Wakilii

Ddamba Samuel v A-Z Children Charity (Civil Appeal No. 51 of 2018)

High Court · [2022] UGHCLD 168 · 2022 Matter Remitted for Fresh Trial AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from the Chief Magistrate's Court judgment in a trespass suit with counterclaim for fraud
Decision
Matter remitted to trial court for fresh trial before another magistrate

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court ordered a new trial after an independent survey report commissioned by the court was disputed by the parties. The court held that where fresh information is introduced through a survey report that has not been tested in evidence, fairness requires that parties be given an opportunity to cross-examine the surveyor and challenge the findings before a final decision is made.

Outcome

Matter remitted to trial court for fresh trial before another magistrate

Facts

The respondent charity sued the appellant for trespass to land comprised at LRV 4026 Folio 10, Plot 3838, Block 203, Nansana Wakiso, seeking a declaration that it was the registered proprietor. The appellant counterclaimed alleging fraud in the registration, contending the respondent falsely represented the land size as 3.855 acres when the original survey showed 3.8 acres. The trial court found in favour of the plaintiff, holding there was no evidence of fraud and that the appellant was a trespasser. The trial court awarded general damages of UGX 5,000,000 and mesne profits. The appellant appealed on multiple grounds including fraud, trespass, failure to resolve the counterclaim, excessive damages, and failure to evaluate evidence. On appeal, the High Court directed a government surveyor to conduct an independent survey to determine the extent of any encroachment. The survey was conducted in January 2021, but the parties disputed its findings and sought an opportunity to cross-examine the surveyor.

Issues

  1. Whether the trial magistrate erred in finding no evidence to prove fraud in land registration.
  2. Whether the appellant was properly found to be a trespasser on the suit land.
  3. Whether the trial magistrate properly resolved the counterclaim.
  4. Whether the damages and mesne profits awarded were excessive.
  5. Whether the trial court properly evaluated the evidence.
  6. Whether the court should order a new trial based on the disputed survey report.

Orders

  • Matter referred back to the trial court before another magistrate for a fresh trial.
  • Parties shall be free to present evidence to challenge the survey report but shall not be allowed to produce other evidence to fill in gaps.
  • No order as to costs.

Rules and key headnotes

Civil Procedure — Appeals — New Trial — Grounds for Ordering
A court hearing an appeal has power under Order 43 rule 21 of the Civil Procedure Rules to order a new trial where fresh information that has not been tested in evidence is introduced, particularly where both parties require a fair opportunity to examine and challenge that information.
Evidence — Expert Evidence — Survey Reports — Right to Cross-Examine
Where a court commissions an independent survey report that introduces fresh information concerning disputed land, principles of natural justice require that parties be given a fair chance to examine the surveyor and the report to verify its correctness before the court makes a final decision based on it.
Civil Procedure — New Trial — Scope of Evidence — Limitation on Reopening
Where a new trial is ordered to test a disputed survey report, parties are free to present evidence to challenge the survey report but shall not be allowed to produce other evidence that may be interpreted as filling in gaps by either side.

Legislation cited (1)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Ddamba_Samuel_v_A-Z_Children_Charity_(Civil_Appeal_No._51_of_2018)_[2022]_UGHCLD_168_(2_February_2022)
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.