THE HIGH COURT OF UGANDA
AT KAMPALA
CIVIL APPEAL NO 84 OF 1971
[0riginal civil Appeal No. 38 of 1971 of the Chief Magistrate's Court of Jinja Before K.N.. Maini Esq.., Chief Magistrate]
DONATANA NSUBUGA ………………….………………………. APPELLANT
VERSUS
KASANI KIRIBAKI ……………………………………………………RESPONDENT
BEFORE: THE HON. MR. JUSTICE D. L. K. LUBOGO.
JUDGEMENT
This is a third appeal the appellant having lost in the Chief Magistrate's court Jinja when the respondent now appealed to that court"
Briefly these were the facts in the first court of instance: The respondent now sold land now in dispute to one Erifazi pasi on 11th February 1964 for Shs.350/-. Erifazi paid shs.300/-on the execution of the agreement. The balance of shs 50/- was to be paid later. Erifazi then gave the land to his son Stone Zimula to cultivate.On the death of Erifazi his son Zimula inherited the land.. Zimula then sold the land to the present appellant for shs.670/-.The appellant paid shs.300/- on the execution of the agreement. The balance was paid on 6th December 1967. The appellant went into occupation immediately after formalities had been completed. All these were done in the presence of the Mutala Chief. As soon as the appellant went into occupation 'she was stopped from using the land on the pretext that Erifazi had not paid the balance of shs.50/-. Stone Zimula in his evidence told the lower court that he offered the respondent the balance but had refused. The respondent does not deny all that but he insists that he never received the balance any therefore, he is still the lawful owner of that piece of land.
In his judgment the learned Chief Magistrate said that stone Zimula had not succeeded to the land before he sold it to the appellant. Waguma the then Mutala Chief said that it was Erifazi before he died who had told Zimula to sell the land. In my opinion the learned Chief Magistrate overlooked that piece of evidence.. There is evidence by Zimula to the effect that he (Zimula) offered the respondent the remaining balance he (respondent) avoided receiving it."
I do agree with the remarks of Magistrate Grade III when he said that it appeared that the defendant took advantage of the death of the original buyer and hoped to retain Shs.300/-- and the Kibanja. To vest the Kibanja in the respondent would be against the principles of natural justice just because a sum of shillings fifty is still outstanding. I would, therefore, allow the appeal with costs and order that the respondent vacates the land in dispute forthwith.
The judgment, and order, if any, made by the Chief Magistrate are set aside.
