[1999] UGCA 50

## THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

CORAM: HON. MR. JUSTICE C. M. KATO, J. A. HON. MR. JUSTICE G. M. OKELLO, J. A. HON. LADY JUSTICE C. N. B. KITUMBA, J. A.

## CIVIL APPEAL NO.32 OF 1998

WILBERFORCE JOHN .............................. APPELLANT

VERSUS

TINKASIMIRE ............................... RESPONDENT

$\mathcal{L}_{\mathcal{L}}$

(Appeal from the judgment of the High Court (Katutsi, J) dated 29-9-1997 in H. C. A. DR. MFP $1/97$ )

## JUDGMENT OF KITUMBA, J. A.

This is a second appeal. It arose from the appellate decision of the High Court (Katutsi, J) dated 29-9-97 whereby the trial Magistrate Grade I's judgment was reversed against the appellant. In the Magistrate's court the present appellant was the plaintiff.

The appellant bought a piece of land at Kagote village, Fort Portal from one Abdu Birungi. The sale agreement between the appellant and Abdu Birungi was executed on 20-9-1994 and was exhibit P2 at the trial. The respondent had on 18th April, 1973, sold his house to Abdu Birungi and the sale agreement was Exhibit D1.

After the purchase of the land from Abdu Birungi, the appellant on 21/9/94, paid to Fort Portal Municipal Council a transfer fee of the kibanja from the names of PW2 to the appellant's, and a general receipt issued by the Municipal Council was exhibit P3.

$\mathbf{1}$

On 21-9-94 the appellant executed a tenancy agreement with the Council in respect of the land he had bought from Birungi and this was exhibited P4.

Later the appellant demolished the building which was there with a view of building another one at the same site. However, before he could do so, the respondent moved in and constructed another house at the very site where the old house was.

He The appellant sued the respondent for trespass claiming that he (the appellant) was a bona fide purchaser of land from PW2 . prayed for, inter alia,

- (a) declaration that the land legally belonged to him, - (b) eviction order against defendant,

*4*

(c) general damages and costs of the suit.

He alleged In his defence the respondent claimed that he only sold the house to Birungi and not the land on which the house stood, that Birungi had no title to pass to the appellant.

The learned trial Magistrate believed the evidence of the appellant and gave judgment in his favour, ordering, inter alia, that the respondent vacates the land and pays shilling one hundred thousand to the appellant as general damages and costs of the suit.

trial Magistrate. On appeal, the High Court set aside the judgment and orders of the It substituted them with the judgment for the respondent which the appellant appeals against now.

There were originally 7 grounds of appeal, but in the course of the hearing, the 7th ground was abandoned. Only the following six grounds were argued before us:

The learned Judge erred in law in allowing the Respondent, then Appellant to put in fresh evidence and exhibits on the oral Application of Counsel for Appellant/now Respondent when there was no evidence from the lower court that the Respondent "1.

had not been given chance to adduce such evidence and put in such exhibits.

The way the Appeal was heard, was irregular, in that having 2. received the fresh evidence and exhibits neither the trial Magistrate nor the Appellant Court were addressed to these exhibits in way of further submissions.

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- 3. The learned Judge erred in law in finding for the Respondent herein basing on receipts and documents from the Town Council when it was clear on record that the Respondent had land adjacent and surrounding that of the Appellant to which land the receipts related. - The learned Judge erred in law and in fact in finding for the 4. Respondent basing on an Agreement between the Respondent and one Abdul when the said Abdul was not a signatory to the said agreement. - 5. The trial Judge weighed evidence in isolation and thus misdirected himself as to the evidence which had been adduced in favour of the (now) Appellant. - 6. The trial Judge failed to appreciate the period one Abdul Birungi had lived on the land and his developments thereon and had he done so he done so he would have found that Birungi had and passed title to the Appellant."

Mr. Musana, learned Counsel for the appellant, argued grounds 1 and 2 together and I will handle them jointly. Counsel argued that the additional evidence in the case was admitted in an irregular manner. Firstly, the application to adduce additional evidence was oral. Secondly, there was no evidence that the additional evidence which was sought to be adduced had been objected to during the trial. Counsel submitted that according to Section 81(1)(d) of the Civil Procedure Act, the appellate court has powers to require the recording of additional evidence if sufficient reason is shown. In the instant case no sufficient reason was shown. The evidence which was adduced was in possession of the respondent. He further submitted that allowing the respondent to adduce further evidence was irregular and amounted to a new trial. The surveyor, Mr. Kaboyo, who had not testified in the previous trial was allowed at the locus quo to give his evidence. The learned appellate Judge based his judgment on additional evidence. Counsel relied on the

authority of: American Express International Banking Corporation v. Atulkumar Summant Patel S. C. Civil App. 8A/1986 [1992] IV K&LR 94; and passage in Corbett vs Corbett [1953] 2 All E. R. at 72 quoted therein with approval that,

*£*

¹¹ It is an invariable rule in all the courts that if evidence which either was in possession of the parties at the time of the trial, or by proper diligence might have been obtained, is either not produced, or has not been procured, and the case is decided adversely to the side to which the evidence was available, no opportunity in producing that evidence ought to be given by a new trial."

He further submitted that he was not afforded the opportunity to address the court on the additional evidence.

Supra case Supra In reply Opwonya, Counsel for the respondent, contended that the additional evidence was necessary as no sketch plan had been drawn at the first visit of the locus in quo. Besides the respondent was not represented by counsel at the trial and this rendered it necessary for the appellate Judge to call for additional evidence so as to fill the gaps, a chance to examine witnesses. International He further contended that both counsel had toexamine all documents and to cross-examine the Counsel endeavoured to distinguish American Express Banking Corporation vs Atukulkumar Summar Patel from the present case in that in the American Express the parties were represented by Counsel but in the instant case the respondent was not represented by counsel at the trial.

The question whether or not to allow an appellant to call fresh evidence at the appellate stage is a discretionary matter for the This discretion has to be exercised judicially These principles have been laid 274 as follows: appellate court. and on well founded principles. out in Elgood v. R [1968] E. A. :

- (i) be That the evidence which is sought to be called must evidence which was not available at the trial; - (ii) It must be evidence which is relevant to the issue; - iii) It must be evidence which is credible in the sense that it is capable of belief; - (iv) The court will, after considering that evidence go on to consider whether if that evidence was available at the trial a reasonable doubt might have been created in the mind of the jury; and - (v) It is only in exceptional circumstances that the appellate court will permit additional evidence to be called.

or He justified his order on In his judgment, the learned Judge held that according to S.81(l) C. P. A. the appellate court had power to take additional evidence to require that such evidence be taken. the ground that no sketch plan of the site was taken. The learned appellate Judge said:

quo. that were being Both plaintiff and In land matters I have always held the to rules of admission of evidence "The learned trial Magistrate visited the locus in quo. He however, did not draw the sketch plan at the site to show the extent of the suit land and the features talked about by witnesses at locus in quo. defendant were talking of documents which did not appear on court record. Defendant in the lower court was not represented and the court did not as it appears impress on him the importance of putting forward the documents he was talking about to the Court. view that subject ot ot every piece of evidence that touches on the land in dispute ought to be before the court. Courts sit to do justice and justice cannot be achieved where vital evidence is left out of court."

With due respect to the appellate Judge, a careful perusal of the record of the proceedings does not reveal that either party referred to documents which were not produced. The appellant produced all documents to support his case apart from the agreement

which was case. executed in 1973 between PW2 and the respondent for the sale of land. PW2 testified that the agreement was lost. However, the respondent produced that agreement as exhibit DI. The respondent in his defence produced documents which he deemed to be important for his case. These were the agreement Exhibit DI,

- 1. No.17671 rental of Voucher for payment for premium and unsurveyed land at Kagote, dated 23-7-91, and - ² . 600/= paid for Voucher No.154, dated 19-11-96 for the sum unsurveyed land at Kagote.

All documents which were later produced by the respondent were in his possession and he was not denied a chance to produce them. ^I appreciate he was not represented but that does not mean that the trial Magistrate in a case of unrepresented party should have descended into the arena of litigants.

cause a ^I agree with the submissions of Counsel for the respondent that according to the record Counsel were given a chance to crossexamine the witnesses at the second visit of the *locus in quo* and examined all documents and agreed upon them being put in evidence. While ^I feel uneasy that the appellate court did not strictly observe the principles on which additional evidence should be admitted by an appellate court one important piece of evidence was lacking. This was the sketch plan of the site which the learned trial Magistrate did not draw when he visited the locus in quo. By reason of that important evidence which was missing the appellate court was right to direct the recording of that piece of additional evidence. As indicated above both counsel cross-examined the witnesses and examined all documents. I hold that the admission of the additional evidence did not a miscarriage of justice. Grounds 1 and ² would fail.

Counsel for the appellant argued grounds 3, 4, 5 and 6 together. For the sake of clarity ^I will deal with grounds ³ and 5 separately and handle grounds 4 and 6 together.

Mr. Musana's complaint in ground ³ is that the learned Judge erred in law in basing his judgment on receipts from the Town Council whereas the respondent had adjacent land to which the receipts referred. Learned Counsel contended that the receipts related to other land and not to Plot 454 at Kagote which was the land in dispute.

In reply, Mr. Opwonya contended that the receipts confirmed payment for Plot 4 54 at Kagote and the same plot had never been subdivided.

The learned appellate Judge in his judgment enumerated a total of seventeen vouchers and held that all related to payment by the respondent in respect of Plot 454 at Kagote.

payment for Plot 454 at Kagote. With due respect, that is not quite correct. Vouchers on record, some of which he referred to in his judgment, did not all refer to For example:

- (a) Voucher 6577 dated 29/9/82 - indicates payment of one hundred and forty seven shillings only - being assessment in respect of premises 961/80 for the year 1982 at Kagote; - (b) of Voucher 2275 dated 13-3-87 for shillings one thousand fifty eight forty cents - for payment of assessment rates for premises No.433 at Kagote village; - (c) five and Voucher 2254 dated 15-9-1994 - payment of shillings thousand three hundred - being payment of land rent tenancy agreement for kibanja at Kagote year 1991-94. - (d) Voucher No.6200 dated 4-8-89 for the payment of shillings four hundred and forty only - for rent and tenancy agreement for kibanja at Kagote B village for 1989. - (e) Voucher No.3284 dated 6-3-90 - being payment of shillings two hundred and twenty only - is for assessment rates in respect of premises No.40 at Kagote Rukongera village. - (f) Voucher No.154 dated 24-2-81 for shillings one hundred being payment of rent for plot 454 Kagote village for 1981.

- (g) Voucher No.17671 dated 23-7-91 - being payment for premium for unsurveyed land. - (h) Voucher No.4734 dated 23-8-84 - for six hundred and twenty five shillings for land rent and tenancy agreement for Plot 454A at Kagote village in 1984. - (i) Voucher No.2272 dated 13-3-87 - payment for rent and tenancy agreement for kibanja Plot 454A at Kagote village.

done sometime in March 1995 as per surveyor's tendered as exhibits. It cannot therefore be correctly Plot 454 was not subdivided as contended by Mr. Some vouchers refer to Plot 454A and others to Plot 454B From the evidence outlined above ^I would agree with the submission of Counsel for the appellant that all receipts did not refer to payments for Plot 454 at Kagote. It is apparent that there were two plots at Kagote, Plot 454A and Plot 454B. Indeed, there is ample evidence on record that the respondent owned land near the disputed plot. The evidence on record further shows that the respondent did not apply for survey of the land until 1990 and the actual survey was notes tenderedas argued that Opwonya. Kagote.

Accordingly ground ³ would succeed.

^I now turn to grounds 4 and 6.

Ground 4 is that the appellate Judge erred when he relied on the agreement between the respondent and Abdu Birungi when Abdu Birungi did not sign the said agreement.

Ground ⁶ is that the learned trial Judge erred when he failed to appreciate the period of time Abdu Birungi had stayed on the land.

on At the hearing of this appeal learned Counsel for the appellant contended that the appellant bought the land from one Birungi which there was an old house.

Mr. Opwonya argued that Birungi only bought the house and not the land. It therefore follows that the agreement between Abdu Birungi and the respondent is the basis of this dispute. The learned appellate Judge referred to that issue as **"the king pin of the suit".** The relevant agreement reads as follows:

> Portal. "Kagote Fort 18th April, 1973.

to 1983 . ^I Yowana Tinkasimire of Kagote have sold my house to one Abdu Birungi which is on my kibanja (Plot Kibanja No. 454 Kagote Fort Portal) at Shs.2,500 only. This ^I have done when ^I am very normal. He has paid me all the money to day the 18th - ⁴

Those present were:-

- 1. Stephen B. Musoke. - 2 . Placid B. Kajura. - 3 . Samuel K. Nyakoojo. - 4 . Maliko Baguma.

^I am Tinkasimire Yowana."

The law governing purchase of land is that when a purchaser of land either by an oral or a written agreement takes possession of the land with the consent of the vendor, the property passes to the purchaser. This has been stated by the learned authors on land law, Meggery and H. W. H. Wade, in their book entitled "Law of Real Property 4th Ed. Chap.10 at p.568;

" the "Taking possession of land with the vendor's consent is act of part performance per excellence"

It is furthermore, a part performance by both parties; the vendor gives up the land, and the purchaser takes it. Accordingly it is the general rule that once the purchaser has been let into possession (for however short a time) it is too late for either party to repudiate an oral contract".

After quoting the agreement between Birungi and the respondent the learned appellate Judge held, that the agreement was a genuine one and the parties were only dealing with the purchase of the house without the soil on which it stood. He continued to say,

II use While the maxim of the law is that whatever is firmly fixed to the soil is part of the soil, there is nothing to stop the parties from expressly negating the maxim by the use of clear and express language in the agreement."

as principle of land law. follows: With due respect, the above is not just a legal maxim but a legal Osborne Law Dictionary defines land

''Land comprehendeth any ground soile, or earth whatsoever. It legally includeth also all castles houses, and other buildings; also water".

In my view the learned appellate Judge erred in holding that it was possible to buy a house without the land on which it was standing. This would be contrary to the legal maxim: *Quicquid plantatur solo solo cedit:* which means whatever is planted in the soil belongs to the soil.

I hold that as Birungi stayed on the land for more than twelve years without any disturbance, even if there had been no valid sale, he would have acquired the land by adverse possession. ^I agree with the submission of Mr. Musana that the learned appellate Judge failed to take into account the period of almost 20 years which Birungi had stayed on the land and was undisturbed.

^I hold that Birungi had title of the land he sold.

Accordingly grounds 4 and ⁶ would succeed.

^I now turn to ground 5. That the trial Judge weighed the evidence in isolation and thus misdirected himself on the evidence which had been adduced in favour of the appellant.

Mr. Musana submitted that there was ample evidence on record to establish that the appellant was a bona fide purchaser of the piece of land in dispute.

Mr. Opwonya supported the trial Judge and contended that he weighed all the evidence properly and came to the conclusion that the appellant was not a bona fide purchaser of the land in dispute.

(See who buys in good faith, honestly participation in wrongdoing. [1985] HCB 46) A bona fide purchaser is one without fraud, collusion or Daniel Sempa Mbabali vs W. K. Kiiza & Others

He held that if the appellant The learned appellate Judge held that the appellant was not a bona fide purchaser of the land because he failed to make inquiries before he paid the purchase price. had made inquiries he would have found out from the neighbours that the respondent and the PW2 had disputes concerning the boundaries of their land. Learned judge further held that the previous tenancy agreements which the respondent had with Municipal Council would have warned the appellant of the respondent's interest in the land.

In my view the appellate Judge did not consider all the evidence before him. It is true, there was some dispute about the boundaries of land between the respondent and Birungi but that dispute was amicably settled by the Local authorities. The record of the proceedings shows at p.63 as follows:

''The dispute has been settled and both parties have agreed upon the boundaries layed (sic) by themselves. This committee recommended that applicant gets a 50' x 100' plot.". This was signed by the respondent and the local authority officials.

made Whatever inquiries the appellant would have made would have revealed that the dispute between Abdu Birungi and the appellant was settled and the land belongs to Birungi.

Ground ⁵ would succeed.

In the ^I would allow with costs to the result, Iallowthis appeal appellant. ^I would set aside the judgment and orders of the High Court and restore the judgment and orders of the trial Magistrate Grade I.

Dated at Kampala this day of 1999 . **d|L**

> C. N. B. Kitumba JUSTICE OF APPEAL

#### THE REPUBLIC OF UGANDA

### IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

HON. MR. JUSTICE C. M. KATO, J. A. CORAM: HON. MR. JUSTICE G. M. OKELLO, J. A. HON. LADY JUSTICE C. N. B. KITUMBA, J. A.

### CIVIL APPEAL NO. 32 OF 1998

### WILBERFORCE JOHN ::::::::::::::::::::::::::::::: APPELLANT

### **VERSUS**

TINKASIMIRE JOHN :::::::::::::::::::::::::::::::: RESPONDENT

(Appeal from the judgment of the High Court (Katutsi, J.) dated 29/9/97 in<br>HCCA. MFP 1/97)

### JUDGMENT OF C. M. KATO, J. A.

I have had the benefit of reading the judgment of Kitumba, JA. in draft. I entirely agree with it. The learned appellate judge was wrong in his holding that Abdu Birungi had no title to pass to the appellant. The appellant was a bona fide purchaser for value and Abdu had good title to pass. It was equally wrong for the judge to hold that Abdu only bought a house from the respondent (John Tinkasiimire) but not the land upon the house was build.

Since Okello, JA. also agrees, the appeal is allowed with costs to the appellant here and in the courts below. The judgment and orders of the High Court are set aside and the orders and judgment of the trial Magistrate Grade I are restored.

Dated at Kampala this $\mathbb{R}$ . Merch. 1999. $\dots$ day of $\dots$ $C. M.$ KATO JUSTICE OF APPEAL


## IN THE COURT OF APPEAL OF UGANDA HOLDEN AT KAMPALA

### CORAM: HON. MR. JUSTICE C. M. KATO, J. A.; HON. MR. JUSTICE G. M. OKELLO, J. A. AND; HON. LADY JUSTICE C. N. B KITUMBA, J. A.

# CIVIL APPEAL NO. 32 OF 1998

### BETWEEN

### WILBERFORCE JOHN APPELLANT

AND

TINKOSIMIRE JOHN RESPONDENT

# JUDGMENT OF G. M. OKELLO, J. A.

I have had opportunity to read in draft the judgment ofKitumba J. A. just delivered. I agree with it and I have nothing useful to add.

Dated at Kampala this day of. 1999.

G. M. OKELLO JUSTICE OF APPEAL.

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