Kasamba v Rutalihemwe (Civil Appeal No. 05 of 2008) [2009] UGCA 67 (14 July 2009)

## THE REPUBLIC OF UGANDA

### IN THE COURT OF APPEAL OF UGANDA AT UGANDA

HON MR. JUSTICE S. G. ENGWAU, JA CORAM: $\mathsf{S}$ HON. LADY JUSTICE C. N. B. KITUMBA, JA HON. MR. JUSTICE A. S. NSHIMYE, J. A.

### CIVIL APPEAL NO. 05 OF 2008

#### HENRY KASAMBA::::::::::::::::::::::::::::::::::

#### **VERSUS**

#### YAKOBO RUTALIHAMWE:::::::::::::::::::::::::::::::::::: 15

[Appeal from the judgment of the Decree and Orders of the High court of Uganda sitting Fort-Portal before (His Lordship V. T. Zehurikirinze) dated 28<sup>th</sup> October, 2004 in H. C. C. Appeal No. 9 of 2003]

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### **JUDGEMENT OF KITUMBA, JA.**

This is a second appeal to this Court from the judgement of the High Court in Civil Appeal No.9 of 2003, whereby the appeal was dismissed with costs.

The following are the background facts leading to the appeal. $Bv$ agreement dated 11/10/1996, Henry Kasamba, the appellant sold to Yakobo Rutalihamwe, the respondent, a piece of land measuring 50ft by

100ft from his land comprised in Block 48 Plot 71 for the sum of shillings 30 525,000/=. The respondent paid shs 400,000/= at the execution of the agreement and paid the balance of shs 125,000/= on 18/11/1996.

According to the terms of the sale agreement the balance was to be paid when the appellant would be demarcating the plot

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The respondent began developing wl'rat he knew was his plot but some people trespassed on it. The plot had not yet been transferred into his names. He contacted the appellant who successfully sued the trespassers in Kagadi Court. One night the respondent's building which was near completion was demolished. He filed the suit against the appellant seeking for an order of specific performance compelling the appellant to sub-divide and transfer to him the land which he had bought. l{)

ln his defence the appellant pleaded that he was at all times ready and willing to demarcate the land for the respondent. However, the respondent failed to bring the surveyor. lt was the appellant's case that

he stopped the respondent from constructing the building but he refused. The officials of the Local Government stopped the respondent from construction. He prayed the trial court to order the respondent to bring a surveyor so that he can show him his plot and make the necessary transfers. He also prayed court to order the respondent to remove his building from his land. l5 l0

The learned Chief Magistrate dismissed the respondents claim. He made an order that the appellant demarcates and shows the respondent a plot else where in the trading centre on production of the surveyor.

The respondent was not satisfied with the decision of the learned Chief Magistrate and appealed to the High Court l5

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The appellant filed three grounds of appeal in the High Court but the only two of them are relevant to this appeal namely grounds 1 and 2. Both grounds concern the evidence adduced at the trial and its evaluation by the trial magistrate. ln his judgement the learned appellate judge found that the learned Chief tVlagistrate failed to properly evaluate the evidence. He decided the appeal in favour of the respondent, hence the second appeal to this Court.

Counsel for the appellant had filed 3 grounds of appeal but at the hearing of the appeal he dropped all of them except ground 1(a)which reads: -

7. "That the l't Appellate Court erred in law and fact when it failed to properly and rightly re-evaluate and weigh the evidence thus arriving at a wrong decision of holding against the appellant.

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### PARTICULARS THEREOF

(a) Find and holding that the appellant had shown the respondent the piece of land sold to the respondent."

l0 Before commencement of the hearing of the appeal lVlr. Deo Bitaguma, learned counsel for the appellant, raised the following preliminary objections.

> (1) That the appeal was incompetent because it does not confirm to the rules of this Court, parlicularly R.87 (3) (a).

(2) The appellant had not applied for leave to appeal to this Court.

l5 On first objection counsel argued that the appeal was incompetent because the record of appeal did not contain the decree which the appellant was appealing against. ln support of his submission, he relied

on the authority of The Executrix of the Estate of the late Christine Mary Namatovu Tibaijuka and Another Vs Noel Grace Shalita Stananzi 11992 - 19931 HCB.85 for the holding that no appeal lies to this Court until the decree appealed from has been extracted.

s Counsel further submitted that the appellant had to get leave of court to file a second appeal to this Court.

Mr. Abbas Bukenya for the appellant did not agree and submitted that the appeal before court was a competent one.

We dismissed the preliminary objections and proceeded with the l0 hearing of the appeal promising to give our reasons laterwhich we now give.

The first point of preliminary objection is not tenable because the rule quoted was underthe Court of Appeal Rules S.1 NO 179 of 1979 R.85 (i) (h), which is no longer applicable. Rule 87 of the current Judicature

15 (Court of Appeal) Rules (S.'1. 13 - 10)that provides for the contents of the record of appeal does not include a decree. Rule 87 (1) (g) provides lor 'Judgement or a reasoned order." but not a decree.

Regarding the second point of the preliminary objection section 10 of the Judicature Act, and section 66 of the Civil Procedure Act provided for

20 appeals from the High Court to this Court Counsel for the appellant did not quote any provision of the law which stipulates that a second appeal, such as this one requires leave before it is flled. I have not found any legal provision which provides for leave to file a second appeal.

Those are the reasons why we dismissed the preliminary objection.

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I now consider the appeal. Appellant's counsel complaint was that the learned appellate judge erred to conclude that the respondent was shown by the appellant the plot he purchased.

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- He argued that the appellant had only undertaken to show the respondent the plot upon guidance by the surveyor. According to appellant's counsel there was no evidence on record to show that. He submitted that though the respondent had testified that there were people present when the appellant showed him his plot none of them l - was called as a witness. Appellant's counsel argued further that there was no evidence to show that the plot where the respondent built was only 50' x 100' ln his view, though the balance of the purchase price for the plot was paid this did not mean that the respondent was shown his plot. He l0 - submitted that the respondent failed to discharge the burden of proof which was incumbent on him under section '1 01, and 103 of the Evidence Act. l5

l0 Mr. Bitaguma, for the respondent, supported the judgement of the first appellate court. He submitted that the first appellate court properly re evaluate the evidence on record and came to the right conclusion that the appellant did show the respondent the plot where he began constructing his building

t5 I have carefully perused the record and listened to the submissions of both counsel

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The first appellate couft was alive to its duty of re-evaluating the evrdence and relied on the principles in Pandya VR 1957 E. A.355. The learned judge considered the respondent's testimony which was to the effect that, he knew the plot very well because it was near his home

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at Muhoro. That the plot was showrt to him in the presence of others people namely: - George, Tibabara and the appellants' wife who is sister to the respondent.

When trespassers went to his plot, he could not sue them as the plot had not yet been transferred to him. He requested the appellant to sue them for the trespass. The appellant filed a suit against them in Kagadi court. The respondent brought building materials to the plot in the

The evidence outline above was not challenged by the appellant tn either cross-examination or by adducing some other evidence in rebuttal. t5

presence and with the knowledge of the appellant.

I agree with the l"tappellate court that as the sale agreement stipulated that the appellant would show the respondent the plot on payment of the balance and the balance was paid on 18/1 1/1996, the appellant must have shown the respondent the plot though technically it was not surveyed. There was no way the respondent could have constructed a building on land which the appellant had not sold to him and the appellant remained donormat and even filed a case against trespassers, excluding the respondent. lt is inconceivable that he merely left the 20

matter to local authorities, to stop the respondent from constructing an illegal structure. 15

The issue in the Chief Magistrate's Court was whether the appellant was in breach of contract when he failed to transfer the land to the respondent. Whether the respondents building was not incompliance with urban authority regulations was not before court.

This appeal is devoid of merit $\mathsf{S}$

I would dismiss it with costs to the respondent here and below.

Dated at Kampala this. 14<sup>th</sup> day of July .2009. $10$

Cres Clause

C. N. B. Kitumba $15$ JUSTICE COURT OF APPEAL

### THE REPUBLIC OF UGANDA

### IN THE COURT OF APPEAL OF UGANDA

#### AT KAMPALA

#### CIVIL APPEAL NO 05 OF 2008

Coram: **Hon Justice S. G Engwau, JA** Hon Justice C. N. B Kitumba, JA **Hon Justice A. S. Nshimye, JA**

### HENRY KASAMBA ::::::::::::::::::::::::::::::::::: VERSUS

YAKOBO RUTALIHAMWE::::::::::::::::::::::::::::::::::::

*Appeal from the judgment of the Decree and Orders of the* High Court of Uganda sitting at Fort portal before (His Lordship V. T Zehurikirinze dated 28<sup>th</sup> October, 2004 in HCC. Appeal N0. 9 of 2003

### JUDGMENT OF A. S. NSHIMYE, JA

I have had the benefit of reading in draft the lead judgment of my sister Hon Justice C. N. B Kitumba JA.

I agree that the appeal be dismissed with costs to the respondent in this Court and the court below.

A. S. NSHIMYE **JUSTICE OF APPEAL**

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA HON. JUSTICE S. G. ENGWAU, JA HON. JUSTICE C. N. B. KITUMBA, JA / HON. JUSTICE A. S. NSHIMYE, JA CIVIL APPEAL NO.s OF 2OO8 BETWEEN GORAM: HENRY KASAMBA APPELLANT AND

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YAKOBO RUTALIHAMWE RESPONDENT

[Appeal from the decision and orders of the High Court of Uganda at Fort Portal (Zehurikirize, J0 dated 28th October, 2OO4 in H. C. C Appeal No.g of 2003l

# JUDGMENT OF ENGWAU, JA

I had the benefit of reading in draft form the judgment prepared by my Lord, Kitumba, JA and I entirely concur with her reasons and orders. I have nothing more useful to add.

Dated at Kampala this ... day of 2009. l

S. G. En AU

JUSTICE OF APPEAL