Bitamisi Namuddu v Rwabuganda Godfrey (Civil Application 4 of 2015) [2017] UGSC 85 (16 June 2017)

/ I I I a , THE RE:'ULILIC OF UGANDA IN THE SUPREMD CUIJRT OF UGANDA AT I(AMPALA ICORAM: KATUREEBE; CJ, TUMWDSIGYE; KIS/IAIIIE; ARACH-AMOKO; & ' MWANGUSvA, .A,,.S.C./ CIVIL APPI,ICATION NO. 04 OF 2OI5 BITAMISI NAMUDDU ] APPLICANT AND [An Appltcation Jor leaue to appeal agai^st the d.ecision of the Court of Appeal (Buteera, Kakuttt, &, Tibatemula, J,l,A) in Civil Appeal No. O87 of 2O7O dated 26.h Febnto'ry 2O741 Ili&rmisi Namuddu, herein:rft-cr: rcfcrred to as the applicant, filed this application secking lcave ol this Cor:rt to appeal against thc decision of the Court of Appcal in Civi! Appeal No. 087 of 201O. 1'!rc application was brought undc:r s<:ction 6(21 of the Judicature Act and Rule 39 (1) (b) of the &dicafure (Supreme Court) Rules. Thc application is supported by arr affidavit sworn by the applicant on 2.7ttt May 2O 15 and anothor afliclavit of Katungulu John Matovu deponcd on 22"d May 2OL5. 'Ihis application has got a ch<:ckcrr:d history r';hich wc shall not fully delvc into. Rattrer we shall only givc ttrat background which \,!'e think is relevant to this application. On 4tt August 20O4, the applicant was granted letters of administration by the lligh Courrt irr respect of her late father's cstalc, the late Muswzrngali Mus:r. Aftcr rccciving thc. grant, she carried <;n a search in the larnd oflice at Mityana Land Officc to establish the assets belonging to her late father's cstate. 'Ihe scarch revealcd that part of a 5 l0 15 )o 25 RULIIIG OF TI{E COURT \ / l BE'fWEEN RWABUGANDA GODFREY: : : : : : : : : : : : : : : : : : : : :: : : : : :I RESPONDENT l 5 her late father'S land had becn irrcgularly rcgistered in the names of Rwabuganda Godfrey, hereinafter referred to as the respondent. On 12rh November 2004, the applicant filed a claim with Kiboga District Land Tribunal No. KBG/DLT/23 l2OO4 against both the respondent and the Registrar of Titles. She alleged conversion and trespass against the respondent. She also alleged wrongful and/or fraudulent entries on the Registcr of Titles, for which she sought cancellation for the entries and the rectification of the Register. On the same day of lodging the claim, she took out summons against both the respondent and the Registrar ofTitles and subsequently gave them to a duly registered process server to effect service. The process server successfully served the Registrar of Titles. He was however unable to serve the respondent because he failed to locate him at his Iast known residence. The process server left a copy of the summons with the LC 1 Chairperson of the village who acknowledged receipt of the same. On 27th December 2004, the process seryer deponed an Affidavit of service of summons in respect of KBG/DLT /2312OO4. On 2"d February 2005, when the matter came up for hearing before the Kiboga District Land Tribunal, both the respondent and the Registrar of Titles were absent. The Tribunal adjourned the hearing and directed: (a) the applicant's advocate to verify with the LC I Chairperson whether the respondent was traced for service of summons to file a defence; (b) that fresh service be made on the Registrar of Titles as well; (c) that a hearing date be fixed; and (d) that the summons to file a defence should be served and returned to the tribunal by 16tt February 2005. The applicant's case carne up lor hearing again on 22".i February 2OO5 before the Kiboga District Land Tribunal but it was adjourned again to 25th May 2005. On 25th May 2005, neither party appeared. The Tribunal adjourned the case sine die and directed that the parties were to fix a hearing date when they appeared at the Tribunal Registry. 10 15 20 25 2 l0 5 On 2l"t June 2OO5, the applicant filed an application for substituted service. The Tribunal granted thr: application and directed the applicant to extract summons to be published in the newspaper within 10 days from the date of delivery of the Ruling. The case was adjourned to 14th September 2005. On 24th August 2005, an advertisement appeared in the New Vision newspaper titled "Summons/Hearing Notice." It was addressed to the respondent and informed him that the Tribunal had received an application from the applicant in respect of land located in Nakatakuli, Butemba Kiboga District. The "Summons/Hearing Notice" also directed him to attend the hearing of the matter on 14th September 2005. On 14th September 2005, there was no hearing because the respondent and the Registrar of Titles did not turn up. The Record further shows that on that same day, the Tribunal did not constitute and the hearing of the case was adjourned to 28th September 2005. On 28tt September 2005, the Tribunal did not sit because it was constituted past 5 p.m. As a result the hearing was adjourned to 26th October 20O5. The Record does not show whether the Tribunal sat on the 26th October 2005. On 1Sth November 2005, the applicant filed an application for an interlocutory Judgment in KBG/DLT /23 /2OO4. The Tribunal entered an interlocutory Judgment against the respondent and the Registrar of Titles and allowed the applicant to proceed ex parte. On 24rh May 2006, the Tribunal delivered its Judgment in KBC/DLT/23/2OO4 and found the applicant to be the rightful administratrix and a beneficiary ol the estate of the late Musa Muswangali, including the suit land. The Tribunal also found that it did not have powers to cancel all entries and rectily the record. So the Tribunal referred the matter to the High Court, in accordance with 10 15 20 30 3 ,r- 5 Section 31(d) of'the Land (Amendrnent) Act 2005 (now Section 76(3) of the Land Act) for the necessary consequential orders. On 2O'h October 2006, the applicant also filed High Court Misc. Cause No. 44 of 2006 for consequential orders before the High Court, Kampala. On the 1 lrrl July 2QO7, t}le respondent filed Misc. Application No 335 of 2OO7 for extension of time within which to appeal against the Judgment of thc Kiboga District Land Tribunal in the High Court at Nakawa. On 1'jir' September 2OO7, Opio-Aweri, J. (as he then was) granted the application for consequential orders. On 1lth December 2OO7, Magezi, J. granted the respondent's application lor extension of time and ordered the respondent to lodge an appeal within 3O days from the date of her Ruling. 10 15 20 25 4 30 However, the Record ofAppeal does not show whether the respondent ever lodged an appeal. It is also not clear from the Record whether Opio-Aweri, J. (as he then was) was aware of Misc. Application No. 335 of 2OO7 at the time of delivering his Ruling. However, Magezi, J. in her Ruling was aware of the Ruling of Opio-Aweri, J. but nevertheless went ahead to grant the respondent leave to appeal out of time. bn 14rn December 2OO7, the respondent filed Misc. Application No. 44 of 2OO7 in Kiboga Chief Magistrate's Court to set aside the ex parte Judgment in KBG/DLT /2312OO4, and the decree made thereunder. He also filed Misc. Application No. 45 of 2OO7 for an interim order for stay of execution of the orders of the Tribunal in KBG/ DLT /23 I 2OO4. Despite protests from the respondent's advocate, the Kiboga Grade I Magistrate heard both applications concurrently and dismissed both applications on 1Oth March 2008. On 28th October 2008, the respondent filed High Court Land Appeal No. 28 of 2008 in the High Court at Nakawa, against the decision of the Kiboga Grade 1 Magistrate refusing to set aside the ex parte Judgment of the Tribunal. I On 11th February 2014, the Court of Appeal eventually heard Civil Appeal No. 087 of 201O ex parte and delivered its Judgment in Civil Appeal No. 087 of2OlO on26th February 2014. The Court set aside the decision of the High Court refusing to set aside the Judgment of the Kiboga Grade I Magistrate. On 6th March 2014, the applicant filed Misc. Application No.79 of 2OL4 in the Court of Appeal to have Civil Appeal No. 087 of 2O10 reheard interparty. The Court of Appeal dismissed the application on 7'h April 20t4. Dissatislied with the Judgment of the Court of Appeal in Civil Appeal No. 087 of 2010 the applicant filed a Notice of Appeal on 1O'h March 2014. The applicant also filed Misc. Application No. 89 of 2014 in the Court of Appeal the next day on ll'h March 2014, for leave to appeal to the Supreme Court. The Court of Appeal dismissed her application on grounds that the issues raised in the application did not raise points of law of considerable public or general importance. She subsequently filed a Memorandum of Appeal in this Court on 22"d May 2OI4. On 16th February 2015, the applicant filed this application for leave to appeal against the decision of the Court of Appeal in Civil Appeal No. 087 of 2010. Her application is based on the grounds and supporting Affidavits which are reproduced and referred to later in this Ruling. The applicant was represented by Jonathan Abaine, while Yesse Mugenyi represented the respondent. Both parties made oral submissions. 5 10 15 20 25 30 On 22"d Octobet 20O9, the High Court dismissed the appeal and upheld the Judgment of thc Kiboga Grade I Magistrate. A year later, (on 29tt October 2O1O) the respondent filed a second appeal, Civil Appeal No. O87 of 20 1O in the Court of Appeal. From the Record of proceedings ofthe Court ofAppeal, the appeal was adjourned several times due to non appearance by the applicant's Advocate. 5 5 Counsel submitted that thc Court of Appeal relied on the decision of this Court in GeoJfreg Gatete &, anor a. Wlllam Kgobe, Supreme Court Ctutl Appeal No. O7 of 2OO5. Counsel contended that the law on substituted service has never changed, that it was still good law and furthermore that it is still on our Statute Books. Counsel further contended that the appeal was an opportunity for this Court to review its decision in futete (supra) and set the record straight on the issue of substituted service. Counsel also submitted that the issue of substituted service had a bearing not only on the applicant but on other Court users as well. Without prejudice to his submission, counsel for the applicant further contended that the decision of Gstete was distinguishable from the present case since the Court in Gatete was dealing with service on partners, which was not the case in the intended appeal. Regarding the justice of the case, counsel for the applicant contended that there were so many legal processes that took place after the Judgment by the Tribunal and the High Court. In counsel's view, a reversal of all these processes as ordered by the Court ofAppeal would cause a lot of hardship and injustice to the applicant. Relying on the decision of this Court in Farook Azlz (Admlnlstrator of Estate of Salma Kabaslngo) u. Abd.alla Abdu Makuru, Supreme Court Clull Appeal No. 04 of 2OO2, counsel urged this Court to grant the application and hear the applicant's appeal to enable the Court to look 10 15 20 6 30 Applicant's Submissions Counsel for the applicant contended that the intended appeal raises a question of great public importance that warrants consideration of this Court. The question of great public importance, according to counsel was whether substituted service was not effective service as the Court of Appeal held in its decision from which the intended appeal arises from. Respondent's Submission s Counsel for the respondent refuted the applicant's submissions. He contended that the position of the Supreme Court regarding third appeals was reflected in the case of Farook Azlz (supra). Furthermore, he contended that if the Court was to grant leave, it was the duty of the Court to ensure that justice was done to all parties. Counsel for the respondent also contended that when the applicant sought for a Certificate of public importance at the Court of Appeal, the Court had ample time and made a very exhaustive ruling and found that there was no question of puhlic importance on which they could grant the Certificate. On the issue of substituted service, counsel for the respondent refuted the applicant's contentions and submitted that if the applicant's advocate had addressed himself properly to the Court of Appeal Judgment, he would have discovered that the Court of Appeal never made any pronouncement that substituted service was no longer effective service. Rather, he contended that the Ruling of the Court was that when it reappraised the evidence, it discovpred the summons had actually expired. Furthermore, counsel submitted that looking at the Record of Appeal, the issue was not about substituted service since what was advertised in the newspaper was not a summons to file a defence. Counsel also contended that the gist of the appeal was that court process was never served on the respondent. That upon investigation by the Court ofAppeal, the Court found that no court process had been served on the respondent and that it consequently held that subsequent proceedings were a nullity. With regard to justice of the case, counsel for the respondent contended that the right to be heard the applicant was clamoring for, 7 10 15 20 25 30 at the justice of 'the case. Counsel prayed for Court to grant the applicant leave to appeal. I was the same right that was denied to the respondent in the lower Court. In rejoinder, counsel for the applicant reiterated his submissions and further contended that the issue of substituted service was an issue which was still in controversy in the lower Courts and therefore warranted consideration of this Court in order to provide guidance on the matter. He further contended that the lower Courts were in a dilemma on whether or not to follow Geoffreg Gatete & anor a. Wtlltam Kgobe, Supreme Court Ctvll Appeal No. 07 of 2OOS with some following it and others declining to follow it. Counsel further submitted that the question of the effectiveness of substituted service was not addressed by the Court of Appeal. This matter in counsel's view was exacerbated by the fact that the applicant was not heard during the hearing of the appeal. This, in counsel's view, further warranted this Court to look at the justice of the case. Counsel reiterated his prayer that leave be granted to the applicant to lile her appeal in this Court. Consideration of the Application. We will now proceed to the merits of the application. We have carefully perused the record of the application and the submissions of both parties. We have also read the Ruling of the Court of Appeal declining to grant the leave. In our view, the main question for determination is whether or not the applicant has or has not raised such matters as are contemplated by Section 6 (21 of the Judicature Act or Rule 39(1) (b) of the Judlcqdtre (Supreme Court) Rztes upon which we can say that we want justice to be done in the case from which her application emanates. This application was brought under Section 6(2) of the Judicature Act and Rule 39(1) (b) of the "Izdic@ture (Supreme Court) Rules. Section 6(21 of the Judicature Act provides as follows: 5 10 15 20 25 8 30 "Where an appeal ema,notes Jrom a Jud.gment or Order of a chief maglstrate or a magistrate grade I in the exercise of his or her original 1'urtsdtction, but not lnclud.ing an lnterlocutory matter, a pd.rtg aggrteued tnag lodge a third appeal to the Supreme Court on the certificate of the Court of Appeal that the appeal concerns a matter of law of great public or general importance, or lf the Supreme Court conslders, ln lts overall dutg to see that justlce 7s d.one, that the appeal should. be heard.." On the other hand, Rule 39(1) (b) of the Jud,lco'ture (Supreme Court) Rules provides a remedy lor the applicant whose application for a Certificate has been refused by the Court of Appeal in the following terms: (If the Court of Appeal refases to grant a certlficate as referred. to ln paragraph (a) of thts sub tr.tle, an appllcatlon mag be lodged bg notice of motion in the court wlthin fourteen dags afier the refusal to grant the cerAtJlcate bg the Court ol Appeal for leaue to appeal to the court on the ground that the intended appedl raises one or more matters of public or general importance which would be proper for the court to reuiew in ord.er to see that justlce ls done." It suffices to note at this stage that in its determination of an application for a certificate to lodge a third appeal to this Court, the Court of Appeal is guided by only two factors namely: (i) whether the intended appeal to the Supreme Court concerns a matter of law of great Public importance and (ii) whether the intended appeal raises a matter of law of general importance. However, this Court is not as restricted as the Court of Appeal to only these two instances. Under Section 6 (21 of the Judicature Act, this Court can also grant leave, if in its overall duty to see that justice is done, it is of the view that the appeal should be heard. This was emphasized by this Court in the case of Namuddu Chrlstlne u. Ugandd., Supreme CourA Ctutl Appllcatton No. O3 of 7999 where Wambuzi, CJ observed as follows: 10 20 25 30 5 15 I "Under subsection (5) of 5.6, thls Court will grant leate lf the court, ln its overall dutg to see thatjustice ls done, considers that the appedl should be heard- In other utords, thls cour-t, ls not bound bg the restrictions placed on the Court of Appeal, uthen thqt court ls considerlng an appllcatlonfor a certtJTcate. The Court ofAppeal grants a cert{7cate where it ts sctls.,fled: (a) that the matter rotses a question or questions of law of great publtc tmport@nce; or (b) that the matter rcises a question or questlons of law of general lmportance. On the other hand, this Court uill grant leaae tf tt consid.ers that in order to do 1'ustice, the appeal should. be heard.. Angthlng releaant to d.olng Justlce wtll be consld,ered. includlng questions of law of general or publlc lmportance. It appears to us that tn declding uthether or not to grant leaae we d,re not restricted to questions of law llke the Coura of Appeal." Similarly, in Farook Aziz (supra), Odoki,CJ also observed as follows with regard to section 7 (21 of the then Judicature Statute [now section 6(21 of the Judicature Act already cited abovel. "The purpose of this proalslon ls to limit the rtght to lod.ge a thtrd. appeal to onlg cases uhere questlons of great publlc or general importance whlch have far reachlng consequences on the socletg and the general deaelopment ofthe lau are irutolued.. It ls not sufJicient that the grounds oJ obJectlon ralse questlons of law, or that the partles have consented to the granttng of certtficate to the appellant to leaue to appeal. The appellant must stqte the matter of great public or general Tmportance." Turning to the present application, the Court of Appeal, while dismissing the applicant's praycr for a Certificate to lodge a third appeal to this Court, hcld as follows: "... Ln order for this Court to grant the Certtfi.cate applled for, the appllcant has to show to thls CourA the points of law of conslderable public or general importance and of some noaeltg. The applicant ln the lnstant case before us has not demonstrated thot the lnstant case before us meets the regulred standard and ls o. proper case that utarrants the 10 5 10 15 25 30 40 I 5 grant of d Cer-tiJicate that the appeal concerns a question of great public or general lmporaance. The appllcation is theretore dismissed wlth costs." The applicant based her application to this Court on the following six grounds: fi) In order to d,o Justlce, the qppeal ought to be heard. fiq There are questlons o;f great public and general importance thqt utarrant o decislon of this Honourable Court in relation to final ansu)ers to questlons as to whether substltuted sel-r' lce is not an effectlve settice as per the ntles ln Order V Rule 78 of the Clvll Procedure Rules. (iii) That the polnts of law on substltuted. seruice raised dt the lower Court once not resolved bg this honourable Court utould. haae a slgnlficant bearlng on the publtc lnterest. (vI) It utould be fatr a^d ln the lnterest of Justtce lf Cour-t, gronted thls appllcatlon. We shall proceed to consider ground (v) of the application first. Under this ground, the applicant contends that she is seeking leave to file an appeal because she intends to have final answers on whether an appellate Court hearing an appeal originating from an application to set aside an ex parte Judgment has powers to grant orders of ownership of land in such an appeal. Having found that Court process was not served on the respondent, the Court of Appeal set asidc the Judgment of the High Court which had upheld the Judgment of thc Grade I Magistrate's Court at Kiboga. 15 30 35 11 (ia) That the applicant filed. an application for leave to appeal agalnst the judgment but it utas denled bg the Court oJ Appeal. (a) That the appllcant lntends to haue final ansuters on questlons as to whether an appellate Court has powers to grant orders oJ outnershlp of land arlslng from an appllcatlon to set aslde an ex parte Judgment. 10 20 25 5 The Grade I Magistrate's Judgment in turn had upheld the ex parte Judgment of the Kiboga District Land Tribunal. The Court of Appeal also made the following orders in its ex parte Judgment. ilt) The Commissioner for Land Registratlon ls herebg ordered to cancel the respondent's name on LIIR Volume 645 Folio 9 Slngo Block 7a3 Plot 3 and relnst@te thereon the name of the appellant. iu) The respondent is herebg ord,ered. to uacate the suit land descrlbed ln paragraph 3 aboue lmmed.latelg, and to hqnd ooer uaco'nt possession to the appellant. a) The respondent ls herebg ordered. to pag costs ln thls dppedl, ln the Hlgh Court, ln the Maglstrate's Court and 7n the Land. Trlhuno.l. It should be noted that the Court ofAppeal heard the appeal ex parte. The appeal arose out of the decision of the High Court, which upheld the Judgment of the Kiboga Grade 1 Magistrate refusing to set aside the ex parte Judgment of the Kiboga District Land Tribunal. The application before the Kiboga Grade 1 Magistrate was about setting aside the ex parte Judgment of the Kiboga District Land Tribunal on grounds that the respondent, (Rwabuganda) had not been properly served. It was not to hear the land dispute on its merits. It therefore follows that the Court of Appeal did not and could not have considered the merits of the original land dispute between the parties, since none of the parties canvassed any matters relating to the issue of ownership of the suit property. Rather, the Court of Appeal only ana)yzed the evidence of service of Court process, where it found that 10 20 30 r2 il The Judgment of the Htgh Court ls herebg set aslde and substltuted, uttth thls Judgment dismissing the suit for non compllance uith Order 5 Rule (2) of the Clull Procedure Rutes. ii) The Consequentlql orders made bg the Hlgh Court on 2@h September are herebg set aslde. 15 1 the respondent had not been properly served. Hence, it reversed the Judgment of the High Court and set aside the ex parte Judgment of the Kiboga District Land Tribunal. The purpose of setting aside an ex parte Judgment is to have the matter to be heard afresh inter parties. This means that the defendant (the respondent) would file his defence so that the original land suit from where the ex parte Judgment arose is determined interparty. It therefore follows that a Court setting aside the ex parte Judgment cannot in the same Judgment go ahead to determine and dispose of the same case on its merits, ex parte. In the circumstances, we are o[ the view that the applicant's 3*r appeal raises an issue of great public importance in as far as it will give this Court an opportunity to correct this error made by the Court of Appeal in exceeding the jurisdiction in the appeal it was seized with. If this error is not corrected, the decision of the Court of Appeal will remain part of the law of Uganda and binding on the lower Courts. We now turn to grounds (i) and (vi) of the application. These two grounds relate to the need to hear the applicant's intended 3.d appeal in the interests of justice. Under this ground we shall consider briefly (i) the holding of the Court of Appeal that the Tribunal erred in issuing a hearing notice and not fresh summons when the application of substituted service was granted; and (ii) 3..1 party interests on the suit land. We note from the onset that this application is not dealing with the merits of the intended third appeal and therefore we shall not go into analyzing whether fresh summons were properly issued or not or whether what was issued were summons or a hearing notice. Regarding the issue of what was issued after the application for substituted service, we note that the Tribunal issued a "Summons/Hearing Notice". This summons/hearing notice was 5 10 15 20 30 5 rWhere the court makes an order for substltuted. sentlce, lt shall fix such tlme for the appearance of the defendant as the case mag require," It is clear from the above that upon making an order for substituted service, the Court is required to fix the time for the appearance of the defendant. It is after such an appearance that the defendant can make any prayers, including seeking an adjournment to enable him or her to prepare his or her defence. It was therefore erroneous for the Court of Appeal to hold that the Tribunal erred in issuing a hearing notice. We are therefore of the view that we need to hear the applicant's third appeal in order to correct this error made by the Court of Appeal, since this decision will remain binding on the lower Courts. Secondly, we are also of the view that it was not right for the Court of Appeal to hold the applicant liable for whatever mistakes it believed had been made in the nature of the summons, that were issued by the Tribunal officials. Although the "Summons/Hearing Notice" were issued after her application for substituted service, the summons trriginated from the Land Tribunal. Therefore, even if it was an error, it was not the applicant's fault. We note that the respondent, in his Aftidavit in support of his application to set aside the Judgment of the Tribunal which he deponed on 13th December 2OO7, did not show how or when he came to know about the suit in the Tribunal. This is evident in paragraph 3 thereof where he deponed as follows: "That I dlscoaered. recentlg that the respond.ent had filed a sult a.go,lnst me ln the Klboga Land TH,bunol dnd obtalned Judgment and further that she has caused the cancellatlon 10 20 25 74 tiirected to the rdspondent to appear on 14th September 2005 at the Tribunal Chamber at 9 o'clock. This, in our view, was in accordance with the provisions of Order 5 rule 18 (3) of the Civil Procedure Rules S.l. 71-1 which provides as follows: 15 30 5 of mg name from mg land comprl.sed. in Mailo Reglster Slngo Block 783 Plot 3" Be that as it may, it is clear from the record that the respondent became aware of the matter, however belatedly. As a result, he was able to file all these applications right from Kiboga Grade 1 Magistrates Court, the High Court and the Court of Appeal. Regarding 3*l party interests in the suit land, according to the supporting affidavits of the applicant and one Katungulu, there are 3.d party interests on the suit land. We note that these 3.d parties were directly affected by the orders of the Court of Appeal, yet they were never parties to the appeal or to the litigation processes in the Courts below. These 3.,1 party interests arose as a result of transactions on parts of the contested land subsequent to the grant of the consequential orders by the High Court, which culminated into the applicant being registered as the rightful owner. In paragraphs 4 and 5 of her Affidavit in Support of this application, the applicant deponed as follows: K4. That I sold part oJthe suit land to Fred. Muka.lazl who ln turn sold lt to Katungulu John Matouu and deueloped lt lnto a farmland utlth d. permdnent butldtng... 5. That the sale of the sult lo,nd to other persons was done laufullg when the same had been ghrcn to me vlde consequentlal orders of the Hlgh Court." Similarly, Katungulu John Matovu in paragraphs 2-10 of his Affidavit in Support of the application, deponed as follows: (2. That I am the reglstered proprletor of land located at Singo Block 783 plot 7O at Nakato.kuli estate... 3. That the land origlnallg formed paft of a blgger plot located at Singo Block 783 plot 3 at No,kotakull estate belongtng to the applicant... 10 15 25 30 15 20 4. That I bought land, from Mukalazl Fred. utho had. orlgtnallg bought ltfrom Bltamlst Namuddu, th,e appllcant.., 5. That afier completing the pagments to Mukalazl Fred, he lntroduced me to the applicant uho slgned, mutatlon and. transfer forms in mg fauour,.. 6. That I carrled out search in land ofJice, Mltgana and. confitzned thot the land belonged to the appllcant. In its consideration of the appeal, the Court of Appeal did not address itself to the issue of other known or possible 3..1 parties and if they are 5 10 15 25 30 16 , a. That ... bg the decislon the Court, of Appeal und,er Clvll Appeal No. O87 of 2O1O ... it was ord.ered that the patfalculars relatlng to the appllcant's name be cancelled. fromthe cert{icate oftitle ofthe sult lo,nd and lnstead the respondent be registered. whtch ls agalnst mg outnershlp lnterest as a bonaflde purchaser for oalue wlthout dng encumbr@nce bg the respondent. 9. That I uas dlsturbed bg the respondent trytng to eulct me from mg propertg as a bonatl.de purchaser and due to that process, I jTled mg applicatlon ln the Cour-t, of Appeal uide Court of Appeal Misc. Applicdtlon No. 774 of 2014 which arcs dismlssed. 70. That I haue been 7n phgsical possess{on of the land slnce 2OO8, afi,er haning constntcted q. resldentlal house and a fartn thereon..." The deponents attachcd on their aflidavits the various sale agreements and Certificates of Title in support of their avcrments. This evidence was not rebutted by the respondent in his reply or by his advocate during his submissions. Section 181 of the Registration of Titles Act Cap 23O, Laws of Uganda protects a purchaser of land for value without notice of another's claim to the property and who is without actual or constructive notice of any defects, claims, or equities against the seller's title. 20 5 found to be bonafide purchasers for value, what their redress would be in the event of making the orders that it did. We are therefore of the view that in order to do justice to all parties, it would require us to hear the applicant's intended third appeal in this Court. We have also had an opportunity to peruse the ruling of the Court of Appeal in the application referred to in paragraph 9 of Katungulu's Affidavit. The record does not show when it was filed in the Court of Appeal. Be that as it may, we note that he raised the issue of being a bonafide purchaser for value. However, the Court of Appeal did not address this issue in its Ruling. Rather, the Court dismissed the application, not on its merits but on a technicality that Katungulu was neither a party to Civil Appeal No. 087 of 201O nor to the Tribunal matter from which this appeal emanated. The Court of Appeal further held that it had already disposed of Civil Appeal No. 087 of 2010 and therefore it could not revisit a decision in a matter that it had finally and conclusively determined. We further note lrom the record that the applicant was an administratrix of the Estate of her later father Muswangali Musa. It therefore follows that in filing her claim before the Kiboga District Land Tribunal, she was acting in that capacity, as opposed to her individual capacity. As an administratrix, she cannot be faulted for having acted vigilantly to protect the interest of the estate, including engaging in litigation. We cannot also rule out the possibility that there are other beneficiaries to the estate of the late Muswangali Musa. Thus, just like bonalide purchasers for value without notice, such beneficiaries were affected by the contested orders of the Court of Appeal and stand to be condemned without being heard. We shall now proceed to consider grounds (ii) and (iii) of the application. The essence of these two grounds is whether substituted service is effective service and whether the obiter dicta of the Court of Appeal on the issue of substituted service has created more uncertaint5r. U 10 15 20 25 30 The Court of Appeal by way of obiter made some observations at page ' 11 of its Judgment on substituted service as follows: <Betore ute take leaae of thls m,o'tter, ute uould. llke to clarifg some lmportant issues that utere ralsed, in this appeal but dtd s not form the basis of our declslon, It wos held bg the Maglstrate dnd the learned, Jud.ge that substituted. senice uas good and, effectiue senice. Wlth respect we do not dgree wheneaer Court d.irects that a pdrtg be serued ulth summons bg way of substituted, serulce, that senldce ls 'd.eemed.' to be 10 effecthn, tf the par-tg does not ff.le a d.efence. It remains effectlve qs long cs it {s not chollenged. The rnoment a partg challenges the seralce and contend.s that lnd.eed. he was not . atDd.re, then the presumptlon of servlce ls rebulted.. A parAg b a sult cannot be denled his constitutlonal rtght to be heard 1s onlg on dccount that summons arcs effected. upon hlm bg wag of substltuted. serulce. Thls utas the gtst of the holdtng of the Supreme Court declslon ln the case of Geoffreg Gatete & Anor a. Wllllo'm Kyobe, Supreme Court Clvll Appeal No. 07 of 2OOS (unreported)." 20 The Court of Appeal went on to conclude as follows: 30 35 "In thls case therefore although there was 'good. senice', it wcs not elfectiae @nd the appell@nt's application to set asid.e ex parte decree and Judgment ought to have been allowed. We also fTnd that ln thls partlcular case although the Land Tribunal mqde an order for issucnce of Jresh summons, what nras lssued and subsequentlg aduertlsed. utere not summons but a hearlng notice. Accordinglg ue utould stlll haae held tha,t the substituted service in thts case u)as not good. serulce and. was also not effectlve." The above holding of the Court of Appeal was the major basis of the applicant's contention in this application as far as the issue of substituted service was concerned. The Court of Appeal relied on the decision of this Court in Geoffreg Gatete & Anor u. Wtlllam Kgobe, Suprerrl.e Court Ctttll Appeal No. 07 of 2OO5 (unreported) where Mulenga JSC held as follows: 'The CourA mag order substltuted sen lce bg utag of publlshtng the summons ln the press. While the publlcatlon utlll constltute service, it u;ill not prod.uce the deslred effect I tt 18 does not coie to the defend.ant's notice. In mg consld.ered uleut, these are examples of seruices enuisaged tn 0.36 r.7 7 as 'serul.ce (that) was n.ot effectlae, Although the seralce on the agent or the substltuted serolce would. be 'd.eemed. good. servlce' on the defendant entttltng the plaintiff to a decree under 0.36 r.3, i/ tt is shown that the seruice d.td. not lead to the defend.ant becoming au)are oJ the sttmmotts, the seralce is (not effectiue' wlthln the meq.ning oJ 0.36 r.7 7. (See Pirbhat La.lJt u. Hassanali, (1962) EA 306). The word 'deemed' ls commonlg used in leglslatlon to create legal or statutory fiction. It ls used Jor the purpose oJ assumlng the exlstence ofafactthatln realTtg does not exlst. In St. Aubgn (LM) us. A.G. (1951) 2 All ER 473, at p. 498 Lord Radcltffe d.escrlbes the aarlous purposes for uhich the word. ls used. where, he sags- 'The uord. 'd,eemed.'is used a great deal ln rnodern leglslatlon. Sometimes lt ls used. to lmpose for the purpose of d stdtute an oralflclal constntctlon of a word or phrase that would not otherutlse prevall, Sornnetllanes lt is used to put begond doubt a particular constntctlon that mlght otherwlse be uncerAaln. Sometlmes it is used to glve @ comprehensiue descrlptlon th'ot lncludes what ls obalous, urhat ls uncertaln and uhat ls, 7n the ordlnary sense, imposslble,' In mg ulew, the expression'serulce that ls deemed. to be good. serltlce' ls so broad thot it lncludes service that mlght not produce the lntended, result, whlchtherefore is not effectlue." This Court's holding in Gatete (supra) appears to be at variance with the provisions of Order 5 rule 18 of the Civil Procedure Rules, S.l. 71- 1, which provides for substituted service as follows: "(7) Where the court is sctlgEed that for ang reason the sum,mons cannot be seraed ln the ord.lnary wag, the court shdll order the szrmmons to be seraed. bg afflxtng a copg of tt tn some consplcuous place 7n the courthouse, and also upon some consplcuous part, of the house, lf ang, ln whlch the d.efend.ant ls known to haue last reslded or carrled on buslness or personallg worked. for galn, or ln such other manner as the court thtnks flt. 10 20 25 35 5 15 30 19 (2) Substituted. settlc,ce under an order of the court, sho,ll be as etJectual as if tt hc,d. been tnad.e on the defendant personallg, (3) Where the court mo,kes an ord,er for substltuted sentlce, tt shall Jlx such time for the appearance of the defend,ant as the ca.se mag requlre.D It therefore follows that while Order 5 rule 18(2) of the Civil Procedure Rules makes substituted service under an order of Court as effective as service on the party personally, the decision of this Court in Gatete says otherwise. The Court of Appeal based its obiter on the decision of this Court in Gatete where this Court cast doubt on the elfectiveness of substituted service as a form of service of court process. We are aware that obiter remarks of the Court are not binding. However, these obiter observations of the Court of Appeal represent the view of the Court of Appeal on the issue of substituted service, which is backed up by our decision in futete. The applicant's intended third appeal will therefore give an opportunity to this Court to revisit its decision in ktete regarding the issue of substituted service vis-ir-vis the provisions of Order 5 rule 18 of the Civil Procedure Rules. We therefore agree with counsel for the applicant that these questions raise issues of great public importance with regard to the issue of substituted service, which will only be resolved if we allowed the 20 10 15 20 30 In his submissions, counsel for the applicant contended that the lower Courts are at crossroads on what the position is on the issue of substituted service. He posed the question whether the current 2s position is that service is effective once it is made the way it is directed to be made by the Court and as provided for under Order 5 rule 18 of the Civil Procedure Rules or whether it is only effective when the intended recipient gets to know about the service, by whatever mode as ordered by Court? applicant to lodg€ her intended third appeal and argue it on its merits, to enable the Court to resolve them. Giving the applicant leave to appeai to this Court would give this Court an opportunity to clarify its position on Order 5 rule 18 in the Gatete case. We shall therefore have to entertain the applicant's intended third appeal and consider this issue of substituted service comprehensively in order to clarify this gray area of the law. In conclusion, we note that issues of land justice are pertinent in our society. It is therefore important that we allow the applicant to lodge her intended third appeal to enable us to determine whether there was any judicial error owing to procedural irregularities or otherwise and the consequences thereof, not only on the parties to the proceedings in the lower Courts, but also to 3.d parties that had subsequently derived interests in the suit land. As we already noted, section 6(21 ol the Judicature Act grants us power to hear a third appeal if the Court considers, in its overall duty to see that justice is done, that the appeal should be heard. However the applicant has a duty to demonstrate that she deserves to be heard. We are satisfied that the applicant's intended appeal raises important issues of law of public importance as already pointed out in this Ruling. We are also satisfied that in order to do justice to all the parties as well as other 3.d parties with vested interest in the suit property, leave should be granted for this third appcal to be lodged in this Court and to be heard on its merits. We accordingly allow the application and make the following orders: (i) Leave is hereby granted to the applicant to file her third appeal in this Court, in accordance with the Rules of this Court. (ii) Costs will abide the determination of the appeal. I 5 10 15 25 21, i Dated at Kampala this l6k day of .j,^-^B s JUSTICE CHIEF JUS ro JUSTICE J HAM TUMWESIGYE, JUSTICE OF THE SUPREME COURT. 20t7. rt 15 20 JUSTICE STELLA ARACH.AMOKO, JUSTICE OF THE SUPREME COURT. :a\_n- q- t5 JUST CE ELDAD MWANGUSYA, JUSTICE OF THE SUPREME COURT. \ M. KATUREEBE, JUSTICE DR. ESTHER KISAAKYE, JUSTICE OF THE SUPREME COURT. 22