Kabajungu v Akgizibwe (Civil Appeal 73 of 2010) [2015] UGCA 2024 (3 November 2015)

I THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA (COO AT KAMPALA CIVIL APPEAL NUMBER OO73 OF 2O1O JOWERIA KABAJUNGU APPELLANT AKUGIZIBWE PATRICK RESPONDENT CORAM: HON. JUSTICE RUBBY AWERI OPIO, JA HON. JUSTICE RICHARD BUTEERA, JA HON. JUSTICE F.M.S EGONDA NTENDE, JA JUDGMENT OF THE COURT lntroduction This a second appeal arising from the judgment and order of the High Court of Uganda at Fott portal. The matter was first heard by Kyenjojo District Land Tribuna[ Ctaim as No. 32 of 2003. The appeltant sued the respondent for trespass and encroachment before Kyejogo Land Tribuna[. The tribuna[ found that the respondent was a trespasser and gave eviction orders in favor of the appe[lant. 7 10 15 20 25 VERSUS 30 40 45 50 55 The background facts are that:- The appetlant owed two plots of [and in Kyenjojo Town along Forl Porta[ Kampala Road Lumu as ptots L5 and 17. She sold to the respondent part of that land measuring 50 x 100 feet. An agreement to that effect was executed and exhibited. When the respondent went to measure out the land he had bought; he discovered that there was a foundation for a buitding on plot 17 measuring 25 x 50 feet. He confronted the appeltant who disclosed to him that the foundation be[onged to a one ldd Banange, her relative and in-[aw. She assured him that the said ldd Banange would not disturb him but in case he did so she would compensate him from her own part of ptot 15. Subsequently, the respondent proceeded and paid for the [and. The respondent atso negotiated with ldd Banange and bought from him the piece of plot 17 in which there was a foundation. The respondent proceeded to devetop the [and which inctuded the 25 x 50 feet bought from ldd Banange plus ptot 50 x 100 he bought from the appe[lant. The respndent put in place a petro[ station. One year later this dispute arose before the District Land Tribuna[ which granted eviction order in favor of the applicant. The respondent appeated to the High Couft on the fotlowing grounds:- 2 1) That the tribunal erred in law and that the appellant trespassed and the respondent's [and. 1) That the learned Judge erred that the respondent herein was on the appettant's land. 2) That the learned judge erred quashing the decision of Tribuna[. in setting aside and the District Land fact in hotding encroached on 60 65 70 75 80 2) That the tribunat faited to properly evaluate the evidence on record and came to a wrong conctusion. 3) That the tribuna[ misdirected itse[f when it faited to consider that Banange ldd owned hatf of ptot 17 which the respondent sold to the appe[[ant. 4) That the tribunal was wrong when it faited to consider the fraudulent intention of the respondent when she sotd ldd Banange's portion of the plot. The learned Judge anatysed the evidence and found that the appeltant was not a trespasser on the [and and set aside the decision of the District Land Tribunal and quashed its orders with costs. Hence this appea[ before the court of Appeat. The appetlant appeated on the fotlowing grounds:- in law not a in hotding trespasser 3 85 90 95 100 105 110 115 3) That the learned Judge failed to make a proper evatuation of the evidence on record and thus coming to a wrong decision. Representation At the hearing of this appea[, learned counsel Semambo Rashid appeared for the appe[[ant while counseI Bwiruka Richard represented the respondent. The appetlant's case. Ground 1 and 2 The [earned counse[ for the appetlant submitted that the learned Judge erred in law in hotding that a written contract can oratty be amended during an ex post facto omission to be part of what was earlier agreed upon by the contracting pafties in a written agreement. Learned counseI submitted that the appettant had never consented to any such arrangement by promising to give the respondent part of ptot 15 on top of ptot 17 she had sotd to the respondent. Ground 3 On the above ground learned counsel submitted that the learned Judge erred in setting aside and quashing the decision of the District Land Tribunal while relying on the alteged fact that the appeltant had promised to give to the 4 120 L25 130 140 145 respondent part of her plot 15 which was not part of the sate agreement between the partres. The respondent's case Ground 1 and 2 CounseI for the respondent submitted that the respondent had proved that he had bought a ptot measuring 100feet x 50 feet from the appellant. However, at the time when measurements were being done, the respondent found that part of the said ptot had been sold to a one Banange ldd. Upon inquiring the appetlant promised to give the respondent paft of her remaining plot. The discussions between the parties were never reduced in an agreement but the respondent proved the same at the trial and at the [ocus in quo. Counsel relied on the case of Manasseh Kamugisha VS Uganda Prefabricated Buitding lndustry Ltd, HCCS No. 115 of 1994 (unreported). The [earned counse[ concluded that the learned Judge was right to hotd that the agreement had been amended oratty on the faith of the concession made by the appellant. Ground 3 It was the contention of counse[ that the [earned Judge property eva[uated the evidence on record and came to the right decision. 5 135 150 155 160 165 1-7 5 He submitted that the [earned Judge betieved the appetlant that part of the plot she had sotd betonged to ldd Banange which confirmed the testimony of the respondent and his witnesses that the appe[lant agreed to give the respondent 50 feet x 100 feet ptot outside that of ldd Banange. CounseI prayed that the appea[ be dismissed with costs and the judgment of the High Court be uphetd. "The duty of a 2d appellate court is stated by Rule 32 Q) of the court of Appeal Rules which provides as follows: on any second appeal from a decision of the High Court acting in the exercise of it appellate jurisdiction, the court shall have power to appraise the inferences of fact drawn by trial court but shall not have discretion to hear additional evidence". The above Appeal No. Uganda. ru[e was considered in Criminal 149 of 2008 Muhwezi Jackson VS "This being a second appeal rule 32 Q) of the Judicature (Court of Appeal Rules) Directions Sl No. 13'10 gives this court power to appraise the inference of the drawn by the trial court. This court does not have powers to subject evidence to fresh scrutiny unless it is clear that the Iil appellate court failed to perform its duty" 6 L70 180 185 190 200 205 The Supreme Couft atso added its voice on the duty of a second appeltate couft in the case of Mulasa VS Bakireka t20091 2 EA 254 as fotlows:- "The principle upon which this coutt as a second appellate court will re-evaluate evidence are stated in several decisions of this court which Oder JSC (RIP) refers to in his judgments in the Uganda Breweries case Guprd He states;- ln Kifamunte VS Uganda [1997] KLR 72 this couft said. " lt does not seem to us that except in the clearest of cases, we are required to re- evaluate the evidence hke a first appellate court. On second appeal it is sufficient to decide whether the first appellate court on approaching its task, applied or failed to apply such principle. See Pandya VS Repubtic tl9571 EA................... This court will then consider the fact of the appeal to the extent of considering the relevant part of law or mixed law and fact raised in any appeal. lf we re-evaluate the facts of each case wholesale, we shall assume the duty of the first appellate and create unnecessary uncertainty. We can interfere with Court of Appeal if conclusions of the appears that in 7 2LO the it 195 consideration of the appeal as a first appellate court, the court of Appeal misapplied or failed to apply the principles set out in such decisions as Pandya Guprd Runala Gup 215 220 225 230 235 We sha[[ bear in mind the above the determination of this appeat. princip[es tn Decision of the court. We are of the view that the three grounds of appea[ can be resolved together as they evolve from the 3'd ground whether in hotding that the respondent was not a trespasser and setting aside and quashing the decision of the Land Tribunal, the learned Judge made proper evatuation of the evidence on record. We have perused the record of appeal inctuding the judgments of the trial court and the 1" appellate court. We are of the view that the ],'t appe[[ate court property evaluated the evidence on record and reached the correct decision. The learned appeltate Judge considered the evidence of Twine Twaha lvlusa DW3 the Loca[ Council Chairperson of the area whose evidence was that the appellant owned ptot 15 and 17. The appettate sold part of ptot L7 to one Kimbugwe who later sotd the same to ldd Banange. When ldd Banange took buitding materiats on put 17 in preparation for constructing a foundation, the appeltant tried to stop him but the matter was 8 240 245 2so 255 260 265 270 sorted amicabty by elders and [oca[ authorities in favor of ldd Banange. The court further retied on the evidence of ldd Banange DW2 which was simitar to that of DW3. The trespass the appeltant was claiming was paft of plot 15 which was measured off to compensate the respondent over the land that had been sotd to Kimbugwe and tater ldd Banange. The part which was measured off was in conformity with the sate agreement. ln his analysis the [earned Judge had this to say:- "The respondent so[d land measuring 50 x 100 feet to the appellant. She did not state in the agreement exhibit DE1, that she sotd onty or part of ptot 17. She did not mention that plot 15 or part thereof was outside the land she sold to the appettant. At the time when the appeltant went to measure out his land, he discovered a foundation in ptot L7. The respondent totd him that this belonged to ldd Banange her in-taw. This was in the presence of witness DW3 and DW4. lndeed when the matter of the sale of ptot 17 was mentioned to the area LCI Chairperson DW3, he inquired whether ldd Banange had been informed, knowing as he did of the interest which Banange had in that plot. 9 280 285 290 295 300 The respondent herself totd the appellant that ldd Banange would not disturb him, but if he so did, she would compensate his land with paft of her own on ptot 15. What is more, she even swapped with the appet[ant part of that ptot 17 with her own part of plot 15. Att this ctearty showed that the respondent was fu[[y aware that the sate invotved more than just ptot 17. lt is possible that was the reason why the sale agreement did not specificalty mention any plot number. The warning that ldd Banange might query the appeltant in respect of ptot 17, which the respondent warned him about, became a reality. The respondent advised the appe[ant to sort it out with ldd Banange. That meant that the contract of sate was amended orat[y. The oral amendment of the contract that the respondent would compensate the appeltant with land from plot 15 equivalent to that ctaimed by ldd Banange on plot L7 therefore became an enforceable part of the contract". The [earned Judge was right to find that the contract of sate was amended orally because evidence showed that the appe[[ant was futty aware that the foundation on ptot 17 did not betong to her. She woutd not pass title where she had none. The amendment was in 10 275 a 305 310 315 320 325 conformity with the sale agreement as far as the acreage respondent was entitted to from the appe[[ant. ln the final anatysis we find that the appet[ate court was right in holding that the respondent was not a trespasser and in setting aside and quashing the decision of the District Land Tribuna[. The appeal is accordingty dismissed with costs in this cou and the coufts below. Dated at Kampala this )1 day of t* Hon. Justice Ru Aweri Opio, Justice of Appeal Hon. Justice Richard Buteera, Justice of Appeal 2015 Justice of Appeal >- 11 /: M J*+'-(u'-S'y1Ho/Justice F.M.S Egonda Ntende,