Zakaria v Difasi & 3 Others (Miscellaneous Application 7 of 2018) [2018] UGSC 59 (15 October 2018)

### THE REPUBLIC OF UGANDA

## IN THE SUPREME COURT OF UGANDA AT KAMPALA

# (CORAM: OPIO-AWERI; TIBATEMWA; MUGAMBA; BUTEERA; **JJ. S. C; NSHIMYE AG. JSC)**

## **MISCELLANEOUS APPLICATION NO. 07 OF 2018** (ARISING OUT OF CIVIL APPEAL NO. 8 OF 2016)

ZAKARIA ONO ::::::::::::::::::::::::::::::::::

#### **VERSUS**

1. OLANDO DIFASI 2. ODUGO MOSES 3. OYAMBI JOHN 4. OWORA GEOFFREY

**EXAMPLE 20 EXPONDENT**

#### **RULING**

In the Notice of Motion the applicant states that he seeks the following:

- $'a.$ That a Certificate of importance/Leave to appeal be granted to the applicant to appeal to the Supreme Court against the decision of the Court of Appeal of Uganda at Kampala delivered on the 18<sup>th</sup> day of September, 2017 (Hon. Mr. Justice Remmy Kasule, JA, Hon. Mr. Justice Geoffrey Kiryabwire and Hon. Mr. Justice Cheborion Barishaki, JA) in Court of Appeal Civil Appeal No. 08 of 2016. - b. Costs of this application be provided for.'

The notice of motion is supported by an affidavit deponed by the applicant himself. Several grounds are given in the motion and they feature as hereunder:

- The applicant was the respondent in Civil Appeal No. 8 of $(1)$ 2016 where the orders of the Trail Judge on first Appeal at the High Court of Uganda at Mbale in Civil Appeal No. 12 of *2012 were set aside.* - This Honourable Court be pleased to have the Appeal heard $2)$ by the Supreme Court of Uganda. - There is a question of great public and general importance $\overline{3}$ that warrant a decision of this Honourable Court. - That the point of law on ownership of the suit land raised at $4)$ the first appellate Court once not resolved by this Honourable Court would have a significant effect on the *public interest.* - That since the decisions of Court are bound to be followed by $5)$ the lower Courts, the intended appeal raises questions of great public and general importance on ownership of the *suit land to wit:-.* - Whether if the second appellate Court finds that it could $i)$ not interfere in the evaluation of the evidence by the $1^{st}$ Appellate Court it could further proceed to order for the division of the suit land between the parties before Court. - Whether the Court of Appeal as the second appellate ii) Court could exercise its jurisdiction to issue an order in

sharing of the suit property which each party to the suit before Court claim an independent interest of the same.

- Whether a party can forcefully take land through the use iii) of the Resident District Commissioner and the Court sanctions such a procedure and whether that person's occupation of the land is acceptable. - The Court of Appeal declined to grant a Certificate and or $5)$ leave to the applicant to appeal to the Supreme Court against the decision of the Court of Appeal in Civil Appeal No. 8 of 2016 on grounds that copies of the judgments of the trial court and that of the High Court were not available to court. - The applicant intends to have final answers on questions as $6)$ to whether an appellate court on the second appeal has powers to grant orders of dividing the land between the parties where each claims an independent interest. - It is fair, just and equitable that the Certificate of importance $7)$ that the matter concerns a matter or matters of law of great public importance be granted to the Applicant to appeal to the Court of Appeal against the said decision.'

## **Background**

This matter has its genesis in the contest for ownership of a piece of land which is approximately 12 acres. The contest is between the applicant and the respondents. In 1982 one Yekonia Owora, the respondent's father, filed Civil Suit No. MT. 32/82 at the Grade II Magistrate's Court, Kisoko. The defendant in the suit was Alfred Ochieng, father of the applicant. According to the

applicant he, applicant, was sued together with his father in that claim. In the event the suit was unsuccessful. Nevertheless the decision was never appealed.

Years later, in Civil Suit No. 12 of 2012, the applicant sued the respondents in the Chief Magistrate's Court of Tororo. The claim was for ownership of the land each of the parties in the litigation considered exclusively their own. The Chief Magistrate found that contrary to what the applicant herein wanted court to believe the applicant was never a co-defendant in the earlier case before the Grade II magistrate of Kisoko. The Chief Magistrate proceeded to dismiss the case and to order that the land in issue be divided equally between the two litigating parties.

The applicant was not satisfied with the verdict. He appealed to the High Court in Mbale Civil Appeal No. 25 of 2013. That appeal succeeded and the appellant was adjudged owner of the suit property.

Subsequently the respondents appealed the decision of the High Court, in the Court of Appeal Civil Appeal No. 08 of 2016. The verdict of the High Court was overturned by the Court of Appeal which gave judgment for the respondents herein. It was then the applicant applied under S.6 (2) of the Judicature Act for a Certificate of importance/leave to appeal in order for him to be able to appeal to the Supreme Court. In its ruling on that application the Court of Appeal declined to grant the relief because the applicant lacked points of law of considerable public or general importance. The Court found also that there was nothing new which called for determination by the Supreme Court.

$\overline{4}$

The application before us was in the wake of the Court of Appeal ruling mentioned above.

## **Representation**

Mr. Hamza Sewankambo appeared for the applicant while Mr. Brian Othieno represented the respondents. Parties relied on their written submissions earlier filed in Court.

## **Submissions**

It was submitted on behalf of the applicant that the applicant sought this Court to determine whether the applicant has satisfied the conditions for the grant of leave to appeal against the judgment in Court of Appeal Civil Appeal No. 8 of 2016. He added that this Court has wider parameters to determine since besides questions of law it can consider other matters which should be sufficiently general or public in application as would need settlement or clarification by a higher appellate court. Counsel said there was critical need for the Court in the matter before it to make clarifications and settle some questions which if they remained unsettled could affect the public in general. Counsel referred to paragraph 6 of the affidavit in support and the issues related to there as:

- whether if the second appellate Court finds that it could not $(a)$ interfere in the evaluation of the evidence by the $1^{st}$ Appellate Court it could further proceed to order for the division of the suit land between the parties before Court. - *whether the Court of Appeal as the second appellate Court* $b)$ could exercise its jurisdiction to issue an order in sharing of

the suit property which each party to the suit before Court claim an independent interest of the same.

*whether a party can forcefully take land through the use of* $c)$ the Resident District Commissioner and the Court sanctions such a procedure and whether that person's occupation of *the land is acceptable.'*

It was argued by counsel for the applicant that the Court of Appeal on second appeal, having stated that the findings of the High Court on first appeal could not be disturbed could not later turn around and make orders for the division of land which had been adjudicated as being the property of the applicant, by the High Court. It was further argued that the position was likely to be followed by lower courts albeit confusing and that as such it would be of general public application. Namuddu v Uganda [2004] 2 EA 2017 (SCU) was called to aid in this connection. It was urged that Court finds merit in this application.

For the respondent it was submitted that the application does not meet the conditions required for grant of leave to appeal to the Supreme Court. It was argued that neither the application, the supporting affidavit nor indeed the submissions show which conditions are to be addressed and whether those conditions have been satisfied. It was argued that even in the Court of Appeal the applicant failed to secure grant of a Certificate of leave to appeal because no point of law of great or public importance to be determined by the Supreme Court was disclosed in the application. The respondents contended also that the Court of Appeal has powers and jurisdiction to reverse a judgment of the High Court and confirm the judgment of the Magistrate's Court like it did. Concerning the grounds given for this application, the respondents argued that none of the grounds bore merit and that they were not premised on points of law which the applicant would be expected to present before the Supreme Court.

## **Consideration**

Section 6 $(2)$ of the Judicature Act is the basis for this application and it provides:

`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 original jurisdiction, 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.'

It is manifest that besides the familiar factors that are in the purview of the Court of Appeal, the Supreme Court has the latitude to take an overall view of the matter at stake. It behoves the Supreme Court to add to the equation consideration that all should be done in order for justice to be delivered. It was in that vein that this court in **Namuddu v Uganda** (Supra) stated:

'On the other hand, this Court will grant leave if it considers that in order to do justice the appeal should be heard. Anything relevant to doing justice will be considered including questions of law of general or *public importance.*

It appears to us that in deciding whether or not to grant leave we are not restricted to questions of law like the Court of Appeal. We have power to consider other matters.'

Their Lordships went on to say that the Court must be guided by:

'..... the test as to whether the questions involved are of great general or public importance rather than the matters which must constantly occur in criminal trials.

The court did not discuss what is a question of great general or public importance to be of help. But the inference we draw from the ruling is that the question should be sufficiently general or public in application, as would need settlement or clarification by a higher appellate court.

It may be that the expressions we are discussing have not been defined by statutes because each expression covers many circumstances which when considered in a particular case constitute a "question of great general or public importance"."

We can however state that such matters have the characteristics of affecting all or most people in a nation or community. They are significant and impressive. The Kenya Supreme Court case of Hermanus Phillipus Steyn v Giovanni Grucchi - Ruscone, Application No. 4 of 2010 is persuasive in this respect. There court observed:

'A matter of general public interest could take different forms for instance, an environmental phenomenon involving the quality of air or water which may not affect all people, yet it affected an identifiable section of the population, a statement of law which may affect a considerable number of people in their commercial practice or in their enjoyment of fundamental or contractual rights or a holding on law which may affect the proper functioning of public institutions of governance or the Court's scope of dispensing redress or the mode of discharge of duty by public officers.'

The Court went on to lay down principles which should exist before a court can grant a Certificate of importance, stating that for a case to be certified as one involving a matter of public importance the intending appellant ought to show 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. Needless to say the 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 uncertainty as it may determine, or refer the matter to the Court of Appeal for its determination. Mere apprehension of miscarriage of justice in a 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. Court added that determination of fact in contests between parties were not by themselves a basis for granting certification for an appeal before the Supreme Court. It was held also that the intending applicant had an obligation 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.

It was argued on behalf of the applicant that the Court of Appeal set aside the decision of the first appellate Court, the High Court, when it ordered that the suit land should be divided between the two litigating parties. Yet, the argument went on, the same Court of Appeal had held that the findings of the High Court on ownership of the land should not be disturbed. It was the applicant's contention therefore that the decision of the Court of Appeal lacked clarity and called for appeal because left as it is the judgment is likely to affect the public in general.

In its appraisal of the appeal from the High Court, the Court of Appeal precluded itself from hearing aspects of evidence and confined itself to findings on law. It was in this respect that it dealt with the issue of res judicata and found that, contrary to the finding of the High Court, the matter was not res judicata. It was in consequence the Court of Appeal reinstated the verdict of the Chief Magistrate, Tororo which the High Court had set side. At page 33 of the record the High Court observed:

'All in law (sic) this Court has already faulted the learned trial Magistrate for rejecting vital pieces of the appellant's evidence without assessment and for formulating evidence on behalf of the defence in a bid to reject the evidence of the CS MT. 32 OF 1982'

The emphasis above is added. It is to be borne in mind that the learned Judge in the first appeal considered Civil Suit MT. 32 of 1982 said to have been heard at Kisoko Magistrate Grade II Court vital to the proceedings before him. It would follow then that the alleged determination in that suit was taken into account when the High Court reached its verdict. Nonetheless, because the Court of Appeal had found nowhere the doctrine of res judicata applied it proceeded to hold:

... However the substantive result is that the orders of the Judge on appeal are set aside. The judgment of the trial magistrate is reinstated. The suit land is to be divided as detailed by the judgment of Chief Magistrate on the $15<sup>th</sup>$ *February, 2013...'*

The Court of Appeal decided that the case was never res-judicata and found it appropriate to reinstate the judgment of the Chief Magistrate's Court, which had entertained evidence in the matter. We find no reason to fault the conclusion of the Court of Appeal in this instance. We do not find any specific elements of general or public importance shown in the grounds advanced by the applicant to merit grant of the sought for certificate of importance/leave to appeal.

This application is dismissed with costs.

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

HON. JUSTICE OPIO-AWERI JUSTICE OF THE SUPREME COURT

L'usapenuse.

HON. LADY JUSTICE PROF. TIBATEMWA EKIRIKUBINZA JUSTICE OF THE SUPREME COURT

HON. JUSTICE PAUL K. MUGAMBA

JUSTICE OF THE SUPREME COURT

HON. JUSTICE RICHARD BUTEERA JUSTICE OF THE SUPREME COURT

HON. JUSTICE AUGUSTINE NSHIMYE, AG. JUSTICE OF THE SUPREME COURT