Wakilii

Mercy Asiimwe v Dr. Jim Arinaitwe (Civil Appeal No. 223 of 2017)

Court of Appeal · [2026] UGCA 39 · 2026 Appeal Dismissed; Cross-Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
First appeal from a High Court civil suit (sale of land / trespass), with a cross-appeal
Decision
Appeal dismissed with costs; cross-appeal succeeds; all the suit land including the disputed portion declared to belong to the respondent/cross-appellant, and the trial court's damages awards to the appellant set aside.

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Holding

In a first appeal from a contested land sale, the Court of Appeal held that where a written sale agreement describes land by its neighbouring boundaries and states acreage only as approximate, the boundaries govern the extent of what was sold; the appellant therefore sold all her land and retained nothing. Under sections 91 and 92 of the Evidence Act, oral evidence could not be admitted to vary the written agreement absent a pleaded statutory exception. The disputed 0.94 acres belonged to the respondent, so no trespass occurred, and the trial court's damages awards to the appellant were set aside. The respondent acquired an equitable interest on part payment, making the appellant's cutting of trees wrongful. Appeal dismissed; cross-appeal succeeded.

Facts

On 8 September 2008 the appellant agreed to sell the respondent three parcels of land at Kafunjo, Katojo, Rubaare, Kashari, Mbarara District for Shs 120,000,000. The agreement described each parcel by its neighbouring boundaries and stated acreage only as approximate (the first parcel as about 7.5 acres, with a residential house and grazing area). The respondent paid part of the price at execution and completed payment by November 2009, the delay arising from disputes within the appellant's family. The appellant remained on the land, planted fresh bananas, and a Warid Telecom mast (under a 2007 lease) stood on the first parcel. A court-ordered survey, conducted by consent, found the parcels measured less than stated and that the appellant's claimed 20 acres did not exist; it identified a disputed 0.94-acre strip on the southern boundary, which both parties agreed belonged to the respondent. The appellant sued for trespass after the respondent fenced the land and cut crops; the respondent counterclaimed for eucalyptus trees the appellant had cut. The trial Judge found partly for each party. The appellant appealed and the respondent cross-appealed.

Issues

  1. Whether the trial Judge erred in finding that the land trespassed upon measured 0.94 acres and contained the banana plantation and Warid Telecom mast.
  2. Whether the trial Judge erred in relying on the District Staff Surveyor's report to determine the area of the land in dispute.
  3. Whether the appellant retained any portion of land after the sale, given that the agreement described the parcels by boundaries but stated acreage only as approximate.
  4. Whether oral evidence could be admitted to vary the terms of the written sale agreement under sections 91 and 92 of the Evidence Act.
  5. Whether the appellant was entitled to special damages for furniture allegedly lost.
  6. Whether the appellant had a right to cut down the eucalyptus trees, or whether an equitable interest had passed to the respondent on part payment.
  7. Whether the trial Judge erred in failing to pronounce on the remaining remedies sought by the appellant.

Orders

  • The appeal fails.
  • The award of special damages of Shs. 1,900,000 to the appellant is set aside.
  • The award of general damages of Shs. 5,000,000 to the appellant is set aside.
  • The costs of the appeal and of the suit in the lower court are awarded to the respondent.
  • The cross-appeal succeeds.
  • The award of special damages of Shs. 1,000,000 to the cross-appellant is upheld.
  • The award of general damages of Shs. 2,000,000 to the cross-appellant is upheld.
  • All the suit land purchased, including the land in dispute, belongs to the cross-appellant.
  • The costs of the cross-appeal and of the counterclaim in the lower court are awarded to the cross-appellant.
  • The appeal is dismissed with costs in this court and in the court below.

Key headnotes

Civil Procedure — Grounds of Appeal — Generality and Rule 86(1)
A ground of appeal alleging that the trial court failed to evaluate the evidence, but which does not specify the particular evidence challenged or the specific wrong decision arrived at, is too general, offends Rule 86(1) of the Judicature (Court of Appeal Rules) Directions, and is liable to be struck out.
Evidence — Parol Evidence Rule — Sections 91 and 92 Evidence Act
Where the terms of a contract for the sale of land have been reduced to writing, no evidence of any oral agreement may be admitted to contradict, vary, add to or subtract from those terms unless a party pleads and proves one of the exceptions set out in section 92(a)–(f) of the Evidence Act.
Land & Property — Sale of Land — Description by Boundaries versus Approximate Acreage
Where a sale agreement describes land by reference to its neighbouring boundaries and states the acreage only as 'approximately', the boundaries govern the extent of the land sold, and a vendor cannot rely on acreage measured in excess of the approximation to claim a retained portion.
Contract Law — Sale of Land — Passing of Property and Equitable Interest on Part Payment
Once a sale agreement is executed and the purchaser has paid a substantial part of the purchase price, the purchaser acquires an equitable interest in the land, and the vendor cannot unilaterally alter the property in a way that diminishes its agreed value, such as by cutting down trees forming part of the land sold.
Damages & Quantum — Special Damages — Pleading and Strict Proof
Special damages must be specifically pleaded and strictly proved by clear evidence; a claim for loss of furniture unsupported by evidence of its existence, description, value or the manner of its loss must fail.
Civil Procedure — Remedies — Pronouncement on Unsuccessful Claims
A court is not required to pronounce on, or give reasons for refusing, remedies sought by a party who has not succeeded on the underlying claims, and failure to do so occasions no miscarriage of justice.

Legislation cited (6)

  • Evidence Act s.91
  • Evidence Act s.92
  • Evidence Act s.101
  • Evidence Act s.133
  • Judicature (Court of Appeal Rules) Directions Rule 86(1)
  • Rules of the Court of Appeal Rule 30(1)(a)

Cases cited (10)

  • Kifamunte Henry v Uganda (Supreme Court Criminal Appeal No. 10 of 1997)
  • Bukenga v Remode Enterprises Limited [2023] UGCA 14
  • Celtel Uganda Limited v Karungi Susan (Court of Appeal Civil Appeal No. 73 of 2013)
  • Ranchobhai Shivabhai Patel Ltd & Anor v Henry Wambuga & Anor (Civil Appeal No. 6 of 2017)
  • Kavuga & 2 Others v Wakangiro (Civil Appeal No. 31 of 2021) [2024] UGSC 13
  • Impress a Federice u lrene Nabwinq Supreme Court Civil Appeal No. 3 of 2000
  • Shariff Osman v Haji Haruna Mulangwa (Supreme Court Civil Appeal No. 38 of 1995)
  • Barclays Bank (U) Ltd & 2 Others v Emerald Hotel Ltd & 3 Others (Civil Appeals Nos. 70 & 72 of 2017) [2025] UGCA 79
  • Lwanga v Mubiru & 3 Others (Civil Appeal No. 18 of 2022) [2024] UGSC 7
  • Kasibante v Kateregga (Civil Appeal No. 12 of 2021)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.