The Court of Appeal has declared businessman Tom Mugerwa and his co-respondent, Justine Mugerwa, trespassers on part of a disputed property in Kisugu, Muyenga, Kampala, after ruling that they were entitled to only 25 decimals of land and not the 49 decimals they claimed to have purchased.
In a unanimous decision, Justices Christopher Gashirabake, Florence Nakachwa and Musa Ssekaana allowed an appeal by Kevin Musisi, the administrator of the estate of the late Sarah Nalubowa Musisi, overturned a High Court judgment that had upheld the disputed sale agreement and declared the written agreement invalid and unenforceable.
The dispute concerns land comprised in Block 224 Plot 4173 at Kisugu, Muyenga, which was jointly registered in the names of the late Nsambu Musisi and his wife, Sarah Nalubowa Musisi.
The case originated from disagreements between the neighbouring parties after Tom and Justine Mugerwa used part of the Musisis’ land as an access route while transporting construction materials to their property.
Following negotiations, the late Musisi and his wife maintained that they agreed to sell the Mugerwas 25 decimals, inclusive of the access road, at Shs25 million, with each decimal valued at Shs1 million.
However, the proprietors later discovered that the Mugerwas had surveyed approximately 51 decimals and subsequently relied on a written sale agreement indicating 49 decimals.
The agreement, dated July 29, 2003, was signed by Charles Lule, who had been dealing with the buyers on behalf of the proprietors.
The late Musisi and his wife disputed the agreement, arguing that they had never authorised the sale of 49 decimals and that Lule had signed the document without the necessary legal authority.
The Mugerwas, however, maintained that the transaction covered 49 decimals at Shs25 million and that the two proprietors had acknowledged the sale through the payment received via Lule.
The dispute eventually went to the High Court, where Justice H.I. Isabirye, on November 8, 2021, upheld the sale agreement and found that the buyers had lawfully acquired the disputed land.
The High Court decision prompted Kevin Musisi, acting as administrator of his late mother’s estate, to appeal in Civil Appeal No. 0017 of 2023.
Represented by lawyer Philip Muhumuza, Musisi challenged the validity of the sale agreement, arguing that Lule had no registered power of attorney authorising him to transact in the registered property on behalf of the proprietors.
He also argued that the land was jointly owned by the late Nsambu Musisi and Sarah Nalubowa Musisi, meaning one proprietor could not dispose of the jointly owned property without the consent of the other.
The appellant further maintained that Sarah Nalubowa had neither signed the agreement nor authorised Lule to execute it on her behalf.
The Mugerwas, represented by lawyer Sekabanja Kato, opposed the appeal, insisting that both proprietors had agreed to sell the 49 decimals and that the transaction had been acknowledged through the receipt of Shs25 million.
They also relied on a mutation form allegedly signed by the late Musisi to support their claim that the subdivision had been authorised.
However, in the lead judgment, Justice Gashirabake found that the written agreement was legally defective because Lule had not been appointed through a power of attorney as required under Section 146 of the Registration of Titles Act.
The judge rejected the respondents’ argument that the provision did not apply to the sale of land, explaining that the law covers the appointment of agents to transfer land or otherwise deal with registered property.
He observed that the law requires a registered proprietor intending to authorise another person to deal with their land to execute a power of attorney in the prescribed form and have it registered.
The court found that although Lule had acted as an agent, there was no evidence that he possessed the legally required authority to execute the sale agreement.
Justice Gashirabake also noted that the late Musisi had not ratified the agreement because he disputed its contents, maintaining that it did not reflect the original understanding with the buyers.
“The agreement executed through ExD2 is unenforceable for being illegal,” the judge ruled.
The court faulted the High Court for finding that Lule’s actions bound the proprietors without first establishing whether he had been properly appointed under the Registration of Titles Act.
On the issue of joint ownership, the Court of Appeal found that the property was registered in the names of the late Musisi and his wife as joint proprietors.
Justice Gashirabake explained that a joint tenant could not sell jointly owned property in a manner that affected the other proprietor’s interest without the necessary consent.
He further held that even if the late Musisi had executed a power of attorney authorising Lule to sell the land, that authority alone would not have been sufficient to dispose of the jointly owned property without the consent of Sarah Nalubowa.
The justices, however, distinguished the invalid written agreement from the original oral understanding between the parties.
In evaluating the evidence, Justice Gashirabake found that the late Musisi, his wife and Lule had consistently testified that the intended transaction involved 25 decimals at Shs1 million per decimal.
He also questioned the circumstances under which the buyers had sent a mutation form without indicating the actual acreage to be subdivided.
According to the judgment, the late Musisi testified that he signed the mutation form without details of the acreage but later discovered that the Mugerwas had surveyed approximately 51 decimals.
The judge further observed that the buyers proceeded with construction on the disputed land despite an unresolved disagreement over the size of the property.
He said their conduct, together with their earlier use of the land without the proprietors’ consent, raised questions about their actions during the transaction.
Justice Gashirabake rejected the argument that the parties had first agreed on the Shs25 million purchase price before establishing the acreage, reasoning that the evidence showed that the late Musisi had intended to sell 25 decimals at Shs1 million each.
“I am convinced that PW1 told the Respondents that he was going to sell 25 decimals at 1 million each decimal,” he stated.
The court consequently found that the parties had entered into a valid oral agreement for the sale of 25 decimals, noting that oral agreements are legally recognisable where they satisfy the essential elements of a contract, including offer, acceptance, consideration and an intention to create legal relations.
In its final orders, the Court of Appeal allowed Musisi’s appeal, set aside the High Court judgment and declared the July 29, 2003 written sale agreement invalid and unenforceable.
It further found Tom and Justine Mugerwa liable for trespass on the portion exceeding the 25 decimals they had agreed to purchase.
The court issued a temporary injunction restraining the Mugerwas from utilising any portion of the land beyond the agreed 25 decimals.
The justices also awarded costs of the appeal and the proceedings in the High Court to Kevin Musisi.
Justices Nakachwa and Ssekaana concurred with Justice Gashirabake’s findings and orders, making the decision unanimous.
