Court name
HC: Land Division (Uganda)
Judgment date
2 February 2018

Nakamya v Nassazi (Civil Appeal-2016/) [2018] UGHCLD 7 (02 February 2018);

Cite this case
[2018] UGHCLD 7
Coram
Masalu-Musene, J

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT MPIGI

CIVIL APPEAL NO. 51 OF 2016

(Arising from land  matter Civil Suit No. 091 f 2013  in the chief Magistrate’s court of Mpigi)

 

NAKAMYA FLORENCE:::::::::::::::::::::::::::::::::::::::::APPELLANT

VERSUS

NASSAZI ESTHER::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT

 

BEFORE:  HON. JUSTICE WILSON MASALU MUSENE

 

JUDGMENT

The Appellant, Nakamya Florence, being dissatisfied with the  Judgment and orders of Her Worship  Ninsiima Marion, Grade One Magistrate appealed to this Court  on the following grounds:

  1. The Learned trial Magistrate failed to properly interpret the law so as to apply it to the facts before her when she ordered the plaintiff to refund the   purchase price of the suit Kibanja to the family of the late  Mayiga  hence  leading to a miscarriage of justice.
  2. The learned  trial Magistrate erred in law and fact when she failed to properly evaluate the evidence on record thus arriving  at wrong conclusion  declaring  the plaintiff  as the rightful owner of the suit  Kibanja  hence leading to miscarriage of justice.
  3. The learned  trial Magistrate  erred in law and misdirected  herself when she delved into speculations and extraneous  matters not supported by evidence on record thus arriving at a wrong decision.

The appellant was represented by the Muslim Centre for  justice and Law, while the  Respondent,  Nassazi Esther was represented by  M/S Oasis Advocates, Kampala.

The background of this appeal is tat:

The Respondent herein instituted Civil Suit No. 091 of 2013 against the Appellant  in the Chief Magistrate’s Court  at Mpigi  at Mpigi  for a declaration that the  Plaintiff is the rightful owner, a declaration that a defendant is a trespasser on the suit land,  an order for eviction, mesne profits, a permanent injunction against the defendant, general damages and costs.

 

The Respondent contended that in the year 2010, she old part of her kibanja to the appellant’s late husband at a consideration of UgX 2,000,000/= of which the Appellant’s  husband  paid UgX 1,500,000/=  leaving an outstanding  balance of UgX 500,000/= to be repaid within two months.  The Respondent contends that no written agreement was made and the late Mayega  died before full payment .  The respondent attempted to return the money to the appellant which was rejected by the Respondent hence the main  suit.

The Appellant on the other hand contends that her late  husband  bought  the suit  Kibanja  measuring approximately 4 acres  at a consideration  of UgX 2,000,000/= , the kibanja was inspected  an agreement of sale was signed albeit  the same got lost.  The Appellant  took immediate  possession and was utilizing the entire land without any interference.  The Appellant in fulfillment of the contract with the Respondent attempted  to pay the  balance of UgX 500,000/= but  the same was rejected by the Respondent on ground that the sale had been cancelled.

The issues at the trial court  were whether the Plaintiff has an interest in the suit land, whether the defendant is a trespasser on the suit land and  what remedies are available to parties.

 

Judgment  was entered in favour of  Plaintiff (Respondent)<  hence  this Appeal.

 

It is settled law  that the duty of this Court, as a first Appellate Court is to  re-evaluate the evidence in the lower court and subject  it to a fresh and exhaustive scrutiny and draw its own  inferences and conclusions.  However, it has  to bear in mind  that it neither  saw or heard witnesses testify, and due allowance  has to be given in that respect.  The case in point   in Banco Arabe Espanel vs Bank of Uganda SCCA NO. 8 of 1998.

 

As far as the first ground  of appeal is concerned, notably  that the trial Magistrate failed to interpret the law when  she ordered Nassazi  Esther to refund the purchase prince of the  suit  kibanja to the family of late Mayiga.  Counsel submitted that appellant’s husband, late Mayega paid  UgX 1.500.000/= to  Nassazi Esther.  Counsel  quoted the law on  part  payment, Semakula  &another  vs Sentiba , Civil  Appeal No. 5 of 2013,  where  my brother  Bashaija J  held that a purchaser  who had concluded a sale agreement with the owner immediately  becomes the owner of the land and the vendor becomes a trustee in title.  It was  also held  that the  purchaser is entitled to the  equitable  remedy of specific  performance .  Another case referred to was  Ismael Jaffer Allibhai and others  vs Nandalar Harvijan Karia & another  SCCA N. 53 of 1995, where it was held that in a sale of immoveable property.   Upon  payment of deposit,  property  passes to the purchaser who acquires  equitable interest.  It was also held that the purchaser becomes the lawful  purchaser  when he has paid the deposit.  Counsel therefore maintained that upon payment of UgX 1,500,000/=  the  husband of Nakamya  Florence acquired an equitable  interest and Nassazi  Esther  was to claim the balance.

 

Counsel for the Respondent, Nassazi  Esther on the other hand submitted that there was no written  Agreement between  Nassazi Esther and the late Mayega Abasi, husband to Nakamya Florence.  Counsel   however, conceded that there was an  orl Agreement  (contract)  between Nassazi Esther  and Mayega  which was not completed as the consideration was not fully  paid.  He added that the subject matter of 100 ft  by  100ft   was also not measured  counsel or the Respondent  also  quoted  Halsbury  Laws of  England, 3rd  Edition, Vol  36  page 297  where  it is stated that payment  in whole or in part of the purchase price is not an act of part performance which  entitles the  purchaser  to enforce a parol contract.  He concluded that since the alleged sale agreement of 2.5 acres  or whatever was not produced, then the trial Magistrate was correct in her decision that the appellant, Nakamya  Florence  was a trespasser.

 

I have carefully  considered the summarized submission by both sides and the Judgment of the lower court. Under Sections 101,  102  and 103  of the evidence Act,  whoever asserts a fact must prove it.  It is clearly stipulated that:  “whoever wants Court to believe  in the existence of a given set of facts must  have the burden to prove their existence.”

And the standard of proof in all Civil cases is  one that is on the balance of probability.  The first issue that  had to be resolved  was the size of the land involved.

The Respondent, Nassazi  Esther  testified  as PWI on the record of proceedings and according to her, the size of the land of sale was 100 by 100 at 2,000,000/=, whereby  part payment  of 1,500,000/= was  made by late Mayega before he died.

 

Nakamya  Florence, the appellant now testified as  DWI  and  stated that  the subject  of sale was four acres of kibanja.  She was  supported by DW2,  Bumbaklali Sendawula.  And whereas the Appellant’s case was that a written sale agreement was made but it got lost, the case of the Respondent was that no agreements were concluded.

 

He testimony   in the lower court was that she verbally agreed with the late Mayega  that she would  show the boundaries after the balance  had  been paid in the circumstances, it is clear that the contract of sale between  Nassazi Esther  and the late Mayega  was never completed so as to give full rights to the purchaser.  Secondly, whereas the appellant and her witnesses that a written sale agreement  was made,  no such  Agreement was tendered in court. 

In the absence of sale agreement as  alleged by the appellant, this court is inclined to believe the respondent Nassazi Esther  that  an oral agreement to sell 100ft  by 100ft  to the deceased  husband  of the  appellant was reached and part  payment of UgX 1,500,000/= made.  I therefore agree with the findings of the trial Magistrate in that regard.

 

The trial Magistrate, in her judgment on page five stated that she visited  locus in quo to ascertain the truth.   She stated that while there,  one Kyeyune  Wahab  was asked by court  about the transaction and that he informed Court that his father  the late Mayiga toured  the kibanja  with  him.  The trial Magistrate added:- “He maintained that  it is about  2.5 acres  and that a balance of  shs 500.000/= was meant  to be paid.  He went on to testify that  an agreement was made  when asked who authored  the same, he first said that it was written by the  chairman,  then later changed  and said it was written by  him.  During  cross examination, he again changed and said it was the late Mayiga  that  wrote it .  This he maintained in re examination.”

 

The trial   Magistrate concluded  on that issue  that the appellant now Nakamya  Florence, then  Defendant had a duty to prove the existence of that agreement.  I entirely agree with the holding of the trial Magistrate particularly  since  Kyeyune  Wahab  contradicted himself as to who exactly  wrote the alleged agreement.

And even DW2,  Bumbakali Sendawula, who was the chairman of the area, testified that Eseza  wrote the agreement in respect of  four acres.  Since  there is a dispute  about the size of the plot sold, whether 100 ft by 100ft  or  four acres, then a written agreement or copy thereof would have resolved the issue.

 

In the absence of such alleged written  sale agreement, this court finds  and holds that the Appellant did not discharge  the burden of proof incumbent upon her and so  I am also inclined to believe the version of the Respondent, Nassazi Esther that the sale was oral and a written agreement was to be made after completion of balance.  And that the subject matter of sale was 100ft by 100ft plot and  not four acres as alleged by the Appellant.   The trial Magistrate  therefore  rightly  applied the law to the facts of the case and arrived at a correct conclusion partly.  The part  of the trial Magistrate’s  conclusion  I don’t agree with  is that Nassazi Esther  refunds  the UgX 1,500,000/= to the family of late Mayiga.  Since the transaction took place n 2010, and a larger  part of the purchase price in respect of the 100ft by 100 ft  plot had been paid, the family  of the late Mayiga  acquired  equitable  interest and are entitled to the said plot upon  payment of the balance of UgX 500,000/= it would be unfair and amount to miscarriage of justice if the appellant is ordered to receive the part payment of UgX 1,500,000/=.

Instead, I find and hold that since late Mayega’s  family had  acquired  an equitable interest, the Respondent, Nassazi Esther receives the balance of UgX 500,000/= and goes ahead to  demarcate and hand over the plot of 100ft by 100ft to the appellant,  Nakamya Florence.  So ground No  I of  Appeal partly  succeeds.

Ground No 2  of appeal was about  the evaluation of evidence.  This has more or less been covered under ground 1  of appeal.  Counsel   for the Appellant emphasized that the trial Magistrate erred when she held that the Appellant   had no legal or equitable interest in the land plot in  question.  Counsel also attacked the findings of the trial Magistrate about  the alleged  written agreement which  was never  produced.

 

Counsel for the  Respondent  on the other  hand  reiterated that even if Appellant had been in occupation against the will of the  Respondent and was therefore  a trespasser.  The  other  point  raised  was that  the Appellant  never entered in any  form  of contract, written or  oral with the  Respondent,  and so  she was a stranger.  I shall not waste much  more time on this ground as it has been more or less resolved  under ground  One .  I have  already decided that the Appellant, who is part of the family of the late Mayiga,  has an  equitable interest in the disputed land since her deceased  husband had paid UgX 1,500,000/= in 2010 in respect thereof.  And whether or not Appellant had letters of Administration is not a problem  as long as no one challenged her status  as wife  of late Mayiga. And the land was a plot of 100ft by 100ft.  In view of the decisions taken under grounds  one and two, then I find ground No  three irrelevant  and the same is not discussed. 

The conclusion of this Court therefore is that being a Court of law as well as a Court of Justice, the following  orders  are made:-

  1. The Appellant, Nakamya Florence is to complete the payment of balance of UgX 500,000/= to the Respondent, Nassazi Esther.

 

  1. The Respondent, Nassazi Esther is to demarcate the plot of 100ft by 100ft  to Nakamya  Florence, wife of late Mayiga.

 

 

  1. The balance of any land left after demarcating  off 100ft by 100ft  is for the Respondent, Nassazi  Esther.

 

  1. Each party to meet their own costs.

 

 

 

W. Masalu Musene

Judge.

02/02/2018