THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT FORT PORTAL
HCT-01-LD-MA-0038 OF 2013
BEFORE HIS LORDSHIP HON. MR. JUSTICE BATEMA N.D.A
This is an appeal arising from the ruling of Her Worship Agatonica Mbabazi, Chief Magistrate, sitting at Kasese.
The Appellant first sought for review of judgment and orders of His Worship Mr. Sserubuga Charles in C.A.10/2010. The application for review vide C.A 12/2012 went before His Worship Mr. Maruk Joshua, Chief Magistrate who dismissed it with costs. The appellant then filed M.A 28/2012 before Her Worship Agatonica for leave to appeal to High Court. She dismissed the application hence this appeal.
In her ruling the learned Chief Magistrate ruled that the applicant for review had failed to satisfy court that the decision of His Worship Maruk Joshua had occasioned an injustice.
That the allegation that there was new evidence discovered was not supported by attachment of the judgments of the LC Courts and judgment of the chief magistrates Court which the applicant wanted reviewed.
The learned Chief Magistrate concluded that there was no point of law involved in the matter. The main contention of the appellant is found in paragraph 6 of his affidavit in support and he states:
“6. That the dismissal of my application occasioned a substantial miscarriage of justice as I have been using the suit land I bought and even qualify to have acquired the suit land by adverse possession”.
The appellant believes his intended appeal to the High Court involves a substantial question of law and has high chances of success.
I have also looked at the reasoning in the ruling of His Worship Joshua Maruk stating why he dismissed the application for review. He said:
“.......A party cannot appeal and then seek review”. That only one option either review or appeal is allowed.
.........The limitation can also be discerned from the requirement that an application for review is lodged with a court that made the order or passed the decree.
An appellant court which only upholds or dismisses a judgment of a trial court does not fit into the definition of a court that made an order or passed a decree”.
I would agree with this reasoning. In the instant appeal there have been a multiple appeals i.e from LC.I, LC II, LC.III and then to the Chief Magistrate. New evidence of a purchase agreement would not be presented to the chief magistrate’s court handling the appeal. The decree was passed in the LC courts and that is where if possible, the review can be done. At the appellate stage the applicant would have applied to adduce additional evidence. At what stage would this be? During the hearing of the appeal. After losing the appeal, I doubt whether the option of review is open to the appellant.
However, I had chance to go through all the records of this matter and submissions before His worship Maruk. The question of the appellant acquiring the suit land by adverse possession was never relied upon at trial. Throughout the trial the appellant relied on a bogus sales agreement between him and Dorothy Katutu.
I call it bogus because the so-called witnesses to the agreement told the LC.II court that they never witnessed the transaction. One Mutagubya said he never attended the sale and did not see money exchange hands but he was convinced to sign for Kamacooko. Mr. Ruhweza was walking home when he met the appellant and Katutu the seller. They asked him to sign for them on their sale agreement and he did so. Another Jawadu Katasumbwa denied ever witnessing that agreement. When he was shown the same by the appellant he wondered where he got his name and signature from.
He wondered why the appellant had purchased land and a house without the LCs witnessing.
Again before the LC II court a witness AHMAD KHATIB is on record telling court that Kamacooko had approached him with a bribe of sh.300.000/= to have his signature on the agreement as his witness. The witness was never cross examined at all.
Chief Magistrate Serubuga Charles was right to uphold the judgments of LC II and LC III where the appellant sought to rely on that bogus or fake sales/purchase agreement as a bonafide purchaser without notice.
After dismissing that appeal there passed a period of 2 years. Then the applicant filed an application for review claiming that he had discovered a new agreement between the person who sold to him (Katutu) and her late boy friend Deo Kisembo. Yes, this was new evidence. But was it a discovery? No. he had not testified that it was the basis of his purchase.
He told all the lower courts of the LCI, LC II, and LC III that he verified ownership of the plot with Kasese Town Council. Not that the seller had told him anything or shown him any document showing that she had purchased the land and house from her late husband. So, even if this was the trial court, receiving the new evidence would not change the judgment/ruling in review. There was inordinate delay; and the appellant would not be introducing newly discovered evidence he had not foreseen. I am saying all this to show that the review, even if it were to be granted, had no high chances of success or at all.
I have looked at the question of long use of the land. It is both a fact and a question of law. As a fact this former tenant cannot claim long use as giving him title. A tenant remains a tenant.
We would count the long stay from the date he brought his secret sales/purchase agreement to the attention of the respondent. Did the respondent sit back? No. She sued him within 7 years.
Section 5 of the Limitation Act would come into play after 12 years and not seven years. Still the appellant’s claim would fail. He has no high chances of success before me, much as I have not heard the matter. At this stage, it is merely a duty of perusing the record and finding out if there was a question of law and weighing whether there are high chances of success on appeal. The answers to the appellant are all in the negative. He might be wasting his time and money.
He who goes for equity must go with clean hands. He is not having clean hands in his claims.
I dismiss the appeal with costs.
Right of appeal explained.