Wakilii

Zawedde & 2 Others v Nalwanga (Civil Appeal 7 of 2023)

High Court · [2024] UGHCLD 101 · 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 Civil Suit No. 83 of 2014
Decision
Appeal dismissed with costs to the respondent; trial court judgment upheld

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the trial magistrate properly proceeded with the locus in quo visit under Order 9 rule 20 of the Civil Procedure Rules after the appellants, though duly notified, failed to attend and gave no valid reason for their absence. The trial court's finding that the respondent had purchased the suit kibanja was based on witness testimony both at trial and at locus. The sale agreement of 3rd January 2013 was valid as no evidence established that the appellant was illiterate within the meaning of the Illiterates Protection Act. The trial magistrate properly evaluated the evidence and awarded appropriate damages. Appeal dismissed.

Outcome

Appeal dismissed with costs to the respondent; trial court judgment upheld

Facts

The respondent claimed she purchased a kibanja from the appellants in 2000 for UGX 300,000, paying UGX 100,000 initially with a balance of UGX 200,000 due on 5th June 2000. She took possession and planted trees. In 2013, having lost the original agreement, she allegedly purchased the same kibanja again from the appellants for UGX 1.6 million on 3rd January 2013. Subsequently, the appellants resold the kibanja to third parties and evicted the respondent, harvesting her trees. The appellants denied executing either sale agreement, maintaining the respondent had purchased a different kibanja at Kisaba on 18th July 2002. The trial court found in favour of the respondent, awarding her vacant possession, a permanent injunction, UGX 4.6 million special damages, UGX 20 million general damages, and costs. The appellants appealed, primarily challenging the locus in quo visit conducted in their absence.

Issues

  1. Whether the trial magistrate erred in law and 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 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 Visit — Exparte Proceedings — Absence of Party and Counsel
Where a party and their advocate are duly notified of a locus in quo visit but fail to attend without providing valid reasons, the court is entitled to proceed exparte under Order 9 rule 20 of the Civil Procedure Rules. A letter requesting adjournment without appearing in person does not automatically grant the adjournment. The affected party should have applied to set aside the exparte proceedings rather than challenging them on appeal.
Civil Procedure — First Appellate Court — Duty to Re-evaluate Evidence
A first appellate court has a duty to rehear the case by subjecting the evidence presented to the trial court to a fresh and exhaustive scrutiny and re-appraisal before coming to its own conclusions. Where there is conflicting evidence, the appellate court must weigh it and draw its own inferences, though making due allowance for the fact that it has neither seen nor heard the witnesses.
Contract Law — Illiterates Protection Act — Burden of Proof — Illiteracy
Under section 1 of the Illiterates Protection Act, an illiterate in relation to a document is defined as a person who is unable to read and understand the script or language in which the document is written or printed. The burden is on the party alleging illiteracy to adduce evidence establishing that they could not read or understand the language of the document. Where a document is drafted in a local language and no evidence is led to establish inability to read that language, the protections of the Act do not apply.
Civil Procedure — Issues on Appeal — New Issues Not Raised at Trial
An issue that did not arise during trial and upon which no evidence was led cannot be raised for the first time on appeal. Appellate courts determine appeals on the basis of the record and issues as framed and contested at trial.
Damages & Quantum — Appellate Interference — Award of Damages
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.

Legislation cited (8)

Cases cited (4)

  • Father Nanensio Begumisa & 3 Others v Eric Tiberaga (Supreme Court Criminal Appeal No. 17 of 2000)
  • Lovinsa Nankya vs. Nsibambi 1980 HCB 15
  • Ocen Renaldo v Justin Orunya (Civil Appeal No. 006 of 2013)
  • Masaka Municipal Council v Takaya Frank (Court of Appeal Civil Appeal No. 0173 of 2015)

Full judgment

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

Zawedde_&_2_Others_v_Nalwanga_(Civil_Appeal_7_of_2023)_[2024]_UGHCLD_101_(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.