Court name
High Court of Uganda
Judgment date
20 December 2012

Mukobe v Wambuwu (HCT-04-CV-CA-2005/55) [2012] UGHC 245 (20 December 2012);

Cite this case
[2012] UGHC 245

THE REPUBLICOF UGANDA

 

IN THE HIGH COURT OF  UGANDA

AT MBALE

HCT-04-CV-CA-0055 OF 2005

[Arising from  civil Appeal  No 51 pf 2002]

 

JOY MUKOBE…………………………………….APPELLANT

VERSUS

WILLY WAMBUWU……………………………………RESPONDENT

 

 

BEFORE:  THE HONOURABLE MR. JUSTICE  WANGUTUSI K. DAVID.

 

 

JUDGMENT

 

 

 

The appeal arises from the judgment of the Learned Chief Magistrate.

 

The background to the appeal is that the appellant Joy  Mukobe and her sister Jackline Namono who were daughters of E.W Musika, were given land by their said  father on 4th January 1987.  They were five pieces of land and evidence was abundant that these were pieces of land that their late mother used to till.

 

Court record shows that it was  not challenged  that  the two sisters  took possession of the land tilled it and developed it.

 

On the 4th February 2001, 14 years after they were given the gifts, the defendants  Willy Wambuwu and Fred Wabwire  entered the pieces of land, forcefully taking possession claiming that their father Musika had changed his mind, removed the land from the two sisters and gave  them to the defendants  (now respondents).

 

They gave various  reasons with the present respondent  claiming that the land had always  remained their fathers.   In this  he was  supported by his brother Wabwire who also told the trial court that the land  had always  remained their fathers.

 

The Grade Two however relied on the evidence of their father Musika, who said

          “ I made  an agreement to you but I revoked it later.”

The Magistrate   thus held that the land was given to the present appellant  and her sister  and so  it rightly belonged to them.

 

The  Grade  Two   Magistrate in this case was answering the  issue “Whether  a father who gave a gift to his daughter, could  later revoke it.”

 

The defendants now the respondents were dissatisfied by the decision of the Magistrate Grade Two and appealed to the Chief Magistrate.

Overturning  the decision of the Grade Two Magistrate, the learned Chief Magistrate wrote that the issue that should have been considered was “Whether the appellants   (now respondents) were trespassers  or whether they had encroached  on the land of the respondents (now  appellant).  He wrote that the  Grade Two   was wrong to consider whether the father had validly passed over the land in question to  the present appellant.

 

With the greatest respect  to the learned Chief magistrate I differ from his analysis of the evidence.  I do so  because the  whole case depended on the question whether  Musika had passed on the land to the appellant (sisters) and whether he could revoke it.

 

In other  words the court had to find out whether the gift given  to the appellant on 4th January 1987  was a gift  inter vivos or a gift causa mortis-  causa mortis meaning  Latin “because of death”

 

If it was the former, their father could never revoke  it and any one  encroaching on it could be liable to be evicted.

 

If it was Donatio Causa Mortis then he could revoke the gift.

 

A gift  Causa mortis is one made in contemplation of impending death.  The donor need not be dying, it is sufficient that the donor made the gift because he or she  is about to enter a situation in which there is a strong chance of death.  In the  trial court Musika told court that he was sick  when he gave out the pieces of land to his daughter and  when he  gained his senses he revoked it.  I have found  it hard to believe  this because he gave them the land in 1987 and its after 14  years that he made  attempts to revoke his gift.  Even if he was sick in 1987 he  certainly  recovered soon thereafter and if he had done so because of the illness he could have revoked it   on recovery.  He could not have waited  14  years  to do so.

 

There were even no medical evidence and  neither  did his witnesses at that time  give any concrete evidence to show that death was  contemplated.  I am  conforted  on my refusal to agree with the illness  scenario by the other  reasons given by Musika himself where he says that these were girls and should go and get land from where they were married.  He seemed to say that girls could  not inherit  at their place of birth.  Such  gender insensitivity cannot be used to revoke a  gift  intervivos.  Musika also in evidence said the  girls were not giving him any financial  and material  assistance .  Again the foregoing  does not fall amongst the  reasons that can lead to a  revocation of a gift.

 

For a gift  intervivos to  take irrevocable roots, the donor must.

  • Intend to give the gift.
  • The donor must  deliver the property.
  • The donee  must accept the gift.

 

In this case Musika  intended to give the  gift  because it was reduced into writing.

 

He delivered the   gift because the appellants  took  possession.  The donees also accepted the  gifts because they took possession and used it for 14 years before the respondent and  another  interfered with it.

 

The requirements of a gift  inter  vivos were all fulfilled. Once that happened  Musika  could  not revoke the deed.

 

It follows that anyone who entered into the land under the  guise that the land still belonged to Musika or had been given to him byMusika other than the appellant  would be  trespassing  and  liable for eviction.

 

As a second appellate court, this court had the obligation to scrutinize  the evidence where it was clear that it had  not been subjected to adequate scrutiny by the  lower court, Gousland Enterprises Ltd vrs Ouma [2006] 1 EA.  77.

 

In this case court has found that the learned Chief Magistrate did not  re-evaluate the entire evidence on record and found that the land in dispute was different from the one the appellants father had given them yet the respondent himself said it was the same land.  It was also wrong for the Chief Magistrates  court to  fault the appellants for suing the respondents, yet they, respondents, by their  own evidence said they had entered onto the land.

 

Having  treated the evidence as a whole to that fresh and exhaustive scrutiny as expected in this appeal, its this courts finding that the appellants criticism of the Chief Magistrate’s court that it did not scrutinize the evidence in the case  and by implication  that  if it had done so  would have rejected the respondents prayers and accepted the appellants instead, justified.

 

For those reasons this court allows the appeal, sets aside the Chief Magistrate’s decision, re-instates the trial court’s decision which it  confirms and holds the respondents liable in  costs  here and below.

 

It is so ordered.

 

 

D.K. Wangutusi

Judge

20.12.2012.