[2017] UGCA 147

## THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

### CIVIL APPEAL NO 0183 OF 2014

(Arising from High Court Civil Appeal No.71 of 2012)

(Arising from Mengo Civil Suit No.690 of 2007)

SSEBIRAGALA RONALD LULE:::::::::::::::::::::::::::::::::::

#### **VS**

WASSWA DAVID:::::::::::::::::::::::::::::::::::

CORAM: HON. MR. JUSTICE REMMY KASULE, JA

HON. MR. JUSTICE RICHARD BUTEERA, JA

### HON. MR. JUSTICE CHEBORION BARISHAKI, JA

#### JUDGMENT

This is a second appeal arising from the decision of Justice Joseph Murangira, J, delivered on the 30^th day of August, 2013 in which he dismissed the appellant's appeal and entered judgment in favor of the respondent in the following terms:

a) The appeal is dismissed $1$ | Page

- b) The decree and orders of the trial Court are upheld - c) A consequential order directing the Commissioner Land Certificate of Title to the suit land and then insert thereon the narnes of the respondent; and amending the Register Book accordingly, within l4(fourteen) days from the delivery of the judgment is granted Registration to cancel the appellant's narnes from the - d) The respondent is awarded costs of the appeal and of the trial Court

T e facts giving rise to tl e Appeal as can be gathered from the re ord of Appeal are as follows: The plaintiff (now appellant) who is rh registered proprietor of the suit land described as Mengo Kibuga BI ck 14 Plot 1465 situate at Ndeeba as an administrator of the CS ate of the late YESE KIGOZI WAVAMUKOZI sued the defendant tr pass, an injunction restraining the defendant from further d lopments on the land, costs of the suit and vacant possession of the property. The defendant denied the plaintiffs claim and co nterclaimed for general damages for disturbing eful (nqw the respondent) at Mengo Chief Magistrates Court for

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enjoyment of his land and a declaration that the suit land belongs $\phi$ him having received the same as a gift inter vivos from his father, the late Kigozi Wavamukozi Yese. Judgment was given in favor of the defendant on 31^st August 2012. Being dissatisfied with the judgment, the appellant appealed to the High Court which dismissed his appeal in the terms indicated earlier, thus, this Appeal.

The grounds of Appeal as they appear in the amended Memorandum of Appeal are:

- 1. *The learned Judge erred in law when he ruled that the gift inter vivos was lawfully executed and valid.* - 2. The learned appellate Judge erred in law when he ruled that it *was not a legal requirement for the children to get notice of the giving of the gift inter vivos, if at all it was given.* - 3. The learned appellate Judge erred in law when he ruled that the point of law on gifts inter vivos was not supposed to be raised on appeal because it was not raised in the trial Court.

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- 4. The leqrned Appellate Judge erred in lana when he upheld the counter clqim qnd ordered -for consequential orders of cancellation of the Appellant's name from the Certificate of Title of the suit land. - 5. The learned Appellate Judge, erred in law, tuhen he upheld the order of pagment of general damages by the Appellant.

A t the hearing of the Appeal, learned counsel Mr. Abaine Jonathan and Mr Omony Stanley appeared for the Appellant while learned ^counsel Mr. Candia Alex, Mr. Akuku Savior and Mr. Oundo David ^Vy'andera appeared for the Respondent. Both parties were present.

Counsel for the appellant submitted that there was no proper valuation of evidence by the lirst appellate Court and invited this ourt to look at the whole record from the Chief MAgstrate's Court ^bcome to its own conclusion. e' C t(

n ground 1 of the Appeal, counsel for the appellant argued that e suit land was neither gifted nor donated to the respondent by e late Kigozi Wavamukozi Yesse (herein referred to as the C J ,tr d gr 4 ^eceased). Counsel contended that the deed of donation was not a ift in law because the beneficiaries were not aware ab , the PaBe

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d scription of the suit land was not given, the respondent was never I troduced to the LC of the area save for the LC1 chairman where was introduced as a care taker of the land but not as an owrrer.

I ounsel further submitted that the suit land being registered land; could only be validly donated by way of the donor signing transfer rms, which was not done in this case.

ounsel faulted Justice Murangira for holding that the appellant's e was illegally entered on the certificate of title because, he was ntered therein as administrator of his late father's estate as tipulated under S.134 of the Registration of Title's Act (RTA) et sl

n ground 2 of the Appeal, counsel for the appellant faulted the arned appellate Judge for holding that it was not a legal ivay tlre suit land as gift inter uiuos. He argued tJlat the pneficiaries to the deceased's estate ought to have been informed Iat the suit land was given to the respondent because they were :ing to lose the beneficial interest in the land. He contended that ev. Senoga who was alleged to have delivered the deed of donation not known to the family of the deceased. 1e ar tl g( o b R I r\$quirement for the children of the deceased to get notice of giving

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n the 3rd ground of appeal, counsel for the appellant submitted t at a party can raise a point of law at any stage of proceedings en on appeal. He argued that the point of law was about the ^I gality of the deed of donation without the same being witnessed. e buttressed his submission with Makula International VS Qardinal Emmanuel Nsubuga SCCA No.4 of 1981.

n ground 4 of the Appea.l, counsel submitted that the learned Jrudge misconstrued section I77 of the RTA when he ordered cipcellation of the name of the appellant from the certificate of title. ^Hb argued that the title of a registered proprietor can be canceled ^oJ,t, t" for fraud under section 177 and 176 of RTA. He contended that t1 "rl e appellant was lawfully registered as administrator of the estate his late father, there was no fraud whatsoever on his part.

o ground 5 of the Appeal, counsel submitted that the order of o ^b neral damages was erroneously awarded since it was the duty of appellant as an administrator to demand the respondent to v ate the land because he didn't have the right to the land. He th refore prayed that it be set aside.

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ounsel for the appellant faulted the learned Judge for finding that e signature of ttre donor was genuine after he had disregarded the ^e rt evidence presented in the lower Court.

^I reply, counsel for the respondent argued grounds 3 and 5 of the erit. On ground 5, counsel submitted that for an appellate Court t interfere with the decision of an award of damages, it must be ^S own that the awarding Court erred in principle or the award is so ifestly high or so low to amount to a miscarriage of justice. He ed that the appellant did not address Court on the ground r ting to general damages, and as such, Court did not see how the d cision of the trial Court could be interfered with. He relied on ^S 0 of the Judicature Act and 5.66 of the Civil Procedure Act to Appeal together. He submitted that the said grounds have no support his submission.

C unsel for the respondent submitted that the framing of ground 3 of e Appeal offends Rule 86 (1) of the rules of this Court by failing to speci\$r what points of law the appellate Judge refused to be r ed. He therefore urged this Court to strike out the same. He re ed on Monday Eliab vs. Attorney General SCCA No. 16 of

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10 and APKM Lutaaya vs. Sterling Civil Engineering Co. Ltd CA No.3 of 2Ol4 to support his submission.

unsel submitted that the argument that the suit propert5r is erent from that donated to the respondent (if any) did not arise the lower Courts, and that, it is being raised for the first time on peal and therefore is unlaw{ul. He argued that the submissions which contravenes the rules of this Court because it was thout leave of Court and is a clear departure from pleadings. He ed that the said evidence should be expunged. He relied on rfreight For:warders (Ul Ltd v East Afrlcan Development Civll Appeal No.33 of 1992 (SC) to support his submission. rlgarding the description of the suit land is new evidence from the

unsel for the respondent submitted that counsel for the appellant arguing matters of evaluation of evidence without seeking leave er the sarne was omitted in the amended memorandum of a-1. Counsel argued that raising matters of evaluation of dence at this stage would be an abuse of Court process after king leave from this Court earlier to amend the original grounds ch included evaluation of evidence. He therefore prayed that all

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bmissions which relate to evaluation of evidence or findings of ct by the lower Courts be either expunged or not considered in the dgment.

bmitted that the execution of the deed of donation was valid in . He argued that the deceased became the equitable owner of the t land by purchase in 1994 and therefore had power to donate sarne to the respondent. Counsel contended that the uirement to sign transfer forms in order to pass interest in land a gift inter uiuos is in respect of legal interest as opposed to table interest. He further submitted that, as far as equitable sts are concerned, there is no legal requirement for station, all that is required is for the donor to reduce tire tion into writing and then sign. He relied on Erukuna Kuwe v bhai Damji Vader SCCA No.2 of 2OOO and Pelagia port his submissions Oh grounds 1 and 2 of the Appeal, counsel for the respondent Ka]kuleremu Vs. Paulini Manyindo, HCCS No. MFP 2611990 to

nsel submitted that there is no legal requirement for a donor to notice for a donation to be va-lid. Counsel contended that the

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se of Nangobl Jane & 2 ors Vs. Sophatia, Beihi and 3 Others CA No. OO97 of 2O11 is distinguishable from the present case d did not lay down any rrrles to the effect that children are erltitled to notice of a donation.

pported the learned Judge's holding on the consequential order. argued that the suit property was not part of the estate of the ased and as such, it did not devolve on the appellant. He ed that the appellant was illegally registered on the certificate title which entitled the learned Judge to make consequential ers to cancel his name from the certificate. He relied on Uganda ng Corporatlon Vs. Sinba Kenga Llmlted, CACA .72 of 2074, Slnba Kenga Llmtted & Others Vs. WC SCCA 3 and Ssemalcrtla Vs. Ssetlmba IICCA No. S of 2073 to port his submissions. He prayed tlat the Appeal be dismissed. R{garding ground 4 of the Appeal, counsel for the respondent

have studied the record of Appeal and the judgments of the r Courts. We have considered the submissions of counsel for parties and the authorities that were availed to Court.

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age This being a second Appeal, we find it necessary to remind ourselves of our duty. The civil procedure Act provides:

## 72. Second appeal.

(1) *Except where otherwise expressly provided in this Act or by any* other law for the time being in force, an appeal shall lie to the Court of Appeal from every decree passed in appeal by the High Court, on any of the following grounds, namely that—

(a) the decision is contrary to law or to some usage having the force of $law$ ;

(b) the decision has failed to determine some material issue of law or usage having the force of law;

$(c)$ a substantial error or defect in the procedure provided by this Act or by any other law for the time being in force, has occurred which may possibly have produced error or defect in the decision of the case upon the merits.

Rule 32 $(2)$ of the rules of this Court provides:

"On any second appeal from a decision of the High Court acting in the exercise of its appellate jurisdiction, the court shall have power to appraise the inferences of fact drawn by the trial court, but shall not have discretion to hear additional evidence".

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In Kifamunte Henry v Uganda SCCA No.1Ol1997, it was held tllat "Once it has been estqblished thot there tDqs same competent elidence to support a finding offact, it is not open, on second appeal tlgo into the sulficiencg of that euidence or the reasonableness of the fihding. Euen if a Court of first instance has wronglg directed itself on alpoint and the court of first appellate Court hc"s wronglg held that thf tnd Court correctlg directed itself, get, if the Court of first appeal hQs correctlg directed itself on the point, the second appellate Court clnnot take a different uiew R. Mohamed Att Hasham vs. R (1941) 8 8.4. C. A.93.

Ol second appeal the Court of Appeal is precluded from questioning thp findings of fact of the trial Court, prouided that there was euldence to support those findingq though it mag think it possible, or eupn probablg, that it utould not haue itself come to the same colpclusion; it can onlg interfere uhere it considers that there u)as no arbence to support the fi.nding of fact, this being a question of laut: R. I us. Ilassan btn Scid (1942) 9 . EA. C. A. 62". It as further held that:

"Ttlis Court uill no doubt consider the facts of the appeal to the ertent of +o nsideing the releuant point of law or mixed law and fact 'i"-" t2 ised

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anA appeal. If we re-eua"luate the facts of each case wholesale we ^u assume the duty of the first appellate Court and create cessary uncertaintg. We can interfere with the conclusions of the urt of Appeal if it appears that in its consideration of the appeal as rst appellate Court, misapplied or failed to applg the principles sel t in such decisions as Pandua (supra) Ruwala(supra) iru(supra)".

shall bear the above principles in mind while resolving thrs peal.

find it necessarJr to handle the issue of re-evaluation of evidence sed by counsel for the appellant. As rightly pointed out by nsel for the respondent, failure to evaluate evidence was not one much as it was in the original Memorandum of Appeal. We are of view that by abandoning it in the amended Memorandum of peal, counsel for tJ:e appellant was satisfied with the evaluation evidence by the lower Courts. Be that as it may, Rule 32(2) ra gives this court power to appraise the inferences of fact wn by the trial court. of the grounds of Appeal in the amended Memorandum of Appeal in

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^er ^studying the record of Appeal and the trial proceedings, we are s drawn by the trial Court and how the same were dealt with by e appellate Court of first instance, we are constrained to reach a erent decision. o{ the considered view that by way of appraising the inferences of

find it relevant to reproduce the contents of exhibit D2 which is alleged donation whose validity is being challenged. It reads as fo ows:

"To my son WASSWA DAWD WALUSIMBI at Nansqnq. How qre Aou mA children? Thankgoufor the uorkgou do.

Mg son, I called gou q long time ago to come and clear gour part in Kibuge, do not fear your brothers; Aou cqn also see that there is not much theg can manage to do. That is whg I haue asked you to come to this place. I haue giuen it to gou when I om still oliue. Do not accept anAone to disturb gou. I shall take gou to all the authoities concerrled and introduce llou euen to tlrc one I bought this land from. I ask gou mA son to come and deuelop the place. No one uill chase gou off the land because all of them are aLuare of the deuelopments. But, please, neuer sell this lond.

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It is, I, gour father, SALONGO KIGOZI YESE. W. who hque sent mA brother REy. SSE/VOGA. Y. to hand to gou this letter phgsicallg."

T e said letter of donation does not give particulars of the land that dence adduced, the suit land had clear description since it was ti ed land. The sa-le agreement mentioned four plots namely 483, 4 , 485 and 486, later amalgamated to form on tifle Mengo Kibuga B1 ck 14 Plot 1465. Further, on 17 /7 /1996, the deceased entered a m tual understanding with Kizito Dick regarding construction of a el between their Plots No. 485 and 488 respectively. Plot 485 is part of the suit land. This letter of donation was made on ³¹ ¹⁷/1996 just two weeks after the mutua-l understanding. the deceased was giving to the respondent or the size; it simply sdys"...clear gour part in Kibuye". Yet by 1996, on the basis of

be introduced to the person who sold the suit land to the de eased and all authorities in the area. The most that was done to introduce the respondent to the LCl Abdu Kasule (DWl) as a on, not as the donee of the property. It is no wonder that DWl du g examination in chief (page 172 of record of procee 15 ^I Page 1ngs) So[ne of the things mentioned in the letter were never done such as

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t stified that "The late did not tell me that the land utas giuen to uid Wa.sslua but onlg introduced him as his son whom he had b ht on the Kibanja.

ther. Now I don't know the otuner. It depends on their familg. Their ther was Wauamukozi Salongo.... It is hard to tell if the land longs to Wqsswa Richord Wassuta was first introduced qs an in la a' Dlrring cross exarnination he testified tl,at "The land was for their lqil). Later he introduced Dauid Wassuta as hls son to stag on the

rther, it is noted that in the letter the respondent was warned not to sell the land, however, part of Plot 485 was sold by both the ^a pellant and respondent to Kizito Dick on |6/L2/2OO3. The 1n ^erence drawn from this is that this was a breach on the part of th respondent.

^W therefore find that exhibit D2 was not a donation at a]l as it do s not describe the property which is alleged to have been do ted to the respondent. By the respondent selling part of the all gedly donated land, an adverse inference ought to have been

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drawn that the respondent never felt bound by the terms of the donation, which clearly stipulated that he was not to sell that land.

In light of the foregoing, we are of the considered view that our finding and conclusion that the donation of the suit land to the respondent was not proved. This disposes of ground 1 of the Appeal and substantially the whole Appeal. As such we do not find it necessary to consider the other grounds of Appeal.

Before taking leave of this matter, we are of the view that issues surrounding the respondent's parentage need to be resolved before distribution of the estate because if it is true that he is a son of the late Salongo Yese Wavamukozi, then he would be entitled to a share in the estate of his father as a beneficiary. This would in our view prevent more suits arising out of the same estate.

Further, the appellant should be reminded that he as an administrator of the late father's estate stands in a fiduciary position to the trust property and beneficiaries. By himself going behind the backs of the beneficiaries and conniving with the $\mathcal{M}$ 17 | Page

respondent to sell the suit land which forms part of the estate, when the said estate had not yet been realized and distributed the appellant acted in bad faith. He like the respondent, did not come to Court with clean hands.

In conclusion, the appeal is allowed and the orders of the High Court are set aside. We make the following orders;

- 1. The suit land belongs to the estate of the late Salongo Kigozi Yese Wavamukozi. - 2. The consequential order to cancel the appellant's name from certificate of title is set aside. - 3. We make no order as to costs since both the Appellant and the Respondent did not come to Court with clean hands.

the day of Elsouary 2017 Dated this $\mathcal{J}$ . Umusiem HON. MR. JUSTICE REMMY KASULE, JA 18 | Page

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