Kabajungu v Akgizibwe (Civil Appeal 73 of 2010) [2015] UGCA 2024 (3 November 2015)

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA (COO AT KAMPALA

#### CIVIL APPEAL NUMBER OO73 OF 2O1O

JOWERIA KABAJUNGU APPELLANT

VERSUS

AKUGIZIBWE PATRICK RESPONDENT

CORAM:

HON. JUSTICE RUBBY AWERI OPIO, JA HON. JUSTICE RICHARD BUTEERA, JA HON. JUSTICE F. M. S EGONDA NTENDE, JA

#### JUDGMENT OF THE COURT

#### lntroduction

This a second appeal arising from the judgment and order of the High Court of Uganda at Fott portal. The matter was first heard by Kyenjojo District Land Tribuna[ Ctaim as No. 32 of 2003. 20

The appeltant sued the respondent for trespass and encroachment before Kyejogo Land Tribuna[. The tribuna[ found that the respondent was a trespasser and gave eviction orders in favor of the appe[lant.

I

#### The background facts are that:-

The appellant owed two plots of land in Kyenjojo Town along Fort Portal Kampala Road Lumu as plots 15 and 17. She sold to the respondent part of that land measuring $50 \times 100$ feet.

An agreement to that effect was executed and exhibited. When the respondent went to measure out the land he had bought; he discovered that there a foundation for a building on plot 17 was measuring 25 $\times$ 50 feet. He confronted the appellant who disclosed to him that the foundation belonged to a one Idd Banange, her relative and in-law. She assured him that the said Idd Banange would not disturb him but in case he did so she would compensate him from her own part of plot 15.

Subsequently, the respondent proceeded and paid for the land. The respondent also negotiated with Idd Banange and bought from him the piece of plot 17 in which there was a foundation.

respondent proceeded to develop the land The which included the $25 \times 50$ feet bought from ldd Banange plus plot 50 $\times$ 100 he bought from the appellant. The respndent put in place a petrol station. One year later this dispute arose before the District Land Tribunal which granted eviction order in favor of the applicant.

The respondent appealed to the High Court on the following grounds:-

$\mathbf{1}$ $\overline{\mathcal{L}}$

- 1) That the tribunal erred in law and that the appellant trespassed and the respondent's [and. fact in hotding encroached on - 2) That the tribunat faited to properly evaluate the evidence on record and came to a wrong conctusion. - 3) That the tribuna[ misdirected itse[f when it faited to consider that Banange ldd owned hatf of ptot 17 which the respondent sold to the appe[[ant. - 4) That the tribunal was wrong when it faited to consider the fraudulent intention of the respondent when she sotd ldd Banange's portion of the plot.

The learned Judge anatysed the evidence and found that the appeltant was not a trespasser on the [and and set aside the decision of the District Land Tribunal and quashed its orders with costs. Hence this appea[ before the court of Appeat.

#### The appetlant appeated on the fotlowing grounds:-

- 1) That the learned Judge erred that the respondent herein was on the appettant's land. in law not a in hotding trespasser - 2) That the learned judge erred quashing the decision of Tribuna[. in setting aside and the District Land

3) That the learned Judge failed to make a proper evatuation of the evidence on record and thus coming to a wrong decision.

Representation

At the hearing of this appea[, learned counsel Semambo Rashid appeared for the appe[[ant while counseI Bwiruka Richard represented the respondent.

# The appetlant's case. Ground 1 and 2

100 The [earned counse[ for the appetlant submitted that the learned Judge erred in law in hotding that a written contract can oratty be amended during an ex post facto omission to be part of what was earlier agreed upon by the contracting pafties in a written agreement.

> Learned counseI submitted that the appettant had never consented to any such arrangement by promising to give the respondent part of ptot <sup>15</sup> on top of ptot 17 she had sotd to the respondent.

## Ground 3

On the above ground learned counsel submitted that the learned Judge erred in setting aside and quashing the decision of the District Land Tribunal while relying on the alteged fact that the appeltant had promised to give to the

respondent part of her plot 15 which was not part of the sale agreement between the parties.

Counsel for the respondent submitted that the

### The respondent's case

#### Ground $1$ and $2$

respondent had proved that he had bought a plot measuring 100feet $x$ 50 feet from the appellant. However. the time at when measurements were being done, the respondent found that part of the said plot had been sold to a one Banange Idd. Upon inquiring the appellant promised to give the respondent part of her remaining plot. The discussions between the parties were never reduced in an agreement but the respondent proved the same at the trial and at the locus in quo.

> Counsel relied on the $of$ Manasseh case Kamugisha VS Uganda Prefabricated Building Industry Ltd, HCCS No. 115 of 1994 (unreported).

- The learned counsel concluded that the learned 140 Judge was right to hold that the agreement had been amended orally on the faith of the concession made by the appellant. - Ground $3$ 145

It was the contention of counsel that the learned Judge properly evaluated the evidence on record and came to the right decision.

$\mathsf{S}$

He submitted that the learned Judge believed the appellant that part of the plot she had sold belonged to Idd Banange which confirmed the testimony of the respondent and his witnesses that the appellant agreed to give the respondent 50 feet $\times$ 100 feet plot outside that of ldd Banange. Counsel prayed that the appeal be dismissed with costs and the judgment of the High Court be upheld.

"The duty of a $2^{nd}$ appellate court is stated by Rule 32 (2) of the court of Appeal Rules which provides as follows: on any second appeal from a decision of the High Court acting in the *exercise of it appellate jurisdiction, the court* shall have power to appraise the inferences of fact drawn by trial court but shall not have discretion to hear additional evidence".

The above rule was considered in **Criminal** Appeal No. 149 of 2008 Muhwezi Jackson VS Uganda.

"This being a second appeal rule 32 (2) of the Judicature (Court of Appeal Rules) Directions SI No. 13-10 gives this court power to appraise the inference of the drawn by the trial court. This court does not have powers to subject evidence to fresh scrutiny unless it is clear that the $1^{st}$ appellate court failed to perform its duty"

The Supreme Couft atso added its voice on the duty of a second appeltate couft in the case of Mulasa VS Bakireka t20091 2 EA 254 as fotlows:-

"The principle upon which this coutt as <sup>a</sup> second appellate court will re-evaluate evidence are stated in several decisions of this court which Oder JSC (RIP) refers to in his judgments in the Uganda Breweries case Guprd He states;-

ln Kifamunte VS Uganda [1997] KLR 72 this couft said. " lt does not seem to us that except in the clearest of cases, we are required to reevaluate the evidence hke a first appellate court.

On second appeal it is sufficient to decide whether the first appellate court on approaching its task, applied or failed to apply such principle. See Pandya VS Repubtic tl9571 EA...................

This court will then consider the fact of the appeal to the extent of considering the relevant part of law or mixed law and fact raised in any appeal. lf we re-evaluate the facts of each case wholesale, we shall assume the duty of the first appellate and create unnecessary uncertainty.

We can interfere with Court of Appeal if conclusions of the appears that in the it

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consideration of the appeal as a first appellate court, the court of Appeal misapplied or failed to apply the principles set out in such decisions as Pandya Guprd Runala Gup

We sha[[ bear in mind the above the determination of this appeat. princip[es tn

## Decision of the court.

We are of the view that the three grounds of appea[ can be resolved together as they evolve from the 3'd ground whether in hotding that the respondent was not a trespasser and setting aside and quashing the decision of the Land Tribunal, the learned Judge made proper evatuation of the evidence on record.

We have perused the record of appeal inctuding the judgments of the trial court and the 1" appellate court. We are of the view that the ],'t appe[[ate court property evaluated the evidence on record and reached the correct decision. The learned appeltate Judge considered the evidence of Twine Twaha lvlusa DW3 the Loca[ Council Chairperson of the area whose evidence was that the appellant owned ptot 15 and 17. The appettate sold part of ptot L7 to one Kimbugwe who later sotd the same to ldd Banange. When ldd Banange took buitding materiats on put <sup>17</sup> in preparation for constructing a foundation, the appeltant tried to stop him but the matter was

sorted amicably by elders and local authorities in favor of Idd Banange. The court further relied on the evidence of Idd Banange DW2 which was similar to that of DW3. The trespass the appellant was claiming was part of plot 15 which was measured off to compensate the respondent over the land that had been sold to Kimbugwe and later Idd Banange.

The part which was measured off was in conformity with the sale agreement.

In his analysis the learned Judge had this to say:-

"The respondent sold land measuring 50 $\times$ 100 feet to the appellant. She did not state in the agreement exhibit DE1, that she sold only or part of plot 17. She did not mention that plot 15 or part thereof was outside the land she sold to the appellant. At the time when the appellant went to measure out his land, he discovered a foundation in plot $17.$ The respondent told him that this belonged to ldd Banange her in-law. This was in the presence of witness DW3 and DW4. Indeed when the matter of the sale of plot 17 was mentioned to the area LCI Chairperson DW3, he inquired whether Idd Banange had been informed, knowing as he did of the interest which Banange had in that plot.

The respondent herself told the appellant that Idd Banange would not disturb him, but if he so did, she would compensate his land with part of her own on plot 15. What is more, she even swapped with the appellant part of that plot $17$ with her own part of plot 15. All this clearly showed that the respondent was fully aware that the sale involved more than just plot 17. It is possible that was the reason why the sale agreement did not specifically mention any plot number.

The warning that Idd Banange might query the appellant in respect of plot 17, which the respondent warned him about, became a reality. The respondent advised the appellant to sort it out with Idd Banange. That meant that the contract of sale was amended orally. The oral amendment of the contract that the respondent would compensate the appellant with land from plot 15 equivalent to that claimed by Idd on plot 17 therefore Banange became an enforceable part of the contract".

The learned Judge was right to find that the contract of sale was amended orally because evidence showed that the appellant was fully aware that the foundation on plot 17 did not belong to her. She would not pass title where she had none. The amendment was in

conformity with the sale agreement as far as the acreage respondent was entitled to from the appellant.

In the final analysis we find that the appellate court was right in holding that the respondent was not a trespasser and in setting aside and quashing the decision of the District Land Tribunal. The appeal is accordingly dismissed with costs in this court and the courts below.

Dated at Kampala this.................................... 315

Hon. Justice Rubby Aweri Opio,

Justice of Appeal

Hon. Justice Richard Buteera,

Justice of Appeal

Hon/Justice F. M. S Egonda Ntende,

Justice of Appeal

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