THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT I{AMPALA

LAND DIVISION: CIVIL APPTAL NO. 57 OF 2o22
(ARTSING FROM CryIL SUIT NO.54 OF 2018 MAKTNDYE CHIEF
MAGISTRATTS' COURT)
KABIIYE ROBERT: :::::::::::::::::::::::::::::::::::::::::::::::::: :APPELLANT
\rERSUS
NANYONGA TEOPISTA RESPONDENT
BEFORE HON LADY JUSTICE ELIZABETH JANE ALIVIDZA
JUDGMENT
REPRESENTATION

The Appellant was represented by Ms Luzige, Lubega, Kavuma & Co.

Advocates.

The Respondent was unrepresented.

INTRODUCTION AND BACKGROUND

This is an Appeal against the decision of Her Worship Patience Lorna

T\rkundane Magistrate Grade 1 delivered on the 08tr'June 2022 at
the Chief Magistartes Court of Makindye at Makindye.

The Appellant (Plaintiff) filed Civil Suit No. 54 of 2Ol8 against the
Respondent(Defendant) seeking declaration that he is owner of suit
land measuring 52ft by 32ft by 40ft then by 3oft located at Ndejjee
Lubugumu village Makindye Sub county, and that the Respondent
be evicted from the Appellant's house.

The Appellant contended in his Plaint that he had a Kibanja at Ndejje

Lubugumu Makindye Ssabagabo on which he constructed five

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rooms. That he aLlowed the Respondent with her child born of
another man to be accommodated in the said house.

That later the Appellant got married to Nakayenga Raste with whom
they share a child. That he then asked the Respondent to vacate the
suit property and the same be occupied by his wife Nakayenga Raste
but the Respondent refused to vacate the house.
The Respondent filed a written statement of defence and
counterclaim denying the allegations. She contended that she is the
lawful owner of the suit property. That the Appellant had fraudulently
put the agreement in his narnes.

The counterclaim listed the particulars of fraud. She prayed for a

declaration that she was the owner of the suit property and that the
Appellant was a trespasser.

The following issues were raised during trial.

1. Whether the Plaintiff (Appellant) is the owner of the suit

property?
2. Whether the Plaintiff(Appellant) is a trespasser on the suit
property?
3. Whether the purchase agreement dated 17th November 2006
was forged and if so by which party?
4. Whether the Counter respondents were fraudulent in dealing
with the suit property?
5. What are the available remedies to the parties?

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During trial, the Appellant adduced the evidence of three witnesses,
PW1 Kabuye Robert, PW2 Mwanje Nuhu PW3 Ndagire Edith. The
Respondent also adduced the evidence of three witnesess DWl
Nanyoga Teopista, DW2 Mwanje John, DW3 Yiga Emmanuel.

Court visited locus on the 25th March 2022. The Appellant,

Respondent and witnesses PW3 and DW3 testified at locus. This
court notes that the vice chairperson Mukanda Margaret who was
not a witness in Court also testified and the witnesses were not cross
examined by Counsel.

GROUNDS

The Appellant raised the following grounds of Appeal;

1. Thetrial Magistrate erred in law and fact when she failed to

evaluate the evidence as a whole thus reaching a wrong
conclusion.
2. The learned trial Magistrate erred in law and fact when she
concluded that the Appellant never contributed to the
development of the suit land hence reaching a wrong decision.
3. The learned trial Magistrate erred in law and fact when she
concluded that the purchase agreement dated 17th November
2006 was altered by the Appellant to include joint ownership.

The Respondent filed a reply to the memorandum of appeal stating

inter alia that;

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 1. The Learned trial Magistrate was correct in law and fact in
evaluation of the evidence as a whole while reaching the
judgment.
2. That the learned trial Magistrate was correct in law and fact
when she concluded that the Appellant never contributed to the
development of the suit land.
3. That the learned trial Magistrate was correct in law and fact
when she concluded that the purchase agrcemcnt dated 17th
November 2006 was a-ltered by the Appellant to include joint
ownership.

The Respondent also stated that at the commencement of the appeal

hearing, the Respondent shall raise a preliminar5r objection that shall
have the Appeal dismissed

ROLE OF THE FIRST APPELLATE COURT

It is the duty of this Court as a first appellate Court to re-hear the

case by subjecting the evidence presented to thetrial Court to a fresh
and exhaustive scrutiny arrd re-appraisa-l before coming to its own
conclusion (see Father Nanensio Bequmisa and three Others u. Eic
Tiberaqa SCCA 17o f 2OOO: I2OO4| KALR 2361.

I am also aware that in a case of conflicting evidence, the Appeal

Court has to make due allowance for the fact that it has neither seen
nor heard the witnesses. It must weigh the conflicting evidence and
draw its own inference and conclusions ( see Louinsa Nqnkua u.
Nsibambi [1980] HCB 81).

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The Appellate Court may interfere with a finding of fact if the trial
Court is shown to have overlooked any material feature in the
evidence of a witness or if the balance of probabilities as to the
credibility of the witness is inclined against the opinion of the tria-l
Court.

Section 101 of the Euideruce Act Cap 8 provides that whoever desrres
any Court to give judgment as to any legal right or liability dependent
on the existence of facts which he or she asserts must prove that
those facts exist and the burden of proof lies on that person.

The standard of proof is satisfied if there is greater than 50% that the
preposition is true and not IOO%. As per Lord Denning in Miller u

Minister of Pension [19471 ALLER 373; he sim ply described it as 'more

probable than not." This means that errors, omission and
irregularities that do not occasion a miscarriage of justice are too
minor to prompt the Appellate Court to overturn a lower court
decision. See Festo Androa & Anor us Uqanda SCCA 1/ 1998.

RESOLUTION

This Court issued guidelines for parties to file written submissions,

at the time of writing this Appeal, only the Appellant had filed the
submissions that have been taken into consideration.

Counsel for the Appellant opted to resolve all three grounds

concurrently. I shall adopt the same approach.

Ground One: The tial Magistrate erred in law and fact when she failed
to eualuate the euidence as a uthole thus reaching a wrong conclusion.

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Ground Tu.to: The learned tial
magistrate erred in lqw and fact when
she concluded that the Appellant neuer contibuted to the deuelopment
of the suit land hence reaching a wrong decision. Ground Three: The
learned trial magistrate erred in lau and fact when she concluded that
the purchase agreement dated 17th Nouember 20O6 uas altered bg
the Appellant to include joint ownership.

The main grievous is about the wrong evaluation of evidence. I shall

highlight the evidence here.

I note that there a several agreements in relation to the suit land.

The Appellant in a bid to prove his case adduced a copy of PEX1 copy
of sale agreement dated 17th November 2008. That he bought the land
in 2005 measuring 32ftby 4O. That the sketch on the agreement is
the plot that has the boy's quarters. That he has another agreement
dated 17th November 2008.

That the second agreement came into place after the Respondent
(Defendant) had destroyed the 1"t agreement when he wanted to
borrow money from the bank. He was told by the bank that the l"t
agreement was a forgery and advised to go to the LC 1 area and make
another agreement which they did with his former girlfriend who
signed as witness no.7. PW1 confirmed that the 2"d agreement dated
17 /ll /2OO8 is a forgery.

What is clear from the evidence is that documentaqr evidence as

regards ownership is not airtight. The Appellant's claim is discredited
by the various versions of the agreement. The same applies to the

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Respondent especially since the Seller (PW2 ) never interacted with
her as regards exchange of money.PW2 testified that she made only
one agreement and denied making any alterations to the initial
agreement.

Has any of the parties proved payment of the purchase price. The
Appellant proved payment to the seller of the purchase price. This
was confirmed by PW2 the seller and PW3 Mwanje Huhu who
witnessed the transactions.

However the Respondent claimed to have been the source of the

money. This was corroborated by DW2 her father who contributed to
the purchase price. The trial Court believed this testimony. I have no
reason to doubt this opnion of the Court who made note of the
demeanour of the Defendant.

The trial Magistrate found that both the Appellant and Respondent
contributed to the purchase of the plot measuring 32ft by 52ft by 40ft
however the developments on the suit property were made by the
Respondent alone and ordered that the land measuring 32 ft by 52ft
by 40ft be valued without considering the developments therein and
the Appellant be given 50% of the va-lue of the land only.

The facts indicate that there was a relationship between the parties
which is relevant to ownership of the suit land.

It is not contested that the parties herein were staying together in

cohabitation for over 10 years. The Appellant (PWl), stated that he
started living with the Respondent in 1998, and stopped cohabiting

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in 2018. That he later got another woman with whom they have a boy
of 3 years. The Respondent (DWl) testified that she cohabited with
the Appellant for 14 years. That they separated in 2016 and that they
spent a year renting.

The nature of relationship though intimate is not recognized legally.

However, it is a form of cohabitation. Cohabitation as per the Blacks
Laut Dictionary reuised 4tn Edition at Page 326 is defined as living or
abiding or residing as man and wife.

In the case of Batabara Bettu us Mukamq Fred and another Ciuil

AppealNo.71 of2O18 , Court noted that it is common that the parties
to a cohabitation relationship will most likely accumulate, they will
buy, they will sell, alter, improve, trade, and dispose of all manner of
rea-l and personal property with the hope of living a comfortable life
with their partner.

Court in the case of Kaboqqoza u Banqi (Ciuil Appeal 19 of 2023)

t20251 UGHC 206 120 April 2028 noted that in Uganda, property
disputes between cohabiting partners, who are not legally married,
are resolved using general property, trust law, common law and
equity principles, as cohabitation lacks statutory recognition akin to
marriage. In such cases, Court requires evidence of direct or indirect
contributions to property acquisition, with longer cohabitation and
children potentially implyin g a " constructiu e marriag e".

Equity demands that property acquired during cohabitation belongs

to both parties. The distribution may vary depending on the
circumstances of each case.
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I take note of the circumstances in this case.

1. The parties bore no children during their cohabitation.

However, they staying together for a considerable period of time.
The Respondent already had her child who stayed with them.
2. PWl stated he was paying for UMEME bills and also made the
bricks. He claimed to have contributed to the developments on
the suit land including the renta-ls adjacent.
3. DW1 adduced evidence that she made most of the developments
on the suit land. DW3 the builder confirmed this.
4. DWl the Respondent went at great length during cross
examination to explain her linancial capacity to undertake the
developments. She stated that she was selling food in
Shauriyako. That she would get UGX 30,000 per day and
collected UGX 1,200,000 a year. That she was also part of
SACCOS.
5. The evidence indicates that the Respondent contributed more
financially.
6. There is also evidence that the Appellant supported his partner
in form of providing transport and companionship. This
contribution cannot be ignored.

The sketch map drawn at locus shows that the land had the ma-rn
house, the rentals and unfinished building facing each other.

It is my conclusion that the Appellant is entitled to a share of the suit

property. He is not entitled to the rental developments that
exclusively belong to the Respondent.

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Equity demand that the Appellant leaves with something and does
not go unrewarded at the end of the relationship. The parties were
together for a considerable period of time. There were developments
made while they were together. This history cannot be erased
completely.

The fact that the Appellant may not have made substantial financial
contribution does not deny him his right to benefit from the property
acquired during the relationship.

Conclusion

The trial Magistrate is not faulted for her evaluation. However, the
final decision and conclusion on the remedies was unfair. The
Appellant is entitled to a third of the value of the suit land and its
developments. However, the rental property adjacent belongs to the
Respondent exclusively.

The Appeal partly succeeds. The lower Court orders are set aside.

I make the following orders;

1. Both parties contributed to the development of the suit land and
hence the Appellant is entitled to a third of value of suit land
and developments.
2. The suit land and developments shall be valued as of 2018 when
the suit was filed in the lower Court.
3. The Appellant is not entitled to any developments made after
201.8.

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 4. The Respondent to pay the Appellant his share in installments
to be agreed upon by the parties.
5. Each party bears their own costs in this Court and in the lower
Court.

So ordered

drer,a;
Elizabeth Jane Alividza

Judge

3Oth July 2O25

3oth July 2025

Judgment delivered on ECCMIS

It1

Elizabeth Jane Alividza

Judge

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