Muhindo Nderu v Kamanyire (Miscellaneous Application 154 of 2020) [2021] UGCA 212 (20 October 2021)

# THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

#### MISC. APPLICATION NO. 154 OF 2020

[Arising from Civil Appeal No. 124 of 2016]

(Appeal from the Judgment of the Hon. Mr. Justice Batema in High Court Civil $\mathsf{S}$ *Appeal No. 0016 of 2014, dated 15<sup>th</sup> March 2016)*

MUHINDO GEORGE NDERU ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

# **ABDU KAMANYIRE**

$10$ [Administrator of the Estate ::::::::::::::::::::::::::::::::::: of the Late Kamanyire Ali]

# CORAM:

HON. MR. JUSTICE GEOFFREY KIRYABWIRE, J. A. HON. LADY JUSTICE MONICA MUGENYI, J. A. HON. MR. JUSTICE REMMY KASULE, Ag. J. A.

## **RULING OF THE COURT**

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# INTITOI)UCTION

This Application was brought by way of Notice of Motion under Rules 2(2), 30(11(b), (2), (31 & (4),43 and 44 of the Judicature (Court ofAppeal Rules) Directions SI 13-10 for orders tlrat:

- 5 1' The Applicant be grantcd reave to adduce additional evidence on Appeal to be relied on during the hearing and disposal ofCivil Appeal No. 12 4 of 201.6. - 2' The additional evide,ce is sufficient enough in itself to dispose of the Appeal and to be relied on by court to give remedies to the Ap1:lica,t - including an order directing the commissioner for Land Registration to issue a Cerrificate of Title tlirectly in the names of the Applicant. - 3. Costs ofthis Application be borne by the Respondent.

The grounds upon which this Application is premised are set forth in the Notice of Motion a,d supported by the affidavit of Muhindo George Nderu, the Applicant.

This Application arises from a second Appeal which has been filed in this court.

# BACKGROUND

The Respondent, Kamanyire Abdu is the son of the Late Kamanyire Ali (the Defendant in the trial Magistrate's courtJ and is the Administrator of the estate ofthe deceased for purposes of this Appeal.

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The Applicant's cause of action against Kamanyire AIi (hereinafter referred to as the "deceased") in Kasese chief Magistrate's court civil suit No. 14 of 2073 was trespass. The Applicant averred that on 2 3rd october r97 6,he bought 100 acres of land from one Eziron Bintu Bwambale. The tand was not surveyed at

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the time of purchase but a land sale agreement was entered into. At the time of purchase, estimated dcrnarcations were marked in the presence of witnesses and this was curved off the bigger parcer of land known asLWFp /3377 vorume 1,572 Folio 10 Plot 2 Block 84 rocated in Hima and registered in the names of

5 Eziro, Bintu Bwambale. After the purchase of the lan d, the Appricant developed the land by planting trees thereon which also served as bounclary marks to distingu ish his land from the rest In 1988, Eziron Bintu Bwambale transferred his entire registered land to yafesi Malimali Muhindo. This rransfer inclu ded the land which the Applicant had purchased earlier. The Applicant sought to protect his interest in the land by suing Eziron Bintu Bwambale and yafesi Malimali vide High Court civil suit No .3s9 of '1.992 and soughra cancellation of the certificate of Title that had been acquired by Malimali on the account of fraud. The High court granted the Applicant's prayer, cancelled Marimali's certificate of ritle, and held that the Applicant was entitled to the 100 acres of land which he had bought from Eziron Bintu as per the sale agreer.nent. In compliance with the High court order, a surveyor was brought to open the boundaries and measure the 100acres that belonged to the Applicant. During the survey, it was discovered that the land which had been sealed off by the Applicant in 197 6 after purchasing his land included an excess of approximately 20 acres which the Applicant remained in possession of. After the survey, the Applicant .btained a certificate of Title to the 100 acres 10 15 20

The facts forthe Respondent are that on i 6th luly,L9z2, the deceased, his late father, bought land nreasuring approximately B0 acres from Eziron Bwambale and registered it in his names in 2008 and occupied the same. The certificate of Title acquired by the deceased was in respect of land comprised in Freehold

exclusive of the excess 20 acres.

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Register volume 570 Folio i.9 Plot 20, Busongora Block 94 in Kasese district. The land which the deccased took possession of included the 20 acres which are the subject of civil Suit No.14 of20L3 (hereinafter referred to as the "suit land"). The Applicant instituted a suit against the deceased based on the cause

5 ofaction oftrespass. The Applicant alleged that the suit land formed part ofhis land as it was part of the land that he bought in 1976 at the time when the sale agreement was executed between him and Eziron Bwambale. The Magistrate Grade I held that the Applicant was a bonafide occupant of the suit land by virtu e of Section 29(2)(a) of the Land Act, Cap 227 . The trial Magistrate further held that the deceased, Kamanyire Ali, had fraudulently obained a certificate of title to the suit land which ought to be cancelled by the Registrar of Titles. 10

Kanranyire Ali, the deceased, being aggrieved by the decision of the trial Magistrate, appealed to the High Courtvide Civil Appeal No. 16 of 2014 and the Court overturned the decision of the trial Magistrate and held that the Applicant

no longer held the status of a bonafide occupant under Section 29(2J(a) of the Land Act given that his occupation had been challenged in 1992 when he was forced to institute High Court Civil Suit No. 359 of 1992 where Judgment was passcd in his favour but the same judgnrent restrictecl thc Applicant's ownership to only 100 acres exclusive ofthe excess of20 acres. The High Court further held that Kamanyire Ali's Certificate of Title was obtained Iawfully. 15 20

The Applicant, being dissatisfied with the decision of the High Court sifting as <sup>a</sup> firstAppellate Court, has filed a second Appealvide Civil Appeal No. 124of2016 which is curlently petrding before this Court.

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# R I]PITESENTNTION

The Applicant was represented by Mr. Henry Rwaganika whereas the Respondent was represented by Mr, Geoffrey Sibendire.

Both parties filed written submissio,s for which this court is gratefur.

#### 5 Preliminary Objection

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At the hearing of the Apprication, the Respondent raised a preriminary objection to the Applicarion to the effect rhat this Application is bad in law. He argued that Rule 30(1)ilr of theJudicature (courtof Appeal Rules) Directions, sl 13-10 does not support an Applicatio, for leave to adduce additional evidence in a second Appeal to this court fr-om the decision of the High court exercising its Appellate jurisdiction.

# Respondent's submissions on the preliminary Objection

counsel fbr the Respondent submined rhat Rule 30(1)(b) of the Judicature fcou rt of Appeal Rules) Directions sl 13 -1 0 provides that an application for Icave to adduce additional evidence can only be brought before this court if it is sitting as a first Appellate court. cou nsel relied on the Suprenre courtcase of Nsereko f oseph & others v. Bank of uganda, Supreme court civil Application No. 13 of 2009 to support this submission.

# Aptrlicant's submissions on the preliminary Objection

counsel for the Applicant submitted that courts have unfettered inherent jur.isdictiorr to navigate the Iir.nitation set forth in Rule 30(1)ib) of the court of Appeal Rules in order to prevent abuse of court process and ensure that the ends of j,srice are met as provided for under Rule z(2) of the same Rules. 20

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Counsel for the Applicant further argucd that Rule 30(1)[b) of the Court of Appeal Rules does not expressly prohibit the Court from admitting additional evidence under other circumstances.

Counsel for the Applicant relied on the case of Attorney General & Anor v.

- Afric Cooperative Society Ltd, Supreme Court Misc. Application No.06 of <sup>2</sup>012 to support tl're proposition that evidence may be allowed for purposes of elucidating evidence already on record and such evidence would not be regarded as additional evidence. - Counsel for the Applicant urgecl this Court to disregard the Respondent's objection and regard it as a mere technicality for purposes of administering substantive justice as provided lor irr Arl.icle 126 {2) [eJ of the Constitution of the RepublicofUganda. 10

# Finding and decision on the preliminary obiection

We have considerecl the submissions of both Counsel in respect of the preliminary objection raised. 15

Rule 30(1)(b) ofthc Court ofAppcal Rules provides: -

"(1) On ony oppeol from o tlecision of Lhe Higlt Cout't octing in the exercise of its original jurisdiction, the court may -

- (a) - 20

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(b) In its discretion, for sufficient reason, take additional evidence or direct thot udditional evidence be token by the trial court or by o cotnn ssloner.

This Rule clearly restricts this Court's discretion to admit additional evidence to "... any appeal from the High Court acting in the exercise of its original 6lt,.tlrr jurisdiction ... " This Rule envisages situations where this Court is sitting as <sup>a</sup> first Appellate Court and it does not make any exception with respect to this restriction.

Civil Appeal No. 124 of 2076, from which thisApplication arises, hasbeen filed

5 in this Court as a second Appeal from the decision of the trial Magistrate in Kasese Chief Magistrate's Court Civil Suit No.14 of 2OL3 and the appeal therefrom from the IIigh Court.

'l'he duty of a second appellate court was articulated in this Court in the matter of Kibalama Mugwanya V Butebi Investment Enl.erprises Ltd Civil Appeal No. 190 of 20tZ as follows: -

"... As o second Appellate court, we are required Lo consider errors of law made by the lower court only. Rule 32(2) ofthe ludicature (Court of Appeol Rules) Dircctions Sl 1.3 -1.0 ollows this court, in exercise of its jurisdiction as a seconrl Appeal court, to oltpraise the inJbrences offact tlrawn by the trial court. Rule 32(2) ofthe Rules ofthis court provides that: "On any Second Appeol from the decision of the High Court actitrg in the exercise of its Appellote jurisdiction, the court shall hove the power to appraise the inferences offact drawn frotn the trial court, but shall not have discretion to hear odditional evidence...."

The general rule, as stated in Rule 32(2) ofthe Rulesof this Court, is that this Court does not have the discretion to admit additional evidence in a second Appeal. This Court is bound by the law. 20

However, an exception to the general rule as referred to above, was stated in the case of G. M. Combined Ltd v. A. K. Detergents, Supreme Court Civil Application No. 7 of 1998 where it was held that further evidence not adduced

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at trial may be allowed for pulposes of elucidating evidence already on record, but this would r-rot be regarded as additional evidencc.

In order for such evidenceto be admitted in Courtas evidence for purposes of elucidation, the Applicant is required to show exceptional circumstances to justify the grant of the Application.

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An example of the exceptional circumstances was applied in the case of Attorney General & Anor v. Afric Cooperative Society Ltd, Supreme Court Misc. Application No. O6 of 2O12 where the evidence on record was <sup>a</sup> summary of a report of the IGG which had been rcndered null and void and quashed by the Court of Appeal during the hearing of the first Appeal. On second appeal, the Applicants sought to tender in the full report of the IGC during the hearing at the Suprenle Court for purposes of elucidating the evidence already on record.'l'he Supreme Court granted this Application and held that "...it should have beetr necessary for the Court ofAppeol to study the full

- report..." ln add ition, at page 2 0 of its ju dgrnent, the Court held that "...we think the Court ofAppeal should, even on its own volition, huve called for the full repoft which would have thrown more light on the contentions as to whether the Respondents had been denietl Jair heoring ..." Furtherrnore, at page 21 of the Judgment, tlre Court clearly stated that "... the report is not odditional evidence 15 - but evidence necessary to elucidole evidence alreorly on record." The full report of the IGG was adnritted in evirlence but thc Court ernphasised that "... no new matters beyond the report shall be permitted." 20

An analysis of the above Suprente Court d ecision points out flvo rnodes through which evidence may be adduced in Court for purposes of elucidarion namely: -

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- i) A party may file an Application to adduce evitlence which it believes will elucidate the eviclence that is already on Court record. - iD The Court of Appeal, acting on its own volition, may require a party to adduce evidence to clarify that which is already on Court record. This is done in circumstances where it is evident that a parfy was denie d a fair hearing.

Even when the Court admits evidetrce for purposes of elucidation, a restrictive approach is applied hereto as anything that gives rise to new matters shall not be permitted hy thc Court.

- In the instant Applicarion, the Applicant-seeks to tendel in additioual evidence to provc that; 10 - D A consequential order directing the Commissioner for Land Rcgistration to canccl thc Ccrtificatc of Titlc for land comprised in Freehold l(egister Vol. 570 Folio 19 l'lot 20, Busongora Block 94 situate at Nyangereka- Kasese District which was registered in the names of Kamanyire AIi (now deceased) was issued by the High Court on 19thMarch2020 vide HighCourtMisc. Application No.48 of 2O1B (arising from Kasese Chief Magistrate's Court Civil Suit No.64 of 2008J. - iD The Respondent's brother, Kamanyire Hussein, instituted Civil Suit No.009 of 2019 in Kasese Chief Magistrate's Court against the Applicant.

It was submitted for the Applicant that the subject matter in the above mentioned Suit included the 20 acres of the land which are also the subject matter in Civil Appeal No. 124 of 2016 which is still pending before this Court. That Judgnrent was delivered in favour of

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Kamanyire Hussein, the Plaintiff. The Court issued a declaration that the Plaintiff was the rightful owner of the suit land and that Muhindo George Nderu, the Applicant herein, should vacate the premises. This Judgment was delivered on $28^{\text{th}}$ June 2019.

- The Applicant, in his Notice of Motion specifically prays to be heard on an $\overline{5}$ Application for orders that "1. The Applicant be granted leave to adduce *additional evidence* on appeal ..." (underlining emphasis added). The nature of the wording used in the Application does not reflect an application to adduce evidence that is meant to elucidate that which is already on Court Record but rather, it is an application to adduce additional evidence which this Court is 10 - barred by law to admit on a second Appeal.

This Court is inclined to agree with Counsel for the Respondent who submitted that in the case of Nsereko Joseph & others v. Bank of Uganda (supra) the Supreme Court relied on Rule 30(1) of the Judicature (Supreme Court) Rules

and held that it does not have the discretion to admit additional evidence while 15 hearing a second Appeal from the decision of the Court of Appeal.

Similarly, this Court does not have the discretion to admit additional evidence in a second Appeal as emphasized by Rule 32(2) of the judicature (Court of Appeal) Rules.

Before we take leave of this matter, this Court has taken note of Counsel's 20 submissions on behalf of the Applicant wherein he submits that the evidence sought to be adduced on second appeal by the Applicant is for purposes of elucidation, but looking at the Notice of Motion that was filed, these are submissions from the bar. The Application on Court Record reflects an application for leave to adduce additional evidence and the Applicant's Affidavit 25

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thar was filed in support of the Application was srorn by theApplicanthimself and it does not reflect a prayer to elucidate widcace already on Court record. Acording to the Record, the Applicant did not filem amended Application for the elucidation of evitlence already on court record.

<sup>9</sup> In any even t evidence of court ortlers and suits are public d ocuments within tlre meaning of Sections 73 and 75 of the Evidence Act which the Court can take judicial notice of.

## Fiml result

lo ln the final result, the Prc'liminary Obiecrion is upheld and the Application is hereby dismissed.

The costs of this Application shall abide in dle outcome of the Appeal.

it is so 0rdcred.

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

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HON. MR. JUSTICE GEOFFREY KIRYABWIRE, JA

undingemj,

HON. LADY JUSTICE MONICA MUGENYI, JA

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HON. MR. JUSTICE REMMY KASULE, Ag. JA

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