[2025] UGCA 214

## THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL dr uonuon HoLDEN AT FoRTPoRTAL

[Coram: Dr. F. Zeija, DCJ, borion-Barish aki, E. N ambayo, J J A.l

#### CIVIL APP EAL NO.0108 0F 2017

RWAKARARA JOSEPH .......... APPELLANT

## VERSUS

## 1. NAGAYIANNET

2. BEN BROWN ........ RESPONDENTS

(An appeal arising from the decision in the February 2, 2017 in Civil Suit No. 0022 of 20 lnrr roun o, unrnda at Fod Portat ()yuko-Oiok J,) dated

## JUDGMENT Oi DR. FLAVIAN ZEIJA, DCJ

# lntroduction ]

- l1l This is an appeal against tne Oefision of Hon. Justice Oyuko Anthony Ojok in Civil Suit N0.0022 ot2011,the 1'r resfondent brought that suit against the appellant and the 2no respondent. - 121 The subject of the original suit vias a house on Plot No.3, Bamwuitirebye Avenue, Bundibugyo Town Council in aufOinugyo District occupied by the respondents and alleged to have been purchased py the appellant. The High Court decided the suit in favour of the 1sr respondent.

### Background

t31 ThelsrespondentfiledCivil SultNo.0022of 201 l intheHighCourtof Ugandaat Fort Portal against the aROellantland the 2nd respondent. The 1( respondent sought inter alia a declaration that the fale agreement between the appellant and the 2no respondent made on 22to April f010 was null and void because the 'l\$ respondent as the wife of the 2.0 ,esponden!did not consent to the sale.

Page 1of 15

- t4l The 1,t respondent averred that fn the 26th of August 2010, she received a letter in copy from Upcountry Associates 0ourt Bailiffs that the 2no respondent and the entire family stood to be evicted from their house at Plot 3. Bamwuitirebye Avenue, Bundibugyo. That the letter stfulated that the 2nd respondent had sold the 'commercial house'to the appellhnt on the 22tu April 2010 at UGX. 66,000,000/=. The 1,t respondent contended that she was not aware of the sale of the matrimonial home by the 2nd respondent. - t5l ln his written statement of defen\*, the 2nd respondent averred that he sold the suit property to the appellant due to pressing demands for money, That after the sale, the 1,t respondent objected to handover the suit property to the appellant. The 2"0 respondent offered to refund the lppellant's money which he refused. Subsequently, the appellant instituted criminal pioceedings vide Criminal Case No. 22612016. Ihe 2d respondent was tried for the offence of obtaining money by false pretences, convicted and senlenced to 36 mpnths' imprisonment. - 161 The appellant, on the other han[, stated in his written statement of defence that spousal consent though not nece\$sary was sought from the I't respondent. That she signed the agreement made befre the LC1 Executive Committee of Kaiambura, Further that a formal agreement vtas also made before a lvlagistrate and the property was then transferred and registered in the names of the appellant. The appellant also filed a counter-claim seeking (anlong others) an order for vacant possession of the suit property. - l7l The trial J udge found in favou r of the 1't respondent and held that the suit property was family land where spousal consent ought to have been obtained. Further that the signature of the 1s respondent was forged, as such, spousal consent was not obtained. The trial Judge held thqt the sale was illegal, null and void, and ordered the 2d respondent to refund UGX 66;000,000/= to the appellant, being the consideration paid for the suit property. The tdd Judge also cancelled the Certiflcate of Title as there was no valid sale of the sui{ land.


Page 2 of 15

### Grounds of the appeal

- I8l The appellant was dissatisfied wit grounds; h the decision and filed this appeal on the following - 1. The trial JudSe erred whf respondent were legally rq rn he held that the 1st respondent and the 2nd arried whereas not. - 2. The learned trial Judge erred when he held that the suit property did qualify as family land whe consent ought to have been obtained whereas it did not qualify as family and where consent was necessary. - 3. The learned trial Judge ^e when he held that the signature of the 1\* respondent on the sale agreement between the 2no respondent and the appellant was forged whereas not. - 4. The learned trial Judge erred when he held that the sale of the suit land was illegal, null and void whereas it was valid and legal. - 5. The learned trial Judge certificate of title be cance erred when he ordered that the appellant's led when there was no legal basis for doing so. - ⁶ The learned trial Judge erred when he ordered that the appellant be restrained from evicting the 1.t respondent and her children from the suit land. - ed when he ordered the 2nd respondent to pay I on the purchase price. 7. The learned trial Judge en the appellant interest of 60/ - ld when he held that the 2nd respondent should chedule for the purchase price which holding rf justice. 8. The learned trial Judge erru only produce a payment st occasioned a miscarriage {

Page 3 of 15

- 9. The learned trial Judge er when in arriving at the wrong conclusions failed to properly evaluate the evidence on record. - {91 The appellant sought the followin orde rS - 1. The appeal be allowed with osts - 2. The decision of the lower court be set aside and be substiluted with an order dismissing the '1't respondent's suit with costs. - 3. The appellant's counter-clai in the lower court be allowed with costs

#### Representation

[10] At the hearing, Counsel for the appellant M/s Ngaruye Ruhindi, Spencer & Co. Advocates though duly served wlre absent. The 1\$ respondent was represented [r/r. Rwatooke Mugisha Richard an{ 2nd respondent by Mr. Bwiruka Richard of lV/s Kaahwa, Kafuuzi, Bwiruka & Co. Advocates. All the parties filed conferencing notes which were adopted as their written submissions,

#### Case for the appellant

[11] ln the written submissions, Coun from the date of sale- 22N April2 p'I0 till payment in full el for the appellant submitted that the trial Judge only considered evidence of the respondents and did not consider the evidence adduced by the appellant and thereby came to wrong findings. Counsel prayed that the appeal be allowed, the decision of the lower court be set aside and substituted with an order dismissing the 1st respondent's suit with costs. Further that the respondents be ordered to pay mesne profits at a rate of UGX 500,000/= per month

#### Case for respondents

#### First respondent

ply, submitted that the appellant in all his pleadings [12] Counselforthe lst respondent in re

Page 4 of 15

did not contest the maniage be en the respondents, Further that the evidence of the customary and Christian marri that the trial Judge rightly evalua was undisputed at trial. Counsel also submitted the suit property was family land ere spousal consent was required in accordance with the Section 39 of Land Amenhment Act, 2004. That the Land Regulations, 2004 prescribe the form for consent ny [pou.... ed the evidence and came to the conclusion that

#### Second respondent

- ['13] Counsel for the 2d respondent submitted that the respondents testified that they got married on 29rh November, 2003 at Bugombwa Catholic Church and a copy of the Marriage Certiflcate was identified as PlD1. Further that the pleadings of both parties refened to the respondents as spouses. Therefore, this fact was undisputed. - [14] Counsel fufter submitted that the suit property comprised in the matrimonial home as well as a business area where the 1't respondent had a shop. That the suit property was family land for which spousal consent in the prescribed form was required. Counsel also stated that the app second respondent, who was con obtaining money by false preten( claiming there was consent obtairi rellant instituted criminal proceedings against the victed and sentenced to 3 years imprisonment for :es and therefore the appellant is estopped from ed from the 1't respondent.

#### The duty of the first appellate court

- l15l The Judicature (Court of Appel provide that; ll) Directions Sl 13-10 of2000 under Rule 30 (1) - (1) On any appeathom a decision I jurisdiclion, the couft may- (a)reappraise the evidence and dl t the High Court acting in the exercise of its otiginal 'aw inferences of fact; and (b)in its discretion, for sufficie r\$son, take additionat evidence or dhect that additional evidence be taken by the tial cot+l or by a commissioner.


Page 5 of 15

[16] lt is well settled that on a first bppeal, the parties are entitled to obtain from the appeal court its own decision on issues of fact as well as of law lt is the duty of the first appellate court to rehear thg case on appeal by reconsidering all the materials which were before the trial cour]t and make up its own mind (see,' Fr. Narsensio Bemugisa & 3 Others v Eric (bebaga SCCA No. 17 ot2002 [20041 KARL ²³⁶ AT 241).

#### Consideration of the appeal

l17l I shall determine the grounds of appeal in the order set out in the memorandum of appeal

## Ground one: Ihe trial Judge erred hen he held that the l't respondent and the 2nd respondent were legally married wh not.

l18l Counsel for the appellant submi ed that on page221 line 1 of the record of appeal, the trial Judge held as follows;

> "ln the instant case the Plaintifr and the 1"t Defendant are legally mafiied and both parties tesfified lo that effect. fhe couple got manied on 29/11/2003 at Bugombwa Catholic Church. A cedified photocopy of the maniage certificate wes tendered in Court and was marked PlD2"

Counsel submitted that this wad a wrong finding, that whereas the trial Judge held that both parties testified to this fact, the appellant never stated that the plaintiff and the l.tdefendant were legally married. Counsel also faulted the trial Judge on relying on certified photocopy of the marriage ce(ificate marked PID2.

[19] ln reply, Counsel for lhe 1{ res ndent submitted that in addition to oral evidence of the Christian Maniage celebr at Bugombwa Catholic Parish, the 1s respondent bout the customary maniage that preceded the monogamous marriage. That thit evidence was unchallenged and corroborated by the evidence of the 2.0 respondeht. was re-called and she testified


Page 6 of 15

Counsel for the 2no respondent qubmitted that at page 212line22 ofthe record of proceedings, the court ordered tfiat the original maniage certificate be tendered in court during submissions and a Spy is at page 155 of the record of appeal.

t20l ln civil matters, the burden of proof lies on the claimant and the standard of proof is on a balance of probabilities as provided for under Section 10'l of the Evidence Act, Cap 8. The respondents not only averred in their pleadings that they were legally manied but also adduced docufnentary evidence of a marriage certificate. The appellant did not adduce evidende to the contrary, I therefore cannot fault the trial Judge for holding as he did. This ground of appeal fails,

qualify as family land where consenlouOht to have heen obtained whereas it did not qualify as family land where consent was necessary. Ground two: Ihe learned trial Judge erred when he held that the suit property did

- l21l Counsel for the appellant faulted the trial Judge for his finding at page 221 of the record of appeal that the suit property qualified as family land where consent ought to have been obtained. - 122) lnreply,Counsel forthelilresplndentsubmittedlhatunderSection3SA(4) offhe Land (Amendment) Act 2004, family land is defined as one on which is situated the ordinary residence and from whioh the family derives sustenance. Further that under Section 39, the sale of family l4nd requires spousal consent. Counsel for the 2no respondent submitted that evideilce adduced showed that the house in dispute had three rooms at the front anO tfiree rooms behind, some were occupied by the respondents and their children and one room had a shop where school fees for the children was derived. - [23] The trial Judge held as follows on page 221 of lhe record of appeal;

"Counsel for the 2d defendent on for spousal consent because thi' the other hand submitted that there was no need was commercial property that belonged to the ¹

Page 7 of 15

Defendant and was even registered in his name. That the sale of the suit propefty was valid and nothing invelidates it. And from the testimonies of PW9 and PW10 it was clear that the Plaintiff and lhe 1st Defendant were in communication and the instanf case was a mere connivance.

ln my opinion the suit property does qualify as family land where consent ought to have heen obtained. The plaintl composed of her matrimonial hot ff clearly told Court that the suit premises were me, rentals and a shop that she runs."

l24l Section 38(AX4)ofthe Land A nendment Act, 2004 defines family land as;

"family land' means land-(a) onlhich is stuated the odinary residence of a family;(b) on which is situated the ordinary rfidence of the family and from which the family deives sustenance;(c) which the family fhely and voluntaily agrees shall be treated to qualify under paragraph (a) or (b); or (d) uhich is treated as family land according to the noms, culture, customs, traditions or religion of the family.

[25] ltisof useto retrace the genesis Of thesuit, in the notice to vacate/notice of intention to sue dated 23,0 August 2010 ]t page 23 of the record of proceedings issued by UpcountryAssociates and exhiblted as PE 1. The second last paragraph reads as follows;

"SHOULD YOU FAIL, Civil action to forcefully evict you and your entire family shall be immediately instituted against you at your colossal costs and great embarrassment."

The 1,t respondent throughout her testimony stated that the house was her home, she also collected rent and had a shop. That she used the proceeds to pay school fees and sustain the (DW1) at page 201 he testified as family. During the testimony of the appellant fo 0ws

"l filled a counterclaim for rent. Sire continues to collect rent from 241412010 to date. lwould rent 500,0091= pEr month f,er room for 6 rooms. She is renting it out and she is occupying some rooms herself."

126l This evidence weighed as a whole, shows that the trial Judge rightly held that the suit property comprised in family land for which spousal consent was necessary.

Page 8 of 15

Ground three: Ihe learned trial Judge erred when he held that the signature of the lil respondent on the sale agreement hetween the 2nd respondent and the appellant was lorged whereas nof.

- l27l Counsel for the appellant submifted that on page 222 ot lhe record of appeal that trial Judge held that the signature of the 1il respondent was forged. He contends that this was a wrong finding. Thft on the same page, the trial iudge had come to ^a finding that there was no need foi a handwriling expert because the signature of the appellant on the agreement that she was denying to have signed was the same as the one she had made on the affihavit she had filed in the court. The agreement was admitted as Exhibit DE2 which is on page 103 and the affidavit is on page 93 with the signature appearing on p.gd 94. However, instead of relying on her signature that was already on the affidavit that the 1st respondent had filed in court, the trial Judge choose to rely on a chanqed signature she made in Court after knowing that the signature on the affidavit would be compared with one on the agreement. - t28l Counsel for the 1.t respondent ol the other hand submitted that the trial Judge rightly found that the signature for the lsr respondent was forged. lt was further submitted for the respondent that the law rpQuires spousal consent to be in a prescribed form was enacted purposely to prohibit coercion, duress, undue influence and fraud by lhe buyers and sellers of family land and the same must be strictly complied with otherwise the transaction is renJered null and void. That the 1sr respondent did not sign the impugned agreements besides the law requires that spousal mnsent be in the specified form. - t29l Counsel for the 2no respondent submitted that the 2.0 Respondent admitted to the forgery. That the 1,t respondent doesn't not write and read English and therefore she did not sign the impugned agreeinent and that PW2 Dennis Musinguzi who appears on the sale agreement denied to have written his name thereon or signed the agreement. - l30i Section 39 ofthe Land Act provides thus;


Page 9 of 15 39. Restrictions on transfer of land by family members

No person shall-

(a) sell, exchange, trans r, pledge, mortgage or lease any land;

(b) enter into any contrlct for the sale, exchange, transfer, pledging, mortgage or lease of any land; or

(c) give away any land inter vivos, or enter into any other transaclion in respect of land-

(i) in the case of ta]na on which the person ordinarily resides with his or her spouse and from which they derive their sustenance, except with the prior written consent of the spou\$e;

- [31] spousal consent prevents one spouse from making decisions that could negatively impact the otheis financial or legal position regarding family land. This is especially important in cases where one s use might be more involved in managing the land or where the land provides the mily's sustenance - [32] As can be seen from the record appeal from pages 204 t0 211 all seven defence witnesses corroborated the appellant that they were present and saw the 1st respondent signing the agreement for the sale of the disputed property. The agreement was first translated into Lwamba/Rukonzo language(s) before the 'l,t respondent signed. Among thos witnesses is DW2 the area chairperson and DW6 the area defence secretary at the time. The agreement was signed in the 1s respondents sitting room in the presence of all the witnesses mentioned and the issue of force or coercion does not arise. ln any case the 1st respondent does not indicate anywhere that she was coerced into signing the agreement. The trial Judge is not a handwriting expert for a\$empting to compare a signature the 1s respondent made in court with the one in thf agreement, I find that with the evidence on court record, the trial judge arrived bt a wrong decision when he found that the'1't respondent's signature on the sale agreement was forged. - t33l The question now is, was there spousal consent as required by section 38 of the

PaBe 10 of 15

### Land Act

Spousal consent in land matterl serves to protect the rights and interests of both spouses in family land transabtions. lt ensures that one spouse cannot sell, mortgage, or transfer family land without the knowledge and consent of the other, safeguarding their security of occupancy and livelihood. This requirement is pa(icularly crucial for \*o..n, ,fno may be more vulnerable to land grabbing or displacement.

- l34l The requirement for spousal cJnsent is intended to promote transparency and fairness in land transactions. lt ensures that both spouses are aware of and agree to any changes in the ownership or use of the land. Spousal consent is intended to ensure the rights to family land ale not violated through unilateral land transactions. - l35l l'm alive to section 38 (c) (i) of the Land Act as reproduced herein above which requires prior written consent bdfore purchase of the family land, However, I take judicial notice of a growing trend where fraudulent couples prelend to have given consent for the sale but later turp around under the above provision of the law on account of not having given prior consent in a prescribed form. - t36l Spousal consent was intended to protect transfer of family land in the circumstances I have explained above. lt was not intended to be used as a tool for fostering fraud like in the instant case where the 1il respondent consented to the sale of the suit land in broad day light in the prespnce ofthe many witnesses including local council executive members and now want to hide behind the requirement of spousal consent given in a specified form to run away from her legally binding contractual obligations. - tool for fraud. lt is my finding th the '1st respondent fully gave her consent for the Page 11 of 15 t37l ln my view, in a case like the on! at hand where there is overwhelming evidence of consent to the sale, the 1s respbndent cannot be allowed to hide away from her responsibility merely because thq consent was not made in a prescribed form prior to the sale. lndeed, it is not surpriNing that Counsel for the 2tu respondent submitted that the 2no Respondent admitted to the forgery, The law should not be used as a

sale of her family land comprisin\$ the suit land. This ground of appeal succeeds.

Ground Four: The learned trial Judge erred when he held that the sale of the suit land was illegal, null and void whereas it was valid and legal.

- l38l On this ground, Counsel for the fppellant submitted that the trial Judge was wrong in holding that no spousal conserit was obtained during the sale transaction thus the purported. sell (sic) was illegal, null and void. That the learned trial Judge only relied on the evidence of the Respondgnts and he did not consider the evidence adduced by the Appellant and the witness[s who supported his version namely, DW2, DW3, DW4, DWs, DW6, DW7 and DV1E who all witnessed the sale agreement. That they all stated on oath that they saw the 1st Respondent sign the agreement. Further that the witnesses included Local Leaders on the LC1 executive commitlee who witnessed the sale agreement. - l39l ln reply both Counsel for the respondents submitted that Section 39 of the Land Act prohibits the sale of family land without spousal consent. Further that the Land Regulations, 20M provide for a frescribed form for spousal consent. - l40l Having found in ground 3 above that there was spousal consent to sell the suit land, the sale of the suit land was lawful. This ground of appeal succeeds.

# Ground five: Ihe learned triat Jud[e erred when he ordered that the appeltant's cefiificate of title be cancelled when there was no legal basis for dotng so.

- [41] The appellant faulted the trial Judge for the order made to cancel the Appellant's certificate yet the transfer of the Appellant's name on the certiflcate of title had not been challenged and no allegation that there was fraud in the transfer process had been made. On the olher hand, both counsel for the respondents submitted that the trial Judge rightly ordered for the cancellation of the Certificate of Title having found that the sale of family land was {xecuted without mandatory spousal consent. - l42l Having found in ground 4 above thal the sale of the suit land by the 2d respondent Page 12 of 15

was lavvful, it follows that the tri the appellant's title. I Judge erred when he ordered for cancellation of

#### Ground six: Ifte learned trial Judg restrained from evicting the 1sl res erred when he ordered that the appellant be ondent and her children from the suit land.

- [43] Counsel for the appellant sub permanent injunction to restrain her children from the suit land registered proprietors and there property described in the exhib they were registered as joint pro itted that on page 226, lhe trial court issued a e Appellant from evicting the 1st respondent and That the 1st respondent nor her children were evidence that there was other property namely DE5 on page 113 of the Record of Appeal where rietors. - l44l Both Counsel for the responde Amendment Act, 2004 the spou was right to restrain the appella ts submitted that under Section 38(A) of the Land e enjoys security of occupancy and the trial Judge t from evicting the 1st respondent and her children. - [45] For the reasons, herein given ^o succeeds. grounds, 3, 4 and 5, This ground of appeal also

#### Ground seven: Ihe learned trial J pay the appellant interest of 6% on erred when he ordered the ?a respondent to e purchase price.

- t46l Counsel for the appellant sub ordered the 2nd respondent to interest at only 6% per annum a of the shilling. itted that it was an injustice when the trial Judge fund the purchase price of shs,66 million and pay d did not account for inflation and the drop in value - 147) Both Counsel for the respond provides for remedies. The purc he or she entered the transactio ts submitted that Section 39(4) of the Land Act aser is entitled to claim from any person with who


Page 13 of 15

[48] ln view of my findings on grounps, 3,4,5 and 6, the appellant is entitled to all the remedies sought for in the countbrclaim.

# Ground eight: Ihe learned trial Judge erred when he held that the 2d respondent should only produce a payment schedule for the purchase price which holding occasioned a miscarriage of justice.

- [49] The appellant faulted the trial Judge for only directing that the 2nd respondent produce in court a payment schedule. And did not give him a time frame to do so. ln lent stated that the 2tu respondent had been tried ey by false pretences and ordered to refund the ,000/=. On the other hand, counsel for the 2na rdule was reasonable for both the respondent and s not in way prejudiced by the order. reply Counsel for the '1st respon! and convicted of obtaining monl purchase price of UGX 66,00d respondent argued that the schd appellant and that the appellant ir - l50l ^Iagree with Counsel for the appellant that the payment schedule given to the 2d respondent by the trial Judge wa5 left open and subject to abuse since the schedule has no time frames nor limits.

# Ground nine: Ihe learned trial Judge ened when in arriving at the wrong conclusions failed to properly evaluate the evidence on record.

This ground is redundant since the specifics facts where the judge was faulted for not evaluating evidence are already specifically covered in grounds 1 to 8 above.

## Decision of Court

- t51l ln view of my findings on groun s 3, 4,5,6,7 and 8, I hereby allow this appeal and substitute the orders of the trial ourt with the following orders; - a) Civil suit No. 22 ot 2011is hdreby dismissed with costs to the appellant. - b) The appellant's counterclain]r in the lower court succeeds with the following orders;


Page 14 of 15

- 1) The appellant is the 20, Plot 3-5 Town C er of the suit land comprised in LRV 3620 Folio ncil Bamwiterebye Avenue, Bundibugyo, - 2) The respondents are passers on the suit land and are hereby directed to give vacant poss ion of the suit land to the appellant. - 3) The respondents are (five hundred thousa effect from 011051201 the appellant. directed to pay mesne proflts of UGX. 500,000= d shillings only) per month to the appellant with till the date of handing over vacant possession to - 4) The appellant is awa ed costs of the counterclaim in the lower court.


FI ian Zeija (PhD)

DEPU CHIEF JUSTICE

### THE REPUBLIC OF UGANDA

#### IN THE COURT OF APPEAL OF UGANDA HOLDEN AT FORTPORTAL

[Coram: F. Zeija, DCJ, Cheborion-Barishaki, E. Nambayo, JJA.]

### CIVIL APPEAL NO. 0108 OF 2017

<table>

RWAKARARA JOSEPH APPELLANT

#### **VERSUS**

......................................

#### 1. NAGAYI ANNET 2. BEN BROWN

(An appeal arising from the decision in the High Court of Uganda at Fort Portal (Oyuko-Ojok J,) dated February 2, 2017 in Civil Suit No. 0022 of 2011)

### **JUDGMENT OF CHEBORION BARISHAKI, JA**

I have had the benefit of reading in draft the Judgment of Dr. Flavian Zeija, DCJ and I agree with his analysis, findings and conclusions he has reached. I have nothing useful to add.

Dated at Fort Portal this $\rightarrow$ 2025 day of Cheborion Barishaki **JUSTICE OF APPEAL**

## rHE REP| BL|C OF UGANDA

IN THE COURT OF APPEAL OF UGANDA HOLDEN AT FORTPORTAL

[Coram. E Zeya, DCI Ch,eborion- Earishaki, E. Nambayo, J./A. J

## CIVIL APPEAL NO. 0108 OF 2017

RWAKARARA JOSEPH APPELLANT

VERSUS

# 1. NAGAYI ANNET

2- BEN BROWN RESPONDENTS

(An appea/ arising from the deci (Oyuko-O1ok I dated February 2, n in the High Court of Uganda at Fort Portal 77 in Civil Suit No.0022 of 2077)

#### JUDGMENT F ESTA NAMBAYO, JA

I have had the benefit of reading in Zeija, DO. I agree with his finding a draft the Judgment of my Learned Brother, ^F d conclusion that this appeal succeeds.

| 2J-<br>t rQ-<br>Dated at Forl Portal this<br>f<br>2025<br>day | |---------------------------------------------------------------| | s<br>t)<br>Nambayo |

JUST E OF APPEAL