Wakilii

Kassim Abdaraman and Another v Mohamed Salim (Civil Appeal No. 0012 of 2012)

High Court · [2012] UGHC 445 · 2012 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from Chief Magistrate's Court judgment in a land dispute
Decision
Judgment of the lower court set aside; appellants' land rights upheld

Observed later treatment

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Holding

The High Court allowed the appeal, holding that the trial court erred in accepting hearsay evidence to establish the size of donated land where the written donation agreement did not specify mathematical measurements, in violation of Evidence Act s.91 which prohibits oral evidence to explain written agreements. The court further held that the trial Magistrate failed to follow proper procedure during the locus in quo visit by not taking testimonies on oath from witnesses.

Outcome

Judgment of the lower court set aside; appellants' land rights upheld

Facts

The respondent sued the appellants claiming that late Hashim Abdallah donated land to him in 1978 by written agreement. The respondent went into exile in 1979 and returned in 1994. In 1996, he alleged the appellants encroached on his land from the east and west. The written donation agreement (Exh. P1) stated that Hashim Abdallah gave the respondent "a small piece of land" behind his kitchen for building a house, witnessed by Hassan Faraj. The agreement did not specify the land's size in mathematical measurements. The respondent constructed a house measuring 65.6 x 34 feet. The respondent claimed the donated land measured 100 x 95 feet based on information allegedly given by Justo Mundua, a land patrolman who was not a witness to the donation agreement. The second appellant was the son of the deceased donor.

Issues

  1. Whether the procedure adopted by the trial Magistrate at the locus in quo was proper.
  2. Whether the decision reached by the trial Magistrate was supported by the evidence on the record.

Orders

  • Appeal allowed.
  • Judgment and decree in Civil Suit No. 014 of 2001 in the Chief Magistrate's Court at Arua set aside.
  • Costs of the appeal awarded to the 1st appellant Kassim Abdaraman to be paid by the respondent.
  • Costs in the lower court suit awarded to both appellants to be paid by the respondent, excluding advocates' fees as parties represented themselves.

Rules and key headnotes

Evidence — Documentary Evidence — Parol Evidence Rule — Section 91 Evidence Act
Where a written agreement disposing of property does not state the mathematical size of the land donated, no oral evidence may be adduced to supply measurements not contained in the written document, unless coercion, fraud or illegality is pleaded.
Evidence — Hearsay — Section 59 Evidence Act — Admissibility
Evidence of measurements communicated by a person who was not a witness to the land donation agreement and who did not testify in court constitutes hearsay and cannot be relied upon to establish the boundaries of donated land.
Civil Procedure — Locus in Quo — Proper Procedure
At a locus in quo visit, each party must testify on oath and be subject to cross-examination. Witnesses who have already testified in court must clarify their testimony and indicate features and boundary marks. Observations made by the court must be recorded and form part of the record. Failure to follow this procedure is fatal to the trial.
Land Law — Interpretation of Land Donation Agreements — Vague Terms
Where a land donation agreement describes the donated land as "a small piece of land" without mathematical measurements, the size of land given must be determined by objective reasonableness and cannot extend beyond the actual area occupied by the structure the donor intended the donee to construct.
Civil Procedure — Parties — Addition of Parties — Order 1 Rule 10(2) CPR
A court may on its own motion at any stage of proceedings add a party in order to effectively and completely adjudicate upon and settle all questions involved in the suit, particularly where the added party was an applicant in related preliminary proceedings.

Legislation cited (5)

Cases cited (7)

  • WILKAMISON DIAMOND LTS & ANO. =VS= BROWN 1970 EA 01
  • Fredrick J.K. Zaabwe v Orient Bank Ltd & Ors (Civil Appeal No. 0004 of 2006)
  • Uganda Revenue Authority v Steven Mabosi (Supreme Court Civil Appeal No. 26 of 1995)
  • KINYATI -VS- REP 1976 - 1085 EA 234 (CAK)
  • EMMANUEL BASALIZA -VS- MWIIJUSA CHRIS
  • DAVIDA ACAR =VS= ALFRED ACAR ALIRO [1982] HCB 60
  • BADRU KABALEGA =VS= SEPIRIANO MUGUNGA [1992] 11 KALR 110

Full judgment

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

Kassim Abdaraman and Another v Mohamed Salim (Civil Appeal No. 0012 of 2012) [2012] UGHC 445 (2 October 2012)
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.