[2023] UGHC 398

# **THE REPUBLIC OF UGANDA**

### **IN THE HIGH COURT OF UGANDA HOLDEN AT MASAKA**

### **CIVIL APPEAL NO: 57 OF 2016**

#### **(Arising from MSK Land case no: 202 of 2012)**

**HAJI MUHAMMAD SSERWADDA……………………………………. APPELLANT**

#### **VERSUS**

**MANISURI SSEMPAGI…………………………………….……..…… RESPONDENT**

### **JUDGMENT**

### *BEFORE; HON. LADY JUSTICE VICTORIA N. N. KATAMBA*

#### **BACKGROUND**

The Appellant instituted Civil Suit No. 202 of 2012 in the Chief Magistrate court of Masaka.

The Appellant/Plaintiff's case was that he is the registered owner of land comprised in Mailo Register Buddu Block 32 plot 22 measuring approximately 30.40 hectares at Kalaga estate, Bukomansibi District.

That on the 5th January, 2009, the appellant sold a Kibanja (part of his banana Plantation) to the Respondent and demarcations of the said Kibanja were clearly spelt out in the sale Agreement.

The Appellant also claimed that in May, 2012 the Respondent went beyond the portion sold to him and encroached on the appellant's empty portion of land measuring approximately one acre. He planted coffee thereon without the plaintiff's permission.

The plaintiff further stated that he reported the encroachment to local council officials but that they failed to resolve the dispute for which reason he instituted a civil suit of trespass.

The Respondent admitted that indeed the Appellant is the registered proprietor to the suit land, sold to him apart of it and further admitted the purchase agreement attached to the Appellant's plaint and that indeed the demarcations were clear.


The Respondent, however, denied having trespassed on a part of the Appellant's land that was not sold to him. The Appellant stated that he cut some of the banana plantations that were on his land and replaced them with coffee plants.

The trial Magistrate who determined the matter held that the Appellant/Plaintiff failed to prove that he is the registered proprietor which should have proved that he had possession of the suit land. Accordingly, the suit was dismissed with costs to the Respondent.

The Appellant was dissatisfied with the findings of the trial court and thus the instant appeal.

### **Representation**

The Appellant represented by **M/s Lux Advocates**

The Respondent was represented by **M/s Nnyanzi & Nnyanzi Advocates**

**At institution of the Appeal, the Appellant raised Five grounds of appeal to wit;**

- *1. The learned Trial Magistrate erred in law and fact when he held that the Appellant had failed to discharge the burden of proof on the balance of probabilities that indeed he was in possession of the suit land.* - *2. The learned Trial Magistrate erred in law and fact when he failed to properly evaluate Evidence on record there by coming to the wrong conclusion.*

# **The duty of this Court as a first Appellate**

The duty of a first Appellate Court is to re-aappraise or re-evaluate evidences as a whole and come to its own conclusion bearing in mind that it has neither seen nor heard the witness and should make due allowance in that regard.

The Supreme Court has re-echoed the above principles in a number of cases like *Uganda Revenue Authority versus Rwakasanje Azariu & 2 Ors; CACA No. 8/2007; Fr. Narsensio Begumisa and 3 Ors versus Eric Kibebaga; SCCA No. 17 of 2002 and Banco Arabe Espanol versus Bank of Uganda; SCCA No. 08 of 1998.*


I therefore have the duty to re-appraise the evidence and reach my own conclusions thereon subject to the caution that I did not see, hear, or observe the witness.

**Decided cases have also established that "***where the trial court has erred, the Appellate Court will only interfere where the error has occasioned a miscarriage of justice. The Appellate Court has a duty to reevaluate the evidence of the trial court while considering facts, evidence and the law. The court can interfere with the findings of the trial court, if the court misapplied or failed to apply the principles applicable to the offence charged" in this civil case, the issues that were raised before court for determination.*

#### **APPELLANT'S SUBMISSIONS**

The Appellant argued grounds 1 and 2 jointly.

The Appellant criticised the learned Trial Chief Magistrate for holding at Page 3 paragraph 6 of his Judgment thus; "*From the Plaintiff's pleadings on record, there is no where he states to have been in possession of the land he alleges the defendant encroached upon. I am aware his para. 4 of the plaint states, he is a registered proprietor, which if proved is suffient possession. However, there is no evidence on record to prove that the plaintiff is a registered proprietor. No certificate of title was either attached to the pleadings or adduced in evidence. the alleged attachment in annexture "A" is not on record".*

The Appellant further submitted that the Learned Chief Magistrate contradicted himself at page 1 paragraph 4 of his Judgment wherein, he had earlier held thus; "*in his Written Statement of defence the defendant admits that the plaintiff is the registered proprietor of the over 30 hectares and that he bought a Kibanja interest from the plaintiff".*

The Appellant supported his submission with the authority of **Kitgum Co-operative Savings and Credit Society Limited vs Okonya Civil Appeal 85 of 2018** in which the Hon. Mr. Justice Stephen Mubiru quoted with approval Order 8 rule 3 of The Civil Procedure Rules and section 28 of The Evidence Act and held that, "*Order 8 rule 3 of The Civil Procedure Rules provides that every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the opposite party, is taken to be admitted, while section 28 of The Evidence Act provides that no fact need be proved in any proceeding which by*


*any rule of pleading in force at the time they are deemed to have admitted by their pleadings. However, according to section 28 of The Evidence Act, admissions are not conclusive proof, but may estop. An allegation of fact admitted expressly or constructively by the opponent, need not be proved (see Pioneer Plastic Containers Ltd v. Commissioner of Customs and Excise [1967] 1 All E R 1053). The effect of the defendant admitting facts pleaded in the plaint is that there is no issue between the parties on that part of the case which is concerned with those matters of fact."*

The Appellant also referred this court to the record of proceedings, during Cross examination of the Appellant at page wherein he stated that *"I usually rented out my land to people to cultivate but at the time of encroachment, there were no people hiring the land in issue"*. He asserted that this demonstrated that the Appellant had possession of the suit land until he was dispossessed by the Respondent.

In conclusion, the Appellant submitted that the fact of his being the registered proprietor to the suit land was admitted, and that he also proved that he was vested with possession until the Respondent committed the impugned act. This court should find that the learned trial magistrate erred in finding that he had not proved possession, for the above reasons.

# **RESPONDENT'S SUBMISSIONS**

On Ground one;

The Respondent submitted that in civil cases, the burden of proof lies on the person who alleges fact and would fail if that fact is not proved.

He submitted that the Appellant testified as Pw1 that on 5th January 2009, he sold a kibanja to the Respondent and the boundaries were clearly spelt out in the agreement yet the Respondent later occupied land beyond his boundaries. The Appellant tendered in court PEX1 which was not in the language of the court.

The Respondent stated that the Appellant did not constitute what the boundaries were according to him and so did Pw2. It was argued for the Respondent that since the Appellant failed to discharge the burden on what the boundaries of the Kibanja that he sold to the Respondent, he could not now fault the trial Magistrate.

The Respondent categorically attacked PEX1, which is the sale agreement between the parties. He stated that the said document is not in the language of the court, was written by the Plaintiff/Appellant and that it omitted to spell out the boundaries for any person to comprehend them.

On Ground two;

The Respondent submitted that the second ground is a fishing expedition. He relied on the authority of **Attorney General vs. Florence Baliraine CACA No. 79 of 2003** in which a ground couched in similar manner was declared not to be a ground of appeal but a fishing expedition as to what error the trial court committed.

In conclusion, the Respondent prayed that the appeal be dismissed with costs to the Respondent.

### **DETERMINATION OF COURT.**

I have carefully examined the submissions of the parties and the record of the trial court and I will address the preliminary point law that was raised by the 1st Respondent.

**Ground one: The learned Trial Magistrate erred in law and fact when he held that the Appellant had failed to discharge the burden of proof on the balance of probabilities that indeed he was in possession of the suit land.**

In his written statement of defence that was filed in the trial court, the Respondent categorically admitted paragraphs 4 and 5 of the Appellant's plaint.

Those paragraphs provide as hereunder;

*"4. The Plaintiff is the registered owner of a piece of land comprised in Mailo register Buddu Block 32 Plot No. 22, measuring approx..30.40 Hectares, Kalaga Estate, Buddu, Bukomansimbi District. (Photocopy of the Certificate of Title attached marked Annexure "A."*

*"5. By agreement dated 5th January, 2009 (Photo copy attached marked Annexture "B" and English Translation marked Annexure "C") the plaintiff sold to the Defendant a Kibanja and the demarcations of it were well articulated in the agreement."*

Having admitted the above paragraphs in the Plaintiff's claim, the Respondent has now turned around to attack the very agreement under which he obtained his basis for coming onto the suit

land. The Respondent contends that the agreement was not in the language of the court, yet he admitted the translation that was attached to the plaint.

The Respondent also attacked the agreement's flaws in as much as it omitted to succinctly define the boundaries of the land that was purchased by the Respondent from the Appellant.

One of the key principles that govern acquisition of land is *"Buyer beware" also known as Caveat Emptor."* According to this principle, the buyer bears the burden of not only satisfying him/herself of the vendor's proprietorship of the suit land but also the size of what is being sold to him.

It is reckless of the Respondent to state that whatever the boundaries of the land that he purchased was solely a responsibility of the Appellant/vendor to confirm in the agreement which was apparently written by the Appellant.

It is this court's opinion that the Respondent as purchaser, had a duty to fully participate in ascertaining the boundaries of his land in anticipation of future questions such as the alleged trespass that has since arisen. Any diligent purchaser of land has a duty to confirm the size of land that s/he intends to purchase by way of boundary opening or at least to ensure that the size of the different demarcations is properly captured on the purchase agreement before parting with the cost price.

The Respondent having admitted the contents of paragraph 5, that the Appellant sold to him a Kibanja out of the entire piece of land, this confirms that the same should be capable of being ascertained. Failure of the above creates a risk that the size could continuously change over time, either by reduction or increment in which case, either party could be adversely affected.

With the above reasoning, since the Respondent abdicated his duty to participate in ensuring that the exact size of the Kibanja that he bought is captured on the agreement, he effectively placed confirmation of the size of the same in the hands of the person who sold it to him, the Appellant. If anything, had a stranger trespassed on the Respondent's Kibanja, would the Appellant not have been the Respondent's most suited or key witness to prove that he indeed purchased it and to authoritatively state its boundaries/size? In the opinion of this court, the Respondent could never have a better witness than the Appellant to prove the above facts because he is the one that sold it to him.

I agree with the Appellant that facts which are admitted need not be proved. The trial Magistrate erred when he stated in his Judgment that the Appellant failed to prove that he was a registered proprietor which could have proved that he had possession over the suit land prior to the same being trespassed upon by the Respondent. The Appellant did not need to prove this fact because it was already admitted in the Respondent's written statement of defence. *S.28 of The Evidence Act provides that facts which are admitted need not be proved.* **See Hon. Mr. Justice Stephen Mubiru in Kitgum Co-operative Savings and Credit Society Limited vs Okonya Civil Appeal No. 85 of 2018**

In conclusion, ground one succeeds.

### **Ground two**;

# *The learned Trial Magistrate erred in law and fact when he failed to properly evaluate Evidence on record there by coming to the wrong conclusion.*

The Respondent submitted that this is not a ground of appeal but a fishing expedition. I agree with the Respondent that an Appellant should categorically point out his points of grievance in the Decree or Judgment that he desires the appellant court to investigate as contrasted to merely stating a general statement that the trial Judicial officer failed to evaluate the evidence.

Grounds of appeal of this nature contradict *Order 43 rule (1) and (2) of the civil Procedure Rules as amended which require that a ground of appeal should be concise and specifically state or set out the ground of objection to the Decree from which the appeal emanates. See Attorney General vs. Florence Baliraine CACA No. 79 of 2003.*

In conclusion, this court agrees with the Respondent that this is not a ground of appeal, the same is rejected.

The Appeal partly succeeds and is hereby allowed with the orders below;

- a) The Judgment and orders of the trial court are hereby set aside. - b) The Appellant shall ascertain and demarcate the exact dimensions of the kibanja that he sold to the respondent and plant boundary marks thereon. - c) The demarcation shall be conducted in the presence of the area L. C I authority.


- d) A report demonstrating the exact size of the Respondent's Kibanja on all sides shall be filed on the record of this court within three months' time from the date of delivery of this Judgment to settle the boundary dispute in finality. - e) The appeal partly succeeds, each party shall bear its own costs of the suit in the trial court and this court.

Dated and delivered electronically at Masaka this 30th day of June, 2023.


# **VICTORIA NAKINTU NKWANGA KATAMBA**