Kasolo & Another v Mulumba & 2 Others (Civil Appeal 72 of 2018) [2024] UGHC 1179 (10 September 2024)

# THE REPUBLIC OF UGANDA

#### IN THE HIGH COURT OF UGANDA AT MPIGI

# CIVIL APPEAL NO. 72 OF 2018

# (Arising out of Civil Suit No. 007 of 2015)

#### 1. KASOLO DANIEL $\mathsf{S}$

**APPELLANTS** 2. BABIRYE ANGELLA

#### **VERSUS**

# 1. MULUMBA JAMES ALIGAWEESA

2. NKALUBO BRIAN

**.....................................**

3. KASAWULI SULAIMAN 10

# BEFORE: HIS LORDSHIP HON. JUSTICE OYUKO. ANTHONY OJOK, JUGDE

### Judgment

The appellants brought this appeal against the decision of His Worship Talisuna Patrick Ngereza, Magistrate Grade one at Nsangi, delivered on the 17<sup>th</sup> day of 15 December 2018. The grounds of appeal as per the Memorandum of appeal are as follows;

- 1. That the learned Trial Magistrate erred in law and fact when he disregarded the appellants' evidence and held that the purchase agreement was altered. - 2. That the learned Trial Magistrate erred in law when he dismissed the appellant's suit and the orders therein without considering the evidence from the locus in quo proceedings. - 3. That the learned trial judge erred in law and fact when he failed to properly evaluate the evidence on record.

#### **Brief facts:** $25$

The appellants brought a civil suit against the respondents with a claim for; a declaration that the appellants lawfully purchased the suit land from the 1<sup>st</sup> and $2<sup>nd</sup>$ respondents and lawfully took possession thereof; a further declaration that the purported resale of the suit land by the respondents was unlawful, fraudulent, reckless and illegal; designed to disenfranchise the appellants of their interest in the suit land; a consequential order to compensate the appellants for all ensuing loss as they were reserving the suit land for substantive agriculture, and that the

$3<sup>rd</sup>$ respondent in connivance with the 1<sup>st</sup> and 2<sup>nd</sup> respondents and their agents sold the same to the unsuspecting buyers, who are currently in possession; an order of a permanent injunction to issue restraining the respondents from any other act of selling, trespassing, subdividing or any way of interfering with the appellants' quiet enjoyment and possession of their land; an order for paying general and exemplary damages for the inconvenience, chagrin and suffering caused to the appellants and costs of the suit. Judgment was entered in favour of the respondents and the appellants being dissatisfied lodged the instant appeal.

# Representation:

$\mathsf{S}$

Mr. Sserunkuma Bruno represented the appellants while the respondents were 10 unrepresented and did not attend court. The appellants filed written submissions.

# Duty of the first appellate court:

Whereas it is the duty of the first appeal court to make its own findings and arrive at its own conclusions from the evidence on record, it is also the duty of such appellate court to attach the greatest weight to the opinion of the trial Magistrate 15 who saw the witnesses. An appellate court will not substitute its own opinion for that of the trial court and a judgment of facts will be upheld unless it is satisfactorily shown to be unsound or contrary to the weight of the evidence on record. (See: Okeno v. Republic [1972] E. A. 32 and Watt v. Thomas (1947) 2 All. $E. R. 584.$ 20

# Submissions:

Ground 1: That the learned Trial Magistrate erred in law and fact when he disregarded the appellants' evidence and held that the purchase agreement was altered.

It was submitted for the appellants that their claim was that they had bought land 25 measuring 142ft by 59ft from the defendants and produced a sale agreement to that effect. That it was therefore, the burden of the respondents to disprove the appellants that they did not sell the said piece of land which they failed to do. (See: Kyotera Victoria Fishnets Limited v. The Commissioner General, Uganda Revenue Authority and Uganda Revenue Authority, Civil Suit No. 224 of 2014). 30

Counsel argued that the agreement without measurements was never adduced in court by the respondents. That the trial Magistrate violated the parole evidence rule of once words are reduced into a document, oral evidence cannot be adduced to controvert the contents of the documents. (See: Section 91 of the Evidence Act

and the case of Kasifa Namusisi, Amina Nabankema and Abdalah Wakaalo y. 35 Francis M. K. Ntabaazi, SCCA No. 04 of 2005).

$\mathsf{2}$

He added that the sale agreement as submitted by the appellants contained all the material facts and the sketch plan was part of the said sale agreement which was signed by the parties. That the issue of the different handwritings in the sale agreement ought to have been heard and given the appellants an opportunity to explain as there was no evidence led by the respondents that the agreement had been altered. That the trial Magistrate in constituting himself as an expert failed to give the appellants a fair hearing and his findings were therefore, erroneous and not backed by evidence. That the respondents never proposed to engage a handwriting expert and if the trial Magistrate wished to have some questions answered under **Section 164** of the Evidence Act, he had the powers to seek that clarity.

$\mathsf{S}$

$10$

$25$

Further, that the trial Magistrate departed from the framed issues and amended the issues without giving the parties a chance to address court on those issues denying the parties a fair hearing.

I have carefully considered the submissions under this issue and the entire court 15 record. I resolve as follows:

It is not in dispute that the appellants purchased land from the respondents, however, the issue at hand is the measurements of the land that was bought. While the appellants allege that they purchased land measuring 142ft x 59ft from the respondents, the respondents contended that the land was never measured. That the appellants were only shown a piece of land that was available for sale to which they agreed to purchase and the sale agreement never had any measurements.

It was admitted by the appellants that at the time of purchase they were shown land and when they wanted to start construction, they were told part of it belonged to the neighbor Mugerwa and upon surveying they found the piece that they were left with measured 100ft X 20 ft. So, the appellants in the lower court sought to be paid the equivalent of the 35ft which they did not get; at the current market value of UGX 12,500,000/= as per their valuation report.

It is my observation that there was a lot of contradictory evidence in terms of who signed the agreement when and how. It was the evidence of the respondents that the sale agreement had no measurements while the appellants insisted that the measurements were there on the agreement. The $2^{nd}$ applicant in her testimony stated that the sale agreement had no measurements and stamp that these were only added on 27/11/2007 when the last instalment was paid. Since, the Chairperson was not present when the first instalment was paid and the agreement made.

$\overline{3}$

I have had the benefit of looking at the sale agreement and it has no measurements in its body, the sale agreement does not indicate the boundaries or the extent of the piece of the land as regards to its neighbors, the sale agreement indicates that the purchase price of UGX 13,000,000/= was paid on $25/10/2007$ , it has stamps

dated 17/11/2002 and there is a sketch map which can clearly be seen to have $\overline{5}$ been written in a different handwriting. It was the appellants' evidence that they paid for the suit land in two installments, however, there was no evidence to back this up. The agreement as drafted indicates that the consideration when the purchase was made was in one instalment. How were the two installments received and acknowledged by the respondents? $10$

Secondly, the appellants were said to have inspected the suit land before purchase however, what is not known is whether any of the neighbors to the suit land were ever consulted in regard to the size of the land or they only stopped at indulging the LC1 Chairperson.

- I find that the appellants while viewing the suit land did not conduct due diligence 15 as there was no evidence adduced to show this court that the neigbours to the suit land were ever consulted, no do they appear on the sale agreement, even when the survey was conducted they were still not involved nor the respondents. I find that there was no due diligence conducted by the appellants when purchasing the land - considering the fact that the respondents insist that the same had no $20$ measurements. The appellants in this case bought the suit land according to what they were shown by the 3<sup>rd</sup> respondent and not depending on measurements, because no where in the appellants' evidence did they inform court that at the time of viewing or purchasing was the land measured and demarcated not even when - they started construction. It was only after they started construction and there was $25$ an objection from PW2 that they now indulged a surveyor. The respondents could not therefore, pass on what they did not have.

In the case of Naome Juma & Another v. Nantume & Another, Civil Suit No. 363 of **2010.** it was held that:

"It is trite law that the value of land as valuable property calls for thorough investigations before purchase. Call it due diligence. The buyer who fails to carry out due diligence and buys from fraudsters gets no legal title. Lands are not vegetables that are bought from unknown sellers. Lands are valuable properties and buyers are expected to make thorough investigations; not only of the land but also the sellers before purchase."

The appellants insisted on the agreement as having a sketch map with the measurements when they bought the land. I with all respect disagree, the sketch map was added as an afterthought that is why it was even written in a different,

$\overline{4}$

in court and testing the evidence on those points only. (See: Odongo Ochama Hussein v. Abdul I, Civil Appeal No. 119 of 2018).

It is however, not mandatory in all cases for court to visit locus, during the hearing of land disputes. (See: Practice Direction No. 1 of 2007). When court does visit locus, whatever transpires at locus which is ordinarily conducted after the full trial, is to be recorded as part of the proceedings, with accuracy. A detailed and accurate record of the evidence is necessary for an appellate court which has not had the benefit of hearing the witnesses for it to arrive at a fair decision.

In the instant case the locus in quo visit was conducted however, the proceedings were never typed to form part of the typed record of proceedings. The sketch map $10$ was equally drawn but I cannot say I was able to interpret the same. The proceedings though present, are not of any use because they do not help the person reading the record to understand what transpired. The appellants do not argue that the proceedings were improperly recorded or that there was a misconduct of the locus in quo visit. All the appellants are contending is that the proceedings 15 were never considered by the trial Magistrate before he could reach his decision.

Be that as it may, I find and hold that the trial magistrate did consider the evidence of the appellants and their witnesses that includes PW2 as adduced in open court. Even, though the locus proceedings were never considered this did not occasion a miscarriage of justice to the appellants as the suit in the lower court was in regard to the size of the land that was purchased which majorly had to do with the due diligence of the appellants. The agreement as relied on by the appellants did not have any measurements included nor the boundaries or neighbours. It had a sketch map which in my view was added as an afterthought.

In the circumstances, I find that no miscarriage was occasioned to the appellants $25$ by the trial magistrate by not considering the locus in quo proceedings as all the other evidence as adduced in open court was evaluated and considered.

These grounds of appeal also fail.

In a nutshell this appeal fails on all grounds and it is hereby dismissed with costs. I accordingly uphold the decision of the lower court. I so order.

OYUKO ANTHONY OJOK JUDGE

10/09/2024 35

$\mathsf{S}$

$20$

30