Olal and 6 Others v Kaggwa (Miscellaneous Application 41 of 2020)

The full judgment

Read the complete, verbatim text of this judgment.

Holding

The Court held that the applicants had not raised any matter of public or general importance warranting leave for a third appeal. The nationality question they sought to advance was never raised or litigated at the Court of Appeal, whose decision turned on re-evaluation of the evidence, not nationality. The substantive question of whether non-citizens can hold customary land was already settled by Article 237 of the Constitution and the Land Act, under which non-citizens may only acquire leases. To entertain general questions never before the lower courts would send the Court on a wild goose chase. The application was dismissed with costs.

Facts

The applicants sued the respondent before a magistrate grade 1 at Gulu seeking a declaration of joint ownership of land at Kanyagoga, held under customary tenure, plus damages for trespass, mesne profits, a permanent injunction, interest and costs. The magistrate declared them lawful owners and granted an eviction order and injunction. On the respondent's appeal, the High Court reversed, declaring the respondent the rightful owner, granting vacant possession, a permanent injunction, UGX 20,000,000 general damages with 8% interest, and costs. It found no evidence of occupancy by the ancestor through whom the first applicant claimed, and that the third to seventh applicants were refugees and thus non-citizens precluded by Article 237(2)(c) of the Constitution and section 40 of the Land Act from holding customary land. The Court of Appeal dismissed their appeal for lack of merit, the only argued ground concerning re-evaluation of evidence. The Court of Appeal also refused leave (Miscellaneous Application 125 of 2020) to appeal to the Supreme Court. The applicants then applied to the Supreme Court for a certificate, contending the appeal raised a question of public importance on nationality and bona fide occupancy.

Issues

1. Whether the intended third appeal raises one or more matters of law of great public or general importance such that leave to appeal to the Supreme Court should be granted under section 6(2) of the Judicature Act and Rule 39(1)(b) of the Judicature (Supreme Court) Rules.
2. Whether the question of the law governing nationality and bona fide occupancy of land in Uganda was an issue raised and litigated before the lower appellate courts so as to ground a certificate of public importance.

Orders

• Application for leave to appeal declined.
• Application dismissed with costs to the respondent.

Key headnotes

Legislation cited (7)

• Judicature Act s.6(2)
• Judicature (Supreme Court) Rules SI 13-11 Rule 39(1)(b)
• Land Act Cap 227 s.29(2)
• Land Act s.40
• Constitution of Uganda 1995 Article 237(1)
• Constitution of Uganda 1995 Article 237(2)(c)
• Refugees Act

Cases cited (4)

• Namuddu Christine v Uganda (Civil Application No. 3 of 1999)
• Kasaala Growers Co-operative Society v Jonathan Kalemera & Anor (Civil Application No. 24 of 2010)
• Farook Aziz v Abdalla Abdu Makuru (Civil Appeal No. 4 of 2002)
• Hermanus Phillipus Steyn v Giovanni Gnecchi-Ruscone, Application No. 4 of 2010 (Supreme Court of Kenya)