Kasamba v Rutalihamwe (Civil Appeal 19 of 2010) [2012] UGSC 15 (12 November 2012)

I \ t I IN THE SUPREME COURT OF UGANDA [CORAM: ODOKI, C.J; TSEKOOKO; KATUREEBE; TUMWESIGYE; KISAAKYE; JJ.SC] CIVIL APPEAL NO: 19 OF 2O1O BETWEEN HENRY KASAMBA APPELLANT AND YAKOBO RUTALIHAMWE :: RESPONDENT [Appeal from the decislon of the Court of Appeat at Kampala lEngwau, Kltumba 66 Nshimye,JJA) dated 14th July 2OO9 ln Civil Appeal No. O5 of2OO8! JUDGMENT OF TUMWESIGYE, JSC 1 I r l I REPUBLIC OF UGANDA AT KAMPALA This is an appeal from the judgment of the Court of Appeal which upheld the judgment of the High Court in a suit Iiled by the respondent against the appellant in the chief magistrate,s court at Masindi. In that suit the respondent prayed for an order of specilic performance in respect of a sale agreement concerning a plot of Iand which was sold to him by the appellant. Counsel's submissions Learned counsel for the appellant argued that the Court of Appeal erred by failing to hold that the principles exp ressed in Jenkins v. Green (supra) applied to the facts of this case; that the principles are that (a) if in a contract for the sale of land which is not properly identified or described, and the seller is under a duty to identify it at a later date by survey, the seller has the first act to do and has an election to choose which area should be surveyed and the purchaser cannot choose an area which he prefers and (b) that the court will issue an order for specific performance for the seller to make his election and choose which area the purchaser shall take. Learned counsel further contended that both the High Court and the Court of Appeal did not make a specific hnding that a survey as had been provided for in the contract of sale had taken place and that it was the trial court that found that it had not taken place and ordered the appellant to act. Counsel also argued that the respondent admitted to his failure to bring a surveyor which corroborated the appellant's testimony that he could not demarcate the land because no surveyor was brought to demarcate it. He further contended that the evidence overwhelmingly proves that there was no demarcation or survey of the land as provided in the agreement. Counsel for the appellant did not make any submissions on ground 4 I two. On ground three counsel submitted that the learned Justices of Appeal erred in law by making inferences of fact without justilication. Counsel disagreed with the inference made by Kitumba, JA, (as she then was) in her lead judgment with which the other two Justices of Appeal agreed, where she stated that the appellant must have shown the respondent the plot. He contended that the inference was not supported by evidence on record since the sa-le agreement did not say that the appellant would show the respondent the plot but rather provided for demarcation which fact was proved not to have taken place. He further argued that the land in dispute was at Kisweka but the balance of the purchase price was paid at Kisenyi on 18/ 11196 which meant that payment of the balance was not at the site of the disputed land. Therefore in his view there was no way payment of the balance would be concurrent with the showing of the land to the respondent. 5 / Counsel further contended that inferences of fact must be made from proved primary facts. He argued the respond.ent averred that he was shown the land by the appellant in the presence of George Tibabasa, Mary Mbabaai and T\rsiime Joseph, a builder, but that none of the witnesses were called by the respondent to support his claim. Counsel argued that this meant that his evidence was as good as that of the appellant. Learned counsel further argued that the first appellate court was alive to its duty of re-evaluating the evidence and relied on the principles in Pandya v. R [1954 E.A. 3S5. He argued that the learned Judge considered the respondent's testimony which was to the effect that he knew the plot very well because it was near his home at Muhoro and that the appellant showed him the plot in the presence of other people. Counsel further submitted that when trespassers invaded the plot, the respondent requested the appellant to sue them and a suit was successfully fited by the appellant against the trespassers in Kagadi court. That the respondent brought building materials to the plot in the presence and with the knowledge of the appellant and that therefore by his conduct the appellant was estopped from denying that the land which the appellant sold to the respondent was known to the respondent in both size and location. Consideration of the grounds of appeal. I will consider the grounds of appeal in the same order they were presented and argued by learned counsel for the appellant. counsel 6 In reply counsel for the respondent submitted that the case of Jenkins v. Green (supra) is distinguishable and the principles laid down therein do not apply to the instant case. He contended that the survey was a matter of technicality and would only assist in the processing of the title for the part of the land the respondent had bought from the appellant. for the appellant did not make any submissions on ground two and, therefore, I will not consider that ground. I respectfully agree with learned counsel for the respondent that the case of Jenkins v. Green (supra) is distinguishable and its principles do not apply to the facts of the instant case. In Jenkins v. Green the issue was whether the contract for the sale of land was void for uncertaint5r and who between the vendor and purchaser had the power of selection of the 3Tacres which had not 7 Ground I The appellant's argument on this ground is that the learned Justices of Appeal erred in law not to hold that the legal principles expressed in Jenkins v. Green (supra) applied to the facts of this case; that both appellate courts below did not make a specific finding "that such survey as had been provided in the contract of sale had taken place" yet in the trial court the court found that such survey had not taken place. That the respondent himself admitted that he could not bring surveyors when there was confusion and that there was enough evidence to prove that there was no demarcation or survey of the land as was provided in the sale agreement. Contrary to the argument of counsel for the appellant, however, the sale agreement does not provide that it is the respondent's obligation to bring a surveyor to demarcate the plot. Instead the agreement puts the obligation of demarcation of the plot squarely on the appellant. been identified. However, in the instant case this was never the issue in the chief magistrate's court, in the High Court or in the Court of Appeal. In all these courts the main issue was whether or not the appellant showed the respondent the plot on which he built. Evidence was led by both the appellant and the respondent on this question. The trial court held that from the evidence adduced by both parties he was not satisfied that the plot was demarcated, and, therefore, the respondent had no right to build on the plot on which he chose to build. On appeal, however, the High Court judge, Zehurikize, J., after re- evaluating the evidence reversed the chief magistrate,s findings and agreed with the evidence of the respondent that the appellant showed the respondent the plot on which the latter built. The learned judge stated in his judgment: "There was no way the plaintiff could have constructed on a plot that did not form part of the land sold to him and the defendant kept quiet... My considered view and finding is that the plaintiff constructed his building on the land showed to him by the defendant and with his consent.,, The learned Justices of Appeal concurred with the findings of the High Court judge. Kitumba, JA, (as she then was) who wrote the lead judgment with which the other two other Justices of Appeal agreed stated: 8 " I agree with the 7"t appellate court tha,t as the sqle qgreement stipulated that the appellont uould. show the respondent the plot on pagment of the ba,lqnce and the bq.lance utas paid. on 78/71/7996 the appetlant must hante shoruun the respondent the plot though technicallg it was not surueged,." Since the issue in the three courts below was whether or not the appellant showed the respondent the plot on which he built, and the two appellate courts resolved the issue in favour of the respondent by finding that the appellant showed him the plot, the principles expressed in Jenkins v. Green clearly do not apply to the facts of this case. Moreover, the princip les laid down in Jenkins v. Green for which the Court of Appeal is being criticized by the appellant for not applying, were not raised in the trial court and in the two appellate courts below. The appellant is raising them here for the first time. While it may be proper for the appellant to raise questions of law in this court for the first time, he must show that there is sufficient evidence established to support the principles being raised. See the case of Connecticut Flre Insurance v. Kavanash (Sl [19921 A.C. 473 as cited in Warehousing & Forrrarding Co. v. Jafferali [1969] E.A. 385. The facts of the instant case and the issues which were framed by both parties for determination by the trial court do not support the principles being raised by the appellant in this court. 9 I I find no merit in this ground and it should fail. The appellant's third ground is that the learned Justices of Appeal erred in law to make inferences of fact without justification. Learned counsel for the appellant in his written submissions to this court argued that the sale agreement between the two parties did not say that the appellant would "show" the respondent the plot but rather provided for "demarcation" which was never done by the appellant. He further argued that payment of the balance on the purchase price by the respondent could not have been concurrent with the appellant showing the land to the respondent since the balance was paid at Mugumu Kisenyi whereas the land is located at Kisweka. In the court of Appeal the learned Justices agreed with the first appellate court (High Court) that the appellant showed the respondent the plot. In his re-evaluation of the evidence the learned High Court judge inferred from the evidence adduced in the tria_l court that the appellant showed the respondent the plot. I will quote fairly extensively what the learned Judge stated in his judgment. 10 Ground 3 "The appellant (plaintifff in his evidence testified that after paying the balance of shs. L2S.,OOO/= the respondent (defendantf showed him the piece of land he had sold to him in the presence of George Tibabara and the appellant's wife who is a sister to the respondent. Also present was a This view is buttressed by the sale agreement of lllLOl1996 which clearly stated that on payment of the balance the defendant would demarcate the plot sold to the plaintiff. The plaintiff paid the balance on 18/ l-L196.l do believe that although there was no surveyor to formally or technically demarcate off the plot that had been sold to the plaintiff the Defendant showed the plaintiff the land he had sold to him.., It should be noted that the plaintiff brought building materials and embarked on construction. According to the unchallenged evidence adduced by the plaintiff the defendant at first appeared to have supported the plaintiff in the construction. The Plaintiff testified that before he could complete the building some people entered some of the rooms - lockup shops. Since the defendant had not made the formal transfer of the plot to him, the plaintiff approached him and the Defendant instituted a case in Kagadi court against the trespassers. The defendant never challenged this evidence... 11 I builder by the name of Tusiime Joseph. The plaintiff knew the land very well because it was near his home at Muhoro. This evidence was not challenged either by way of cross-examination or by any evidence in rebuttal. I do believe the appellant that the respondent showed him the land he had sold to him. There was no way the Plaintiff could have constructed the building on a plot that did not form part of the land sold to him and the Defendant kept quiet and merely left the Plaintiff to be stopped by the Chief Administrative Oflicer..." The Court of Appeal agreed with the inference drawn by the Iirst appellate court that the appellant showed the respondent the plot the appellant sold him. It noted that the hrst appellate court was alive to its duty of re-evaluating the evidence and relied on the principles in Pandva v. R (supra). I cannot, therefore, agree with learned counsel for the appellant that the learned Justices of Appeal erred in law to draw an inference of fact without justification. The conduct of the appellant from the time the respondent put building materials on the plot to / 1,2 In agreeing with the first appellate court the learned Justices of Appeal considered arnong other things the following: 1. That the respondent knew the plot very well because it was near his home at Muhoro.2. That the plotwas shown to him in the presence of other people. 3. That when trespassers intruded upon his plot, he could not sue them as the plot had not yet been transferred to him so he requested the appellant to sue them for trespass which the appellant did. 4. That the respondent brought building materials to the plot in the presence and with the knowledge of the appellant. Learned counsel for the appellant argues that the sale agreement provided for udemarcation" and not "showing" of the plot to the respondent by the appellant. This may be so but it cannot be a plausible argument. If a seller showed a purchaser a plot he sold him after receiving the balance of the purchase price, and the purchaser constructed a building thereon, it would not be reasonable for the seller to argue that he has a right to cause the purchaser to vacate the plot on which he has built because the sale agreement provided for "demarcation" and not ,,showing,,. In re- evaluating the evidence the first appellate court found that there was sufficient evidence that the appellant showed the respondent the plot. This was also accepted by the Court of Appeal. The two appellate courts both stated that although the plot was not technically surveyed and demarcated this was only for the purpose of transferring the title into the name of the respondent but that otherwise the appellant showed the respondent the plot. I respectfully agree. In his evidence the appellant does not say that the respondent took more land than he sold him. And from the evidence on record it is clear that the complaint about the respondent's construction was mainly from the local authorities and the complaint from the appellant was belated. 13 the time he constructed the building to near completion, Iends credence to the respondent's testimony that the appellant showed him the plot. I find no merit in the third ground of appeal and it should also fail. I find no questions of law of great public or general importance that arise from this appeal and, in my view, it did not merit a third appeal to this court. I would dismiss this appeal with costs to the respondent here and in the courts below. rh Dated at Kampala this ...20L2 I Jotham mwesrrye JUSTICE OF THE SUPREME COURT ),4 -\ a.y or..il.*****r&r.-l I THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA (CORAM: ODOKI, C.J, TUMWESIGYE AND TSEKOOKO, KATUREEBE, KISAAKYE, JJ. S.C) CIVIL APPEAL NO 19 OF 2O1O BETWEEN HENRY KASAMBA APPELLANT AND YAKOBA RUTALIHAMWE RESPONDENT [Appeal from the decision of the Court of Appeal at Kampala (Engwau, Ktumba and Nshimye, JJA) dated 14th Juty 20Og in Civil Appeal No o5 of 20081 JUDGMENT OF ODOKI, CJ I have had the benefit of reading in draft the judgment of my learned brother, Tumwesigye JSC, and I agree with him that this appeal should be dismissed with costs to the respondent in this Court and in the Courts below. As the other members of the Court also agree, dismissed with orders proposed by the learned Supreme Court. this appeal is Justice of the Dat Kampala this .......1? B CHIEF JUSTICE . day of d..9*.h" .2012 il" 5 l0 20 THE REPUBLIG OF UGAI{DA N mE SUPREME COURI OF IJCTAI\IDA AT I(AITIPAIA [Coram: Odoki, CJ., Tsekaol<o, Kotureebe, Turrwesigte & KkaalEe, JJSC.J Ciwl Appeal No, 19 of 2010 kwen 15 HENRY KASAMBA YAKOBO RUTALT}IAMWE {Appl ffon the dxi.sioa ot tha hut of ApWl at K*npla (tuSwau, I{ituntu & Nslzimte, JJA ) datd 14 JulJl W itz Ciuil Appl No- 6 otffi8. j 30 I agree with his conclusions that the appeal does not concern a rnatter of law of great public or general irnportance nor do I consider ttrat the appeaf has any merit. The appeal should be dismissed with costs to the respondent here and in the three corrrts below. nerivened at r{a.rnpala this ...J.e.t.. oay ord.*':.*^bOrz. 35 E< J.W.N. Justice of the Supreme Court. PC.l ,{ I APPELI.ANT Aril RESPONDENT JUDGMENT OF J.W.N. TSEKOOKO. JSC. 25 I have had the advantage of reading in draft the judgrnent of rny Iearned brother, ttre EIon. IUr. Justice T\rrnwesigze, JSC., which he has just delivered. ( ) L [Appeal from the decision of the Court of Appeal at Kampala (Enguau, Kitumba & Nshimye, JJA) dated l4tt,Julg 2OO9 in Ciuil Appeal No. 05 of 2OO8l. JUDGMENT OF I(ATUREEBE, JSC. I agree with the judgment of my learned brother Tumwesigre, JSC., that this appeal has no merit and ought to be dismissed with costs in this Court and the Courts below. I wish to observe that this was a third appeal, having originated from a decision of the Chief Magistrate. It was brought under section 6(21 of the Judicature Act and Rule 39(1)(a) of the Supreme Court Rules. Under Section 6(21 of the Judicature Act, a third appeal may be lodged to the Supreme Court "on the certlficate of the Cour-t. of Appeal tha:t the appeal concertts a matter oJ law of great publlc or general lmportance, or lf 1 REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT I(AITIPALA (CORAM: ODOKI, C.J., TSEKOOKO; KATUREEBE; TUMWESIGYE; KISAAKYE, JJ.SCI CML APPEAL NO: 19 OF 2O1O BETWEEN HENRY I(ASAMBA: : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : APPELLANT AND YOKOBO RUTALIHAMWE : : : : : : : : : : :: : : : : : : : : : : : : : : : : RESPONDENT the Supreme Court cottsiders, in its overall dutg to see thqt Justlce ls done, that the appeal should be heard.' It would appear to me that the Court of Appeal would itself have heard the parties on the point of law in issue and determined that it is of great public or general importance. The Court of Appeal would then proceed to issue the certification. In this case first ground of appeal states as follows:- "The leqrtted Justlces of Appedl erred in law not to applg the legal prlnclples pronounced in .IEtrIKIJVS -Vs. GREI'IV 54 D.R 772' There is nothing on record that this case of Jenkins was ever cited before their Lordships in the Court of Appeal. Indeed Mr.Tibesigwa, Counsel for the Appellant admitted to us that it was never cited, never submitted upon, and never decided upon. I think it is rather unfair to the Court for counsel to have framed this ground of appeal the way they did. They ought, in my view, to have stated the point of law that arises and which the lower court failed to decide on, or decided wrongly. The principles laid down in Jenkins were not brought before the court, so as to criticize the court of failure to apply them. 2 I It is in this Court that counsel for the appellant cited the case of S.L. PATEL & AIVOR -Vs- DHANA SING [1962] D.A 32 which in turn cites the Jenkins case (supra). I do not think this is the proper way counsel should have proceeded. As my brother Tumwesigre, JSC., has stated in his judgment, the Jenkins case, 7 ^ ti I ri ) clearly, is distinguishable from this appeal for the reasons he has glven. Accordingly I concur that the appeal has no merit and ought to fail Dated at Kampala this.......l aay ortlr.-.-.:bdrz. PzZE-/-.- Bart M. Katureebe JUSTICE OF'THE SUPREME COURT 3 rr. - ,\ a IN THI.] STJPITEME COUITT OF U(;ANI)A AT KAMPAI,A (CORAM: ODOKI, C.J., TSEKOOKO, KATURIIEBIT, T'UMWESIGYIi ANI) KISAAKYIJ, .IJ.S.C.) ctvil, Al,l,EAL No. 19 ()F 2010 li[.r'wtil.,N IIIiNIIY KASAMI}A:::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPI,]I,I,AN'I' ANI) YAKOI!0 RLI'l'Al,lll;\MWE::::::::::::::::::::i:;::::::::::::::::::::::::::: IIUSPONDIIN'l' lAppealJrom lhe decisiotr of lhe Courl oJ'lppeul ol Kampulrt (llngnnu, Kitumhu tttd Nshim),c, JJ.A) dutel I4th Jull'2009 in Civil lppeul No.05 of 201)81 .f t-[x;MIiN't' ()t.' t)ll. tt. KtsAAKYri ,ts(' lhavc had thc bcncllt olrcading in draft thc Judgment ol'my lcarned brother. Justicc 'l'umwesigye. JSC. I concur with him that this appcal has no mcrit and that it should bc dismisscd with costs in this court and in thc courts below. Dated al Kampala ttris...l&tday of ... 2012. \..)c." ( DR. Es't'ilUR KISAAKYU .IUSI'ICI.] OF''I'I I E ST]PRI!MF] COU R'I' / 't't I ti Rt,],U llt,lc o[' tJ(;AN l)A