[2018] UGHCLD 84

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (LAND DIVISION) CIVIL APPEAL NO.21 OF 217 (ARISING FROM WAKISO MAGISTRATES COURT CIVIL SUIT

## NO.140 OF 2012)

#### **SSEMPALA ERIA :::::::::::::: ..................................... VERSUS**

NTAGANIRA JOSEPH:::::::::::::::::::::::::::::::::::: (Appeal from the judgment of Magistrate Grade 1 at Wakiso dated 28^thFebruary 2017 in Civil Suit No.140 of 2012) BEFORE: HON. MR. JUSTICE BASHAIJA K. ANDREW

### **JUDGMENT:**

Ssempala Eria *(hereinafter referred to as the "Appellant)* brought this appeal against Natganira Joseph (hereinafter referred to as the "Respondent") challenged decision of His Worship Kirya Martins Magistrate Grade 1 of Mpigi at Wakiso *(hereinafter) referred to as the "trial court"*)delivered on $28/02/2017$ .

## Brief background:

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The Respondent, a money lender, acquired land comprised in Busiro Block 358 Plot 4 at Sumba Nsangi Sub-county (the "suit 25 *land*") in December 2009. This followed a compromise between him and the then registered proprietor who had pledged the suit


**FEES PAID: RECEIPT NOK** HIGH r **URT OF** DATEL.

- land to the Respondent as security for a loan. The suit land was $\mathsf{S}$ occupied by Bibanja owners who included the Appellant. After acquiring the suit land the Respondent sought to evict the Appellant on the grounds that he is not a lawful Kibanja owner. The Appellant resisted and the Respondent sued him in the Wakiso Magistrate Grade 1 Court. The trial court held in favour 10 of the Respondent. Being aggrieved by that decision, the Appellant filed this appeal and advanced the following grounds: - 1. The learned trial magistrate erred in law and fact. when he failed to properly evaluate the evidence adduced at the hearing and arrived at a wrong conclusion that the Appellant was not a Kibanja owner on the suit land but a trespasser. - 2. The learned trial magistrate erred in law and fact when he failed to consider the fact that the appellant acquired and possessed the Kibanja on the suit land right from 2006 before the Respondent acquired registration of the land in 2009 and that the Appellant had been recognized as a Kibanja *holder by the previous owners.*


- 3. The learned trial magistrate erred in law and fact to rely and base his decision on the findings of the criminal trial against the appellant which was contested and subject of a pending appeal - 4. The trial magistrate erred in law and fact to find that the appellant's purchase agreements for the Kibanja were forged whereas not - 5. The learned trial magistrate erred in law and fact to consider extraneous matters and make them the basis of his findings when such matter did not form part of the evidence adduced at the hearing - 6. The learned trial magistrate erred in law and fact when he failed to consider the fact that the respondent and one Musisi Rogers never acquired the suit land through outright purchase but by virtue of a consent order passed in court.

The Appellant prays that his appeal be allowed and the judgment of the trial court be set aside; that he be declared a Kibanja owner on the suit land; and that the Respondent pays the costs of this appeal and in the court below.

**CERTIFIED TRUE** $\overline{3}$ ORIGINAL

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The Appellant is represented by Mr. Tumwebaze Lawrence and $5^{\circ}$ Mr. Kazungu Apollo represents the Respondents. They filed written submissions to argue the appeal and supplied authorities for which I must thank them.

The duty of this court as the first appellate court is to review the evidence and the materials afresh and draw its own conclusions 10 and inferences. In so doing, however, this court must bear in mind that it neither saw or heard the witnesses as they testified and should therefore, make due allowance for that fact. See: Pandya vs. R. (1957) E. A. 336 and Okeno vs. Republic (1972) E. A. 32; Kifamunte Henry vs. Uganda SCCA No.10 Of 1997) 15 which cited Fr. Narsensio Begumisa &Ors vs. Eric Tibebaga SCCA No.17 of 2002.

It is also important to note that in ordinary civil cases, such as the instant one, the plaintiff bears the burden to prove his or her case on a balance of probabilities. See: **Uganda Petroleum Co.** 20 Ltd vs. Kampala City Council (Land Division)HCCS No. No.250 of 2005. Therefore, the Respondent who was the plaintiff at the trial was duty bound to discharge that burden to the required standard. Nevertheless, owing to the allegations of forgery of sale agreement which raise the issue of fraud, it 25


required a higher standard of proof than the balance of $\mathsf{S}$ probabilities but lower than proof beyond reasonable doubt required in criminal cases. See: **Kenyenya & 2 Ors vs. Nabikolo** & 4 Ors HCCS No. 771 of 2007.

In Kampala Bottlers Ltd vs. Damanico (U) Ltd, SCCA No. 22 of 1992 the position is that even where fraud is proved, it must 10 be attributable directly or by necessary implication, to the transferee. Wambuzi, C. J stated at page 7 of his judgment;

"...fraud must be attributable to the transferee.....it must be attributable either directly $or$ bu necessaru implication....the transferee must be guilty of some fraudulent act or must have known of such act by somebody else and taken advantage of such act."The learned Chief Justice as he then went further and stated that;

"...it is generally accepted that fraud must be proved strictly, the burden being heavier than on a balance of $\frac{1}{2}$ 20 *probabilities generally applied in civil matters.*"

In Fredrick J. K Zaabwe vs. Orient Bank Ltd &5 others SCCA No.4 of 2006the Court adopted the definition of "fraud" in


BLACK's LAW DICTIONARY 6^TH Edition at page 660, and went on $\overline{5}$ to define the word fraudulent as follows;

"To act with "intent to defraud" means to act willfully, and with the specific intent to deceive or cheat; ordinarily for the purpose of either causing some financial loss to another, or bringing about some financial gain to oneself."

I will follow the definition and principles enunciated above in the consideration of the grounds in this appeal. Ground 1 and 2 are interrelated and shall be resolved jointly.

Ground 1: The learned trial magistrate erred in law and fact when he failed to properly evaluate the evidence 15 adduced at the hearing and arrived at a wrong conclusion that the Appellant was not a Kibanja owner on the suit land but a trespasser.

Ground 2: The learned trial magistrate erred in law and fact when he failed to consider the fact that the 20 Appellant acquired and possessed the Kibanja on the suit land right from 2006 before the Respondent acquired registration of the land in 2009 and the Appellant had been recognized as Kibanja holder by previous owners.

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The record of appeal, at page 108, the Appellant as DW1 gave $\mathsf{S}$ evidence that he owns a Kibanja on the suit land which he acquired by purchasing it in pieces in 2006, 2008 and 2009 from one Fred Magemo, Ddamulira Tebusweke and Nassanga Rose, respectively. At page 148-158 (supra) the Appellant exhibited the sale agreement. $110-$ At pages 10 113(supra)Christopher Sebuliba and his wife Harriet Nakayiira who are the former registered proprietors of the suit land testified and confirmed that the Appellant was a Kibanja owner on their land. The trial court also visited the locus in quo and at page 73(supra)made a sketch plan that shows existence of the 15 Kibanja holding with houses and gardens. Dhamulira Tebusweke and Magemo Fred from whom the Appellant claims to derive his Kibanja interest did not testify. However, one of their sons DW5, at page 115(supra) and page 65-66 testified that Dhamulira Tebusweke sold part of his Kibanja to Fred 20 Magemo who later sold it to the Appellant. Further, that the Appellant has been their neighbor for a long time and has houses and gardens on the Kibanja.

Counsel for the Appellant submitted that the trial court did not consider all this evidence in its evaluation of the evidence. 25


That the trial court ought to have also considered the evidence $\overline{5}$ that whereas the existence of the Kibanja dates back to 2006, the Respondent only acquired the suit land in 2009; which means that his acquisition of the registered interest was subject to the existing interests of the bibanja owners who included the Appellant. 10

The Respondent, at pages 25-40(supra) contended that the trial court adequately evaluated the evidence before it and concluded that the Appellant was not a Kibanja owner. That the trial court also rightly considered the fact that the Appellant fraudulently acquired the Kibanja and that the 15 Appellant, at page 108(supra) tendered in evidence three agreements which were found to be faulty. That the first irregularity was that they were all witnessed by the Appellant's relatives to wit; his wife Irene, his father - in - law Fred Magemo, his elder brother Kigwanyi Joshua and cousin 20 Kiyimba Edward. That no local official or neighbor were involved or signed the agreement; which is an indicator of connivance. Further, that the named relatives were convicted together with the Appellant for forgery in 2015 and therefore the trial court rightly found that the Appellant connived with

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relatives to defraud the Respondent of his land. $\mathsf{S}$

Counsel further submitted that the trial court could not rely on Sebuliba because he was still annoyed for losing his land. That at page 62(supra) it is shown that the agreement relied on by the Appellant was signed in 2008 and the LC1 stamp was only put on it in 2011. That even DW4 who stamped it admitted that he was not the LC1 Chairman of the area at the time and that he merely stamped the agreement just to convince the bank to advance the Appellant a loan. Counsel. also pointed out that DW2 denied receiving a Kanzu or any Busuulu payment from the Appellant as a Kibanja owner. That the trial court in its evaluation of the evidence, at page 91(supra) found that the Appellant's evidence was full of grave inconsistencies and contradictions in that it was not logical to pay Busuulu to the landlord who denied the same.

Counsel for the Appellant submitted in rejoinder and denied 20 that the Appellant ever acted as broker when the Respondent was purchasing the suit land. That the Respondent never purchased the suit land but acquired it through compromise in a civil suit where he had been involved with the previous owners. That this was the reason why it was difficult for the 25

**Liston** Respondent to know the encumbrances (Bibania owners) that $\mathsf{S}$ existed on the suit land and took the suit land as it was.

Further, that the Appellant had no obligation to disclose to the Respondent that he had a Kibanja on the suit. That the Respondent having acquired interest in the suit land that interest was subject to that of all the Bibanja owners. Counsel also disputed the claim that the Appellant constructed houses on the suit land only in 2010. That instead his Kibanja interest in the suit land dated back to 2006 and that this was even the observation at the locus in quo visit. That it is also not true that the witnesses on the sale agreement are relatives of the Appellant as no such evidence is on record. That even if they were, they are not precluded by law from witnessing an agreement.

Regarding the Busuulu, counsel argued that the same was $20$ paid to Sebuliba Christopher who was husband to Harriet Nakayira and so the land was family land and the Busulu was received for family as a whole and as such all the necessary Busuulu was paid. Counsel also denied that there are contradictions in the evidence of the Appellant and or his

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witnesses. CERTIFIED TRUE 25

After evaluating all the evidence on the record as a whole, this $\mathsf{S}$ court finds hardly any merit in the Appellant's case. He failed to satisfy the trial court because his evidence was weak that he is a Kibanja owner. Overwhelming evidence of forgery and dishonesty and therefore fraud had been adduced against him in the acquisition of the alleged Kibanja interest on the suit 10 land and the trial court also found as such. This is evident from the judgment of the criminal court where it was proved beyond reasonable doubt that the Appellant was involved in fraud on the suit land and was as a result, along with others, convicted and sentenced. It is in no doubt that the trial court 15 came to the right decision premised on evidence of such a conviction of the Appellant.

The record shows that the Respondent testified that the Appellant was his loans officer in the money lending company. That he would pay the Appellant a commission and allowances 20 depending on the customers he brought in. He stated that the Respondent would also enforce payments of defaulters and that although had no appointment letter, the Respondent was the Appellant's employee. He also testified that he paid the Appellant Shs.20, 000,000 to compensate squatters on the 25

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suit land in installments and had receipts of all the $\mathsf{S}$ installments for the bank deposits as is indicated at page 53 of the record. This testimony continues at page 54 (supra) where other duties of the Appellant in the company were explained further to paint a picture of him being central in the operations of the company especially in the Kampala office. PW3 Musisi Rogers, at page 55(supra) testified that when he was buying the land the Appellant was the broker who took him around and that the Appellant knew the boundaries very well. PW3 confirmed that the Appellant was paid as broker for the land which PW3 purchased. 15

PW₂ Mr. Tumwesigye testified that he had known the Respondent since childhood and that he advised the Appellant against using the suit land which is not his before getting permission of the owner but that the Appellant refused to listen. PW2stated that he is the one who even recommended 20 the Appellant to the Respondent to work in the company. PW2 emphasized that he never saw anything owned by the Appellant on the suit land. PW4 Nanyenya Faith, testified that she has been the Chairperson LC1 Bukaluba since 2001 and that she had never seen the Appellant until when she saw him 25

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in court. $\mathsf{S}$

All the above evidence easily discounts the Appellant version as the Kibanja owner on the suit land. I find that the trial court properly evaluated the evidence and came to the correct conclusion that the Appellant was not and could not have been a Kibanja owner but rather connived with people to create a fictitious Kibanja ownership. The evidence overwhelmingly shows that the Appellant was closely working with the Respondent asthe latter's agent and broker and took advantage of that to convert the suit land to his personal use. Ground 1&2 fail and they are dismissed.

Ground 3: The learned trial magistrate erred in law and fact to rely and base his decision on the findings of the criminal trial against the Appellant which was contested and subject of a pending appeal.

4. The trial magistrate erred in law and fact to find that 20 the Appellant's purchase agreements for the Kibanja were forged whereas not

The trial court dealt with this issue in its judgment, at pages 83-85(supra). Evidence of a judgment in a criminal trial can be

- used to buttress a case in a civil court. Except, as was rightly $\mathsf{S}$ observed by the trial court, the civil court must warn itself that such judgment is not conclusive proof and the civil court must do its own independent evaluation of the evidence before it to draw its own conclusions. - At page 4 of his submissions, counsel for the Appellant argued 10 that the trial court solely relied on the evidence of the judgment in the criminal court to find that the agreements of purchase presented by the Appellant were forged. I respectfully disagree with that submission. It is clear that page 91(supra) that the trial court was very much alive to the fact that 15 although the Appellant claimed to have paid Busuulu to Harriet Nakayiira for the years 2006, 2007 and 09/04/2008, the certificate of title shows that Harriet Nakayiira was never the registered proprietor until 10/04/2008. The trial court also found that there was no recognition of the Bibanja owners in 20 the sale agreements. At page 92(supra)the trial court also found that the LC1 Chairperson Nyombi James who signed the Appellant's agreements admitted that he merely held out to be the Chairman but was not. This led the trial court to conclude - that the Appellant was involved in fraudulent and dishonest **CERTIFIED TRUE**

scheme to acquire the suit Kibanja. Indeed observed, at page 93(supra) the trial court held that the fact that the Appellant and his witnesses were convicted of the offence of forgery weakened their testimony. The trial court thus believed the evidence of the Respondent as is clear at page 94 in the $2^{nd}$ paragraph of the record of appeal.

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At page 95(supra) paragraph 1, the trial court went on to find that the failure by the Appellant to call the vendors who sold to him the Kibanja to testify created a huge gap in his evidence and further weakened his case. Further, that the fact that the Appellant was involved in transactions on the suit land as broker and did not disclose his interest also cast doubt to his claim and weakened his case. I agree with these conclusions by the trial court and find no merit in Ground 3& 4 of the appeal which must fail.

Ground 5. The learned trial magistrate erred in law and 20 fact to consider extraneous matters and make them the basis of his findings when such matter did not form part of the evidence adduced at the hearing.

No submissions on this ground of appeal were made by


counsel. Nonetheless, after subjecting the evidence and the judgment of the trial court to exhaustive scrutiny, no such extraneous matters allegedly relied on by the trial court were found. There is no merit in this ground of appeal and it fails.

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Ground 6: The learned trial magistrate erred in law and fact when he failed to consider the fact that the $10$ Respondent and one Musisi Rogers never acquired the suit land through outright purchase but by virtue of a consent order passed in court.

I do not find it necessary to resolve this ground of appeal given that the trial court's decision did not hinge on the fact that the 15 Respondent purchased the suit land. It was never in dispute that the Respondent is the registered proprietor of the suit land. Being a registered proprietor is conclusive evidence of ownership of the land. The Appellant never adduced any contrary evidence at the trial. The case at the trial was not 20 about ownership rights of the Respondent but rather about the rights of the Appellant. There is no merit in this ground of appeal and it fails.

Accordingly, the trial court's decision is wholly upheld. The

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appeal fails in its entirety and is dismissed with costs in this $\mathsf{S}$ court and in the trial court.

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BASHAIJA K. ANDREW

**JUDGE** 31/08/2018

$\ell$ .


FEES PAIDs. Acco RECEIPT NON A LAND DIVISION<br>HIGH CURPOF UGANDA<br>LAND DIVISION DATEL ....................................