[2022] UGCA 359

## THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

[Coram: Catherine Bamugemereire, Stephen Musota and Muzamiru M. Kibeedi, JJAI

#### CIVIL APPEAL N0.69 OF 2017

# IO SAIDISALEH HALAGE APPELLANT

#### VERSUS

## MARTAM SALEH, (ADMIN|STRATRIX OF THE ESTATE OF THE LATE HALIMA BINT JUMA) RESPONDENT

[Appeal from the Judgment of the High Court of lJganda at Jinja (Namundi, J) delivered on r5 the 27d of April 2016 in Civil Suit No.03 of ²⁰¹⁴¹

## JUDGMENT OF MUZAMTRU MUTANGULA KIBEEDI. JA

#### Background

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This is an appeal arising from the judgment and orders of Hon. Justice Godfrey Namundi made on the 22na of April 2016 in Civil Suit No. 63 of 2014 of the High Court of Uganda at 20 Jinja.

The background to this case is that the Appellant was the Defendant in the High Court while his mother, Halima Bint Juma, (now deceased) was the Plaintiff. For ease of reference, I will continue to refer to the deceased as "Plaintiff" even in this judgment. The subject matter of the court case was land comprised in LRV 4393 Folio 4 Plot No.28 Oboja

2s Road in lganga Municipality (suit property) and registered in the names of the plaintiff. The suit property has on it a commercial building occupied by tenants.

ln 2014, the Plaintiff instituted a suit against the Appellant in Jinja High Court alleging that the Appellant on or about the 18thApril 2014, without her laMul permission broke down the rear wall of the suit property and started constructing lockups on part of it. At the time of

30 filing the suit in the High Court, the Plaintiff was of advanced age, about 90 years, and had suffered stroke. So, the suit was instituted on her behalf by her daughter and a holder of her Power of Attorney, Ms. Mariam Saleh,

, 5 ln his defence, the Appellant claimed that he constructed the lockups with the consent and permission of his mother. The Appellant also claimed he was a holder of Powers of Attorney donated to him by the Plaintiff. He thus denied being a trespasser. He also denied having forcefully entered upon the suit property.

Hearing of the suit was completed while the Plaintiff was still alive. But the Plaintiff never t0 gave evidence before the trial court as she was reported not to understand properly due to old age and her poor health condition.

After conclusion of hearing of the evidence and while the matter was pending judgment, the Plaintiff passed on. The trial court subsequently delivered Judgment in favor of the Plaintiff and issued a permanent injunction restraining the Appellant from any further ts construction on the suit property. Court ordered each party to bear their own costs of the suit since the matter was a family dispute.

The Appellant was dissatisfied with the decision of the High Court and appealed to this Court on the following grounds: -

- 1) The Learned Judge erred in law and fact when he held that the Appellant did not - 20 have the adhority to construct on the behind part of the suit property comprised in LRV 4393 Folio 4, Plot 2S located at Oboja Road, lganga Municipality. - 2) The Learned Trial Judge erred in law and fact when he held that the Appellant trespassed on the suit propefi. - 3) The Leamed Trial Judge erred in law and fact when he based his decision on 2s speculation. - 4) The Learned Trial Judge erred in law and fact when he failed to evaluate the evidence on record and thus arrived at a wrong decision.

#### Representations

When the matter came up for hearing before this court, the Appellant was represented by 30 Brian Mooji and Ezra Mwalya while the Respondent was represented by lshaq Dhakaba, Leave was granted to the Appellant to substitute the then deceased Plaintiff with Ms. Mariam Saleh as the holder of the Letters of Administration to the Plaintiffs estate.

⁵ Thereafter the parties proceeded by way of written submissions which were already on the court record.

### Appellant's submissions

ln his written submissions, the Appellant stated that all the four grounds of appeal retated to the manner of evaluation of evidence by the trial Judge. As such, he consolidated all the l0 four grounds of appeal into a single issue which he framed as follows: -

## "Whether the trial Judge properly evaluated the evidence on record hefore arriving atthe Judgment and Orders?"

The evidence which the trial Judge was faulted to have not properly evaluated was the Power of Attorney granted to the Appellant by the Plaintiff on 04tt' October 2004. The

- ls Appellant submitted that had the trial Judge evaluated the said evidence, he would have held that the authority given to the Appellant as the Plaintiffs attorney was wide enough to cover the construction of the contested lockup shops on the suit property. The Appellant submitted that the Power of Attorney was a general Power of Attorney and invited this court to give its wording a wide interpretation and find that construction of the lockup shops fell - 20 within the kind of acts authorized by the donor in the said Power of Attorney. For this proposition, the Appellant refened to the case of Fredrick Zaabwe Vs Orient Bank & Ors 12007t 1 HCB 24.

The Appellant also faulted the trial Judge for finding that the said Power of Aftorney was revoked thus rendering the Appellant's actions unauthorized after that. The Appellant 2s argued that from the testimony of PW1 Mariam Saleh, the alleged Revocation was done on 28tt' May 2014, and by that time, the Plaintiff was already very sick, bed ridden, frail and mentally incapacitated to make any meaningful decision such as the appointment of Mariam Saleh under another Power of Attorney or revoke the one earlier granted to the Appellant.

30 The Appellant further argued that in any case, the purported revocation was done after the construction of the lockup shops had already been completed in March/April2Oi4.

s The Appellant concluded by saying that in light of the above evidence, which was not considered by the trial Judge, the finding that the Appellant was a trespasser on the suit property was erroneous and should be overturned by this court with costs.

#### The Respondent's Replv

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The Respondent opposed the appeal and first made her submissions on grounds 1 and ² l0 jointly. Thereafter she also combined her arguments on grounds 3 and 4.

With regard to grounds 1 and 2 of the appeal, the Respondent supported the trial Judge's findings that the Appellant had trespassed on the suit property and that the Appellant lacked the authority to construct the contested Lock Up Shops on the suit property.

The Respondent submitted that much as the Appellant was granted Powers of Attorney by ls the Plaintiff in 2004, the same did not authorize him to demolish and construct new structures onto the suit property. That the powers granted were strictly management powers and authorized the Appellant only to collect rent from the suit property. That the Appellant was aware of this fact and took it upon himself to seek for authorization from the Plaintiff in January 2013 as per the Appellant's own testimony in court and paragraph 5 of

20 the Appellant's Written Statement of Defence.

The Respondent further argued that construction of the Lock Up Shops having been for purposes of the Appellant raising money for his children's fees, it was an act outside the scope of the Power of Attorney as an attorney cannot laMully use the Power of Attorney for his/her own benefit. For this submission, the Respondent relied on the case of Fredrick. K

- 2s Zaabwe vs. Orient Bank & Ors SCCA No. 4 of 2006, where the Supreme Court of Uganda held inter alia that an act done by a donee of a Power of Attorney for the agent's own purpose to the exclusion and detriment of the principal will be outside the scope of the Power of Attorney and is not even capable of ratification by the Principal. The Appellant invited this Court to find that the Power of Attorney granted to the Appellant in 2004 did not - 30 constitute sufficient authority for the Appellant to construct the contested Lock Up Shops in 2014.

The Appellant thereafter went on to submit that the trial Judge properly evaluated the other evidence on the record including the testimony of PW2 Musne, the Appellant's siblings, the

Appellant himself and his witnesses and arrived at the correct conclusion that the $\sqrt{5}$ Appellant's construction was done without authorization and amounted to trespass.

The Appellant ended by praying that this Court does uphold the findings of the trial court in respect of grounds 1 and 2.

With regard to the Appellant's complaints in grounds 3 and 4 of the appeal to the effect that the trial Judge's decision was based on speculation and not on proper valuation of the $10$ evidence, the Respondent submitted that the said complaints had no basis. The Respondent then went ahead to demonstrate how the trial Judge considered the pleadings, the issues, the evidence adduced by each of the parties before deciding issue 1 in favour of the Appellant and issue 2 in favour of the Respondent. The Respondent concluded by

praying that the appeal be dismissed with costs. $15$

# Duty of the court as a 1^st appellate court

As a 1^st appellate court, it is the duty of this court to re-appraise all evidence that was adduced before the trial court and come to its own conclusions of fact and law while making allowance for the fact that the court neither saw nor heard the witnesses. (See Rule

30 (1)(a) of the Judicature (Court of Appeal Rules) Directions, S. I 13-10, Fredrick Zaabwe $20$ vs. Orient Bank Ltd Civil Appeal No. 4 of 2006).

Similarly, in Kifamunte Henry vs. Uganda SCU Cr. Appeal no. 10 of 1997 the Supreme Court of Uganda held that:

"The first appellate court has a duty to review the evidence of the case, to reconsider the materials before the trial judge and make up its own mind not disregarding the judgment appealed from but carefully weighing and considerina it."

It is with the above principles in mind that I will proceed to resolve the appeal.

## **Consideration of the Appeal**

$25$

From the four grounds of appeal set out in the Memorandum of Appeal, the Appellant's $30$ complaints in this appeal revolve around the evaluation of evidence by the trial judge before concluding that the Appellant trespassed upon the Plaintiff's property, the suit property, by constructing on it the lockup shops without the consent of the plaintiff, his now s deceased mother. lt is the appellant's case that the trial Judge erred when he held that he was a trespasser upon on the suit land.

The Respondent did not agree. The respondent supported the trial Judge's findings.

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For one to succeed in an action for trespass to land, one must have a present possessory title to it. See: Wuta-OfeiVs Danquah [1961] 1 W. L. R 1239 (Privy Counci\.

t0 ln the instant case, the deceased Plaintiff being the registered proprietor of the suit land, was entitled to commence an action against the appellant for trespass since, the right to immediate possession of the suit land vested in her as its registered proprietor.

ln his Written Statement of Defence, the Appellant stated that he constructed the lockup shops on the behind part of the suit property which, at the time was empty, with the

ts permission granted to him by the Plaintiff in January 2013 in order to help him get school fees for his children. That the permission was granted in the presence of one of the Appellant's sisters, Ms. Musne Saleh, Said differently, the permission was oral.

The Appellant further contended in his Written Statement of Defence that in addition to being granted the permission to construct on part of the suit propefi, his mother also gave

20 him Powers of Attorney to "act, conduct and manage the suit property on her behalf which he [was] doing diligently".

As such, on account of the two above reasons the Appellant denied being a trespasser.

I have closely reviewed the pleadings and the evidence adduced by the parties during the trial. The best evidence to prove whether the appellant was indeed a trespasser or not 2s would have been the testimony of the Plaintiff herself. Unfortunately, at the time of the trial she was stated to be about 90 years and unwell to personally testify. lndeed, she died before the judgment of the case was rendered by the trial Court.

During the hearing of this appeal by this court, we asked the parties to address us on the effect of the death of the plaintiff on the legal status of the lock-up shops which were the

30 subject matter of the claim of trespass against the Appellant. Both parties agreed that they form part and parcel of the estate of the deceased Plaintiff.

, s The law governing the rights of the parties to this appeal after the demise of the deceased Plaintiff is the Succession Act, Cap. 162. Before her demise, the deceased Plaintiff enjoyed absolute rights to the suit property as its registered proprietor which entitled her to commence an action against the appellant in trespass to the suit property. However, with the death of the Plaintiff and grant of the Letters of Administration to the deceased l0 Plaintiffs estate to the current respondent, Mariam Saleh, by the High Court, the suit property vested in her in trust for the beneficiaries of the estate of the deceased plaintiff. This is by virtue of the Section 25 of the Succession Act which provides thus:

#### "25. Devolution of property of a deceased dying intestate

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All property in an intestafe esfafe devolves upon the personal representative of the ls deceased upon trust for those persons entitled to the propefi under this Act.'

The term "Personal representafrve" is defined by Section 2(r) of the Succession Act to mean "the person appointed by law to administer the estate or any part of the estate of ^a deceased person". Said differently, Mariam Saleh having been granted Letters of Administration to the deceased's estate became a "personal representative" of the 20 deceased Plaintiff. ln this capacity, she holds the suit land in trust for the beneficiaries of the estate of the deceased plaintiff.

The appellant being a son of the deceased plaintiff is one of the beneficiaries of the deceased's estate together with the respondent, their other siblings, and the deceased's dependent relatives (if any). As such the appellant has an equitable interest in the suit land

25 together with the other beneficiaries and cannot be held to be a trespasser on the suit land before the distribution of the same in accordance with the Succession Act.

Accordingly, the claim of trespass was overtaken by the death of the deceased Plaintiff. The trial judge failed to consider this critical development before declaring the appellant trespasser on the suit property. On this ground alone, I would allow the appeal and set 30 aside the orders of the trial Court.

We note with great concern that the rivalry between the appellant and his siblings over their mothe/s properties appears to have started while she was still alive but was left unmitigated. This is very unfortunate. The sibling rivalry needs to be brought to a fast l ^a s closure. Ms. Mariam Saleh, as the administratrix of the estate of the deceased Plaintiff, should as a matter of urgency go ahead and expedite the distribution of the estate of the deceased to her laMul beneficiaries in accordance with the succession laws governing the estate.

### Gosts

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l0 This dispute being a family matter between siblings, the court is under a duty not to make orders which will tear the family further or otherwise escalate or prolong the divisions and disharmony which is already being faced by the family of the litigants through litigation. Accordingly, I would order each party to bear its own costs before this court and the court below.

Dated at Kampala this ....\f day of .,., >\*,ptr ²⁰²²

### MUZAMIRU MUTANGULA KIBEEDI Justice of Appeal

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## THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA [Coram: Bamugemereire, Musota and Kibeedi, JJA] CIVIL APPEAL N0.69 OF 2017 SAIDI SALEH HALAGE::::::::::::::::::::::::::::::::::: **VERSUS**

## **MARIAM SALEH,** (ADMINISTRATRIX OF THE ESTATE OF <table> THE LATE HALIMA BINT IUMA):::::::::::::::::::::::::::::::::::: (Appeal from the Judgment of Namundi, J at the High Court of Uganda sitting at Jinja delivered on the 22^nd of April 2016 in Civil Suit No.63 of 2014)

### **JUDGMENT OF JUSTICE CATHERINE BAMUGEMEREIRE**

I have had occasion to carefully consider the opinion of my learned brother Muzamiru Kibeedi JA. I agree with his reasoning and his conclusions. I am privy to the opinion of my learned brother Musota JA who equally agrees.

Consequently, the decision of this court is that the appellant being a son of the deceased plaintiff has beneficial interest in the deceased's estate together with the respondent and other siblings and the deceased's dependent relatives (if any). The appellant, together with the other beneficiaries therefore, have equitable interest in the disputed land. Consequently, the appellant cannot be held to be a trespasser on the said land before the

'distribution of the estate under the Succession Act. Had the trial ]udge taken into consideration the filial relations, usage and the eventual intestate death of the plaintiff, a different decision would have been reached.

The appeal is therefore allowed and this being a dispute that has deeply fractured a family, this court will not exacerbate the rifts. We therefore shall make no order as to costs.

Signed at Kampala this 1,'t Day of September 2022.

Catherine Bamugemereire Justice of the Court of Appeal. ,<l,oorl\*r-

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# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA CIVIL APPEAL NO.69 OF 2017

SAIDI SALEH HALAGE ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

#### MARIAM SALEH (ADMINISTRATRIX OF THE

ESTATE OF THE LATE HALIMA BINT JUMA::::::::::::::::::::::::::::::::::::

[Appeal from the Judgment of the High Court of Uganda at Jinja, delivered on *22^nd April 2016 in Civil Suit No.63 of 2014)*

CORAM: HON. JUSTICE CATHERINE BAMUGEMEREIRE, JA

HON. JUSTICE STEPHEN MUSOTA, JA

#### HON. JUSTICE MUZAMIRU M. KIBEEDI, JA

#### **JUDGMENT OF HON. JUSTICE STEPHEN MUSOTA, JA**

I have had the benefit of reading in draft the judgment by my brother Hon. Muzamiru M. Kibeedi, JA.

I agree with his analysis, conclusions and the orders he has proposed.

Dated this $\frac{\sqrt{5}}{6}$ day of $\frac{\sqrt{6}}{6}$ day of 2022

the Sundans.

**Stephen Musota JUSTICE OF APPEAL**

### **THE REPUBLIC OF UGANDA**

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA CIVIL APPEAL NO. 069 OF 2017

(Coram: Catherine Bamugemereire, Stephen Musota and Muzamiru M.

Kibeedi, JJA)

### **SAIDI SALEH HALAGE**

}::::::::::::::::::::::::::::: APPELLANT

### **VERSUS**

## MARIAM SALEH (ADMINISTRATRIX OF } :::::::::::::::::::::::::::::::::: THE ESTATE OF THE LATE HALIMA BINT JUMA)

[Appeal from the Judgment of the High Court of Uganda at Jinja (Namundi J.) delivered on the 22^nd of April 2016 in Civil Suit No. 63 of 20141

### **DECREE**

**THIS APPEAL** coming up for Judgment this **15^th** day of **September** 2022 before the HON. JUSTICE CATHERINE BAMUGEMEREIRE, HON. STEPHEN MUSOTA and HON. JUSTICE MUZAMIRU MUTANGULA KIBEEDI, JJA, in the presence of Ms. Nyakecho Rachael, Counsel for the Appellant and Mr. Bukenya Abdul Wahab, holding brief for Mr. Dhakaba Ishaq, Counsel for the Respondent, in the presence of the Appellant and in the absence of the Respondent, it is hereby **ORDERED** and **DECREED** as follows:

1. The Appeal is allowed and the orders of the trial Court are set aside.

HIRSTAID, GOOD FREETING DOLTZ-7693 $\mathcal{L}$ $\mathbb{S}111121$

- 2. The Appellant cannot be held to be a trespasser on the suit land before the distribution of the estate under the Succession Act. - 3. The Administratrix of the Estate of the deceased Plaintiff should as a matter of urgency go ahead and expedite the distribution of the Estate of the deceased to the lawful beneficiaries in accordance with the Succession Laws governing the Estate. - 4. Each party shall bear its own costs.

Approved by:

Counsel for the Appellant

$\mathbf{u}$ bo & Co. Advocates M/s Omara/A

Counsel for the Respondent

M/s Dhakaba & Nkuutu Advocates

**GIVEN** under my Hand and Seal of this Honorable Court this ........... day of ............... 2022.

H/W BUCYANA LILLIAN

**REGISTRAR**

**Extracted By:** M/s Omara Atubo & Co. Advocates, Suite 5, Colline House, Plot 5 Pilkington Road, Kampala, Uganda.