Busulwa v Uganda (Criminal Application 14 of 2020) [2021] UGSC 11 (20 December 2021)

### THE REPUBLIC OF UGANDA

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### IN THE SUPREME COURT OF UGANDA AT KAMPALA

(CORAM: OWINY-DOLLO CJ, MUGAMBA, MUHANGUZI, TUHAISE, CHIBITA, JJSC.)

#### CRIMINAL APPLICATION NO. 14 OF 2020

# (Arising out of Criminal Appeal No.75 of 2015) **BETWEEN**

BUSULWA BULASIO ::::::::::::::::::::::::::::::::::::

**UGANDA :::::::::::::::::::::::::::::::::::**

## [An Application brought under Rules 2(2), 5, 38(1) (b) of the Rules of the Supreme Court.

### **RULING OF THE COURT**

This application was brought under rules $2(2)$ , 5, $38(1)$ (b) of the Rules of this Court seeking leave to appeal, to enable the applicant's third appeal in Criminal Appeal No.75 of 2015 to be heard and determined by this court.

The application is supported by an affidavit sworn by the applicant on 29<sup>th</sup> October 2020. The respondent did not file an affidavit in reply.

We find it worthwhile recording the grounds of the application. They appear as follows:

$\mathbf{1}$

1) The matter before court raises a question or questions of law of great public or general importance which would be proper for the court to review in order to see that justice is done. i.e.

a) Whether an undated agreement of sale of land constitutes a valid and enforceable legal document.

(b) Whether an undated application for a **Special** Certificate of title that is not accompanied by a Statutory Declaration constitutes a valid legal document within the meaning of section 70 of the Registration of Titles Act.

(c) Whether an undated application to be registered on a certificate of title as an administrator of a deceased person's estate constitutes a valid document in law within the meaning of section 134 of the Registration of Titles Act.

(d) Whether undated documents are admissible in evidence as exhibits and whether they can be relied on to prove a criminal charge.

In the alternative but without prejudice to the above

(e) What is the legal efficacy of an undated document or what is the legal effect of not dating a document?

(f) Is an undated document admissible in evidence, if so, can it form a basis of a conviction in a criminal charge?

$\overline{2}$

That this being a criminal matter involving the $2)$ applicant carrying a criminal record that may prevent him from enjoying some privileges like traveling abroad or working in certain areas constitutes a matter of general and public importance.

That this is the $2^{nd}$ time the applicant is exercising $3)$ his right of appeal.

That this matter involves family and land matters $4)$ that are generally matters of great public or general importance.

That the court of appeal has refused to grant two of $$ the applicant's applications for Certificate $\mathbf{a}$ $of$ Importance.

It is in the interest of justice that the application is $6)$ granted.

Briefly, the background to this application is that the applicant was tried by a Magistrate Grade 1 at Buganda Road Chief Magistrates Court, for the offences of intermeddling with the estate of a deceased person contrary to section $11$ (1) of the Administrator General's Act and fraud contrary to section 190(1) of the Registration of Titles Act respectively. He was acquitted on the $10^{th}$ June, 2010.

$\mathfrak{Z}$

The DPP was dissatisfied with that decision and appealed to the High Court. The High Court overturned the decision of the Grade 1 Magistrate and convicted the applicant. He was sentenced to 30 months' imprisonment on accordingly $30/01/12$ .

Aggrieved by the decision of the High Court, the applicant appealed to the Court of Appeal against both conviction and sentence. The Court of Appeal upheld the decision of the High Court. The applicant was dissatisfied with the decision of the Court of Appeal and proceeded to file Criminal Appeal No. 75 of 2015 in the Supreme Court. Hence this application for leave to validate his third appeal.

At the hearing of the application, Mr. Andrew Ssebugwawo appeared for the applicants whereas Ms. Anna Kabajungu represented the respondent.

The applicant filed his written submissions which he adopted at the hearing. The respondent did file written submissions. The court will not consider them because she did not file an affidavit in reply. Submissions are based on pleadings which in this case comprise of affidavits. Since the respondent chose not to file any affidavit in reply, we see no need to consider her submissions.

In his submission, learned counsel for the applicant relied on the grounds of the application which we have reproduced earlier in this ruling. He submitted that the said grounds raise

important questions of law of great public and general importance which merit resolution by this court.

Counsel submitted that the applicant was convicted on the allegation of having signed documents that were used to intermeddle in the estate of deceased Aaron Sewakiryanga. He added that the documents included a sale agreement, application for a special title and application to be registered on the title deed. Counsel submitted that the applicant's signature was forged and put on the said documents.

According to counsel, the said documents were not dated and as such they could not constitute valid documents in law.

Counsel argued that given that this is a criminal matter, it has far-reaching consequences on the applicant because he may be prevented from enjoying privileges like traveling abroad or working in certain areas.

Counsel submitted that the case involves family and land matters that are general matters of great public or general importance.

# Consideration of the Application.

We have carefully perused the record of the application and the submissions thereto. The applicant stated that twice he filed applications at the Court of Appeal for leave to appeal but both applications were declined. Remarkably counsel did not attach a copy of the reference rulings to assist this court in the determination of this application. Needless to say, attachment

of that ruling is compulsory under Rule 43(4) of the Rules of this Court.

Rule 43(4) states as follows: $\frac{1}{2}$

(4) Every application to the court for leave to appeal shall be accompanied by a copy of the decision against which it is desired to appeal and, where an application has been made to the Court of Appeal for leave to appeal and the application has been refused, by a copy of the order of the Court of Appeal refusing that application. Underlining for our emphasis.

In this application, the court is required to determine whether or not the applicant has or has not raised such matters as are contemplated by Section 6 (2) of the Judicature Act or Rule 38(1) (b) of the Judicature (Supreme Court) Rules.

Needless to say, Section $6(2)$ of the Judicature Act deals with appeals to the Supreme Court in civil matters. It provides

"Where an appeal emanates from a judgment or order of a chief magistrate or a magistrate grade I in the exercise of his or her original jurisdiction, but not including an interlocutory matter, a party aggrieved may lodge a third appeal to the Supreme Court on the certificate of the Court of Appeal that the appeal concerns a matter of law of great public or general importance, or if the Supreme Court considers, in its overall duty to see that justice is done, that the appeal should be heard." The emphasis is added.

$\mathbf{6}$ Rule 38(1) (b) of the Rules of this court provides a remedy for $\frac{1}{2}$ the applicant whose application for a Certificate has been refused by the Court of Appeal in the following terms:

"If the Court of Appeal refuses to grant a certificate as referred to in paragraph (a) of this sub-rule, an application may be lodged by notice of motion in the court within fourteen days after the refusal to grant the certificate by the Court of Appeal for leave to appeal to the court on the ground that the intended appeal raises one or more matters of public or general importance which would be proper for the court to review in order to see that justice **is done.**" The emphasis is added.

$\boldsymbol{\nabla}$ In **Bitamisi** Rwabuganda, Supreme Court **Civil Application No.4 of 2015**, this Court stated as follows:

"It suffices to note at this stage that in its determination of an application for a certificate to lodge a third appeal to this Court, the Court of Appeal is guided by only two factors namely: (i) whether the intended appeal to the Supreme Court concerns a matter of law of great Public importance and (ii) whether the intended appeal raises a matter of law of general importance.

However, this Court is not as restricted as the Court of Appeal to only these two instances. Under Section $6$ (2) of the Judicature Act, this Court can also grant leave, if in its overall duty to see that justice is done, it is of the view that the appeal should be heard.

$\overline{7}$

This was emphasized by this Court in the case of Namuddu Christine vs. Uganda, Supreme Court Civil Application No. 03 of 1999 where Wambuzi, CJ observed as follows:

Under subsection (5) of S.6, this Court will grant leave if the court, in its overall duty to see that justice is done, considers that the appeal should be heard. In other words, this court is not bound by the restrictions placed on the Court of Appeal, when that court is considering an application for a certificate. The Court of Appeal grants a certificate where it is satisfied: (a) that the matter raises $a$ question or questions of law of great public importance; or $(b)$ that the matter raises a question or questions of law of general importance.

On the other hand, this Court will grant leave if it considers that in order to do justice, the appeal should be heard. Anything relevant to doing justice will be considered including questions of law of general or public importance.

It appears to us that in deciding whether or not to grant leave we are not restricted to questions of law like the Court of Appeal."

It is trite law that the applicant has to show to the Court the points of law of considerable public or general importance and some novelty in order to succeed in an application of this nature.

Next we consider the applicant's grounds in support of the application. They are included in paragraph 6 of his affidavit in support of the application.

We note with great concern that the first ground, in summary, relates to undated documents and counsel in his submission stated that the applicant was convicted on these undated documents.

We have read the judgment in Criminal Appeal No.36 of 2012. which the applicant filed at the Court of Appeal. Notably the issue of the undated document was not addressed by the Court of Appeal because it was never raised by the applicant in his grounds.

On the issue of fraud, the Court of Appeal held as follows:

"In addition to that evidence the judge observed that Kiwalabye and the appellant knew they had not been appointed administrators of the estate of Sewakiryanga. There was no record or file of either Kyewalabye or the appellant seeking letters of administration for the estate of their father. By signing a false representation that he was appointed as an administrator to the estate of his father which representation he knew was false, that was a fraudulent act on his part. The judge found that there was evidence that the appellant knew he was not a legal representative of his father. He knowingly pretended to be an administrator of the estate and sold part of it. We do find that the first appellate court properly re-evaluated

the evidence on the count of fraud and reached a justified conclusion that the appellant committed the offence and convicted him on the bases of available evidence."

Upon available evidence court found that the applicant and his late brother Kiwalabye forged Letters of Administration in respect of the estate of their late father Aaron Sewakiryanga. Court found that they used the same to acquire a special Certificate of Title which they used to sell 1.8 acres of the land to Odong Wilberforce and Charles Owere.

It was found that the matter involved fraud initiated by the applicant and as such the said document could not be dated as it was a forgery. That was the finding of the appellate judge which was confirmed by the Court of Appeal.

We have also looked at the applicant's memoranda of appeal attached to his affidavit labeled as "A" and "B". As stated earlier in this ruling, the applicant's grounds clearly are new as they were not raised at the Court of Appeal.

Consequently, we find that no justice will be served by allowing a third appeal to this court. Suffice it to say that there is no question of public and general importance warranting the grant of a certificate to allow a third appeal.

Dated at Kampala the...20........day of ...................................

$10$


HON. JUSTICE ALFONSE . C. OWINY-DOLLO, CJ

## **CHIEF JUSTICE**

$\cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cd$

HON. JUSTICE PAUL MUGAMBA JUSTICE OF THE SUPREME COURT.

HON. JUSTICE EZEKIEL MUHANGUZI JUSTICE OF THE SUPREME COURT.


HON. JUSTICE PERCY NIGHT TUHAISE JUSTICE OF THE SUPREME COURT.

Om P

HON. JUSTICE MIKE CHIBITA JUSTICE OF THE SUPREME COURT.

Delive.

by The Registran 20/12/21