Rutalihamwe v Kasamba (CIVIL APPEAL NO. 0009 OF 2003) [2004] UGCA 41 (28 October 2004)

Full Case Text

## THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT FORE PORTAL

CIVIL APPEAL NO. 0009 OF 2003. (ARISING FROM C. S. NO. 48 OF 2000 OF THE CHIEF MAGISTRATE'S COURT AT MASINDD

YAKOBO RUTALIHAMWE........ ...................................... VERSUS HENRY KASAMBA. ... RESPONDENT

## BEFORE: THE HONOURABLE MR. JUSTICE V. T. ZEHURIKIZE

## JUDGEMENT

The Appellant having been dissatisfied with the Judgement of His Worship Sanyu Bashekana Chief Magistrate dated 31-M2003 but delivered on 17°4/2003 appealed to this Honourable Court and set forth the following grounds.

- 1. The learned trial Chief Magistrate erred in law and in fact when he delivered Judgement in Misc. Appl. No. MSD 00- Misc. Appl. 18/2001 when the suit before 1 him was No. (ICI- 01- CV- CS- 0048 of 2000 thereby occasioning a miscarriage of justice prejudicial to the Appellant. - 2. The learned trial Chief Magistrate erred in law and in fact when the imported into his judgement matters and prayers that had not been pleaded and/or prayed for by the Appellant thereby diverting from the suit before him which occasioned a miscarriage of Justice. - 3. The learned trial Chief Magistrate erred in law and in fact when, in his conduct of the proceedings at the Locus in quo, he allowed witnesses and evidence that had been adduced before and found to be of no probative value. - 4. The learned trial Chief Magistrate erred in law and fact by failing to properly consider and appreciate the evidence before him thereby arriving at an erroneous conclusion.

The brief facts of the case are that on 11/10/96 the Respondent sold to the appellant a piece of land measuring 500 by 100 ft from his land known as Block 48 Kisweka,

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Buyaga for the sum of shs. 525,000/=. The Appellant made down payment of Shs. 400.000/ $\pm$ and later paid the balance of Shs. 125,000/ $\neq$ on 18/11/96. The sale agreement (exhibit P2) provided that the balance of Shs. $125,000/$ = would be paid when the Respondent would be demarcating his plot.

When the Appellant started developing what he knew was his plot some people trespassed on it. He contacted the respondent who sued the trespassers in Kagadi Court and he won the case, according to the evidence of the Appellant. He further testified that one night his incomplete structure was demolished. He then filed this suit against the Respondent seeking an order of specific performance compelling the defendant/Respondent to sub-divide and transfer to him the land be bought.

The gist of the Respondents defence is that he did not demarcate the land for the Appellant/Plaintiff because he (the Appellant) did not bring a surveyor. He stopped the Plaintiff/Appellant from constructing the building that he was building, but that he refused. He was also stopped by the urban officer and Chief Administrative Officer (CAO). He prayed to the trial Court to order the plaintiff to bring surveyors so that he can show him his plot and then make the necessary transfers. He further prayed that the plaintiff be ordered to remove his building from his land.

The learned trial Chief Magistrate dismissed the Appellant/Plaintiff's claim with an order that the Defendant (Respondent) demarcates and shows the plaintiff a Plot elsewhere in the trading centre on production of a surveyor. That the Plaintiff should remove his building so that other developers enjoy the use of their lock-up shops. As the Appellant was not satisfied with this decision he filed this appeal.

When the Appeal come up for hearing Mr. Tadeo Asimwe appeared for the Appellant and Mr. Musamali represented the Respondent?

In support of the 1st Ground of appeal as set out above. Mr. Asiimwe argued that the trial Magistrate delivered judgement in a wrong suit i.e Mise. Application No. 18(2001 while

THAT THIS IS A TRUB I GRRMFY CORY OF THE ORIGINAL RECORD. **HASTEATE**

lhe proper suit was ll. C. C S. No. 48/2000 and lhal this created a-confusion as lo whether it is the proper judgement. That the appellant is pul in cuiiliisiun as to whether il is lhe suit or miscellaneous Application which was disposed of.

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With due respect I do not see any confusion. The record of proceedings clearly shows lhal the case before lhe trial Court was ILC. C. S. No. 48/2000. Il was originally filed in lhe High Court al Fort Portal and later transferred to Masindi Court and proceeded bearing the same serial number.

While the suit was pending before lhe trial Court, the Plaintiff filed Wise. Application *»* No. 18/2001 seeking leave of court to amend the plaint. By consent of both Counsel leave to amend the Plaint was granted.by the trial court on 28/2/2002. This disposed of the above application. The amended plaint was filed on 6/3/2002. Thereafter the case suffered several adjournments, until 1 1/12/2002 when lhe hearing took off and both sides closed their respective cases on that day. Then the case was adjourned to 27/12/2002 for court to visit lhe Locus in quo which was dully done.

In his judgement lhe learned Chief Magistrate summarised and considered the evidence which was adduced by the parlies in court on 1 1/12/2002 and al the locus in quo on 27/12/2002. lie went ahead lo resolve lhe issues which had been agreed upon by the parties and eventually made the decision which is lhe subject of this appeal. No where in his judgement did the trial court refer to the Misc. Application No. 18/2001. He never made any reference to any of lhe issues pertaining to the amendment of the plaint. I do believe (hat it was by error or slip of pen that the trial Magistrate wrote "MSD - Misc. No. 18/2001'\* on lop of his hand written judgement. Bui there is nothing in lhe whole body of his judgement that would suggest that he was dealing w ith the above application, which obviously had been disposed of as staled herein above. In lhe premise 1 find lhal lhe Is1 ground of appeal is devoid of any merit and it therefore fails.

I WKriH' CO?Y GP TH17 m HiiS IS A R.irp ORIGINAL KhCORD X-v **• \ •• A 1.** /O'fT \_\_\_ \_\_\_\_ \*

**I**

The 2nd ground of appeal is that the learned trial Chief magistrate imported in his judgement matters and prayers that had not been pleaded or prayed for by the appellant thereby diverting from the suit before him.

In support of this ground Mr. Asimwe argued that the trial Magistrate held that the disputed land is a park and thus did not belong to either of the parties and yet no evidence had been led to that effect. That the evidence of a park and market were raised by one Bamutura at the locus in quo. That the evidence shows that the disputed land originally belonged to the Respondent who sold it to the Appellant in 1996.

Counsel further complained that the trial Magistrate imported another alien matter of violation of Urban Planning when he stated in his judgement that the area the plaintiff was developing is in the middle of the part and it would violate the building rules and plans of the Urban Centre and yet there was no evidence before him to show that this area was designated as an Urban Centre.

The 3rd complaint by Counsel was that the trial Magistrate imported the issue of developers who were not party to the suit. That he ordered that the "developers" should go ahead and use their lock-ups. That he in effect decreed the suit land to these lockup owners and yet the evidence showed that these lock-ups were put up by the appellant.

Counsel for the Appellant further argued that the trial Magistrate was wrong by putting the burden of demarcating the land to the Appellant when according to the sale agreement it was the Respondent who had the duty of demarcating off the land sold to the Appellant. He asserted that it was wrong for the trial Magistrate to order that the Appellant be given land elsewhere.

Counsel concluded arguing that the trial Court did not dissolve the issues before him which were whether the Respondent breached his part of the contract and whether appellant was entitled to order of specific performance.

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In reply Mr. Musamali contended that the trial Magistrate did not import in his judgement ? matters and prayers that had not been pleaded or prayed for I.h the Appellant, l ie was ol the view that the existence of the park was ably brought out by une Bamulura al the locus in quo. Counsel contended that the trial Magistrate properly evaluated the evidence on record and reached the conclusion that the Appellant had consliucled the building on a plot of land that had not been given to him and thus did not own the land in dispute. He **»** acknowledged that the trial Magistrate ordered that the appellant removes his structures. He was of the view that the trial Magistrate rightly based his judgement on the weight of the evidence before him when he decreed the land in dispute belonged to the Respondent and in so doing the owners of the lock-up shops who had been denied enjoyment ol their shops by the Appellant.

**/**

1 have considered the arguments by both Counsel in respect of this 2nd ground of appeal. 1 have perused the entire record as I am duly bound to do since being the first appellate Court I have to reconsider and evaluate the whole evidence and come to my own conclusions. In doing so I have to subject the evidence to a fresh and exhaustive scrutiny <■ V 5 See Pandya V. R. 1957 EA 335. However I have to bear in mind that I did neither see \* or heard the witnesses and should thus make due allowance in that respect. Though the above authority was in respect of a Criminal appeal 1 do believe that the Principles pronounced therein appropriately apply to Civil matters. I will bear those principles in mind when determining this appeal.

The Appellant sued the Respondent for specific performance of contract praying that the Respondent be ordered to Sub-divide the plaintiffs plot and execute the transfer into his names. He pleaded in his plaint that when his building was reaching completion the Respondenl/Defendant alleged that, that was not the Plot he had sold him.

*On* the other hand in his Written Statement of Defence paragraph 4 ( c) the defendant (Respondent) pleaded that the plaintiff was slopped by (he Chief Administrative Officer and the Urban Officer ol Kibale District. further in paragraph 6 he averred that (he Plot of land on which the Plaintiff constructed the building did not form part of the piece of

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land which he sold to him. He did not disclose which Plot of land he actually sold to him. He appears to be relying on the allegation that the plaintiff never brought the surveyor to demarcate his land. This type of defence is not sustainable in view of the evidence on record.

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The Appellant (Plaintiff) in his evidence testified that after paying the balance of Shs. 125,000/= the Respondent (Defendant) showed him the piece of land he had sold to him in the presence of George Tibabara and the Appellant's wife who is a sister to the Respondent. Also present was a builder by the name of Tusiime Joseph. The Plaintiff knew the land very well because it was near his home at Muhoro. This evidence was not challenged either by way of cross-examination or by any evidence in rebuttal. I do believe the Appellant that the Respondent showed him the land he had sold to him.

This view is buttressed by the parties sale agreement of 11/10/96 which clearly stated that on payment of the balance the Defendant would demarcate the Plot sold to the Plaintiff. The Plaintiff paid the balance on 18/11/96. I do believe that although there was no. surveyor to formerly or technically demarcate off the Plot that had been sold to the Plaintiff the Defendant showed the Plaintiff the land he had sold to him.

In his defence at page 10 of the proceeding, the defendant not are stated that 11 did not demarcate the land for the Defendant because the lid not brin. **Solvers.** The word " Defendant " was an error, he must the " Plan.................................... brought to do the sub-division does not necessarily mean that the Defendant did not show the plaintiff the Plot he had sold to him. He did so on $18/11/96$ .

It should be noted that the Plaintiff brought building materials and embarked on construction. According to the unchallenged evidence adduced by the Plaintiff the defendant at first appeared to have supported the plaintiff in the construction. The plaintiff testified that before he could complete the building some people entered some of the rooms- lock-up shops. Since the Defendant had not made the formal transfer of the Plot to him, the plaintiff approached him, and the Defendant instituted a case in Kagadi I GERMAY THAY THE E A THER

COPY OF THE ORIGINAL RECORD. Court against the trespassers. The Defendant never challenged this evidence. In fact the evidence of Bamutura who gave evidence at the locus in quo in support of the Defendant's case corroborated the evidence of the Plaintiff in this respect.

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There was no way the plaintiff could have constructed the building on a plot that did not form part of the land sold to him and the Defendant kept quiet and merely left the Plaintiff to be stopped by the Chief Administrative Officer (CAO) or the Urban Officer of Kibale District. - My considered view and finding is that the Plaintiff constructed his building on the land showed to him by the Defendant and with his consent.

The issues which was framed for determination in the lower court were clear and were as follows:-

- 1. Whether the sold piece of land was demarcated and handed over to the plaintiff. - 2. Whether the Defendant was in breach of the contract, by failing to transfer the sold land to the plaintiff. - 3. What remedies are available to the parties.

The trial Chief Magistrate correctly set out the above issues in his judgement. The issues of whether the plaintiff built in the middle of the park thereby violating the building rules and plans of the Urban Centre or whether the Defendant interfered with or blocked other developers (lock-up owners) were never part of the case before him and did not even arise from the evidence.

No evidence was adduced from the District or Urban authorities to prove that the appellant had built in the middle of the park and that this violated the building rules and plans of the Urban Centre. In any case this could not be genuine since other people are alleged to have built Lock-ups in the same area and yet there was no complaint that they had built on an area designated for a park. Why would the issue arise only when it comes to the Plaintifl/Appellant.

I he learned Chief Magistrate appeared to have been inlluenccd in his decision by the belief that the Plaintiff had built on the Plot which the Defendant had already sold tu *&gt;* other developers when on P.2 of hisjudgement he stated:

8 *f*

" 1 don't think it was the intention of the defendant to show the Plaintiff an area that had already been sold off for lock-up shop as is the case because for 3 years, the Plaintiff has blocked luck-up shops, belonging to other developers from being used and this is an illegal act because those are innocent people that are out side the conflict of the Defendant and the Plaintiff."

With due respect 1 do not find these so called Lock-up shop developers as innocent as the trial Magistrate found them to be. Il should be noted that the plaintiff bought a plot from the defendant as early as 11/10/96 and the land he bought was shown to him by the defendant on 18/11/96. No evidence was adduced by the Defendant that the Plaintiff constructed his building on an area he had sold to other developers. His evidence is that he did not demarcate the land for the Plaintiff because he did not bring a surveyor. He went on in his evidence to testify that he did not allow the plaintiff to construct any house j on his land and that the Plaintiff did so by force. He was then stopped by Chief Administrative Officer (CAO) and Urban officer. He does not stale that the Plaintiff constructed on other developer's land or Plots.

I'he issue of other developers was brought out by Bamutura Yiyoro who gave evidence al the locus in quo. According to this witness it was in 1997 when bricks and stones were found in the area. I hey were tu be used by people to construct the lock-ups. l ie did not explain how these people came on the area. He does not slate that it was the Defendant who had sold them the land. Il is not clear where the learned Chief Magistrate got the evidence that the Defendant could not have shown the plaintiff an area which he had already sold to the lock-up shop developers.

On the contrary, what I can gather from the evidence of Bamutura Yiyoro is that the Defendant sued the intending developers, including himself, to court and they were

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Whereas the evidence shows lhal (he f'laintilf never brought an> surveyor I do find lhal the defendant nevertheless showed the plaintiff the Plot he hud sold io him and this explains why he never look any action against him when he embarked on construction. I Jo find lhal the Defendant breached his part of the contract for failing or refusing to make transfer ol the plot he sold to the plaintiff. In the result I find that (he 2nd vround of appeal has merit and therefore succeeds.

I now come to the 3rd Ground of Appeal which is that the learned trial Magistrate erred in law and tact when, in his conduct of the proceedings at the locus in quo. he allowed witnesses and evidence that had been adduced before and found tq.be of no probative value. I am afraid 1 was not able to understand what complaint was being advanced under this ground. 1 do not understand which evidence had been adduced before and found to be of no probative value.

In support of this ground Mr. Asiimwe Counsel for the Appellant slated that one Bamulura was called as an independent witness al the locus in quo and lhal his evidence had earlier been found to be of no value in C. S. No. 15/97 where he was sued and lost. 1 do not find any merit in this argument. First of all C. S. No. 15/97 was irrelevant and had no connection with the issues for determination in this case. The learned trial Chief Magistrate did not make any comment in relation to C. S. No. 15/97 and rightly so since lhal was not a matter before him.

Second!). even if il could be agreed lhal Bamulura had been sued in C. S. No. 15/97 and lost, this per se would not mean lhal his evidence in this case was of no probative value. My only comment on the said witness is this. When Court visits the locus in quo the purpose is partly to let the witnesses verify at the locus what they testified in court. It follows therefore lhal it is (hose witnesses who testified in court lhal would be recalled to claril) what they were slating in Court, to indicate features or boundary marks, if any. to the Court. Any observations made or noted by Court at the locus must be recorded and must form part ol the record. Unless il is requested or intimated in advance. Court .should

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**10**

not allow I rush witnesses to be called at the locus in quo. Sec J. W, Ononee V. <Oka.ua> j9<S6 I KB 63 Badiru Kabalega V. Sepriano <Mugan.ua> (1992) 1 1 KALR 1 10.

*r-*

In the instant case Bamulura did not testify in Court. Il was never intimated in advance or requested by any pajlv that Bamulura would give evidence al the locus. Il is not clear how the trial Magistrate\* came lo pick him as an independent witness, from his evidence he was- nol even an independent witness. He was; an interested party. It is for these reasons that his evidence would be said to be of no probative value.

1 he fourth ground is that (he learned trial Chief Magistrate erred in law and fact by failing to properly consider and appreciate the evidence before him thereby arriving al an erroneous conclusion. In support of this ground Counsel for the appellant observed this ground had been covered when arguing ground No. 2. His additional complaint was that the trial Magistrate did not consider the appellant's prayer such as general damages. That he did not consider the money expended in developing the disputed land.

In reply Counsel lor the Respondent argued that since the appellant had illegally constructed the building on the land of the Respondent and nut made any prayers for compensation, then the trial Magistrate was right to order that the appellant removes his building.

J have considered arguments by both Counsel in view of the evidence on record. My finding in ground No. 2 above is to the effect that the Appellant lawfully constructed his building on the disputed land since il had been sold and shown lo him by the Respondent *9* despite lack of demarcation by the surveyor. He almost reached completion of the structures in the presence and with lhe knowledge of the Respondent. In his plaint he pleaded for general damages. In the written submissions Counsel for the PlainlilVAppellanl prayed for general damages. If (he trial Magistrate had entered udgcmenl for lhe plaintiff he would. I believe, have considered ihis.prayer.

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**11**

**I**

Court: Judgement delivered in open Court in the presence of both parties and Mr. Bwiruka holding brief for Counsel for Appellant and Mr. Musamali Counsel for the Respondent.

Sgd.(V. T. ZEHUR $\mathsf{J} \mathsf{U} \mathsf{D} \mathsf{G} \mathsf{E}$ 28/10/2004.

Court: Right of Appeal explained.

Sgd.(V. T. ZEHORIKIZE) THAT THIS IS A TRUN 【数据计字 **JUDGE** COST ON XIII ORIGINAL RECORD. 28/10/2004. **Chii.** HATKATI **EAGUNSAN** Debi D $v\alpha$

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$-197$