Aziz v Maruku (Civil Appeal 4 of 2002)

Supreme Court · [2003] UGSC 47 · 2003 Appeal Partly Allowed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Third appeal to the Supreme Court from a Court of Appeal decision in a land (kibanja) dispute originating in the Chief Magistrate's Court

Decision

Appeal allowed in part; Court of Appeal decision on the land dispute confirmed, costs order varied in the appellant's favour

The full judgment

Read the complete, verbatim text of this judgment.

Cited — treatment unverified cited in 9 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

On a third appeal in a kibanja dispute, the Supreme Court held that res judicata must not only be pleaded but proved; the appellant's failure to produce the Local Council Court proceedings establishing the parties and subject matter meant the plea could not succeed. The Court declined to disturb the concurrent findings of fact of the two lower courts that the respondent had established a better claim to the land. The appeal succeeded only on costs: because there was no cross-appeal against the High Court's order that each party bear its own costs, the Court of Appeal's award of costs to the respondent was erroneous and was set aside. The appeal was allowed in part.

Facts

The dispute concerned a kibanja at Butangwa village, Karambi sub-county, Kabarole District. The appellant administered the estate of Salima Kabasingo; the respondent was the son of Salima's late sister, Sabina Kabasinguzi, who died in 1991. The respondent claimed his mother had acquired the kibanja from Kikukule, an agent of the King of Toro, in 1940, lived there until her death, built a house, planted bananas and trees, paid busulu (rent), and buried relatives on the land. The respondent had lived on the land since childhood. Salima claimed she had acquired the kibanja from the same chief and had merely permitted her sister to settle there. The Chief Magistrate found for Salima and ordered the respondent to vacate. The High Court reversed, holding that long occupation of over 40 years extinguished the appellant's rights, and ordered removal of the caveat. The Court of Appeal dismissed the appellant's appeal, finding res judicata unproved and the respondent's claim better established.

Issues

Whether the Court of Appeal wrongly appraised the inferences of fact drawn by the trial court and failed to properly re-evaluate the evidence.
Whether the doctrine of res judicata applied so as to bar the respondent's claim to the disputed kibanja.
Whether the Court of Appeal erred in awarding costs against the appellant where there was no cross-appeal against the High Court's order that each party bear its own costs.

Orders

Appeal allowed in part.
Decision of the Court of Appeal confirmed save for the order for costs.
Order for costs against the appellant set aside and substituted with an order for costs in the Court of Appeal alone.
Appellant awarded costs in the Supreme Court and in the Court of Appeal.

Key headnotes

Civil Procedure — Res Judicata — Requirement to Plead and Prove

The plea of res judicata must not only be pleaded but also proved; oral evidence is insufficient and the proceedings or judgments of the earlier court must be produced to establish the parties, the subject matter and the prior decision.

Civil Procedure — Res Judicata — Nature of the Doctrine

Res judicata does not deprive the court of jurisdiction; the court declines to exercise jurisdiction to prevent relitigation where the same parties, suing in the same capacity, raise the same issue already adjudicated in previous proceedings.

Civil Procedure — Third Appeal — Certificate of Great Public or General Importance

A third appeal to the Supreme Court under section 7(2) of the Judicature Statute 1996 lies only where the matter is of great public or general importance, and the Court of Appeal must state the actual matter in its certificate; ordinary questions of law do not qualify.

Civil Procedure — Concurrent Findings of Fact — Appellate Interference

Where two lower courts have adequately re-evaluated the evidence and reached the same conclusion of fact, an appellate court will not disturb such concurrent findings.

Civil Procedure — Costs — Absence of Cross-Appeal

An appellate court cannot award costs to a respondent against the lower court's order that each party bear its own costs where the respondent has not cross-appealed against that costs order.

Legislation cited (1)

Judicature Statute 1996 s.7(2)

Cases cited (1)

Mandavia v Singh (1965) EA 118

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.