[2005] UGCA 96

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

a CORAfuI:

I I ON. NI R. J USTIC E G. M,O KELLO,JA IION. I-,IDY JUSl'ICF: C. II'. R. KITANTBA, JA ^ON. t.,-t D v J t ts t't c t: c. ti. u v.l M Lt G t s H A, J A

# CIVIL API'EAL N0.55/02

## l0 I}[,TWEEN

#### SSESSAAZI KULABIRAAWO APPELLANT

## ANI)

## ROBI NAH NAI,UBEGA: : : : : : :: : : : : : : : : : : : : : : : : :: : : : : : : : : :RESPONDENT

l.lppcttl.lrot lhc illl.:t,tcnl utll o tders of lhc l l igh Cou tl of Ulluudu ul Kuntp(lo (Lugrr!izi ,l) rlute 24'1' Notc thct 2000 in Ci|it .-lppcut No.53/951

#### 20

l5

#### J udgrne nt of llyanrugisha,.lA

This is a second appeal fl'orn the decision of the High Court, which in the exercise ol its appellate.jurisdiction upheld the decision of the Chief

25 Magistrate

The respondent was the plaintiff in the Chief Magistrate's court. She filed the suit against the appellant for an eviction order from a kibanja situated at Kilulurna, Buwekula in Mubende District. The appellant bought the kibania fl'orn Yosamu Mpaka, the husband of the respondenton l4l0ll95.

30 Yosarrru Mpalia hacl bought the sarnc kibonja fl'om one Yuriyo Ndigegyirawa(D. W.2) on I'r January 1959. He settled on it with his thrnily and it rvas r.rtilised fbr growing food crops etc. On a date and year that was not mentioned, one of the children in the farnily was murdered and Yosalnu Mpaka, the father, was suspected to have cornrnitted the

I

o did not retum to his family. Instead he went to settle in Fort Ponal. While he rvas there, lre contacted one Andrew Kyawulwa (D. W.6) to get him a buyel fbr the kibanja which Kyawuwa did. A sale agreernent was offence. He was arrested and irnprisoned. When he came out of prison, he

- 5 concluded and the appellant was introduced to local council ofllcials of the area as the new owner ofthe kibanja. He was put in possession. The respondent took the rnatter to court challenging the sale clairning that she acqrrired tbe kibanja lointly with her husband and therefore had an interest in it that was ignored by her husband and the appellant. She also - l0 clairned that the appellant was not a bonafide pulchaser for value witl.rout 110tlce.

At the trial, evidence adduced by both sides indicated that the respondent was no longer Iiving on the kibanjo and had separated with her husband

- l5 for about 8 years. The learned Chief Magistrate in his judgment acknorvledged that the lespondent was no longer living on lhe kibanjabuL that she had an over riding equitable ir-rterest to the rnatrirnonial houre. FIe heltl that she was entitled to a separate independent income and horne. He also lbund that tl.re appellant was not a bonatlde purchaser fbr value - 20 withoul notice. FIe relied on the testimony of the respondent and one of her rvitnesses, which was to the effect that she protested the sale before thc local cour.tcil ofllcials but she was ignored. Accordingly, he granted

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her an order for vacant possession and all the developments on the o kibanja tl'onr the date ofpurchase and costs ofthe suit.

Bein-q dissatistled with the outcorre, he lodged an appeal in the High

- Cor.rrt. 'f he rnerloranduu.r of appeal filed on his behalf contained ⁴ grounds namely: - l. That thc learned Chief Magistrate erred in larv and fact by re lying on the contratlictory and / or hcarsay evidence of the pla in til'lTresponden t and her u'itnesscs. - 2. 'I'hat l0 the learned triurl Chief Magistrate misdirccted himself in tinding lhat thc kibunju in dispute togcther rvith all the tlevckrpnrents thcrcon bclongcd to the plaintiff/respondent. - -1. The lcarned Chief Magistrate crred in larv rvhcn hc failed to holtl that the appellant rvas:r bon:rfide purch:rser for v:rlue without - l: notice of any defect in title of the vendor (Yosamu Mpaka). - {. Thc lcirrned trial Chief Magistratc grossly erred in l:rrv in tlisrcgirrtling the defendant's and his rvitnesscs overwhelming cvitlence on rccord and instc:rtl substituted it rvith his olyn lrl,pothcsis, speculation and conjccture:rnd hc acted against the

lo rvcight of evidence.

At the hearir.rg of the appeal, the above grounds were leduced into trvo by the appellate jr-rdge narnely:

l.whether tl.re respondent had an interest in the suit prernises?

o 2.whethel the appellant pulchased the suit premises with full knowledge of the respondent's interest therein'?

-i. The appropriate remedies.

IIe answered the above issues in the aft'irrnative. He dismissed the appeal ivith costs to the respondent-hence the instant appeal

The memorandurn of appeal contains the following grounds:

l. Thc lcarnetl judge crred rvhcn he ruletl that thc respondent had an inte rcst in thc suit l:rntl u hcreas there uas no cvitlencc to ;lrove

lir that she had a larvfirl interest in the land in her orvn right.

- intcrcst in the suit lantl therc u'as no evitlence to prove that the nppellant had notice or knorvledge ofsuch intercst. 2. I'hc learnetl judge failed to find that even if the respondent had an - -1. Thc Iirst appcllatc court failcd to ev:rlu:rte thc evidence on recortl - l: antl colnc out rvith l just dccision. Harl it done so it rvould have fountl that thc respontlent hatl no valirl intcrcst in thc suit lanrl. lhe appellant sought the fbllorving prayers: - (a) that the appc:rl be allowed rvith costs both herc and in the courts bclorv. - (b) Thc judgcnrents and ordcrs of thc Chief Magistrate and the High Cou rt be sct aside . l0 - (c) That the respondent has no larvful interest in the suit land.

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o When the appeal came betbre Lrs fbr flnal disposal, Mr Makeera, learned counsel tbr the respondent, subrnitted that the grounds ofappeal filed by the appellant were not in confbrmity with the law. He relied on the

- grounds ofappeal on a second appeal. The grounds on which a second appeal can be lodged are found in sectionT2. These are: ;rrovisions of section 74 of the Civil Procedure Act that restricts - (a) that the decision is contrary to law or to some usage having the force of law; - l() (b) if the decision has tailed to deterrrine sorne material issue of law or usage having the force of law; - (c) that a substantial error or def-ect in the procedure plovided by the Act or any other law for the time being in force, has occurred which may possibly have produced en'or or det'ect in the decision of the case upon

lr lIe ts.

[.earrred counsel subrnitted that ground one of appeal is on a rnattel of evidence and the last ground cornplained that the appellatejudge failed to cvaluate the evidence. He contended that on the basis ofthe section the rlerlorandurr ol appeal does not disclose any grounds that should be

l0 considered by this court. He f-urther subrnitted that this court considers rratters of law and it is presumed that the assesslrent of evidence by the tlial court and the appellate court should be flnal. He invited us to disrriss

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the appeal, as the appellant has not shown which point of law was not considered by the couns below.

a

In leply, Mr Lutakoome, learned counsel for the appellant, stated that

- -s section 72 was cornplied with. He clairned that the issue of whether the respondent was a custolnary tenarlt on lhe kibanjcl was a rnatter o'l- law. He further claimed that the sale agreernent did not cite her as a joint purchaser ol the kibanja. He pointed out that lhe mailo owner knew only Mpaka as the owner and there was no evidence that the respondent had a - 10 joint interest in the land. He invited us to overrule the objections.

I agree with the subrnissions of counsel fbr tl're respor.rdent that section 72(supra) restricts grounds on which a second appeal n.ray be preferred. l'l.re role of the second appellate couft was explained by the Supreme

l5 Court in the case of Henry Kifamunte v Uganda Criminal Appeal No.l0/97. At page l2 of the judgerrent the courl said:-

l0 "On second tppeol, the Courl ofAppeol is precludedfrom queslioning the/inlings offttcl oflhe trial court, provided thtl tltere wss evidence to srtlrport lhose findings, though it moy lhink it possible or even probtble that it would nol ltave ilself come lo te s nrc conclusionl it con only inlerfere n,ltere it cottsiders lhot lltere w(s no evidence lo support lhe finding oJ'.fitct, this beitrg u question oJ'low: Rv Hassan hin Saitl(1942)9liACA 62

In order for the second appellate court to interfere in concurrent findings of fact by the trial court and the first appellate court, it has to be shown that the first appellate court erred in law or in mixed fact and law to justify an intervention.

$\mathsf{S}$ In the matter now before us, the trial court did not in fact specifically find that the respondent had an interest in the *kibanja*. The court found that she had a right in it. At page 5 the learned Chief Magistrate said:

"To a present(sic), a matrimonial home is meaningless unless its on a $\alpha$ kibanja which she will use for cultivation and use crops on it such as bananas and coffee and banana trees for subsistence and cash for

- 10 necessaries of life. After what transpired the plaintiff and Mpaka were entitled to separation as it would have been a risk for both to stay together. The logical solution would have been for her to stay on this kibanja, - acquired during the course of their stay together. Mpaka may have $15$ bought bibanjas for his children but this does not affect the plaintiff's rights as his wife. Similarly she may now be living with her daughterin-law and her grand children but this does not deprive her to her rights to an independent and separate home and income. It is time society - disregarded the repugnant custom of a woman being appended to her $20$ father or brother during spinsterhood to her husband during marriage and her son or sons after divorce or during widowhood".

The learned appellate judge in upholding the decisions of the trial court

found that the respondent had an interest in the suit land having jointly 25 purchased the same with her husband.

With respect, I think the appellate judge erred both in law and in fact to find as he did that the respondent had purchased the land jointly with her

husband. There was no such evidence of joint purchase. I think there is a 30 difference in law between having a right in land and an interest. The latter goes with ownership, which might be legal or equitable. Such interest is capable of being registered as a charge on the land. On the other hand rights are associated with the use of land for activities such as playing

games and the use of footpaths etc. $\mathsf{S}$

> The changes that were introduced by the Land Act in 1998 and the subsequent amendments in 2004(Act $1/04$ ) I think were meant to redress the sentiments expressed by the trial Chief Magistrate. For purposes of clarity I shall reproduce some of them. **Section 38A** provides for security

of occupancy. It states as follows: $10$

> $(1)$ Every spouse shall enjoy security of occupancy on family land. (2) The security of occupancy prescribed under subsection (1) means a right to have access to and live on family land.

(3) For purposes of subsection (2), the spouse shall in every case have a right to use the family land and give or withhold his or her consent to $15$ any transaction referred to in section 39, which may affect his or rights. (4) In this section-"family land" means land-

(a) on which is situated the ordinary residence of a family;

or

- 20 (b) on which is situated the ordinary residence of the family and from which the family derives sustenance; - (c) which the family freely and voluntarily agreed to be treated to qualify under paragraph (a) or (b) - (d) which is treated as family land according to the normal culture, 25 customs, traditions or religion of the family.

"ordinary residence" means the place a person resides with some degree of continuity apart from accidental or temporary absences; and

a person is ordinarily resident in a place when she or he intends to 30 make that place his or her home for an indefinite period; "land from which a family derives sustenance" means-(a) land which the family farms; or

- (b) land which the family treats as the principal place which provides the livelihood of the family: - (c) land which the family freely and voluntarily agree to be treated as the family's principal place of source of income for food. - (5) For avoidance of doubt, this section shall not apply to spouses who $\mathsf{S}$ are legally separated."

Section 39 imposed restrictions on the sell, exchange, transfer, pledge, mortgage or lease of family land except with the consent of either spouse.

I would, therefore overrule the objections raised by counsel for the $10$ respondent and find that the memorandum of appeal was properly filed.

In submitting on the grounds of appeal, M r Lutakoome argued grounds 1 and 3 together and the second ground separately. I shall handle them in

the same manner. Learned counsel stated that there was no evidence to 15 support the judge's finding that the respondent had an interest in the *kibanja*. He claimed that there was a house on the kibanja that was sold in 1993 and the respondent raised no complaint. He further submitted that there was no evidence to prove joint proprietorship.

In reply, Mr Makeera, learned counsel for the respondent, submitted that the law governing the kibanja is the Land Reform Decree (now repealed). Under that law *kibanja* was defined as developments on the land. These include crops, plantations etc. On the evidence adduced by the

respondent, learned counsel stated that she testified that she bought the 25

$\overline{9}$

*kibanja* jointly with her husband. It was his contention that the sale could not take place in total disregard of her interest. On the sale itself, counsel stated that the appellant was not a bonafide purchaser for value without notice because he was told about the protest and the respondent was in

possession. He invited us to find that this was family property and that the $\mathsf{S}$ sale was not proper.

As I pointed out earlier, the learned appellate judge failed in his duty of re-appraising the evidence afresh and subjecting it to exhaustive scrutiny,

- as the law requires. That being the case, it is our duty to re-evaluate the $10$ evidence ourselves. There is no doubt that the *kibanja* was purchased in 1959 by Mpaka. It is not clear whether at that time, he was already married to the respondent. The respondent as a wife, used the *kibanja* to cultivate and grow crops for home use and perhaps for sale. Her - testimony in court was that she jointly purchased the *kibanja* with her 15 husband. This is what she told court:

"I know the defendant in this case. He is cultivating my kibanja. He bought it from my husband. Both of us worked for the kibanja. When my husband wanted to sell the kibanja, my eldest son opposed him. My 20 husband paid people and they shot him. When the defendant bought it I went to RC 1 committee in our area and claimed that I bought the kibanja with Mpaka. Me and Mpaka had twelve children. Iam still living with seven of the children. The kibanja is big. It has a banana *and coffee plantation on it".*

The respor.rdent called three witnesses namely Kasibante Wilson (P. W.2) a rvho testit'ied that the appellant bought their kibanja behind their back. It was also his evidence that he protested the sale. Jane Nabakoza (P. W.3) a clarrglrter of the respondent testifled that the kibanja belonged to her

parents. It was her testimony that it was her mother who planted the banana and coffee trees as their f-ather used to work in Kilernbe mines. -I'he last witness tbr the respondent was her daughter Violet Kyansasire rvho testified that the kibanja in dispute belongs to her parents and that it was the respondent who planted the banana and other crops on the

l0 kibunja

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# g>pdJc,,-t

The rg.i. Fofd-ent in his evidence testified that he inspectedthe kibanja befble purchasing it. He was accornpanied by Kyawulwa (D. W.5) and trvo children of Mpaka namely Tulinda and Kerninagano. He furlher testified that the respondent never opposed the purchase of the kibanja before the local council officials bLrt he also learnt that the respondent had separated fiorn Mpaka I'or a period of 8 yeals

At the tirne of the purchase, the law governing the transaction was the

l0 l-and Refbrm Decree. The only interest that the law recognised at that tirre were the developrnents on the customary holding. The developments on the land were crops. The fact that the respondent as a wife of Mpaka

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planted the crops did not in itself create an interest in law in her favour. I think with respect, the learned appellate judge was wrong to uphold the findings of fact by the trial court to the effect that the respondent had interest/rights in the *kibanja*. The appellant made the necessary inquiries

before he purchased the *kibanja* and the *mailo* owner, the local council $\mathsf{S}$ officials and the vendor himself sanctioned the transactions. If the respondent wanted any compensation for her developments on the land, she probably would have received some money from her husband. I think the appellant was a bonafide purchaser for value without notice. His

appeal to this court, would, therefore, succeed. $10$

I would allow the appeal by setting aside the orders of the High Court and declaring that the respondent had no interest in the suit land. The appellant would be awarded costs both here and in the courts below.

$15$

Dated at Kampala this. 25. day of ...................................

**Rvam Justice of Appeal**

## THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

HON MR. JUSTICE G. M. OKELLO, JA CORAM: HON LADY JUSTICE CNB KITUMBA, JA HON LADY JUSTICE CK BYAMUGISHA, JA

### CIVIL APPEAL NO 55 OF 2002

### **BETWEEN**

### SSESSAAZI KULABIRADWO :::::::::::::::::::::: APPELLANT

### AND

### ROBINAH NALUBEGA :::::::::::::::::::::::::::RESPONDENT

{A second appeal from the appellate judgment of the high Court of Uganda at Kampala (Lugaizi, J) dated 24/11/2000 in Civil Appeal No 53 of 1995}

### JUDGMENT OF OKELLO, JA.

I have had the opportunity to read in draft the judgment of Byamuqisha, JA. I entirely agree with her reasoning and conclusion. I have nothing useful to add. As Kitumba, JA also agrees, the appeal shall stand allowed on the terms proposed by Byamuqisha, JA.

Dated at Kampala this.................................... 2005.

G. M. OKELLO

JUSTICE OF APPEAL

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

# **CORAM: HON. JUSTICE G. M. OKELLO, JA.** HON. JUSTICE C. N. B. KITUMBA, JA. HON. JUSTICE C. K. BYAMUGISHA, JA.

## CIVIL APPEAL NO. 55 OF 2002

# SSESSAAZI KULABIRAAWO :::::::::::::::::::::::::::APPELLANT

### AND

### <table> ROBINAH NALUBEGA ::::::::::::::::::::::::::::::::::::

[Appeal from judgment and orders of the High Court of Uganda at Kampala (Lugayizi J) dated 24^th November, 2000 In Civil Appeal 52/94]

## JUDGMENT OF C. N. B. KITUMBA, JA.

I had the benefit of reading the judgment of Byamugisha, JA. in draft, I agree with it.

Dated at Kampala this .................................... $2005.$

> C. N. B. Kitumba **JUSTICE OF APPEAL**