[2017] UGCA 141

# THE REPUBLIC OF UGANDA

IN THE COURT OF APPEAL OF UGANDA (COA) AT KAMPALA CIVIL APPEAL NUMBER 0102 OF 2016

DR. MUHAMAD BUWULE KASASA :::::::::: $\overline{5}$

**COMPELLANT**

VS.

1. ADMINISTRATORS OF THE ESTATE

OF THE LATE SIR EDWARD

2. NALINNYA DORTHY NASOLO 3. NALINNYA SARAH KAGERE

4. PRINCE DAVID WASSAJJA:::::::::::::: **::::::::RESPONDENTS**

## CORAM:

HON. MR. JUSTICE ALFONSE OWINY DOLLO, DCJ HON. MR. JUSTICE S. B. K KAVUMA, JA HON. MR. JUSTICE REMMY KASULE, JA

## JUDGMENT OF THE COURT

This is an appeal from the Ruling and Orders of the High Court (Hon. Wilson Masalu Musene) in Miscellaneous Application No. 1055 of $2015$ .

## Background

This Appeal arises from a dispute over land at Luzira approximation. measuring approximately 639 acres. It is the utungo the

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respondent that the land was originally registered in the names of the late Kabaka of Buganda Sir Edward Muteesa 11 but was fraudulently transferred, either during the period the Kabaka was in exile or after his demise, into the appellant's names. The Administrator General was granted Letters of Administration to the Estate of the Late Sir Edward Muteesa 11 by the High Court of Uganda in December 1971. For over 30 years, the Administrator General never took any steps to protect or take charge of the suit land. In 2003, the respondents agreed with the Administrator General that they be authorized to defend the land by themselves and on $8^{th}$ October 2003, the $2^{nd}$ and the $3^{rd}$ respondents were granted a Power of Attorney to sue the appellant in court but in the name of the Administrator General.

10.

With the Power of Attorney in hand, the $2^{nd}$ and the $3^{rd}$ respondents filed a case in the Land Division of the High Court in the name of 15 the Administrator General vide Civil Suit No. 622 of 2003, Administrator General Vs Dr. Kasasa Buwuule. The beneficiaries of the late Sir Edward Mutesa's estate also filed H. C. C. S No. 227 of 2005, Kabaka Ronald Muwenda Mutebi and 12 Others Vs Attorney General. The two suits were consolidated. The file was later transferred to the High Court at Nakawa under H. C. C. S No. 139 of 2015. The record, however appears to have been tampered with and there was very scanty information on the file. When the matter came up for hearing, the suit was dismissed for want of prosecution and on the same day, the Administrato Reperal renounced the Letters of Administration to the estate of ISLAN 'Sir

Edward Muteesa 11, which automatically denied the beneficiaries the right of audience to court.

The beneficiaries were aggrieved by the actions of the Administrator General and filed an application for review of the Judge's decision to dismiss the suit without hearing them. The trial Judge allowed that Application for review. The appellant was aggrieved by that decision, hence this Appeal.

Grounds of Appeal.

The grounds on which the Appeal is premised are laid out in the Memorandum of Appeal and are briefly that;

"1. The learned trial Judge of the High Court failed to properly evaluate the evidence on record and thus came to a wrong conclusion.

2. The Learned trial Judge erred in law and fact when he applied wrong principles of law relating to an application for Review.

- 3. The Learned trial Judge erred in law and fact when he held that the Applicant/Respondents were aggrieved parties entitled to an order of review. - 4. The Learned trial Judge erred in law and fact when he failed to consider and apply the binding authorities cited and relied upon in the Application for review by the Appellant.

5. The Learned trial Judge erred in law and fact when he faded to hear and determine preliminary objections that were killed the Appellant against the Application for review." (Sig

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#### Representation

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At the hearing of the Appeal, Mr. Kiiza Simon and Mr. Yiga Steven Geoffrey (counsel for the appellant), appeared for the appellant while Mr. Kibedi Muzamiru and Mr. Medard Lubega Ssegona (counsel for the respondents), appeared for the respondents.

## Appellant's submissions

Counsel for the appellant submitted in regard to ground one that the main issue is whether a third party can apply for review of an order or a decree and on what grounds. Counsel contended that for a third party to apply for review, he/she must be aggrieved by the decision being sought to be reviewed. That in this particular case, the respondents were not aggrieved parties since for one to be an aggrieved party, in the eyes of the law in land matters, one must have been deprived of property as a result of the order sought to be reviewed.

Counsel relied on the authority of Mohammed Allibhai Vs W. E Bukenya Mukasa and Another Supreme Court Civil Appeal No. 56 of 1996 where Court held that an aggrieved party includes any party who has been deprived of his/her property and that one who is not aggrieved cannot have a locus standi in a cause.

Counsel further argued that the Administrator General renounced the letters of Administration of the estate on the basis that the respondents had been reluctant to pursue their matter applithey filed their suit in respect of the same land, the Administrator

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General had no option but to renounce the administration of the estate. That since the beneficiaries, filed another suit, against the Administrator General and Others vide High Court Civil Suit Number 227 of 2005 in the Land Division of the High Court, they ^scan pursue that one.

On grdunds two and three, counsel submitted that the legal **I—Nil"** • principles upon which Court can review its decision were set out in the Court decision of the East African Court of Justice *of;* The Independent Medicai Legal Unit Vs Attorney General of th^e o Republic of Kenya Application No. 2 of 2012 which were duly cited in the trial court but the trial Judge did not consider them.' There were no grounds to grant an order for review and as such,, the trial judge ought to have made a 5 ding as to whether he had performed his judicial role and was .therefore *flinctus* officio to do is any further act in the cause. He should also have—first established that the respondents had made out a case for a review before ^Hconcluding That they were entitled to be granted such a review.

With regard to grounds. four and five, counsel 'submitted that, the appellant raised preliminary objections but the trial Judge never zo pronounced himself on their validity winch resulted into a miscarriage of justice

## Respondent's -submissions

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In reply, counsel for the respondent submitted with regard , The consolidation of the suits in the High Court that there was o der ²⁵of consolidation of Civil Suit Number 6212 of 200 Vs Dr.

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Muhamnied Buw-ule Kasasa and Civil Suit Number 476a 1 ----- ⁶⁵⁷ That the actual files for both suits were misplaced, so the appellant caused a duplicate file of the consoh'ted suit Number 622 of 2003 to be made and transferred to Nakawa where it was rename^d 5 Nakra Civil Suit Number 139 of 2015. That Civil Suit Number 476 of 2005 had originally been flied as No. 227 of 2005 and that it was the change of the system which caused the renaming.

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¹⁴^I Counsel submitted that the resondents are beneficiaries to the estate of the late Sir Edward Mteesa II and their claim before to Court is that the suit property belongs to the estate of Sir Edward Mutcesa II and that this. is the question which is supposed to be investigated in the consolidated suits- The lower.: •Court was not aware o. the consolidation and that is one of the grounds upon which they made an . order for. review. Had that lower Court been is aware of the consolidation, it wouldn't have made the same order to dismiss suit. Thus that was an error apparent on the face of the record.. If the Court had had.. to look at the consolidated files, the trial . Jiicfge would have known that the respondents are beneficiaries -and they were. parties to the 20 crnio1idated suit and that their tight would be affected by whatever decision the Court would taker.. Evidence of .being beneficiaries appears at page 12 of the Record of Appeal in Which Prince Wyyiiia and Sarah Kagere appear on the distribution hat. of the of the late Sir Edward Muteesa U and therefore the two ²⁵grievance.

Page 1 6 Counsel referred to the consent order which appointed the scconu to the fourth respondents as administrators of the estates of the late Sir Edward Muteesa 11 for purposes of only prosecuting and representing the estate in respect of this Court Case Number 227 of 2005 which was eventually renamed No. 476 of 2005. Counsel also asserted, that the renunciation document by the Administrator General which indicated that, after consultations with most. beneficiaries, it had been agreed that the Administrator General renounces the said letters of administration in favor of a person to be nominated by all the beneficiaries in a family meeting, was a falsehood.

With regard to ground four, counsel argued that the appellant did not indicate what injustice was suffered by not citing the authorities that had been referred to. Whereas it is good practice for a Judge to respond to whatever decisions that are cited in a case, the failure to do so becomes relevant only if it affects the substance of the matter in the dispensation of justice.

On the issue of the preliminary objections that the trial Judge did not pronounce himself on, counsel contended that this was so because these same preliminary objections had been raised before the Registrar, who had overruled them in his ruling. The fore, the objections were barred by res-judicata. Counsel pre-Appeal be dismissed with costs. $\frac{1}{2}$

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## Court's consideration of the appeal

Before going into resolving the grounds of appeal, we have reminded our that as a first appellate Court, we have a duty to re evaluate all the evidence *and* materials that were laid before the s trial court so as to come tQ our ocwt conclusion regarding the matter before.usin accordance with *Rule* \$0. of *the Court of Appeal Rules.* It provides: :

"30. Power to reappraise evideice and: to take additional evidence

10 (1) On any appeal from a: decision of the High Court acting in the exercise of its original jurisdiction, the court may—

(a) re-appraise the evidence. and draw inferences of fact; and

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We, as. the first appellate court, must make up our mind after **i5** carefully re-evaluating the evidence; that was adduced at trial. We have to subject the evidence as a 'Whole to a fresh and exhaustive scrutiny. See the cases of; Pan4ya-r- R, [1957] EA 336⁷ Kifamunte Henry v Uganda: Supreme Court Criminal Appeal No. 10 of 1997 and Bqgere Moses and Another v. Uganda., Supreme ²⁰Court criminal Appeal No. 1 of 1997

We shall resolve the grounds of appeal in the : order in tvhid: the parties argued them. . . . . .

Grounds 1, 2 and 3 are with regard to whethór the r nts could make an applicationfor review. Dc

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the respondents were not aggrieved parties since for a person to an aggrieved party in the eyes of the law in land matters, that person must have been deprived of property as a result of the order sought to be reviewed. The respondents on their part, assert that they are beneficiaries to the estate of the late Sir Edward Muteesa II and their claim before Court is that the suit property belongs to that estate in which they have legitimate interest which is being adversely affected by the claims of the appellant.

It is trite law that just like the right of appeal, an order in review is accordingly aggrieved parties. a creature of statute which must be provided for expressly. The law under which review is provided is Section 82 of the Civil Procedure Act and Order 46 of the Civil Procedure Rules.

Section 82 provides:

"82. Review.

considering himself or person Any (a) by a decree or order from which an appeal is aggrievedallowed by this Act, but from which no appeal has been preferred; or (b) by a decree or order from which no appeal is allowed by this Act, may apply for a refiew of

judgment to the court which pa

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or made the order, and the court may3et⁹ order on the decree or order as it thinks fit."

Therefore for one to qualify to make an application for review, one must consider. oneself to be aggrieved by a decree or order of court.

Fhe learned trial Judge held that .,.

"Since Prince Wasajja and 2 others are said to be beneficiaries of the. Estate of Sir Edward Mutesa who, is alleged to be the owner of the ddisputed isputed laud as *against* Dr. Muhammed Bu'cvule Kasasa, then the, applicants qualify to be aggrieved persons by the ofders of this Court."

We find, on having received and evaluated the evidence adduced before the trial court that the, learned trial 'Judge was right to told as he did on this point.

is Under the law the grounds for review are;.

- That there is a mistake or manifest. mistake or error apparent on the face of the record. - That there is discovery of new and impOrtant evidence which alter exercise of due diligence was not withm thipp1acant's **20** knowledge or could not be produced by hmi orc}9 e tune when the decree was passed or the order made. - That any other sufficient reason

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Civil Suit Number 622 of 2003 Administrator General Vs Dr. • Muhanimed Buwule Kasasa and Civil Suit 'Number 227 of 2005 Kabaka Ronald Muwenda Mutebi **t12** Others vs Attorney General were consolidated and renamed Nakawa Civil Suit **^S**Number 476 of 2005 when they were moved to the High Court at Nakawa. This knowledge was not available to the trial Court when the order dismissing the suit was made. The suit was actually dismissed on information that the Administrator General had renounced the Letters of Administration to the estate of the late Sir io Edward Muteesa and the suit wü never heard on its merits.

II

The evidence on record, as to the distribution list, shows that Prince David Wassajja and Sarah,Kagere are part of the beneficiaries of the said estate and this, in our view,, makes them aggrieved parties under Section 82 of the Civil Procedure Act.

is *Functus Officio* is a Latin terra tflanthg 'having performed his or her office'. The law on *firnctus officio* does not apply in matters of review because an application for review is made in the same court that gave, the judgment or decree. Besides, the matter in cOntroversy in the instant application had not been heard and conclusively **20** determined, on its merits..

We find no reason to fault the learned trial Judge's order that the ' case be heard afresh and consequently, grounds 1, 2 nd 3 fail.

We consider that our resplution:..of the above grO conclusion we have come to in effect disposes of this a crN 1

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not find it necessary, therefore, to go into the remaining grounds of Appeal.

Wc, therefore, order that High Court at Nakawa Civil Suit No. 139 of 2015 and consolidated Civil Suit No. 622 of 2003 be placed before another High Court Judge for hearing and determination as consolidated suits on merit.

As to the costs, since this litigation is still going on in the High Court, we order that the costs of this Appeal shall abide the determination by court of the stated consolidated suits.

We so order. $10¹$ Dated at Kampala this ....... day of 2017

Alfonse Owiny Dollo 15 DEPUTY CHIEF JUSTICE $20\\$ S. B. K. Kavuma USTICE OF APPEAL $-25$ Kasule JUSTICE OF APPEAL

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