[2009] UGHC 251

### THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA, AT MASAKA CIVIL APPEAL NO. 018 OF 2007 (Arising out of Civil Suit No. 101 of 2001) **GEROSOM RWABOGO .............................. APPELLANT**

#### **VERSUS**

#### TEREZA KYATIFU **EXAMPLE 11:1:1:1:1:1:1:1:1:1:1:1:1:1:1:1:1:1:1**

#### **BEFORE: HON JUSTICE V. F. MUSOKE-KIBUUKA**

#### **JUDGMENT:**

The respondent sued the appellant in the Chief Magistrate' court at Masaka for alleged trespass upon her land at Kiteredde, Malongo in Masaka District comprising Plot 15, Buddu, Block 983. The case was heard by Her Worship Cissy Mudhasi who delivered judgment on 12^th October, 2004 in favour of the respondent.

On $10^{th}$ May, 2007, this court granted leave to the appellant to file an appea out of time against the decree issued against him by the learned trial Chie The appellant on 21^st May, 2007, filed a Memorandum o Magistrate. appeal containing nine grounds of appeal as set out below, though some of them were, obliviously, un necessary:-

- 1. The learned Chief Magistrate erred in law when she signed and issued a decree that did not agree with the judgment. - 2. The learned Magistrate erred in law when she signed and issued : decree that did not give the particulars of the claim.

HIGH COURT OF URANDA I Certify that this is a true copy

- 3. The learned Chief Magistrate erred in law and in fact when she ordered the eviction of the appellant from land that was not being claimed by the Respondent in both her pleadings and sworn testimony. namely the unsurveyed land and which was not comprised in the Respondent's certificate of title located at and known as plot 15 S Buddu Block 983 which decision occasioned serious miscarriage of justice. - 4. The learned chief Magistrate further erred in law when she did not study, consider and appreciate the pleadings of the respondent and her sworn testimony to enable her identify and determine the land that was $\overline{1}$ in dispute was being claimed by the respondent, namely land comprised in Plot 15, Buddu Block 983, which failure occasioned serious miscarriage of justice. - 5. The learned chief Magistrate erred in law and in fact when she allowed the respondent to adduce evidence which was inconsistent $\mathcal{I}$ with her pleadings. - 6. The learned chief magistrate further erred in law in fact when in deciding the case she was swayed by evidence which was inconsistent with the pleadings and sworn testimony of the respondent. - 7. The learned chief Magistrate further erred in law when she failed to properly evaluate the evidence on record which led to a miscarriage of justice. - 8. The learned chief Magistrate erred in law when in the circumstances of the case she denied the appellant a fair hearing. - 9. The chief Magistrate erred in law when she admitted exhibits P1, P2 2 and P3 which were by law inadmissible and P3 which were by law inadmissible.

In the appeal, the appellant was represented by learned counsel Mr. Ngaruye Ruhindi Boniface while the respondent was represented by Mr. Tumwesigye. Both counsel submitted in writing.

# Ground One.

$\overline{3}$

The first ground of appeal contains two complaints by the appellant. The first is that while in the judgment, the learned Chief Magistrate ordered that the costs of the respondent were to be paid by the first defendant, excluding the appellant who was D2 in civil suit Number 101 of 2001, in the decree, the order was that both defendants were to pay those costs. The appellant argues that the decree contravenes order 21 rule 6 of the CPRs. The second complaint is that the decree does not contain the particulars of the claim corresponding to those in the pleadings in the original suit. That too, it is contended, contravenes Order 21 rule 6 of the CPRs.

Learned counsel for the respondent has agreed that, indeed, the first $1S$ complaint relates to error or mistake which took place during the extraction of the decree itself. He argues that the error, however was not good cause for appeal it could be corrected by the court that issued the decree. Court duly agrees with learned counsel in that regard. Every court has inherent powers to review its order or to correct its errors.

The second complaint that the particulars of the claim are not correctly reflected in the decree, in the mind of this county is at best, an

$\mathfrak{I}\mathsf{C}$

$\varsigma$

$1C$

Irregularities in relation to the rules of procedure do not irregularity. vitiate the proceedings if no injustice has been done to the other party. Mawji vs. Aousha General Store [1970] E. A. 137. In the view of court the decree as it stands is clear enough not to lead to misexecution as counsel for the appellant speculates in his submissions. Ground one, is. therefore, not sustainable.

# Ground Two.

This ground is clearly a duplication of the second part of ground one which has already been disposed of.

$\sqrt{ }$

$\overline{4}$

## Ground Three, Four, Five And Six

The gist of these grounds is that the learned trial Magistrate erred in law when she ordered the eviction of the appellant from land neither claimed by the respondent in her pleadings nor contained in her certificate of title. It is true that a party to a suit is bound by its pleadings. A party may not be allowed to succeed on a case not set up by him or her in his or her $\mathcal{I}$ pleadings and be allowed at the trial to set up a case which is in inconsistent with what is alleged in his or her pleadings. Interfreight Forwarders Uganda Ltd Vs. East African Development Bank, SC Civil Appeal No. 13/93.

In this ground of appeal the appellant argues that the learned trial Magistrate went beyond the respondent's statement of claim when she made orders regarding unregistered land.

The respondent's statement of claim was set out in paragraphs 3 and 4 and 5 of the plaint as below:-

"3. The plaintiff is the registered owner of land comprising Buddu Block 983, Plot 15.

4. The plaintiff's claim against the defendants are for trespass, eviction order, restraining the defendant from further interfering with the suit land general damages and costs of the suit. 5. The particulars giving rise to the cause of action are that on $30^th$ January 1991, the plaintiff together with her late husband Sam Kyatifu bought the said land from the late Samuel Nsubuga Ssebbanja father of the first defendant who purported in 1995, after the death of his father to sell part of it to the second defendant".

It is clear to court, therefore, that the particulars of claim contained in paragraph 5 of the plaint show that the real claim of the respondent was about the land that the first defendant to civil suit No. 101 of 2001, had sold to the second defendant to that suit.

The evidence of PW2, a surveyor from the land office at Masaka, showed that when he went to survey the respondent's 100 acres of land the appellant prevented him to survey part of it. He ended up surveying only 90 acresor so which were eventually registered in the names of the respondent and are the ones comprising the appellant's certificate of title. The evidence also clearly showed that the appellant occupied part of the 100 acres which

HIGH COURT OF LOANDA t this is a true copy

modified or registered under the title of the respondent. It showed that the exact acreage of the respondent land occupied by the opellant could only be established after the survey which the appellant had prevented to be completed.

In any case, it is trite law that a court may base its decision upon an pleaded. issue if it appears from the course followed at the trial that the issue has been left to the court for decision. See Odd Jobs vs. Mubia [1970] E. A. 476. Upon the facts and the evidence, the issue of unsurveyed land being part of the 100 acres bought by the respondent was clearly addressed by both counsel. It was also covered by the evidence adduced during the trial. The trial Magistrate was, therefore, justified to cover it in her judgment.

の また

Court does not find the authority of Esso Petroleum Co. Ltd South Port Corporation (1956) AC 218, which the appellant cited to support the contention that the appellant was condemned upon a ground on which any fair notice had been given to him to have no relevance to this appeal. The L claim of the appellant was for land purchased by her and her husband and part of which the appellant claimed to have purchased from Sam Wasswa. No Notice could have been clearer than that. Whether that land was surveyed or not that was not material.

Court, therefore, finds no merit in this ground of appeal. It fails. The 2 finding above also disposes of grounds four five and six which are, in essence, re-statements of the same ground but only expressed in different terms. Court finds all of them to contain normerit. OF UGANDA

t this is a true cdpy in Redistran # Ground Seven.

$\frac{1}{2} \approx \frac{1}{2} \left( \frac{1}{2} \right)^2 \left( \frac{1}{2} \right)^2 \left( \frac{1}{2} \right)^2 \left( \frac{1}{2} \right)^2 \left( \frac{1}{2} \right)^2 \left( \frac{1}{2} \right)^2 \left( \frac{1}{2} \right)^2 \left( \frac{1}{2} \right)^2 \left( \frac{1}{2} \right)^2 \left( \frac{1}{2} \right)^2 \left( \frac{1}{2} \right)^2 \left( \frac{1}{2} \right)^2 \left( \frac{1}{2} \right)^2 \left( \frac{1}{2} \right)^2 \left( \frac{1}{$

$\mathbf{1}$

This ground complains of an alleged failure by the learned chief Magistrate to properly evaluate the evidence on record which is alleged to have led to an alleged miscourage of justice.

$12$

$\mathbf{I}$

This is a court of appeal of the first instance. It has the duty to re-evaluate the evidence and come to its own conclusion bearing in mind the fact that it $\mathcal{L}$ did not see the witnesses and assess their demeanour and veracity. Selle vs. Associated Motor Boat Co. Ltd And Others [1968] E. A. 123.

The appellant's complaint in relation to this ground of appeal is about the evidence given by the respondent during the trial that her claim was 21 $\mathcal{I}$ acres which she said the appellant had trespassed upon. The appellant complained that PW2, the surveyor testified that the unsurveyed land was only 10 acres and not 21 acres. The appellant argues that the unsurveyed land would not be 10 acres but only 7 acres since the certificate of title for the respondent already comprises 92.862 acres out of the 100 acres which $\mathbf{L}\mathbf{S}$ she bought.

It is true that at pages 3 of the judgment of the learned chief Magistrate she arrived at the following conclusion.

The evidence of the plaintiff and her witnesses shows that the land occupied by D2 is the 10 acres that were not surveyed plus another piece of land surveyed and forming part of the certificate $22$ of the plaintiff's certificate of title. The plaintiff is entitled to have D2 evicted from her land i.e. both surveyed unserveyed land". HIGH COURT OF THAND 1 Certis: $\cdot$ : $\cdot$ :

$\tilde{\Gamma}:=\tilde{\Gamma}=\frac{1}{2}\tilde{\Gamma}_L$ of the $\mathbb{R}^2$ $\overbrace{\hspace{1cm}}$ $\mathcal{L}_{\mathcal{L}} = \mathcal{L}_{\mathcal{L}} \mathcal{L}_{\mathcal{L}} \mathcal{L}_{\mathcal{L}} \mathcal{L}_{\mathcal{L}} \mathcal{L}_{\mathcal{L}} \mathcal{L}_{\mathcal{L}} \mathcal{L}_{\mathcal{L}} \mathcal{L}_{\mathcal{L}}$

# $127$

Court agrees that by specifically insisting upon the figure of "10 acres that were not surveyed", the learned Chief Magistrate misdirected herself in light of the evidence contained in the certificate, of title exhibit P2, showing that the registered land and, therefore, surveyed land, was 37.58 hectares which is more than the 90 acres which PW2 said that he had surveyed. The unserveyed land of the respondent, if the learned Chief Magistrate had properly evaluated the evidence on record, would have been found to be the balance that would bring up the 37.58 hectares to the figure of 100 acres that the respondent's certificate of title ought to comprise.

The trial chief magistrate's order shall, therefore, be adjusted in that regard. 1 The unserveyed land trespassed upon by the appellant is not specifically 10 acres but it is such acreage as would bring up the 37.58 hectares, comprising exhibit P2, to 100 acres. Ground number 7 succeeds to that extent.

## Ground 8

In ground 8, the appellant complains about lack of service to him of the $\mathcal{L}$ hearing notices and that the hearing proceeded ex-parte and the appellant was not served for subsequent hearings. The complainant complains of unfair hearing. The appellant complains that there was no formal order for the ex-parte proceedings.

Court finds no merit in this ground. The trial magistrate went out of her $2$ way in the judgment to express her overall impression of the appellant. On page one she states" The defendants filed their defence and used to attend court though irregularly. Eventually, they vanished". And on

$MAS_{MAX}$

page two, the trial Chief Magistrate states "The defendants did not seem genuine litigants. They appeared evasive, with the intention of delaying the case as much as possible".

The appellant complains that on 16/12/03, when the hearing commenced, the appellant had not been served with any hearing notice. Clearly that S complaint is misplaced because on 12.11.2003 when the hearing date of 16.12.2003, was fixed and by mutual consent, the appellant and D1 were present in court. Each of them personally agreed to the adjournment and to the subsequent hearing date of 16.12.2003. In those circumstances, the appellant cannot fairly complain of lack of service of a hearing notice to ル him.

Regarding the complaint about lack of an order for the case to proceed exparte, the record of the trial court for the 16.12.2003 reads as below:-

"16.12.03: Tumwesigye Lawrence for plaintiff Plaintiff in court. $i$ ( Defendants absent. **Bijure- Court Clerk** Counsel: I have one witness. I pray that we proceed. **Court: proceed please** PW1 sworn and states". The above situation fell under the provisions of Order 9 rule 20 (1) (a), of $20$ the Civil Procedure Rules. The rule provides that when the plaintiff appears

$\mathbf{X} \left[ \begin{array}{c} \alpha \\ \alpha \end{array} \right]$

$\frac{d}{dt} \left( \frac{d}{dt} \right) \frac{d}{dt} \left( \frac{d}{dt} \right) \frac{d}{dt} \left( \frac{d}{dt} \right) \frac{d}{dt} \left( \frac{d}{dt} \right) \frac{d}{dt} \left( \frac{d}{dt} \right) \frac{d}{dt} \left( \frac{d}{dt} \right) \frac{d}{dt} \left( \frac{d}{dt} \right) \frac{d}{dt} \left( \frac{d}{dt} \right) \frac{d}{dt} \left( \frac{d}{dt} \right) \frac{d}{dt} \left( \frac{d}{dt} \right) \frac{d}{dt} \left( \frac{d}{dt} \right)$

and the defendant does not appear, if the court is satisfied that the summons or notice of hearing was duly served, it may proceed ex-parte.

While it may be neat for the court to record a formal ex-party order in such a situation, the rule itself does not provide for a requirement for such a formal order. In the view of court, it is sufficient for court to order, as it. did in this case, after counsel for the plaintiff had made an application to proceed obviously ex-parte, that proceedings proceed. I find no substantial with the approach adopted by the trial Magistrate.

Every litigant ought to be and is expected to be vigilant and to pursue his or her interests in the case vigilantly. In the instant case, both parties agreed $\int$ to a hearing date on 12.11.03. the hearing date was 16.12.03. The appellant absconded and never came back to court at all until he did so for the purposes of this appeal.

While court agrees that it would have courteous for the respondent to serve hearing notices to the appellant for subsequent hearing dates after adjournments of hearing, nevertheless the omission to do so would not $\mathbf{L}$ vitiate the procedures because having agreed upon the commencement date of the hearing which was 16.12.03 the appellant had a corresponding duty to check on the next hearing date even if he had had good cause to be absent. on 16.12.03 when the hearing began. He never did so. It was fair in those circumstances for the court and, indeed, the respondent to assume that the $\mathcal{H}$ appellant had abandoned the hearing. The case of Tumwine Emmanuel vs. Eliphazi Miini HCT 05-CV-CA-0033-2004, has no relevance to this

$\epsilon$ inc. $\begin{array}{c} \text{Inter} \\ \text{Inter} \\ \text{Inter} \\ \text{N-2} \end{array}$

$10$

$\iota$

The two cases are distinguishable upon the facts appeal. $\mathbf{I}_{\mathcal{H}_1} = \mathbf{I}$ case both parties were recorded absent when counsel for the plain.... allowed to proceed exe-parte. Secondly, the plaintiff, who was recorded to be absent, somehow testified as a witness and the record appeared to be That is not case in this case. Ground number eight would also suspect. fail.

### Ground Nine.

This ground was abandoned by counsel for the appellant in his submissions. Court refrains from discussing it for that reason.

### RESULT.

In the result, the appeal succeeds only to the extent it does under ground 7 of the grounds of appeal, to the greater extent, it is dismissed. The Respondent shall recover 75% of her taxed costs in this court and in the court below from the appellant.

V. F. Musoke-Kibuyka COURT OF LGANDA

$(JU**D**GE)$ 20/04/2009 of the rin

$\frac{1}{2}$