Aziz v Maruku (Civil Appeal 4 of 2002) [2003] UGSC 47 (11 March 2003)

## THE REPUBLIC OF UGANDA

## IN THE SUPREME COURT OF UGANDA A,T MENGO

#### (CORAM: ODOK|, CJ, ODER, KANYEIHAMBA, JJSC) TSEKOOKO, KAROKORA,

## CIVIL APPEAL NO. 4 OF 2OO2

#### BETWEEN

## FAROOK AZ|Z (ADM|N|STRATOR OF ESTATE OF SALIMA KABASINGO) .,...,,... APPELLANT

#### AND

ABDALLA ABDU MARUKU RESPONDENT

(Appeal from the judgment and order of the Court of Appeal of t)ganda at Kampala (Mpagi-Bahigeine, Engwau and Kitumba, JJA) dated 11 April 2001, in Civil Appeal No. 39 of 2000)

### JUDGMENT OF ODOKI, CJ

I

I

This is a third appeal from the decision of the Court of Appeal whereby the appellant's appeal was dismissed with costs.

The background of this case is that the appellant F arouk Aziz is the son and administrator of the estate of Salima Kabasingo. The respondent Abdalla Abdu Makuru, is the son of the late Sabina Kabasinguzi. Salima and Sabina were sisters. Sabina died in 1991 and her son the respondent applied for letters of admrnistration to her estate including the disputed Kibanja situate at Butangwa village, Karambi sub-county, in Kabarole District, in the Chief Magistrates' Court at Fort Portal. Sallma lodged a caveat on the ground that the Kibanja in question was hers because her late sister Sabina, had settled cn the Kibanja with her permission.

The respondent claimed that his mother Sabina, had acquired the said Kibanja from one Kikukule, a chief and an agent of the King of Toro Kingdom in 1940, and lived on the land tlll herdeath. She had developed the Kibanja by building a house thereon, planted some banana plantation, avacado trees, eucalyptus trees and even paid busulu (rent) for the land. The respondent who was 43 years old at the time of the trial informed court that he had lived on the land since childhood and had built a house on it. His late mother Sabina, brothers and other relatives had been buried on it, whereas Salima used to bury her people in a different place at Nyabukura village and did not have any developments on the land.

Salima who was alive at the time of the hearing of the case claimed that she had on the other hand allowed her sister Sablna to setile on the land, and had built a grass thatched house which had been demolished. She also claimed to have acquired the Kibanja from Kikukule the area chief, and had planted banana plantation and other crops on the land.

The learned Chief Magistrate decided in favour of Salima, the appellant,s, mother and ordered the respondent to vacate the land. On appeal to the High Court by the respondent, it was held that since the respondent and his mother had lived on the Kibanja for a long time of over 40 years, the principle of prescription applied to extinguish the rights of the appellant. The High Court allowed the appeal and ordered the caveat to be removed.

The appellant appealed to the Court of Appeal which dismissed the appeal holding that the applicability of the doctrine of res judicata had not been proved, and secondly that on the evidence on record, the respondent had established a better claim to the Kibanja, than the appellantp.

ln this Court, the appellant has appealed on two grounds framed as follows

- That their Lordships, the Justices of Appeal, wrongly appraised the inferences of fact drawn by the trial court thereby coming to wrong conclusions: 1 - (a) That they were unable to ascertain the parties who had previously appeared before RC Courts nor the subject matter which was in dispute and therefore the doctrine of res judicata did not apply. - (b) That the respondent's mother acquired the disputed kibanja in her own right and she did not setfle on the same with the permission of her sister, the mother of the appellant. - a That their Lordships, the Justices of Appeal were in error in the Courts below when they awarded costs when there were no appeals against the Orders of the lower courts that parties bear their own costs.

This appeal is brought under section 7(2) of the Judicature Statute <sup>1996</sup> which provides,

"Where an appeal emanates from the judgment or order of a Chief Magistrate or Grade 1 in exercise of his or her originat jurisdiction, hut not including an interlocutory matter, a party aggrieved may lodge a third appeal to the Supreme Court on a certificate of the Court of Appeal that the appeal concerns <sup>a</sup> matter or matters of great public or general importance, or if the Supreme Court considers, in its overall duty to see that justice is done, thatthe appeal should be heard."

The purpose of this provision is to limit the right to lodge a third appeal to only cases where questions of great public or general importance which have far reaching consequences on the society and the general development of the law are involved. lt is not sufficient that the grounds of objection raise questions of law, or that the parties have consented to the granting of <sup>a</sup> certificate to the appellant for leave to appeal. The appellant must state the

-1

matter of great public or general importance, and the Court of Appeal must consider the matter within the framework and objectives of the law.

ln order for the court to grant the certificate, it must be satisfied that the matter merits consideration of the Supreme court. ln the present case, the matter of great or public importance was not stated by counsel for the appellant, nor did the certificate by the Court of Appeal state the matter. ln my view, it is necessary for the court of Appeal to state the actual matter or matters in the certificate for consideration by this Court, on a third appeal.

ln my opinion, the two grounds of appeal do not raise any matter of great public or general importance. They raise ordinary questions of law namely whether there was a failure to re-evaluate the evidence, whether the doctrine of res judicata was applicable and whether the order for costs in the lower courts was erroneously made. This appeal would therefore have been incompetent and would have been struck out. However, this point was not raised at the trial, and we allowed the hearing of the appeal to proceed on the merits. I shall therefore deal with the merits of the appeal.

ln his submissions on ground one, Mr. Babigumira, learned counsel for the aipellant, contended that the issue of res judicata was raised before the Chief Magistrate Court, but the Court of Appeal held that it could not ascertain the parties in the Local Council Courts, as well as the subject matter. lt was counsel's submission that there was ample evidence to support the plea of res judicata from the caveat which gave rise to the suit, and the admission by the respondent that there was a pending litigation; Mr. Babigumira contended that it had always been the case for the appellant that she acquired the land from Omukama's agent.

On the other hand Mr Abeine, for the respondent, submitted that his client had argued before the Court of Appeal that there was no record of proceedings from the Local Council Courts, although the information available showed that there was an appeal pending before the Chief Magistrate. Mr. Abeine stated

l

from the Bar that the appeal was dismissed for lack of /ocus standi before the case for removal of caveat was disposed.; I

/

The question of res judicata was first raised in an affidavit sworn by Salima, the appellant's late mother, dated 20th April 1995, in support of her caveat dated 21"rJune 1995. ln paragraphs 5,6, and 7, she stated,

- That I have been disputing Abdala Abdu Makuru,s claim to the said Kibanja and that the said matter has been a subject of litigation in RC Courts and in the Chief Magistrates Court. 5 - That the litigation which remains unresolved in the Chief Magistrates Court is Civil Appeal MFP 71 of 1993. 6 - That Abdalla Abdu Makuru is the appellant in the above litigation while I am the respondent." 7

ln her written statement of defence, the appellant's mother Salima, did not specifically plead res judicata, but relied on her affidavit. Paragraph 6 of her written statement of defence stated,

# "6. Paragraphs 5, 6 and 7 of the plaint are contested and the defendant shall aver that the reasons for the caveat are contained in the affidavit which accompanied it,,'

ln her evidence in Court, Salima never testified about the previous litigation in LC Courts, nor did any of her three witnesses. But the respondent Makuru admitted in cross-examination that he had filed an appeal in the Chief Magistrates Court related to the land at Butangwa.

The learned Chief Magistrate did not consider the issue of res judicata, although he found in favour of the appellant's mother Salima. The learned judge of the High Court also did not address the question ot res judicata as il was not seriously raised by the respondent, whose counsel stated, in his written submissions,

"On page 6 of proceedings seems to indicate that there was <sup>a</sup> dispute with the same piece of land that was subject of an appeal."

The question of res judicata was raised by the appellant in the Court of Appeal and considered by that Court. ln the lead judgment, Engwau JA, with whom other Justices of Appeal agreed, .pdconcluded,

"l am unable to ascertain the parties who had previously appeared before the RC Courts nor am I able to ascertain the subject matter which was in dispute. This is because the record of proceedings before RC Courfs is missing. lt is therefore futile to argue that the doctrine of res judicata applies in the present case.,,

That conclusion by the Court of Appeal which I am unable to fault clearly revealed the main problem with the appellant's case. The plea of res judicata must not only be pleaded, it must be proved. The appellant failed to establish that the doctrine of res judicata applied to the case. lt was not sufficient merely to plead the defence of res judicata. without evidence to substantiate it. The proceedings or judgments of the Local Council Courts should have been produced to establish the parties, and the subject matter of the dispute before them and the decisions of the Courts. The oral evidence adduced in Court was insufficient to establish the plea. As Crabbe JA said in the case of Mandavia v. Singh (1965) EA. 118 al page 121 ,

"EgZiydtSe@ on the other hand is a matter of pleadings and can be raised only at the trial, The principles underlying the doctrine of res iudicata are "lnterest rei publicae ut sit firus litium" and "Nemo Debet bin rexari pro eadem causa,"

The Court before which the plea is raised is not deprived of jurisdiction to hear the case; the court only declines to exercise its jurisdiction to allow tlie parties to relitigate a matter when it is satisfied that the same parties are suing in the same capacity and that the issue before it is the sarne as that alleged to have been the subject of adjudication in previous proceedings." I am therefore of the opinion that the Court of Appeal came to the right conclusion, after reviewing the evidence on record, that the plea of res judicata had not been established.

As regards the question of fact as to which of the parties had proved a better claim to the drsputed land, the two lower courts, the High Court and the Court of Appeal, came to the conclusion that the respondent had proved a better claim to the land than the appellant. Both courts adequately rd.valuated the evidence and came to the same conclusion. I am unable to distJlb these two concurrent findings of fact by the two lower Courts. Accordingly I find no merit in the first ground of appeal which should fail.

On the second ground of appeal, Mr. Babigumira learned counsel for the appellant submitted that since the learned judge of the High Court made no order as to costs, and there was no cross-appeal on the costs, the Court of Appeal should have awarded the respondent costs in the Court of Appeal alone.

ln the High Court, Mwangusha J. made the following order for costs:

### "l make no order as to costs. "

As there was no cross-appeal in the Court of Appeal against that order for costs, I accept the submission of learned counsel for the appellant that the order awarding costs to the respondent was erroneous. Ground two of appeal should therefore succeed.

ln the result I would allow this appeal rn part. I would confirm the decision of the Court of Appeal save for the Jrder for costs. I would set aside the order for costs against the appellant. I would substitute thereof an order fot costs in

the Court of Appeal alone. I would award the appellant costs in this Court, and in the Court of Appeal.

Dated at Mengo this ....................................

B J Odoki **CHIEF JUSTICE**

$22$

### THE REPUBLIC OF UGANDA

#### IN THE SUPREME COURT OF UGANDA

#### AT MENGO

#### ODOKI, CJ, ODER, TSEKOOKO KAROKORA AND (CORAM: KANYEIHAMBA, JJ. S. C.)

CIVIL APPEAL NO. 4 OF 2002

BETWEEN

### FAROUK AZIZ (ADMINISTRATOR OF THE ESTATE OF SALIMA KABASINGO): :: :: :: APPELLANT

$A$ $N$ $D$

ABDALLA ABDU MARUKU:

$:: :: ::$ RESPONDENT

#### JUDGMENT OF ODER, JSC

I have had the benefit of reading in draft the judgment of Hon. Justice Odoki, CJ., and I agree with his reasoning and conclusion that the appeal should partly succeed. I also agree with the orders proposed by him.

da of $M$ 2003. Dated at Mengo this

A. H. O. ODER JUSTICE OF THE SUPREME COURT

### REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT MENGO

(CORUM, ODOKI, CJ, ORDER, TSEKOOKO, KAROKORA AND KANYEIHAMBA, JJSC,)

## CIVTL APPEAL NO.4. OF 2OOO

### BETWEEN

APPELLANT FAROOK A212 (ADMINISTRATOR OF ESTATE OF SALIMA KABASINGO)

AND

ABDALLA ABDU MARUKU.----.----\_---\_-\_ -.. RESPONDENT

lAppeal from the ludgment of ihe Court of Appeal at Kampala (Mpagt-Bahigeine' Engwau and Kitumba, JJA) dated 11th April,2001 , in Civil Appeal No.39 of 2000.)

JUDGMENT OF TSEKOOKO JSC

<sup>I</sup>have read in draft the judgment prepared by My Lord the chief Justice I agree with his reasoning and conclusions that the appeal be allowed in part. lconcur in the orders proposed bY him.

Delrvered at Mengo th il/L ,s ------- n03 -day of

TSEKOOKO JUSTIC E SIJPREME COURT,

### THE REPUBLIC OF UGANDA

# IN THE SUPREME COURT OF UGANDA

# **AT MENGO**

TSEKOOKO. MULENGA. (CORAM: **ODOKI** $C. J.$ ODER. KANYEIHAMBA, JJ,SC)

### CIVIL APPEAL NO. 4 OF 2002

### **BETWEEN**

**FAROOK AZIZ** (Administrator of estates of Salim Kabasingo) ::::APPELLANT VS. ABDALLA ABDU MARUKU :::::::::::::::::::::::::::::::::::

(Appeal from the judgment of the Court of Appeal at Kampala, (Mpagi-Bahigeine, Engwau, Kitumba, JJA). Dated 11<sup>th</sup> April, 2001 in Civil Appeal No. 39 of 2000.

### JUDGMENT OF KANYEIHAMBA, JSC.

I have had the benefit of reading in draft, the judgment of my Lord Odoki, the Chief Justice, and I agree that this appeal partially succeeds only with regard to ground 2. I also agree with the orders, the Lord Chief Justice has proposed.

$1112$ G. W. Kanveihamba

JUSTICE OF THE SUPREME COURT

# THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT MENGO

# (CORAM: ODOKI, CJ, ODER, TSEKOOKO, KAROKORA, KANYEIHAMBA, JJJSC)

#### CIVIL APPEAL NO. 4 OF 2002

#### **BETWEEN**

FAROUK AZIZ (ADMINISTRATOR OF THE ESTATE OF SALIMA KABASINGO} .................................... AND ...................................... ABDALLA ABDU MARUKU

> (Appeal from the judgment and Order of the Court of Appeal of Uganda at Kampala (Mpagi-Bahigeine, Engwau and Kitumba, JJA0 dated 11<sup>th</sup> April, 2001, in Civil Appeal No. 39 of 2000)

### JUDGEMENT OF KAROKORA, JSC.

I have had the advantage of reading in draft the judgment prepared by Hon. Justice Odoki (CJ) and agree with him that the appeal should partially succeed. I also agree with the orders he has proposed.

1th Day of March, 2003. Dated at Mengo this .....

$\sim$ $\iota$

A. N. Karokora, Justice of the Supreme Court.