Tumwesige Abraham v Jemima Kisoke (Civil Appeal 218 of 2016) [2025] UGCA 212 (26 June 2025)

# THE REPUBLIC OF UGANDA

#### IN THE COURT OF APPEAL F UGANDA HOLDEN AT FORTPORTAL

[Coram: Dr. F. Zeija,DCJ, borion-Ba rish aki, E. N amb ayo, J J A. l

#### CIVIL APP L NO. 0218 0F 2016

TUMWESIGE ABRAHAM APPELLANT

## VERSUS

JEMIMA KISOKE RESPONDENT

(An appeal arising from the decision in the H h Coutl of Uganda at Fort Pofial (Batema. J,) dated August 29,2015 in Civil AppealNo.0033 ot 2014)

# JUDGMENT O DR. FLAVIAN ZEIJA. DCJ

- t1l This is a second appeal against lhe decision of Hon. Justice Batema N. D. A in Civil Appeal N0.0033 of 2014. The original suit - Civil Suit N0.0084 of 2010 from which the flrst appeal arose was filed by the respondent. - l2l The subject of the original suit land situate at Busengerwa Village, Kirindi Parish Busaru Sub County in Bundibug o District, which the respondent claimed she had acquired with Stephen Kisoke as husband and wife

## Background

- t3l The original suit (Civil Suit No. 0084 of 2010) was filed by the respondent against the appellant as the 1sr defendant and Stephen Kisoke as the 2no defendant. The respondent claimed that the suit land constituted family land and the 2nd defendant sold it to the appellant unlaMul y without her consent. The respondent sought a declaration that the appellant wa a trespasser on the suit land, an eviction order, a permanent injunction, general da ages and costs of the suit - t4l ln answer to that suit, the respondent averred that the appellant did not have a cause

Page 1 of 10

of action against him and the suit was statute barred. as not maintainable at law. Further that the plaint

- I5l ln his ruling, the trial Magistrate held that the plaint did not disclose a cause of action and that 13 years had lapsed OetJeen the time the respondent and the 2nd defendant left the land and when the suit was filed. He upheld the preliminary objections and struck out the suit for not disclosi(g a cause of action and for being time barred. - I6l The respondent was dissatisfied ta/th the decision and appealed to the High Court. The respondent averred that the kial Magistrate had erred in law and fact in his findings. The appellant Judge foUnd in favour of the respondent and allowed the appeal, hence this 2nd appeal.

#### Grounds of Appeal

- 17) The appellant filed this second appeal on the following 11 grounds; - 1. The lst Appellate Court ened in law and procedurally(sic) when in handling the appeal it did so as if the coutt of first instance had heard the evidence and not dismissed fhe suit on preliminvry objections which has occasioned a miscaniage of justice. - 2. The 1st Appellate Courl erred in law and procedurally(sic) when in determining the appeal it relied on extraneous matters rather than confining itself to the plaint to determine whether or not the plaint disclosed a cause of action which has occasioned a miscarriage of justice. - The l,t Appellate Court erred in law when it held that the respondent become aware of the tespass in 2005 when atthe time the suil was dismissed no evidence had been led to that effect and when it was not pleaded in the plaint that the respondent become aware of (he trespass in 2005 and not before. (sic) 3 - soned decision departing from 4 The 1st Appellate Courl ened in law when if sef aside the well-rea of the court of first instance withouf assigning reasons why it was

Pag€ 2 of 10

th at well-rea soned d ec i sion.

- 5. The 1,t Appellate Court erred of the Land Act. law when it held that the sale was contrary to 5.39 - 6. The l,t Appellate Couft ened law when it held that the p/arnl disclosed a cause of action whereas not. - 7. The l"t Appellate Court whereas it was. erred when it held that the suit was not time barred - 8. The 1't Appellate Court ened law and procedurally(sic) when it ordered for the eviction of the appellant from the suit land summarily when the plaintiff had not adduced evidence at all to ve her claim and when the appellant had also not been given opportunity to ad ce evidence- - 9. The l't Appellate Court erred <sup>u</sup> proceedings before it to refun 1998 with interest of 8% p.a <sup>&</sup>lt; heen led in the proceedings ol taking into account the develo, 17h April1998. vhen it summarily ordered the znd respondent in the d to the appellate herein the purchase price paid in lnly to cover inflation only when no evidence had <sup>I</sup>the courl of first instance and before it and without pments the appellant had effected on the land since - 10. The 1"t Appellate Court ened Appellate Court, the Court when it ordered the appellant to pay costs in the 1'l t Bundibugyo whose civil suit number was not disclosed and cosfs in the un amed LC1 Court. - <sup>11</sup>. The lil Appellate Court ened <sup>n</sup>law when it ordered the Deputy Registrar of the High Court to tax the bill of osfs for the Court at Bundibugyo whose civil suit number was not disclosed an the unnamed LC1 Court. - {81 The appellate sought orders that;

Page 3 of 10

- 1. The decision of the 1 st Appellde Court be set aside and be substituted with one upholding the decision of the Court of 1st instance. - 2. ln the alternative the appeal b0 heard de novo before a different Judge. - ifferent Magistrate Grade I or Chief Magistrate to ne the suit on merit. 3. lf not the file be remitted to a <sup>c</sup> hear the evidence and determ - pay the costs of this appeal and in the two lower 4. The respondent be ordered to courts,

## Representation

tgl At the hearing, Counsel for the appellant Mr. Ngaruye Ruhindi of M/s Ngaruye Ruhindi, Spencer & Co. Advocates was absent. The respondent was represented by Mr. Bwiruka Richard of M/s Kaahwa, Kafuuzi, Bwiruka & Co. Advocates. On the record was proof of service, the p rties conferencing notes were adopted as the legal arguments

## Case for the appellant

- [10] Counsel for appellant submitted on ground one that the Judge on appeal made flndings of fact regarding the maniage and joint ownership of the suit land. That no evidence had been adduced to prove these facts. lt was Counsel's submission that the first appellate court erred in law and in procedure to make findings of fact where there was no evidence. - I1 1l On ground two, Counsel submitted that the first appellate court ened when it relied on extraneous matters rather than confine itseif to the plaint to determine whether or not it disclosed a cause of action. That the Court was required to look at the plaint only. Counsel submitted that by holding that the sale conkavened Section 39 of the Land Act when the respondent had not pleaded that the sale look place after enactment of the Land Act, the court imported extraneous matters. - itted that the finding of fact that the respondent [12] 0n ground three, Counsel sub

Page 4 of 10


become aware of the trespass in 2005 as held on page 80 of the record of proceedings could only have been proved by evidence.

- [13] On ground four, Counsel submitted that the first appellate court erred when it set aside well-reasoned decision of fle court of first instance without assigning reasons why it was departing from it. The submissions on ground five were the same as ground two. - [14] On ground six and seven, Coudsel faulted the first appellate court for holding that the plaint disclosed a cause of action and that it was not time barred. That the respondent and the 2nd defendanl had left the suit land in 1997 and the suit filed in 2010. That there was an inordinale delay to file the suit for recovery of land. Further that there was no evidence to support the finding that the respondent became aware of the trespass in 2005, Counsel also stated that the case at the LCl Court of Busengenara did not involve the a pellant. p - [15] On ground eight, Counsel submitted that the flrst appellate court issued an eviction order prematurely. Counsel submitted that even if the objections raised on behalf of the appellant were to be overrul{d, the respondent had to lead evidence to prove what she alleged in the plaint before the appellant could be evicted. Similarly, with regards to ground nine, Counsel submitted that the order to summarily refund the purchase price was premature - [16] On the tenth ground, Counsel faulted the Judge on appeal for ordering the appellant to pay costs at the High Cou(, Lower Court and the LC1 Court. Counsel submitted that the Judge on appeal ordered the appellant to pay costs in a suit where he was not a party at the LC1 Court. On he eleventh ground, Counsel submitted lhat in as much as the appellate Judge erred in granting the costs he likewise erred to order the bill taxed by the Deputy flegistrar of the High Court. That the order was unprecedented which ought to bJ set aside.


Page 5 of 10

### Case for the respondent

- ['17] lnreply,Counsel fortheresponddntcitedS. T2(1)oftheCivil ProcedureAct,Rule 32(2) of the Judicature (Court of Appeal Rules) Directions and the case of Balamu Bwetegaine & Anor vs fephania Kadooba Kiiza C. A. C. A No. 57 of <sup>2009</sup> which cited with approval Kifamunte Henry vs Uganda. Counsel relied on these authorities to submit that the 2d qppellate court can interfere with the conclusions of the 1.r appellate court if it upp.rr. J ,nr, the 1,r appellate cou( in consideration of the appeal misapplied or failed to apply the principles set out in such decisions, Counsel argued grounds two, four and \$ix together and submitted that the learned Judge on appeal was justified in his findings that the suit disclosed a cause of action and was instituted within time. - [18] On grounds three and seven,t on whether the suit was time barred. Counsel submitted that the respondent started challenging the appellant's unlaMul possession and ownership of the suit land in 2005 through different authorities. That this is admitted in the written staiement of defence for appellant under paragraph 6 on page 26 of the record of appeBl, - [19] On grounds 1,5,8,9,10 and 11, Counsel submitted that both decisions before the trial Court and the High Court were made before any evidence was adduced by the parties. Counsel agreedthataftlrtheJudgeonappeal ovenuledthetrial Magistrate he should have heard the evidence or referred back the case to the trial Court and conduct a trial, hear the partiqs and determine the issues on merit. Counsel concluded that this court is enjoinbd with powers under Section'11 of the Judicature Act to remit the case to the trial Court to hear the evidence and determine the suit on its merits. ln conclusion, Cornr.l prayed that the appeal be dismissed with costs.

### Duty of the second appellate court

t20l The duty of the second appelpte court is laid down under Rule 32 (2) of the

Page 5 of 10 ### **Judicature (Court of Appeal Rules) Directions which provides that;**

"On any second appeal from a decision of the High Court acting in exercise of its appellate jurisdiction, the court shall have power to appraise the inferences of fact drawn by the trial court, but shall not have discretion to hear additional evidence."

#### **Section 72 (1) of the Civil Procedure Act** also provides that: $[21]$

1) Except where otherwise expressly provided in this Act or by any other law for the time being in force, an appeal shall lie to the Court of Appeal from every decree passed in appeal by the High Court, on any of the following grounds, namely that—

(a) the decision is contrary to law or to some usage having the force of law;

(b) the decision has failed to determine some material issue of law or usage having the force of law:

(c) a substantial error or defect in the procedure provided by this Act or by any other law for the time being in force, has occurred which may possibly have produced error or defect in the decision of the case upon the merits.

The import of this provision is to bar second appeals being filled on matters of fact or matters of mixed fact and law. In this regard, the second appellate court is not required to re-evaluate the evidence but rather to decide whether the first appellate court in approaching its task, applied or failed to apply the principles required of it. Which task is to reappraise the evidence and all the materials of the case, and make its own conclusions as to whether the trial Court's findings were correct (see; Kifamunte Henry v Uganda (Criminal Appeal 10 of 1997) [1998] UGSC 20).

### Consideration of the appeal

[22] The main question for consideration is whether the $1<sup>st</sup>$ appellate court failed in its duty to apply the principles, and whether the orders made were within the realm of remedies for the Judge on appeal sitting as the 1<sup>st</sup> appellate court. In my view, grounds $1,2,3,4,5,6$ and 7 relate to the first question and grounds $8,9,10$ and $11$ related to the second. Therefore, grounds $1,2,3,4,5,6$ and 7 shall be resolved


Page 7 of 10

concurrently as well as grounds 0,9,10 and <sup>11</sup>

### Ground 1,2,3,4,5,6 and 7

l23l The first appellate court was alive to its duty. The appellate Judge highlighted that the gist of the grounds of the appfal were that the trial Magishate erroneously struck out the appellant's plaint and diSmissed the suit for non- disclosure of a cause of action. ln this regard, the trial Judge on page 79 lines 25-35 of the record of appeal held as follows;

> " ............ Court should note tnlt Ue Z,a Respondent on page 3 of the record of proceedings hinselt, admilted lfiat he sold the suit land without lhe Appellants consent and was ready to refunil the money to the lst respondent he had received in 1998.

> The Appellant was able to show that she enjoyed a right, which right was violated and lhe Responde nls were liablf. ln the circumstances the Appellant's pleadings did satisty the essenfial elemenb tor a cause of action to be established..."

l24l From the foregoing, the trial Judge dispensed with his duty as the first appellant court. lndeed, from the record, the suit disclosed a cause of action, however, in the subsequent paragraphs the trial ludge held as thus;

> "The suit land was also sold ofl without the consent of the Appellant which was contrary to Section 39 ol the Land Act.

> Apaft frcm being a wife whose spousal consen( was required hy law, lhe Appellant claimed she was a joint owner. trhe fact that they bought land jointly is enough to give her a cause of action even if s\$e were not a wife. She had a right lo sue for she was being deprived of het Noper\$."

The suit in the trial Court was determined on preliminary objections, From the record of appeal, the facts relied upon by the appellate Judge required evidence to be adduced at the trial. I agree wit{ the submissions of Counsel for the appellant that the Judge on appeal erred in laiv when he relied on matters extraneous to the suit


Page 8 of 10

when no evidence had been led 1o prove the same

- [25] Particularly, I noticed from pagps 1 08 to 1 <sup>1</sup>1 of the record of appeal that the respondent in the instant appeal had sued her husband in the LCll Court which directed her husband to purchasp for her another piece of land. Being dissatisfied, she appealed to Bundibugyo District Land Tribunal vide Civil Appeal No. 005/2005. But interesting, she instead prefdrred an appeal against the appellant in the instant case. The Land tribunal in disniissing her appeal rightly held that it was brought against a wrong party. lt further held that the transaction in dispute was concluded on 17104/1998 and yet the Land Act came into force on 210711998.|t is therefore, abundantly clear that the respon{ent herein could not have consented to a law that did not exist. - t26l lt is my finding that although <sup>t</sup> appellant in their written stateme issue of res judicata was not pleaded by the of defence, the original suit filed in the lower court was res judicata. The subject m ter of the suit had already been determined by a competent Court as against the s me pa(ies. lf the respondent was dissatisfied with the decision of the Land Tribun l, her remedy lied in an appeal to the High Court and not in instituting a fresh suit n the Magistrate's Court at Bundibugyo

### Grounds 8,9,10 & 11

l27l These grounds of appeal arise ftom the orders of the appellate judge in ovenuling the trial Magistrate to wit;

"l allow lhis appeal with costs and give the tollowing orders;

- 1. The 1st Respondent be evicted hom the suit land forthwith. - 2. The 2nd Respondent relunds tho purchase price to the ,sr Respo ndent paid in 1998 with interest of 8% p.a. to cover inflation only. - 3. Ihe Respondents pay the Appdrranf costs in this Court, the Coufi at Bundibugyo and the LCI Cout7.

Ihe Eills ofcosfs shall be taxed by the Deputy Registrar of the High Court et Fott poftel."

Page 9 of 10

$[28]$ It is evident from the above excerpt that there was a substantial error or defect in procedure. The issue for determination before the appellate Judge was whether the original suit was rightly dismissed for lack of a cause of action or for being time barred. I agree with Counsel for the respondent that the Judge on appeal should have remitted the file back for trial on its merits, after his finding that the case was wrongly dismissed on preliminary objections. Proceeding to grant the orders mentioned above without hearing the case on merits is not only procedurally wrong but manifestly illegal.

## **Decision of Court**



### THE RE LIC OF UGANDA

### IN THE COURT OF APPEAL O UGANDA HOLDEN AT FORTPORTAL

lCoram: Dr. F. Zeija,DCJ, boion-Barishaki, D. N ambayo,JJ A. l

#### CIVIL NO. 0218 0F 2016

TUMWESIGE ABRAHAM APPELLANT

### VERSUS

JEMIMA KISOKE RESPONDENT

(An appeal arising from the decisi in the High Court of Uganda at Fort Portal (Batema. J,) dated August 29, 2O15 in Ciuil Appeal No. OO33 of 201a)

# JUDGMENT OF C EBORION BARISHAKI JA

I have had the benefit of reading in and I agree with the analysis, findi nothing useful to add. raft the Judgment of Dr. Flavian Zeija, DCJ gs and conclusions he has reached. I have

+,^ Dated at Fort Portal this }{ da of Cheb rion Barishaki JUSTI E OF APPEAL -t.,(-\4,:-- 2025

## THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA HOLDEN AT FORTPORTAL

[Coram: Dr. F. Zeija,DCJ, Cheborion-Barishaki, E. Nambayo,JJA.]

# CIVIL APPEAL NO. 0218 OF 2016

<table>

TUMWESIGE ABRAHAM APPELLANT

# **VERSUS**

JEMIMA KISOKE....................................

(An appeal arising from the decision in the High Court of Uganda at Fort Portal (Batema. J.) dated August 29, 2015 in Civil Appeal No. 0033 of 2014)

# JUDMENT OF ESTA NAMBAYO, JA

I have had the benefit of reading in draft the judgment of Dr. Flavian Zeija, DCJ. I agree with his finding and conclusion that this appeal succeeds.

| Dated at Fort Portal this $\mathbb{Z}$ | gune<br>day of $\overline{\phantom{a}}$<br>2025 | |----------------------------------------|-------------------------------------------------| | | <b>Esta Nambayo</b><br>JUSTICE OF APPEAL | | | | | | |