Tayebwa Robert v Cresensio Mukasa (Civil Application No. 11 of 2017) [2023] UGSC 85 (2 November 2023)

THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA ..$$ -+$ * A B ,.,(' H Pfr 5 ) 1 f ri AT I(AMPALA .,*d;;;"'"i F I 'o NDHA; TUHATSE; CHIBITA; MUSoKE; MADRAMNJJ,,,f,.8ier-*- ; IVIL AppLIcATIoN No. ll oF 2or7 ?z ""ih11"' c 10 TAYEBII/A ROBERT 15 APPLICANT 20 vs CRESENSIC M'' KASA : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : R.ESPONDENT (An applTcatlon for reviera of the declslon of the Suprerne Court at Kampala (Katureebe, CJ; Arach-Amoko, Nshlmge, Oplo-Auteri, Mwondha; JJSC) dated 6th April, 2O77, ln Civil Appeal No. 77 of 2014.) This application was initially filed by two applicants namely Kiganda John and Tayebwa Robert against six respondents namely; Yakobo M. N. Senkungu, James Kenjura, John Rwakarnuranga, Giradesi Katonya, Yohana Rwakaaro and Cresensio Mukasa. However, during the hearing of the application, Kiganda John withdrew from the application. The applicant also withdrew the application against the first to fifth respondents. Consequently, Kiganda John and the first to the frfth respondents were struck off this application, leaving only Cresensio Mukasa. Although some parties were struck off, the pleadings remained as filed. We shall consider these pleadings with necessary adjustments 1 25 b, RULING OF COURT. 5 to only focus on Tayebwa Robert (hereinafter referred applicant) and Cresensio Mukasa (hereinafter referred respondent) respectively. to as the to as the 10 20 25 The applicant frled this application under the provisions of Rule 2 (2) and 35 (1) of the Rules of this Court seeking for the following Orders. 1. This Honourqble court be pleased to recall its Judgment entered in Ciuil Appeal No. 17 of 2014 deliuered. on 6th Aprit 2O17, for purposes of reuiewing and/ or correcting the errors of fact on record and amending or otherutise uarying the same for hauing affected the ights of the Applicant unheard. 2. Cos/s of the application be prouided for. Background follows: Mr. Cresensio Mukasa, the respondent herein is the holder of Letters of Administration to the estate of the late Gusite Nakaima who died in 194 1 leaving behind two pieces of land situate at Mawogola, namely Block 30 Plot 1 at Kabagoma approximately 64 1 acres and Block 31 Plot 1 at Ntyazo approximately 623 acres (herein referred to as the suit properties). The respondent obtained the Letters of Administration in 1986 and sought to transfer the suit properties into his nalnes. However, he discovered that the proprietorship ofthe suit properties had changed into the name of Yakobo M.N. Senkungu in 1980. Yakobo M.N. Senkungu subsequently transferred the land of Block 30 plot 1 at Kabagoma to James Kenjura, John Rwakamuranga, Giradesi 2 30 The background to this application as gathered from the record is as Katonya and Yohana Rwakaaro (the defendants in the High Court, the appellants in Civil Appeal No. 17 of 2Ol4 and, now the respondents who the applicant withdrew this application against). Mr. Cresensio Mukasa therefore sought to recover the suit properties against Yakobo M.N. Senkungu and the defendants vide High Court Civil Suit No. 382 of 1987. He sought for orders that the Certificate of title of Yakobo M.N. Senkungu on the suit properties be cancelled on the basis of fraud, and that the defendants/respondents were fraudulently registered. In the course of hearing the suit, the proprietorship of the land, Block 3l plot 1 at Ntyazo in 1996 also changed to Ezekiel Rwankanyuzi under whom the applicant claims. The learned trial Judge found that there was no proof of fraud on the part of Yakobo M.N. Senkungu in relation to the suit properties. Court also found that his subsequent transfer of title of Mawogola Block 30 Plot 1 to the defendants meant that they could not be privy to the unproved fraud. Dissatisfied with the decision of the High Court, the respondent, Mr. Cresensio Mukasa successfully appealed to the Court of Appeal vide Civil Appeal No. 35 of 2006 which reversed the decision of the High Court. Dissatisfied by the decision of the Court of Appeal, yakobo M.N. Senkungu, James Kenjura, John Rwakamuranga, Giradesi Katonya and Yohana Rwakaaro appealed to this Court vide Civil Appeal No. 17 of 2014 which upheld the decision of the Court of Appeal and dismissed the appeal. The applicant was aggrieved by the d.ecision of this Court and filed this application No. ll of 2OlZ for review of this Court's Judgment. 10 15 20 25 30 3 5 10 25 The application is based on the following grounds: 1. THAT there is an error apparent on the face of the record arising from the obuious and rather inaduertent inconsistencg in the Judgment and fi"nal orders of the court which affects the ights of the applicants who utere not parties thereto thereby not warranting the orders in the terms as granted. 2. THAT in the Judgment, there was an accidental slip or omission wherein the Court inaduertently in its Judgment in eualuating the chronology ofthe transfers and registered proprietors in respect of Block 31 Plot 1 omitted to f"nd" that yakobo Mukaaku Mutendwa Ssenlatngu the 1"t Respondent hereto transfered the land to Ezekieli Rwankanguzi who was registered, on the Certificate of Title under Instntment No. MSK 7121 on 24/ S/ 96 and therefore a registered proprietor uhose proprietorship would. not be ignored. 3. THAT the accidental slip or omission to establish duing eualuation of euidence that Ezekiel Rwankanyuzi was the registered propietor and outner ofthe land, get a copy ofhis title had been exhibited on the Court Record bg the parties thereto and forming part of the Record of Appeat to the Supreme Court is a major omlssion, tuhose final Judgment is bound to affect the Applicants' ights to propertg unheard and thus it ought to be corected bg this Honourable Court. 4 30 20 5 Grounds 5 4. THAT the Applicants are benefi.ciaries of the estate of the tate Ezekeli Rwankanguzi as his sons and haue a beneficial interest in the propertg comprised iru Block 31 Plot 1 which they haue occupied and possessed since 1996 without encumbrance saue for the qtrrent threats arising out of the impugned. Jud.gment of this Honourable Court whose execution would alfect their said. interest unheard. 5. THAT there is need to recall the Judgment entered. in Ciuil Appeat No. 17 of 2014 deliuered on 6th April 2017, for purposes of reuiewing and/ or conecting the errors of facts on record- and" amending or othertuise uarying the same for hauing affected. the ights of the Applicants unheq.rd. 6. THAT unless the Judgment entered in Ciuil Appeal No. 1Z of 2O14 is recalled and reuiewed and/or the errors on the record corrected bg amendment or otherwise uaied, the same haue the consequence of unfairlg and unjustlg dispossessing the Applicants of their propertg. 7 . THAT it is in the interest of justice thot the Judgment entered in Ciuil Appeal No. 17 of 2014 deliuered on 6th Apil 2017 be recalled for purposes of reuiewing and/ or correcting the errors of facts on record and amending or otherwise uarying the same for hauing affected the rights of the Applicants unheard. 10 15 20 25 5 30 5 Representation The applicant was represented by Mr. Caleb Alaka while the respondent was represented by Mr. Paul Kuteesa. Both parties hled written submissions. .... i . Submissions: Applicant's Submissions Counsel for the applicant submitted t 10 15 20 25 hat the law ;'foverhing the orders sought by the applicant is set out under rules 2(2), 35 and.42 of the Judicature (Supreme court) Rules. counsel contended that these rules empower this court on its own motion or by an interested person to correct any error in a Judgment at any time, whether before or after delivering the said Judgment, so as to give effect to what was intended by the Court when it passed the Judgment. Counsel further submitted that the same Rules also empower this court to issue such orders that may be necessary to achieve justice and to prevent abuse of the Court process. Counsel for the applicant contended that under paragraphs 2 to 6 of the afhdavit in support of the application, the applicant,s father was the registered proprietor of the suit land, although he was never part of the proceedings in the High Court, Court of Appeal and Supreme Court. He contended that it is from these proceedings that the applicant's father's Certificate of Title was cancelled without according a fair hearing to him or his representative. Counsel for the applicant prayed that the Court,s orders in Civil Appeal No. 17 of 2Ol4 be set aside to meet the ends of justice. 6 30 Respondent's Submissions On the other hand, counsel for the respondent opposed the application and submitted that the application lacks merit. He contended that the application is incompetent and prayed for the same to be dismissed with costs. Counsel submitted that this application does not fall under the confines of Rules 2(21 and 35 of the Supreme Court Rules. Counsel contended that the applicants are inviting this Court to sit in appeal of its own Judgment; and to admit new evidence that was not before the High Court and Court of Appeal, and to a1ter its decision. Counsel for the respondent contended that the question as to whether Ezekiel Rwankan5ruzi obtained proprietorship over the land comprised in Block 31 Plot 1 from Yakobo Senkungu, is a matter than can only be determined after hearing evidence from both parties and it cannot be a basis for this Court to a-lter its decision. Consideration of the arrDlication We note that this application was brought under Rules 2(2) and 35 of the Supreme Court Rules. The application was supported by the affidavit of Kiganda John which he deponed on his own behalf as an affected party and also on behalf of the applicant. 10 15 20 25 7 30 5 Relying on Article 132(4) of the Constitution, counsel for the respondent submitted that while this Court can depart from its earlier decision, it cannot overturn its earlier decision in the same proceedings. Counsel further contended that the only exception to the doctrine of finality of the decisions of the Supreme Court are the circumstances set out under Rules 2(2) and 35 of the Judicature (Supreme Court) Rules. 5 we shall first consider the merits of this application under Rule 35(1) of the Supreme Court Rules, which provides in the relevant part as follows: "35. Correction of errors. (7) A clerical or arithmetical mistake in ang judgrnent of the court or q.ng error arising in itfrom an accidental stip or omission tnag, at ang time, whether before or afi.er the Jud.gtnent hq.s been embodied in an order, be conected. bg the court, either of its own motion or on the application of ang interested person so crs to giue effect to tohqt utas the intention of the court when Jud.gment was giuen. As the above Rule a]ready shows, the Rules of this court specifically vest in this court the power to correct its clericar or arithmetical mistakes or any error in its Judgments arising from an accidental slip or omission. Secondly, the Rule vests power in Court to correct errors before or after the Judgment has been embedded in al Order. Thirdly, the court can act on its own motion or at the instance of an interested party. However, the Rule limits the errors to be corrected to only those that will give effect to what was the intention of Court when Judgment was given. It was therefore incumbent upon the applicant to meet this test. The applicant claimed in ground 3 of his application that the court omitted to evaluate evidence regarding the alleged transfer of Block 31 Plot 1 to a one Ezekiel Rwankan5ruzi. 10 15 20 25 8 30 5 The applicant's father was not party to Civil Appeal No. 17 of 2014. If the allegations of the applicant a_re indeed true, then Court could not have intended to make any findings with respect to Rwankanlruzi's proprietorship. After making these submissions, the applicant cannot turn around and contend as he did, that correction of this error or omission will give effect to Court's intention when the Judgment was made. The applicant also sought to take benefit of Rule 35 as "any interested person" to move this Court to correct alleged errors in its Judgment in Civil Appeal No. 17 of 2014. We note that the Rule does not define 'any interested person'. While this is so, it is inconceivable for us that the Rule would allow a person who was not a party to an appeal before the Supreme Court, to seek correction of errors which would have the effect of Court reversing its decision in the appea-I. We agree with counsel for the respondent that in bringing this application, the applicant was asking this Court to sit in an appeal of its own decision and to overturn its earlier decision in the same proceedings. The applicant did not cite to us any authorit5r he relied on to support his application. The other reason why this application is incompetent is because the applicant came to this Court in his own right while at the same time grounding his claim on the alleged proprietorship of Ezekiel Rwankany'uzi. Under ground 4 of his Notice of Motion, the applicant claims to be a victim of the decision of this Court because he is a son and benehciary of the estate of his late father, Ezekiel Rwankanyuzi. 10 15 20 25 9 30 5 He also claimed that Ezekiel Rwankanlruzi was the registered proprietor of land comprised in Block 31 plot 1 and that he has enjoyed quiet possession of the land comprised in that Register since 1996 until the warrant of execution dated 13tt April 2OlT, which is attached to this application, was issued. We note that the applicant did not file this application either as an Executor or as an Administrator of his late father's estate. Section 191 of the Succession Act Cap. 162 provides as follows: "Except as hereaft,er provided, but stbject to section 4 of the Ad.ministrator General's Act, no right to ang part of the properAg of a person who ho,s died intestate sho,fl be esto.blished. in ang court of justice, untess letters of q.dministrqtion haue Jirst been granted bg a court of c omp ete nt jurisdiction.', In Isrq.el Kqbwa a Mq.rtin Banobq Musiga SCCA No. 52 of 1995, this Court recognized the right of a person with a beneficial interest in a deceased person's land to bring an action in his own right. But such an applicant must provide evidence to the Court to prove this. Secondly, he needs to do this in a court of first instance, which is not the case here. Under Rule 2(2), the drafters of the Supreme Court Rules recognized that Court can sometimes make errors when handting appeals. This Rule provides as follows: .. '\ " 't) ! ,. .r :. 10 15 20 25 30 "2. Application. 10 Let us now briefly consider the merits of this application under Rule 2(2) of the Supreme Court Rules. -t 5 (2) Nothing in these Rules shall be taken to limit or otherwise affect the inherent power of the court, and the Court, of Appeal, to make such orders d.s mag be necessary for achieving the ends ofjustice or to preuent abuse of the process of ang such court, and that power shall extend to setttng aside judgments which haae been proaed null and. void afi,er theg haue been passed, and shall be exercised, to prevent an abuse of the process of ang court caused. bg delag." It is trite that Rule 2(2) of the Judicature (Supreme Court) Rules vests in Court inherent powers to make any such Orders as may be necessary for achieving the ends ofjustice or to prevent an abuse of process of the Supreme Court or Court of Appeal. We restated this position of the law in E.B Ngakao;ncr & Sons trtd us Beqtrice Kobusingge & 76 Others, Misc. Application No. lS of 2077 However, before an applicant can benefit from this Rule, he or she must meet the criteria laid out under the Rule. In the present application, the applicant has not attempted to show that the Judgment of this Court in Civil Appeal No. 17 of 2014, is null and void. Neither has the applicant shown that setting aside the impugned Judgment is necessary to achieve the ends of justice or to prevent an abuse of the process of the Supreme Court or the Court of Appeal. As we discussed earlier in this Ruling, the applicant has not proved his right to bring this application. The Court has no way of verifying the applicant's claim to be a son of Ezekiel Rwankanlruzi. 10 15 20 25 30 11 5 Furthermore, neither the applicant's father nor the applicant is named in the warrant of execution attached to the application. Secondly, the applicant claims that a copy of the Certificate of Title for Block No. 31 Plot 1 situate at Ntyazo he attached to his application, was on the Record of Appeal of Supreme Court Civil Appeal No. 17 of 2014. This Court has no basis to verify his averments and claims and he has provided none. Furthermore, the Certificate of Title he attached to his application was certified by the Commissioner for Oaths as an Exhibit/Annexture to the afhdavit of Kiganda and not by the Registrar of Titles. Section 2Ol of the Registration of Titles Act provides as follows: *(7) (2) The registrar, on pagment of the fee for the time being pagable for a certiJied copg, shall fla,rnish to q.ng person applging for it, a certiJied copg of ang CertiJicate of Title, canteat or registered inshttment affecting land under the operation ofthis Act; and. every such certiJied. copg signed bg the registrar and authenticated bg the seal ofthe Oflice oJ Titles sholl be receiued. in euidence in ang court ... as prima facie proof of the original Certificate of Title, caueqt or instrument and of all the matters contqined. or recited in or endorsed thereon respectiaelg.,' The applicant was not at liberty to produce a photocopy of a Certificate of Title certified by the Commissioner for Oaths. This Court has no basis to verify the alleged proprietorship of the applicant's father. 10 15 20 25 30 1-2 5 The applicant attached two copies of the Certificate of Title he alleged were for Block 31, Plot 1 at Ntyazo and were registered in the narnes of his father, Ezekiel Rwankanlruzi. One of the Certificates appears at page 69-72 of the Record of the application, while the other one appea-rs at page 252 of the Record. A critical review of these two copies shows that they differ in material respects in the details reflected on the pages and the type print of the information reflected. These differences make both titles suspect. Furthermore, although the applicant attached this record purporting it to be as the record of appeal in Civil Appeal No. 17 of 2014, the record was not certified by any Registrar of the Court to confirm its authenticity. A quick perusal of the Certificates of Title on the Record of Appeal that was attached to this application reveals that the land which was the subject of the High Court Civil Suit No. 382 of 1987 was in respect of Block 30 Plot | (259 Hectares at Kabagoma) and Block 31 Plot 1 at Nt5razo, Mawogola. This was brought out in the Judgment of H.C.C.S No. 382 of 1987 (which was number MSK CS No. 0O49 of 2003) as follows: "The first plaintiff gaue euidence as PW7, on the record. The releuant part of his euidence, on thls issuq is that afier seaning the letters of administration for the estate of his grandfathe1 the late Gusite Nakaima, in 1986, he utent to the land olfice at Masaka intending to transfer the suit land into his own names as the administrator of the estate Gusite Nakaima. He found that the land compising Mawogola Block 30, Plot No. 7, at Kabagoma and that in Mawogolo Block 31, Plot No. 7, at Ntgazo, 10 20 25 30 13 15 were registeredinthe names of Yakobo M.N. Ssenkungu, thefirst defendan| as exhibits P2 and P3 show." So the Judge who saw the Exhibits of these two titles noted that both titles were registered in the names of Yakobo M. N. Ssenkungu. As we noted earlier, the Certihcate of Title reflecting Ezekiel Rwankanyuzi as the registered proprietor is alien to the proceedings from which Supreme Court Civil Appeal No. 17 of 2Ol4 originated. The applicant chose to omit Exhibits p2 and p3 and instead. attempted to hoodwink this Court by introducing a suspect Certificate of Title showing his alleged father, Rwankan5ruzi as the registered proprietor. This is unfortunate and deserves condemnation on the part of the applicant and his counsel. The applicant also claimed that his father derived his interest from Yakobo Mukaaku Mutendwa Ssenkungu. However, in its Judgment in Civil Appeal No. 17 of 2014, this Court found that yakobo Mukaaku Mutendwa Ssenkungu from whom the rest of the then appellants claimed to have derived title, did not put in a Written Statement of Defence or testify at the trial. Neither did he participate in the appea-l before the Court of Appeal. This cast doubt on the authenticit5r of the transfers he allegedly effected. In the same Judgment, the Court noted that when the second to fifth appellants, visited the suit land and expressed interest to buy it they were informed that there was a pending suit against the first appellant for fraudulently transferring the land. Therefore, the first to fifth appellants in Supreme Court Civil Appeal No. 17 of 2Ol4 could not have been bonafide purchasers. 10 15 20 25 30 1,4 5 5 The applicant rightly submitted that his father does not feature anywhere as a party to the proceedings in tlee High court, the court of Appea-l or even this Court. 10 For art t]-re above reasons, we have found no merit in this application. This application is d.ismissed with costs to the respondent. Dated at Kampala this .... ....J*d.day of {:.2023. Faith M wondh a JUSTICE OF THE SUPREME COURT 1q tr, percy Night Trrhaise JUSTICE OF. THE SUPREME COURT ,rr" I a I + {t I Mike J. Chibita 4 tt JUSTICE OF THE SUPREME COURT E beth Musoke ,q TIUSTICE OF THE SUPRTME COURT Christopher Madrama JUSTICE OF THE SUPREME COURT 1Hl5 /J r1