Court name
HC: Civil Division (Uganda)
Judgment date
6 February 2014

Omongole & Anor v Okurut (High Court Civil Appeal-2010/44) [2014] UGHCCD 19 (06 February 2014);

Cite this case
[2014] UGHCCD 19

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT SOROTI

HIGH COURT CIVIL APPEAL 44 OF 2010

(Arising from   CS 50 of 2008 Kumi Magistrate’s Court.)

1.OMONGOLE PETER

2. KEDI RICHARD...............................                                                                                                                                                                                             APPELLANTS

                       V

OKURUT  VICENT.............................                                                                                                                                                                                              RESPONDENT

JUDGMENT

In this appeal, the appellant appeals the decision of the magistrate grade one

Opio Belmos Ogwang dated 27.10.2010.    The grounds of  appeal are  as follows:

  1. The trial magistrate erred in law and in fact in holding that the sale of the  suit property to the appellants by the late Otai Yowana  without the defendant’s consent was null and void.
  2. The trial magistrate erred in law when he issued a permanent   injunction .
  3. The trial magistrate failed to  properly  evaluate  the evidence on record thereby arriving at a wrong decision.

Ms Omongole & co advocates  for the appellant  filed written submissions that i   have  studied  and considered.  Mr. Erabu appeared for  the respondent and did not file written submissions within the time stipulated by court.  Latest date for filing was 20.11.2013 according to the schedule.

 

The duty of an appellate court is to re-evaluate the evidence and arrive at its  own conclusion bearing in mind that the trial court had an opportunity to observe the demeanour of the witnesses.

The appellants ( plaintiffs) sued for a declaration that  three gardens they bought from  Otai Yowana   belong to them,  and for orders of vacant possession and permanent injunction.  In his written statement of defense, the defendant  averred that the three gardens belong to him as they were given to him by his father Otai Yowana.

It is not in dispute that Otai  , uncle  of the respondent, entered into sale agreements for  three gardens  with the  plaintiffs on diverse dates between  2001 and 2007. Agreements of sale are not disputed. The respondent  contended that there could be no sale because his uncle Otai Yowani  gave him  the  gardens during his life time when the uncle anointed him as heir in 1998 . He was supported by  his uncle Okolimong Stanley DW 2.

 

The issue before  the trial court was whether  the sale agreements tendered in court   conferred proprietary rights on the buyers therein. A closer scrutiny of the agreements is necessary.

The agreement dated 13.4.2001 is for sale of land at 130,000/ to Omongole., 1st appellant. The witnesses to this agreement are not indentified by relationship to the seller or by official title. Indeed the LC officials were merely informed of the sale  as indicated in their letter dated 24.8.2007, some six years after the transaction.  The reason for involving the LC III Chairman  was to give the sale some semblance of legitimacy.

In the  agreement  dated 13.4.2001, Otai  reiterates, and i quote,

‘i will not redeem again redeem it back’.

The implication of this statement  is this was  not  the first time Otai and Omongole were transacting over the land. The location of the land and its boundaries are not described. The defence case suggested that all the transactions between Omongole and Otai were  loan transactions and not sales.  I tend to agree with position on the basis of the statement i have quoted above.

In his evidence in court, PW1 Omongole attempts to give oral evidence of location of land but this is unacceptable as description of land sold is required to be in writing.

 

The sale of 30.12.2003 to Kedi Richard  was for one cow and two goats . Osire Richard nephew of the seller witnessed this sale together with 14 other persons whose addresses or relationship with the  seller are not disclosed. Osire testified as PW3 .

The location of the garden sold is not indicated neither are the  boundaries  described. This renders the sale void  because land  is not a chattel. It must be clearly described in the sale agreement.  While there is proof that Otai received consideration, the purpose of the consideration is not clear.

 

The sale of  20.7.2007 was to Omute  who bought land for 550,000/. In the same agreement, Omute acknowledges that he has sold the same land to Omongole for 650,000/. The witnesses to this sale are identified as clan members of Ikomolo  Idwaramug clan and  LC officials . A sketch map shows boundaries of land sold.

I find this the only transaction that can pass for a sale of land.  The subject matter is clear , and clan members and  LC officials witnessed the sale.

An agreement for the sale of land is a contract which must meet essential requirements., i.e, description of the parties, property, and consideration.   See Cheshire and Burn’s Modern Law of Real Property, 15th edition, page 110-113, Butterworths  1994.

 

From the evidence, it appears the appellants have never entered   possession of some of  the land. PW1  Omongole  Peter admitted that  Otai was occupying  a house on part of  the land he allegedly bought.    PW2 Kedi second plaintiff,  testified that  was he not occupying the land he bought from Otai  by agreement dated     30.12.2003.

 

Turning to the first  ground of appeal,  the  magistrate held that the sales by Otai were  void ab initio because  family members did not consent to the sale. He cited section 39 of the Land Act.    Section 39 envisages  spouses and children as family members . The defendant is a nephew so strictly speaking , he is not a family member unless of course he was adopted customarily  by Otai.   The defence case contends  that the defendant was appointed heir by Otai .

Counsel for  the appellants submitted at  length about this point. While i agree with him that section 39 of the Land Act does not apply to the respondent, strictly speaking,  it ought not to have been the only basis for resolving the dispute.  Ground one of the appeal  succeeds.

 

Nonetheless, i  re-evaluated  the evidence and found that  the transactions  of 13.4.2001  and 30.12.2003  to Omongole and Kedi respectively   cannot pass for  contracts  in law.    These two transactions are void.

Counsel for the appellants submitted at length that the constitutional right to  own property  by Otai underpins the transactions between the parties. He also referred to the testimony of PW5 Otai Yowani, the seller who died before cross examination. PW5 maintained that there was a sale but i have  found that the sales on two occasions were void as the agreements did not describe the property even by location.

 

While the trial magistrate dismissed the plaintiffs’  claim on an erroneous principle, i   evaluated the evidence and the law and found that the plaintiffs’ claim on two gardens ought to be disallowed  on the ground that  the sale agreements between the seller and buyer was void for failure to  describe property sold.  As ground two and three have been disposed off by ground one, i allow the appeal in part and make the following orders:

  1. The sale of 20.7.2007 to Omute and later to Omongole was a valid sale consequently, that sale is upheld. The Ist appellant is therefore entitled to possession of  this piece of land. An order for vacant possession will issue in  three months time if the occupier fails to deliver vacant possession.
  2. The sales of  13.4.2001  and 30.12.2003  to 1st and 2nd appellants respectively are declared void.  This land reverts to the estate of Otai .
  3. To avoid protracted litigation, the consideration paid to  Otai under agreements of 13.4.2001 and 30.12.2003 be recovered from the estate of  Otai.
  4. The  appellants   will pay one quarter of    both costs of the appeal and costs of the lower court .

DATED AT SOROTI THIS.......06.........DAY OF......February...................2014.

HON. LADY JUSTICE H. WOLAYO