Farouk Aziz v Abdalla Abdu Mukuru (Civil Appeal 39 of 2000) [2001] UGCA 39 (5 September 2001)

# THE REPUBLIC OF UGAI{DA IN THE COURT OF APPEAL OF UGANDA HOLDEN AT I{AMPALA

CORAM:HON. LADY JUSTICE A. E. N. MPAGI-BAHIGEINE,JA. HON. JUSTICE S. G ENGWAU, JA. HON. LADY JUSTICE C. N. B KITUMBA, JA.

### CIVIL APPEAL NO. 39 OF 2OOO

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## FAROUK AZIZ : :zz ;:t:: : : : : : : : : : :: : : : : : : : : : : : : : : : : : ; APPELLANT Versus ABDALLA ABDU MAKURU : : : : : :: : :: : :: : : : : : : : : :RESPONDENT.

(Appeal against the judgment and orders of the High Court (Mwangusya, J) at Fortportal in Civil Appeal N0. DR. MFP.6 of 1999).

## JUDGMENT OF S. G. ENGWAU JA.

This is a second appeal from the judgment and orders of the High Court at FortPortal in H. C. C. A. NO. DR. MFp. 6 of 1999, dated |4.4.2OOO in which a caveat that had been lodged by the appellant against the application for Letters of Administration by the respondent was removed.

The brief background to this case is that Sabina Kabasinguzi and Salima Kabasingo (both deceased) were sisters. Both of them died without having had any problem concerning the land in dispute. The appellant, Farouk Aziz, is the son and an administrator of the estate of Salima Kabasingo and the respondent, Abdalla Abdu Makuru, is the son of late Sabina Kabasinguzi. Sabina died in 1991 and her son, the respondent, applied for Letters of Administration into her estate including a kibanja situate at Butangwa village, Karambi Sub- County in Kabarole District in the Chief Magistrate's Court. Salima Kabasingo lodged a caveat on the ground that the kibanja in question was hers. Her late sister, Sabina Kabasinguzi, according to Salima, settled on the said kibanja with her (Salima's) permission.

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respondent claimed that his mother, Sabina The Kabasinguzi, 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 until her death. She had developed the kibanja by building a house thereon, planted some banana plantation, avocado trees, eucalyptus trees and even paid busulu for the said land. The respondent who was 43 years old at the trial, informed court that he has lived on the land since childhood and has built a house also thereon. His mother, Sabina, brothers and other relatives were buried

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on the disputed land. As for Salima Kabasingo, she used to bury her people in a different place at Nyabukura village and she did not have any development on the said land.

At the trial, Salima Kabasingo, conceded that she did not have a house on the disputed tand. The grass- thatched house which she had build got demolished, but claimed to have planted banana plantation and other trees on the land. She also claimed to have acquired the kibanja in question l0 from chief Kikukule of the area. With her permission, she allowed her sister, Sabina Kabasinguzi, to settle on the land. She therefore, had no right of claim over the same. Similarly, Sabina's son, the respondent, has no better claim over the same land. The learned Chief Magistrate decided in favour of Salima Kabasingo. On appeal, however, the High Court reversed that decision in favour of the respondent on the principle of prescription that Sabina Kabasinguzi and her son, the respondent, had lived on the kibanja for well over 40 years. The respondent who was over 40 years old had lived 20 on the disputed land since birth.

This second appeal is on 2 grounds, namely: -

1. "The learned Trlal Judge erred in law and fact when he failed to consider the fact that the

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learned Trial magistrate had heard a matter that was resJudicata.

The learned Trial Judge erred in law and fact when, as the l't Appellant Court, he failed to properly re-evaluate the evidence and thereby came to a wrong conclusion that the land in question was part of the estate of the Respondent's mother." 2

Mr. Richard Mwebembezi, learned Counsel for the appellant, argued the above grounds of appeal together. He contended that as the first appellate court did not exercise properly its power to evaluate the evidence on record and thereby came to a wrong decision, this second appellate court can still re-evaluate the evidence by virtue of the provisions of rule 31 (2) of the Rules of this court which state:

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31 (2). " On any second appeal from a decision of the High Court acting in the exercise of its appellate jurisdiction, the Court shall have power to appraise the inferences of fact drawn by the trail court, but shall not have

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#### discretion evidence." to hear additional

In Counsel's view, the appeal to the High Court was for the removal of the caveat. The kibanja in question had been a subject of litigation in R. C. courts that culminated in the Chief magistrate's Court by way of appeal vide Civit Appeal NO. MFP.71 of 1993. l,earned Counsel argued, therefore, that had the first appellate judge appraised properly the evidence l0 on record, he would have found that the trial Chief Magistrate had no original jurisdiction to try this matter when the same subject matter was pending before him on appeal. The learned Chief magistrate could hear this matter only by way of appeal that was pending in his court. He was barred to entertain the same matter by way of another fresh suit. In support of this argument, Mr. Mwebembezi relied on the doctrine of resjudicata envisaged in the provisions of section 34 of the Resistance Committees (Judicial powers) Statute N0. 1 of 1988 and section 7 of the Civil procedure Act 20 respectively which provide as follows: -

> 34. " No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previous instituted suit or proceeding between the same parties, or between parties

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under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in any other court having original or appellate jurisdiction in Uganda to grant the relief claimed."

7."No court shall try any suit or issue in which the matter directly and subsequently in issue has been dlrectly and subsequently in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the sult in which such issue has been subsequently raised, and has been heard and flnally decided by such court.,'

The learned appellate judge had this to say on the matter: -

" Court is to determine as to whether or not this land in dispute is part of the Estate of appellant's mother. This wtll depend whether or not by staying away from the land for so long Salima Kabasingo forfeited her right in the said land. In my view she did. This is on the principle of prescription..."

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Learned Counsel submitted that the matters being determined were already resolved by the lower courts. The respondent's case was that he was born and lived with his deceased mother, Sabina Kabasinguzi, on the disputed land, having acquired it from chief Kikukule of the area. The appellant's case was that his mother, Salima Kabasingo, had also acquired the same kibanja from chief Kikutule and that the respondent and his late mother were in occupation of this land with the permission of Kabasingo. Having had this permission, Mr. Mwebembezi submitted that the respondent and his mother cannot be said to have acquired the disputed land by prescription. In Counsel's view, the learned appellate judge misapptied the principle of prescription as discussed in Dalton <sup>V</sup> Augus <sup>118811</sup>6 AC 74O at 773; quoted in Cheshire's Modern Real Propertv. 106 Edition 1967 at paqe 495 and The Law of Real Propertv bv Meparry, 3"1 Edition L966 at pase 849.

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In conclusion, Mr. Mwebembezi submitted firstly, that 20 the learned appellate judge did not scrutinize the evidence on record properly and as a result came to a wrong conclusion that the principle of prescription applied in this matter. Secondly, that if the evidence on record was put to careful scrutiny, it would have been found that the learned trial Magistrate had a matter on appeal arising from the same issue and between the same parties. Thirdly, that the

learned judge would have found that the trial Chief Magistrate had an appellate jurisdiction in respect of matters arising from R. C. courts. Therefore, Counsel urged this court to re-appraise the evidence on record and come to its own conclusion as provided under rule 31 (2) of the Rules of this court and also following the decision in Banco Arabe Espanol Vs Bank of Uganda. S. C. C. A. NO. 8 of 199g.

In reply, Mr. Abaine, learned Counsel for the l0 respondent, submitted that the respondent, Abdalla Abdu Makuru, is the son of the deceased Sabina Kabasinguzi. He has lived on a kibanja situated at Butangwa village in Kabarole District with his late mother since birth. Upon her demise, the respondent applied to administer her estate which included the kibanja in dispute. According to him, the Iand was acquired by his mother from chief Kikukule. She developed the said kibanja by building a house thereon, planted also banana plantation, avocado trees and eucalyptus trees. The respondent also built a house on the 20 same land and he is on the land to date. His mother and relatives were buried on the disputed land.

Salima Kabasingo, an aunt of the respondent (now deceased), lodged a caveat against the application for l,etters of Administration by the respondent on the ground that the kibanja in question was not part of the estate of the late

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Sabina Kabasinguzi as she was a mere care-taker. The respondent then filed a suit to remove the caveat after the matter pending before the learned trial Chief Magistrate was dismissed. It was the contention of Counsel that the doctrine of resjudicata does not apply in the instant case as the suit before R. C. courts were between different parties from the parties who appeared before the Chief Magistrate,s Court.

t0 I am unable to ascertain the parties who had previously appeared before the R. C. courts nor am I able to ascertain the subject matter which was in dispute. This is so because the record of proceedings before R. C. courts is missing. It is therefore futile to argue that the doctrine of resjudicata applies in the present case.

As regards the acquisition of the kibanja in dispute, <sup>I</sup> agree with Mr. Abaine that both the appellant and respondent derived their claims on this land upon the demise of their mothers respectively. Mr. Abaine submitted that the 20 mother of the respondent acquired the said kibanja in her own right from a local chief, Kikukule. On appraisal, I find there is overwhelming evidence on record to the effect that after acquiring the said kibanja, the late sabina deveroped it. Her son, the respondent, has lived on the same land for over 40 years since birth and has even built a house thereon. Sabina and her relatives died and were buried on the same

land. The mother of the appellant and her relatives have since died but were buried on a different land.

l0 According to the evidence on record, the mother of the respondent, Sabina Kabasinguzi, acquired the disputed kibanja in her own right from a local chief one Kikukule. She did not settle on this land with the permission of her sister, the mother of the appellant (Salima Kabasingo) and neither was she a care-taker of the said kibanja. It follows, therefore, that the late Sabina Kabasinguzi had a better claim over this kibanja than her sister Salima Kabasingo. Upon her demise, the respondent also has a better title to the said land than his cousin brother, the appellant. He has lived on this land for over 40 years and is still living on it, having succeeded his late mother who had acquired it in her own right from chief Kikukule. This fact has not been disproved and therefore the principle of prescription is inapplicable.

20 In the result, I find no merit in this appeal and would dismiss it with costs here and in the courts below to the respondent.

Dated at Kampala this dav of 200t

i-'."r'' S. G. ENGWAU

JUSTICE OF EPPEAL,

## THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

#### CORAM: HON. LADY JUSTICE A. E. MPAGI-BAHIGEINE, JA HON. JUSTICE S. G. ENGWAU, JA. HON. LADY JUSTICE C. N. B. KITUMBA, JA.

#### CIVIL APPEAL NO.39 OF 2000

#### **FAROUK AZIZ :::::::::::::::::::::::::::::::::: APPELLANT**

#### **VERSUS**

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ABDALLA ABDU MAKURU ::::::::::::::::::::::::::::::::::: **RESPONDENT.**

[Appeal against the judgment and orders of the High Court (Mwangusya, J] at Fortportal in Civil Appeal No. DR. MFP.6 or 1999].

# JUDGEMENT OF A. E. M. BAHIGEINE,JA.

I have read in draft the judgement of Engwau, JA. I agree this appeal should fail. As Kitumba, JA is also of the same opinion, it is dismissed with costs.

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Dated at Kampala this 2001

Salufan **A. E. MPAGI-BAHIGEINE JUSTICE OF APPEAL**

#### THE REPUBLIC OF UGANDA

#### IN THE COURT OF APPEAL OF UGANDA

#### **HOLDEN AT KAMPALA**

## CORAM: HON. LADY JUSTICE A. E. N. MPAGI-BAHIGEINE, JA. HON. MR. JUSTICE S. G. ENGWAU, JA HON. LADY JUSTICE C. N. B. KITUMBA, JA.

#### CIVIL APPEAL NO. 39 OF 2000.

FAROUK AZIZ:::::::::::::::::::::::::::::::::::

#### **VERSUS**

#### ABDALLA ABDU MAKURU::::::::::::::::::::::::::::::::::RESPONDENT (Appeal against the judgment and orders of the High Court (Mwangusya, JA) at FortPortal in Civil Appeal No. MFP 6 of 1999).

## JUDGMENT OF C. N. B. KITUMBA, JA.

I have had the benefit of reading the judgement of Engwau JA. in draft

and I agree with it.

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Dated at Kampala..................................

$mba$ **JUSTICE OF APPEAL.**