DW4 testified to court that the Appellant and her late husband leased to them suit land in 2012. This act of leasing according to the appellant was a form of sustenance for the couple. Further, the appellant argued that the failure of the respondent to conduct due diligence was fatal. Also, the appellant impeached the admission of the sale agreement by observing that the Local Council leaders did not witness the sale agreement between the respondent and the deceased. Lastly, the appellant argued the finding by the Trial Magistrate that the appellant and the deceased were



separated was not supported by specific evidence contrary to Sections 101, $5$ 102, 103 and 106 of the Evidence Act.

The respondent in their arguments reaffirmed the Trial Magistrates' finding that the suit land was not the ordinary residence of the appellant, nor did the family derive sustenance from the suit land at the time of sale. Further, as a point of law, the respondent argued that whether the appellant and the deceased were separated is irrelevant under Section 38A of the Land Act. It appears to me, there is a genuine misapprehension of the objectives of the Land Act, to protect family land as a source of livelihood and the laws pertaining to marriage which define matrimonial property for the purposes of distribution in event of separation and divorce.

This issue is at the core of this appeal, where you have an estranged couple and Counsel would have greatly assisted court in framing this issue differently. For example, *does the finding the suit land is matrimonial* property result in a different outcome?

The record already establishes that the suit land was not family land under Section 38A of the Land Act. However, the record ignored a possible determination that the suit land could also be matrimonial property, in 25 which the appellant regardless of the uncontroverted facts of her residence could claim an equitable interest.



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A Ugandan decision, Kintu v Kintu Divorce Appeal No. 135 of 1997, 2001 $5$ **UGHC 46** provides some guidance on this material fact. Bbosa J., as she then was said as follows at page 12 stated:

> "Matrimonial property may be acquired by acquired by each spouse separately before and during marriage."

The law on matrimonial property is not concerned with contribution per se, 10 but rather equity. Death ends marriage, which happened in this case.

Bbosa J., then proceeded to find persuasion in the Kenyan landmark divorce case, Kivuitu v Kivuitu Civil Appeal No. 26 of 1985, a Kenyan Court of

Appeal (Supreme Court) decision, which stated a "wife does contribute to 15 the family in a thousand ways including child bearing, looking at the family etc."

The failure by the Trial Magistrate to consider this aspect independently of the issues framed by the parties occasioned a miscarriage of justice and the absence of LC officials as witnesses, weakens the case for the respondent.

Having found especially in his judgment that the appellant was married to the deceased, the learned Trial Magistrate could have invoked his powers to determine that the dispute between the parties as properly belonged to an Administration Cause rather than a law suit declaring rights to land.

The potential finding that the land was matrimonial property introduced a claim adverse to the respondent's rights under an uncontested sale agreement. However, absent a grant of letters of administration being

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specifically pleaded, I find it impossible to award the land to either party, $\mathsf{S}$ without a properly developed claim. It is possible that in event of marital separation, subject to Section 26(1) and (2) of the Succession Act, Cap 268, the appellant may or may not be entitled to anything from the deceased's estate, as a matter of law, but the correct entitlement or share, is not in the suit or appeal before me. 10

Comment:

This is an appeal where proven facts potentially have different outcomes under the laws of Uganda. Widows, separated from their husbands find that they are no longer dependents under the succession laws, yet they have recourse if they did not cause the separation under Section 26(2)(c) of the Succession Act, Cap 262.

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Courts must be very cautious in introducing family issues in land matters, avoiding the detailed procedures in the laws governing marriage or succession; in event of death which must be harmonized with the laws governing land.

## Findings and conclusion:

- 1. I allow the appeal. - 2. Each party to bear their own costs in this court and the court below.

I make the following orders:



- 1. This matter is remanded to the Chief Magistrates' Court to allow an application be made for proper administration of the estate of the deceased. - 2. This administration cause will allow both the appellant and the respondent to make their claims.

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I SO ORDER.

DATED AT KABALE this $\frac{21^{5}}{4}$ day of MAY 2025 $\mathbf{1}$ $09.0918^{-1}$ SSEMOGERERE, KAROLI LWANGA JUDGE.


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