Kateeba Rose & Others v Mugyenzi Justus & Others (Civil Appeal 10 of 2023) [2025] UGSC 6 (21 February 2025)

THE REPUBLIC OF UGANDA THE SUPREME COURT OF UGANDA AT I(AMPALA (Coram: Tuhaise, Chibita, Musota, Madrama & Mugenyi, JJSC) BETWEEN 1. KATEEBAROSE 2. KAMUKAMA MARGARET 3. KANSHONGI JANE 4. TUMUSIIME DORA APPELLANTS AND ,I. MUGYENZIJUSTUS 2. KARAMUZI GODFREY 3. RWENDURU RWEISHE MUSA RESPONDENTS (Appeal fron the decision ol the Court of Appeal (Musoke, Kibeedi & Gashirabake, JJA) in Civil Appeal No. 162 ol 2021) l Civil Appeal No. l0 of2023 CIVIL APPEAL NO. 1() OF 2023 I 2, l\4essrs. Justus Mugyenzi, Godfrey Karamuzi and Musa Rweishe Rwenduru ('the Respondents') claim that the deceased's estate was fully and properly diskibuted by his widow Ms. Erina Rwakaniora shortly before her death in 1983. This is contested by the Appellants, who mntend that only the deceased's 210-strong herd of cattle was distributed by their mother at the time. Apparently acting on the contested distribution of the estate, in 201 1 the Respondents sought to convert the suit land from leasehold to freehold tenure, having allocated themselves 160 hectares thereof whilst leaving their eight srsters with 60 hectares. 3, Deducing these actions to amount to intermeddling with the deceased's estate, fraud and misrepresentation; the Appellants instituted Clvll Sult No. 730 of 2013 in the High Courl inter alia seeking the cancellation of the freehold offers made to the Respondents and a permanent injunction against any further intermeddling with the estate. The Appellants were successful before the trial court but that court's decision was subsequently reversed by the Court of Appeal, prompting the present second appeal. 4. At the hearing of the Appeal, the Appellants were represented by Mr. James Njogu, while Messrs. Francis Gimara, Phillip Karugaba, Patrick Turinawe and Ms. Lucy Suky appeared for the Respondents. The parties relied upon written submissions filed in the matter therefore the Appeal shall be determined on that basis. B. Determination l. The leamed Justices ot Appeal erred in law and fact when they found that there was a distibution of land in 1980 in total disregard of the evidence on record hence coming to a wrcng conclUsion. ,) JUDGMENT OF MONICA KALYEGIRA MUGENYI. JSC A. lntroduction 1. This Appeal was lodged by Mses. Rose Kateeba, Margaret Kamukama, Jane Kanshogi and Dora Tumusiime ('the Appellants') contesting the decision of the Court of Appeal in Civil Appeal No. 162 of 2021. Ihe parties to the Appeal are children of the late Yosamu Rwakaniora who died intestate in 1979, and beneficiaries to their deceased father's estate. The bone of contention between them relates to a 220-hectare piece of land that is described as Block 69 Plot 5 at Omukobwire village, Kyabagyenyi parish, Kenshunga sub-county, Nyabushozi, Kiruhura District ('the suit land'). 5. The Appellants proffer the following grounds of appeal: Civil Appeal No. l0 ol'2023 ll. The loamed Justices of Apryal erred in law and fact when they found that tha late Eina Rwakaniora had lhe nght to distibute lhe land ot the late Y$anu Rwakaniors. lll. The leamed Justices of Appeal ered in law when they concluded that the ApW ants had acquiesced the distribution fot over 30 yearc and hence came to a wrong conclusion. lV. The loamed Justices of Appeal ened in law when they concluded that the causa of action arcse in 1979 or at the very least 1980 hence occasioning a miscafiiage of justbe. V. The leamed Justices of Appeal effed in law when they found that the Appo ants' suit was baned by linlatbn. Vl. The leaned Justices of Appeal erred in law when they failed to rc4valuate all the evidence on rccord and subject it to fresh and exhaustive scnliny thus coming to a wrong/ enoneous conclusion. 6. I am constrained to address the validity of Grcund 6 of this Appeal forthwith given leamed Respondent Counsel's misgivings with it. That ground of appeal faults the learned Justices of Appeal for failure to adequately re€valuate the evidence available to them in Civil Appeal No. 162 of 2021, thus arriving at a wrong conclusion. 7. Rule 82(1)of the Judicature (Supreme Court Rules) Diections, S.l 13-11 ('the Supreme Court Rules') requires a memorandum of appeal to set forth concisely, under distinct heads without argument or nanative, the basis for the objection to the decision appealed against, specifying the matters an appellant considers to have been wrongly decided. 8. lnRanchobai Shivabhai Patel Ltd&AnothervHenrvWambuoa&Another[20'l8lUGSC68 this Court had occasion to consider a similar objection, where the contested ground of appeal was framed as follows 'the leamed Jusfices of tl,e Court of Appeal ened in law and fact when they failed to evaluate the evidence on record and thereby anived at a wrong conclusion.' fhe Court adjudged that ground of appeal to be too general, fell short on specifying in what way and in which specific areas the Court of Appeal had failed to evaluate the evidence, and did not sel out the particular wrong decision anived at by them. The impugned ground of appeal was thereupon struck out on the following premise: Rule 82(1), which is mandatory, is intended to ensure that the court adjudicates on specific issues complained of in the appeal and to prevent abuse of court process. The general nature of ground 2 as presented allows the appellant to ambush the respondents witrr issues the latter would not have contemplated. 3 Civil Appeal No. l0 of 2023 9, ln this case, Ground 6 of the Appeal reads as follows: The leam$d Justices ol Appeal ered in law whon they failed to rc-evaluale all the evidence on recod and subjecl it to frcsh and exheustive scruliny lhus coming to a wrong/ enoneous conclusion. 10. lt seems to me that the conciseness that is contemplated under rule 82(1) of the Supreme Court Rules and the specificity alluded to in Ranchobai Shivabhai Patel Ltd & Another v Henry Wambuqa & Another (supra) is not forthcoming in that ground of appeal given its failure to specify the aspect of the first appellate court's decision that was enoneous. I would therefore strike out Ground 6 of this Appeal. '11. Counsel for the Respondents do additionally object to Grounds 7 and 3 of the Appeal for raising questions of mixed law and fact. They rely upon section 72(1) of the Civil Procedure Act, Cap. 282 (CPA1I ,. referenced by this Court in Beatrice Kobusinqve v Fiona Nvakaana & Another [20051 UGSC 3 and Mitwalo Maqvenqo v Medadi Mutvaba [19981 UGSC 3. The cited statutory provision states: Excopt where otherwise expressly provided in this Act or by any other law for the tims bGing in forcc, an apoeal shall lie to the Court of Appeal from evory dscree passed in appeal by the High Court, on any of the following grounds, namely that- ... 1my emphasis) 12. Quite clearly, section 72 of the CPA relates to second appeals to the Court of Appeal or an appeal to the Court of Appeal from a decision of the High Court in exercise of its appellate jurisdiction, I am very clear in my mind that the Court of Appeal refened to in that statutory provision is manifestly distinct from lhe Supreme Court as envisaged today. For brevity, nonetheless, I shall endeavour to synthesise the reasons for this position. A historical perspective is pertinent. 13. Uganda's Independence Constitution, 1962 ('the 1962 Constitution) established the High Court of Uganda as a superior court of record.2 Article 96(2) of the 1962 Constitution did additionally make provision for the establishment of a court of appeal by Act of Parliament. That constitutional provision demarcated the junsdiction of the court of appeal so established to any other matters save for appeals from questions of constitutional interpretation, which were reserved for 'Her Majesty in Council or what is known today as'the Pivy Council.' Article 96(2)(b) of that Constitution conferred an aulomatic ' rormeny Lap. /.1. '? see Article 90(1) and (3) of the 1962 constitution. 4 Civil Appeal No. l0 of 2023 right of appeal from decisions of the court of appeal to that Council. Therefore, the court of appeal contemplated under the 1962 Constitution was a first appellate court, appeals from which lay to the Council. Article 96(2) of the 1962 Constitution was subsequently operationalised by the establishment of a Uganda Court of Appeal under section 4 ol lhe Appellate Jurisdiction Act, 1962. 14. However, in June '1967, lhe Judicature Act of 1967 was enacted, Schedule 4 of which 'deleted or repealed the Appellate Jurisdictbn Act in its entirety. The long title of lhe Judicature Act, 1967 designated it as an Act, the objective of which was to declare 'the jurisdiction of the High Court and of the Court of Appeal.' lntheevent, section 40 of lhe Judicature Act, 1967 made provision for a new Uganda Court of Appeal, the jurisdiction of which was as follows: 15. Uganda's Republican Constitution, 1967 ('the 1967 Constitution') was subsequently promulgated on 8h September '1967 and similarly made provision for the establishment of a Court of Appeal. The '1967 Constitution conferred a right of appeal from a decision of the High Court to such Court of Appeal as would be established by Act of Parliament but before then, such appeals to be lodged in the East African Court of Appeal.: lt is not clear when exactly the court of appeal referred to under the 1967 Constitution and Judicature Act, 1967 was operationalised, but the case law suggests that as late as 1970 appeals from the High Court in Kenya lay in the East African Court of Appeal. See Shah v Aouto 11 9701 1 EA 263. Be that as it m ay, the jurisdiction of the Court of Appeal contemplated under that Constitution was reserved to all other matters save for questions of constitutional interpretation and electoral disputes in respect of the membership of the National Assembly, the final determination of which was to be the preserve of the High Court of Uganda.a 3 See article 89(1) and (6) ofthe 1967 Constitution. a See articles 51(3) and 89(1) and (7) of the 1967 Constitution ) (a) Tho Court of Appoal shall bo a supsrior court of record in and for Uganda and shall have such jurisdiclion as is conferred upon it by this Act or by; under or by virtue of any othor writton law in force immediately before orwhich may come into forco aftertho commoncemont ofthis Act to hear and determino any appeal brought under or by virtue of any such law. (b) For the purpose of hearing and determining an appeal the Court of Appeal shall, in the oxerciss o, its iurisdiction have the power, authority and iurisdiclion vsstod in the court from which the appeal is brought. (c) Subisct to any rulos mado under or having the €ffect by virtue ot the provi3ions of soction 43 of this Acl, the Court oI Appeal may, ,or the purpose ol exercising its jurisdiction under this Acl, sit in Uganda or olsowhore. Civil Appeal No. l0 of2023 16. That Court of Appeal was, courlesy ofthe Constllutlo n (Amendment) Stafute, 798/and effective 27t' June 1986, renamed the Supreme Courtof Uganda. The Supreme Courl so established was clothed with final appellate jurisdiction in respect of appeals from the High Court of Uganda.s Following that constitutional amendment, all reference to the Court of Appeal in our laws would axiomatically have meant the newly established Supreme Court. That Supreme Court applied the Supreme Court Rules, S.l 19of 199'l asadaptedfromtheCourtofAppeal forEastAfricaRules,S.l 1790f 1972.e This reinforces the view that the then Supreme Court (as ils predecessor Court of Appeal before it) had essentially replaced the East Africa Court of Appeal as the first and final appellate court in appeals from the High Court sitting in its original jurisdiction, and second appellate court in appeals from the same lower court sitting in appellate jurisdiction over decisions from Chief and Grade 1 magistrales courts. lt is that Supreme Court, therefore, that would have been envisaged in seclions 72 and 74 ol the CPA prior to the promulgation of the 1995 Constitution. '17. The 1995 Constitution thereafter introduced a brand new legal dispensation that prevails to date. Whereas the 1987 constitutional amendment had replaced the Court of Appeal with a Supreme Court to which appeals from the High Court lay; article 129(2) of the 1995 Constitution reintroduced a Court of Appeal as one of lhe three superior courts of record in Uganda, the other two being the Supreme Court and the High Court. I am alive to article 274(1) that saved laws that were in existence immediately before the coming into force of the new 1995 Constitution. lt stipulates: Subjectto the provisions ofthis article, the operation ofthe existing law afterlhe coming into force of this Constitution shall not be atfected by the coming into lorce ol this Constitution but the existing law shall be construed with such modifications, adaptations, qualifications and oxceplions as may be nscessary to bring it into conformity with this Constitution. '18, That constitutional provision might have been considered to have preserved the Supreme Court referred to in article 132 of the Constitution as it was prior to the promulgation of then Constitution, but for two important reasons. First, the Constitution itself fundamentally changed the jurisdiction of the Supreme Court. Secondly, statutory law as revised over the years reflects a marked shift from the Supreme Court that was ushered in by the Constllulrbn (Amendment) Statute, 1987. ln terms of jurisdiction, the Supreme Court was designated in article 132(1) of the Constitution as the llnal appellate courl from which permissible appeals from decisions of the Court of Appeal would be 6 s See section 1 of the Constitution (Amendment) Statute, 1987. 6 See clause 2 of the .ludicature (Court of Appeal Ru les) Directions. Civil Appeal No. l0 of 2023 directed. The then newly created Court ofAppeal was thus relegated tothe role of an intermediate appellate court with jurisdiction over appeals emanating from decisions of the High Court z '19, More importantly, article 132(2) of the Constitution makes provision for appeals to the Supreme Court from the decisions of the Court of Appeal as may be prescribed by law. That constitutional provision in effect delimits the Supreme Court's mandate to such jurisdiction as is expressly articulated by statute. lt finds expression in the Judicature Act, Cap. 16,a an Act of Parliament that was enacted specifically to operationalise the provisions of the then newly formulated 1995 Constitution that pertain to the Judiciary. Promulgated in May 1996, the long title to the Judicature Act succinctly designates it as 'an Act to consolidate and revise the Judicature Act to take account of the provisions of the Constitution relating to the Judiciary.' The objective of the Judicature Act would thus dispel any connotations of ambiguity as far as the jurisdiction of the post-1995 Supreme Court is concemed, and discredit deference to section 72 of the CPA as the law that demarcates the jurisdiction of the Supreme Court. 20. Section 4 of the Judicature Act delineates the jurisdiction of the posl1995 Supreme Court that exists today as follows: 'an appeal shall lie to the Supreme Court from such decisions of the Court of Appeal as are prescribed by the Constitution, this Act or any other law.' With specific regard to civil matters, section 6(1) of the Acl confers an automatic right of second appealto this Court where the Court of Appeal has confirmed, varied or reversed a trial court's decision, while clause (2) of the same provision precludes an automatic right of appeal in respect of third appeals to the Supreme Courl. For ease of reference, section 6 of the Judicature Act is reproduced below: Section 6 of the Judicature Act (a) An appoal shall lie as of right to the Supromo Court whete the Court o, Appoal conrirms, varies or reverses a ludgment or order, including an interlocutory order, given by th€ High Court in the exercise o, its original iurisdiclion and sither confirmod, variod or roversed by the Court of Appeal. (b) Whore an appeal emanatss from a judgment or order of a chiof magistrate or a magistrate grade I in tho exsrciso of his or her original jurisdiction, but not including an intorlocutory matter, a party aggrieved may lodgo a third appeal to the Supremo Court on ths certificate of the Court of Appeal that the appeal concerns a matter of law ot groat public or general 7 See article 134(2) of the 1995 Constitution 3 Previously the Judicature Act, Cap. 13. 7 Civil Appeal No. l0 o12023 importance, or if the Supreme Court considers, in its overall duty to see lhat iustice is done, that the appeal should be heard. 21 . Those statutory provisions outline the jurisdiction of the Supreme Court on second and third appeal. On the other hand, the practice and procedure of the Court in relation to firsl and second appeals is outlined in rule 30 of the Judlc ature (Supreme Court) Ru/es ('subsidiary legislation enacted under the Judicature Act) as follows: (1) Whero the Court of Appeal has reversed, affirmed or varied a decision ofthe High Court acting in its original iurisdiction, the court may decide matters ot law or mixed law and fact, but shall not have discretion to tak6 additional evidence, (2) When an appeal emanates from a decision of the constitutional court- (a) in the case ot an appeal on a petition to the constitutional court, the court may appraise the evidence and decide matters of facl, or law, or mixed law and facl, and may in its discretion take additional evidence; and (b) in the case of an appeal on a reference to the constitutional court, the court may decide the question of law or mixed law and facl submitted in the reference. 23. There are various elements to what would amount to a question of law. ln general terms, whal would amount to a pure question of law is faidy obvious and needs no expounding - it is a question that exclusively depends on an analysis of the law for its resolution. However, there are other facets lo a question of fact that are not that readily discernible, ln my view, the grounds of appeal highlighted in section 72('l) of the CPA are an indicative guide to the nature of questions of law that are determinable on second appeal. They include instances where the decision appealed from is contrary to law or to some usage having the force of law; has failed to determine some material issue of law It 22. The distinction between the Supreme Court sitting in first and second appellate capacity is instructive of the question that is before this Court under this Appeal. Thefirstleg of rule 30(1)above re-echoes the Supreme Court's jurisdiction in second appeals as encapsulated in section 6(1) of the Judicature Act, while the latter part thereof provides the procedure under which the Court's second appellate jurisdiction would be exercised. The Supreme Court is procedurally enloined to entertain pure matters of law and accommodate matters of mixed law and fact, depending on the peculiar circumstances of a case before it. On the other hand, on first appeal (as is the case in appeals from the Constitutional Court), the Court is mandated to'appraise the evidence and decide matteB of fact' in addition to addressing questions of law and mixed law and fact. This begs the question as to what amounts to a question of law vis-i-vis a question of mixed law and fact, Civil Appeal No. l0 of2023 24. ln any event, case law has considered a question of law before a second appellate court to also anse where the first appellate court reneged on its duty to subject the evidence to fresh scrutinye or, having done so, misdirected itself on a point of law in its re-evaluation of the evidence;to as well as where the conclusions (including lindings of fact) anived at by the first appellate court are not supported by the evidence. See Elizabeth Naluman si Wamala v Jollv Kasande & Othe rs 120171 UGSC 21. illounou E Sons Li, mited v A General & Anothet I UGSC ' 5. Petet v Sundav Post Lin 119581 1 EA 424 and Watt v Thomas [1 9471 1 All ER 582. This is summed in the observation in Shah v Aouto [1970 I 'l EA 263 that where a flrst a ppellate court has reversed a finding of fact, it is a question of law whether it has acted judiciously in doing so 25, ln a nutshell, a first appellate court ought to make a determination as to whether the trial court misdirected itself as to the evidence and, if so, should subject the evidence to fresh scrutiny and arrive at its own findings of fact. In so doing, it would re-appraise the evidence that was before the trial court and draw inferences of fact and even take additional evidence (the restrictive provisions of section 72 ofthe CPA notwithstanding), Should the first appellate court interfere with the trial court's decision and there is a further appeal to a second appellate court, whereby the first appellate court's re-evaluation of the facts is contesled, that ground of appeal would raise a question of law and not fact. That is so because there are established legal principles and evidential rules that guide first appellate courts in their reevaluation of evidence. A departure from these pnnciples and rules thus becomes a question of law and not fact. 9 Civil Appeal No. l0 of2023 or usage having the force of law, or is tainted by a substantial error or defect in the procedure provided by this Act or any other law, 26. Questions of fact, by contrasl, depend for their determination on the review of contested or conkoverted evidence. This is typified by a ground of appeal that contests the conclusions of a first appellate court solely on the basis of its factual findings in respect of the evidence that was before it. To the extent that lhe resolution of such a ground of appeal would entirely depend on a re+valuation of the evidence to establish its veracity, it would amount to a question of fact that is not tenable on second appeal, So that, the Supreme Court sitting as a second appellate court would only revert to the evidence insofar as it relates to a specilic question o, law before it, but ought not to give the matter fresh evidential interrogation as is the case with the first appellate court. lndeed, a dearth of s See Banco Arab Espanolv Bank of Uganda (supra). tosee@. Wamala v Jolly Kasande & Others (supra), and Uganda Breweries Limited v Usanda Railways Corporation, Civil Appeal No 6 of 2001 28. The import of the foregoing position is that a second appellate ought to rely on the factual findings of a first appellate court in order to render its determination of contested legal questions on second appeal. However, this Court has decilned to drsempower itself from interfering with the factual findings of the Court of Appeal, even concurrent findings of fact anived at by the kial court and first appellate court; reserving to itself the mandate to do so in clearly deserving cases and on 'sound basls'. Thus, in Francis Sembuya v Allports Services (U) Ltd [20001 UGSC 8, reiterating its decision in Bank of Uoanda v. Transroad Ltd 119981 UGSC 7, it was held (per Tsekooko, JSC): I cannol, with respect, accept (the) submission that in this case this cou( is barred from a reconsideration of concurring fndings of fact by the two courts below. I think that this is the position taken by Wambuzi, Chief Juslice, in Bank ot Uoanda v. Transrcad Ltd Supreme Coud Civil Appeal 3 oF r99l reported in (1998) Supreme Court (Civil Judgments) at page 5. Naturally and normally any concurring fndings of facts by the High Court as a Court of trial and the Court of Appeal, as a frrst appellate Court, will be accorded due respect by this Court. I would observe generally that where it is necessary to disturb such tindings, disturbing such findings would obviously be based on a sound basis. ln saying this, I must not be understood to be laying down any hard and fast rule on the matter. 11 see LsDefine: simple Legol Definitions at httos://www.lsd.law t0 judicial precedents clarify the procedural duty upon the Supreme Court sitting as a second appellate court. See Banco Arab Esoanol v Bank of Usanda [19991 UGSC ,, Elizabeth Nalumansi Civil Appeal No. l0 of 2023 27. On the other hand, a mixed question of law and fact is a ground of appeal thatis neither based purely on the facts nor purely on the law bul, rather, requires both legal and factual analysis for its resolution.ll Mixed questions of law and fact are in essence questions of law albeit those which depend for their determination on recourse to uncontested or uncontroverled facts. For instance, the existence of a valid contract depends as much on the uncontroverted facts before the court as on the law governing formation of contracts. Similarly, an action founded in breach of contract depends as much on the undisputed terms of the contract as on the law governing breach of conkact. So that, whereas the undisputed oral or written agreement adduced in evidence represents the factual position on the existence of a contract between the parties; the legal question as to whether a contract was properly terminated would necessitate the appellate review ofthe provisions ofthe contract. 29. I unreservedly abide the approach adopted in that case. ln my view, an apex court should retain the prerogative to interrogate concurrent findings of fact by a trial court and first appellate court where it has sound reason to believe they perpetuate a gross miscaniage of justice, Generally speaking, however, a second appellate court will normally rely on the factual findings of the first appellate court unless they have been impugned for lhe reasons stated hereinabove, in which case the higher cou( will premise its decision on its own findings of fact, 30. Consequently, I take the view that section 6(1) of the Judicature Act unequivocally demarcates the mandate of the Supreme Court on second appeal to entertain matters where the Court of Appeal has confirmed, varied or reversed a trial court's decision; but rule 30(1) of the Supreme Court Rules delimits the procedural duty upon the Court in the exercise of that mandate, restricting it to questions of law or mixed law and fact (but not pure questions of fact), without the option of taking additional evidence. 31. ln the Appeal that is presently before the Court, the impugned Grounds l and 3 of the Appeal essentially contest the lirst appellate court's factual finding that lhere was a distribution of the intestate's land in 1980 on the premise that it is not supported by the evidence on record. They do also contest the Appellants' supposed acquiescence of this distribution. As highlighted hereinabove, on the authority of Elizabeth Nalumansi Wamala v Jolly Kasande & Others (supra) and Peter v Sundav Post Limited (supra), the question as to whether the Court of Appeal's findings are supported by the evidence is a question of law that places a duty upon this Court to determine whether the Court of Appeal did abide its duty to re-evaluate the evidence and, if so, whether there was cogent evidence to support the findings of that court. As to whether the Appellants acquiesced with the alleged distribution, this would be a question of mixed law and fact insofar as its determination depends as much on the fact of distribution and acquiescence thereof, as on the legal principles of acquiescence and estoppel. Excspt where otherwise expressly provided in this Act or by any other law ror the time being in force, an appeal shall lie to the Court of Appeal from every decree passed in appoal by the High Court, on any ofthe following grounds, namely that- (a) the decision is contrary to law or to some usage having the ,orce of law; ll Clivil Appeal No. l0 of2023 32. This then brings me to the shift from the jurisdiction enjoyed by the Supreme Court prior to the present constitutional dispensation. This is readily discernible from section 72(1)of the CPA which, for ease of reference, is reproduced below. (b) the decision has failed to dotermine soms material issue of law or usage having the forcs of law; (c) a substantial error or defect in the procedure provided by this Acl or by any other law for the time boing in forcs, has occurred which may possibly havo produced error or defecl in the decision of the case upon the merits. 33. The reference in that statutory provision to the Court of Appeal (as opposed to the Supreme Court) is extremely problematic for purposes of the proposition advanced by learned Counsel for the Respondents, Needless to say, the posl1995 Supreme Court and Court of Appeal are two very distinct courts. As demonstrated earlier in this judgment, the present, post-1995 Court of Appeal is an intermediate appellate court that is very far removed from the final appellate court that was the pre-1987 court of appeal. I am alive to the fact that Conslltutlon (Amendment) Statute, 7987 literally renamed the pre-1995 Court of Appealthe Suprene Courl, which would have meant that all reference to the Coul of Appeal in then existing laws meant the Supreme Court, However, the principal legislation in Uganda has since undergone extensive revision - flrst in 2000 and more recently in 2024, but both post-1995 renditions of the Laws of Uganda retained the reference in section 72(1) to second appeals to the Court of Appeal, rather than the Supreme Court. Accordingly, recourse to that statutory provision to forestall second appeals to the Supreme Court that are rooted in mixed law and fact would, in my view, be irredeemably misconceived, 34. I find fortitude for this position in the rules of statutory interpretation, The literal rule of interpretation posits that words that are reasonably capable of only one meaning ought to be given that meaning, while under the golden rule, ordinary words are to be given their ordinary meanings and technical words their technical meanings, unless absurdity would result;12 words are generally to be understood in their usual, general and popular use,13 The usual, ordinary and general reference to the Court of Appeal is the intermediate appellate court that was introduced in article 129 of the 1995 Constitution, as opposed to the post-1995 Supreme Court that we know today, To construe section 72(l) of the CPA othenruise would be to peddle an inevitable albeit avoidable absurdity. This is aptly illustrated by the tallacy of construing all references to the Court of Appeal in Part Vlll of the CPA as the Supreme Court, t2 See Oxford Dictionory of Low.2009. lh Edition. o. 295. t'See Blockstone, Williom, 172j - 1780, Commentories on the Lows of Englond, Eoston: Eeocon Press, 1962, vol. 7, poro.59. t2 Civil Appeal No. l0 of 2023 35. For instance, section 66 of the CPA makes provision for appeals from decrees and orders of the High Court to the Court of Appeal. lf the Court of Appeal in that context were to be construed to mean the Supreme Court, the result would defy the spirit, letter and diclates of articles '132(2) and '134(2) of the 1995 Constitutron, as well as sections 6 and 10 of the Judicature Act; all of which provide for appeals from the High Court to the intermediate appellate court - the Court of Appeal and not to the final appellate court - the Supreme Court. lt seems to me that the inconsistent interpretation of the Court of Appeal referred to in the CPA to mean lhe Supreme Courf in relation to section 72(1) of the CPA but Court of Appeal with regard to section 66 would not only be illogical; it most certainly cannot have been the intention of the framers of those pieces of legislation to propound an absurdity where similar terms within the same part of a statule are attributed difierent meanings. 36. ln my judgment, whereas section 66 of the CPA relates to the Court of Appeal sitting as a first appellate court, section 72 pertains to the same court sitting as a second appellate court. Section 72(1) of the CPA aptly clarilies matters that would establish grounds of appeal before the Court of Appeal sitting as a second appellate court. This is amplified by the reference in section 74 of the same Act to no appeal to the Court of Appeal shall lie 'except on the grounds mentioned in section 72; Ihe grounds highlighted in section 72(1) include where a first appellate court's decision misdirects itself as to applicable law;ra *6.r. tn. trst appellate court did not address a material legal issue,ls and where the first appellate court so reneged on its procedural duty as to occasion a miscaniage of lustice by its decision.to 37. Consequently, I find that section 6('l) of the Judicature Acl, when read together with rule 30('1) of the Supreme Court's Procedural Rules, does mandate this Court sitting as a second appellate court in civil matters to determine questions of law, as well as mixed law and fact. lt is only on third appeal to the Supreme Court as encapsulated in section 6(2) of that Act that the Supreme Court is restricted to a pure question of law on a question of great public or general importance. Even then, however, the Court is mandated to entertain a third appeal that manifests a blatant miscarriage of justice, such .judicial discretion to be exercised judiciously. I might add that as the final appellate court, the Supreme Court must of necessity enjoy that latitude. ra Clause (a) of subsection 72(1) of the CPA. 15 CIause (b) of subsection 72(1) of the cPA. 16 Clause (c) of subsection 72(1) of the cPA. Civil Appeal No. l0 of2023 l3 38. With the greatesl respect, therefore, I am unable to abide the view advanced by leamed Counsel for the Respondents that section 72(1) of the CPA forestalls the consideration by this murt of questions of mixed law and fact. I am satisfied that that Grounds 1 and 3 of this Appeal are properly before thts Court, and would accordingly over-rule the objection thereto. 39. Tuming to the outstanding grounds of appeal, I propose to consider Grounds 4 and 5 together, touching as they do on the question of limitation of time. I shall then conclude by addressing Grounds l,2and3together. Grounds 4 & 5 Ihe /eamed Justices ot Appeal effed in law when they concluded that the cause of action arose in 1979 or at the very least 1980 hence occasbning a niscaniage of lustice & that the Appel/ants'sud was barrcd by linitation. 40. The Appellants contend that the recovery of land envisaged under seclion 6(2) of the Limitation Act, Cap. 2901i relates to a claimant that has been dispossessed of his/her interest in land that accrues from a deceased's estate. lt is argued that the circumstances of this case are that both parties, as beneficiaries of their deceased father's estate, did mutually co-exist on the suit land until the Respondents purported to distribute it without prior acquisition of letters of administration. ln Counsel's view, the deceased's estate was not available for distribution unless undertaken under the intestate succession framework demarcated under section 187 of the Succession Act, Cap. 268.te 17 Formerly cap. 80. 18 Formerly section 191 of the Succession Act, cap. 162 1.1 Civil Appeal No. l0 of 2023 41. Reference is madetoa cause of action as defined in Auto Garaqe v Motokov 119711 EA5'14and Al Haii Nasser Sebaqala v Attornev General & Others [19991 UGCC 3 for the proposition that although both parties did acquire the right to their father's estate upon his demise in 1979, that right was never violated until 2012 when the Appellants discovered that the Respondents had fraudulently apportioned lhemselves 120 hectares of the 220-hectare piece of land, and were in the process of acquiring freehold certificates of title over that land. lt was at that point that the cause of action in this case is opined to have arisen, and therefore the computation of time for purposes of limitation would have started to run when the Appellants became aware of the Respondents' fraudulent actions. The first appellate court is thus faulted for its finding that the right of action in this case arose on the dale of lhe deceased's death, in disregard of the Appellants' subsequent discovery of fraud that ought to have exempted them from any connotations of limitation. 42. Conversely, it is the Respondents' contention that both parties attained a beneficial interest in the suit land upon the demise of their father in 1979; the Appellants' nght of action for the recovery of land that formed part of the deceased's estate arose in that year, and their suit was correctly adjudged to have been time baned on account of section 6(2) of the Limitation Act. Reference is made to , where this Court adjudged a Iimitation rl bowa v Makerere Univers 1 period to start to run from the date on which the cause of action arose. lt is thus argued that the Appellants' cause of action arose in 1979 (or at the very latest 1980 when the estate was supposedly distributed by the deceased's widow), which was when the right to sue whoever they thought was tampering with the deceased's estate arose. lt is further argued that the processing of freehold titles by the Respondents was undertaken pursuant to the customary distribution of the deceased's estate by their molher in 1980, and was therefore not laced with fraud as alleged by the Appellants. 43. On its part, the first appellate court discharged itself as follows on the question of limitation, Without more, I is clear that in the inslant case, the respndents' ight of action accrued on 4h January 1979. .... Section 6(2) of the Limitation Act is very clear The date on which the cause of action arcse was the date ol the death ot the owner of the land the subject of the suil. The ssclloIl doss nol expect a claimant to a sharc in the land of a deceased W$on to wait until there is an act of lrying to alienate the land' in oder to file a sutt. lt was an efior lor the tial jdge to consider the tine the appllants staded lo pmcess frcehold titles as lhe time when th6 time begun to run. lt was also an effor to have accepted without question lhe unsubstantiated pleading in parugnph 4(1) ol the plaint that distibutbn was waiting lor the completion of schooling and or naniage of the Yd apryllanL and to use that as the time when the cause of action staded to run. Distibution was aclually not the point at whhh time statled to run accoding to section 6(2) of the Limitation Act. But even t it was. I have already found that the distributbn actually occuffed in 1980, and thal it was when the cause ot action would have aisen. The ight to receive an ,interBst i, the eslale of a deceased intestate does not accrue when letters of administration arc obtained. ll accrues upon the death of the deceased. That is why a beneticiary can maintain an action even without letters of administntion, as the /Bspondents did in lhe instant case. 44. Section 6 of the Limitation Act outlines the dates of accrual of rights of action in respect of land, The question is whether the limitation outlined in section 6(2) is applicable to the set of facts before this court presently. ln my view, section 6(1)of the Act brings necessary perspective to the possessory rights in issue under section 6(2). Both subsections 6(1) and (2) are reproduced below. (a) Where thG person bringing an aclion to recover land, or some person through whom he or she claims, has been in possession ofthe land, and has whils entitled to it been dispossessed l5 Civil Appeal No. l0 of2023 or discontinued his or her possession, the right ol action shall be deemed to have accrued on th6 date of the dispossession or discontinuance. (b) Where any person brings an action to recov€r any land of a deceased person, whether undsr a will or on intostacy, and th€ decoased person was, on ths dat€ of his or her death, in possession of lhe land or, in th€ case of a rsnt charge created by will or taking effecl upon his or her death, in possession of tho land chargsd, and luas the last person entitled to the land to be in possession of it, the right of aclion shall be deGmod to have accrued on the date of his or her death. 45. Section 6(1)literally relates to an action for the recovery of land which the plaintiff was in possession of but has since been dispossessed of. Section 6(2) similarly pertains to an action for the recovery of land, albeit land that was rightfully possessed by the deceased person al the time of his/her death, but which the Estate has since been dispossessed of. The interpretation of the word 'recoverl is thus instrumental to a better understanding of the nature of actions that are envisaged under section 6(2) of the Limitation Act, and whether the presenl case falls within their ambit, ln the context within which it is used in section 6 of the Limitation Acl, the term recoyery literally means an action to regain possession or control of land that was wrongfully taken or lost. Black's Law Dictionaryte more specifically defines recovery as 'the regaining or restoration of something lost or taken away.' Therefore, whether in its literal or more technical sense, the use of the term recovery throughout section 6 of the Limitation Act denotes regaining possession of land that had othenvise been lost. This begs the question as to who may bring such action for recovery of an intestate's land, notwithstanding the reference in section 6(2) to'any person.' 46. lam cognisantof the proposition in Blackstone, William, 1723- 1780, Commentaries on the Laws of Enoland that legislative context is important to statutory interpretation. lt necessitates the comparison of a law with other laws made by the same legislative body, that have some affinity with the subject or that expressly relate to the same issue.zo Reference in section 6(2) to the institution of an act for the recovery of land'under a will or on intestacy' raises connotations of the law of succession. lt behoves this Court therefore to cross+eference section 6(2) of the Limitation Act against the Succession Act, Cap 268,21 which is the substantive law applicable to issues incidental to testate or intestate succession. 1'g 8th Edition, p. 1302 10 See glockstone, Williom,lbid. ot poro.60. 21 Previously the Succession Act, Cap. 162 l6 Civil Appeal No. l0 of 2023 47, lt is common ground in this case that the deceased died intestate. The right to benefit from, preserve or recover an intestate's property is inter alia govemed by sections 187, 188 and 189 of the Succession Act.zz For ease of reference, they are reproduced below: 188. 189 Ercept as hersafter provided, but subject to section 4 ofthe Administrator General's A61, no right to any part ofthe proporty ol a psrson who has died ints3tate shall be established in any court of justics, unless letters of administration have first b6on grantod by a court of compotont iurisdiciion. Letters of administration entitle the administratorto all rights belonging to the intestats as effectually as if the administration has been grantod at tho moment after his or her death. Letters of administration do not rendsr valid any intermediats acls of the administrator tending to the dimunition or damage of the intestate's estate. 48. Section 187 of the Succession Act stipulates that proof of a right to an intestate's property can only be established after the grant of letters of administration, but section 188 empowers the holder of letters of administration to take such actions in the interest of the estate as if s/he had received the grant immediately following the death of the intestate. Thus in lsrael Kabwa v Martin Banoba [19961 UGSC 1, this Court clarified that by dint of section 188 (then section 192) ofthe Succession Act, the grant of letters of administration empowers the holder of the grant with rights that date back to the time immediately after the deceased's death. ln so deciding, the Court referred to the English Court of Appeal case of ln the Goods of Prvse [19041 301 at 304, where it was observed (per Stiding L.J): It is clear that the title of an administrator, though it does not exist until the grant of administration, relates back to the time of death of the intestate, and that he may recover against a wrongdoer who has seized or converted the goods of the intestate after his death in an action of trespass or trover. 49. For present purposes therefore, the holder of letters of administration may institute action for the recovery of the intestate's property that was dispossessed of the estate soon after his death. No such grant had been made as at the date that the Appellants filed their suit. Strictly speaking therefore, they could not institute an action for the recovery of their deceased father's land. However, this Court did in lsrael Kabwa v Martin Banoba (supra) interpret section 18923 of the Succession Act in such a manner as to validate the intermediate acts of an administrator, prior to securing letters of administration, that did not have the effect of diminishing or damaging the intestate's estate. ln 22 Formerly sections 191, 192 and 193 of the Succession Act, Cap. 1.62 23 Formerly section 193 of the Succession Act, Cap. 162 17 Civil Appeal No. l0 of2023 187, relation to a respondent with a beneficial interest in but no letters of administration in respect of an estate (such as the present Appellants) it was then held (per Tsekooko, JSC): Even if it was assumed for the sake of argument that the Respondent couldn't sue, his acls in pleserving or orotectino the estate are vahd. The Editors of Williams and Modimer on Executots Adninlstralors and Probate (beinq 11h Edition of Wi iams on Execulors and Y Edition of Molimer on Probate) at Daae 84 and 454 et seo. sho',{ that an intending applicant for Letters of Administration can institute a suit to stop trespass to the deceased s land 50, Hence, though acknowledging that a non-holder of letterc of administration cannot sue for the recovery of an intestate's land, this Court nonetheless upheld the validity of legal action taken towards the preservation or protection of the estate by an intending applicant for letters of administration. 51 . As beneficiaries to their deceased father's estate, this is precisely the position the present Appellants found themselves in. The record of appeal reveals that in June 2009 the Kiruhura District Land Board extended to the Respondents offers for the conversion of their customary land at Kyabagyenyi, Rushere, Kenshunga, Nyabushozi in Kiruhura District into freehold tenure. See Exhibit P. 78. Upon learning of this development, the Appellants mntested the freehold offers to the Respondents whereupon the District Land Board did in August 2012 halt the processing of titles in respect of the impugned offers. See Exhibil P12, 52. The Appellants subsequently filed Civil Suit No. 170 of 2013 in the trial court challenging the Respondents' application for the mnversion of their family land into freehold on the false representation that they were the customary owners thereof. lt is clear from paragraph 3(a) and (h) of the amended plaint in that suit that the Appellants sought to have the suit land adjudged to be part of their deceased father's estate, with a view to kick-starting their application for letters of administration in respect of the estate. Against the backdrop pf their assertion that the suit land had never been distributed and as persons with a beneficial interest in their deceased father's estate, the Appellants were entitled to institute proceedings for its preservation pending the grant of letters of administration. See lsrael Kabwa v Martin Banoba (supra) l8 Civil Appeal No. l0 of2023 53, With the greatest respect, therefore, it seems to me that the first appellate court erred in its finding that the Appellants had sought to enforce their right to a share of their deceased father's estate. Whereas that might have been the ultimate goal of their litigation, to which I might add they would be very well entitled; the avennents in the amended plaint and the documentary evidence on remrd support a case that is rooted in the preservation of the intestate's estate pending the grant of letters of administration and distribution of the estate, An action for the preservation of an estate ought not be equated to one for the recovery of land so as to fall within the confines of sections 5 and 6(2) of the Limitation Act. Whereas preservation pertains to the non-alienation of or intermeddling with an estate, recovery relates to the resloration of part of an estate that has already been alienated and lost. ln this case, given that the freehold titling process that the Respondents had embarked on was subsequently halted, the Estate had not yet been alienated. 54. Even if perchance, the Appellants' suit was to be perceived as one lor the recovery of land (which it was not), insofar as it is in part rooted in allegations of fraud, any computation of time for purposes of tme limitation would have been sub.iect to the provisions of section 25 of the Limitation Act as to when that fraud was discovered. Section 25 reads: Whero, in the case of any aclion for which a period of limitation is prescribed by this Acl, oither- (a) the aciion is basod upon the fraud of th€ dofendant or his or her agent or of any percon through $rhom he or she claims or his or her ag€nt; (b) ths right of action is concealed by the fraud of any such p66on as is mentioned in Paragraph (a) ot this soction; ot (c) the action is for relief from the consoquences of a mistake, the Deriod of limitation shall not beqin to run until the olaintiff has discovered the ftaud or the mistake, or could with reasonable dilioence have discovered it; (my emphasis) 55. Consequently, I find that the Appellants' action for the preservation of their intestate father's estale is not among the actions for which a period of limitation is prescribed under sections 5 and 6(2) of the Limitation Act. I would accordingly resolve Grounds 4 and 5of the Appeal in the affirmative. Grounds 1.2&3: The leamed Justices of Appeal ened in law and fact when they found that the/B was a disttibtltion of land in 1980 in lotal disregad of the evidence on rccod, and that the late Eina Rwakaniora had the nght to disttibule the land of the late Yosamu Rwakaniora: and ercd in law wl' n they concluded that the Appellants had acquiesced the dislibutbn fot over 30 years and hence came lo a wmng conclusion . 56. The first appellate murt is faulted for its finding that the deceased's estate had been fully distributed in 1980; the said distribution had been aquiesced by the Appellants, and they were therefore estopped from challenging it, This finding is opined to have been speculative, and rooted in evidence thal was insuflicient and so riddled with inconsistencies as to be devoid of cogency. ln the Appellants' l9 Civil Appeal No. I 0 of 2023 view, had it been true that the suit land was indeed distributed in 1980 alongside the distribution ot the deceased's cattle, there would have scarcely been need for the Respondents to attempt to stealthily process freehold titles. lt is thus argued that there having been no distribution of the suit land in 1980, the question of the Appellants' acquiescence of such a distribution would not arise. 57. ln any event, leamed Counsel for the Appellants contend that assuming that such distribution did ensue, it would have been illegal for having been undertaken by a person devoid of requisite authority either by way of consent from the then controlling authority; under duly issued letlers of administration, or as a culturally recognised administrator of the estate. Reference in that regard is made to Kavabura Enock v Joshua Kahanoinre (2019) UGCA 20t8, where it was held that where some of the beneflciaries contested the distribution of an estate the law requires that there must be a legally appointed representative of the deceased person to settle the matter or unde(ake the distribution. 58. Conversely, the Respondents support the first appellate court's finding that the deceased's estate was fully distributed by his widow in 1980, contending that there is no legal or factual basis for the Appellants' proposition that only the deceased's cattle (and not the suit land) were distributed at the time. lt is argued that although there were some inconsistencies in the evidence as to who attended the meeting in which the distribution of the estate was done, it is agreed by both parties that a meeting did take place in 1980 for the distribution of the deceased's estale. In any event, the inconsistencies were purportedly explained by the parties' maternal uncle (DW2) when under cross examination he attributed his failure to recollect the names of all the attendees of the meeting to the passage of time. 59. The legality of the purported distribution of the estate is defended on the premise that though the Land Reform Decree, 1975 declared all land in Uganda to be public land, section 4(1) of the Decree waived the need for consent of the controlling authority in relation to the transfer of land by succession. lt is further argued that even if such consent was required, section 4(1) of the Succession Act had been interpreted in Tifu Lukwaqo v Samwiri Mudde Kiiza & Another [19981 UGSC 9 to suggest that the failure to give notice thereunder was a curable inegularity which cannot render a sale a nullity. 60. ln the same vein, it is the Respondents' contention that the fact that the widow was not the holder of letters of administrator when she distributed the estate would not invalidate a distribution that was undertaken under customary law. ln a bld to distinguish the decision in Kavabura Enock v Joshua Kahanqinre (supra), it is argued that unlike the circumstances of that case where two siblings sold 20 Civil Appeal No. l0 of2023 MTN (U) Limited 120171 UGHCLD 53 are cited for the proposition that the distribution of an estate in accordance with applicable custom or customary law would be valid 61. With regard to the Appellants' alleged acquiescence of the now contested distribution of the estate, it is opined to be common ground that the Appellants were in exclusive possession of the'girls'60- hectare piece of land since 1980 while the Respondents enjoyed exclusive occupation and use of the'suit land'. Further demonstration of the Appellants' acquiescence is argued to arise from their acceptance of the cattle that was distributed by the deceased's widow. Citing 8/ack's Law dictionarfa definition of the term 'acquiescence' as 'a person's tacit or passive acceptance; implied consent to act', it is argued that should this Court be inclined to the view that the widow's distribution of the estate was inegular, the Appellants acquiesced and benefitted from it and are therefore estopped from challenging it. 62. Meanwhile, as to whether or not the deceased's estate was distributed, the first appellate court rendered itself as follows: DW1 and DW2 werc consistent in thei clain that Etina Rwakanion convened and chated a meeting in which both land and caftle were distributed. Secondly, even if it is accepted that DW3 and DW4 did not actually sit in the neeting at which the disttibution was done, they were present at the venue, the home where the meeting took place. DW3 explained that at the time she could not sl in the meeting becaAe she was young. DW4 also explained that 'lt is the oldet Nople who sat', bd that she could not rccallwho was in lhe meeting and who was chaiing. She explained in her w,lness slatemert t at at the age of 13 years she could follow what was happening. The two add that in the due cowse lhe beneliciaies took up thei respective heads of cattle and pottions of the land. The testinonies of lhese rvlnesses ca,not be hearsay. Coud cannot in all justice be oblivious lo the tact lhat while actual distibution of prcpefty might be a one4ay event, the process of taking up the allocations, which bgica y unfolds over a longer tine, can be confirmed by Wrsons other than those who were in the actual meeting, especially when they happen lo be some ot lhe beneficiades. The testimonies of DW1 and DW2, who actually attended the meeting as conoborated by PWz, DW3 and DW4, cannot simply be brushed aside in determining whether or nol therc was a distribution. ... Fron the testinonies of Dw1, 2 and 3 and the fact that the padies have since occupied distincl podions of lhe land of the deceased with each side developing ls potlion including conslructing the@on thelr resdences, I am inclined to accept the evtdence ol DW1, 2, 3 and 4 that in fact 2t land that was part of an estate before the grant of letters of administration or distribution of the estate, in this case the estate was duly distributed customarily and was thus settled. The authorities of Administrator General v Georq e Mwesiqwa Sharo 119981 UGCA 14 and Maqbwi Erikulano v Civil Appeal No. l0 of2023 24 8'h Edition gave one hill to the fenale children and two hills to the nale childrcn, who latet shared thet inherilance amongst themselves. 63. Of the alleged acquiescence by the Appellants (who were respondents in the lirst appellate court), the learned Justices of Appeal held: The respondents' acquiescence is manifest in the fact that not only did they take cattle distibuted to then, but they also moved them to thet allocated polions of land where one of them built a two-bedmom house . Fot at least 33 years, lhey were content to go along with tho distibution withod ever lodging a complaint anwherc. They werc content to let the appellants build permanent honesteads on thet allocated potlion, plant pemanenl crcps such as bananas on the land, to develop caftle tams including valley dam! wells lhereon and do all other lhings that owners of land do with it. Thei acquiescence is also evident in the tact that they, too. had staiod the processing of freehold ti e fot lhei alocated pottion by the tine they filed (the) suit giving nse b this apryal. Having accepted the state of affais for 33 years, the respondenls cannot in all justice tum amund and claim that they never concedod to the allocation. 64. Finally, the appellate court discharged itself as follows on the legality of the distribution The leamed tial judge ened when she found that the widow was not prcved to be the cuftually racognised administratoroftheestatewiththemandatetodistibute....ltboththenatemalandpatemalunclesof the paiies took the position that the culture ol the patlies recognised the widow as the pafty nandated to dlstrbute tie estate, and it all tha patlies also at the time conceded to that, that was surely sufficient. .. I also found it strange that cowt would find the dislibution invalid on the ground that it was effected withod lhe consent of the controlling authorrty - the Uganda Land C'onmisslon. /l is true that when the lease olfer was not taken up or when the lease expired and a full tem was not btoughL the land rcvefted to the controlling authorv pursuant to the Land Reform Decree. But as the judge conectly found, the Decee recognised the dghts of customary occupants of the land and that such tights could be inherrted by the successors ln tltle oftie customary occupant, in this case the widow and children ol Yosanu Rwakaniora. The Land Re'lorm Decr.,e section 4(1) thereof only rcquired notice to the'Prescibed Authotity'in the cases of tensfar by sale or gift of customary intercst. lt made no mention of acquisition by inhedtance. lf the drafters ot the Decree had wanted inheitance to be subjected to t e same process , they would have explBss/y slaled so. They did nol. To hoh that no inheitance of customary intercst in land was valid unless there was consent of the Contro ing Authorlty would be to suggest ffat the possibly millions ol inheitances ot land effected throughout Uganda fron 197 5 to the repeal of the Decrae were all void. They wete not, because acquisition of customary intercst in land by inheritance did not rcquire tha consent of the presaibed authotity. ... As a natter of fact, the Supreme burl has held in a number of dacisions that the absencs of consent ol the prescibed authotity did not invalidate tnrcaction in the land, esqcially consideing that it was not even clear under the decree who the prescibed aLlhoity was, and also because section 4(1) of the Deaee only rcquired 'nolice to and not consent of the prescibed auth1tity. 22 Civil Appeal No. l0 of 2023 lseo Tifu Lukwaoo y Sanuel tludde Kizza $CCA No. 13 of 1996l and ,aumen Muovenvi vs tl. Buwule $CCA No. 14 of 20161. 65. The Appellants contest the finding that the intestate's widow, late Erina Rwakaniora, rightfully distributed his estate, and the Appellants had acquiesced the said distribution for over 30 years. The legality of the intestate's widow distributing his estate, as well as the Appellants' alleged acquiescence of that distribution, hinge on the question as to whether the eslate was in facl distributed at all. This bring into purview the queslion as to whether the Court of Appeal duly discharged its duty as a first appellate court, before arriving at its conclusion that the distribution of the estate by the widow was legally conect and, in any case, the Appellants had acquiesced the said distribution. ln its determination of that question, this Court is guided by the following legal principles as elaborately laid down over the years. 66, lt is well settled that this Court should only consider the facts of the appeal to the extent of considering the relevant point of law or mixed law and facl raised in the appeal. lt can interfere with the conclusions of the Court of Appeal if it appears that in its determination of the appeal as a first appellate court, it misapplied or failed to apply the relevant princrples See @lg-Espangly Bank ol Uganda (supra).es The Court restated the principle that a second appellate court is not required to re-evaluate the evidence as it is with a first appellate court, but ts restricted to a determination of whether the first appellate court did abide the judicial duty required of it. ln so deciding, the Court relied extensively on its eadier decision in Henry Kifamunte vs Uqanda (1998) UGSC 20, where it was observed: 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 suffrciency of that evidence or ttre reasonableness ofthe finding. .... 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 probable, 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 questjon of law: R. vs. Haosan bin Said (1942) I E.A.C.A.62 Civil Appeal No. l0 of2023 67. That decision was relied upon in Boutique Shazim Ltd v Norattan Bhalia & Another [20211 UGSC Q, where the Supreme Court cited with approval its decision in Millv Masembe v Suqar Corporation (U) Ltd. Civil Apoeal No. 'l of 2000 (unreported) as follows: '?s Henrv Kifamunte v Usanda. Criminal Apoeal No. 10 of 1997 (Supreme Court) cited with approval. On second appeal, he Supreme Cou( sras not required to re€valuate he evidence in the same manner as a first appellate cou( would as doing so would create unnecessary uncertainty. lt was sufficient to decide lvhether the first appellate courl on approaching its task has applied the relevant principles conectly.26 68. Relatedly, in Elizabeth Nalumansi Wamala v Jollv Kasande & Others [20171 UGSC 21 it was held that a second appellate court can only interfere with the lirst appellate court's decision where it considers that there was no evidence to support the finding of fact arrived at by a first appellate court, this being a question of law. Similarly, in Breweries Limited v U Corporation 00 2l U GSC 40. it was held that the Supreme court should nol interfere with a decision where the Court of Appeal did abide the duty upon it to re-evaluate the evidence before it 69. For brevity, it becomes necessary lo restate the evidential duty upon the Court of Appeal in order lo determine whether it did in fact discharge its judicial duty. The Court of Appeal sitting as a first appellate court is under a duty to 'reappraise the evidence and draw inferences of fact.' See Rule 30(1) of the Judicature (Couft of Appeal Rules) Directions. As such, it would thus be required to subject the evidence adduced before the trial court to fresh judicial scrutiny and draw its own independent conclusions, with appropriate regard for the bona fides of the judgment appealed from. See n Arabe nol v Bank of n (supra) and Joseph Muluta v Silvano Katama 119991 UGSC 4. Even where it unearths enors b y the trial court, a first appellate court should be loath to interfere with a finding of fact arrived, only doing so when after acknowledging that it did not have the benefit of studying the demeanour of the witnesses, it comes to the conclusion that the trial court has occasioned a miscaniage of justice or is plainly wrong. See Banco Anbe Espanol v Bank of llqanda (supra), Kasita Namusisi & Others v Francis M. K. Ntabaazi 120061 UGSC 1, Jiwan v Gohil t1948115 EACA3I and R. G. Patel v Lalii Maka iii t1957t EA 314. Wh ere the cogency of the evidence hrnges on the manner and demeanour of a witness(es), deference should be made to the trial judge's impression of the credibility of the witness; othemise (or where it does not), other factors may be considered to determine the credibility of evidence and warrant a departure from the trial ludge's position even on a question of fact arising from evidence the appellate court did not see. See Banco Arabe Espanol v Bank ol Uoanda (supra). 16 Reference was also made to Francis Sembatva v Alport Services Ltd. Civil Aooeal No. 6 of 1999 (Supreme Court). Civil Appeal No. I 0 o12023 24 70. In relation to ludicial discretion, a first appellate court should not interfere with the exercise of a trtal court's discretion unless it is satisfled that the trial court misdirected itself in some matter and as a result anived at a wrong decision, or where it is manifestly apparent from the case as a whole that the trial court was clearly wrong in exercise of its discretion and as a result occasioned a miscarriage of justice. See Mboqo & Another v Shah . lndeed, this Court did in in American Ltd v Atul 990 - 941 EA 10 state that an appellate court would ExDress lnternational Bankin I only interfere with the discrelion exercised by a court of original jurisdiction in the following inslances (a) Whore ths judg6 misdirecls himsolf with regard to th6 principles governing the sxorciso of discretion; (b) Where ths judgs takes into account matters that he ought not to considor; or fails to take into account matters that he ought to considor; (c) Where tho exsrcise of discrotion is Plainly wrong. 71 . I have carefully considered the decision of the Court of Appeal against the evidence that was before it. To begin with, it is quite clear that the court's reappraisal of the evidence was largely skewed to the Respondent's evidence with little or no regard for the opposite party's evidence. This in itself was a violation of the judicial duty upon that court to provide fresh scrutiny to the entire body of evidence and draw its own inferences of fact. lt thus falls to this Court to reappraise the totality of the evidence on record to ascertain whether it supports the factual findings of the Court of Appeal that are in issue presently. 72. Rose Kateba (the First Appellant), who testified as PW1, calegorically attested to the 1980 sub- division having been in relation to cattle only and not the deceased's land. She explained that their deceased mother distributed the cattle because the Respondents had started selling off some of the cows yet there were still some school-going siblings whose school fees were derived from the cattle. Her evidence is conoborated by Dora Tumusiime (the Fourth Appellant), who testified as PW2, ln her witness statement, the witness atlested to there having been no prior distribution of land by their mother, but the realisation that the Respondents sought to depnve them of the land drove she and her co-appellants to apply for a certificate of no objection with a view to eventually administering their deceased fathe/s estate. She confirms this position under cross examination, only conceding to the distribution of cattle by their mother with which she had no issue. lt is therefore not true, as was proposed by the first appellate court, that PW2 corroborated the Respondents' evidence that both cattle and land were diskibuted by the intestate's widow in 1980. The totality of the Appellants evidence flatly denies any distribution of land by their mother. 25 Civil Appeal No. l0 of2023 73. Conversely, in proof of the supposedly complete distribution of the estate, the Respondents relied upon the evidence of Godfrey Karamuzi (the Second Appellant), who testified as DW1; Canon Charles Karakati, the parties' maternal uncle (DW2); Victo Kyobutungi, their sister (DW3), and Jessica Akampulira, their step-sister (DW4), ln paragraphs 4 - 6 of his witness statement, DW1 attests to having been 30 years old when the estate was distributed and thus clearly recalled what happened. lt is his evidence that the intestate's male and female children were given 60 and 150 cows respectively; while the land was divided into two portions, one of which was allocated to the female children and the other to the male children. Under re-examination, DW1 quite categorically asserts that neither he nor his younger sibling, Musa Rwenduru (the Third Respondent) participated in the meeting where the above diskibution ensued. However, DW2 is equally categorical on all the deceased children having been present at the meeting, which was presided over by a l\4uluka Chief, and claims that they all signed the Minutes of the meeting, On her part, in a marked deviation from DW2's evidence, DW3 asserts that neither she nor DW1 or the Third Respondent attended the distribution meeflng, insisting that only the First Appellant and First Respondent did so. She nonetheless contradicts DW2 further when she claims that the land that was distributed comprised of three hills/ ridges, as opposed to two ridges/ hills as testified by him. She is supported in that assertion by DW4, who also denies attending the meeting but claims, in agreement with DW3 and in contradiction of DW2, that it was presided over by their mother. 74. Clearly, the Respondents' evidence was riddled with inconsistencies and contradictions that adversely impacted on its credibility and cogency for proof of the vital question as to whether the intestate's land was distributed by the widow. lt is bothersome that DW2, the only surviving elder of those that supposedly assisted the widow distribute the estate, contradicted the Amended Written Statement of Defence on the vital question of how much of the land was distributed to either set of claimants. Whereas the pleadings make reference to two ridges/ hills having been allocated to the boys and one hill/ridge to the girls, DW2 maintains that the girls were given one ridge to the west and the boys were given one ridge to the right. That is no minor inconsistency given that the said land is the subject of this appeal. Even more perturbing, DW2 is the only witness that insists that the distribution meeting was presided over by a Muluka Chief and all the deceased's children were present and signed the lrlinutes thereof, but these Minutes were never adduced in evidence. 75. lt is very troubling when the evidence of a principal witness that was not party to the dispute between the two sets of protagonists (and would thus have been considered fairly objective) is so materially inconsistent with and contradictory of the pleadings and the rest of the evidence on record. lt is 26 Civil Appeal No. l0 o1202-1 common ground both in the pleadings and the evidence that he not only attended the meeting, but participated actively in the supposed distribution of the suit land. All the other defence witnesses deny having attended the meeting. Two of them (DW3 and DW4) nonetheless claim that their mother presided over the meeting, while DW2 is firm in the view that it was presided over by a Muluka Chiel. To compound matters, when pinned on the inmnsistencies between hers and DW2's evidence, DW3 (who struck me as the most hapless witness) backtracks and claims that all the deceased's children only signed for the cows and property that they were given. 76. I question the cogency of this latter piece of evidence considering that a good number of the witnesses that double as the intestate's children had testified that they were illiterale, the girls particularly stating that they did not go to school. Perhaps more importantly, whereas both parties concede that the cattle were allocated to each of the children individually, the Respondents' witnesses are agreed on the allegation that the land was not assigned to any of the children individually, but rather was.jointly allocated to ',he boys and gtls', lt would thus be plausible that each of lhem would have signed for the cows that were given to them individually, but highly improbable in my view that they would have signed for land that was jointly allocated, if at all. 77. As the party that claimed that the estate was fully distributed in 1980, the Respondents bore the onus of proof of that allegation to the required slandard. lam not satisfied that the evidence on record is sufficient to discharge that duty, On the preponderance of probabilitres, I am inclined to lhe view that there was no distribution of land by the intestate's widow prior to her death. With the greatest respect, therefore, I do flnd that the first appellate court fell short on its duty to subject the evidence in respect of the survey reporl to fresh judicial scrutiny, and erred in law in its finding that there was a distribution of the intestate's land in 1980. I would accordingly resolve Ground 1 in the affirmative. Having so held, the question of the Appellants' acquiescence of the land distribution would not arise therefore Ground 3 of the Appeal is similarly resolved in the afflrmative. 78. Although my decision above would effectively resolve this Appeal, for completeness I consider it necessary to briefly address the contestations made under Ground 2, This ground of appeal gravitates around the question as to whether a person that does not hold letters of adminiskation may distribute an intestate's estate. 79. Section 4(1) of the Land Reform Decree was invoked by Counsel for the Appellants in support of the proposilion that the intestate's widow had no authority to transfer the land without due notice to and consent from the requisite aulhority. That statutory provision reads: 27 Civil Appeal No. l0 of2023 80. Section 4(1 ) above has since been construed by this Court to suggest that failure to give notice to a prescribed authority that is not clearly spelt out in the law is an irregularity that would not vitiate a transaction. See Tifu Lukwaso v Samwiri Kiiza & Another /.19981 UGSC 9 and Asuman Mudde Muovenvi v M. Buwule, Ci vil Aooeal No. 14 ol 2016 (unrepofted) 81 . ln any case, section 4(1) of the Land Reform Decree would have been inapplicable to a transfer of land by succession as the proviso thereto exempts such transfers from the obligation to give notice of transfer of customary tenure. However, the transfer by succession that was envisaged in that statute would have been transfer under letters of administration (in this case where the deceased died intestate) in accordance with the then sections '191 and 192 of the Succession Act,27 Given that the suit land in this case was not transfened to the Respondents by an administrator holding letters of administration, they could not beneflt from the proviso to section 4(1) of the Land Reform Decree. 82. I now briefly tum to the legal merits of the distribution of an estate by a non-holder of letters of administration vis-i-vis a culturally recognised administrator of the estate. Section 14(2)(b)(ii) ofthe Judicature Act recognises local custom as a source of law in Uganda but subordinates it to written law, in effect restricting its applicability to where the written law is silent or inapplicable. Although cited in reference to the jurisdiction of the High Court, that hierarchy of laws would be applicable to the Supreme Court and Court of Appeal by virtue of sections 7 and 11 of the Judicature Act respectively. Section 14(2) of the Act is reproduced below, Subieci to the Constitution and this Ac1, tho jurisdiction of the High Court shall be exercised- (a) in conformity with the writtsn law, including any law in force immediately before the commencement ol this Act; (b) subiecl to anv writlen law and in sofar as lhe written law does not extend or aoolv. in conform itY with- (i) the common law and the doctrines of oquity; 27 Currently sections 187 and 188 of the Succession Act, Cap. 268 28 Civil Appeal No. I 0 o12023 A holdar ofany customary tenure on any public land may, after notice of not lessthan three months to the prescribed authority or of any lessot period a3 the said authority may approve, transfsr such tenur€ by sale or gift in&r vivos or othorwise, subjecl to the condition that such transter shall not vost any title In the land to the transferee except the improvements or developmonts carried out on the land: Providsd that in the cas6 of a transrer by succes3ion, whother testate or intestate, the notice to the said authority shall not bo required. (ii) anv ostablishod and current custom or usaoe; and (ili) the powers v$ted in, and the proceduro and practico obssrved by, tho High Court immediately befors th6 commencement o, this Acl insofar as any such jurisdiction is consistent with the provisions ot this Act; and (c) where no exprsss law or rule is applicablo to any mattor in issuo before ths High Court, in conformity with the principlos ot iustice, oquity and good conscience. 83. The applicability of established custom or cuslomary law in accordance with the hierarchy of laws, dockines, principles, practices and usages articulated in section l4(2) of the Judicature Act was reiterated by this Court did in Tifu Lukwaoo v Samwiri Mudde Kiiza & Another (supra) as follows: Custom, like mmmon law and doctrines of equity, is primarily to be applied where the written law is silent. Secondly the Act expressly preserved the right of the Court to apply, and the right of any person to benefit from, such custom as is not repugnant to natural justice, equity and good conscience and as is not incompatible with any written law. 84. The Court additionally reiterated what is now trite law that 'where custom or customary law is not documented or not so notorious as to warrant the Court taking judicial notice of it, it has to be proved in evidence,' The Court cited with approval the East African Court of Appeal case of Ernest Kinvaniui Kimani v Muira Gika noa 119651 EA 735 , in which it was observed that where African customary law is neither nolorious, documented or incapable of iudicial notice, it must be established by the party intending to rely on it and, as a matter of practrce and convenience in civil cases, the relevant customary practice should be proved by expert evidence. 85. For present purposes, section 25 of the Succession Act vests all property in an intestate's estate upon the personal representative (or the person legally appointed to administer an estate) in trust for the beneficiaries of the estate, and to be distributed in accordance with Parts lV and V (sections 20 - 28ya oi tn. Act. To that extent, the written law clearly makes provision for the distribution of an inleslate's estate and there would scarcely be need for recourse to custom or customary law. However, in the event that there is an aspect of customary law that is not addressed by the written law, a party may rely on such custom provided that it is duly established before the court. 86. lt is an unmntested fact in this case that the intestate's widow was not the legally recognized personal representative or administrator of the estate. ln other words, she did not hold letters of administration in respect of that estate. That notwithstanding, she could have rightfully distributed the estate under 28 Formerly sections 24 - 33 of the Succession Act, Cap. 162 29 Civil Appeal No. l0 of2023 customary law had it been established that there was a lacuna in the written law that was aptly provided for by applicable custom. Thal was not done in this case. The duty to do so lay with the Respondents as the party that had invoked customary law in support of the widow's purported distribution of the Estate. Failure to do so would have invalidated any purported distribution of the land, had ittranspired. Accordingly, Ground 2oflhe Appeal would succeed. C. Conclusion 87. The upshot of my judgment is that this Appeal substantially succeeds with the following orders l. Thejudgmentand orders ofthe Court ofAppeal inCivil Appeal No. 162of2021 are hereby set aside and the orders of the High Court in Civil Suit No. 130 of 2013 are reinstated, the general damages awarded thereunder to attract 9% interest from the date hereof. ll. The estate of Yosamu Rwakaniora (deceased) should be distributed in accordance wilh the Succession Act by lawfully appointed administrators, and the retums of such distribution should be duly filed with the High Court within 6 months thereof, lll. A permanent in.junction does issue restraining both parties from any further intermeddling with the estate of Yosamu Rwakaniora (deceased) until the legal distribution thereof has been concluded. I would so order a# 0,,o, ..........,2025. Dated and delivered at Kampala this . Monica K. Mugenyi Justice of the Supreme Court 30 Civil Appeal No. l0 of 2023 lV. The Appellants are awarded the costs in this Court, as well as in the lower courts. THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT I(AMPALA CIVIL APPEAL NO. 10 OF 2023 [CORAM: TUHAISE; CHIBITA; MUSOTA; MADRAMA & MUGENYT; JJSCI 1. I{ATEEBA ROSE 2. KAMUKAMA MARGARET 3.I{ANSHONGI JANE 4. TUMUSIIME DORA : APPELLANTS 1. MUGYENZI JUSTUS 2. KARAMUZI GODFREY 3. RWENDURU RWEISHE MUSA: : : : : : : : : : : : : : : : : : : : RESPONDENTS JUDGMENT OF STDPHEN MUSOTA, JSC I have had the benefit of reading in draft thc judgment of my sister Hon. Justice Monica Mugenyi, JSC. I agree with her analysis and for the reasons she has given, I would allow this appeal with costs to the appellant in this court and the courts below. Dated thi, g"f9 day of @^;t"^2 Hon. Stephen Musota JUSTICE OF THE SUPREME COURT 2025 VERSUS eEil"4 THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPAI.A (CORAM: TUHAISE, CHIBITA, MUSOTA" MADRAMA, MUGEI{YI,J.SC.) CIVIL APPEAL NO: l0 OF 2023 KATEEBAROSE& 3 OTHERS :: :::: ::::::::: :: APPELI-{NTS AND MUGYENTIJUSTUS & 2 O'II{E.RS RESPONDENTS [An appal arising from the judgment of the Cout of Appal in Auil Appal No, 162 of fr21 bforc Musoke, Kibedi and Gashinbakc,n/t" debd 9t March,20231 JUDGMENT OF CHIBITA, -ISC I havc hatl thc lrenelit ol'r'ca<[ing tlrc.ju<lgncnt of'rnl, lsar]rc(l sistcr Hon..fustice Monica Mugen1.i,.JSC, in <lrafi, in tltc alxrve appeal. I iun irr agrecrnent with the conclusion iur<l <>r<lcrs bcing pr'<>1x>se<[. A<l<litiorr:rllr', arxl lirr crrrplrasis, I entircll' agree rvith thc lirxling that the Suprerne Coutl is clr.joittc<1, bf all availablc larv an<l rvitlrout an1' c<>rrtr;t<lit'tion, t<> trrnsi<ler lxrth Inatters ol larv arxl rnixc<l larv arxl lict. Irxlee<I, this has bcen iurrl rcnurins thc position <>l trlrlt. Date<l at Karnp:ila tlris ...1 1F 2 rlay'ol 2025 ori..J us ticc \Iikc Chi )r [:r JUSTICE OFI}IE SUPREME COTIRT /6 fi4€*W Cow( $6r*y 'lh; & turc c9 THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA (CORAM:TUHAISE, CHIB]TA, MUSOTA, MADRAMA & MUGENYI JJSC) CIVIL APPEAL NO. 10 OF 2023 (Appenl from tlrc tlecisiotr of the Court of Appaal itt Cit il Appenl No. 162 of 202'1 before Eliznbeth Musoke, Muznntint Kibeedi nnd Cltistoplrcr Gashirnbake, llA) TUDGMENT OF PERCY NIGHT TU HAISE, ISC. I have had the benefit of reading in draft the Judgment prepared by *y learnecl sister, Hon. Lady Justice Monica Kalyegira Mugenyi, JSC. I agree with her analysis and decision. I also agree with the orders made therein. since all members of the Coram agree with the lead judgement, this appeal 2025. Percy Night Tuhaise |ustice of the Supreme Court l.KATEEBA ROSE 2.KAMUKAMA MARGARET 3.KANSHONGI IANE 4.TUMUSIIME DORA .............APPELLANTS VERSUS l.MUGYENZI JUSTUS 2.KARAMUZI GODFREY 3,RWENDURU RWEISHE MUSA RESPONDENTS is allowed with the orders as proposed in therein. Dated ar Kampara this ... A-i* o^, ,r.[*f,-*.fXi. ) .vffi-.*l**w'.. g-q- THE REPUBLIC OF UGANDA, IN THE SUPREME COURT OF UGANDA AT KAMPALA (CORAM:TUHAISE, CHIBITA, MUSOTA, MADRAMA & MUGENYI, JJSC) CIVIL APPEAL NO lO OF 2023 1. KATEEBA ROSE} 2. KAMUKAMA MARGARET) 3. KANSHoNGIJANE) 4. TUMUSilME DoRA) .............. APPELLANTS VERSUS 10 15 25 30 1. MUGYNZTJUSTUS) 2. KARAMUZTGODFREY) 3. RWENDURU RWENSHIE MUSA} RESPONDENTS (Appeat from the decision of the Court of Appeal (Musoke, Kibeedi & ?ashirabake, JJA) in Civil Appeal No. /62 of 2021) JUDGMENT OF CHRISTOPHER MADRAMA IZAMA, JSC I have read in draft the judgment of my tearned sister, Monica K. Mugenyi, JSC and I concur with the outcome of the appeal to the extent I state in my judgment. l, however, write a separate judgment on the apptication of section 72 of the civit Procedure Act, which provision appties to second appeats. The question I attempt to answer is what taw applies to second appeats in civit matters fited in the Supreme Court if section 72 of the Civit Procedure Act is not enforceabte in the Supreme Court? I concur with the decision of Mugenyi, JSC and the reasons given therein that ground 6 of the appeal' shoutd be struck out' The respondents counseL objected to grounds 1 and 3 of the appeaI for pl.eading grounds of mixed law and fact. My Learned sister Mugenyi, JSC has 1 20 s exhaustivel.y set out the grounds of the appeat, facts and issues involved and I need not repeat them. The objection to ground 1 and 3 inter alia disctoses an issue of whether section 72 of the Civil. Procedure Act appties to the Supreme Court in second appeaLs. This is based on the proposition based on interpretation of sections 10 72 and ?4 of the civiL Procedure Act that the grounds of appeal. in second appeats in civiL matters can onty be todged on matters of law and not mixed law and fact. I have deemed it necessary to state my opinion fuLty in a separate judgment. Further, I regard the issue as disctosing a matter of law of general or pubLic importance and atso tn Light of previous decisions ls stating that section 72and 74 of the Civi[ Procedure Act do not appl.y to the Supreme court. The point of Law is whether second appeats to the supreme court in civiI matters can be todged on matters of law onty or it may be on matters of mixed [aw and fact. The second retated issue is whether sections 72 and 74 of the Civit Procedure Act do not bind the Supreme Court. zo The first approach I have adopted is narrow in that it determines the issue whether as a matter of law sectio n 72 of the Civit Procedure Act ceased to appty to the supreme court after the promutgation of the constitution of the Repubtic of Uganda on 8th october 1995. Where I find it appLicabl.e, I onty need to appty the provisions of section 72 as interpreted in the case Law. The 2s second approach I adopt is to expLore case [aw on second appeats and determine what is meant by a matter of Law without reference to section 72 of the Civit Procedure Act and estabLish whether these definitions and principLes appLy to the supreme court on second appeats in civiI matters. Regarding the first issue of whether section 72 of the cPA appLies to the 30 Supreme Court estabLished under the 1995 Constitution of the Repubtic of Uganda, I witt begin the discussion by considering section 72. Section 72 (1) of the civit Procedure Act, timits second appeats in civiI matters to points of [aw. The Literal. wording of section 72 of the CiviI Procedure Act appties its provisions to the court of Appeal. in second civiL appeats though the court 3s of Appeat at one time was named the Supreme Court prior to Qctober 1995' 2 The changes in jurisdiction and name of the Supreme Court through amendment to the Constitution of the Republ.ic of Uganda, 1967 and the Judicature Act made no reference to the CiviI Procedure Act and particul.arLy second appeats under sections 72 and 74 thereof. The question that arises is whether sections 72 and 74 of the CiviI Procedure Act appties to or does not appty to the Supreme Court named in the Constitution of the Republ.ic of Uganda 1995. The express wording of section 72 of the Civil. Procedure Act shows that its provisions appty to second appeats todged in the High Court or in the Court of Appeat and no reference is made to the Supreme Court. The Court of Appeat upon the enactment of the Civit Procedure Act was the highest appel'tate court in Uganda and its provisions on second appeats were appticabte to the highest appettate court then. Now it is the Supreme Court which is the apex court in Uganda. The Supreme Court hears appeaLs from the Court of Appeat under the 1995 Constitution of Uganda and is mostl.y a second appetl.ate court in civil and criminal matters where the Hrgh Court exercised origrnaI jurisdiction in the matter. with regard to second appeaLs todged in the High court, section 72 of the cPA woutd Largety be redundant due to the phasing out of Magistrate Grade ll courts. where a magistrate grade ll decides a civil suit, his or her decision is appeal.abte to a chief Magistrate's court as a first appeaL and fotLowing the determination of the appeat, a second appeat woutd tie to the High court. with reference to the court of AppeaL, the issue of second appeats and the court to which they were compticated by the change in the name of the court of Appeat of uganda to supreme court under the constitution of the RepubLic of Uganda 1967 and the Judicature Act, Act 11 of ',1969 as amended in 1989. This Supreme court had jurisdiction to hear appeaLs from the High court. Secondty, there was a change in jurisdiction of the supreme court (formerl.y known as the court of Appeat) under the constitution of the Repubtic of Uganda, 1995 through the prescription that the supreme court woul.d determine appeats from the court of Appeat. The court known as the court of Appeat was reintroduced in the constitution of 1995 white the supreme court retained its name. Historicatty, the court of Appeat was atso 10 15 20 25 30 3 5 10 15 20 30 known as the East Africa Court of Appeat and was the highest appettate court in Uganda. Under the Judicature Act, Act 11 ot 1967 , the Court of Appeat by 1967 had jurisdiction to hear appeats from decisions of the High Court. The Judicature Statute, Statute No. 13 of 1996 reverted to this position in 1996. Prior to the promutgation of the Constitution of the Repubtic of Uganda 1995, the existing law which apptied to the highest appeltate court or to any second appeat, was section 72 of the Civil Procedure Act which provides that: 72. Second appeat. (1) Except where otherwise expressty provided in this Act or by any other law for the time being in force, an appeal shatl lie to the Court of Appeal from every decree passed in appeal by the High Court, on any of the fottowing grounds, namety that- (a) the decision is contrary to law or to some usage having the force of Law; (b) the decision has faited to determine some materia[ issue of law or usage having the force of [aw, (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. (2) An appeat may [ie under this section from an appettate decree passed ex parte' This section is entrenched by section 74 of the Civit Procedure Act which provides that. 74. Second appeal on no other grounds- Subject to section 73, no appeaL to the court of Appeat sha[[ lie except on the grounds mentioned in section 72. Section 73 provides for third appeats white section 74 provides that there is no right of second appeal. except on the grounds set out in section 72 of the civit Procedure Act. This was considered in shah v Aguto [1970] 1 EA263 where the East African Court of Appeat hetd that: 4 5 10 15 20 25 30 '... in a civit case a second appeal onty lies to this Court on questions of law as set out in s. ?2 of the Civit Procedure Act.' The Civit Procedure Act appl.ied to the East Africa Court of Appeat. ln Beatrice Kobusingye v Fiona Nyakana; Supreme Court Civit Appeat No. 31 of 2013, the Supreme Court reaff irmed the application of sections 72 and 7 4 of the civil. Procedure Act to second appeals in the court of Appeat under the 1995 Constitution. Section 1 of the Civrt Procedure Act, provides that the Act extends to proceedings in the High court and magistrates courts. Section 1 provides that: 1. Apptication. This Act sha[[ extend to proceedings in the High court and magistrates courts. The wording of section 1 of the cPA is inctusive as it provides that the Act extendsto proceedings in the High Court and magistrates courts. Sections 66 to 79 of the civit Procedure Act govern appeal.s from the High court to the Supreme Court and confer jurisdiction on the supreme court which was the highest appettate court between 1989 and prior to 8th october 1995. The Civil. Procedure Act apptied to at[ existing courts of Judicature and section 1 of the Civit Procedure Act does not restrict the apptication of the Civit Procedure Act to the High court and Magistrates courts onty. The civit Procedure Act apptied to atl courts of Judicature and the question is whether the Civil. Procedure Act, which was the existing parent legistation prior to 8th 0ctober 1995 ceased to appty to the New Supreme Court estabLished under articte ]29 of the Constitution of the Repubtic of Uganda on 8th October 1995. This supreme court has a new jurisdiction to hear appeal.s from the Court of Appeat, a Court which now hears appeats from the High Court. The CiviL Procedure Act expressty apptied to al.t court of Judicature which incl.uded the court of Appeal. (the apex court then) in hearing appeats from decisions of the High court. General.ty, the civiL Procedure Act apptied to 5 appeats from a Magistrate Grade ll to the Chief Magistrate and from the Chief Magistrate to the High Court on a second appeat. The date of commencement of the CiviI Procedure Act is l't of January 1929, a date when there was no Court exercisrng the jurisdiction of the new Supreme Court of Uganda under chapter 8 of the Constitution of the Republ'ic of Uganda 1995. ln summary, appeal.s coutd originate from the High Court in the exercise of its original jurisdiction or appettate jurisdiction to the East African Court of Appeat or the Court of Appeat of Uganda as later described (the highest appel.tate court in Uganda) and therefore it apptied to atl courts of judicature in Uganda). At one time, appeats from the High Court of Uganda, the High Court of Kenya and the High Court of Tanzania were heard by the East African Court of Appeat sitting at any convenient ptace. Subsequentty, each of the former three East African countries retained their national court of appeal. exercising the same jurisdiction and hearing appea[s from their High Courts. ln short, the Court of Appeat which subsequentty was renamed the Supreme Court of Uganda by 1989 was the highest appettate court and heard appeaLs from decisions of the High Court in the exercise of its originaI or appettate jurisdiction. There was no court of Judicature, immediatel'y prior to 0ctober 1995, which exercised the current jurisdiction of the Supreme Court under chapter 8 of the Constitution of the Repubtic of Uganda 1995. As I noted eartier the Court of AppeaL of Uganda was renamed the Supreme court before 1995 and because of that, sections 72 and 74 0f the civit Procedure Act, continued to appty to the Supreme Court for the period before the enactment of the 1995 Constitution. For cLarity, I set out and consider the existing [aw in civiL and criminaI appeats, appticabte to the Supreme court before the coming rnto force of the constitution of the Repubtic of Uganda '1995 on 8th october 1995. I witL atso set out the evotution of the Law and its apptication to the highest appettate court in Uganda to give the matter a historical. perspective jurisdiction on second appea[s in civiI matters. 10 15 20 25 30 6 5 Section 1 of the Judicature Act, Act 11 of '1967, (which was repeated and repl.aced by the Judicature Act cap 13 in ]996 before law revision in 2023) set out the courts of judicature. lt provided that: 1. (1) The Courts of Judicature shat[ be, (a) The High Court as established by the Constitution; and (b) The Court of Appeat as estabIished under the Appettate Jurisdiction Act' (2) Each court of judicature shatt have and exercise such jurisdiction as is conferred upon it by or under the Constitution and by this or any other enactment. The jurisdiction of the court of Appeat, had been conferred by section 40 of the Judicature Act, 1967 which provided that: 10 15 20 40 (1) The Court of Appeat shatt be a superior court of record in and for Uganda and shal.t have such jurisdiction as is conferred upon it by this Act or by; under or by virtue of any other written law in force immediatety before or which may come into force after the commencement of this Act to hear and determine any appeal brought under or by virtue of any such [aw. (2) For the purpose of hearing and determining an appeal the Court of Appeat shatt, in the exercise of its jurisdiction have the power, authority and jurisdiction vested in the court from which the appeal is brought. (3) Subject to any rutes made under or having the effect by virtue of the provisions of section 43 of this Act, the court of Appeal may, for the purpose of exercising its jurisdiction under this Act, sit in Uganda or elsewhere' The court exercising the above jurisdiction is atso the court to which sections 72 and 74 of the civit Procedure Act, apptied. case law on second appeal.s in civil. matters in East Africa was directed by the appl.ication of sections 12 and 74 of the CiviI Procedure Act. subsequentLy and by amendment introduced by the constitution (Amendment) statute, l1 of 1987, articte 89 of the constitution of the Repubtic of Uganda 196? was amended by reptacing the name "the court of Appeat of Uganda,' with "supreme court of Uganda'. section 1 of the amendment provided that: 25 30 7 35 89.(1) There shatt be court of appeal. to be known as the supreme court of Uganda which shal.t be a superior court of record and sha[[ have atl the powers of such a court. (2) an appeal. shatt tie to the supreme court from such final decision of the High Court of Uganda, as may be prescribed by any written [aw. (3) No appeat shatt Lie from the Supreme Court, or except as provided by this articte, from the High Court of Uganda. Appeats lay from the High Court to the Supreme Court which was the highest appettate court. The amendment to the Constitution was foltowed by the Judicature Act (Amendment) statute, statute 12 of 1987 and section l U) in Part lV thereof which provided, inter alia. by substituting for the expression "court of Appeat' whenever it occurs in sections 40, 40A, Lt+, L5, LB,48A and 488 with the expression 'Supreme Court'; 10 15 20 Thereafter the words "court of Appeat'that appeared under the Judicature Act 1967 and the Constitution of the Republ.ic of Uganda 1967 was substituted with the word 'supreme court". ln substance, it was stiLt the highest appettate court in Uganda. lt fottowed that the words "court of Appeat" found under section 72 and 74 of the civil. Procedure Act referred to the supreme Court. This fol.towed amendment to the 1967 Constitution and the Judicature Act, 1967. Further the constitution as amended in 1989 having renamed the ,court of Appeat" the "supreme court', it fol.tows that any Act of Partiament or subsidiary tegistation which had the name "court of AppeaL" became obsotete and had to read to mean "the supreme court of Uganda. The words .court of Appeat" under the criminaL Procedure code Act and the civiL Procedure Act, had to be read as the "supreme court'. To do otherwise woutd confl.ict with the val.id existing constitution of the Republ'ic of Uganda 1g67 as amended and which was the supreme taw of Uganda until 8th 0ctober 1995. To revert to the name "court of Appeat" after 8th of october 1995 with the promutgation of the 1995 Constitution which repeaLed the 1967 constitution required an express statutory provision or amendment to that effect.Therefore,sectionsT2andT2canbeconstruedastheciviIprocedure law on second appeal.s, appticabl.e to al.t existing courts of Judicature which 30 8 35 5 inctuded the Supreme court then. The supreme court, prior to Qctober 1995 had jurisdiction to hear appeats from the decisions of the High Court. subsequentLy articte 129 of the Constitution of the Repubtic of Uganda 1995 amended the taw. lt provided for a court described as the court of AppeaL. This court was given jurisdiction to hear appeats from the High Court whil.e the new supreme court of Uganda was prescribed jurisdiction to hear appeaLs from decisions of this court of Appeat. The court of Appeat by name inherited the appetl.ate jurisdiction of the Supreme Court immediatety prior to the promutgation of the constitution of the Repubtic of Uganda, 1995 in october 1995 thereby restoring the same court except in name. 0f course the supreme court with its existing personne[ coutd not, at that point hear appeal.s from their decisions made just before the jurisdictton of the court changed. lt is correct to say that the court of Appeat reptaced the supreme court in jurisdiction. The Supreme court coutd not hear appeats from the exercise of its former jurisdiction but its judgments retained the status of decisions of the highest appeLl.ate court in Uganda. The appettate court described as the court of Appeat now has jurisdiction prescribed by the 1995 Constitution to determine appeats from originat and appettate decisions of the High court. ArticLe 129 of the constitution of the Repubtic of Uganda i995 states that courts of judicature in Uganda are: 129. The courts of judicature. (1) The judiciat power of Uganda shatt be exercised by the courts of judicature which shatt consist of- (a) the Supreme Court of Uganda; (b) the Court of APPeat of Uganda; (c) the H igh Court of Uganda; and ... (such subordinate courts.) (3) Subject to the provisions of this Constitution, Partiament may make provision for the jurisdiction and procedure of the courts' 10 15 20 25 30 9 5 Articte 129 (3) enabtes Partiament to make provision for the jurisdiction and procedure of the Courts and we ought to determine whether Partiament enabted the existing tegistation on civiI and criminaI procedure to appty to the Supreme Court which became a court with a new appettate jurisdiction. The Constitution of the Republ.ic of Uganda 1995 prescribes the jurisdiction of the courts of judicature in generaI terms. Under the Constitution of the Repubtic of Uganda 1995, the Supreme Court is a court whose jurisdiction is to hear and determine appeaLs from decisions of the Court of AppeaL (since 8th October 1995). Further the jurisdiction of the Court of Appeat is to hear and determine appeaLs from the High Court in the exercise of its originaI or appetl.ate jurisdiction. The jurisdiction of the Supreme Court under the 1995 Constitution is new in that it hears appeals from decisions of the Court of Appeat which hears and determines appeats from decisions of the High Court. lt may be argued that the Supreme Court as an existing court is a court in the same name and the existing laws govern it. WhiLe the pre 8th October 1995 jurisdiction of the Supreme Court was to hear appeats and determine appeats from decisions of the High Court, its current jurisdiction after 8th October 1995 is to hear determine appeats from decisions of the Court of AppeaL. The Jurisdiction of the Supreme Court after 8th october 1995 is controversiaI because the question is which proceduraI Act of Parliament appties to it? The probtem with not apptying the existing law to the supreme Court under the 1995 Constitution is that it woutd have no procedural law enacted by ParLiament except through apptication of existing law by virtue of articte 27 lt of lhe Constitution. Articte 132 (2) of the constitution of the Repubtic of Uganda provides that: an appeal shatt lie to the supreme court from decisions of the court of Appeat as may be prescribed by law. It is a truism, as far as the name of court is concerned that, the court of Appeat under the '1995 is the otd court and the Supreme court is the new court. Sections 72 and 74 of the Civil. Procedure Act had onty apptied to the supreme court in second civil appeal.s before the 1995 Constitution was 10 15 20 25 30 35 10 5 promutgated. Partiament has not exercised its mandate under articte 129 (3) of the Constitution to amend the Law pertaining to civit procedure to expressty state that it al.so appties to the Supreme Court under the 1995 Constitution. No amendment has been made to section 72 of the Civil' Procedure Act so as to state that it now appLies not onty to the Court of Appeat but atso to the new Supreme Court. The Supreme Court exercises appeltate jurisdiction in second or third appeal.s under the current Judicature Act except in constitutional matters where it is a first appetLate court. Before 1995 second appeals todged in the Supreme Court, commenced from an original decision of a Magistrate's court. The first appeat woutd be Lodged in the High court and the second appeat in the supreme court. 0n the other hand, section 73 of the civit Procedure Act, envisaged third appeaLs which originated from the triat decision of a Magistrate Grade ll court. Appeats from decisions of Magistrates Grade ll woul.d Lie to a chief Magistrate's court. with grade ll Magistrates phased put, the first triat court is tikety to be a Grade 1 or Chief Magistrate's court. Decisions of a chief Magistrate and a Magistrate Grade 1 are appeal.abte to the High court on a first appeat. The right of appeal to the chief Magistrate is onl.y from a Magistrate Grade ll or Local counciI court and a second appeat to the High court. A third appeat to the court of Appeat is on the certificate of the High court that the appeal concerns a matter of Law of great pubtic or general importance. This originaLty went to the pre 1995 Supreme Court but it now goes to the Court of AppeaI under the 1995 Constitution. Jurisdiction of the supreme court in civit proceedings in the Post october 1995 ConstitutionaI Dispensation. currentLy section 6 (2) of the Judicature Act, Cap ]6 envisages a third appeat to the supreme court in circumstances where the appeal' originates from the judgment or order of a chief Magistrate or Magistrate Grade I in the exercise of originaL jurisdiction. lt shoutd also be emphasised that third appeats to the supreme court originate from an appeLtate decision of the court of Appeat on points of taw in terms of section 72 of the civil Procedure 10 15 20 30 35 11 Act. The right to a third appeat can only be exercised with leave of court on a certificate issued by the court that the appeat involves matters of law of generaI or pubtic importance. The question is whether the post october 1995 Supreme court as a second appel,tate court exercising jurisdiction in an appeaL from the decision of the court of Appeat which heard an appeal from the High court in the exercise of its originat jurisdiction, can be on matters of mixed law and fact in civiL matters. The issue may be derived from a LiteraL wording of Rute 30 (1) of the Judicature (Supreme Court Rutes) Directions which provides that: (1) Where the court of Appeat has reversed, affirmed or varied the decision of the High court acting in its originat jurisdiction, the court may decide matters of [aw or mixed law and fact, but shatl not have discretion to take additional evidence. The wording of the 30 (1) of the Judicature (supreme court Rutes) Directions is partial.ty drawn from section 6 (1) of the Judicature Act which provides inter atia lhal'. (1) An appeat shatt tie as of right to the Supreme Court where the court of Appeal. confirms, varies or reverses a judgment or order, including an intertocutory order, given by the High Court in the exercise of its original jurisdiction and either confirmed, varied or reversed by the Court of Appeat. Section 6 (1) of the Judicature Act prescribes the new civiI jurisdiction of the supreme court to hear second appeal.s. lt does not specify whether the appeal shatt be on mixed law or fact, which is a matter governed by the civit Procedure Act (the existing procedurat taw). on the other hand, rute 30 (1) of the Judicature (supreme court Rutes) Directions is an inctusive rute which al.tows decisions on mixed questions of law or fact in a second appeal" obviousty a section of a statutory instrument cannot override a section in an Act of ParLiament. Rute 30 (1) of the Rul.es of this court is of general appl.ication to civil. and criminaL proceedings al.ike and it has to be read in conjunctionwiththesectionofanActofParl.iamentappticabtetocriminal procedureorcivitprocedure.ltcanbedemonstratedthatsection5ofthe Judicature Act, which appLies to criminal proceedings attows appeals on mixed questions of law and fact in some respects and appeals on questions L2 10 15 20 25 30 35 5 of Law onLy in other respects. Therefore, rute 30 (1) of the Rutes of this court (supra) has to be read in conjunction with any retevant statute that prescribes whether the appeal. shaLt be on matters of law or fact or mixed matters of law and fact. An Act of ParLiament woutd override any statutory instrument in confl.ict. For instance, section 5 (3) of the Judicature Act attows an appeaL against sentence to be on a matter of law onty and the provision of rute 30 (1) of the Judicature (Supreme Court Rutes) Directions cannot be used to bring the appeat on a matter of mixed [aw and fact. Section l8 (4) of the lnterpretation Act cap 3 which provides that. (4) Any provision of a statutory lnstrument which is inconsistent with any provision of the Act under which the instrument was made sha[[ be void to the extent of the inconsistencY. Use of the words "mixed [aw and fact" are not derived from section 6 (1) of the Judicature Act. They ought to arise from a parent Act such as section 5 of the Judicature Act, though rute 30 (1) of the Rutes of this court enabtes any case scenario i.e. either on points of law onty or mixed law and fact. Nonethe[ess, in terms of being appticabte to both criminal and civiI appeats, it has to be read in conjunction with the provision of the Act of Partiament which confers the specific jurisdiction on the Supreme Court. Rute 30 (1) (supra) appLies to any appeal where it is appticabte. Partiament has prescribed some appeal.s to be todged on points of law onty whil.e al.l.owing some to be on matters of mixed law and fact. secondty, the wording of the rute is that it provides for the power to decide matters of [aw or mixed fact and taw. The power to decide such matters is what the rule is confined to. The rute is not the law conferring jurisdiction on the supreme CourtbutenablesdlfferentcaSescenariosderivedfromanActof Parliament. To establ.ish what jurisdiction the supreme court has, one has to peruse the constitution and Act of Parl.iament which prescribe it. The Act ofParl'iamentprescribingjurisdictionisguidedbyarticlel32ofthe Constitution. section 72 of the civit Procedure Act defines kinds of points that are wrongl.y decided which may be todged in a second appeat' What is the 13 10 15 20 25 30 35 retevant Act of Partiament prescribing the jurisdiction of the Supreme Court? 10 ls the jurisdiction of the Supreme Court wide enough to atlow for determination of any factuat controversy or controversies or determination of any LegaL or factual controversies after the High court has exercised originaL jurisdiction in the matter and the f irst appetLate court has determined an appeaL therefrom? The case law I have reviewed on second appeals in civit matters espouse principtes which disctose points of law on which the Supreme Court may interfere with findings of fact. ln my judgment, and in civiL proceedings, the grounds of second appeals todged in the supreme court have atways been considered on points of [aw. secondty grounds of third appeal.s to the supreme court have atways been with teave upon establ.ishing that the intended appeal disctoses matters of Law of general or great pubtic importance. lt is absurd and would be a departure from the existing norms at the time of promutgation of the constitution and thereafter to hotd that the supreme court may, in any civiI appeaL, entertain factual controversies yet it has no powers to take additional. evidence. Moreover, case law precedents demonstrate that the Supreme Court wiLt handte factuaI controversies where the error appeated against is an error of taw such as faiture to subject the evidence to fresh scrutiny or where there is no evidence to support the finding of fact of the lower court, these being points of Law. These can be demonstrated from the precedents. Under articl.e 132 (2) of the constitution, the Jurisdiction of the supreme court shau. be prescribed by Partiament by [aw. lt provides that: 15 20 25 30 132. Jurisdiction of the Supreme Court. (1) The Supreme Court shatt be the final court of appeat' (2)Anappeatshal.ttietotheSupremeCourtfromsuchdecisionsoftheCourtof Appeat as maY be Prescribed bY taw' 74 5 The term 'taw" used under artrcte 132 (2) means /arzenacted by Parl'iament or under a law prescribed by Partiament. Partiament tegistation fatts under articLe 79 (1) and (2) of the Constitution which provides that: 79. Functions of Parliament (1) Subject to the provisions of thrs Constitution, Partiament sha[[ have power to make laws on any matter for the peace, order, development and good governance of Uganda. (2) Except as provided in this Constitution, no person or body other than Par[iament shatt have power to make provisions having the force of law in Uganda except under authority conferred by an Act of Partiament. Any other person or body is forbidden from making laws touching on the Jurisdiction of Courts. Section 4 of the Judicature Act states the jurisdiction and provides that: 4. Jurisdiction of the Supreme Court. An appeal sha[1. Lie to the supreme court from such decisions of the court of Appeat as are prescribed by the Constitution, this Act or any other [aw' These other laws may incLude the civil. Procedure Act and the criminal. Procedure code Act, which are Acts of Partiament. Section 4 0f the Judicature Act is of generaI appl.ication to civit and criminaI proceedings and envisages other taws which prescribe jurisdiction. The sections which confer specific jurisdiction on the Supreme court are sections 5 and 6 of the Judicature Act. These sections principal'ty create the jurisdiction of the supreme court to hear and determine second and third appeal.s. For second appeaLs it shows that the ground for the exercise of that jurisdiction is where the High court had exercised original. jurisdiction in the matter lt is noteworthy that this jurisdiction of the Supreme Court was prescribed for the first time under articl.e 132 0f the constitution and was not and could not have been envisaged in the principal laws namety the Criminal Procedure code Act and the civil. Procedure Act by the time of their enactment. ln that regard,Partiament,increatingtherightofsecondappeat'apptiedseparate 15 10 15 20 25 30 5 provisions to criminaI proceedings under section 5 and separate provisions in civit proceedings under section 6 of the Judicature Act respectivety. Section 6 (1) onty confers a right of appeal from a judgment of the Court of Appeat where the High Court has exercised original jurisdiction and the Court of AppeaL has determined an appeat therefrom but it does not stipul.ate whether that right can be exercised to bring a matter of mixed law or fact. lf it is apptied as it is, it is a wide jurisdiction attowing any matter decided originaLty by the High court to be appeal.ed up to the supreme court without any restrictions. To my mind, the real question is whether there is an existing taw on civit procedure which restricts this jurisdiction? Can any restriction to the wide jurisdiction be exercised on the basis of case law precedents? To hotd that there is no other law narrowing the jurisdiction of the Supreme Court in civiI matters means that section 6 (1) of the Judicature Act shoutd be given its wide ambit so that any appeat from the judgment of the court of Appeat in civit matters may be todged in the supreme court without any restrictions. ln other words, to appty section 6 (1) (supra) that way wouLd cancel any case taw that states that second appeals are restricted to certain points and we witt review the retevant precedents to make the point that the courts have indeed shown a restricted jurisdiction requiring breach of certain principl.es of taw for that jurisdiction to be exercised. section 6 (1) of the Judicature Act is silent on these princip[es. However, recourse cannot be had to rute 30 (1) of the Rutes of this court because it does not confer jurisdiction but onl.y enabtes an existing jurisdiction prescribed by an Act of Partiament The position of the existing Law prior to oct 1995 was expressty set out in statutory as weLl as case Law. The law under the civit Procedure Act was that third appeaLs coul.d be Lodged when the court hearing a second appeal had exercised jurisdiction under sectio n 72 of the civit Procedure Act. This was the onLy time a third appeat coutd be I'odged' lt had to arise from a determination of a Point of [aw. Cansection6(2)ottheJudicatureActafter0ctlg95bereadinharmony with section 72 of the civil. Procedure Act so that a third appeat arises from 10 15 20 30 16 25 5 an appeLl.ate decision on a point of taw under section 72 (supra)? There is no third appeat from a decision of the Supreme Court issued in a second appeal.. Without considering the existing Law, it could be proposed (and with far reaching effect on the workload of the Supreme Court) that section 72 of the Civit Procedure Act onty appties to the pre 1995 Supreme Court and not the Supreme Court under the 1995 Constitution. However, when read in context, the points of law espoused in sections 72 andTl+ which apptied to the pre 1995 Supreme Court have been apptied to the post 1995 Supreme Court as wett. The procedura[ law and particutarly sections 72 and 74 of the cPA used to appty to atl courts of judicature wtth jurisdiction to hear and determine any second appeal in civil proceedings. I wiLt demonstrate that sections 72 and 74 of the CiviI Procedure Act was the existing Law which apptied to the pre - 1995 Supreme Court and High court in second appeats in civit matters and is the onLy existing taw appticabte to the current courts of judicature which hear second appeats inclusive of the supreme court which now is a second appel.Late court under section 6 (1) of the Judicature Act. What happened is that there was no law enabting third appeal.s from a judgment of the current court of Appeat and section 6 (2) ot the Judicature Act created the jurisdiction of the Supreme Court to provide for it. simil.arl.y, there was no second appeat to the supreme court from a judgment of the High court except as created by section 6 (1) of the Judicature Act. To take this [ine, section 6 of the Judicature Act introduced the supreme court as a court above the court of Appeat under the civiI Procedure Act. This is onl.y imptied by making the civit Procedure Act the principat LegisLation appticabte to a[[ courts of Judicature' GeneraLLy, section 7 of the Judicature Act altows the Supreme Court to have au. the powers of the originaL trial court when determining an appeal" These powersincl'udepowersundertheCivitProcedureAct.SectionTofthe Judicature Act Provides that: 7. Supreme Court to have powers of the court of originat jurisdiction' For the purposes of hearing and determining an appeat' the Supreme Court sha[[ havea[[thepowers,authorityandjurisdictionvestedunderanywrittenlawinthe L7 10 15 20 25 3s 30 court from the exercise of the originaI jurisdiction of which the appeal originalty emanated. Because sections 72 and 74 of the Civit Procedure Act are general sections appLicabte to second appeals heard by any court of judicature, the same sections appl.ied to the Court of Appeat and the High Court in any second appeats heard by them. Section 72 of the Civit Procedure Act has to be construed with the necessary modifications, adaptations and quatifications to appty the I'aw to the Supreme Court which is a court of judicature and continued to exercise the jurisdiction of a second appel.tate court as determined by articte 266 (subsequentty repeated) and 27t+ of the constitution. Articte 266 of the Constitution, before it was repeated, provided that: 266. Existing courts of judicature. The supreme court and the High court in existence immediately before the coming into force of this Constitution shatl be taken to have been established under this constitution and shatL perform the functions of the supreme court and the High Court as specified in Chapter Eight of this Constitution' The Supreme Court and the High court in existence immediateLy before the coming into force of the constitution of the Repubtic of Uganda 1995 were courts of judicature to which the civit Procedure Act and particutarLy sections 72 and 74 thereof and the provisions of the Criminal Procedure code Act on second appeaLs appLied. These were the existing [aws. lt is onty the functions or jurisdiction of the Supreme Court which changed in terms of which court's decision is appeatabte to the Supreme court. The change did not affect its lurisdiction as a second appel'l'ate court. The existing laws applicabl.e to the Supreme court continued to appty to the Supreme court estabtished under chapter I of the constitution of the Republ'ic of Uganda 1995 on second appeats in civiL matters though section 72 and 74 of the civit Procedure Act were amended to revert the names of the Supreme Court to the names "Court of APPeat". 18 10 15 20 25 30 5 The subsequent repeal of articl.e 266 of the Constitution did not change the apptication of the existing Law to the Supreme Court. This is directed by articLe 27 L lhat provides that the existing laws at the time of promutgation of the Constitution in October 1995, continued in force and had to be construed with the necessary modifications, adaptations and qualifications to bring the law into conformity with the constitution. Articte 27t+ (1) provides that, 274. Existing [aw. (1) Subject to the provisions of this articte, the operation of the existing law after the coming into force of this Constitution shatl not be affected by the coming into force of this constitution but the existing law shatl be construed with such modifications, adaptations, quatifications and exceptions as may be necessary to bring it into conformity with this Constitution. From articte 27L (1) of the constitution, we can read that the operation of the CiviL Procedure Act and the CriminaL Procedure Code Act (which are the retevant existing [aws) were not affected by the coming into force of the Constitution. lf their operation was not affected, it means that the retevant provisions therein continued to appty as modified by the Constitution. What was required of those apptyrng the existing laws is to construe, for instance, the civit Procedure Act and the criminat Procedure code Act with the necessary modifications, adaptations, quatifications and exceptions as may be necessary to make it conform to the constitution. The existing law appticabl.e to the supreme court needs to be estabtished on this basis. Moreover, the jurisdiction of the supreme court under chapter 8 of the constitution continued to be of a second and third appettate court where previousty these were heard on matters of law and on matters of [aw of generaI and publ.ic importance respectivety. Before 8th of october, 1995 there was no right of a second appeat from decisions of the High court in the exercise of ils original jurisdiction in civiI andcriminatmatters.Therewasonerightofappeatfromtheexerciseof the originat jurisdiction of the High court to the court of Appeat which was [ater renamed the supreme court. lt fottows that the provisions of the civit 10 15 20 25 30 35 19 5 Procedure Act on second appeats woutd appl.y to the Supreme Court in civit matters via the route of being the only existing law on second appeats save for those provisions being expressl.y appticabte to the Court of Appeal' and not the Supreme Court at att. The historical. position giving the existing law upon the coming into force of the Constitution of the Repubtic of Uganda in 1995 was that second appeats were envisaged in criminal matters under section 45 (1) of the crimina[ Procedure Code Act Cap 116 which provides that: 45. Second appeats. (1) Either party to an appeal from a magistrate's court may appeal against the decision of the High court in its appettate jurisdiction to the court of Appeal on a matter of [aw, not inctuding severity of sentence, but not on a matter of fact or of mixed fact and taw. The word "Court of Appeal." appearing in the section became "Supreme court" through amendment to the constitution of the Repubtic of Uganda 1967 and the Judicature Act 1967. Magistrates courts did not try capital offences and this provision did not concern capitaL offences triabl'e by the High court. capitat offences were appeatabte on matters of mixed law and fact to the pre october 1995 Supreme court as a first and final. court of appeat. There was no court or jurisdiction to hear second appeats from decisions of the pre 0ctober 1995 Supreme court in that regard. The same situation appl.ied to appeal.s in civit matters. Second appeals under section 72 of the Civit Procedure Act cap ?l were appeals that arose from the trial decision of a Magistrates court. where the triaL was conducted by the High court in the exercise of its original. jurisdiction, there was onty a right of first appeal. to the highest appettate court which was the pre 1995 Supreme Court.TherewasnorightofSecondappeal.thereafter.Thesituation changed with the promuLgation of the constitution of the Republ'ic of Uganda 1995 which for the f irst time conterred on I'itigants a right of second appeal from a decision of the High court in the exercise of its originat jurisdiction' 20 10 15 20 25 30 5 As far as rute 30 (1) of the RuLes of this Court is concerned, the part that deaLs with appeaLs on matters of mixed law is appLicabl.e where the Supreme Court hears a second appeat in criminal matters and exercises jurisdiction under section 5 of the Judicature Act. Section 5 (1) (a), (b), (c) and (d) of the Judicature Act created the right of second appeat from the decision of the High Court in the exercise of its originat jurisdiction in criminal offences punishabte by death and the Court of Appeat has decided an appeal therefrom. At the time of the enactment of the Judicature Act in 1996, the Penat Code Act stil.t had the mandatory death penalty for certain capitaL offences. Under section 5 0f the Judicature Act, in criminaI matters, where the offence is punishabLe by death, an appeal shatt tie on a matter of law or mixed law and fact where the Court of Appeat has confirmed a conviction and sentence of death, or where the accused is acquitted and the Court of Appeat reverses the acquittat and convicts the accused. Further, where the High court has convicted the accused and the court of Appeat reverses the conviction and orders the acquittal. of the accused. 0n the fourth ground an appeat lies on a point of Law of great pubtic importance where the court of Appeat confirms the acquittat of an accused person by the High court and the DPP appeal.s on a matter of law of great pubtic importance. Even in criminal proceedings, some appeal.s could only be on a question of [aw. ln civit matters where the supreme court is atso the highest appettate court, it ought not to be saddl.ed with mixed questions of fact and law because the tegis[ature in its wisdom having enacted section 72and7lt as appl.icabte to the highest appel,tate court which was the pre october 1995 supreme court coutd not have intended the new Post 0ctober 1995 Supreme court to have a wider jurisdiction and to entertain mixed questions of fact andlawandtoontyentertainthirdappea[sincivil'mattersonmattersof l'awofgreatpubl'icorgeneral.importance.Thetermquestionoffactasused here,meanscontroversyoffact.Controversiesoffactoughttobetriedby the triat court and subjected to retriaL by the first appettate court. Thereafter a second appeat court considers facts to the extent of the issues which 10 15 20 25 30 35 2L I require it when the issue is an issue of [aw. To have jurisdiction to try factual controversy without a point of taw being the root of the error atteged or the matter in controversy, the tegistature ought to have expressty stated so, as they did in criminal. proceedings under section 5 of the Judicature Act. Section 6 (1) of the Judicature Act which appties to civit appeats is sitent on whether a second appeat is to be Lodged on questions of law or mixed law and fact and section 6 of the Judicature Act has to be understood as onty creating a right of second appeat in civit matters which did not exist before promutgation of the 1995 Constitution of the Repubtic of Uganda just as they did in criminal matters under section 5 of the Judicature Act. section 6 (1) of the Judicature Act ought to be read in harmony the existing law at the time the new Supreme court was estabtished. Therefore, sections 12 and 74 of the Civil. Procedure Act ought to be construed with the necessary modifications under 27t+ of the Constitution and can be read to incLude under sections 72 and 74 of the Civil Procedure Act the Supreme court as a second appettate court where the High court exercised originat jurisdiction in the matter. lf section 6 (1) of the Judicature Act is not read in harmony with sections 72 and ?4 of the civit Procedure Act, it impties that appeaLs in civil. matters cannot be restricted to the issues stated in Henry Kifamunte vs Uganda [1998] UGSC 20 (15 May 1998) and other precedents which I refer to betow. For instance, it was heLd that a second appeat witl' not be entertained on a question of fact where there are concurrent findings of fact by the triat court and the f irst appeLLate court. This has been appl'ied to second appeaLs in civit matters and this indirectLy endorses the existing law as appl.icabte to the new Supreme Court' Rute 30 (,1) of the Rul'es of this court WaS made by the Rules Committee undertheJudicatureAct.TheroleoftheRul'esCommitteeundersection4] (1) is to regutate practice and procedure and the section provides that the RuLes Committee may by statutory instrument make rutes for inter alia regul.ating lhe practice and procedure of the Supreme Court The practice and procedure to decide mixed questions of law and fact in second appeals under rute 30 (1) of the Judicature (Supreme Court Rutes) Directions onty 10 15 20 25 30 35 22 I 5 appties where there is a Jurisdiction to do so in criminal proceedings under section 5 (1) of the Judicature Act and onl'y partiatly to second appeats in civiL appeats to the extent al.towed by the Act of Partiament to be on mixed questions of fact and law under the CiviI Procedure Act. SpecificaLty, I find that to hotd otherwise amounts to stating that the Civit Procedure Act no Longer appl.ies to the Supreme Court because it is not a court envisaged by the tegistature when in was enacted in1929. This means that several decisions enforcing the provisions of the Civil Procedure Act woutd be rendered perincurlam. This has been in contention before and I wil.L review two precedents where the issue was raised in detait. ln Francis sembuya vs Attports services (U) Ltd; Supreme court civit Appeat No 06 of 2001Tsekooko, JSC, in a second civit appeal did not rute out jurisdiction of the Supreme Court to interfere with concurrent findings of fact of the High Court and the Court of Appeat on a "sound basis' and doubted the appl.ication of sectionsT2 and 74 of the Civil Procedure Act to the new Supreme court. lt was submitted that the Supreme court shoutd not disturb concurrent findings of fact of the triat court and f irst appettate court because it has no jurisdiction to do so, under section 72 and 74 of the CiviI Procedure Act. Tsekooko JSC stated as foltows: I think that in matters of second appeats to this court invotving cases decided by the High court in the exercise of its originat jurisdiction, section 7(1) (now section 6 (1) Judicature Act) of the Judicature statute, 1996, is instructive. lt states: .,1(1) An appeat lies as of right to the supreme court where the court of Appeal confirms, varies or reverses a judgment or order including interlocutory order given by High Court in the exercise of its origina! jurisdiction and erther confirmed, varied or reversed by the Court of Appeal' These provrsions are clearly distinguishabte from the provisions of either s 337(1) of Cr. P. A or 5.74(1) of CPA. Againtherute2g(1)oftheRulesofthisCourtamptifiesthispointanditreadsas f oILows: 10 15 20 25 30 23 5 'Where the Court of Appeat has reversed, aff irmed or varied a decision of the High court acting in its originaI jurisdictions the court may decide matters of [aw or mixed law and fact." From the foregoing provisions, I cannot, with respect, accept Mr. Tibesigwa's submission that in this case this court is barred from a reconsideration of concurring findings of fact by the two courts below. I think that this is the position taken by Wambuzi, Chief Justice, in Bank of Uganda v. Transroad Ltd Supreme court civit Appeat 3 of 199? reported in (1998) Supreme Court. (Civil. Judgments) at page 5. Naturatly and normatly any concurrtng findings of facts by the High court as a court of triat and the court of Appeat, as a first appeltate court, wiIL be accorded due respect by this court. I wouLd observe generatly that where it is necessary to disturb such findings, disturbing such findings wou[d obviously be based on a sound basis. ln saying this, lmust not be understood to be taying down any hard and fast rule on the matter (itatics mine). Tsekooko, JSC was cognisant of the fact that Wambuzi, CJ in Bank of Uganda v. Transroad Ltd (supra) had decided that in second appea[s the Supreme court has the same jurisdiction as the court of Appeat. white not directty on the points considered in this appeat, the High Court, whose powers the Supreme court may use under section 7 of the Judicature Act, has section 72 and 74 appticabte to it in second Appeal.s" The High court or the court of Appeat when exercising their jurisdiction in second appeats are atways bound to appty sections 72 and 74 of the civit Procedure Act and they are bound to onLy determine matters of taw in second appeats in civit matters except that section 7 of the Judicature Act refers to jurisdiction of a trial court. This incl.udes the jurisdiction to try matters of fact. RuLe 30 (1) of the Rutes of this court refl.ects the Law that the supreme court in second appeats cannot take additionaI evidence. Additionat evidence can be taken by a court such as the court of Appeat which has the duty to reconsider the facts afresh. lt is further togica[ to infer that to be abte to reconsiderthefacts,oneoughttohavethediscretionarypowertotake additionat evidence. This power is possessed by the court of Appeat when hearing a first appeal under rul.e 30 (1) of the Judicature (court of Appeat Rutes) Directions. This rul.e attows the court of Appeat to reappraise the 10 15 20 25 30 35 24 5 evidence and at its discretion to take additional' evidence. Rute 30 (1) of the Judicature (Supreme Court Rutes) Directions does not enabte a slmitar power to reappraise the evidence to enable this court try controversies of fact by inter al.ia taking fresh evidence. ln fact, it provides that the Supreme Court does not have power to reappraise the evidence. This is consistent with the Supreme Court being a court that determines matters of [aw. The context of the power to decide matters of law or mixed law and fact arises where the issue for trial. is a matter of [aw. The power to depart from a finding of fact is based on a matter of law that makes the court depart from a fl,awed finding of fact under special circumstances mentioned in the case Law. The hotding of Tsekooko, JSC in Francis Sembuya vs Attports Services (u) Ltd (supra) is that when is it necessary to interfere with a finding of fact the supreme court has jurisdiction to do so. His Lordship did not determine the circumstances under which it woutd be necessary to interfere with a f inding of fact and I wil.L consider this specificatty in this judgment. The court hetd that it coul.d interfere with concurrent findings of fact but such interference has to be on a sound basis. The sound basis remained a matter for further eLucidation. Further and in the above decision, the Court did not interfere with the concurrent findings and the circumstances under which it coutd do so remained open for consideration and that is what I intend to etaborate on in this judgment. Judiciat precedents on the point give us indicators. We can, from those decisions, consider the circumstances under which the court woutd interfere with a finding of fact. The hypothesis on which I base my determination of the issue betow is that the court has power to interfere with a finding of fact upon determining a matter of law that affects the outcome of the case on the merits by I'eading to an erroneous finding of fact. The iLl'ustrations wi[t fotlow below' ln Uganda Breweries Limited Vs Uganda Rail.ways corporation; supreme Court Civit Appeat No 6 of 2001, Oder JSC hetd that: ln the instant case, I have no doubt that the Court of Appeat. as the first appetlate courtliveduptoitstaskassetoutinrul.e29(1)oftheCourtofAppeatRu[esand asexplainedincasessuchas.SelteandAnotherVsAssociatedMotorBoardCo. ttd (supra). Pandya vs Republic(supra), charles B. L. Bitwire vs uganda(supra) 10 15 20 25 30 35 25 5 and Kifamunte Henry vs Uganda (supra), Cognlan vs Cumberland (1898) 1.Ch.704. (CA); Watt Thomas vs Thomas 0947) AC 484 (H.L.); Abdul Hamid Saif vs Alimohamed Slidem (1955) 22, EACA 270; Trevor Price & Anor vs Raymond Kelsall (1957) EA 752 and Peters vs Sunday Post Ltd. 0958) EA 424-There would therefore be no basis for this Court to intertere with the Court of Appea['s finding of fact and [aw. The above post 1995 Supreme Court decision hotds that where the Court of Appeat carried out its duty in re-evatuating the evidence on record, the Supreme Court shoul.d not interfere with it. The duty of the court is a principte of law and any aLtegation that the Court of Appeat did not live up to its task is a matter of [aw. where this duty is not exercised, the question is whether it was to the prejudice of the aggrieved party. This is a rute of practice derived from section 72 of the Civit Procedure Act and has a force of law as we shatl see betow. Most importantty the decisions of the East Africa Court of Appeat cited above were at[ informed by and operated within the provisions of the civit Procedure Act and the criminal Procedure code Act where appticabte. The principl.es devetoped within the statutory provisions is that the Supreme Court wit[ not interfere with concurrent findings of fact of the lower courts save in exceptional circumstances amounting to a point of Law. ln my judgment, the exceptional circumstances discussed in the case Law al.L amount to and ftow from a matter or matters of Law as devetoped in the context of the appl.ication of sections 72 andTl+ of the Civit Procedure Act. Section 72 (a) and (b) specif icatty address points of Law. section 72 (c) addresses defects in procedure. lt shoul.d be stated that a defect in procedure such as faiLure to consider materia[ evidence or making a finding not supported by evidence is a question of law though it has to be a substantiat defect or error in procedure affecting the decision on the merits. The New Supreme court uses these principtes aLt the time and does not admit appeaLs on factual controversies atone. lt has to be a fail.ure of the court of Appeat to foLl.ow certain principles or carry out its duties as a first appel'tate court. ln Beatrice Kobusingye vs Fiona Nyakana and George Nyakana; Civit Appeat No.5of2004(2005)UGSC3(22February2005),theSupremeCourt 10 15 20 25 30 26 revisited its decision in Francis Sembuya vs Att Ports Services (supra) in the context of whether sections '12 and 74 of the CiviL Procedure Act apptied to the Court of Appeat. ln doing so, the Supreme Court decided a wider controversy raised in that appeat before the Court of Appeal. as to whether the civiL Procedure Act was appticabte to the court of AppeaL and they atso considered whether it was appLicabte to the Supreme Court as wet[. Tsekooko, JSC with the concurrence of the rest of the Justices stated that: It is ctear from the headnote to the Civit Procedure Act that the Act was enacted to make provision for PROCEDURE lN CIVIL COURTS. The Jurisdiction of this Court and the Court of Appeal inctudes civit jurisdiction. I find nothing in s.1. of the Act which prohibits, in appropriate instances, the apptication of the Provisions of the Act to the procedure in either this Court or ln the court of Appeal. ln my view the operation of the civil Procedure Act must be ptaced atongsrde the operation of the Judicature Act and the constltution. Further having considered the change of name of the court of AppeaL to supreme court, the court hetd that this name was changed back from the Supreme court to the court of Appeat under section 14 of the Judicature Statute 1996, Statute No. 13 of 1996 which provided that: 14. Subject to the constitution; and with effect from the commencement of the constitution, any reference to the supreme court in any enactment in force immediatety before the coming into force of the constitution, shatl be read as a reference to the Court of APPeaL. Notwithstanding that section 72 and 74 of the civiI Procedure Act now rightl.y reverted from the words "Supreme court'to the names "court of Appeat",andthereforemadereferencetotheCourtofAppeatandnotthe Supreme Court, in Beatrice Kobusingye vs Fiona Nyakana and George Nyakana (supra) the Supreme Court noted that there is no right of appeal from an intertocutory decision of the Court of Appeal' to the Supreme Court whichordersareincidentattotheappeal..Thequestioniswhichpartofthe Civil'ProcedureActappl'iestotheSupremeCourt?theanswerisstil.tfound in the Judicature statute 1996 (supra) and section 51 (2) (a) which provides that: 10 15 20 25 35 30 (a) until rules of court made by the Rutes Committee to regulate the practice and procedure of the Supreme Court' any rules of court appticable to the former Supreme Court immediatety before the coming into force of the constitution shatt appLy to the supreme court with such modifications as the Chief Justice may direct in writang; Further section 51 (3) of the Judicature statute 1996 provides as fo[tows: (3) in subsection (2) of this section "rutes of court" includes any rutes howsoever catted regul.ating the practice and procedure of the court immediatety before the coming into force of the Constitution. what were these rutes and regutations? To my mind, these rutes operated within the bigger and enabl.ing Act of ParLiament namety the Judicature Act and the Civil. Procedure Act as wetl as the Criminal Procedure Code Act. To a certain extend the Judicature Act and section 6 thereof, adds to the law on civil. Procedure, the jurisdiction of the new supreme court. To find otherwise would exctude the appLication of the Civit Procedure Act which was the existing Law to the Supreme court. lt witt onty leave the Supreme court bound by rul.es and not the Principat Act; namety the civiL Procedure Act, as expl.ained in Beatrice Kobusingye vs Fiona Nyakana and George Nyakana (supra). case law on second appeal.s is that the appel.tant shoutd demonstrate that the first appetLate court did not exercise its duty to subject the evidence to fresh scrutiny and this is considered as an error of taw and not an error of mixed Law and fact. The core controversy incLudes whether the conclusion reached by the court is not supported by any credibte evidence. 0f course this kind of point of law requires consideration of the facts after the court estabtishes whether the court of Appeal. erred by not to carry out its duties' ltisthereforeaSUbStantiaIerrorordefectintheprocedurewhichistobe estabLished to consider whether the error coutd have affected the decision on the merits. This is demonstrated by the decision of the Supreme Court in Kifamunte Henry vs Uganda; (supra), the Supreme Court considered its mandate under section 6 (1) of the Judicature statute, 1996 which became section s (1) of 10 15 20 25 30 35 28 5 the Judicature Act under the revised [aws of Uganda 2000. By the time of that decision, the Court apptied section 131 (1) (a) of the TriaL on lndictment Act which has now been revised but which apptied to a person convicted by the High Court and sentenced to death. The law enabtes the convicted person to appeal against his or her conviction on a question of [aw or of fact or mixed law and fact to the Court of Appeat as a first appetl.ate Court. The Supreme Court hetd that it is the Court of Appeat (under the Constitution of the RepubLic of Uganda, 1995), as a first appettate Court has the duty to re- evatuate the evidence under the then rute 29 (1) of the Court of AppeaL Rul'es (now rute 30 (1) of the revised Judicature (Court of Appeal' Rutes) Directions. The Court of Appeat has power, at its discretion to take additiona[ evidence under the said rutes. Having estabtished that the Court of Appeat re- evatuated the evidence and subjected it to exhaustive scrutiny, the Supreme Court inter atia stated that: 10 15 20 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 wrongty directed itsetf on a point and the court of first appettate court has wrongty hetd that the triat court correct[y directed itsetf, yet, if the court of first appeat has correctty directed itsetf on the point. the second appeltate court cannot take a different view R. Mohamed AlL Hasham vs. R (1941) I E'A'C A' 93' 0n second appeal the court ofAppeal 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 probable, that it woutd 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 (19L2) 9 E.A.C A. 62. (emphasis mine) where there is no evidence in support of a finding of fact and it affects a decision on the merits the supreme court can consider a ground of appeaL on the question as to whether a finding is supported by any credibte evidence and this is considered a point of [aw. ln other words, there was no basis for the decision without credibLe evidence. These principtes have been appl.ied to civit matters in the supreme court notwithstanding that section 25 30 35 29 5 6 (1) of the Judicature Act does not bar any appeal which fal.ts within the wording that the High Court determined an interlocutory or final matter and the Court of Appeal. determined it on appeal by affirming, setting aside, varying or dismissing it. section 6 (1) of the Judicature Act without the existing procedural law is of wide apptication as hetd by the supreme court in Uganda Nationat Examinations Board vs Mparo GeneraI Contractors Ltd; 5C Civit Apptication No. 19 of 2004 (unreported). The court hetd that striking out an appeat by the court of Appeat does not fatt under section 6 (1) of the Judrcature Act because the decision did not originate from the High Court in the exercise of its originat jurisdiction. The unanimous decision of the court was that: 10 15 20 According to this provision there is an automatic right of appeal from the court of Appeat to this court in civiI matters decided by the High court in the exercise of its originat jurisdiction provided the court of Appeal has considered and decided on merit an appeaI to the court from a decision of the High court in the exercise of its original decision. This court hears and determines second appeats from the decision of the High court in the exercise of its original. jurisdiction after the court of Appeat determines a first appeat. 0ne of the usual grounds on which a f irst appeu.ate court shouLd not set aside a finding of fact of a triaI judge is that the Justices of appeat did not hear or see the witnesses testify. The issue of whether there was competent evidence in support of a finding of fact is a point of taw and atso arises from interpretation of section 33'l(1) of the Criminat Procedure Code Act, which was quoted in Kifamunte (supra) and reads that: 331. (',I) The appettate court on any appeaI against conviction shal'l' altow the appeat ifitthinksthatthejudgmentshoul'dbesetasideonthegroundthatitis unreasonabteorcannotbesulportedh;vingregar.dtotheevidenceorthatit shoutdbesetasideonthegroundofawrongdecisiononanyqUestionoftawif such decision has in fact caused a miscarriage of justice, or on any other ground iftheCoUrtissatisfiedthattherehasbeenamiscarriageofjustrce,andinany other case shaLL dismiss the appeat: (Emphasis added) 25 30 35 30 The section confers duties on a first appel.tate court which shoutd be adhered to. lts wording shows that it appiies in criminaI matters. ln civit matters simitar principtes are founded in section 72 of the Civi[ Procedure Act, which appl.y to second appeats and which inter atia refers to a substantial defect in procedure which affected the case on the merits. Such defects incLude findings of fact not supported by credibLe evidence, this being a question of [aw. When read together with section 6 (1) of the Judicature Act cap 13, these principtes appty to the Supreme Court in second appeal.s in civil. matters. Where section 72 of the Civil Procedure Act does not appty, there is no basis for restricting the grounds of appeat. lt means that the Supreme Court, like the first appettate court shoutd subject the evidence to exhaustive scrutiny though there are no enabting rutes for the Supreme Court to take fresh evidence to resotve any controversy of fact if need be. ln fact, reappraisaI of evidence is barred. The case law in second civit appeats in the Supreme Court emphasise the issue of whether the first appel.tate court foltowed the estabtished principtes in reconsidering findings of fact as a point of [aw. These are matters of [aw as stated under sectionT2of the Civit Procedure Act. The principtes to be fol.l.owed by a first appettate court were set out by the Court of Appeal. of East A,frica inter alb in Peters vs Sunday Post Ltd {1958} 1 EA 424 as principtes Laid down in the House of Lords decision of watt vs Thomas l19tl.7lIALL E.R. 582, and where Viscount Simon LC said at pp 583 - 584 ',an appet[ate court has, of course, jurisdiction to review the record of the evidence in order to determine whether the conctusion originatty reached upon the evidence shoutd stand, but this jurisdiction has to be exercised with caution. lf there is no evidence to support a particutar conc[usion (and this is rea[[y a question of taw) the appetlate court wil[ not hesitate so to decide' Lord Thankerton said at Page 587. ,,1 do not f ind it necessary to review the many decisrons of this house, for it seems tomethattheprincipl.eembodiedthereinisas.mpteone,andmaybestatedthUs: (l)whereaquestionoffacthasbeentriedbyajudgewithoutthejUry,andthere 10 15 20 25 30 31 5 is no question of misdirection of himsetf by the judge, an appetlate court whtch is disposed to come to a different conclusion on the prrnted evidence, shou[d not do so untess it is satisfied that any advantage enjoyed by the triat judge by reason of having seen and heard the witnesses, cou[d not be sufficient to exptain or justify the judge's conc[usion. (ii) the appettate court may take the view that, without having seen or heard the witnesses it is not in a position to come to any satisfactory conctusion on the printed evidence. (iii) the appettate court, either because the reasons given by the tria[ judge are not satisfactory, or because it unmistakabty so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter wi[[ then become at large from the appeltate court. lt is obvious that the vatue and importance of having seen and heard the witnesses wi[t vary according to the class of case, and, it may be, the individual case in question." Lord Macmittan said at page 560. ,,The judgment of the triat court on the facts may be demonstrated on the printed evidence to be affected by a materia[ inconsistencies and inaccuracies, or he made be shown to have fail.ed to appreciate the weight or bearing of circumstances admitted or proved or otherwise to have gone plainLy wrong." The principtes set out above are used in the determination of an appeat by the first appel.tate court. The supreme court as a second appetlate court considers whether the Court of Appeat in arriving at its decision foLl'owed those principl.es. The power to do this is statutory and that is why it is a point of law whether the conctusion reached is supported by the credibLe evidence. To try a question of whether the conctusions are supported by credibl.e evidence, is a point of Law which in its determination requires considering the retevant evidence. However, even if the second appeal court would arrive at a different conctusion on the basis of that evidence, it woul'd not do so. The supreme court of lndia has strictty construed jurisdiction in civit matters in second appeats. The Supreme court of lndia considered section 100 0f the code of civiL Procedure, 1908 0f lndia before it was amended in 1976 when it was in pari materia with section ?2 of the civi[ Procedure Act of Uganda. section 100 (1) (a) - (c) of the lndran civiL Procedure code provided that: 32 10 15 20 25 30 35 (a) the decision being contrary to law or to some usage having the force of [aw, (b) the decision having faited to determine some material issue of law or usage having the force of Law; (c) a substantiaI error or defect in the procedure provided by this Code or by any other law for the time being in force, which may possibty have produced error or defect in the decision of the case upon the merits This is in pari materia with the Ugandan section 72 of the CiviI Procedure Act, and case law before amendment of the law of the lndian Supreme Court is persuasive. I note that by amendment in 1976, section ]00 of the civit Procedure Code of lndia was amended but this is not retevant to the matter before court as I refer to a decision before that amendment. ln R. Ramachandran Ayyar vs Ramatingam Chettiar 0962) AIR 302, (1962) SCR (3) 604 the Supreme Court of lndia hetd that: It is necessary to remember that a. 100 (1) (c) refers to a substantial error or defect in the procedure. The defect or error must be substantial that is one fact to remember; and the substantial error or defect shou[d be such as may possibty have produced error or defect in the decision of the case upon the merits-that is another fact to be borne in mind. The error or defect in the procedure to which the ctause refers is, as the c[ause- ctearly and unambiguousty indicates, an error or defect connected with, or relating to, the procedure; it is not an error or defect in the appreciation of evidence adduced by the parties on the merits. That is why, even if the appreciatron of evidence made by the tower appellate court is patentty erroneous and the finding of fact recorded in consequence is grossty erroneous, that cannot be said to introduce a substantial error or defect in the procedure.0n the other hand, if in deating with a question of fact, the lower appettate court had ptaced the onus on a wrong party and its finding of fact is the resutt, substantiatly, ofthiswrongapproach,thatmayberegardedasadefectinprocedure;ifin deating wtth questions of fact, the Lower appettate court discards evidence on the ground that it is inadmissibte and the High court is satisfied that the evidence was admissibte, that may introduce an error or defect in procedure. lf the lower appettate Court faits to consider an issue which had been tried and fo und upon by without the 10 15 20 25 30 35 the triaL Court and proceeds to reverse the trial Court's consideration of such an issue, that may be regarded as dec is ion an error or defect in procedure;ifthetowerappel'tateCourtallowsanewpointoffacttoberaisedfor thefirsttimebeforeit,orpermitsapartytoadoptanew'pleaoffact'ormakes 33 5 out a new case for a party, that may, in some cases, be mid to amount to a defect or error in procedure. But the High Court cannot interfere with the conclusions of fact recorded by the [ower appe[[ate Court, however erroneous the said conclusions may appear to be to the High Court, because, as the Privy CounciI observed, however gross or inexcusable the error may seem to be there is no jurisdiction under section ,l00 to correct that error. The decision in R. Ramachandran Ayyar vs Ramalingam Chettiar (supra) is persuasive and explains the principtes on which to interfere with the decision of a first appeal. court on a second appeat. These principles are squarety found on an interpretation of section 72 and 74 of the Civit Procedure Act. 10 15 20 Simil.ar principLes are echoed by East African Court of Appeat judgments based on section 72 and 74 0f the civil. Procedure Act. ln R vs Hassan Bin Said atias Kamati Somati; Criminat Appeat No. 31 of 1942,119L219 EACA 62 Sir Henry Webb CJ stated at page 63 on what a second appeal court can do that: It shoutd be noted that the appeat being from a county judge, who is the soLe judge of fact, the question is not whether this court on such evidence as there was wouLd have come to the same conclusion, but whether there is any evidence which coutd reasonabty, if accepted, be the basis of such a conclusion. lf there is, it is immateriat that this court might not have drawn such a conctusion from that evidence. The above has consistentty been considered a question of law and springs from statutory [aw. ln Mohamed Ati Hasham vs Rex; Criminal. Appeat No. 128 of 1941 (1941) I E.A.C.A. 93 Sir Joseph Sheridan c.J. on the ground of objection that if the evidence in the case were property assessed there was no evidence at aLL to support the conviction stated inter aLia at page 94 that: .asregardsthisground,whichweagreeraisesamatteroflawproperfor decisionofthiscourt.namely,thesubmissionthatthefindinginfacthasno evidence to suPport it... AsecondappeaIappearsthereforetolieonamatterofLawonl'y.lncasesofthis kind counseI invariabty endeavoured to show that what appears at first sight to 25 30 35 34 be a question of fact is, when the record is examined, a question of Law, and this case has been no exception. These principl.es have been apptied in civit and criminaI appeats as questions of [aw. The sound basis for interference with concurrent findings of fact of the triat court and the first appettate court referred to byTsekooko JSC rn Francis Sembuya vs Attports Services (U) Ltd (supra) have been ctearLy set up in the judicial precedents. These inctude the ground of interference where there is no credibte evidence in support of the f inding of fact which is considered a point of [aw. Further the issue of whether the first appeu.ate court fotl.owed the principtes set out by the procedura[ law or usage having the force of Law in Uganda that coutd have affected the outcome of the case on merits is atso a question of [aw. The issue of whether there was faiture of the f irst appettate court to subject the evidence to exhaustive scrutiny is a question of [aw. 0n the basis of the above, and with due respect to the previous decisions which did not appty, arlicle2T1+ of the Constitution to import the existrng law on second appeats to the Supreme Court in civit matters, I have done so and my judgment is that second appeal.s in civiL matters tie to the Supreme court on questions of law and the grounds of appeat shoutd specify what the matter or matters of law are. This has been the practice after promutgation of the Constitution of the Republ.ic of Uganda in october 1995 and I see no basis for widening that jurisdiction by reversing the case Law that is property founded on statute. ln the finat resutt, I accept the submission of the respondent that second appeats in civiL matters shaLt be confined to matters of [aw' I concur that ground 6 of the appeaL be struck out for the reasons given by Mugenyi, JSC. Grounds1,2,3,4 and 5 are as fottows' l.ThelearnedJusticesofAppeaterredinlawandfactwhentheyfound that there was a distributron of Land in l980 in totaL disregard of the evidence on record hence coming to a wrong conctusion' 10 15 20 25 30 35 2. The tearned Justices of Appeat erred in [aw and fact when they found that the late Erina Rwakaniora had the right to distribute the tand of the late Yosamu Rwakaniora. 3. The learned Justices of Appeat erred in [aw when they conctuded that the Appettants had acquiesced the distribution for over 30 years and hence came to a wrong conclusion. 4. The learned Justices of Appeat erred in law when they conctuded that the cause of action arose in 1979 or at the very least ]980 hence occasioning a miscarriage of justice. 5. The learned Justices of Appeat erred in law when they found that the Appettants'suit was barred by timitation. Ground I can be considered on the basis of whether there was credibte evidence in support of the conctusion that there was a distribution of estate property in 1980. However, this further depends on a point of law as to whether the widow had authority to carry out any customary distribution of Land and this is a point of taw that depends on its resolution to ground 2 of the appeat. ln fact, ground 2 of the appeat, if resotved in favour of the appettants woul.d dispose of grounds 1, 2, 3, L and 5 of the appeat. Att the issues witt be affected by any conctusion that the widow of the intestate had no right to distribute the estate of the deceased comprising the Land in dispute, without authority of court to do so. Because of the overarching issue of Law, I do not have no first determine the propriety of pteading matters of mixed law and fact as a matter of law is Latent in the grounds of appeat. I wil.l. therefore first determine the issue of law that is inherent in grounds 1, 2, 3, l+ and 5 of the appeal and there would potential.ty be no need for me to estabLish whether those grounds of appeat disctose points of law despite averments that the error of the lower court is on matters of mixed law and fact. The question is whether the taw of intestacy apptied to atl Ugandan Afrtcans under the Succession Act by ]980 when it is atteged that the widow of the intestate Mrs Erina Rwakaniora distributed the estate shortty before her demise in 1983. lt is a fact not in dispute that Mrs. Erina Rwakaniora did not 10 15 20 25 30 35 36 5 possess letters of administration granted by any court. Where the atteged distribution is a nuttity on a point of [aw, then the whole appeat woutd succeed. 10 I have carefutty considered the issue before the court. First of att, it is not in issue that the deceased whose estate is in contention died intestate. Secondty it is a fact in dlspute whether the property was distributed under customary law around 1980. As a matter of fact, this factual dispute ought not to be determined by this Court as a second appettate court for the reasons I have given eartier in this judgment as it was determined by the lower courts. The question woutd be whether there is credibte evidence to support the conclusion that the estate was distributed by the widow under customary Law in 1980. I witt not dwetl on or consider the factual controversy as to whether there was any distribution of the estate in 1980. lnstead I wiLt consider the controversy of whether a widow had any authority to distribute the estate without grant of letters of administration. I further wish to emphasise that what is in controversy is the land therefore the property that is the subject matter of the estate is immovabte property subject to the law of succession on immovabte property in force in Uganda by 1980. The further timited question is whether the law of succession namety the Succession Act Cap 164 laws of Uganda 2000 which has now further been revised and is now the succession Act cap 268 was appticabte to the parties and to the immovabl.e property of the estate in 1980. For emphasis the Laws retating to immovabl.e property had not changed by 1980 and this is the appLicabte Law we shatl consider. The succession law of Uganda has evotved over time. Particul.arty the Succession Act of Uganda is a law principatty transptanted from the United Kingdom. section 334 of the succession Act cap 139 found in the revised laws of Uganda ,l964 as wet[ as the succession Act (Exemption) 0rder Statutory lnstrument 139 - 3 shows that by GN dated 22 January 1906 Act 15 of 1965 certain persons in Uganda were exempted from the operation of the succession Act cap 139. For a ctear and consistent history on the matter, 15 20 25 30 35 10 15 20 25 30 35 38 the Succession Act (Exemption) Order issued under section 334 of the Act provided as fottows: 1. THIS 0RDER may be cited as the Succession Act (Exemption) 0rder. 2. (1) Africans of Uganda are exempted from the operation of the Act. (2) the ruLes of for the distribution of intestate estates in the Act shatl not appty to Mohammedans. By 1964 therefore, atl Africans of Uganda were not bound to appty the Succession Act. The Succession Act did not appty to both testate and intestate succession of Africans of Uganda. Secondty the rutes for the distribution of the estate of intestate's in the Succession Act did not appty to Muslims. This means that the rest of the Act apptied to Mustims. Presumabty MusLims at that time were predominantty peopl'e of Asiattc origin otherwise the provision woutd be in conflict with the exclusion of Africans of Uganda from the operation of the whote of the Succession Act. Subsequentl.y in 1966 the Attorney Generat/Minister of Justice issued another order revoking the exemption of atl Africans of Uganda from the operation of the Act and passed the Succession Act (Exemption) Order of 1966. The exemption order was cited as The Succession (Exemption) 0rder, 1966. Statutory lnstrument No 181 of 1966 and it provided as fottows: lN EXERCISE of the powers conferred upon the Minister by section 334 of the Succession Act, this order is hereby made his 19tn day of November, 1966. 1. Any person to whom any customary law retating to succession in force in any part of Uganda applies is hereby exempted from the operation of the provisions of sections 25 lo lt7 of the Act. 2. order made by the commissioner under section 337 of the Succession ordinance, 1906, exempting certain c[asses of peopl.e from the operation of att, or some of the provisions of that 0rdinance is hereby revoked' 3. This 0rder may be cited as the Succession (Exemption) 0rder' 1966' The first point to be made is that the succession Act (Exemption) order ceased to appLy to Africans of Uganda (so-catted btack peopte). This meant that the succession Act started apptying to Africans of Uganda or to put it in other words, Ugandan Africans. lt fotLowed that the succession (Exemption) 0rder, 1966 order 1 therefore onty exempted persons to whom any customary taw retating to succession in force in any part of Uganda appLied from the provisions of sections 25 to l+2 of the Succession Act. ln other words, they were onty exempted from the provisions retating to intestate succession. Subsequentl.y in 1972 the Succession (Amendment) Decree, 1972 was assented to by the President of that time on 30 August 1972.The preambte to the Decree read as fottows: "A Decree To Amend The Succession Act To Provide For Succession To The Estates 0f Persons Dying lntestate, Restriction 0n Disposal 0f Property By Witt And For Certain 0ther Matters Connected Therewith.' Going by the preambl.e, the intention of the Decree was inter albto make provision for succession to the property of persons dying intestate and restrict the disposal. of property by witt and for certain matters connected therewith. Section 25 of the amendment provided that a person dies intestate in respect of aLl. property which has not been disposed of by a vatid testamentary disposition. Secondly by section 26 of the Succession (Amendment) Decree, 1972 il is specificatl.y provided that att property of an intestate devotves upon the personal representative upon trust for those persons entitted the property under the Act and it provided that: ,,26. Property rn an intestate estate devotves upon the personal representative of the deceased upon trust for those persons entitted to such property under this Act. " Subsequentty section 28 (1) of the taw provided as fottows: ,,28. (1) subject to the provisions of sections 30 and 31 of this Act, the estate of a person dying intestate, excepting his principat residentiaI hotding, shatt be divided among the fol.towing ctasses in the fottowing manner" " The taw exempted the principaL residentiat hol.ding from distribution and make provision as to how it shouLd be deatt with. secondty section 31 made provision for separation of husband and wife affected by the fact of such separation as far as the distribution scheme is concerned' 10 15 20 25 30 35 39 5 Ctearty the intention of the amendment was to ensure that atl. persons who died intestate woutd have their property distributed according to the statutory scheme. The law did away with the exemption of persons from the provisions of the Succession Act to whom customary law of intestate succession woutd have apptied. To even be more precise, those to whom customary taw apptied were exempted from the operation of the Succession Act. Thereafter after 1966 these persons (Ugandan Africans) were exempted from the Part of the Act deating with the estate of a person who dies intestate. Provision was made for a customary heir in the statutory scheme of distribution. Further an atternative scheme of distribution was catered for but it had to operate by sanction of the court and with the consent of the dependent retatives. Section 28 (3) provided as fottows: "(3) Nothing in this or any other section of this Act shatl prevent the dependent relatives from making any other arrangement relating to the distribution or preservatron of the property of the intestate provided that such arrangement is sanctioned by the court." By Law revision in 2000, the Succession Act (Exemption) Order, was reproduced as statutory instrument 163 - 3 and the exemption order No. 2 stitl. reads as fottows: ,,Any person to whom any customary taw retating to succession in force in any part of Uganda appties is exempted from the operation of the provisions of sections 2lt lo 33 of the Act." who are such persons to whom the customary l,aw of succession apptied? ctearty most of this exemption was overtaken by the Succession (Amendment) Decree 1972 whose intention is to appLy the law of intestacy under the succession Act to att Ugandan Africans as wet[ as any other persons to whom the Law of succession of Uganda appties. The statutory scheme of distribution took precedence over any customary [aws appticabte to any person in Uganda by 1972. This taw has not been amended by the ParLiament of Uganda and has been in force ever since' The above notwithstanding, the constitution of the Repubtic of Uganda 1995 and Articte 246 thereof ctear[y makes provision for the institution of 10 15 20 25 30 4A 5 traditionaI or cuttura[ leaders to exist in any area of Uganda in accordance with the cutture, customs and traditions, wishes and aspirations of the people to whom it appLies. 2lrb (li of the Constitution provides that: (4) the aLLegiance and privileges accorded to a traditiona[ leader or a cuttural leader by virtue of that office sha[[ not be regarded as a discriminatory practice prohibited under article 21 of this Constitution; but any custom, practice, usage or tradrtion relating to a traditiona[ leader or cuttural leader which detracts from the rights of any persons granted by this Constitution, sha[[ be taken to be prohibited under that artic[e." ...a king or similar traditional leader or cuttural leader by whatever name caLted who derives atlegiance from the fact of birth or descent in accordance with the customs, traditions, usage or consent of the people Led by the traditionaL or cuttura[ [eader. Under this kind of system, the law of succession retating to the traditionat or cu[tural leaders is taken to be exempt from the provisions of the Succession Act. These are especiatty those customs, practices or traditions retating to the traditionaI or cuttura[ leader even if it means those retating to the law of succession associated with the institution of the traditional or cu[tura[ [eader. Partiament is required under article 2A7 to make specific provision for administration of estates as it provides that: 247. Administration of estates Par[iament shaLt- (a) by taw estabLish an efficient, fair and expeditious machinery for the administration and management of the estates of deceased persons; and (b) under the law referred to in paragraph (a) of this article, ensure that the services of the department or organisation established for the purpose are decentratised and accessibte to a[[ persons who may reasonably require those services and that the interests of att beneficiaries are adequate[y protected. 47 10 15 20 25 30 35 ln addition, articte 2tt6 (6) of the Constitution ctearty defines "traditionaI leader or cuttural leader" to mean 5 This Articte is not isotated from other artictes of the Constitution deating with the succession [aws in Uganda. Firstty, it shouLd be of concern therefore in the interpretation of the laws retating to succession, to remember that most customary [aws in Uganda had discriminatory customary [aws of succession in retation to [and where it was only mate retatives of the deceased who coutd inherit tand. The Succession (Amendment) Ac|1972, ensured that att chiLdren were considered equatty in the distribution scheme except in retation to the Principat ResidentiaI Hol.ding of the intestate or in re[ation to the share of the customary heir. The customary heir was given 1% of the estate in the distribution and that 1% woutd be an additional share in the statutory distribution if the customary heir is atso a lineal descendant of the intestate and got a share as a chitd. ln retation to the right to the distribution of the estate of an intestate,33 (4) of the Constitution provided that: "women sha[[ have the right to equat treatment with men and the right shal.t inctude equal opportunities in potiticaL, economic and socia[ activities." Furthermore, articte 32 (2) of the Constitution provided inter atia that: "Laws, cuttures, customs and traditions which are against the dignity, welfare or interest of women or any other marginalised group to which clause (1) relates or whrch undermine their status, are prohibited by this Constitution." Because of the above enactments, it can be conctuded that customary taws, excepting those retating to the institution of a cuttura[ leader or cuttural institution under articte 246 of the constitution, which customary laws are discrrminatory in that they provide for inheritance of immovabLe property by onty the mate chil.dren under the customary law of intestacy, are not enforceabte without the consent of atl adutt beneficiaries of the intestate under the law irrespective of their gender and with the sanction of court. Notwithstanding that the constitution of the Repubtic of Uganda came into force on 8th october 1995, this was more than 10 years after the al.l.eged distribution of the estate of the deceased, the Succession (Amendment) Act, 1972 which became part and parcel of the Succession Act has never been amended up to date and apptied a statutory distribution scheme to atl cases 10 1q 20 25 30 42 s of intestate succession except the arrangement of adutt beneficiaries with the sanction of court which al.l.ows for atternative distribution schemes. The amendments went hand in hand with the enactment of the Administration of Estates (smal.t Estates) (speciat Provisions) Acl1972 which was meant to decentratise the practice for the grant of probate or letters of to administration by courts through conferring jurisdiction on magistrate's courts in retation to smatL estates and were meant to appty to atl parts of Uganda by making courts accessibte to att parts of Uganda in matters of the administration of estates. This taw came into force on 6th June ',1972. The effect of the above laws is that Succession Act cap 268 appLies to at[ estates 1s of intestates by 1972. What onty deferred is the procedure for appLication for letters of administration where [arge estates woutd fatt within the jurisdiction of the High Court white smatl estates fatl within the jurisdiction of magistrates courts. The Apptication of the Succession Act to the suit property' 20 Section 'l of the revised Succession Act Cap 268 Laws of Uganda 2023 which is the revised edition of the succession Act cap 164 2000 Laws of Uganda 2000 which in turn reproduced the appticabl.e taw by 1980, appl.ies the Act to a[[ cases of intestate or testamentary succession. lt provides that. 1. Act to constitute the taw of Uganda in cases of successton 25 Except as provided by this Act, or by any other law for the time being in force, the provisions in this Act shatL constitute the taw of Uganda appticabLe to a[[ cases of intestate or testamentary succession' ln addition, section 3 ('l) of the succession Act provides that succession to immovabte property in Uganda of a deceased person is governed by the 30 laws of Uganda. 3. Succession to a deceased person's immovabte and movabte property' (1) Succession to the immovabte property in Uganda of a person deceased is regulated by the taw of Uganda, wherever that person may have had his or her domicite at the time of his or her death' 5 The apptication of the Succession Act to any ctass or ctasses of persons or of any part or parts of the Act can be exempted by the Attorney General by statutory instrument. 330. Power of Attorney GeneraI to exempt any class of persons from operation of Act. 10 (1) The Attorney General shatl have power from time to time, by statutory order, either retrospectively from the passing of this Act, or prospectively, to exempt from the operation of the whote or any part of this Act, any class or ctasses of persons, in Uganda, or any part or parts of any such ctass or classes to whom he or she may consider it impossibte or inexpedient to appLy the provisions of this Act, or of the part of the Act mentioned tn the order. (2) The Attorney General shatl also have power from time to time by statutory order to revoke any order made under subsection (1), but not so that the revocation shat[ have any retrospective effect. The two statutory instruments we have reviewed above estabtish that the Succession Act appties to the estate of the deceased and I need not repeat the grounds for that conctusion again. Suffice it to state that section 187 of the Succession Act ensures that no one can fite a case to estabtish a right to an estate of an intestate except for purposes of preservation of the estate without grant of letters of administration. Section 187 of the Succession Act provides that: 187. Right to intestate's property, when established. Except as hereafter provided, but subject to section 4 of the Administrator Generat's Act, no right to any part of the property of a person who has died intestate shatt be estabtished in any court of justice, untess letters of administration have first been granted by a court of competent jurisdiction. Further the right to the estate retates back to the time immediatel'y after the death of the intestate after grant of the Letters of administration to the estate of the deceased by a court of [aw. Thereafter the administrator of the estate may sue or be sued. section 188 of the Succession Act provides that: 188. Effect of Letters of administration. 15 20 ?5 30 35 44 Letters of administration entitle the administrator to a[[ rights betonging to the intestate as effectualty as if the administration has been granted at the moment after his or her death. This shoul.d be read in conjunction with section 21 of the revised Succession Act cap 268 Laws of Uganda 2023 which provides that: 21. Devolution of property of deceased dying intestate. Att property in an intestate devotves upon the personal representative of the deceased upon trust for those persons entitted to the property under this Act. It is onl.y a personal representative in whom the property vests after he or she is granted tetters of administration to the estate of the intestate who may distribute the estate after paying off debts and settting ctaims against the estate. Under section ll of the Administrator General Act Cap 157 Laws of Uganda 2000, which was the appLicabte taw in 1980 it is an offence to intermeddte with the property of an intestate without authority of Court or the Administrator Generat. Section 11 of the Act provides that. 11. lntermeddting with property of deceased. (1) When a person dies, whether within or without uganda, [eaving property within Uganda, any person who, without being duty authorised by law or without the authority of the Administrator General or an agent, takes possession of, causes to be moved or otherwise intermeddles with any such property, except insofar as may be urgentty necessary for the preservation of the property, or untawfutty refuses or neglects to deliver any such property to the Administrator GeneraI or his or her agent when catted upon so to do, commits an offence; and any person taking any action in regard to any such property for the preservation of the propertyshatl'forthwithreportparticularsofthepropertyandoftheStepstaken totheagent,andifthatpersonfail'ssotoreportheorshecommitsanoffence. (2) Any person who commits an offence under this section is [iabte on conviction to imprisonment for a period not exceeding three months or to a fine not exceedingtwohundredshiLtingsortoboth,butwithoutprejudicetoanyctviL tiabitities which he or she may have incurred' Distribution of an estate without grant of letters of administration without authority of the Administrator General unless it is meant 15 20 30 35 or to 10 45 5 10 15 20 25 30 35 preserve the estate is an offence and any distribution scheme woutd Likewise be an il.l.egatity for breach of a statute. ln Bostel Brothers Ltd Vs Hurtock l19Lg)2Att ER 312, a contract for work executed under a licence in contravention of a statutory provision was avoided on the ground of ittegatity. The taw is that what is done in contravention of a statute is void Somervetl L.J said at page 312: The principte of law reLied on was stated conciseLy and in a form appropriate to the present issue by Ettenborough CJ in Langton v Hughes (1 M & S 593, 596): 'wnat is done in contravention of the provisions of an Act or Parliament. cannot be made the subject- matter of an action.' ParticuLarl.y, the process of court cannot be used to sanction an rttegatity as hetd in Phoenix Genera[ lnsurance Co of Greece SA v Administratia AsigurariLor de Stat 1198712 Att ER 152 per judgment of the Court of Appeat of the United Kingdom where Kerr LJ hetd that it is settted law that any contract prohibited by statute, either express[y or by imptication is it[egat and void. where the distribution is ittegat tike I have estabtished above, the process of court shoutd not be used to val.idate it. The action to seek a dectaration of itl.egaLity of the distribution of the intestate's estate shoutd succeed. A court of [aw cannot sanction that which is itLegat and this proposition of law can be found in Betvoir Finance co. Ltd vs. Harotd and G cote & co. Ltd 1196912 Att ER 904 where Donatdson J at page 908 hetd that: 'l think ittegatity, once brought to the attention of court, overrides a[[ questions of pteadings, and therefore this is, and remains a real and indeed insuperabte difficutty in the way of the Defendant so far as the mercanti[e agency defence is concerned.' This proposition was cited with approval by the court of Appeat in Makula lnternationat vs. His Eminence Cardinat Nsubuga and another Civit Appeat No 4 of 198,| where they hetd a court of taw cannot sanction that which is iU.egat...iLtegal.ity once brought to the attention of court overrides atI questions of pteadings, inctuding any admissions made thereon The court t 46 5 10 20 ,q Dated at KamPal.a the n d ,cc lo"[ or 2024 30 Christopher Madrama lzama Justice of the SuPreme Court 41 aLso cited with approvaL Phittips vs Copping n9351 1 KB 15 per Scrutton LJ at page 21 that. But it is the duty of the Court when asked to give a judgment which is contrary to a statute to take the point aLthough the titigants may not take it. ln the premises, the issue of ittegatity of the distribution cannot [ead to any finding on timitation of actions to vatidate the distribution. lt foltows that there was no vatid distribution of the estate and the matter needs to be handl.ed under the Succession Act and opportunity given to atl chiLdren of the intestate irrespective of their gender to have a fair share of the immovabte property of the deceased in accordance with the Succession Act cap 268 laws of Uganda 2023 which in substance reproduces the [aw of intestacy since 1972 appticabte to the parties to this appeat. ln the premises the one issue I have framed as to whether any purported distribution of the estate was lawfuI resolves the appeat as any purported distribution on which the respondents rety based on the facts they rety on is unenforceab[e though court process. I woutd in the premises al.l.ow the appeal and concur with the orders proposed by my learned sister Mugenyi, JSC and I woutd add that the property be distributed in accordance with the Succession Act by the Administrators with the cotLaboration of the Administrator General and accounts thereof shal.t be fited in the High Court within 6 months' 15