[2025] UGHCLD 70

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA CIVIL APPEAL NO. 136 OF 2023 (Arising from Chief Magistrate's Court of Kampala at Mengo Civil Suit No. 020 of 2019) SALONGO LUBEGA GREGORY ::::::::::::::::::::::::::::::::: APPELLANT VERSUS 1. MPALAGANYI ISAAC 2. MUGABI NATHAN PATRICK**

- **3. JULIUS LUSWATA Alias MOSES LUSWATA** - **4. OKURUT KHADIR :::::::::::::::::::::::::::::::::::::::::: RESPONDENTS**

## **BEFORE; HON. LADY JUSTICE NALUZZE AISHA BATALA. JUDGMENT**

### *Introduction;*

- 1. This is an appeal against the judgment and order of Her Worship Muwanika Joanita, the Magistrate Grade one, in the Chief Magistrates Court of Kampala at Mengo delivered on the 29th day of March, 2023; Salongo Lubega Gregory v Mpalaganyi Isaac, Mugabi Nathan Patrick, Julius Luswata alias Moses Luswata and Okurut Khadir. - 2. In the lower Court, Appellant sued the respondents for trespass and recovery of Kibanja comprised in Ssendawula Zone, Lungujja Parish,

Lubaga Division measuring 58ft by 90ft, a permanent injunction, demolition order, general damages, interest and costs of the suit.

#### *Background;*

- 3. Briefly the appellant's claim at the lower court was that on the 13th day of August 2012, he purchased a Kibanja measuring 58ft by 90ft at Ssendawula Zone Lungujja Parsih, Lubaga Division from the 1st Respondent at a consideration of Ug shs 2,600,000 which he paid fully. That he took possession and started excavating red soil therefrom using it for brick making until 2018 when he brought construction materials thereon with the intention of constructing a house but was blocked by the 1st and 2nd respondents claiming that the same belonged to the 2nd defendant. - 4. The appellant reported the matter to Lungujja police where all concerned parties were summoned and the 1st Respondent denied selling the suit land to the appellant. The 2nd defendant filed a case for criminal trespass at Old Kampala police station where the appellant was summoned and detained for 4 days and later granted police bond. The 4th Respondent instructed him to bring proof of ownership wherein he handed over his original sale agreement which was never returned to him. On 16th August 2018, the appellant reported to police but was

however whisked away into a vehicle including a one Byaruhanga Moses who threatened him to sign a memorandum of understanding giving back the land following which the 3rd Respondent started constructing on the suit land.

- 5. The 1st and 2nd Respondents in their defence stated, that on 13th August 2012, the 1st Respondent sold to the appellant Kibanja measuring 38ft by 70ft at Ssendawula Zone, Lungujja Parish, Rubaga Disivion at a consideration of Ug shs 2,100,000/= and measurements were done in the presence of the local authorities and the appellant took possession thereof constructed a house where he resides. In July 2018 or thereabout, the appellant started encroaching on the piece of land adjacent to the one he had purchased which belonged to the 2nd defendant which was donated to him by the 1st Respondent, his father. The 2nd Respondent reported a case of criminal trespass at Old Kampala police station under SD Ref:39/02/07/2018 where the appellant was summoned and asked to adduce proof of purchase and it was evident that some of the figures in the acknowledgement, had been altered in regards to the size of the land. - 6. That the appellant admitted to altering the figures and apologised and thus parties entered into a memorandum of understanding where the

appellant agreed to relinquish his claim on the extra portion, he had encroached on which belonged to the 2nd defendant which the appellant alleged to have signed under duress or coercion. The 3rd Respondent on the other hand contended to have purchased the suit property from the 2nd Respondent who obtained the same from the 1st Respondent as a gift inter vivos.

- 7. It is against that background that the appellant, aggrieved with the judgment of the trial court appealed to this Court on eight grounds of appeal, namely; - *i) The Learned trial Magistrate erred in law and fact when she failed to properly evaluate the evidence on record as a whole thereby arriving at a wrong conclusion which led to a miscarriage of justice.* - *ii) The Learned Trial Magistrate erred in law and fact when she wrongly held that the land sale agreements dated 18th/08/2002 and 13th/8/2012 were both made in respect of the same plot or transaction whereas not thereby arriving at a wrong decision.*

- *iii) The Learned Trial Magistrate erred in law and fact when she failed to base or rely her decision on the audio evidence and its translation thereby arriving at a wrong decision.* - *iv) The Learned Trial Magistrate erred in law and fact when she heavily relied her decision on the evidence of DW2, the chairperson and DW4 the handwriting expert thereby arriving at a wrong conclusion which led to a miscarriage of justice.* - *v) The Learned Trial Magistrate erred in law and fact when she wrongly held that the appellant voluntarily handed back the suit land to the 1st respondent and without coercion signed PEXH 6 whereas not.* - *vi) The Learned Trial Magistrate erred in law and fact when she failed to find and or establish that there was connivance between the Respondents intended to steal the interest of the appellant in the suit land.*

- *vii) That the Learned Trial Magistrate erred in law and fact when she wrongly held that the plaintiff has no ownership of the suit land whereas not.* - *viii) That the learned Trial Magistrate erred in law and fact when she failed to act as an umpire of Court thereby committing several procedural errors.*

#### *Representation;*

8. The appellant was represented by M/S Sanywa, Wabwire & Co Advocates whereas the 1st and 2nd respondents were represented by M/S Lawgic Advocates and the 3rd respondent was represented by M/S Kaweesi & Partners Advocates.

#### *Duty of the appellate court;*

- 9. This being a first appeal, this court is under an obligation to rehear the case by subjecting the evidence presented to the court below to a fresh scrutiny and re-appraisal before coming to its own conclusion. *(See***;** *Nanensio Begumisa and three Others vs Eric Tiberaga SCCA 17 of 2000)* - 10. It is a well-settled principle of law that on a first appeal, the parties are entitled to obtain from the appellate court its own

decision on issues of fact as well as of law. Although in a case of conflicting evidence the appeal court has to make due allowance for the fact that it has neither seen nor heard the witnesses, it must weigh the conflicting evidence and draw its own inference and conclusions, the nature of this duty was put more appropriately in **Selle vs Associated Motor Boat Co. [1968] EA 123**.

- 11. An appeal is by way of retrial and the principles upon which this Court acts in such an appeal are well settled, briefly put they are; *that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect*. - 12. In particular, this Court is not bound necessarily to follow the trial judge's findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally. *(See; Abdul Hameed Saif*

*Vs Ali Mohamed Sholan (1955), 22 E. A. C. A. 270)*

#### *Power of the appellate court;*

13. Section 80(i) of the Civil Procedure Act Cap.71 grants the high court appellate powers to determine a case to its finality, providing that subject to such conditions and limitations as may be prescribed in the appellate court shall have the power to determine a case finally.

#### *Determination of the grounds of appeal*

- 14. Grounds one and two were argued together and shall be equally considered together. The grounds are that; - *i. The Learned Trial Magistrate erred in law and fact when she failed to properly evaluate the evidence on record as a whole thereby arriving at a wrong conclusion which led to a miscarriage of justice.* - *ii. The Learned Trial Magistrate erred in law and fact when she wrongly held that the land sale agreements dated 18th/08/2002 and 13th/8/2012 were both made in respect of the same plot or transaction whereas not thereby arriving at a wrong decision.*

**Appellant's submissions**

15. The appellant's counsel submitted that it was the evidence of DW2, the village chairman that the agreement in question was in respect of a plot of land where the appellant paid the 1st installment in 2002 and finished payment in 2012 and requested for the agreement to be back dated therefore the 2002 and 2012 agreements were in respect of the same plot. That the appellant led evidence to rebut the said position showing that the 1st Respondent altered the measurements on the sale agreements to reflect 58ft by 90ft worth Ug shs 2,600,000 for the 2nd agreement because he had mistakenly written 38ft by 70ft for the 1st plot that the appellant purchased at Ug shs 2,100,000. Thus the agreements are not for the same plot of land and Court did not properly evaluate the evidence.

#### *Submissions for the 3rd Respondent*

16. For the respondent, Counsel submitted that the primary issue in the case was ownership of the suit land. That the Trial Magistrate correctly found that the appellant failed to prove ownership of the same as his claim was based on a flawed and unreliable sale agreement, it was inconsistent and raised questions about their authenticity. That the Trial Magistrate raised doubts regarding the

Appellant's version of events including the alteration to the sale agreements and the circumstances under which they occured.

- 17. That the evidence by DW2 confrimed the version of events presented by the 1st Respondent as if it was credible. That the appellant failed to prove on the balance of probabilities that he purchased the suit land from the 1st Respondent. Counsel relied on the authority of **Kagumaho John v Magambo Fred & Isingoma Ibrahim CS No. 219 of 2022** where Court held that in order to establish ownership of the land, the claimant must prove their title, purchase agreement with credible and sufficient evidence. - 18. That the evidence of DW2 was that the 2002 agreement was for an intial payment while that of 2012 finalised the transaction thus the appellant's attempts to suggest that the plots were different was not supported by credible evidence.

#### **Consideration of Grounds 1 & 2**

19. I have carefully perused the pleadings, the evidence adduced by the parties, the judgement of the trial Court and the submissions of both counsel in support of and opposition to the appeal. This court has reevaluated the evidence on record in line with the duty of a first appellate court to review and re-assess the evidence and arrive at its own conclusions. The record reveals significant discrepancies in the dimensions and consideration of the land as reflected in the two agreements: one of 2002 reflecting 38ft x 70ft for Ugx 2,100,000, and another of 2012 showing 58ft x 90ft for Ugx 2,600,000.

- 20. While the Respondents maintained that both agreements referred to the same land transaction, the Appellant presented evidence suggesting otherwise. The trial magistrate, however, did not make a detailed or reasoned analysis of these material differences, nor did she adequately reconcile the oral testimony of DW2 with the documentary inconsistencies. - 21. This court finds that the failure to holistically evaluate this evidence amounted to an error in law and fact and led to a miscarriage of justice. It was incumbent upon the trial court to critically assess whether the agreements in issue referred to the same plot of land or not. The trial magistrate relied heavily on DW2's account but failed to consider the implications of the varying plot sizes and sale amounts. The alterations in measurements and values between the two agreements were neither adequately explained nor resolved in the lower court's judgment.

- 22. It was therefore critical for the trial Court to determine the authenticity of the said agreement to the extent to which the appellant invoked it as part of his evidence in proof of ownership of the land. In her judgement, the Trial Magistrate noted that at the locus visit measurements were made from the appellant's residential home and the suit land and they did not differ from what was in the pleadings but to her this was not very key in the determination of the matter and the major contention was whether the suit land was sold to the plaintiff/appellant which was heavily denied by the 1st Respondent. - 23. My view is that, in the consideration of the evidence before it, the trial Court must bear in mind the principles governing the burden and standard of proof, the general rule is that the burden of proof lies on the party who asserts the affirmative of the issue or question in dispute. When that party adduces evidence sufficient to raise a presumption of that what he asserts is true, he is said to shift the burden of proof that is, his allegation is presumed to be true unless his opponent adduces evidence to rebut the presumption. *(See; Takiya Kashwahiri & Anor V Kajungu Denis CACA No. 85 of 2011.)*

- 24. Applying the foregoing principles to the instant case, I note that the appellant adduced an acknowledgement of receipt of money which seemed to have altered figures in regards to the measurements of the suit land. The said acknowledgment was subjected to a handwriting expert DW4, Sylivia Chelangat who stated in her report that " the laboratory was not in position to establish whether the questioned figures were made on the same date with the body writing, however, the alterations made on the document were made using different writing implements with different ink composition and that was why some of the letters reflected and others absorbed and the body handwriting was not comparable with the altered figures. - 25. The said report proved that there were alterations on the agreement but could not establish who actually altered the same. The Appellant and PW2 stated that the alterations were made by DW1 who vehemently denied the said allegations as he had already donated the land to the 2nd respondent in 2009. However, DW2 informed Court that when he signed the acknowledgment, he gave it to the appellant's wife to take it to the chairman to make an agreement on the LC Headed paper. He further stated that after the appellant pleaded to increase the land measurements from 30ft by 60ft he added him 8ft

by 10ft making the measurements 38ft by 70ft and he never sold any other land to the appellant.

- 26. This evidence was further collaborated by DW2, Kasule Semugenze who stated that he made one agreement which was back dated to 18/8/2002 in respect of land measuring 38ft by 70ft. He further stated that he never witnessed the agreement where the appellant was buying 38ft by 70ft at Ug shs 2,600,000/= - 27. From the above evidence, it is clear that the appellant made one purchase in 2002 for land measuring 30ft by 60ft and the 1st Respondent informed Court that after the appellant pleaded, they agreed to add him 8ft by 10ft which totals the land purchased to 38ft by 70ft. the acknowledgement with altered measurements was for receipt of money. The appellant bore the onus to adduce cogent evidence to prove that he actually purchased a second plot which the 1st Respondent clearly informed Court that he had donated to the 2nd Respondent. - 28. The trail Court found that the appellant did not prove on the balance of probabilities that he purchased the second plot thus he was not the lawful owner, and this Court is inclined to maintain the same position. The appellant adduced no substantive evidence to prove his

purchase of the second plot thus Court could not declare him owner of land which he never owned in the first place. The alterations cast a shadow of doubt to the authenticity of the agreement relied on by the appellant to prove ownership of the suit land.

- 29. In re-appraising the evidence, this Court must be alive to the role of the trial Court. This was reiterated in *Brian Kaggwa versus Peter Muramira, Civil Appeal No. 26 of 2009* where the Court of Appeal held that; "*a trial Court, no doubt, is a Court of law and facts. It has no other sources of generating its decision except from the solid facts established before it and from the law governing the subject matter of litigation before it. The Court cannot source for any other evidence. The Court can only rely on evidence presented before it by both parties and determine the party in whose favour the balance tilts and not to rely on logic. The Court has the primary duty to fully and consciously consider the totality of the evidence preferred by all the parties before it in whatever way, ascribe the probative value to it and put it on an imaginary scale of justice to determine the party in whose favor the balance tilts".* - 30. The 1st Respondent led evidence to show the measurements of the land he had sold to the appellant however the appellant failed to

discharge the burden while proving the purchase of the 2nd plot he allegedly purchased from the 1st Respondent. The onus is on a party to prove a positive assertion and not a negative assertion. This means that, the burden of proof lies upon him or her who asserts the affirmative of an issue, and not upon him/her who denies, since from the nature of things, he who denies a fact hardly produce any proof. *(See; Jovelyen Barugahare v Attorney General SCCA No. 28 of 1993).*

31. The principle of law is that a Court has no other sources of generating its decision except from the solid facts established before it and from the law governing the subject matter of litigation before it*. (See; Brian*

### *Kaggwa v Peter Muramira, Civil Appeal No. 26 of 2009).*

32. The question of whether the appellant actually purchased two plots of land or the acknowledgement was altered in regards to the measurements was very critical to the determination of the claim of ownership of the suit property by the appellant. The inconsistences were grave and material. There was no credible evidence of purchase of the suit property by the appellant just like he failed to prove that it was indeed the 1st Respondent that made the alterations in regards to the measurements of the land that was purchased thus this Court finds no reason to depart from the findings of the trial Court therefore, these grounds fail.

Ground 3: The Learned Trial Judge erred in law and fact when she failed to base or rely her decision on the audio evidence and its translation thereby arriving at a wrong decision.

## *Submissions for the Appellant.*

33. That Order 18 rule 11 (1) of the Civil Procedure Rules directs a new Magistrate to deal with evidence as though it was taken down by him/her in the event that the trial magistrate was transferred. That the audio evidence was admitted as evidence at page 4 of the record of proceedings by H/W Patience Lorna Tukundane and the same contained confirmation of the sale of two plots of land to Salongo but the trial Magistrate did not refer to it nor state reasons why she did not rely on it.

### *Submissions for the 3rd Respondent*

34. That the Trial Magistrate evaluated the evidence of the audio and found it to be of little significance in determining ownership of the suit land. That the Magistrate relied on the evidence of DW2, the chairperson and DW4, the handwriting expert which provided more

direct and relevant evidence than the audio. That in the said audio, the appellant stated that there was no balance on the land purchase but during cross examination he stated that there was balance thus discrediting the audio. The audio also did not establish his ownership nor refute the evidence presented by the respondents. That the failure to place emphasis on the audio did not affect the outcome of the case.

35. Counsel relied on the authority of **Dr. Peter Musoke Gukiina v Sudhir Ruparelia & 4 others HCCS No. 002 of 2019** where Court noted that it is trite law that there is need for the person seeking to introduce a data message or electronic record to prove its authenticity. That this was not done by the appellant and it was the reason the audio was disregarded.

# **Consideration of ground 3;**

36. I note that both counsel have submitted on the admissibility and reliance by the Court on the audio recording on the record marked PEX 2. The voices in the audio were identified in Court to belong to Ndagire Deborah a daughter to the 1st Respondent, Kasule Sebugaze, Nabakyala LC1 and Salongo, the plaintiff.

- 37. The admissibility of the audio was challenged in regards to its authenticity. Counsel retaliated that the authenticity could be justified by the witnesses who could identify the voices. That the areas that were not audible, the witnesses could be cross examined thus Court overruled the objection and admitted the audio in evidence as PEX 2. - 38. A cursory perusal of the record of proceedings, shows that none of the people whose voices were identified in the audio led evidence in Court in support of or in collaboration of the same. The appellant stated during cross examination that the audio says that he paid the last installment but that was not true and that he had paid all the money and thus Court should not believe the audio. - 39. Counsel for the 3rd Respondent submitted that in the said audio, the appellant stated that there was no balance on the land purchase but during cross examination he stated that there was balance thus discrediting the audio. The audio also did not establish his ownership nor refute the evidence presented by the respondents in other wards the same had no bearing in proving that the appellant actually purchased the second plot as claimed. - 40. The law is that Courts of law act on credible evidence adduced before them and do not indulge in conjecture, speculation, attractive

reasoning or fanciful theories. *(See; Constitutional Petition No. 14/2011 Advocates Coalition for Development and Environment & Others Versus AG & Anor)*

41. I note that the same related to whether the appellant was indebted to the 1st Respondent or not and not proof of ownership or purchase of the second plot of land as alleged and the Appellant asked Court not to rely on the same, one wonders why he now faults Court for not relying on it. Therefore, the instant ground is resolved in the negative.

Ground 4; The Learned Trial Magistrate erred in law and fact when she heavily relied her decision on the evidence of DW2, the chairperson and DW4, the handwriting expert thereby arriving at a wrong conclusion which led to a miscarriage of justice.

# *Appellant's submissions*

42. It was submitted for the appellant that the agreements in question were made in the presence of DW2 and this was agreed to by all parties making his evidence pertinent in the circumstances. That the 1st and 2nd respondents averred that the appellant altered the agreement to read different measurements which the appellant contested. The appellant averred that the alterations were made by the 1st Respondent which evidence was corroborated by that of PW2 that the alterations were made by the 1st Respondent in her presence which evidence was never rebutted.

43. That the report by the hand writing expert showed that there were alterations but it did not point to who made the alterations and thus the Trial Magistrate heavily relying on such evidence to nullify the appellant's ownership caused an injustice.

## *Submissions for the 3rd Respondent*

44. That DW2 testified that the appellant requested that the sale agreement be back dated which undermined the appellant's credibility and cast doubt on the authenticity of the sale agreements. That DW 4 confirmed that there were alterations but could not conclusively establish who made the alterations thus the trial magistrate concluded that the alterations were made by the appellant.

## *Consideration of ground 4*

45. The settled position of the law is that, where the evidence of a party is riddled with inconsistencies and contradictions, which remain unexplained, their evidence should not only be rejected but that such

contradictions and inconsistencies should be resolved in favour of the opposite party.

- 46. This is the position in **Alfred Tajar vs Ug (EACA) CA No. 167/1967.** Indeed, where such inconsistences and contradictions relate to material facts and touch the very substance of the case, they may be considered as leaning towards deliberate untruthfulness and render the testimony unbelievable. - 47. The appellant's contention was that the alterations in the agreement were made by the 1st Respondent. While writing the judgement, the Trial Magistrate relied on the evidence of DW2 the chairperson and DW4, the handwriting expert. DW2, Kasule Semugenze led evidence showing that he was Chairman LC1 from 2003 to 2012 and was present when the plaintiff now appellant made the final payment of Ug shs 1,100,000/= in 2012. That the appellant brought the acknowledgement from the 1st Respondent showing that he had paid and requested for the agreement to be back dated. He stated that he knew about the one agreement which was back dated to 18/8/2002 and the agreement of 13/8/2012 which he received a copy but it had no alteration and the measurements were 38 by 70ft. he further stated that he never

witnessed the agreement where the appellant purchased 538ft by 90ft at Ug shs 2,600,000/=.

- 48. DW4, Chelangat Sylivia led evidence clearly spelling out the alterations as was captured in the report that was tendered into Court. She stated that there was an alteration of 3 to read 8, original 38 and alteration of 70 to read 90 and the original entry was 38 x 79. In the report it was stated that the laboratory was not in position to establish whether the questioned figures were made on the same date with the body writing, however, the alterations made on the document were made using different writing implements with different ink composition that is why some of the letters reflected and others absorbed. - 49. The Trial Magistrate in her judgement stated that while at locus, the plaintiff now appellant showed Court different corners behind the house on the disputed plot, different from the one he showed Court initially. - 50. The Area chairperson also gave a different version of facts from those of the appellant which were consistent with the evidence of the 1st Respondent/defendant. The Trial Magistrate further noted that the explanation given by the appellant and his wife that the

alterations were made by the 1st Respondent/defendant were not supported by any evidence and a clear perusal of the record, I find none either.

51. Decisions of Court are based on factual events and the evidence adduced before it. The Trial Magistrate was not wrong to rely on the evidence of DW2, the chairperson since he was a direct witness to the transactions and the evidence of DW4 explaining the alterations was all credible and strong evidence to prove the allegations by the appellant. The evidence did not substantiate any of the appellant's claims of ownership or purchase of the suit land. Therefore, this ground also fails.

Ground 5; The Learned Trial Magistrate erred in law and fact when she wrongly held that the appellant voluntarily handed back the suit land to the 1st Respondent and without coercion signed PEXH 6 whereas not**. Appellant's submissions.**

52. That PW1 led evidence on page 5 of the record of proceedings to show that he was threatened into signing the memorandum of understanding and it was not out of his free will, he had been arrested for days without food and was threatened to be taken back to the cells

unless he signed the memorandum of understanding marked PEXH 6. This evidence was corroborated by that of PW2. However, the trial Magistrate stated that there was no coercion and that the memorandum was entered voluntarily. Counsel relied on the case of **Rose Nanfuma Muyiisa v Ruth Kijjambu** where the Court cited **Pao On v Lau 1979 ALL ER 65** at 78 where Lord Scarman held that duress, whatever form it takes, is a coercion of the will so as to vitiate consent… there must be present some factors which could in law be regarded as coercion of the will so as to vitiate the consent.

## Submissions for the 3rd Respondent

- 53. Counsel for the 3rd Respondent in his submissions stated that the claim of duress is unfounded and lacks evidential support. - 54. That the Trial Magistrate examined the circumstances surrounding the signing of the memorandum of understanding and found no evidence of coercion nor did the appellant provide any. That the claim of being threatened with incarceration was not sufficiently corroborated by independent evidence thus the memorandum of understanding was voluntarily signed by the appellant who agreed to return the land.

55. That the appellant voluntarily appeared at the police station and signed the documents Infront of witness. That in the case of Pao On v Lau Yiu Long (supra), Lord Scarman held that for duress to vitiate a contract, there must be "coercion of the will" which the appellant did not demonstrate in this case.

## **Consideration of ground 5.**

- 56. The appellant contends that he was threatened by the 4th defendant and a one Byaruhanga Moses whilst the execution of PEXH 6, the memorandum of understanding where he agreed to hand back the land. He said he was coerced into entering the same after he was threatened with incarceration. - 57. The appellant informed Court that he had been incarcerated for four days for trespass. PW2, the wife to the appellant also informed Court that the appellant was bonded on condition that he gives up the 2nd plot in PEX 1 or else he will be detained again. That when they entered the motor vehicle on 16/08/2018 to go to Lungujja they were not handcuffed and the officers did not have guns. That whilst executing the said memorandum of understanding there was no physical assault,

no guns and no handcuff on either PW2 nor the appellant and after signing they just went home.

- 58. The Trial Magistrate in her judgement relied on the evidence of PW2 who clearly stated that she did not witness any threat or harassment and the appellant was only told to return the plot, that she did not hear threats of killing and it was only threats of incarceration. The Trial Magistrate went ahead to define duress to include a threat of harm made to compel a person to do something against their will or judgement as per the Black law Dictionary 8th Edition page 542) - 59. She relied on the authority of Pao On v Lau (supra) at 78 and stated that the test to determine coercion is that a person must show that he protested to the duress, that he did not have any other alternative course open to him such as an adequate legal remedy and he was independently advised and whether the person took steps after entering it to avoid it. She further relied on the authority of **Nafuuma v Kijjambu CS No. 651 of 2013** where it was held that for it to amount to duress, the threat has to be illegitimate and the threat is always illegitimate if it is to do an unlawful act. Therefore, threatening to do a lawful act does not amount to duress.

- 60. She pointed out that the PW2, the wife of the appellant made it clear that they were never handcuffed, beaten nor did she witness and threats of intimidation and the appellant and his wife gave contradictory evidence thus duress was never proved as the appellant voluntarily handed back the suit land to DW1 without coercion and signed the memorandum of understanding to that effect which bound him to admitting that the land was not his. - 61. **The Contracts Act under Section 2** defines coercion to mean the committing or threatening to commit, any act forbidden by law or the unlawful detaining or threatening to detain, any property to the prejudice of any person whatever with the intention of causing any person to enter into an agreement. Coercion may take different forms i.e. physical threats or acts of violence, threats of unlawful detention, economic duress and others. - 62. The rule of the thumb is that the burden to prove coercion lies with the party alleging it as per **Section 101 of the Evidence Act**. The evidence must establish that the will of the complainant was overborne to the extent that the consent given was not free. As per the evidence led, the appellant and his wife showed that at the execution of PEX 6, there were no threats, no physical assault or guns and they were not

on handcuffs either after which they were freely let to go home. More evidence also showed that the appellant appeared to police on bond for the charges of criminal trespass from where he and the wife we driven to the Chairman Ssendawula Zone where the memorandum was executed.

- 63. I note, the execution of the memorandum was not done at the police station, the appellant was not handcuffed, no guns and no physical assault all of which would tantamount to coercion or duress during the execution of the memorandum. - 64. The appellant only alleges that he was threatened but no act was done in correspondence with the said threats thus falling short on his burden to prove that he was actually coerced into executing the memorandum of understanding where he surrendered back the suit land. The position of the lower Court is thus upheld.

Ground 6; The Learned Trial Magistrate erred in law and fact when she failed to find and or establish that there was connivance between the respondents intended to steal the interest of the appellant in the suit land.

**Appellants submissions**

- 65. That it was the evidence of the 1st and 2nd Respondents that the suit land was given to the 2nd respondent by the 1st Respondent in 2009. The 2nd respondent reported the appellant for criminal trespass as the land had been given to him as a grant however during cross examination DW7 Okurut Khadir stated that the 2nd respondent reported the appellants for criminal trespass and forgery which warranted him to take the appellant's original sale agreement. - 66. That this showed that the 4th Respondent connived with the 1st and 2nd respondent to have the appellant's original agreement taken from him and coerce him into entering a memorandum of Understanding surrendering an agreement that was not in his possession. - 67. That the original agreement was deposited in court on 19/02/2020 and the trial Magistrate referred to the 4th respondent's action as doing his job despite having acted beyond the confines of the same. That the donation deed dated 15/4/2009 identified as DID 1 was an afterthought by the 1st and 2nd respondents to deprive the appellant of his land as the requirements of a gift inter vivos were not satisfied. - 68. Counsel relied on the authority of Joy Mukobe v Willy Wambu HCCA No. 55 of 2005 which are the intention to give the gift, the donor must deliver the property and the done must accept the gift. That neither the

donor nor the done knew the measurements of the land referred to in the deed, the 2nd respondent only took possession in 2018 when he reported the appellant for criminal trespass which shows that he did not accept to gift at the time it was delivered which was an afterthought ploy by the 1st and 2nd respondent to deprive the appellant of his land, connivance the trial magistrate failed to see thus occasioning the appellant a miscarriage of justice.

### **Submissions by the 3rd Respondent.**

69. That the appellant failed to provide any convincing evidence of connivance among the respondents thus the trial Magistrate properly assessed the evidence and concluded that there was no conspiracy as the respondents acted in the confines of the law and the transactions were carried out with transparency. The allegation of connivance is speculative and unfounded.

#### **Consideration of Ground 6**

70. The Appellant contends that the 1st and 2nd Respondents fraudulently conspired to deprive him of his land through a purported donation deed executed in 2009, and that this transaction was a coverup to justify the subsequent criminal trespass charge against him. The

Appellant further alleged that the 4th Respondent (police officer) colluded with the 2nd Respondent by unlawfully confiscating the Appellant's original sale agreement, which was used to pressure the Appellant into signing a Memorandum of Understanding surrendering land rights he no longer had control over.

- 71. The deed of donation (DID 1), upon which the 2nd Respondent based his claim of ownership, was argued to be invalid due to failure to meet the criteria of a gift inter vivos namely: Intention to donate, delivery of the gift and acceptance by the done. It was noted that the 2nd Respondent only took possession in 2018, nearly a decade after the alleged donation in 2009, suggesting no actual delivery or acceptance had taken place at the material time. Furthermore, the fact that both the donor and donee were unaware of the measurements of the land raises doubts about the genuineness of the purported gift and its legal effect. - 72. These events, combined with the removal of the Appellant's sale agreement reasonably raised the possibility of collusion, which the trial court did not adequately consider. - 73. The Respondents argued that there was no proof of conspiracy, and that the 2nd Respondent lawfully acquired the land by donation. The

4th Respondent was merely executing his lawful duties. The allegations of collusion were said to be speculative and unsupported by direct evidence.

- 74. Connivance or conspiracy, even in civil matters, can be inferred from circumstantial evidence, particularly when actions appear coordinated and adverse to another's property rights. It need not be proved to the criminal standard, but must be shown to be more probable than not (balance of probabilities). - 75. The authority of **Joy Mukobe vs Willy Wambu HCCA No. 55 of 2005** correctly states that for a gift inter vivos to be valid, all three essential elements must be present. A gift where the donee fails to take possession for nearly 9 years, and where the donor and donee lack knowledge of the property dimensions, casts doubt on the intention and completion of the gift. - 76. The Trial magistrate's failure to interrogate the circumstances of the donation, the delayed possession, the removal of the sale agreement by police, and the pressure placed on the Appellant through a criminal complaint amounts to a misdirection in fact and law. There was sufficient circumstantial evidence to raise serious doubts about the legitimacy of the donation and to warrant an inquiry into possible

connivance. The trial court's finding to the contrary was made without proper evaluation of these facts and accordingly this ground succeeds.

Ground 7; That the trial Magistrate erred in law and fact when she wrongly held that the plaintiff has no ownership of the suit land whereas not.

### *Submissions for the Appellant*

- 77. That the appellant had conducted a sale agreement with the 1st Respondent in the presence of Nassali Agnes who witnessed the making of the sale agreement and it was stated by the 1st Respondent that he signed the agreement selling to the appellant who obtained ownership of the suit land. Counsel relied on the authority of Issaka Ssemakula & Flavia Katende v William Setimba HCCA No. 05 OF 2013 citing H. M Kadingidi v Essence Alphonse HCCA No. 289 of 1986 where Ntabgoba PJ (as he then was) held that; a purchase who has concluded a sale agreement with the owner, immediately becomes the owner of the land and the vendor becomes his trustee in title. - 78. This is because the purchaser is potentially entitled to the remedy of specific performance, he obtains an immediate equitable interest in

the property for he is or soon will be in a position to call for it specifically.

79. That the act of coercing the appellant to sign the memorandum of understanding, PEXH 6 indicating that he had relinquished the land back to the 1st Respondent corroborates the fact that the appellant had rightly bought the suit land from Mpalaganyi Isaac but was forced to return it. That the memorandum was void as the land remained vested in the appellant and did not pass back to the 1st Respondent thus the trial Magistrate wrongly held that the plaintiff had no ownership in the suit land.

### **Submissions by the 3rd Respondent.**

80. That the appellant did not prove ownership of the suit land as his claim was based on questionable and unsubstainted documents particularly the sale agreement which evidence the trial Magistrate's conclusion was based to find no proof of ownership of the suit land.

#### *Consideration of ground 7*

81. The Appellant contended that he acquired the suit land through a sale agreement executed with the 1st Respondent and witnessed by Nassali Agnes. He relied on legal authorities that confer equitable

ownership upon a purchaser who concludes a sale agreement with the lawful owner, arguing that this interest was never legally revoked despite the existence of a Memorandum of Understanding (PEXH 6) allegedly signed under coercion.

- 82. However, the Trial Magistrate, upon evaluation of the evidence, found inconsistencies in the Appellant's documents and narrative. Notably, there were two different sale agreements, dated 2002 and 2012 respectively, containing contradictory land measurements and purchase prices. These inconsistencies cast doubt on the authenticity and credibility of the Appellant's claim. - 83. The 3rd Respondent correctly submitted that the Appellant's documentation lacked credibility and failed to establish a coherent claim to ownership. The authority cited by the Appellant, while correct in principle it applies only where the sale agreement is proven to be genuine, consistent, and executed by the true owner of the land. In the instant case, the Appellant failed to satisfy this threshold. - 84. Moreover, the Appellant did not provide reliable evidence of actual possession or clear boundaries of the disputed land. The trial court was justified in questioning whether the sale agreement related to the suit land at all. The burden of proof rested with the Appellant, who had the

obligation to prove ownership on the balance of probabilities, a burden he failed to discharge.

85. The Trial Magistrate, therefore, rightly concluded that the Appellant had not proved ownership and that the purported sale agreement did not establish a valid claim to the suit land. This Court finds no fault in the trial court's reasoning or conclusion. Accordingly, ground 7 of the appeal fails.

*Ground 8: That the learned trial Magistrate erred in law and fact when she failed to act as an umpire of Court thereby committing several procedural errors.*

# *Submissions by the Appellant*

86. Counsel for the Appellant submitted that by failing to find that there was connivance among the respondents and failing to see the coercion that vitiated the appellant's consent, the Trial Magistrate failed to act as an umpire of Court. The failure to make reference to the audio taken in as evidence also amounted to a procedural error that occasioned an injustice to the appellant.

# *Submissions by the 3rd Respondent*

Type text here

87. That the Trial Magistrate acted impartially and in accordance with the law. The Appellant's claim of procedural errors is unsubstantiated as the Magistrate followed the correct procedures in evaluating the evidence and issuing the judgement. That the assertion of procedural errors is a mere attempt to distort the record and does not reflect any actual mistakes made by the trial court.

#### *Consideration of ground 8*

- 88. The Appellant alleged that the Trial Magistrate failed to act as an impartial umpire by overlooking key aspects of the evidence, particularly the alleged connivance among the Respondents and the coercion that vitiated the Appellant's consent to sign the Memorandum of Understanding. Additionally, it was argued that the court failed to properly consider an audio recording that had been admitted into evidence, which constituted a procedural error. - 89. While these allegations were raised in submissions, the record does not support a finding that the Trial Magistrate deviated from the established rules of evidence or procedure. The mere failure to agree with a party's version of events does not amount to partiality or procedural irregularity.

- 90. The Trial Magistrate rendered a reasoned judgment, analyzing the evidence as presented and reaching conclusions supported by the balance of probabilities, the standard required in civil matters. The claim that the court failed to refer to the audio evidence is not substantiated with specificity there is no indication that the Appellant brought this omission to the trial court's attention through an application for reconsideration or clarification. Nor has the Appellant demonstrated how the audio would have materially altered the outcome of the case. - 91. Moreover, the claim of coercion was evaluated and rejected by the trial court on grounds of insufficient evidence. Disagreement with these findings does not equate to a procedural irregularity. There is no indication on the record that the Trial Magistrate acted with bias, failed to observe fair hearing standards, or departed from the prescribed court procedures. - 92. There is no merit in the claim that the Trial Magistrate failed to act as an impartial umpire or committed procedural errors that resulted in a miscarriage of justice. The trial was conducted fairly, and the findings of the court were within the scope of its legal mandate. The

assertions of procedural irregularities are unsubstantiated and speculative thus this ground of the appeal fails as well.

93. Therefore, the instant appeal is hereby dismissed by this court with no orders as to costs

**I SO ORDER**.

# **NALUZZE AISHA BATALA**

## **Ag. JUDGE**

# **15th /05/2025**

## **Delivered electronically via ECCMIS on the 15th day of May**

**2025.**