Kabazi v Kabazi (Civil Appeal 118 of 2023) [2024] UGHC 782 (13 August 2024)

## THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT MBALE

## CIVIL APPEAL NO. 118 OF 2023

### (ARISING FROM BUDAKA LAND SUIT NO. 07 OF 2023)

# AIDA KABAZI (ONE OF THE ADMINISTRATORS OF THE ESTATE OF THE LATE ISREAL KABAZI) ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

**\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*** PATRICK KABAZI :::::::::::::

#### BEFORE: HON. JUSTICE LUBEGA FAROUQ

### JUDGMENT

### 1. Introduction

- 2. This Appeal arises from the decision of Her Worship Kagoya Jackline at Budaka where she dismissed Land Suit No. 07 of 2023 for being res *judicata* with Civil Suit No. 01 of 2014 and Civil Appeal No. 13 of 2020. - 3. The trial magistrate in her judgment at page 13 stated that-

"... I have carefully read the decision in Civil Suit No. 01 of 2014 and the one in Civil Appeal No. 13 of 2020 an appeal arising from Civil Suit No. 01 of 2015. Whereas counsel for the Plaintiff distinguished the two pieces of land by the neighbors in his submissions, I noted that the two suits were referring to the same land allegedly given to the Plaintiff by her late husband Isreal Kabazi. The land as per currently the Plaintiff's evidence then (Appellant's evidence) at page 3 of 18 of the decision on appeal is exactly the same as the land in this suit as per paragraph 3 and 9 of the plaint in this suit). Both suits are in respect of land formerly owned by late Israel Kabazi and the

$\mathbf{1}$

Plaintiff claims in both suits to have been given that land by her late husband. That it is approximately 3 acres..."

- 4. The Appellant/ Plaintiff was dissatisfied with decision of the trial magistrate hence this Appeal. - 5. This Appeal is based on the following grounds - (a) That the leaned trial Chief Magistrate erred in law and fact upon holding that Land Suit No. 07 of 2023 was barred by res judicata hence occasioning substantial miscarriage of justice. - (b) That the learned trial Chief Magistrate erred in law and fact when she misdirected herself on the statutory principles of res judicata upon dismissing Land Suit No. 07 of 2023 hence occasioning substantial miscarriage of justice. - (c) That the learned trial Chief Magistrate erred in law and fact upon holding that the suit land Vide Civil Suit No. 01 of 2014 despite the clear variations of the neighbors in the description of the subject matters (land in dispute) in both cases therein, hence occasioning to substantial miscarriage of justice - (d) That the learned trial Chief Magistrate erred in law and fact upon gravely ignoring the relevancy of conducting a pre-trial locus visit to ascertain the similarity of the suit land vide Land Suit No. 1 of 2014 and Land Suit No. 07 of 2023 - 6. He prayed that the Appeal be allowed, the orders of the lower court be set aside, an order for retrial of Civil Suit No. 7 of 2023 on its merits be made and costs of this court and of the lower court be awarded to the Appellant.

## 7. Legal Representation

8. Counsel Watete Ronald represented the Appellant whereas Counsel Masayi Samuel represented the Respondent.

### 9. Submissions

This matter proceeded by way of written submissions and both 10. parties complied. I will consider them in the determination of this judgment.

$\mathcal{L}$

#### Duty of the first appellate court 11.

The duty of the first appellate court is that it must evaluate all the 12. evidence on the court record and come to its own conclusion. See: SCCA

# No. 03/2013 Akbar Hussein Godi Vs Uganda.

#### Analysis of court 13.

According to the submissions of counsel for the Respondent, he 14. raised preliminary objections and I will consider them first before delving into the grounds of the Appeal.

#### Preliminary objections 15.

- (a) That no competent appeal lies to this court from the ruling of the trial *court dismissing a matter on a preliminary point of law save with leave* of court. - (*b*) *That High Court has no jurisdiction to hear an appeal where no automatic* right of appeal is created under the law. - (c) That grounds No. 2, 3 and 4 of the appeal are too general and *argumentative in nature.* - The 1<sup>st</sup> Preliminary objection: That no competent appeal lies to this 16. *court from the ruling of the trial court dismissing a matter on a preliminary point of law save with leave of court.* - Counsel for the Respondent submitted that section 79 of the Civil 17. Procedure Act Cap 282 and Order 44 rule 1(1) of the Civil Procedure Rules, SI.71-1, spells out orders from which appeals lie as of right and it does not include an appeal against orders in preliminary objections. - He argued that leave must be sought under order 44 rule $1(2)$ of the 18. Civil Procedure Rules to appeal against an order on a preliminary objection. Counsel contended that the Appellant should have first sought leave of court that made the order before filing this Appeal and in case it is denied, he would seek for leave from this court but the Appellant did not comply with these mandatory requirements of the law. To support the above submissions counsel relied on the case of Dr. Sheik Ahmed

# Mohammed Kisuule V. Greenland Bank (in liquidation) SCCA No. 11 of 2010,

#### Determination of the 1<sup>st</sup> Preliminary Objection 19.

- It is trite that the right of appeal is a creature of the statute and 20. court can only exercise its Appellate jurisdiction where that jurisdiction is given by statute. Where there is no right, a party must seek leave of court to do so. - Section 76(1) and Order 44 (1) of the Civil Procedure Rules specifies 21. orders from which appeals lie as of right and the orders from the preliminary objections are not among. - Order 44 rules 2 and 3 of the same rules provides that-22.

"An appeal under these rules shall not lie from any other order except with leave of the court making the order or of the court *to which an appeal would lie if leave were given.*

(3) Application for leave to appeal shall in the first instance be made to the court making the order sought to be appealed from."

- In Emmanuel Tumusiime V. Perusi Namagembe and Anor Civil 23. Appeal Civil Appeal No. 42 of 2023, Justice Bashaijja cited with approval the case of Dr. Sheik Ahmed Mohammed Kisuule V. Greenland Bank (in liquidation) SCCA No. 11 of 2010, where a preliminary objection had been raised on ground that the Appellant had not sought leave of the High Court or Court of Appeal prior to filing the appeal. It was held that "obtaining leave is not merely a procedural matter but an essential step and that since no genuine step had been taken to apply for leave, there was no competent appeal before the court". - In the present case, Civil Suit No. 07 of 2023 was dismissed by the 24. trial court because it was res judicata. This therefore means the Appellant had to first seek leave of the trial court-before instituting the present appeal.

- 25. It is settled law that an appeal is a creature of the statute. That being the position, one cannot institute an appeal before any court without following the procedure in the law. - The above position was well founded in the case of **Baku Eaphael** 26. Obudra & Anor V. Attorney General, Supreme Court Constitutional

**Appeal No. 1 of 2005**, where Odoki CJ (as he then was) held that-

"It is trite that there is no such a thing as inherent appellate jurisdiction. Appellate jurisdiction must be specifically created by law. It cannot be inferred or implied." (Also see: **Attorney** General V. Shah (1971) EA 50)

- In the circumstance, the Appellant having not sought leave of court 27. before filing this appeal as required by the law, this Appeal is incompetent and it is accordingly struck out with costs to the Respondent. - Having found as above, I will not consider the other preliminary 28. objections since the resolution of the $1<sup>st</sup>$ preliminary objection has disposed of the entire appeal.

LUBEGA FAROUO **JUDGE** Ruling delivered via email of the parties on 13<sup>th</sup> day of August, 2024.

$\mathbf{y} = \mathbf{y} \mathbf{y} + \mathbf{y} \mathbf{y} + \mathbf{y} \mathbf{y}$

the state of the state of the