Byaruhanga v Fr. Ruvugwaho (Civil Appeal No. 228 of 2014)

The full judgment

Read the complete, verbatim text of this judgment.

Holding

The Court of Appeal held that, although the application was wrongly cited under Rule 40 of the Court of Appeal Rules rather than Rule 39 of the Supreme Court Rules, this defect did not affect the merits. Applying the principles for certifying matters of general public importance, the Court found the construction of Section 272 of the Succession Act — whether a single executor jointly appointed with others may convey estate property alone — was a point of law of general importance with consequences transcending the parties, meriting Supreme Court reconsideration. Leave was granted. The appeal already lodged in the Supreme Court without prior leave was validated, since a document lodged without leave stands duly lodged once leave is granted.

Facts

In Civil Appeal No. 113 of 2011 between the same parties, the Court of Appeal had considered the estate of Edward Wilson Mukasa Kakooza, for which four executors, including Edward Kalusi, obtained a grant of probate. Although probate was granted to all four, only Edward Kalusi registered his name on the certificate of title and subsequently sold part of the suit land to the 1st respondent, who resold it to the 2nd respondent. The Court of Appeal held that Kalusi's actions were permissible under Section 272 of the Succession Act, and that, absent objection from co-executors, the buyer obtained good title. Dissatisfied, the applicant filed a notice of appeal and sought leave to lodge a third appeal to the Supreme Court, contending the Court misconstrued Section 272 in a manner that would encourage fraud in estate administration. The applicant had also, out of vigilance, already lodged an appeal in the Supreme Court without leave and sought its validation.

Issues

1. Whether the application for leave to lodge a third appeal was properly brought under Rule 40 of the Court of Appeal Rules.
2. Whether the intended appeal raises a question of law of great public or general importance warranting leave to appeal to the Supreme Court.
3. Whether the applicant's prior filing of the appeal in the Supreme Court without leave is fatal.

Orders

• Application allowed.
• Leave granted to the Applicant to lodge and proceed with an appeal in the Supreme Court against the Court of Appeal's judgment in Civil Appeal No. 113 of 2011.
• Court certifies that the intended appeal raises a question of law of general importance regarding the interpretation of Section 272 of the Succession Act.
• The applicant's third appeal lodged in the Supreme Court without prior leave is validated.
• No order as to costs.

Key headnotes

Legislation cited (6)

• Judicature Act s.6(2)
• Judicature (Court of Appeal) Rules r.40
• Judicature (Court of Appeal) Rules r.43
• Judicature (Supreme Court) Rules r.39
• Succession Act s.272
• Constitution of Uganda art.163(4)(b)

Cases cited (7)

• Sophatia Beithi and Others v Nangobi Jane and 2 Others (Civil Application No. 80 of 2014)
• Bitamisi Namuddu v Rwabuganda Godfrey (Supreme Court Civil Application No. 4 of 2015)
• Rwabuhemba Tim Musinguzi v Harriet Kamakume (Civil Application No. 142 of 2009)
• Hermanus Phillippus Steyn vs Giovanni Gnecchi-Ruscone, Application No.4 of 2010 (Supreme Court of Kenya)
• Charles Lwanga Masengere v God Kabagambe and 2 Others (Civil Application No. 125 of 2009)
• John Paul Baingana v Uganda (Criminal Application No. 76 of 2016)
• Crane Finance Co. Ltd v Makerere Properties Ltd (Supreme Court Civil Appeal No. 1 of 2001)