Tumwesige Abraham v Jemima Kisoke (Civil Appeal 218 of 2016)

Court of Appeal · [2025] UGCA 212 · 2025 Appeal Allowed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Second appeal from a decision of the High Court exercising its appellate jurisdiction

Decision

Appeal allowed with costs to the appellant; the first appellate court's decision set aside

The full judgment

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Holding

On second appeal, the Court of Appeal held that the first appellate court erred. Because the original suit had been determined on preliminary objections without evidence, the High Court could not make findings of fact—on marriage, joint ownership, or contravention of Land Act s.39—that required evidence. The Land Act could not apply to a sale concluded before it came into force. The original suit was also res judicata, the dispute having been determined between the same parties by the Land Tribunal. Having found the suit wrongly dismissed on preliminary objections, the first appellate court should have remitted it for trial on the merits rather than grant eviction, refund and costs orders. The appeal was allowed with costs to the appellant.

Facts

The respondent claimed land at Busengerwa Village, Kirindi Parish, Busaru Sub-County, Bundibugyo District, which she said she had acquired with her husband, Stephen Kisoke. She sued the appellant and her husband, alleging the husband had unlawfully sold the family land to the appellant without her consent, and sought a declaration of trespass, an eviction order, a permanent injunction, general damages and costs. The trial magistrate struck out the suit for non-disclosure of a cause of action and as time-barred, some 13 years having lapsed. On appeal, the High Court reversed, found a cause of action, held the sale contravened Land Act s.39, ordered the appellant's eviction, ordered the husband to refund the 1998 purchase price with 8% interest, and awarded costs. The appellant brought this second appeal. The record showed the respondent had earlier litigated the matter before an LC court and the Bundibugyo District Land Tribunal (Civil Appeal No. 005/2005), which dismissed her appeal as brought against a wrong party and noted that the transaction was concluded on 17 April 1998, before the Land Act came into force on 2 July 1998.

Issues

Whether the first appellate court failed in its duty to apply the principles required of a first appellate court when reversing the trial magistrate.
Whether the first appellate court erred in making findings of fact on a suit that had been dismissed on preliminary objections without evidence being adduced.
Whether the orders for eviction, refund and costs made by the first appellate court were within the remedies available to it sitting in its appellate jurisdiction.

Orders

Appeal allowed with costs to the appellant.

Key headnotes

Civil Procedure — Second Appeals — Duty of the Second Appellate Court

On a second appeal from a decision of the High Court sitting in its appellate jurisdiction, the court does not re-evaluate the evidence but decides whether the first appellate court, in approaching its task, applied or failed to apply the principles required of it.

Civil Procedure — Preliminary Objections — Findings of Fact Without Evidence

Where a suit is determined on preliminary objections and no evidence has been adduced, an appellate court errs in law by making findings of fact that could only be established by evidence at trial.

Land & Property — Spousal Consent — Land Act s.39 — Temporal Application

A land transaction concluded before the Land Act came into force cannot be impugned for want of spousal consent under section 39, as a party could not have been required to consent under a law that did not yet exist.

Civil Procedure — Res Judicata — Fresh Suit Barred

A fresh suit is barred by res judicata where the subject matter has already been determined by a competent court between the same parties; the dissatisfied party's remedy lies in appeal, not in instituting a new suit.

Civil Procedure — Appellate Remedies — Remittal for Trial on Merits

A first appellate court that finds a suit was wrongly dismissed on preliminary objections should remit the file for trial on the merits, and errs by proceeding to grant substantive relief such as eviction and refund without the case being heard on its merits.

Legislation cited (4)

Civil Procedure Act s.72(1)
Judicature (Court of Appeal Rules) Directions Rule 32(2)
Land Act s.39
Judicature Act s.11

Cases cited (2)

Balamu Bwetegaine & Anor v Zephania Kadooba Kiiza (Civil Appeal No. 57 of 2009)
Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)

Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.