Kalyabe v Amiti and 2 Others (HCCS 164 of 2016) [2023] UGHCLD 304 (19 June 2023)

Full Case Text

## THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT JINJA

# HCCS NO. 164 OF 2016

#### KALYABE GODFREY ::::::::::::::::: **:::::::::::::::PLAINTIFF**

# **VERSUS**

1. AMITI JAIN

2. JINJA DISTRICT LAND BOARD

3. REGISTRAR OF TITLES

**DEFENDANTS**

# **BEFORE: HON. LADY JUSTICE FARIDAH SHAMILAH BUKIRWA NTAMBI**

### RULING ON PRELIMINARY OBJECTION

#### **Background**

The Plaintiff sued the Defendants for declarations that he is the rightful owner of the suit property, a declaration that the 1st Defendant's title was obtained fraudulently and issued in error, an order for the cancellation of the 1st Defendant's title and an order that the Plaintiff be registered as proprietor of the suit land.

This is a part heard case. The Plaintiff closed his case and one of the three Defendant's witnesses has testified. When the matter came up for further hearing of the Defendant's case on 4/10/2022, the 1st Defendant was called to testify. After identifying his witness statement, 1st Defendant's Counsel prayed for the admission of the witness statement of the 1st Defendant and the documents in his trial bundle as exhibits.

It was at this point that Counsel for the Plaintiff objected to documents that the 1st Defendant intended to rely on to support his case which are;

- a) A lease offer to Ngobi Dennis by the 2nd Defendant marked as EXD3 at page 7 of the 1st Defendant's trial bundle - b) A receipt for UGX 160,000 issued to Ngobi Dennis by Jinja District Local Government at page 9 of the 1st Defendant's trial bundle.

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- c) A bank pay slip of Centenary bank dated 16th May 2013 for UGX 12,600,000 (twelve million six hundred thousand shillings) paid by Ngobi Dennis to Jinja Municipal Council in respect of ground rent at page 10 of the 1st Defendant's trial bundle. - d) A receipt issued to Ngobi Dennis on 21st May 2013 by Jinja Municipal Council in respect of premium and ground rent for UGX 12,600,000 (twelve million six hundred thousand shillings) for Plot 130-132, Kyabazinga Way at page 11 of the 1st Defendant's trial bundle - e) An inspection and valuation report issued by Jinja District Local Government and addressed to the Deputy Registrar at High Court Kampala at page 12 of the 1st Defendant's trial bundle marked EXD4.

The objection by the Plaintiff's Counsel is based on the argument that 1st Defendant is not a credible witness to tender in the above listed documents since he is neither the author, addressee, nor a witness to any of them. Counsel prayed to Court not to accept the 1st Defendant to tender in the documents.

The parties made oral submissions in respect of the preliminary objection which I have taken into account in this ruling.

# Representation

The Plaintiff was represented by Counsel Atepo Shafiq of Justice Centers Uganda, Jinja while Counsel Evans Tusiime of Pearl Advocates & Solicitors appeared for the 1st Defendant, Counsel Onesmus Tuyiringire appeared for the 2nd Defendant. Court ordered the matter to proceed exparte against the 3rd Defendant on the $20/11/2020$ .

# **Submissions**

In response to the Plaintiff's objection, Counsel for the 1st Defendant submitted that in respect of the inspection and valuation report issued by Jinja District Local Government and addressed to the Deputy Registrar at High Court Kampala at page 12 of the 1st Defendant's trial bundle, this report referred to Plot 130/132 Kyabazinga Way which is the suit land.

Counsel Evans further submitted that under the second paragraph of EX. DI (a lease agreement between Ngobi Denis and Amiti Jain) at page 1 of the 1st Defendant's trial bundle, it is stated that Amiti Jain, the 1st Defendant in this matter, had a case in Court with Kibedi Zake Wanume and that the suit land located on Plot 132 Walukuba Masese Division, Jinja Municipality which was the subject matter of that lease agreement, settled the case between the 1st Defendant and Kibedi Zake Wanume. That according to this lease agreement, Ngobi Denis surrendered his lease offer to Amiti Jain, the 1st Defendant in this case. That having purchased the lease from Ngobi Denis, the 1st Defendant

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proceeded to make payments in respect of the suit land which payments are reflected in the receipts at pages 9,10 and 11 of the 1st Defendant's trial bundle.

Counsel further submitted that the Plaintiff's Counsel could not object to the inspection and valuation report marked DEX 4 since this report only explains that the case was at execution level which required the suit land to be valued first. That it was on the basis of the valuation of the market value of the land at UGX 75,000,000 that the 1st Defendant accepted the lease offer for the suit land from Ngobi Denis.

1st Defendant's Counsel concluded that the 1st Defendant is competent enough to tender in the documents since all the documents objected to by the Plaintiff's Counsel were surrendered to the 1st Defendant at the time of executing the lease agreement.

That the 1st Defendant is the right and competent person to present the receipts to Court as evidence of payment.

Counsel prayed that the objection be over ruled because these are not receipts brought in isolation, but are part and parcel of the land title which the 1st Defendant possesses.

In rejoinder, Counsel for the Plaintiff reiterated his earlier submissions with regard to the inspection and valuation report marked as EXD4 at page of the 1st Defendant's trial bundle that the 1st Defendant was not competent to tender it in since he did not sign the document, did not witness it nor was he a party to it. Counsel argued that the 1st Defendant's Counsel was adducing evidence from the bar since the 1st Defendant in his witness had not stated how EXD1 (the lease agreement between Ngobi Denis and the 1st Defendant) is connected to the inspection and valuation report marked as DEX. 4. Counsel further argued that evidence adduced by the 1st Defendant's Counsel is inadmissible in Court since he is not a witness in this case. Counsel further prayed that EX. D4 be rejected by this Court since the witness did not sign it nor was he party to it.

It was the contention of the Plaintiff's Counsel that in any case, the 1st defendant had not provided any information about the whereabouts of the author of the inspection and valuation report or any witness of the recipient of this report and that the 1st Defendant is at liberty to produce any such person as a witness in Court.

Plaintiff's Counsel maintained his objection with regard to the receipts at page 9, 10 and 11 of the 1st Defendant's trial bundle from being tendered in by the 1st Defendant reason being that the 1st Defendant had not addressed Court as to the whereabouts of Ngobi Dennis who paid the money in respect of these receipts. That the receipt on page 9 was issued by Jinja District Local Government,

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therefore, the 1st Defendant can produce the issuer of the receipt or Ngobi Dennis as a witness to tender in this document.

Counsel further submitted that the witness was not present at the time of issuance of these receipts and it is only fair and just that the parties to these documents be subjected to cross-examination regarding their deeds and the current witness is not that person. Counsel reiterated his earlier prayers that the documents be rejected.

Counsel for the 2nd Defendant informed Court that the author of the inspection and valuation report marked EXD4, Martin Engin, had died and therefore, in the circumstances, could not be cross examined.

#### Issues

Whether the 1st Defendant's documents to wit; EX. D3, receipt issued to Ngobi Dennis by Jinja District Local Government (at page 7 of the trial bundle), a bank slip of Centenary Bank paid by Ngobi Dennis (at page 10), receipt issued to Ngobi Dennis by Jinja Municipal Council (at page 11) and EX. D4(at page 12) should not be tendered in by the 1st Defendant who was neither the author, addressee, nor a witness to any of them.

#### **Analysis**

I have perused the contested documents and found that indeed the 1st Defendant was neither the author, addressee nor witness to any of the contested documents.

In the case of Kaggwa Micheal Vs. Olai Mark and 6 Others (H. C. C. A 0010 of **2017),** it was held inter alia that "*documentary evidence must be properly authenticated and a foundation laid before it can be admitted at trial. Before any* private document offered as authentic is received in evidence, its due execution and authenticity must be proved either by anyone who saw the document executed or written or by evidence of the genuineness of the signature or handwriting of the maker."

In Opoka William Otii and Oola Jackson Vs. Naftali Dan Okuna (H. C. C. A No. 041 of 2018) it was held inter alia that ",.... There must be evidence from a witness to establish that the document accurately and fairly depicts what it purports to show. It is best if the evidence is sought to be introduced through a witness who is the primary source for all the facts depicted or conveyed in the document."

The 1st Defendant has not satisfied this Court that he saw the contested documents executed or written neither is he the author, witness or signatory to any of the contested documents. He is not the primary source for the facts depicted in the contested documents.

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I have observed from the 1st Defendant's summary of evidence that Mr. Ngobi Denis is one of his witnesses. Mr. Ngobi is better placed to tender in the lease offer marked ExD4, the receipts at pages 9 and 11 of the 1st Defendant's trial bundle and the bank slip at page 10 since all these documents were issued to him.

With regard to the Inspection and Valuation report issued by the Jinja District Local Government whose author died, being an official record, another witness from the Jinja District Local Government would be better placed to tender in this document.

From the foregoing, I find that the 1st Defendant is not the appropriate witness to tender in the contested documents.

I so order.

**JUSTICE FARIDAH SHAMILAH BUKIRWA** Ruling delivered in Court on 19th June, 2023.