Wakilii

Zawedde Alice and Others v Nalwanga Robinah (Civil Appeal No. 7 of 2023)

High Court · [2024] UGHCLD 308 · 2024 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from Entebbe Chief Magistrate's Court judgment in land sale dispute
Decision
Appeal dismissed and decision of the trial magistrate upheld

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that where defendants were duly notified of a locus visit but failed to attend without valid reason, the court properly proceeded under Order 9 rule 20 of the Civil Procedure Rules. The trial magistrate's findings on sale of kibanja were based on witness testimony both at trial and locus. An agreement executed by thumb print was valid where no evidence was led to show the party was illiterate within the meaning of the Illiterates Protection Act. The appellate court found no reason to interfere with the trial court's assessment of damages. Appeal dismissed with costs.

Outcome

Appeal dismissed and decision of the trial magistrate upheld

Facts

The respondent claimed she purchased a kibanja from the appellants in 2000 for UGX 300,000 and took possession. In 2013, having lost the original sale agreement, she paid a further UGX 1.6 million and the parties executed a second agreement for the same land. Subsequently, the appellants allegedly resold the kibanja to third parties and dispossessed the respondent. She sued for vacant possession, injunction, and damages. The appellants denied the 2000 sale and maintained the respondent had purchased a different kibanja in 2002. The trial court found for the respondent, awarded vacant possession, permanent injunction, general damages of UGX 20 million, and special damages of UGX 4.6 million. The appellants appealed challenging principally the locus proceedings conducted in their absence and the trial court's findings on validity of sale.

Issues

  1. Whether the trial magistrate erred in law and in fact when she visited the locus in quo and conducted a hearing in the absence of the defendants and their counsel despite having been duly notified of their absence.
  2. Whether the trial magistrate erred in law and in fact when she relied on the plaintiff's evidence gathered during the locus in quo visit without the defendants and their advocate to hold that the suit kibanja was bought by the plaintiff.
  3. Whether the trial magistrate erred in law and fact when she held that the sale agreement dated 3rd January 2013 was valid yet the same agreement was thumb printed by the defendant without any translation as required by law.
  4. Whether the trial magistrate erred in law and fact when she considered evidence of PW3 (Ssekibengo Jackson) who the plaintiff's counsel asked court to declare hostile for being too contradictory in his evidence thereby arriving at a wrong decision.
  5. Whether the trial magistrate erred in law and fact when she failed to properly evaluate the evidence on record thereby awarding excessive damages based on court's finding at the locus which was in the absence of the defendants and their counsel.
  6. Whether the trial magistrate erred in law and fact when she failed to properly evaluate the evidence on record to hold that the plaintiff bought the suit bibanja and that the boundary marks and demarcation as shown to court by the plaintiff at the locus was true and authentic.

Orders

  • Appeal dismissed.
  • Decision of the trial magistrate upheld.
  • Appellants to pay costs of the appeal to the respondent.

Rules and key headnotes

Civil Procedure — Locus in Quo — Exparte Proceedings — Duty of Parties to Attend after Notice
Where defendants are duly notified of a locus visit and their advocate applies for adjournment by letter but neither the advocate nor the defendants attend without valid reason, the court may properly proceed under Order 9 rule 20 of the Civil Procedure Rules. The defendants must either attend in person or apply to set aside the exparte locus proceedings. Seeking an adjournment by letter alone does not automatically grant the adjournment.
Evidence — Illiterates Protection Act — Burden of Proving Illiteracy
An agreement executed by thumb print is not void merely because it was thumb printed. Under section 1 of the Illiterates Protection Act, an illiterate is a person unable to read and understand the script or language in which a document is written. Where no evidence is led to show that a party executing a document was unable to read the language in which it was written, that party cannot rely on section 3 of the Illiterates Protection Act to challenge its validity.
Land & Property — Sale of Kibanja — Determination of Sale from Evidence
Where witnesses testify that a sale of land occurred and even the appellants admit a sale took place (though disputing the extent or terms), the trial court is entitled to find that a sale was proved. Findings on sale of land may properly be based on a combination of witness testimony at trial and observations at locus in quo.
Civil Procedure — Appellate Jurisdiction — Interference with Damages Award
An appellate court will not interfere with an award of damages by a trial court unless the trial court acted on a wrong principle of law or the amount awarded is so high or so low as to make it an entirely erroneous estimate of the damages to which the plaintiff is entitled.
Civil Procedure — First Appellate Court — Duty to Re-hear Case
The duty of a first appellate court is to re-hear the case by subjecting the evidence presented to the trial court to fresh and exhaustive scrutiny and re-appraisal before coming to its conclusion. In case of conflicting evidence the appellate court must weigh the conflicting evidence and draw its own inferences and conclusions, making due allowance for the fact that it has neither seen nor heard the witnesses.

Legislation cited (9)

Cases cited (4)

  • Father Nanensio Begumisa and 3 Others v Eric Tiberaga (Supreme Court Civil Appeal No. 17 of 2000)
  • Lovinsa Nankya vs. Nsibambi 1980 HCB 15
  • Ocen Renaldo v Justin Orunya (Civil Appeal No. 6 of 2013)
  • Masaka Municipal council vs. Takaya Frank CACA N. 0173 of 2015

Full judgment

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

Zawedde_Alice_and_Others_v_Nalwanga_Robinah_(Civil_Appeal_No._7_of_2023)_[2024]_UGHCLD_308_(17_April_2024)
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.