Tumwine v Mugume (Civil Appeal 213 of 2016) [2016] UGCA 94 (13 May 2016)

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT I{AMPALA CML APPEAL NO. 213 of 2016

# (ARTSING FROM MASAr{A HrGH COURT CIVIL SrrIT NO OO5 oF 20131

WILLIAM TUMWINE- APPELLANT

## Versus

MUGUME STEVEN RESPONDENT

(Appeal from the decision of Hon Mr. Justice John Eudes Keitiima deliuered on 13th Mag 2O16 at the High Court of Masaka)

## CORAM:

HON. JUSTICE GEOFFREY KIRYABWIRE, JA

HON. JUSTICE MUZAMIRU M. KIBEEDI, JA

HON. JUSTICE CHRISTOPHER GASHIRABAKE, JA

\*

#### JUDGMENT OF THE COURT

#### **INTRODUCTION**

This is a first Appeal from the Judgment of His Lordship John Eudes Keitirima at the High Court of Uganda at Masaka, delivered on 13th May 2016, in which the Respondent was granted 200 acres of land, a Vesting Order, UGX 20,000,000 in damages, and costs.

#### **BACKGROUND**

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The Appellant and Respondent entered into a sale agreement on 18th December 2011, for the sale of 600 acres of land. The amount of land was later reduced to 200 acres by an Addendum on 20th February 2012. The agreement specifically excluded the land that formed part of land belonging to the National Forestry Authority (NFA). The Respondent took possession of the land and was allowed to graze on it while awaiting the mutations and titling process for the subdivided land title. However, it is alleged that the Appellant later in subdividing the land, attempted to confine the Respondent to land that was claimed by NFA, resulting in the Respondent filing suit against the Appellant in 2013.

In his Written Statement of Defense, the Appellant admitted selling 200 acres and allowed the Respondent to occupy the land, including access to water and pastures. Based on this admission, the trial Judge, on 25th January 2015, ordered a survey to determine the specific portion of land to be allocated to the Respondent. The survey report was submitted on 21st May 2016.

The case was then fixed for hearing on 12th May 2016, but as it transpired this date coincided with a public holiday and the matter was heard on 13th May 2016, when the Appellant and his lawyer

were absent. Despite this, the Court proceeded to enter Judgment, confirming the Respondent's 200-acre portion as outlined in the survey report. The court issued a Vesting Order, granted the Respondent UGX 20,000,000 in general damages, and awarded costs of the suit.

The Appellant was not informed of the resultant Judgment and Decree until July 2016, when the Respondent began taking possession of the land. This led to the Appellant filing an Appeal rpe<br>Je<sup>29</sup> against the Judgment.

### **GROUNDS OF APPEAL**

The Appellant raised the following Grounds of Appeal: -

- 1. Whether the trial Judge erred in Law and fact when he proceeded with hearing of HCCS NO. 005 of 2013 in the absence of the Appellant. - 2. Whether the Appellant was denied a fair hearing in the Court below. - 3. Whether the trial Judge erred in Law and fact when he granted the Respondent a Vesting Order for 200 acres of land belonging to the Appellant which was not prayed for in the Plaint Vide HCCS 005 of 2013. - 4. Whether the Trial Judge erred in Law and fact when he ordered the Respondent to identify and curve out 200 acres of the Appellant's land. - 5. Whether the Trial Judge erred in law and fact when he awarded general damages of Ugx 20,000,000 to the Respondent.

#### REPRESENTATION

At the hearing the Appellant was represented by Mr. Ronald Ewalu the Respondent was represented by Mr. Brian Kabayiza.

Cromit.

### DUTY OF THE COURT

This is a first Appeal and this court is charged with the duty of reappraising the evidence and drawing inferences of fact as provided for under rule $30(1)$ (a) of the Judicature (court of Appeal rules) Directions SI 13-10. This court also has the duty to caution itself that it has not seen the witnesses who gave testimony first hand. On the basis of its evaluation this court must decide whether to support the decision of the High Court or not as illustrated **in** Pandya vs. R [1957] EA 336 and Kifamunte Henry vs. Uganda Supreme Court Criminal Appeal No.10 of 1997.

At the hearing, the Respondent raised a Preliminary Object which $\sqrt{52s}$ we shall dispose of first.

#### RULING ON PRELIMINARY OBJECTION

# Submissions of counsel for the Respondent

The Respondent raised a Preliminary Objection, arguing that the Appeal is premature, procedurally flawed, and legally untenable as it contravenes **Order 9 Rule 27** of the Civil Procedure Rules (CPR). This provision requires an aggrieved party challenging an ex-parte decree to first apply to set it aside in the issuing court before appealing.

In support of his objection counsel for the Respondent relied on the case of Ronald Kanshabe v. George Atwijukire & 3 Others (CACA No. 0087 of 2016), wherein Bossa J. A. held that an Appeal cannot proceed without first seeking to set aside an ex-parte decree. In further support of this proposition we were also referred to the High Court cases of **Uganda Telecom Ltd v. Airtel Uganda** Ltd Misc. App. No. 30 of 2011; Konoweeka Architecture Painters & Builders Ltd (1996) HCB 222.

Counsel for the Respondent argues that Appeals should not bypass lower court jurisdiction, as this disrupts judicial process

efficiency and causes unnecessary delays. The appellate court reviews lower court decisions rather than act as a trial court.

Counsel also submitted that the Appellant was not denied a hearing as alleged but rather failed to attend court when it sat on 13th May 2016, the first working day after the 12th May 2016 public holiday, as provided for under **Order 51 Rule 3 of the Civil Procedure Rules.** Counsel accordingly argued that the trial Judge rightly entered Judgment based on the Appellant's clear admission of selling 200 acres to the Respondent with full consideration.

The Respondent then prayed that this Court upholds the Preliminary Objection, dismisses the Appeal with costs and directs the Appellant to seek remedies in the lower court under **Order 9** W clo2s Rule 27 of the CPR.

## Submissions by Counsel for the Appellant

Counsel for the Appellant opposed the Preliminary Objection, arguing it is baseless. He argued this objection had already been determined in Civil Application No. 0219 of 2016, where the Court ruled the impugned Judgment was not ex-parte, as it was based on evidence presented at the hearing.

Counsel further submitted that Section 67(1) of the Civil **Procedure Act** permits Appeals from ex-parte decrees without requiring a prior application to set them aside. Counsel argued that the Appellant was not served with a hearing notice for 13th May 2016, which followed the public holiday of 12th May 2016. Consequently, he was unaware of the proceedings and was denied the right to defend himself. Counsel therefore argued that the trial Judge erred by proceeding in the absence of the Appellant and also by relying on a survey report which the Appellant had no chance to contest. Counsel submitted that the failure by the trial Court to

adjourn despite the public holiday violated the Appellant's right to a fair hearing under **Article 28 of the Constitution.**

Counsel for the Appellant also challenged the trial court's findings, arguing that the Vesting Order for 200 acres was not pleaded in the Plaint and that the Judgment contradicted the parties' agreement. Furthermore, it was submitted that the UGX 20,000,000 awarded in damages awarded was uncontested and excessive.

The Appellant prayed that the Court dismisses the Preliminary Objection and grants the following reliefs: -

- 1. Set aside the High Court's ruling and orders. - 2. Allow the Appeal with costs to the Appellant. - 3. Order a retrial before a different Judge. - 4. Declare that HCCS No. 005 of 2013 concerns land in LRV MSK 78, Folio 1, Plot 29A4, Mawogola, not LRV 3497, Folio N clo25 10, Plot 29A7, Sembabule.

### **Court's Findings on the Preliminary Objection**

We have addressed our minds to the arguments of the Parties for and against the Preliminary Objection and the authorities presented for which we are grateful.

The objection as we understand it is whether the Appeal is premature under **Order 9 Rule 27 of the CPR**. We find that this matter was settled in Civil Application No. 0219 of 2016, where the Court held that the Judgment was not ex parte as it was based on evidence. The Respondent cannot legally raise the same objection before this Court save by way of an appeal from the High Court decision in Civil Application No. 0219 of 2016 in accordance with the law. It follows that the requirement to set aside an ex parte decree does not apply.

$\mathcal{V}$ It is our finding that the trial Court in the presence of both parties fixed the hearing on date that turned out to be a public holiday but then proceeded to hear the case the day after the public holiday. It is the case for the Appellant that the trial Court erred in so proceeding without first effecting service of a fresh hearing notice for that date.

We find that this Preliminary Objection is in substance the very heart of the Appeal to this Court and cannot be resolved in the summary manner that the Respondent wants.

We accordingly find that the impugned Judgment, coupled with the Appellant's claims of procedural irregularities, necessitates further examination of the merits of the Appeal.

The Preliminary Objection is hereby overruled.

# GROUND ONE: Whether the trial Judge erred in Law and fact when he proceeded with hearing of HCCS NO. 005 of 2013 in the absence of the Appellant $\sqrt{10}$

#### Submissions of the Appellant

Counsel for the Appellant submitted that there was significant prejudice when the trial Judge proceeded with *Civil Suit No. 005 of* $2013$ in their absence. The case was fixed for 12th May 2016, which was a public holiday. Had the case proceeded, the Appellant's lawyers intended to cross-examine on the findings of the survey report, which contained discrepancies. Counsel for the Appellant submitted that the trial Judge should have issued a fresh hearing notice or adjourned instead of dismissing for nonappearance without notice. Counsel argued, that by so proceeding the trial Court violated the Appellant's right to a fair hearing. In this regard he referred Court to the case of **Makula International**

Ltd v. His Eminence Cardinal Nsubuga & Anor Civil Appeal No. 4 of 1981 and argued that the trial Judge's actions were unlawful and should be set aside.

Counsel for the Appellant also disputed the land's exact location. While the Appellant acknowledged selling 200 acres, the Respondent had unlawfully occupied over 400 acres, violating the sale agreement. In this regard Counsel submitted that there were letters from LC1 Kyambogo and Ntuusi Police which confirmed the illegal occupation. Counsel for the Appellant challenged the joint survey's validity, asserting it was conducted without notice, denying the Appellant a chance to contest it. Counsel argued the Judge had no authority to allocate land beyond the agreement. Additionally, the National Forestry Authority made no claim of encroachment on their land.

#### Submissions of counsel for the Respondent

Counsel for the Respondent argued the trial Judge properly proceeded with the hearing on 13th May 2016, as the Appellant should have known that the hearing would continue on the next working day after the 12th May public holiday, in accordance with Order 51 Rule 3 of the Civil Procedure Rules.

$-*Y*52s$ Counsel for the Respondent submitted that the Judgment did not

prejudice the Appellant. This is because of the Appellant's admissions in his written statement of defense, where he acknowledged selling 200 acres. The trial Judge relied on these admissions to determine land allocation, which the Appellant did not contest. Furthermore, the Judgment adhered to the Sale Agreement. Counsel submitted that whereas the suit land was not fully identified at the time of sale, the trial Judge's decision ensured the Respondent received 200 acres which was not part of the land of the National Forestry Authority. It was further

$\sim$

submitted that the Appellant withdrew from the survey process, thus preventing proper allocation.

Counsel for the Respondent asserted the Judgment was lawful, aligned with the sale terms, and did not prejudice the Appellant. The Respondent requested the Appeal be dismissed.

## Courts findings and decision.

We have addressed ourselves to the rival arguments of the Parties and the authorities relied upon for which we are grateful.

We find that the Appellant has demonstrated substantial prejudice in not being able to attend to the hearing on the $13<sup>th</sup>$ May, 2016. $C^{2\acute{g}}$ We say so for the reasons that follow.

Order 51 Rule 3 provides: -

"... Where the time for doing any act or taking any proceeding expires on a Sunday or other day on which the offices are closed, and by reason thereof the act or proceeding cannot be done or taken on that day, that act or proceeding shall, so far as regards the time of doing or taking the act or proceeding, be *held to be duly done or taken if done or taken on the day on which the offices shall next be open."*

Whereas the said Order provides for what should happen when a court is unable to sit, it is imperative for the Court to confirm that on the next day as so provided the Court shall indeed be in a position to sit as it may have other fixtures for that day too.

The right to a fair hearing is paramount and matters relating to land disputes should not be handled in a hurried manner. In this matter there were said to be discrepancies regarding the suit land's actual boundaries and the statement that the survey was

contested further compounded the dispute. The fact that the Appellant admitted to selling 200 acres does not negate their right to be present at the hearing and contest the specilics of how that agreement was implemented, especia-lly given the allegations of encroachment beyond the agreed-upon acreage.

Therefore, this Court finds that the Appellant's absence at the hearing of the 13th May 2016, coupled with the contested survey and land boundary issues, resulted in the failure to ensure that substantive justice is done and therefore a mistrial. The trial Judge's decision to proceed in these circumstances deprived the Appellant of a fair opportunity to be heard. We therefore set aside the hearing and resultant Judgment and Decree that flowed therefrom.

This ground therefore succeeds. This being our finding we further Iind that this Ground disposes of the whole Appeal and therefore it is not necessary for us to address the other Grounds

### Costs

The general rule is that costs follow the cause. However, in this case we hnd that there was procedural impropriety attributable to Court and that being the case we hold that each party bear theiy costs.

## Final Result

Therefore, the Court holds as follows: -

- 1. The High Court's Judgment and decree are set aside. - 2. A retrial is ordered before a different Judge to address all issues afresh, including the correct identilication of the land parcel in question. This retrial will allow both parties to present evidence and arguments regarding the land's proper location and boundaries. - 3. The issue of land location will be determined based on the evidence presented at the retrial, giving due consideration to

C.tw./r

tl,e original sale agreement and any subsequent surveys or agreements.

4. Each Party shall bear their own costs.

#### We so Order

qt Dated at Kampala this day of A\*;J 202s. fI I HON. MR. JUSTICE G FREY KIRYABWIRE, JA HON. MR. JUSTICE MUZAMIRU M. KIBEEDI, JA r^ HON. MR. JUSTICE CHRISTOPHER GASHIRABAKE, JA 11