THE REPUBLICOF UGANDA
IN THE HIGH COURT OF UGANDA
HCT-04-CV-CA-0055 OF 2005
[Arising from civil Appeal No 51 pf 2002]
BEFORE: THE HONOURABLE MR. JUSTICE WANGUTUSI K. DAVID.
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  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.