Sekyanzi Sempijja v Prof Wavamunno (Miscellaneous Application 111 of 2020) [2020] UGCA 2146 (23 October 2020)

Full Case Text

## 5 THE REPUBLIC OF UGANDA,

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

## MISCELTANEOUS APPLICATION NO 111 OF 2O2O

(ARISING FROM CruIL APPEAL NO 240 OF 2013)

(ARJSING FBOM IIVLL\_APBEAT NO 24O OF 20r7r

# 10 (ARTSTNG FROM HrGH COURT Cryrr AppEAL NO 27 OF 2010 AND ALSO ARTSTNG FROM MAGTSTRATES COURT CrVIL SUIT NO 028 OF 2OO7)

(CORAM: KAKURU, KIRYABWIRE, MADRAMA JJA)

APPLICANT SEKYANZI SEMPTJJA)

#### VERSUS

15 PROF. WAVAMUNNO GORDON) RESPONDENT

#### RULING OF COURT

The Applicants brought this application under the provisions of Rule 39 (1) (a) of the Judicature (Supreme Court) Rules as well as section 98 of the Civil Procedure Act for orders that leave be granted for the Applicant to file an appeal against the judgment and orders of Justices of the Court of Appeal delivered on 19th of June, 2020 and for costs of the application to be in the CAUSE.

The grounds of the application averred in the Notice of Motion are that the Applicant is not satisfied with the judgment of the Court. Secondly, the

25 Applicant can only file an appeal to the Supreme Court with the leave of the Court of Appeal or the Supreme Court. Thirdly, that it is in the interest of justice that the application is granted.

The Applicant's application is further supported by the affidavit of the Applicant Mr. Sekyanzi Sempijja which in brief discloses the following facts: The Applicant filed Civil Suit No 028 of 2007 in the Chief Magistrates Court of Entebbe at Entebbe for a declaration inter alia that he is a bona fide ^JrL^ -..:+ ---.^--r., \_l-L^ -L:-I -^^:-+-^+^- -^..,-+ -..1^l ;- L;^ r-.,^..- \JLLrlHurrL \Jl (lrtj rulL l.rt=-f-=l iF iI lf'--r lleyri(' o Lcr Lvu, ( a(l'L!i .l i?l':!'rs'vur-5

and declared that he is a bona fide occupant on the suit land and ordered the Respondent to compensate the Applicant.

The Respondent appealed to the High Court which upheld the judgment of the Chief Magistrates Court that the Applicant is a bona fide occupant of the O suit property and that the Applicants should be compensated at the rate to be determined by the Government Valuation Surveyor. The Respondent further appealed to the Court of Appeal which overturned the judgments of the lower courts.

20 25 The Applicant states that upon perusal of the judgment of the Court of Appeal and with the advice of his lawyers Messieurs Luzige, Lubega, Kavuma & company advocates, he discovered that the learned Justices of the Court of Appeal misinterpreted the law governing bona fide occupancy vis-d-vis the facts of the case and wrongly held that he is not a bona fide occupant of the suit property. On the advice of his lawyers he believes that the decision of the Court of Appeal raises serious questions of law of public importance which require further interpretation by the Supreme Court as to whether he is a bona fide occupant on the suit land or not having acquired his interests through inheritance from his father who died in 1985. He states that his father had lived on the suit land for more than 12 years before the promulgation of the 1995 Constitution. He is not satisfied with the judgment of the court as regards bona fide occupancy. Further that the appeal can only be lodged in the Supreme Court with the leave of the Court of Appeal or the Supreme Court and that it raises very important questions of law which need to be addressed by the Supreme Court.

5 In reply the Respondent, Prof. Gordon Wavamunno deposed to an affidavit opposing the application. The facts in the affidavit in reply are that the Applicant filed Civil Suit No 028 of 27 seeking vacant possession of land comprised in Busiro Block 447 Plot 5, Land at Nkumba Wakiso District registered in his name and which he later sold (hereinafter referred to as the suit property)- The Respondent on the other hand stated that the Applicant -lgf-Lrespasser on the sLrit p!'of'aa, 2nd preyorl for,disrnissal of the suit. Th- - Entebbe Chief Magistrates Court delivered judgment in Civil Suit No - O28/2O07 against the Respondent and the Respondent appealed to the High Court. The High Court upheld the decision of the learned trial magistrate whereupon the Respondent further appealed to the Court of Appeal. The Court of Appeal found that the Applicant was not a bona fide occupant having occupied the suit property for 10 years prior to 1995 when the Constitution of the Republic of Uganda was promulgated. 10 15

With the advice of his lawyers he supports the decision of the Court of Appeal. He contends inter aliathat the application does not raise any matter of great public or general importance but is meant to satisfy the personal interests of the Applicant. Therefore, he believes on the basis of advice of his lawyers, that the application does not rneet the legal requirements for appealing against the decision of the court. 20

In rejoinder the Applicant reiterated the grounds of the application and states that it fulfils all the legal requirements for lodging an appeal to the Supreme Court with the leave of the Court of Appeal. 25 o

The application was fixed for hearing on 12th October, 2020 but none of the parties appeared in court. The court had earlier on issued directives that the court should be addressed in written submissions in light of the global pandemic of Covid 19. The Applicant and the Respondents Counsel variously filed written submissions. The Applicant through M/s Luzige, Lubega, Kavuma & Co. Advocates filed written submissions in support of the

5 application on 21st August, 2020. The Respondent on the other hand through M/s Ligomarc Advocates filed written submissions in reply on 24th August, 2020. The Applicant further filed submissions in rejoinder on 25th August, 2020. We reserved ruling to be delivered on notice.

## Submissions of the Applicant's Counsel.

The Applicant's Counsel submitted that the Applicant was dissatisfied with the judgment of the Court of Appeal on the ground that the learned Justices of Appeal erred in law when they held that he never qualified as a bona fide occupant holding that he had occupied the land for only 10 years before the coming into force of the 1995 Constitution thereby neglecting the time of occupation and utilisation of the suit land by his late father from whom he inherited the suit property. 10 15

20 25 He submitted that the decision of the Court of Appeal not only affects the Applicant but has far reaching consequences on several other bona fide occupants who risk losing their equitable interest in land which are guaranteed. The import of the decision is that all bona fide occupants must have been alive and in occupation of such property for more than 12 years before the coming into force of the 1995 Constitution regardless of whether they inherited it or acquired it through other means prescribed by law from O a person who meets the requirements of a bona fide occupant contrary to the provisions of the Land Act. In the premises, the Applicant's Counsel submitted that the intended appeal raises matters of great public importance as it is aimed at streamlining the law on bona fide occupants in as far as it relates to how they can legally acquire and pass on their interest in land.

The Applicant's Counsel relied on section 6 (2) of the ludicature Act for the proposition that where an appeal emanates from the decision or order of a chief magistrate in the exercise of his or her original jurisdiction but not including an interlocutory matter, the aggrieved party may lodge a third 30

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. Learned Counsel for the Applicant further relied on rule 39 (1) of the judicature (Supreme Court Rules) Directions for the procedure. 10 5

Th'dffiptitETtRounsel submitted that TE' ttEponffiffI-having lost the opportunity to apply formally at the time of delivering the judgment, filed a formal application for leave in the Court of Appeal. Further, he submitted that the decision of the Court of Appeal that the Applicant had occupied the land for only 10 years prior to the coming into force of the 1995 Constitution neglected the time of the occupation and utilisation of the suit property by the father of the Applicant (deceased who died in 1985). He contended that the decision has far-reaching consequences on several other bona fide occupants who risk losing their equitable interest in land which are guaranteed by the reason that all bona fide occupants must have been alive and in occupation of the property for more than 12 years prior to the coming into force of the 1995 Constitirtion regardless of whether they inherited it or acquired it through other means prescribed by law from a person who meets the requirements of a bona fide occupant, contrary to the provisions of the Land Act.

a 15

Counsel submitted that that the Court of Appeal limited the scope of a bona fide occupant as defined by section 29 (2) (a) of the Land Act and forgot to apply it in conjunction with section 29 (5) to arrive at a just decision as was done by the trial court. He submitted that section 29 (5) of the Land Act provides that any person who has purchased or otherwise acquired the interest of the person qualified to be a bona fide occupant under this section shall be taken to be a bona fide occupant for purposes of the Land Act. The Applicant further submitted that inheritance is one of the ways through 30

which a bona fide interest in land can be passed on from one person to $\mathsf{S}$ another consequently the Applicant need not have been on the suit property for 12 years or more unchallenged provided that his father from whom he inherited the said interest had satisfied the requirement of a bona fide occupant which the trial court clearly established and the same was upheld

by the High Court on appeal. 10

> The Applicant's Counsel submitted that Article 237 (8) and (9) of the Constitution enabled Parliament to enact the Land Act in 1998 with a view to streamlining the laws and relationships of bona fide and lawful occupants to guarantee security of occupancy. He submitted that the decision has farreaching consequences on all bona fide occupants who fall in the category

15 of the Applicant and therefore the court ought to grant the Applicants application to streamline the law. He prayed that the application is allowed with costs.

# **Submissions of the Respondent's Counsel**

- The Respondent's Counsel after stating the facts submitted that the 20 application is misconceived in so far as it seeks leave of the Court of Appeal to appeal to the Supreme Court under rule 39 (1) (a) and section 98 of the Civil Procedure Act. He submitted that the decision of the Court of Appeal is final and not interlocutory where the leave of this court is required. - The Respondents Counsel submitted that an Applicant who intends to appeal 25 to the Supreme Court against the decision of the Court of Appeal is required to apply for the issuance of a certificate that his intended appeal concerns matters of great public or general importance in accordance with the section 6 (2) of the Judicature Act Cap 13 2000 laws of Uganda. He submitted that - the Applicant is applying for leave of this court instead of a certificate and 30 therefore the application ought to be dismissed with costs. s Without prejudice, the Respondent's Counsel addressed the court on the merits of the application and relied on the decision in Asumani Mugyenyi v M. Buwule; Civil Application No 0245 of for 2011 where the Court of Appeal held that in an application of the nature, what needed to be resolved is whether the intended appeal to the Supreme Court concerns a matter of 10 law of great public importance. Secondly, whether the intended appeal raises \_\_a rnatteag[-[w of general orrblic import-ancc\_ . ..-

The Respondent's Counsel submitted that the onus is on the Applicant to satisfy the court that the question to be determined on appeal before the Supreme Court is one of great public or general importance. Further the law does not define the terms "great importance and or general importance" as stipulated in section 6 (2) of the Judicature Act. However, in Asumani Mugyenyi v M. Buwule (supra) the Court of Appeal cited with approval the decision of the Supreme Court of Kenya in Hermanus Phillippus Steyn v Giovani Gnecchi - Ruscone; Application No 4 of 2010 in which the Supreme Court stated that:

A matter of general public interest could take different forms for instance, an environmental phenomena involving the quality of air or water which may not affect all people, yet it affected an identifiable section of the population, the statement of law which may affect a considerable No of people in the commercial practice or in the enjoyment of fundamental or contractual rights or a holding on law which may affect the proper functioning of public institutions of governance or the courts scope for dispensing redress or the mode of discharge of duty by public officers

learned Counsel reproduced the principles in the above decision as follows:

30 for a case to be certified as one involving a matter of public importance, the intending appellant ought to have demonstrated to the court that the issue to be canvassed on appeal was one the determination of which transcended the circumstances of the particular case and had a significant bearing on the public interest;

- where the matter in respect of which certificate was sought raised a point of law, the intending appellant ought to have demonstrated that such a point was a substantial one, and the determination of which ...-..rJ L^.,^ ^ -:^-:J:-^^+ L^--:^^ ^^ +l' ^ ^,,!-l;- \_Y-:l :^+^.^-+. lclV(- u JIya ial'Lu,,\ vU(l,'.,:i'=rr?ir- . trE::l:-r tjJi, ! - such a question or questions of law must have arisen in the lower courts and must have been the subject of judicial determination;

- where the application for certification had been occasioned by a state of uncertainty in the law arising from contradictory precedents, the Supreme Court could either resolve the uncerlainty as it may determine, or refer the matter to the Court of Appeal for its determination; 15 - mere apprehension of miscarriage of justice in the matter most apt for resolution in the lower superior courts was 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 ought to fall within the terms of Article 163 (4) (b) of the Constitution; 20 - the intending Applicant had an opportunity to identify and concisely set out the specific elements of general public importance which he or she attributed to the matter for which certification was sought; - . determinations of fact it contests between parties were not by themselves, a basis for granting certification for an appeal before the Supreme Court. 30

The Respondents Counsel further submitted that in Asumani Mugyenyi v Buwule (supra), the court found that the matter to be of general public

5 importance because it was likely to affect 50,000 people who claimed to have had the kibanja holdings on the Respondents titled land though they were not necessarily parties to the intended appeal. In Belinda Murai and 9 others v Amos Wainaina [1978] KALR, the court found that the matter raised a question of general public importance in that it would affect a large No of citizens of Kenya and not merely the parties to the intended appeal. 10

in the piE-niiiS the@ondent's Counset conteiidilhit the Applicant has not satisfied the court that there is a question to be determined on the appeal which is of great public or general importance. On the contrary the Applicants intended appeal is for his personal benefit only and involves the determination of fact in controversy between the parties.

## Ruling of court

We have carefully considered the Applicant's application and the submissions of the parties.

Section 6 (2) of the Judicature Act Cap 13 provides that:

(2) applies 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 orig inal ju risd iction, 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. 20 o25

The Respondent's Counsel objected to the Applicant's application on the ground that the Applicant applied for leave to appeal rather than for a certificate of great public or general importance in terms of rule 39 (1) (a) of the .ludicature (Supreme Court) Rules Directions which provides that:

(a) where an appeal lies if the Court of Appeal certifies that the question or questions of great public or general importance arise, application to the court of

o 15

- 5 Appeal shall be made informally at the time when the decision of the court of appeal is given against which the intended appeal is to be taken; failing which a formal application by notice of motion may be lodged in the Court of Appeal within 14 days after the decision, the costs of which shall lie in the discretion of the Court of Appeal; and. . . - The decision of the Court of Appeal was delivered on l-9th June, 2020 by the registrar of the Court of Appeal and therefore no informal application could have been made. On the other hand, the Applicant filed this application on 25th June, 2020 within 74 days as stipulated in the above rule. Even though in order (a) which is the only order sought, the Applicant seeks leave to be granted to file an appeal against the judgment or orders of the Justices of the Court of Appeal delivered on 19th )une,2020, this was obviously a slip of the pen because the Applicant cited rule 39 (1) (a) of the Judicature (Supreme Court) Rules Directions. However, in the submissions and in the affidavit in support of the application the Applicant clearly states that there are serious questions of law of general public importance that needs to be addressed by 10 15 20

the Supreme Court. It was therefore clearly an error of drafting and we hereby rectify it since both parties have addressed the court on whether a certificate that questions or questions of great public importance arise should be granted. Secondly, the Respondent addressed the court on the merits and no question of prejudice arises. 25

The Court of Appeal at page 22 of lhejudgment considered section 29 of the Land Act which defines a bona fide occupant. The crux of the decision rests on the definition of a bona fide occupant undersection 29 (2) (a) of the Land Act which provides that:

(2) "Bona Fide occupant" means a person who before the coming into force of the Constitution -

(a) had occupied and utilised or developed any land unchallenged by the registered owner or agent of the registered owner for 12 years or more; or

5 (b) had been settled on land by the Government or an agent of the Government, which may include a local authority.

The court relied on the dictionary meaning of "occupy" to mean the exercise of physical control or possession of land or having the actual use of the land. The Applicant would like this court to stretch the meaning of occupation to include an interest that can be inherited.

Ihe coffi'T0l\$iddressed the question o-fFhefFEr-f6e-fffier of the Applicant who dled in 1985 was a kibanja holder and found that there was no evidence in support of that contention. He was therefore an "occupant" and the question was whether he could pass on the interest of occupancy. This court clearly found that the interest under section 29 (2) (a) of the Land Act has Constitutional origins and clearly deals with an interest conferred by the Constitution of the Republic of Uganda as well as the Land Act. It recognises an occupant who had occupied the property unchallenged by the landlord of registered property for 12 years prior to the coming into force of the Constitution. The law does not deal with prescription in section 29 (2) (a) of the Land AcL It recognises an existing interest at the time of promulgation of the Constitution.

As a matter of fact, the court found that the trial court and the first appellate couft established that the Applicant had been in occupation for 10 years prior to the coming into force of the Constitution. There was no evidence of how long the father of the appellant had been in occupation and there was an attempt to add that indefinite period, which period is indeterminate because there is no evidence about it, to add to the 10 years of the Applicant's occupation prior to the coming into force of the Constitution. The addition has to be via the law of succession. However, the court found that occupancy per se cannot be inherited.

The court addressed the question of whether there was continuity in the occupancy of the Respondent's father as well as the subsequent occupancy

s of the Respondent and found that to interpose the issue of whether the estate of the deceased was administered presupposes that one is dealing with the interest of a bona fide occupant which had already accrued or any other interest that can be recognised by the law such as an equitable interest. h a person does not faLuaderseclion29,Jl (a) of the Land Act.

- -HowsyS.f.lue 10 Both the learned chief magistrate and the first appellate court found that the Applicant is a bona fide occupant. Any other interest was not pleaded or addressed by the trial court or first appellate court. The only question is whether he is a bona fide occupant under section 29 (2) (a) of the Land Act. - 15 In the premises, the matter cannot be stretched any further and the Applicant cannot be heard to argue another interest other than that of a bona fide occupant which is clearly defined by section 29 (2) (a) of the Land Act and we find that there is no question or questions of law of great public or general importance which arise. We accordingly find that the Applicant's application lacks merit and we hereby dismiss it withlcosts.

Dated at Kampala ,h"\fluy of October 2020

Kenneth Kakuru

Justice of A eal

Geoffrey Kiryabwire

Justice of Appeal

Christopher Madrama

## Justice of Appeal

1,.-\*