Kafureeka v John Katorobo (Civil Application No. 0153 of 2020) [2025] UGCA 223 (28 February 2025)

Full Case Text

#### THE REPUBLIC OF UGANDA

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

# (Coram: Richard Buteera DCJ, Eva K. Luswata & Moses Kazibwe Kawumi, JJA)

### CIVIL APPLICATION NO. 0153 OF 2020

### (ARISING FROM CIVIL APPEAL NO. 160 OF 2013)

#### VICENT KAFUREEKA ::::::::::::: **APPLICANT**

#### **VERSUS**

#### 15 JOHN KATOROBO ::::::::::::::::::::::::::::::::::

### RULING OF THE COURT

#### Introduction and brief background

$\mathsf{S}$

$10$

$25$

1] The Applicant through $M/s$ Obed Mwebesa & Associated Advocates and M/s Kwesigabo, Bamwine & Walubiri Advocates presented this Application by Notice of Motion under Section $6(2)$ of the Judicature Act, Rule 39(1) of the Judicature (Supreme Court Rules) Directions, and Rule 43 of the Judicature (Court of Appeal Rules) Directions seeking for orders that a certificate doth issue to the effect that the Applicant's intended appeal against the decision of this Court, concerns a matter of law of great public importance or general importance. They in addition sought costs of the Application.

![](_page_0_Picture_11.jpeg)

$\mathbf{1}$

- 5 2l The Application arises from Court of Appeal Civil Appeal No. 160 of 2013, (hereinafter CA Appeal), which arose from High Court Civil Appeal No. 5L of 2O11, (hereinafter HC Appeal), which also arose from the Chief Magistrate's Court Civil Suit No. 34 of 1994. The grounds of the Application as set out in the motion are that; - a. The Applicant filed a suit against the Respondent in the Chief Magistrates Court of Mbarara vide Civil Suit No. 34 of L994 for trespass to his land in Kabingo Nshenyi, Isingiro District comprised in LRV l2O9 Folio 7 Plot 1O and LRVl160 Folio 4 Plot 8, Isingiro Block 9O (hereinafter the suit land) which was determined in his favour. The Respondent appealed to the High Court and the Appeal was successful, whereupon the Applicant filed the CA Appeal. - b. The CA Appea1 was heard and dismissed with costs on 20th July, 2O2O. - c. The Applicant acquired the suit land from one Kare5/eya Geoffrey on 28th April, 1982, and the Respondent admitted having gone over the boundaries of the land. - d. This Court as the second appellate court decided that the admission by the Respondent was not effective, and the Applicant acquired the land fraudulently. Being aggrieved by the decision of this Court the Applicant has since filed a Notice of Appeal to the Supreme Court.

1.0

- 5 e. The intended Appeal concerrrs questions of law of great public and general importance as the said decision touches: - i. The evidential value of admissions made in courts of 1aw. - ii. Fraud when used as a defence to impeach a certificate of title when the same was not proved and made an issue in the first appellate court in a trespass case, artd when the Defendant raised no Counterclaim. - iii. The legality or otherwise of obtaining a leasehold certificate of title to land in L982 over land /allegedly occupied by another. - iv. The legality of an order of rectification of title when the exact area to be affected by the rectification is not ascertained by a survey or evidence.

f. The decision appealed against has drastic consequences on the party directly affected and general application of law.

- 3l Vicent Kafureeka the Applicant swore the affidavit in support of the Application. He repeated much of what is stated in the grounds of the Application. - 4] The Respondent opposed the application and stated in his affidavit in reply that the learned Justices of the Court of Appeal rightly addressed themselves to the law on fraud and extensively evaluated the evidence on record in light of the applicable laws before fully determining the matters raised before them. He added that the Applicant's claim is based on normal evidence and

determination of facts which do not transcend the circumstances of the case, and raise no matters of law of great public importance.

### Representation

- 5l At the hearing of the application, the Applicant was represented by Mr. Sam Musimenta, while the Respondent was represented by Mr. Paul Muhimbura. Both counsel filed submissions and cited authorities that we have considered when resolving the application. Their submissions indicated only one issue for determination. - 15 Whether the questions thqt the Applicant intends to raise in the 3,a Appeal raise matters of law of great public or importqnce.

## Applicant's submissions

# Evidential Value of Admissions made in Court.

20 25 6] In his submissions, Applicant's counsel referred to Exhibit P.4 and submitted that the Respondent signed the said exhibit whose import is to admit liability as the trespasser on the suit land. He submitted that the Court of Appeal came to a conclusion based on the finding of the l"t Appellate Court that the Respondent had admitted liability under Exhibit 4 and the Court rejected the Respondent's claim that he had been hoodwinked by the Applicant's representations. On appeal, the Court of Appeal held that admissions are not conclusive evidence but only operate as estoppels under the provisions of Section 28 of the Evidence Act.

5 7] Counsel contended that it is a matter of general importance and application for a definitive legal interpretation to be made on the status of admissions, especially those made in writing during a trial. He posed questions as to whether such admissions constitute conclusive proof entitling the opposite party to a judgement on admission under Section 16 of the Evidence Act (read together with Order 8 Rule 6 of the Civil Procedure Rules (CPR), or whether such admissions are mere representations that may lead to estoppels that require further proof under Section 28 of the Evidence Act. 10

8] He concluded by submitting that the matter has not been litigated and therefore requires definitive interpretation by the Supreme Court. Counsel presented that submission under sub titles and a response was made in a similar ma.nner.

# Impeachment of title on the mere basis of a Written Statement of Defence.

9] Mr. Sam Musimenta submitted that the High Court and the Court of Appeal impeached the Applicant's title on the basis of allegations of fraud set out in the Respondent's written statement of defence (WSD) as the Respondent did not file a counterclaim nor did he pray for impeachment or rectification of the Applicant's Certificate of title. Therefore, the Applicant could not file a defence to the said allegations. For guidance, counsel referred to Kampala Bottlers Ltd v Damanico (Uf Ltd, SC Civil Appeal No. 22 of

# 5 L992 and Horizon coaches Ltd v Edward Rurangaranga & Another, SC Civil Appeal No. 14 of 2OO9.

- 10] Counsel contended that as a matter of general public importance, it is necessary, on a 3.d appeal for the law to be clarified in two aspects. - i. whether a defendant can use a wsD to get a positive remedy like cancellation of the plaintiff's Certificate of title, and - ii. Whether a party who did not file a counterclaim and seek a specific remedy, can be given a remedy by Court. - 11] In response, Mr. Paul Muhimbura referred to the decision of Lord Denning inLazarus Estate Ltd v peasley (19s6) eB 7o2 which was cited with approval in the court of Appeal case of Hon. Mukasa Fred Mbidde & Anor v The Law Development centre, civil Appeal No. 51 of 2ol.g at page 10; where it was held that no court will condone fraud and any judgment, contract or transaction should be vitiated when fraud is proved. Counsel further cited Makula International v His Eminence Cardinal Nsubuga ll982l HCB 12. 15 20 - 12] That to tl.at end, the Respondent pleaded and particularized fraud in his amended wsD and during the proceedirgs, this court was satisfied with the evidence of DW3 on the issue of fraud by the Applicant. Further that by raising fraud in his amended wsD, the Respondent raised issue on fraud. That whether or not the Respondent raised a counter claim, the court was under duty to determine and pronounce itself on the same since fraud overrides all questions of pleading including any admissions mad.e thereon.

- 5 Counsel in addition cited Order 15 of Rule 5(1) CPR to state that issues can be framed or altered at any stage of the proceedings for as long as those issues stem from the pleadings or evidence and bring out the points in controversy between the parties. - 131 Counsel referred to the doctrine of mootness postulated in the Court of Appeal case of Environmental Action Network Ltd v Joseph Eryau, Civil Application No. 98 of 2OO8 where it was held that Courts ought not to decide cases for academic purposes because court orders must have a practical effect and be capable of enforcement. He then submitted that the 1"t and 2"d Appellate Courts having found that the Applicant had fraudulently acquired the Respondent's land by procuring registration of all the 80 hectares, with full notice of his unregistered interest thereon, the appropriate remedy was to order for the rectification of the Applicant's Certificate of title to exclude the Respondent's portion that was obtained fraudulently in order to give effect to their findings. 10 15 20

# Legality or otherurise of obtaining a Certificate of Title on public land occupied by someone else.

14] Counsel submitted that the issue of general importance to be considered is whether the Respondent had any lawful interest in the suit land given that he had bought from a person with a mere lease offer, which was not apparently exhibited to see its terms, and whether the offer had been accepted, or was still subsisting at the time of the alleged purchase.

- 5 15] Counsel referred to Section 3(21 of the Land Reform Decree No. 3 of 1978, the prevailing law at the material time, which provided that a customary tenancy was not an interest in land since the occupation was at sufferance, and whether Uganda Land Commission (ULC) could grant a lease to any other person over such land. He contended that the Respondent does not even qualify as an occupant at sufferance since he claims to have bought from a person with a lease offer. In his view, purchase of oland" on the basis of a lease offer cannot confer an interest on such a purchaser since the person given a lease offer perse, has no interest unless there is proof of acceptance of such offer, and payment of the consideration in the offer. Given that those matters were not raised in a counterclaim, the Applicant likewise raise no defence to counter them. 10 15 - 16] Counsel posed a question as to whether a party who claims to have bought from a person who had a lease offer in 1978, had an interest in land capable of being defrauded by a grant of a lease in 1982 by the ULC.

l7l To counter that submission, Mr. Muhimbura referred to the evidence of DW3 who testified that after he sold land to Katorobo, he subsequently sold the residue which did not at the time have a title, to Kafureeka. DW3 added that he had applied for a lease from the District for his entire land including the land he had sold to Katorobo. That those facts clearly indicated that the interest that the Applicant acquired in the land in 1982 is the s€une as that previously acquired by the Respondent in 1978 since at the time

- 5 of their purchase, there was no title in both instances. Therefore, the Applicant cannot claim to have a better claim than that of the Respondent. - 18] Counsel further submitted that the evidence the Applicant proposes to rely on raises issues of facts and not law. He argued then that determination of facts in contest between the parties is not by itself a basis for granting certification for a 3'o Appeal before the Supreme Court. For guidance, counsel cited Hermanus Phillipus v Giovanni Gnecchi - Ruscone, Application No.4 of 2OlO (Supreme Court of Kenya). - 191 He concluded by stating that this ground does not raise a matter of law of great public or general importance to warrant a 3'd Appeal to the Supreme Court. 15

# Rectification of Title without a suryey

20] Mr. Musimenta in addition submitted that the order to rectify the Applicant's Certificate of title does not specify the acreage to be included or obtained from the Applicant's certificate of title, nor does it specify the location. Therefore, it is an ambiguous order that cannot easily be implemented. Counsel submitted further that rectification cannot be ordered in general terms. In affirming that the matter was of general public importance, Counsel posed a question as to whether a rectification of a title can be ordered when the exact area in terms of acreage and location of land has not been demarcated on the basis of survey evidence and a loc,ts visit.

- 5 21] Mr. Musimenta concluded with a prayer that the Court sees it fit to allow the application and a certificate be issued to the Applicant to enable him appeal to the Supreme Court against this Court's decision in Civil Appeal No. 160 of 2013 as the intended Appeal concerns matters of law of great public and general importance. - 221 To counter the above submissions, Mr. Muhimbura cited the decision in Sinba (K) Ltd and 4 Others v Uganda Broadcasting Corporation, Civil Appeal No. 3 of 2OL4 where it was held that consequential orders can be obtained to give effect to a Judgement of the Court as they flow naturally from the Judgement. Therefore, if the Applicant's complaint was that the Respondent's land was not ascertained in the judgement, the remedy available to the Applicant would be to apply for a consequential order, rather than seek an appeal to the Supreme Court. 10 15 - 231It was his view that according to Exhibit ED 1, the agreement which specifies the land that DW3 sold, the ambiguity claimed by the Applicant can be cured with issuance of consequential orders to open boundaries on the suit land in order to establish the sizes of the parties' respective portions. That was possible because the location of each party's land can be ascertained from the sale agreement entered between the Applicant/Respondent and the vendor.

241 Counsel concluded that the grounds raised by the Applicant in this ground are based upon evidence and determination of facts which do not transcend the circumstances of this case and

- 5 therefore, raise no matter of law of great public or general importance to warrant a 3.d Appeal to the Supreme Court. - 25] Counsel therefore prayed that this Application be dismissed with costs since it has no merit and is intended to delay the Respondent from enjoying the fruits of his judgement.

## 10 Submissions in rejoinder

- 261 ln rejoinder, Mr. Musimenta submitted that it is common ground that for the Applicant to succeed, the Applicant must demonstrate that there are matters of great public or general importance that require the determination by the final Appellate Court. In addition, that the Applicant need not prove that his or her arguments on those matters will succeed on a third appeal. He equated that test to that required to show a primacie case when applying for a temporary injunction as was exposed by the House of Lords in American Cyanamid vs Ethicon Ltd (1975) 1 ALL ER 5O4. - 20 25 271 Counsel referred to the Respondent's submissions in regard to Section 16 and L7(ll of the Evidence Act construed together with Section 28 of the same Act and submitted that while in some instances one section of the law is read subject to another, where two sections deal with different subjects, it is not appropriate to subject one clear section to another. In his view, Section 17(1) of the Evidence Act dealing with admissions cuulnot or ought not to be confused with Section 28 that deals with estoppel. Counsel further submitted that the rule of harmony and completeness in statutory interpretation only applies if the two provisions in an

5 enactment are dealing with the same subject and need to be harmonized to avoid absurdity and conflicting outcomes.

28] Mr. Musimenta argued that there is no decision on record in our Courts of Judicature or East Africa that has dealt with the question of whether an admission under Section 17(1) of the Evidence Act, cannot be conclusive unless it passes the test of estoppel under Section 28 of the Evidence Act. He thus considered it a novel area of law of general public importance that requires consideration by the Supreme Court.

- 291 On the issue of making a decision when fraud was not raised in defence, counsel cited Makula International v His Eminence Cardinal Nsubuga (supra) where the court found that even in the absence of an appeal, the issue of an illegally taxed bill of costs could be handled. Therefore, that this case cannot be stretched to authorize cancellation of a certificate of title in the absence of a suit or counter claim alleging fraud and satisfying the provisions of Section 176(cl of the Registration of Titles Act. In conclusion that the question whether a party can obtain a remedy through facts raised in a written statement of defence is novel and requires thorough consideration on appeal. 15 20 - 30] Mr. Musimenta repeated that no survey or locr,ts uisit were conducted prior to the judgement and hence a consequential order cannot be granted. That in that case, there would have to be a retrial for parties to lead evidence on boundaries of the contested land, a locus visit and a survey before determining the actual acreage in issue, and its actual location in the ground. In his view, 25 30

5 the circumstances and facts here do not allow resolution of this issue by consequential order since the main order in the judgement is not clear enough or helpful on what the consequential order should confer since the actual size of land to be cut off the Applicant's certificate of title in terms of acreage, was never determined.

31] In conclusion, Counsel reiterated his prayers in the Motion and Paragraphs 29 and 30 of their main submissions.

## o Analvsis and decision of Court

15 32] The dispute between the parties emanates in the first instance from the decision of a Chief Magistrate in Civil Suit No. 34 of L994, at the Chief Magistrates Court of Mbarara. The Applicant (then the plaintiff) sued the Respondent (then defendant) in trespass on the suit land. The Applicant was the successful party and the Respondent filed an appeal to the High Court and succeeded. The Applicant filed an appeal to this Court vide Civil Appeal No. 153 of 2O2O, and lost. 20

o He intends to file an appeal to the Supreme Court which is only permitted if certain conditions are fulfilled. Section 6(2) of the Judicature Act provides as follows:

> oWhere qn qppeal emanates from a judgment or order of a chief magistrate or a magistrate grade I in tlrc exercise of his or her original jurisdiction, but not including an interloctttory matter, a partg aggrieued maA lodge a third appeal to the Supreme Court on the certificate of the Court of Appeal that the appeal concerns a matter of law if the Supreme of qreat public or qeneral importance, or

*Court considers, in its overall duty to see that justice is done, that the appeal should be heard.*" (Emphasis applied)

33] Our understanding of the Judicature Act is that not all matters of law are appealable as of right from this Court to the Supreme 10 Court. The intending Appellant must demonstrate that the intended appeal raises issues of law of great public or general importance. The Judicature Act does not define the terms "great *public*" or *"general importance"* Guidance in this matter may be sought from a persuasive decision of the Supreme Court of Kenya 15 in the case of **Hermanus Phillippus Steyn v Giovanni Gnecchi-**Ruscone Civil Application No. 4 of 2012 in which that Court whilst dealing with an application matter stated as follows: -

$\mathsf{S}$

"The importance of the matter must be public in nature" and must transcend the circumstances of the particular case so as to have a more general significance. Where the matter involves a point of law, the applicant must demonstrate that there is uncertainty as to the point of law and that it is for the common good that such law should be clarified so as to enable the courts to administer the law, not only in the case at hand, but also in such cases in future. It is not enough to show that a difficult question of law arose. It must be an important *question of law." (Emphasis applied).*

The same after carrying out quite an extensive survey of laws and 30 decisions on the matter from other jurisdictions, set out what can be termed as guiding principles that can be followed to make a decision whether a certificate of importance ought to be granted. It was held as follows:-

For a case to be certified as one involving a matter of i. *general public importance, the intending appellant must* satisfy the Court that the issue to be canvassed on appeal is one the determination of which transcends the circumstances of the particular case, and has a significant *bearing on the public interest;*

$\mathsf{S}$

$20$

$25$

*Where the matter in respect of which certification is sought* ii. raises a point of law, the intending appellant must demonstrate that such a point is a substantial one, the determination of which will have a significant bearing on the public interest;

Such question or questions of law must have arisen in the iii. *Court or Courts below, and must have been the subject of judicial determination;*

*Where the application for certification has been occasioned* $i\nu.$ by a state of uncertainty in the law, arising from contradictory precedents, the Supreme Court may either resolve the uncertainty, as it may determine, or refer the *matter to the Court of Appeal for its determination;*

*Mere apprehension of miscarriage of justice, a matter most* $\mathcal{U}.$ apt for resolution in the lower superior courts, is not a proper basis for granting certification for an appeal to the Supreme Court; the matter to be certified for a final appeal in the Supreme Court, must still fall within the terms of *Article 163 (4)(b) of the Constitution;(of Kenya).*

*The intending applicant has an obligation to identify and* vi. concisely set out the specific elements of "general public" importance" which he or she attributes to the matter for *which certification is sought:*

*Determinations of fact in contests between parties are not,* vii. by themselves, a basis for granting certification for an appeal before the Supreme Court.

We would adopt the reasoning of the Supreme court. We would wish to add that the onus is on the Applicant to satisfy the Court

- 5 that indeed the question intended to be determined on appeal is one of great public or general importance. See; Charles Lwanga Masengere v God Kabagambe & 2 others CA Civil Application No. 125 of 2OO9. - 34] Being guided by the Principles in Hermanus Phillippus Steyn vs Giovanni Gnecchi-Ruscone (Supra), we are not persuaded that the issue relating to whether a party who purchased a lease offer can challenge one who holds a lease interest (that carne later in time) or the interpretation of the Land Reform Decree, would pass the mark of a matter of public interest or general importance. We are also not convinced that issues relating to demarcation of land following a decision would pass the mark. Those are issues that were raised as peculiar to the dispute between the parties to this application. They would have no application in a general sense. However, we are persuaded that besides those two issues, the Applicant raises issues that would qualify for a certificate of importance. The following are our reasons. - 351 The matter on the law of admissions may raise some ambiguity that may require investigation and clearance by the apex court. Much as the Evidence Act defines the term under Sections 16 and 17(Ll of the Evidence Act, Section 28 states that admissions are not conclusive and may only be enforced as estoppel which requires further proof. However, the general practice is that admissions, especially those raised in pleadings and evidence, can be held as conclusive. We say so because under Order 13 Rule 28

5 CPR, a party may seek a summary judgment on admission on any facts. That ambiguity ought to be resolved.

361 Further, we agree with the submission that raising fraud as part of a WSD, with no particulars or their proof, and granting a party a relief not specifically pleaded or prayed for in a plaint or counter claim, would go against established principles of law, for example Order 6 Rule 3 CPR which mandates a party who raises fraud to include its particulars in their pleading. Similarly, ordering cancellation or rectification of a title without specific prayers or proof, would go against established legal principles espoused in the Registration of Titles of Act.

- 37] Thus, some of the questions of law relied on by the Applicant in the present application would satisfy the criteria laid down in Paragraphs i, ii, iii, iv and vi of the decision in Hermanus Phillippus Steyn (supra). Ituowing that disputes relating to land rights, especially those relating to its registration as well as the sanctity of title, are common in our jurisdiction, the matters raised here would be of general public importance that affect sufficiently a large number of land owners. It is therefore necessary for the Supreme Court to consider the appeal and in doing so, address some, if not all the ambiguities raised. We have no doubt that a decision of the apex court will improve on the jurisprudence in that area. - 38] In conclusion, this application succeeds. We grant certification that the questions raised in the application constitute points of

- law of great public importance or general importance to warrant a third Appeal to the Supreme Court. - 39] The costs of this application shall abide the outcome of the appeal. We so order. - Dated at Kampala this .................................... Anday of ................................... $10$

**RICHARD BUTEERA**

DEPUTY CHIEF JUSTICE

EVA K. LUSWATA **JUSTICE OF APPEAL**

**MOSES KAZIBWE KAWUMI JUSTICE OF APPEAL**

$20$

$\mathsf{S}$