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Isaya & 2 Ors v Macekenyu [2019] UGSC 18

Supreme Court · 2019 Application Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Application to the Supreme Court under Rule 2(2) and 35(1) of the Judicature (Supreme Court Rules) Directions to review and set aside the Court's own final judgment in Civil Appeal No. 8 of 2014 (dissenting ruling only).
Decision
Application dismissed by the majority; Opio-Aweri JSC dissenting (he would have recalled the judgment in SCCA No. 8 of 2014, reinstated the Court of Appeal decision, and awarded the applicants costs). The majority's operative orders are not contained in the provided text.

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Holding

In this dissenting ruling, Opio-Aweri JSC addressed an application under Rule 2(2) of the Supreme Court Rules to review and set aside the Court's own final judgment in Civil Appeal No. 8 of 2014, a family land dispute. He would have held that the earlier judgment occasioned numerous miscarriages of justice — wrongly declaring the respondent both a lawful and bonafide occupant, decreeing more land than was claimed without a locus visit, and ordering a registered proprietor to transfer his title contrary to the Registration of Titles Act and Article 26 of the Constitution — and would have recalled it and reinstated the Court of Appeal decision. The majority disagreed and the application was dismissed.

Facts

The first applicant acquired registered land (Block 16, Plot 10, about 189.70 hectares) in 1975 from Yowasi Bamuloho and was entered on the title. Parts were occupied by relatives, including the respondent's father, Sylvester Ikagobya. The first applicant later sub-divided the land into Plots 14, 15 and 16, registering Plots 14 and 15 in the names of the second and third applicants, and in 2009 sought to give relatives titles to land they had inherited. A dispute arose when the respondent claimed ownership not only of the land he occupied but of additional land. The applicants sued for trespass and an injunction; the respondent counterclaimed that he had inherited and purchased land from bibanja holders. The High Court found the respondent a lawful and bonafide occupant; the Court of Appeal reversed; the Supreme Court (in SCCA No. 8 of 2014) allowed the respondent's appeal and restored the High Court orders. The applicants then sought review of that Supreme Court judgment, prompting the present ruling.

Issues

  1. Whether the Supreme Court's judgment and orders in Civil Appeal No. 8 of 2014 were contrary to law, null and void, and occasioned a miscarriage of justice warranting review under Rule 2(2) of the Supreme Court Rules.
  2. Whether the application was an abuse of court process amounting to a disguised appeal against a final judgment of the Supreme Court.
  3. Whether the circumstances were of such a substantial and compelling character as to justify the Court revisiting its own final decision.

Key headnotes

Civil Procedure — Finality of Judgments — Review of a Final Decision of the Supreme Court under Rule 2(2)
A judgment pronounced by the Supreme Court is final, and the Court's inherent power under Rule 2(2) and Rule 35(1) of the Supreme Court Rules to revisit its own decision may be invoked only where circumstances of a substantial and compelling character — such as a decision that is null and void in law or one that works a manifest miscarriage of justice — make it necessary; review is not an appeal in disguise.
Land & Property — Occupancy — Lawful Occupant and Bonafide Occupant are Mutually Exclusive
A person cannot be both a lawful occupant and a bonafide occupant of the same piece of land at the same time and from the same registered proprietor, each form of occupancy under the Land Act having its own distinct and separate antecedents and incidents in law.
Land & Property — Customary Tenure — Proof of Acquisition by Custom
A party who alleges acquisition of land by custom must adduce evidence of the particular custom by which the land was acquired; a bare assertion of customary holding, unsupported by evidence, cannot establish a customary interest, especially over land that is already registered.
Evidence — Burden of Proof — Counterclaim Alleging Purchase of Land
He who alleges must prove; a defendant who counterclaims that he acquired land by purchase bears the burden under sections 101 and 102 of the Evidence Act of proving the purchase, including the size, location and boundaries of the land claimed, and cannot shift that burden onto the registered proprietor.
Land & Property — Registered Title — Conclusiveness and Protection under Article 26
A registered proprietor's title is conclusive evidence of ownership and cannot be defeated by an order compelling him to transfer his interest absent proof of fraud, mistake or misdescription of boundary; an order dispossessing a registered proprietor without consideration is inconsistent with the Registration of Titles Act and Article 26 of the Constitution.

Legislation cited (19)

  • Judicature (Supreme Court Rules) Directions (SI 13-11) r.2(2)
  • Judicature (Supreme Court Rules) Directions (SI 13-11) r.35(1)
  • Land Act Cap 227 s.1(h)
  • Land Act Cap 227 s.3
  • Land Act Cap 227 s.28
  • Land Act Cap 227 s.29
  • Land Act Cap 227 s.34
  • Land Act Cap 227 s.35
  • Evidence Act Cap 6 s.101
  • Evidence Act Cap 6 s.102
  • Evidence Act Cap 6 s.103
  • Evidence Act Cap 6 s.104
  • Evidence Act Cap 6 s.106
  • Evidence Act Cap 6 s.110
  • Registration of Titles Act Cap 230 s.59
  • Registration of Titles Act Cap 230 s.77
  • Registration of Titles Act Cap 230 s.176
  • Constitution of Uganda 1995 art.26
  • Constitution of Uganda 1995 art.126

Cases cited (16)

  • Orient Bank Ltd v Fredrick Zaabwe and Another (Supreme Court Civil Application No. 17 of 2007)
  • Northern India Caterers (India) Ltd v Lt. Governor of Delhi 1980 AIR 674, (1980) SCR (2) 650
  • Sewanyana v Martin Aliker (Civil Application No. 4 of 1991)
  • Hip Foong Hong v H. Neotia & Co [1918] AC 888
  • M.S.Ahlawat vs State Of Haryana And Anr on 27 October, 1999
  • Girdhari Lal Gupta v D.H. Mehta and Another AIR 1971 SC 2162, (1971) 3 SCC 189
  • Kampala District Land Board and Another v National Housing and Construction Corporation (SCCA No. 2 of 2004)
  • Kampala District Land Board and George Mitala v Venansio Babweyaka and 3 Others (SCCA No. 2 of 2007)
  • George Tuhirirwe v Caroline Rwamuhanda (SCCA No. 15 of 2007) [2009] KALR 139
  • Paul Mwiru v Nathan Igeme Nabeeta and 2 Others (Election Petition Civil Appeal No. 6 of 2011)
  • Uganda Revenue Authority v Shell (U) Ltd (SCCA No. 17 of 2014)
  • British American Tobacco Uganda Ltd v Sedrach Mwijukye and Others (Miscellaneous Application No. 7 of 2013)
  • Borowski v Canada (Attorney General) [1989] 1 SCR 342
  • Hon. Justice R.O. Wengi v Attorney General (HC Misc. Application No. 233 of 2006)
  • Sajjan Singh v. State of Rajasthan
  • Chandra Kanta v. Sheikh Habib
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.