Masuba Muzamiru v Magombe (HIGH COURT CIVIL APPEAL NO 0125/2009) [2011] UGHC 190 (13 July 2011)

## **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MBALE**

# **HIGH COURT CIVIL APPEAL NO 0125/2009 [ARISING FROM MBALE CIVIL SUIT NO 82/2004 MASUBA MUZAMIRU APPELLANT VRS**

**MAGOMBE HUSSEIN RESPONDENT**

#### **BEFORE: THE HON. MR. JUSTICE MUSOTA STEPHEN**

### **JUDGMENT**

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This is an appeal from the judgment and orders of the Magistrate Grade <sup>I</sup> Mbale in a land suit between the appellant Masuba Muzamiru represented by M/S Owor &. Co., advocates and M/S Kongai & co. Advocates and the respondent Magombe Hussein represented by M/S Mutembuli & Co., Advocates . Both respective counsel made written submissions in support of their respective cases which are filed on record and learned counsel for the appellant summarized the background to this appeal which has not been challenged by learned counsel for the respondent as follows:

The respondent filed a claim in Mbale District Land Tribunal on 5lh May 2004 for a permanent injunction, vacant possession of the suit land and costs of the suit. When the tribunal ceased to have jurisdiction, the Magistrate Grade <sup>I</sup> took over and heard the suit to its conclusion. Accorduig


Claim, the respondent alleged that he had purchased the plot in dispute tie developments on it on 23rd July 2001 at shs <sup>3</sup> m=. However the PP llant allegedly committed a breach of the contract by sending away the spondent s seivants from the plot and commencing constructing thereon.

dhe respondent at the hearing told court that on 23rd July 2001, tire appellant went to him with one Safina and told him that his Plot No 3 Nagimesi Road Mbale Municipality was on sale and that he had a problem with URA (Uganda Revenue Authority) since it had impounded his car. That they negotiated until they came to U shs 3,000,000/=. That an agreement was executed to that effect. The agreement was admitted in evidence and marked PEI. That this agreement was a sale agreement and not a loan agreement.

In his written statement of defence, the appellant denied all the allegations in the claim and put the respondent to strict proof.

During the trial, the respondent testified as PW1. His wife Amina Nalongo testified as PW2. The son Badiru Nadaga testified as PW3. All witnesses avered that they were present when the sale agreement was entered into.

According to PW2, the appellant went to their home and proposed to sell his plot because he had problems. Although she initially opposed the purchase, she changed her mind later and on that day, 23rd July 2011 they paid the appellant 550.000==. That on 3rd October 2001, one Badiru Nadaga (PW3) paid the appellant 70,000/=. Later on 25th October they added tire appellant 100,000=.. <sup>I</sup> C7PTIPY THAT THIS IS

A Tfciir ->dy OF THE ORIGINAL

PW3 affirmed that on 23rd July 2011 the appellant visited them at 9.00 p.m. with Safiyi Nagimesi and told them that he had a problem with Ugand Revenue Authority. That he wanted to sell his plot at 4 m-. They negotiated and agreed at 3m=. That the respondent told the appellant that he would not manage to pay all the 3m= but would pay in instalments. day the appellant was paid 550,000= and an agieement was ma further said that on 3ld October 2001 he paid the appellant behalf of the respondent . PW2 his mother added the appellant 100,000 which he signed for on 25.10.2011. PW3 was not aware of any other payments to the appellant other titan the 550,000=, 70,000= and 100,000=.

The respondents claim was supported by Exhibit PI which was presented to court by PWI, tire respondent herein. The said exhibited contained two descriptions one ofwhich says:

"<sup>I</sup> MASUBA MUZAMIRU OF NABIJO ROAD <sup>I</sup> HAVE RECEIVED SHS 550,000= (FIVE HUNDRED FIFTY THOUSAND) AS DEPOSIT ON MY PLOT NO 3 ARTHUR NAGIMESI ROAD FROM HUSSEIN MAGOMBE AND NALONGO."

The second description is the word "BORROWER"

According to the evidence by the appellant, he affirmed that on 23rd July 2001 he had a problem with the Revenue Authority which had impounded his car and goods. He went to the respondent's home where he found the respondent, his wife Amina Nalongo and son Badiru Nadaga. He told the

bio his problem with UR <sup>a</sup> « and wanted financial assistance . The hosts r bedioom. Soon after they emerged with a Diary. That the old the appellant to write in the Diary that he had received as deposit on his plot from the respondent with Amina Nalongo, 'b si Safiyi and Nadaga Badiru as witnesses. That he was given the "0,000 . The appellant further testified that the respondent told him to return with documents for Plot 3 Arthur Nagimesi Road when he would add him shs 1.250.000= . 1 hat on 24"' July 2001 he went and paid one Mwaule shs 500,000- the balance on Plot 3. Then on 26th July 2011 the appellant went with the papers to the respondent so that he could give him the balance of shs 1,250,000= which he had promised him. This money was never paid by the respondent . Further the appellant avcred that he returned with his papers to his home. ' When he checked on the respondent on 4lh August 2001, tlie respondent said he still had no money. On 3rd October 2001, the appellant reminded the respondent about the promise but the respondent asked tire appellant to hand him the papers and requested him (appellant) to write the word "BORROWER" in the Diary which he did on 3rd October 2011 and signed against it. It was at this moment that PW3 Badiru Nadaga paid the appellant shs 70,000/=. The appellant further testified that the respondent through PW2 paid the appellant 100,000/= which he signed for in the Diary. Further on 14th November 2001 the respondent paid the appellant 80,000/= in Kampala and he signed for it. The page where 80,000/= was paid to the appellant was photocopied for him. That on 15 November 2001 when both parties were in Mbale the respondent paid the appellant shs lm=. Later on 30,h November 2001, the appellant went to tlie respondent for more payment but the respondent told him that the 1.8 m= he had paid for the plot was enough and the appellant was .surprised. Soon

after, the appellant received court papers suing him. The appellant denied selling Plot 3 Arthur Nagimesi Road to the respondent.

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After the court hearing and analyzing the above evidence, it decided in favour of the respondent and the appellant was ordered to vacate the suit land. The court found that the appellant had sold the suit land to the respondent. The appellant was dissatisfied with the decision and orders of the learned trial Magistrate hence this appeal based on the five grounds to wit that:

$(1)$ The learned trial Magistrate erred in law when he held that the evidence adduced by the Plaintiff (respondent) had proved his case on a balance of probability.

$-10$

- $(2)$ The learned trial Magistrate erred in law and on the facts when he formed an unbalanced view of the evidence adduced before him. - $(3)$ The learned trial Magistrate erred in law and on the facts when he accepted and acted on a document which appears to have been forged by the plaintiff. the train of the art and the $\ldots \quad \ldots$ - The learned trial Magistrate acted in exercise of the discretion $(4)$ vested in him with grave irregularity and injustice when he failed as the court of first instance to subject the whole of the evidence before him to that exhaustive judicial scrutiny which the appellant was entitled to expect. $\mathcal{L}$ - Because the decision complained of appears to have occasioned a $(5)$ miscarriage of justice.

and the first transfer

As a first appellate court, this court is enjoined to subject the evidence adduced at the trial to a fresh and exhaustive scrutiny to make its own

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g d On th® sa\*d evidence. This is done while mindful of the fact opportunity to see witnesses testify to assess their demeanour ould not put myself in the shoes of.the trial magistrate. .

studied and re- evaluated the evidence in the lower court record. <sup>1</sup> go ahead and decide the appeal as argued by the parties starting with grounds <sup>1</sup> and 2.

<sup>1</sup> • •. . <sup>t</sup>

## Grounds <sup>1</sup> and 2:

In his submissions, Learned Counsel for the respondent argued that from the evidence adduced in the lower court the two parties agreed to sell and buy Plot 3 Nagimesi Road Mbale Municipality and by interpretation of Exhibit PEI, one concludes that there existed an agreement of sale and not a loan agreement. That learned counsel for the appellant has not pointed out any contradictions in the Exhibit PEI. That the entry of 14th. November 2001 which appears altered was written by the appellant and even ifthe same was altered (which is strongly denied) then it cannot render PEI invalid or illegal since both parties agree that it was executed save for the purported altered entry on 14th November 2001. That, therefore, the appellant can only claim that he was paid 80,000= and not 800,000= and the difference can be paid to him. That the respondent proved his claim on a balance of probabilities.

To the contrary, learned Counsel for tire appellant contends that there was no contract of sale in existence. That exhibit PEI is not a proper sale agreement since it contains, the word "BORROWER" which remained unchallenged. That the trial Magistrate treated this evidence of the respondent as gospel tx-uth and closed his eye to the contradictions in the evidence of PW1 ,PW2

and PW3 therefore erroneously accepted Exhibit PEI as part of proof ofthe respondents case. When <sup>I</sup> perused the evidence on the lower courts record, I did not come across the originals of the contentious documents. The lecoid has two conflicting documents. One presumably a land sales agreement whereas the other is a money lending agreement. Evidence has it that the respondent is the one who had custody of the original documents. This original was never tendered in court during the trial and no explanation is given why the original was not tendered. This is a mandatory requirement under S. 63 of the Evidence Act as submitted by Ms. Kongai for the appellant. Documents must be proved by primary evidence except as provided for under S. 64 of the evidence Act. There is no satisfactory explanation why the respondent chose to prove a contentious document by secondary evidence. A copy of the original which is highly contentious should not be relied on by any court of law to prove its authenticity. A case in point relied upon by the appellant is instructive on this statement of the law Goudie J (as he was ) in JOHN MUB1RU v UGANDA [1971] ULR 4 held inter alia that:.

This court finds frequently on appeal that magistrates allow witnesses to give evidence of contents of books and documents when they have not themselves made the entries and when the books and documents are not exhibited. Magistrates should note that the best evidence rule requires that, with a few exceptions, evidence of the contents of a book or document is, not admissible if the book or document itself is in existence but not produced in evidence."

2-7 a0D D B S 0 ,

nt case and basing on the submission by Mr. Mutembuli learned the icspondent the accuracy of the document exhibited as PI was pute yet the learned trial Magistrate did not prevail over the <sup>1</sup> dent to produce the original or to explain in a satisfactory manner its In the circumstances of this case therefore, the learned trial gistrate ought to have enlisted the services of a handwriting expert to P vide an opinion regarding the veracity of the alteration allegations. Alteiation s on a document unless satisfactorily explained can render a document invalid even though the parties signatures are appended thereon. The alteration's could be forgeries.

Regai ding whether this transaction amounted to a land sale, I take exception of the peculiarities mentioned by Ms Kongai, that a sale concluded at night is highly suspect. Before one buys land, the vendor and buyer should carry out an inspection of the property being sold and the buyer should satisfy himself that the property is free of any incumbrances. Secondly once the consideration is paid in instalments the documents pertaining to the land are usually passed over after the last instalment has been paid. Possession of the title deeds can only be evidence of an equitable interest to the extent created. ;■

balance after a delay From the available evidence, the appellant approached the respondent at night and \*e money was paid to die appellant immediately after the meeting at the home of the respondent. The respondent paid for a land he had not seen. According to the Respondent when the appellant refused to pick the die respondent dragged the appellant to court. Instead of seeking for orders for specific performance for breach of agreement, he


th acant possession ofthe suit land and a permanent injunction. At the trial, the learned trial Magistrate stretched the reliefs granted ition of tine appellant s house which was never sought for in the pleadings.

this was a suit seeking enforcement of a sales contract for failure of consideration the appellant should have first been compelled to conclude the transaction through an order for specific performance before he could be tied to an agreement he had repudiated.

I agree with learned counsel for the appellant that the respondent should have sued for either the sums so far paid to the appellant as money had and received on an incomplete contract ofsale or fore closed the property to the extent of tire equitable interest subject to- the appellant's right to.show cause why such interest had not been discharged. . . ..

When I scrutinized the exhibited alleged sale agreement, I found out that what learned counsel for the appellant pointed out is correct that on both versions of tire documents including the one tendered by the respondent himself do not indicate where the respondent appended his signature in Latin characters. It has been held that signatures to a mortgage that were not in Latin character rendered the mortgage invalid.

GENERAL PARTS (U) LTD <sup>V</sup> NPART SCCA <sup>5</sup> of 1999 (unreported). In the case of FREDRICK J K ZZABWE V ORIENT BANK & ORS SCCA NO 4 OF 2006 Katureebe JSC, held inter aha that

.1

s the Registrar of titles supposed to know that, the scribbled without the names and the capacity of the signatories had authority to sign?

my view, the rationale behind S 148 RTA requiring a signature to n Latin Character must be, to make it clear to every body receiving . the document as to who the signatory is, so that it can also be ascertained whether he (she) had the authority or capacity to sign. When the witness attesting the document merely scribbles a signature without giving his name or capacity, how would the Registrar or anyone else ascertain that the witness had the capacity to witness in terms of S. 148 RTA? Any instrument attested in such a manner shall be rendered invalid".

The purported sale agreement is invalid for lacking signatures in latin characters.

In the instant case, the disputed plot has a registered number and allocation documents which were given to the respondent. This land had therefore been brought under the operation of die Registration of Titles Act (RTA). The transaction therefore had to comply with die provisions ofthe law. The alleged sale agreement was not attested to by authorized persons and no stamp duty was paid as required under S. 42 of the Stamps Act. With such default, court ought to have required production of originals and impounded diem under S. 40 of die Stamps Act before requiring the payment of the requisite duty. Ground <sup>1</sup> and 2 succeed.

b ned C0Unsel for the respondent, the document relied upon P nt was genuine because the appellant did not satisfy court that the document he wrote himself was forged. That the trial magistrate j the whole evidence before him to Judicial evaluation. That what is pertinent is the interpretation ofExhibit PEI.

• v

On these grounds, I adopt my findings in answer to grounds <sup>1</sup> and 2 hereinabove . It was erroneous for the learned trial Magistrate to rely on the photocopy of the Diary book which was not tendered in Court. The alterations were not exhaustively explained in evidence. It was unsafe to icly on Exhibit PEI whose contents were not proved on a balance of probabilities. Learned counsel for the appellant rightly submitted that during the locus-in -quo the trial Court examined and saw the 2 buildings on the disputed plot. The case for the appellant was that the building on the southern side of the plot was his boys quarters which he. had constructed according to plan. The building on the Northern side was constructed by the respondent who forcefully had entered the property during the proceedings in the lower court and hurriedly erected the said building where there was a foundation laid down by the appellant. . ,

As pointed out by counsel for the appellant, the trial court was aware, ofthe contempt by the respondent because the. appellant was complaining every time the case was called tor hearing and the learned trial Magistrate repeatedly warned the respondent to .obey and respect court which was hearing the matter.. The proceeding\* at the locus-in-quo can not be ignored

as submitted bv learnt counsel f°r the respondent since they point to the existence ofthe <sup>d</sup>'sputed land and the contention between both the appellant and respondent.

The <sup>P</sup> <sup>d</sup> sale agreement is invalid and did not exist and die learned gistiate wrongly accepted and relied on it since it was not of evidential value. I will uphold grounds 3 and 4 as well.

## **Ground 5**

Regarding whether the decision of the learned trial Magistrate occasioned a miscarriage ofjustice <sup>I</sup> agree with the statements of the law cited by Mr. Mutembuli learned counsel for the respondent that a decision of a trial magistrate occasions a miscarriage of justice where there has been a misdirection by the trial court on matters of fact relating to tire evidence given or where there has been unfairness in the conduct of the trial

And that in order to establish that a miscarriage ofjustice has occurred, die appellant must point to a *prima facie,* evidence on record that an error has been made by the court below.

I will add that for there to be a miscarriage ofjustice the decision must be against the sum total ofthe evidence adduced by both sides. : , ...


reasons <sup>I</sup> have given in dealing with grounds 1,2,3 and 4, I am in 8<sup>1</sup> ent with learned counsel for the appellant that the learned trial gistrate s decision occasioned a miscarriage of justice. He based his ecision on a purported sale agreement which could not pass for the same . He relied on secondary evidence without justification and did not exhaustively determine the suspicion surrounding the alternations on the purported sale agreement. The cause of action in tire head suit could not support the conclusions of the learned trial magistrate. Instead of the respondent suing for either the sums so far paid for the alleged sale as money had and received on an incomplete contract of sale or fore closure of property to the extent of tire equitable interest subject to the appellants' right to show cause why such interest had not been discharged, the respondent sued for vacant possession and an injunction against tine appellant. <sup>I</sup> will uphold this ground of appeal as well.

For the reasons <sup>1</sup> have given in this judgment. <sup>I</sup> v ill allow this appeal and set aside the judgment and orders of the lower court. I enter judgment for tine appellant in this and court below and dismiss the respondents claim for vacant possession and permanent injunction. The appellant shall get the costs in this and the lower court.

**Musota Stephen JUDGE 13.7.2011**


**For D •**

**DEPOSIT G. RECEIPT No.**

**DEPUTY REGISTRAR HIGH COURT**

**HOLDEN AT MBALE**

**SIGN, DATE**

**FEES**