[2022] UGHCLD 168

## THE REPUBLIC OF UGANDA.

# IN THE HIGHCOURT OF UGANDA AT KAMPALA

## (LAND DIVISION)

CIVIL APPEAL NO.51 OF 2018

## (ARISING FROM NABWERU CIVIL SUIT NO.82 OF 2014

## DDAMBA SAMUEL::::::::::::::::::::::::::::::::::::

$\mathsf{S}$

## **VERSUS**

# A-Z CHILDREN CHARITY::::::::::::::::::::::::::::::::::::

#### Before: Lady Justice Alexandra Nkonge Rugadya 15

## Judgment:

### Introduction:

This appeal lies from the judgment trial court delivered on 7^th April, 2017.

The appellant, Mr. Ddamba Samuel was the defendant in Civil Suit No.82 of

2014. The respondent A-Z Children Charity filed the suit for trespass against 25 the appellant, seeking a declaration that it is the registered proprietor of land comprised at LRV 4026 Folio 10, Plot 3838, Block 203, Nansana Wakiso.

Onley

The appellant filed a counterclaim against the respondent contending among other things that the respondent had fraudulently registered its name as the proprietor to the suit land; and falsely represented to the Registrar of titles that

the suit land measured 3.855 acres whereas in the original survey print it $\mathsf{S}$ measured 3.8 acres. The trial court gave judgment in favour of the plaintiff.

Dissatisfied with the decision of court, the defendant filed this appeal raising the following grounds of appeal:

# Grounds of appeal:

1. The learned trial magistrate erred in law and in fact when she held that there was no evidence to prove the particulars of fraud.

- 2. The learned trial magistrate erred in law and in fact when she held that the appellant was a trespasser. - 3. The learned trial Magistrate erred in law and in fact when she did not specifically resolve the counterclaim. - 4. The learned trial Magistrate erred in law and in fact when she awarded general damages of UGX 5,000,000/- and mesne profits which were excessive and unreasonable in the circumstances and without following the principles relating to the same. - 5. The learned trial magistrate erred in law and in fact when she failed to evaluate the evidence before her and as a result reached a wrong $\mathbf{r}$ decision.

Julion 82

- 6. The decision of the learned trial Magistrate is tainted with fundamental mis-direction in law and in fact and as a result has led to miscarriage of justice. - When the matter came up for the appeal in this court it gave its directives on $\mathsf{S}$ 12^th July, 2019, to the trial court to appoint a Government surveyor to carry out an independent survey of the area in dispute and open up boundaries for the court to determine the extent of encroachment, if any. The details of that ruling dated 12^th July, 2019 are on record. - The survey was conducted on 4^th January, 2021. However as per the letter dated 10 14^th April, 2022 from the office of the Chief Registrar the findings in the survey report were in dispute.

This was also confirmed by the letter from *M/s Muhumuza- Kiiza Advocates* representing the respondent/plaintiff. In their letter dated 2^nd September, 2022,

the concern was since this was not a re-trial the trial Magistrate could not 15 respond or reopen the matter to interrogate on the report.

That they needed an opportunity to cross examine the surveyor and challenge the findings before the court can make the final decision. The letter by the same firm to the trial magistrate dated 9^th February, 2021 had also expressed similar

concerns. It was copied to *M/s Kob Advocates & Solicitors* the firm 20 representing the appellant.

In both letters, counsel from *M/s Muhumuza- Kiiza Advocates* for the respondent/plaintiff sought guidance of court which I now hereby give below:

**Order 43 rule 21 of the CPR** gives this court power to order a new trial. Since the report of the surveyor is introducing fresh information concerning the 25 disputed land which has not been tested, and based on the fact that the parties need to be given a fair chance to examine the surveyor and the report to verify

the correctness of the report, the matter is now hereby referred back to the trial court before another magistrate for a fresh trial.

For avoidance of doubt, the parties shall be free to present evidence to challenge the survey report but shall not be allowed to produce other evidence as may be

interpreted by the trial court to fill in the gaps by either side. $\mathsf{S}$

No orders as to costs.

Alexandra Nkonge Rugadya.

# Judge

$2^{nd}$ September, 2022.

Debuned by email<br>Auborg<br>2/2/2022