Tinkamanyire v Kihika & Another (Civil Application 34 of 2020) [2025] UGCA 84 (24 March 2025)

Full Case Text

5 THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA (Coram:Richard Buteera DCJ, Luswata & Kazibwe Kawumi, JJA.) crvrL APPLTCATToN NO. 034 0F 2020 (Arising from Civil Appeal No. 0085 of 2OL4l (Arising from Fort Portal High Court Civil Appeal No. 003 of 2006) (Arising from Fort Portal Chief Magistrate's Civil Suit No. 052 OF 20O2l

#### ABSOLOM TINKAMANYIRE APPLICANT

#### VERSUS

1. JOHN KIHIKA 2. KAIDOLI WILLIAM RESPON DENTS

#### RULING OF COURT

This application was brought under Section 6 (2) of the Judicature Act, Rule 39 (1) (a) of the Judicature (Supreme Court Rules) Directions seeking for orders that a Certificate of importance be granted to enable the Applicant proceed to the Supreme Court against the Court of Appeal judgment in Civil Appeal No.0086 of 20L4. He also sought for costs to abide the result of the appeal.

The grounds of the application which are also repeated in the affidavit supporting the Application sworn by the Applicant are that;-

a) The Court of Appeal in its decision in Civil Appeal No.0086 of 201,4 set aside the judgment and decree of the High Court sitting as an appellate court, and which judgment with respect to the suit land had been entered in favour of the Applicant herein.

b) The decision of the Court of Appeal was based on their finding that the Applicant herein purchased the suit Iand from one Egaate Katenga who did not have authority to sell the suit land to the Applicant.

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- 5 c) lt was a further finding of the Court of Appeal that the Applicant was barred by the equitable doctrine of lashes from claiming the suit land. - 10

- d) The Applicant having been dissatisfied by the decision of the Court of Appeal above,intends to appeal against the whole decision to the Supreme Court. - e) The intended appeal concerns a matter of great public and general importance,for there are questions arising from the said judgment concerninhg whether the Applicant was barred by the equitable doctrine of lashes from claiming the suit land,and whether a sale by a sole beneficiary of an estate without Letters of Administration is void or voidable. - f) That it is in the interest of substantive justice that this Application is allowed and a Certificate of importance is issued to the Applicant so that he can proceed to appealto the Supreme Court against the judgment of the Court of Appeal,and so that the questions of General and Public importance aforementioned can be addressed by the Supreme Court. 20 25

## Background

The background to the Application is that the Respondnets succesfuly instituted Civil suit No.0052 of 2OOZ against the Ap!licant in the Chief Magistrate's court of Fort Portal for trespass to L3 acres of customary land located at Nyakabale, Kyamutasa Parish Kyenjojo District. The Respondents claimed to have acquired the land through inheritance in portions of of 5 and 8 acres respectively for each of them while the Applicant claimed to have purchased 50 acres from one Egaate Katenga.

The trial Magistrate found that the Applicant was a trespasser on the land and that the transaction between the Applicant and Egaate Katenga was voidable and unlawfull since she did not have Letters of administration.

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- 5 The Applicant appealed to the High Court on grounds that:- - 1. The learned trial magistrate failed to evaluate the evidence before her and thus came to a wrong conclusion - 2. The learned trial magistrate ered in law in holding that a one Egaate Katenga had no tittle in the land to passs on to the Respondent.

The High Court set aside the judgment of the trial magistrate on grounds that her decision that Egaate Katenga had no Letters of administration and thus could not sell the land was not borne out of evidence. The Court further found that the trial Magistrate did not consider the inconsistencies and contradictions in the evidence adduced by the Respondents which should have led her to make a finding for the Applicant.

Being dissatisfied with the judgment of the High Court, the Respondents appelad to this Court on 5 grounds as below:- 20

- 1. The learned Judge on appeal erred in law when he failed to properly re-evaluate the evidence on record which occasioned a miscarriage of justice to the appellants. - 2. The learned Judge on appeal erred in law when he found that one Egatte had authority to sell the suit land to the Respondent. 25 - 3. The learned Judge on appeal erred in law when he failed to find that the appellants were lawful owners of the suit land on account of inheritance and adverse possession - 4. The learned Judge on appeal misdirected himself when he found that there were contradictions and ionconsistencies in the appelants' evidence.

5. The learned Judge on appeal misdirected himself when he allowed the appeal and set aside the judgment, decree and orders of the lower Court.

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- 5 The Court of Appeal found that the main issue for determination was ownership of the land and upon re-evaluation of the evidence, it was unanimously found that Egaate could not have passed good title to the Applicant since she lacked Letters of Administration. The Court further held that the Applicant was estopped from bringing any action against - the Respondent on account of the Law of Limitaion since they had been in possession of the land he allegedly bought for over 1-5 years. 10

The Respondents filed an affidavit in reply sworn byJohn Kihika, the L't Respondent in which he notified Court of the demise of the 2nd Respondent. He contends that the application does not disclose that the intended appeal to the Supreme Court concerns a matter of law of great public or general importance.

It is further contended that the application lacks merit and is only intended to waste Court's time. The 1st Respondent urged the court to dismiss the Application with costs.

- !n rejoinder, the Applicant averred, that he is not aware of the demise of the 2nd Respondent. He contends that the question regarding the right of a beneficiary to an estate selling his/her share with or without letters of administration is of general or great public importance that needs to be addressed by the Supreme Court. 20 - The Applicant further contends that the question of a beneficiary selling his or her share of an estate without letters of administration affects a considearable number of local Ugandan Community in their estate beneficial dealings with third parties. 25

Counsel for the Applicant further contended that poor people with beneficial interests in estates of deceased persons cannot afford to acquire Letters of Administration. He argues that the questions raised are of great public importance and it is in the interest of justce for them to be considered by the Supreme Court. 30

## 5 Representation

Mr. Sserunjogi Brian appeared for the Applicant while Kusiima lvan appeared on brief for Bwiruka Richard, Counsel for the Respondents. Counsel were directed to file written submissions which the Court adopted as their arguments in considering the application.

# 10 lssues for consideration

- 1. Whether the Applicant has sufficient grounds for the grant of a Certificate of importance - 2. What remedies are available to the parties - 15

## Submissions of counsel

While submitting on the first issue, counsel for the applicant cited the case of Sekyanzi Sempijja V. Prof. Gordon Wavamuno [2023] UGSC 28 where it was held that where a dispute arose from the Chief Magistrate's Court execrcising its original jurisdiction, the Court of appeal is the final appellate court on matters of !aw and fact. He thus submitted that a third appeal can only be entertained on a Certificate given by the Court of appeal or on leave being granted by the Supreme Court to the effect that the appeal raises one or more matters of public or general importance. 20

Counsel for the Applicant relied on the same authority in which the Supreme court guided on what constitutes a matter of great public importance;-

- a) The matter raises a quation of law of great public importance - 30

- b) The matter raises questions of general importance - c) That Court would grant Ieave if it considers that in order to do justice the appeal must be heard. Anything relevant to doing justice will be considered including questions of general public importance.

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5 Counsel submitted that in Sekyanzi Sempijja V. Prof. Gordon Wavamuno (Supra) the fact that the issue concerned a kibanja interest on mailo land which affected a number of people, the certificate was granted by the Court.

He also cited the case of Kato Bumali V. Uganda [2020] UGSC 14 while

quoting Namuddu Christine V. Uganda [2001] UGSC 2 where it was held that leave will be granted by the court in its overall duty to see that justice is done. Counsel submitted that the matter intended to be appealed against affects many people and it is just fair that the Supreme Court makes a final determination on it as a matter of juridical importance. 10 15

Counsel submitted that sufficient gorunds were disclosed for the grant of a certificate to appeal to the supreme court on the following issues;-

- a) Where the issue of possession of letters of administration was not combed during the trial and was left hanging , whether the same is a conclusion without proof , that the witness didn't have letters of administration. - b) Whether a beneficiary disposing of her beneficial interest in an estate without letters of administration makes the sell void or voidable, and if the same is voidable, what are the remedies to the purchaser of such land, and the question whether the purchasers in such voidable transactions canbe taken to have bought the land unlawfully. - c) There was a question regarding the limitation period and when a party can be barred from instituting a suit by limitation. 30

As to what remedies are available to the parties, counsel submitted that a certificate of importance should be issued and the costs of the application be provided for by the Court.

#### 5 Respondent's submissions

Counsel for the Respondnet submitted that before a third appeal is lodged in the supreme Court, the appellant must obtain a certificate of importance from the court of appeal showing that the appeal concerns a matter of great public or general importance. He cited section 5 (2) of the Judicature Act to support his submission.

Counsel also cited the authority of Rwabuhemba Tim Musinguzi V. Harriet Kamakune [2009] UGCA 34 where it was held that the court wil! grant a certioficate where the court from which the appeal is being made has not properly settled some aspect of the law or where it is considered that justice requires that the appeal should be heard.

He argued that in this kind of application, the Applicant must show that the intended appeal raises a question or questions of great public or general importance. lt was submitted that the Applicant failed to prove the requirements for the application to be granted. Counsel submitted

that the Respondnets were in possession of the land and the Applicant started trespassing on it in 1998. 20

It was submitted that the applicant claimed to have bought the land in 1983 but never used it from 1983 until L998 . Equally the said Egaate who testified as DW3 claimd to have obtained the land from her late son but failed to show any Letters of administration.lt was argued that the judgment of the Court of appeal is well reasoned and the application does not rasie any matter of law of great public or general importance.

Counse! submitted that the dispute has been in court since 2002 and the alleged questions were ably resolved. Counse! argued that it is in the interest of society as whole that litigation must come to an end and that when a litigant has obtained a judgment from a court of justice, he or she should not be deprived of the fruits of the judgment without solid reasons. Counsel invited Court to dismiss the application with costs. 30 35

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## 5 Consideration by the Court

(1).

We have considered the application, the affidavit in support, affidavit in reply as well as the affidavit in rejoinder. We have also considered the submissions, the authorities cited by both counsel as well as those not cited but are relevant to the application.

The right to appeal against a decision emanating from a Chief Magistrate's Court and the requirement for one to lodge a valid third appeal are provided for in Section 6 of the Judicature Act which provides that; r.0

"6. Appeols to the Supreme Court in civil motters

(2) Where an appeal emonates from a judgment or order of a chief mogistrate or a mogistrote grade I in the exercise of his or her original jurisdiction, but not including an interlocutory motter, a party oggrieved may lodge o third oppeol to the Supreme Court on the certificote of the Court of Appeal thot the oppeal concerns o matter of low of great public or generol importonce, or if the Supreme Court considers, in its overoll duty to see thot justice is done, that the appeol should be heard."

- It can be deduced from the above provision of the law that a third appeal to the Supreme Court can only be entertained on a certificate given by the Court of Appeal or where the Court of appeal refuses to grant the requisite certificate, on leave being granted by the Supreme court, if is satisfied that the matter conerns a matter of law of great public or general importance. 25 30 - The Judicature Act does not define what amounts to "great public or general importance". ln Namuddu Christine V. Uganda [2001] UGSC 2 it was stated that for a question to be regarded as one of public or general importance, it should be sufficiently general or public in application, as would need settlement or clarification by a higher appellate Court. 35

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- 5 The Supreme Court of Kenya in Hermanusphillipus Steyn Versus Giovanni Gnecchi-Ruscone [2013] KESC 11 (KLR) (Civ] issued the criterion to be used to determine whether a matter is of great public or general importance. The Court was of the view that the following are the guiding principles;- - 10

- (i) For a case to be certified as one involving a matter of general or 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; - (ii)Where the matter in respect of which certification is sought raises a point of law, the intending appellant must demonstrate that such a point is a substantia! one, the determination of which will have a significant bearing on the public interest; - (iii) Such a question or questions of law must have arisen in the Court or Courts below, and must have been the subject of judicial determination; - 25

- (iv) Where the application for certification has been occasioned 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; - (v)Mere apprehension of miscarriage of justice, a matter most apt for resolution in the !ower 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 (4Xb) of the Constitution; - (vi) The intending applicant has an obligation to identify and concisely set out the specific elements of "general public importance" which he or she attributes to the matter for which certification is sought; - 40

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

10 We shall take into account the above principles while determining whether the Applicant established sufficient grounds for the grant of a certificate of i mportance.

The Applicant argued that the intended appeal conerns a mater of great public or general importance in respect to the following questions arising from the judgment of Court of appeal as herebelow'-

#### 15 1. Whether a sale by a sole beneficiary of an estate without letters of administration is void or voidable; and

# 2. Whether the applicant was barred by the equitable doctrine of lashes from claiming the suit land

20 The Court of appeal resolved the issue of the ownership of the land. The lead judgment by Justice Eziekel Muhanguzi clearly shows the reevalutation of evidence as regards the contradictions that had been pointed out by the learned Judge. lt was poited out that;-

> "The testimony of PW3 was contradictory ond wos properly disregorded by the appellote Judge. He testified thot the land wos given to the L't Appellant by o one Komolo who got it from the L't Appellant's father which contradicted the evidence of the 1't oppellant who stated thot he got the lond from his late fother.

30 35 However, the testimony of the 1-'t oppellant wos corroboroted by the testimony of PW4 who testified that the soid lond belongs to the oppellants and was bequeathed to them by their lote fothers. We reiterate our eorlier findings thot DWj could not poss good title to the respondent for the reoson thot she lacked letters of odministration granting her power to sell the suitland."

- 5 From the analysis of the evidence, the trial court belived the Respondents'version and further found that DW3 did not have powers to sell the land. The question as to whether a sale of land by a sole beneficiary was void or voidable never arose on appeal and cannot be flagged as a question for determination by the third appellate court. - The alleged status of the said Egaate being a sole beneficiary in her son's estate is also question of fact. lt never arose before any of the Iower courts for the Applicant to raise it as a question of general or public importance. lt was in fact noted by the Court of Appeal that there was no proof that the land was owned by Egaate's son in the same way the respondents did not have documentary evidence to prove their 10 15 - bequests.

We hold that it is not enough for one to merely state that a question of great public or general importance arises without showing the Court how it arose. The record should reflect that such a question arose and was either not resolved, mishandled and/or ignored. The alleged question was neither a ground of appeal in the first appeal, nor in the second appeal and cannot be considered for consideration in a third appeal.

lssue one is resolved in the negative.

Mutale V. Balisigara Stephen l2O22l UGCA 3

- The second question alleged to be of great public or general importance is that the applicant was barred by the equitable doctrine of lashes from claiming the suitland. As noted above, the issue to be appealed must be one of law which affects or relates to or is applicable to the nation at large, and not just to the parties in the individual case. This position was re-echoed by the Court in Major (RTD) Roland Kakooza 25 30 - The Applicant in his own evidence stated that he bought the land in 1983 and appeared to have started using it in 1998, well after the period of limitation.

#### LL of L2

The Court correctly observed that he was barred by the doctrine of laches from lodging a claim against the Respondents who had stayed on the land for more that 1,2years from when he allegedly bought it. 5

The applicant did not show how the second issue affects the nation at large and we do not find anything to be settled by the Supreme Court relating to the doctrine of lashes which only affected the Applicant. lt is not a matter of general or public importance that merits consideration by the Supreme Court.

ln conclusion,we decline to certify that the intended third appeal raises any matter of law of great public or general importance. We dismiss the Application with costs.

Dated and delivered at Kampala th is .k?.lffiv of O{t^L 202s

RICHARD BUT ERA DEPUW CHIE JUSTICE

EVA K. LU ATA JUSTICE OF APPEAL

30 MOSES KAZIBWE KAWUMI JUSTICE OF APPEAL