[2025] UGCA 201

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA CIVIL APPEAL NO. 20 OF 2021

(Arising from the High Court of Uganda at Mbarara -HCT-05-CV-CA No.058 Of 2019)

(Arising from the Chief Magistrates Court of Mbarara Holden at Mbarara-MBRA-00-CV. CS-No. 067 of 1997)


## DETAILED JUDGMENT OF THE COURT

#### Introduction and brief facts

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This is a second Appeal challenging the decision of the High Court of Mbarara sitting as a first Appellate Court also further arising from an Appeal from the Chief Magistrates Court also of Mbarara.

This appeal arises from a land dispute the protagonists one Rushengura and Fred Bijumbiko are now deceased and the administrators of their estates now continue to seek resolution of the said disagreements. At the trial Court, it was the case for the Respondent (then Plaintiff) that sometime in 1994, the Appellants (then Defendants) were allowed by the Respondents to use and occupy the suit land for one year and then vacate it. The Respondents have a leasehold land title for the suit land. On the other hand, it is the case of the Appellants that they own the suit land having acquired it in 1974. It is the case for the Appellants that the land title to the suit land was fraudulently acquired.

The trial Court found in favour of the Respondents. The trial Court ordered the eviction of the Appellants and ordered that the Appellants pay general damages of Ug Shs $10,000,000/$ =. The Appellants being dissatisfied with the Decision of the trial Court appealed to the High Court as the first Appellant Court. The first Appellate Court upheld the decision of the trial Court. The Appellants still dissatisfied with the Decision of the first Appellate Court lodged this Appeal with this Court.

## Grounds of the present Appeal

The Appellants preferred the following Grounds of Appeal: -

1. The Learned Trial Judge (SIC) erred in law and fact when he held that parties are bound by agreed issues at scheduling and as result failed to properly re-evaluate evidence which occasioned miscarriage of justice to the Appellants.

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- 2. The Learned Trial Judge (SIC) erred in law and fact when he based his conclusion on the wrongly framed issue of whether the defendants are legitimate customary owners of the suit land instead of whether the Appellants had interest in the suit land thus occasioning miscarriage of justice. - 3. The Learned Trial Judge (SIC) erred in law and fact when he failed to re-evaluate the evidence on record, proceeded to consider non-existent evidence and reached a wrong conclusion that the Appellants had no customar5r interest on the suit land hence occasioned a miscariiage of justice to the Appellants. - 4. The Learned Trial Judge (\$lC) erred in law and fact when he held that the Respondents rlvere entitled to general damages and costs without justification.

## Representations

Mr. Jason Njeru Kiggundu appehred for the Appetlants. Mr Assimwe Ak: Byaruhanga (holding brief for Henry Rwaganika Advocate) represented the Respondents.

# Hearing oa the 26th February 2O2S

At the hearing of the Appeal, the Court heard the arguments of the Parties and gave an ex tempo decision dismissing the Appeal. We stated the detailed Judgment shall be rendered later and we so give our reasons as hereinafter.

We sha-ll start b1' considering the lega-l arguments of both Counsels.

## Submissions of and application by Counsel for the Appellants.

Counsel for the Appellants started by notifying the Court that they had just received instructions tO represent the Appellants and had filed a Notice of Change of Advo ate on the morning of the Appeal.

Counsel then applied to Court to exercise its inherent powers under Rule 2 (2); Rule 27 and Rule 32 (2) to allow the Appellants to file supplementary conferencing notes and a list of authorities. This is because counsel had identified matters that had not been addressed during the first appeal.

Counsel argued that he had noted that during the trial, defence witness (DW1) did not finish testifying and this required additional evidence being adduced at this stage. He argued that the failure to complete evidence amounted to a mistrial and offended the right to a fair hearing.

Counsel also conceded that the previous counsel for the Appellants had not drafted the Memorandum of Appeal correctly and that this amounted to mistake by counsel which should not be visited on the client.

He therefore further prayed that leave be granted to the Appellants under Rule 2 (2) of the Rules of this Court to amend the Memorandum of Appeal.

As earlier stated, we disallowed all these applications and dismissed the Appeal for the following reasons: -

#### Reasons of the Court.

The law relating to second appeals is well settled. For second appeals, Rule 72 of the Civil Procedure Act provides: -

"... 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;

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(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...*"

Rule 74 of the Civil Procedure Act provides that no second appeal shall lie to the Court of Appeal except as provided for in Rule 72 of the Civil Procedure Act.

In the matter of **Kifamunte Henry v Uganda** (Criminal Appeal 10 of 1997) [1998] UGSC 20 (15 May 1998) the Supreme Court held: -

"... Once it has been established that there was some competent *evidence to support a finding of fact, it is not open, on second appeal* to go into the sufficiency of that evidence or the reasonableness of the finding. Even if a Court of first instance has wrongly directed itself on a point and the court of first appellate Court has wrongly held that the trial Court correctly directed itself, yet, if the Court of first appeal has correctly directed itself on the point, the second appellate Court cannot take a different view R. Mohamed All Hasham vs. R (1941) 8 E. A. C. A. 93.

On second appeal the Court of Appeal is precluded from questioning the findings of fact of the trial Court, provided that there was *evidence to support those findings, though it may think it possible,* or even probably, that it would not have itself come to the same *conclusion; it can only interfere where it considers that there was no* evidence to support the finding of fact, this being a question of *law: R. vs. Hassan bin Said (1942) 9 E. A. C. A. 62.* ..."

It is evident from the Memorandum of Appeal that the Appellants seeks to challenge the decision of the first Appellate Court on both points of law and fact. This is clearly beyond the jurisdiction of a second Appellate Court.

Counsel for the Appellants was alive to this limitation and sought to amend the memorandum. However, we noted that there was clearly dilatory conduct in doing so because in 4 years since filing this Appeal and through the scheduling of the Appeal, the Appellants did not indicate to Court or the parties opposite of any desire to amend their Memorandum of Appeal. It would appear that the Appellants were woken up to action by the causing listing of their Appeal by the Court. This is also evidence of an afterthought given that the application was made on the morning of the hearing and amounted to ambush for the Respondent and the Court alike. We are fortified by this finding because the Appellant did not as is the good practice in amendments, file a draft or proposed Amendment to the said Memorandum; for consideration.

The onus is on the Appellant to prosecute their appeal in an orderly and timely manner and not to rely on last minute applications to put their house in order when the appeal is called for hearing. Failures such as these in this matter clearly transcend a mere error by Counsel. Even the Appellants were not vigilant.

Counsel for the Appellants sought that we exercise the inherent powers of Court to grant these applications. However, it must always be recalled that the exercise of inherent powers of court is one of judicial discretion. This means that the discretion is not automatic but is considered judiciously with regard to the circumstances of each case. The prayer for additional evidence on second appeal when the same opportunity had presented itself earlier on first appeal for which there are elaborate rules is evidence of abuse of court process. This is contrary to the requirements of Rule 2 (2) of the Rules of this $\text{Court.}$

All in all, for the above detailed reasons we dismissed the Appeal and what remains is for us to address the issue of costs. Given that

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we find that the Appeal failed on the face of it, we award costs to the Respondents.

#### **Final Decision and orders**

- 1. This Appeal stands dismissed - 2. The Decisions of the first Appellate and trial Courts are upheld. - 3. Costs of this Appeal awarded to the Respondents.

We so Order Dated at Kampala this.................................... Hon. Mr. Justice Geoffrey Kiryabwire JA $2m/2$ . Hon. Mr. Justice Christopher Gashirabake JA Hon. Mr. Justice Oscar Kihika JA 7 | Page