Kassim Abdaraman and Another v Mohamed Salim (Civil Appeal No. 0012 of 2012) [2012] UGHC 445 (2 October 2012)

Full Case Text

#### **THE REPUBLIC OF UGANDA**

### **IN THE HIGH COURT OF UGANDA HOLDEN AT ARUA**

## **CIVIL APPEAL. NO. 0012 OF 2012**

**1. KASSIM ABDARAMAN**

**S 2. ABDUL HASSUME** APPELLANTS

**=VERSUS=**

**MOHAMED SALIM RESPONDENT**

#### **JUDGMENT**

#### **BEFORE HON. JUSTICE NYANZI YASIN**

# *Procedure* IT)

Suit No. 14 of 2001. Although from the record it appears The present appellant was sued with one ABDUL HASSIM in the lower court by the present respondent vide Civil that the parties were interested in appealing they did not file their appeal in time.

On the 4th April 2006 the two, filed an application in this court seeking the time in which to file their appeal to be enlarged. The notice of motion clearly shows that it had two applicants.

The application was allowed by court on 29th June 2006 and an order to that effect was made.

the memorandum of which was the the all appeal named only KASSIM I have with the care it <7 • However subsequently filed in this court ABDARAMAN as a single appellant, takes read all the relevant document on record and proceedings as whole and formed an opinion that *I* O current proceedings concern the two parties in respects. That in order to come to a logical conclusion and prevent other suits from the current proceedings and resolve all the matters in issue, the second applicant in the application that sought extension of time ought to be added as a party to this appeal.

My conclusion gives effect to the provisions of 0.1 r 10 (2). This rules allows court on its own motion at any stage of the proceedings to add a party in order to effectively and completely adjudicate upon and settle all the questions JLo involved in. the suit.

I accordingly order that ABDUL HASSIN continues to be a party of the proceedings and will be affected by any orders this court makes, or his or any of his legal representatives.

#### **BACKGROUND TO THE APPEAL**

The background facts to this appeal can be summarized from the evidence of PW1, DW1 and DW2 in the original Civil suit No. 0014 of 2001 brought by the current respondent against the appellant in Chief Magistrate court of Arua. It was decided by his Worship WAMALA BONIFACE on the 3rd/07/2002.

In the plaint Mohamed Salim claimed that late HASIM ABDALLAH gave or donated to him a piece of land on the I V3 22/02/1978 (Although in para.4 of his pleadings he stated the date to be 22/02/1998, I do believe that was a mere typing error). It is pleaded that in the following year 1979 war broke out and the plaintiff went to exile till 1994.

in the encroached on the **IS** That in 1996, theappellants respondent's land from both the eastern an western sides as evidenced by the survey report which he attached to his pleadings as annexture "C". He alleged to have reported the encroachment to L. C. I chairman but he ignored, or neglected, or refused to handle it.

Both in pleadings and evidence before the trial court, the appellants denied the respondent's allegations.

11?

respondent. evicted, However based on the fact that the respondent was given the suit land as Exh. Pl which in the opinion of the trial court was corroborated by the evidence of PW2 and PW3, the trial court entered judgment in favour of the It decreed that both the appellants be that the 1st appellant's uncompleted house be demolished and issued a permanent injunction against the appellants and or their agents retraining them from any further. or future encroachment on the land. The | O appellant were not satisfied with that decision hence this appeal.

There 3 grounds of appeal which in my view overlap each other. Namely they are:-

- failed l. The learned trial Magistrate failed to judicially evaluate the evidence on record and came to a wrong conclusion when he held that the appellant had encroached on the respondent's land. - 2. The learned trial Magistrate erred in law when he failed to consider and evaluate the evidence of DW3 and DW4 and this causing a miscarriage ofjustice. - 3. The learned trial Magistrate erred in law and in fact in relying on hearsay evidence of PW2 and PW3 thereby coming to a wrong conclusion.

*u*

*IS*

All I must comment that the grounds were badly drafted. the three (3) grounds complain either about wrong or none evaluation of evidence. However from the grounds and submission the following are the issues that can dispose of this appeal.

**the by the trial 1) Whether theprocedure adopted Magistrate at the locus-in-quo was proper.**

# **2) Whether the decision reached by the trial Magistrate was supported by the evidence on the record.**

\ O In answering I will start with issue number two.

It has been stated in See **WILKAMSON DIAMOND LTS & ANO. =VS= BROWN 1970 EA 01 and C. A No. 0004/2006 FREDRICK J. K. ZAABWE =VS= ORIENT BANK LTD & ORS.** arrive at my own conclusions as to whether the findings of the trial court can be supported. some authorities that it is a re-trial of some sort. I agree with the appellant's submission that this being the first appellate court my duty is to evaluate all the evidence which was adduce before the trial court and

**IX**

**ISSUE TWO**

### **the trial WHETHER the decisions reached by Magistrate were or are supported by the evidence on record.**

Starting with the pleadings, the respondent (then plaintiff) pleaded in paragraph 4 of the plaint that late Abdallah Hassim gave him a piece of land whereon he erected a building.

I **o** plaintiff. introduced in his evidence. His suit was founded on Exh. P. 1 this was the document which was the evidence of donation of the land to the Though not attached to the pleadings it was

Through out the trial of the lower court and before this court Exh. P. 1 was not interpreted into court language. It original text is in Swahili language. S.88 CPA makes *I* <7 English language to be the language of court and all evidence to be recorded in English language.

For that reason on the 18/09/2012 this gave summoned the parties or their advocates for direction on the appeal before judgment could be written. The respondent was q directed to provide an English text of Exh. Pl interpreted by a person conversant in both English and Swahili language.

The English text of Exh. Pl agreed upon by both sides reads;

**15**

"I have given my small piece of land for building a house behind my Kitchen to Mohammed Salim because of being peaceful with neighbours. Witnessed by Hassan Furaj. Signed - Hashim Abdallah"

The trial court had to give the true factual and legal meaning, to that agreement in order to decide whether or not there was any encroachment to the respondent'sland by the appellants.

**I o** The trial court's work was made easy by the fact that none of the parties contested the agreement's being made by late Hashim Abdallah including the 2nd appellant who was his son. All that was to be done was to have it interpreted. I have looked at the record carefully and did not find a relevant part of the judgment relating to interpretation of the agreement.

My legal understanding of the document is that the donor of the suit land for mutual respect donated to the respondent "a small" piece of land to enable him construct

**7** The a house. It was located behind his kitchen, donation was witnessed by one Hassan FARAJ.

The important points to note from exhibit Pl are;-

- 1) That it gave the location of the land donated. - 2) It did not give its actual size in mathematical figures but stated that it was a small piece of land. - 3) It was witnessed by HASSAN FARAJ.

**I** I have studied the record of proceedings and the judgment itself. The parts of the judgment which related to this agreement in support of the respondent's evidence can be referred to as below.

At page 1 of the judgment the learned trial Magistrate quoted the respondent as PW1 to have given the testimony that;

council authorities I showed them the letter so that I could build a house on the land. I went for the plan which was signed by the town clerk and health inspector. "After I was offered the land I went to the town

Following this plan the measurement is 100 x 95 feets and the area of the house is 65.6 x 34 fts. I started building the house in 1978 and completed it in 1979"

PW1 added to this testimony that;

the land. He surveyed The directions were indicated as 28.8m x "The land officer measured the land. 30m belong to me Mohamad Salim"

In cross examination by DW2 PW1 now respondent agreed that no measurements were given or indicatedin Exh. P. 1. relevantly he added

measurements which were 100 x 95ft. After Hashim never or *n* size had given me the land I met him to thank him, he described the land or mentioned its "I visited the land with my witness Justo Mundua. Mundua's name never appeared on the agreement. When I was shown the land Justo Mundua took the

On the part of PW2, he corroborated PWl's evidence that the .land which was donated was shown to them by Justo Mundua whom he called the land patrolman for Arua Municipal council. That he showed to them 100 x 95fts. He said he did know not if the land agreement measuring 2^0 Exh. Pl contained measurements but he relied on the information that was given by the land patrolman (Justo Mundua) who was a witness to the agreement (Exh. Pl).

**I o**

**s**

For PW3 the story is different, if he evidence is read and understood properly the measurement for the plot was developed from the plan which the respondent had made. PW3 introduced himself as a Surveyor working with the land office surveys department. The relevant part of his evidence runs as follows;-

"From Salim's plan the municipal authority had approved that the land which could accommodate the approved building was of dimension of 22.8m x 30.5m the length of 30.5m was okay when we tried to follow the 22m width which was given by the architectural plan, we found that it was encroaching on the land claimed by Kassim and that was the cause of the dispute that side"

I o

approved. He wrote Exh. From this witness the guiding point to decide the size of the land was the **building plan** that the municipal council He made his report on 18th/12/1978 exactly 20 years since the donation of the land. P4 the. survey report in which he made the conclusion below

*c<* I hereby wish to inform you that our survey field - checks have proved that the piece of land measuring 22.8 x 30.5m belonging to Salim Mohamed has been encroached on "

PW3 did not say in his oral evidence in court or exh. P4 that he ever talked to Justo Mundua or any other witness.

. Based on that evidence as analyzed above the trial Magistrate found that the respondent had an acreage of *-* land in the measure of 22.8m x 30.5m or 100ft x 95fts f according to Justo Mundua and according to the building plan in respect of the first measure what ever he took to 'be the truth.

*io* The question now is whether that finding was based on acceptable evidence and proper at law.

None of patrolman, the two &gt; It must be noted that while the measure of 100 x 95fts is claimed to have been shown to the respondent by what he called his witness Justo Mundua the land . Mundua was not a witness to Exhibit P. 1. important people who would have shown the respondent how big the land he was given was before even attempting to make building plans were Hashim Abdallah the donors or Hassan Furaj his witness to the donation. these people showed him the acreage of the land donated to him but took to use a messenger of the letter donating the land to him to show him the boundaries. Justo

Mundua was not and has never been the witness to the donation. He was orally added to a written document.

Consequently any reference to Mundua and his evidence being accepted without availing the other party a chance to test it by cross-examination violated the rule against accepting hear-say evidence.

· Secondly and most important in my view is the fact that exh. P1 never stated the area of the land donated in It only stated a "small piece of mathematical measures. $\int O^{-1}$ land". If the donor wanted he would have stated it but remained silent and vague if not ambiguous. Where did the measure of 100 x 95fts came from or 22.8 x 20.5 or 22 $\frac{1}{2}$ $\cdot$ x 30.5 whatever was preferred to the other come from?

· Exh. P1 had to speak for itself. S.91 of the Evidence Act $\sqrt{ }$ prohibits oral evidence to explain contents of $an$ agreement disposing of property since Exh. P.1 never gave a mathematical measure of the land no one had the authority to give one not even Hassan Furaj who In UGANDA REVENUE AUTHORITY =VS= witnessed it. 20 STEVEN MABOSI SC C. A No. 26/1995 URA issued a seizure notice against the respondent the notice named 500 ½ litre boxes of lubricants. URA which claimed to have discounted other items not included in the notice sought

to adduce and rely on oral evidence to change the number of boxes the trial judge refused it on ground that it offends S.91of the Evidence Act. On appeal to the S. C. KAROKORA JSC (as he then was) upheld the judgment of S the trial judge and said that no amount of oral evidence could change the written position except where coercion, fraud or illegality is pleaded.

Applying the above decision to the present facts I find as I must do, that no amount of oral evidence could give a t O mathematical creage of the land donated by Hasim the same had not been creage Abdallah to the respondent as stated in Exh. Pl.

also common law doctrine of on 1 o it could be termed present. x 100 fts (30m x 30m). I have applied the **reasonability test** to the facts before me. Exh. Pl stated that the respondent was given a "small piece of land which to build a house. The land was subject to physical planning and located in Arua municipality can it be said that a piece of land measuring **100** x 95 fts was "a small piece of land" in 1978? I am not persuaded to believe that "a small piece of land". Be it at In urban areas the plots occupied by several developers hardly exceed 100 How then a plot of land measuring 100 x 95 fts could reasonably be termed a small piece of land?

To my mind the size of land the donor gave to the respondent was that small piece of land which was just . enough for him to construct his house and that could not measure 100 x 95 fts by any standard.

*s* **to** That explains why the defendants never challenged the respondent on building his house which measured 65.6 x 34 fts. To the son of late Hashim Abdallah there was no point in challenging the person to whom their father had;' given land. Nevertheless the gift did not include the; extra land claimed after their fathers' death by the respondent.

**IS** The trial Magistrate was therefore in my view in error when he stated that he found it strange that the plaintiffs building plan was left unchallenged upto 1998. No partywas challenging the building plan, the respondents weredisputing the respondent's claims for extra a-creage where1 his house was not. That is what they challenged. *-* Otherwise from evidence of the respondent himself he drew the plan in 1978 after the donation and constructed a house which he completed in 1979.

There is evidence of D2 (now the 1st appellant) to the effect that he had no dispute with the respondent. In 1998 the respondent asked for a piece of land on which to construct a latrine and he gave it to him.

The respondent did not deny that fact. It is disturbing to believe that if the respondent had all that land he claimed was his, he could still ask from the 1st appellant for as small as a piece of land enough to accommodate a latrine.

My considered view is that what ever size the respondent's house occupied, is the size of land the deceased donor gave to him.

- I agree with the appellant's advocate that court acted ini error, to rely on hear-say evidence of PW1 and PW2 about; the area of the land. The information Justo Mundua gave • **<** if all it was there which is doubtable came from the land owner. - **/s** Now the chain would be that late Hashim Abdallah told Mundua the area then Mundua told PW1 how big the land he was given is thenPWl testified before the trial court. That evidence was hear-say and could not be used. Refer to S.59 Evidence Act and **KINYATI -VS- REP 1976 - 1085 EA 234** (CAK) as cited by counsel for the appellants.

**I** In effect the acceptance of unacceptable evidence would go a long way to affect as un-acceptable the evidence of PW1 and PW2 upon which the judgment was based, therefore answer the first issue in the affirmative.

**15**

The fact that the evidence the trial court used evidence that contravened S.91 and S.56 of the Evidence Act would suffice to dispose of this appeal but I will make comments on issue number ONE.

## **ISSUE ONE**

**|O**

#### **Whether the the trial procedure adopted by Magistrate at the locus in quo was proper.**

I was forced to comment on the way the trial court conducted the locus in quo proceedings by the statement the trial Magistrate made, the record of proceedings. The statement is at page 14 of It is quoted below;

> *There appears no need to take testimonies as most people around are repeating what has been said by those who gave evidence in court".*

Quo With due respect the trial Magistrate erred to adopt such a procedure. I agree with the criticism of counsel for the appellant against the trial court on this point. The court must have misconceived the whole process of visiting the locus. The quotation of EMMANUEL BASALIZA -VS-MWIIJUSA CHRIS by the appellant's advocate suffices to rest this point. My brother judge LAMECK MUKASA stated;

**16**

"The purpose of visiting the locus in quo is for each party to indicate what he is claiming. Each party must testify on oath and be cross examined by the opposite party. The purpose for the witness who have already testified in court to clarify what they were testifying in court and indicate features and boundary marks if any to court. My observation made or noted by court at the locus in quo must be recorded and form part of the record"

**5**

IO KAROKORA AJS (as he then was) emphasized the same procedure In **DAVIDA ACAR =VS= ALFRED ACAR ALIRO [1982] HCB 60** (in his comments percuriam) The effect of not observing the procedure is serious on the whole , trial. See **BADRU KABALEGA =VS= SEPIRIANO MUGUNGA [1992] 11 KALR 110.** It is fatal to the whole trial if the trial Magistrate fails to follow the acceptable procedure at the locus in quo visit and proceeds to base him/her judgment on the result of the visit. It was held in that case. It makes no difference that in the present case X- the trial court did not base its judgment on the result of the visit of the locus in quo. It was all the same bad enough to if ignore the laid down procedure.

**17**

**BL**

Consequently even if the first issue had not disposed of the whole appeal I would still answer the above issue in the affirmative.

In the result this appeal succeeds. I set aside the orders of the court below and award cost of the appeal to the 1st appellant KASSIM ABDARAMAN. ABDUL HASSIM was merely added by court, he would not be entitled to costs.

to I award costs of the suit in the court below to the two respondents but such costs as to the parties who represented themselves excluding advocates instruction and other fees.

**( O**

**JUDGE 2/10/2012 NYANZI YASIN**

**18**

# **2/10/2012**

**s**

Paul Manzi for appellant Samuel Ondoma for respondent Both parties present Emmanuel court clerk

Mr. Manzi Appeal is for judgment.

Mr. Ondoma Ready to receive the judgment.

Court: **Io** Judgment delivered in open court in presence of above.

**Nyanzi Yasin Judge 2/10/2012**

**19**

### THE REPUBLIC OF UGANDA

#### IN THE HIGH COURT OF UGANDA HOLDEN AT ARUA

#### CIVIL APPEAL NO **012** OF 2007

## [ARISING OUT OF CIVIL SUIT NO 014 OF 2001 IN THE CHIEF MAGISTRATE'S COURT AT ARUA

### 1. KASSIM ABDARAMAN

2. ABDUL HASSIM:::::::::::::::::::::::::::::::::::

#### **:::VERSUS:::**

MOHAMMED SALIM::::::::::::::::::::::::::::::::::::

#### DECREE ON APPEAL

This Appeal coming up for final disposal this 02nd day of October 2012 before His Lordship the Hon. Mr. Justice NYANZI YASIN, Judge of the High Court of Uganda holden at Arua, in the presence of Learned Counsel Mr. Paul Manzi for the Appellants and Learned Counsel Mr. Samuel Ondoma for the Respondent; both the 1st Appellant and the Respondent present;

IT IS HEREBY DECREED AND ORDERED that:

1. The Appeal hereby succeeds and the decree and judgment in civil suit No. 014 of 2001 in the Chief Magistrate's court at Arua is hereby set aside.

| Extracted by: M/s Manzi, Odama & Co. Advocates &amp; Solicitors Plot 2 Arua Avenue, 1 st Floor Opposite Centenary Bank P. O. Box 1100 Arua | And the Submit such as a light of a linear state of the ALAKA & OD ADVOCATES $P. O. RX$ Zey $\mathbb{R}$ is a container of 16 NOV 2012 | | |----------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------------------------------------------------------------------------------------------------------------------------------------------------|--| | | RECIEVED! SIGN. Fanda | |

- 2. The 1st Appellant is awarded the costs of this Appeal to be paid by the Respondent. - 3. Both Appellants are awarded the costs in civil suit No 014 of 2001 in the Chief Magistrate's court at Arua to be paid by the Respondent.

We approve in accordance with Order 21 Rule 7(2) of the Civil Procedure Rules;

101-2012/P. O. ADVOCATE 100 ARU

M/s MANZI, ODAMA & CO. ADVOCATES COUNSEL FOR THE APPELLANT

M/s ALAKA & CO. ADVOCATES COUNSEL FOR THE RESPONDENT

GIVEN under my hand and the seal of this court this $\frac{1}{2}$ day $2012$ of $\overline{\phantom{a}}$

**AG DEPUT GISTRAR/ARUA**

**Extracted by:** M/s Manzi, Odama & Co. **Advocates & Solicitors** Plot 2 Arua Avenue, 1st Floor Opposite Centenary Bank P. O. Box 1100 Arua

$\mathcal{L}$