Abdallah v Abdallah (Miscellaneous Application 6 of 2023) [2024] UGHC 802 (29 August 2024)

### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT ARUA

## **MISCELLANEOUS APPLICATION NO. 006 OF 2023**

(Arising from Land Case No. LD 003/7/3/2022 (Sharia Court of Arua Muslim Supreme Council)

NASRAH ABDALLAH ALIAM: ....................................

#### **VERSUS**

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RASHID ABDALLAH: RESPONDENT

## BEFORE HON. JUSTICE COLLINS ACELLAM

#### **RULING**

#### **Introduction**

This application is brought by Notice of Motion under Article 129 (1) of the 1995 Constitution of the Republic of Uganda, Section 98 of the Civil Procedure Act, Section 33 of the Judicature Act and Order 52 Rule 1 & 2 of the Civil Procedure Rules for orders that;

- 1. Land comprised in Ezova cell, Arivu ward, Arivu East Division, Arua City measuring 25.50 meters by 16.15 meters with developments thereupon be vested in the applicant as her share of inheritance from her father the late Abdallah Saidi. - 2. Costs of this application be provided for.

#### **Brief background**

The Applicant Nasrah Abdallah Aliam, sued the Respondent Rashid Abdallah in the sharia court of Uganda Muslim Supreme Council Arua District vide LD0003/7/3/2023. The sharia court ruled in favour of the Applicant and granted her an order for vacant possession against the Respondent. The Court then advised her to seek assistance from this court to give effect to the orders of the sharia court. Thus, this application.

#### The application

The grounds of this application are set out in the Applicant's affidavit but briefly they are;

- 1. That the Applicant successfully sued the respondent in the sharia court of Uganda Muslim Supreme Council Arua District whereof it was recommended that she seeks assistance of this court to give effect to its orders - 2. That as a result of the said proceedings, the applicant recovered land comprised in Ezova cell, Arivu ward, Ayivu East Division, Arua City measuring 25.50 meters by 16.15 meters with developments thereupon from the respondent for which she was declared the lawful owner.

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- 3. That the sharia court declared that the respondent is a trespasser and an order of vacant possession was granted in favor of the applicant. - That the decree to that effect has been extracted form the judgement of the sharia court. $4.$ - 5. That these proceedings are necessary to give effect to the judgement and orders of the sharia court of Arua Muslim Court. - 6. That this application is in the interest of justice that this application is granted.

The Respondent's response is detailed in the amended affidavit in reply.

#### **Representation and Hearing**

At the hearing, the Applicant was represented by M/s Oketcha Baranyanga & Co. Advocates and the Respondent was represented by Counsel Bandaru Daisy of M/s Bandaru & Co. Advocates.

Both parties proceeded by way of written submissions which they filed as directed by court.

#### The Applicant's case

Counsel for the Applicant submitted that the application is in respect to inheritance of property and that its their considered view that the Khadi court of Arua Muslim Supreme council has jurisdiction to try and determine the matter as the subject matter of the suit falls within the provisions of the law. Counsel relied on the case of Her Lordship Eva Luswata in High Court Miscellaneous Application No. 427 of 2014 arising from civil suit No. 06 of 2014 (sharia court of law at Iganga) Kinawa Jamira versus Asuman Bakali noted that all parties submitted to the jurisdiction of the sharia Court sitting at Iganga. That also in the case at hand both the applicant and the Respondent attended Sharia Court and that to date the Respondent has not appealed against the decision of the Sharia court and that it is just and equitable that this court grants the applicant the orders sought. Counsel further submitted that this court under Section 33 of the Judicature Act, the High Court has powers to grant any remedies to any legal or equitable claim by party in order to fully determine any matters in controversy. And that in the instant case the Applicant having been declared the lawful and rightful owner of the land situate at Ezova cell, Arivu ward, Ayivu Division, Arua City measuring 25.50 M by 16. 15 meters and having been granted vacant possession of the same availed by the defendant seeks the assistance of this court to address execution of the decree arising from the sharia court of Arua Muslim Supreme Council prays that the prayers and orders sought by the Applicant be granted.

#### Case for the Respondent

Whether this application is tenable in law?

Counsel submitted that the application in question seeks to enforce a judgement of a sharia court allegedly made on the 29th day of December 2022. That on the onset, counsel submits that the purported judgement and Decree in case No. LD 0003/7/3/2023 that the Applicant seeks to enforce through this court was passed by the sharia court which is not a properly constituted court with jurisdiction to handle the dispute between the parties. That sharia court is not a properly instituted Court to determine the dispute and give orders that the Applicant is seeking this honourable court to give effect to. Counsel stated that their interpretation of Article 129(1)(d) of the Constitution is that whereas it gives such subordinate courts including sharia

courts judicial power such courts ought to be established by an act of parliament. And that for the reasons afore given, Counsel submitted that sharia courts are operating outside the law. Counsel relied on a number cases to substantiate his submission. Counsel further submitted that the Respondent did not take part in the proceedings of the sharia court nor was he ever served with any court process like pleadings, summons or even hearing notices in the said case and that he only got to know about the existence of that case when this Application was filed in court and later served on him. That this means that he was condemned without being heard. To the contrary, counsel submitted that there is evidence that the Applicant had prior to the impugned judgement filed 2 other cases against the Respondent and other people which cases were never determined by the sharia court. That is CS. No. 001/7/3/2022 against the Respondent herein and others and CS No. LD 002/13/9/2021 against the Respondent and another person. That to this date the said cases have never been handled. Counsel then submitted that the decree that the Applicant is seeking to enforce is a nullity since the sharia court had no jurisdiction to handle this matter, thar the Respondent was never a party to that matter and thus the Respondent seeks that this Application be dismissed with costs.

In their Rejoinder submissions, counsel for the Applicant reiterated their submissions.

#### **Resolution and Decision**

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I have addressed myself to the Notice of Motion and the arguments of the parties for and against it. I have also addressed myself to the authorities shared with us for which I am grateful.

I will start with issue of jurisdiction of the Sharia Courts.

Counsel for the Applicant relied on the case of Her Lordship Eva Luswata in High Court Miscellaneous Application No. 427 of 2014 arising from civil suit No. 06 of 2014 (sharia court of law at Iganga) Kinawa Jamira versus Asuman Bakali noted that all parties submitted to the jurisdiction of the sharia Court sitting at Iganga. That also in the case at hand both the applicant and the Respondent attended Sharia Court and that to date the Respondent has not appealed against the decision of the Sharia court and that it is just and equitable that this court grants the applicant the orders sought.

In reiteration, Counsel for the Respondent submitted that on the onset, the purported judgement and Decree in case No. LD 0003/7/3/2023 that the Applicant seeks to enforce through this court was passed by the sharia court which is not a properly constituted court with jurisdiction to handle the dispute between the parties. That sharia court is not a properly instituted Court to determine the dispute and give orders that the Applicant is seeking this honourable court to give effect to. Counsel stated that their interpretation of Article 129(1)(d) of the Constitution is that whereas it gives such subordinate courts including sharia courts judicial power such courts ought to be established by an act of parliament. And that for the reasons afore given, Counsel submitted that sharia courts are operating outside the law. Counsel relied on a number cases to substantiate his submission.

Courts's consideration regarding the jurisdiction of Sharia Courts.

Having considered the arguments of both Counsel, and be it as may Article 129(1)(d) of the constitution provides that the judicial power of Uganda shall be exercised by the courts of judicature which shall consist of;

d) such subordinate courts as parliament may by law establish, including Qadhi's courts for marriage, divorce, inheritance of property and guardianship as may be prescribed by parliament.

This court has also previously recognized the operations of the Sharia courts in Uganda. In the case of Kinawa Jamira versus Asuman Bakali HCMA No. 427 of 2014 court held that:

"........ A Sharia Court is one recognized under Article 129(1)(d) of the Constitution. All parties submitted to the jurisdiction of the Sharia Court sitting at Iganga and my Court is ceased with jurisdiction to address the execution of the decrees of that court, with full inherent powers to ensure that justice is done."

I will also refer to the case of Hajjati Bunkeddeko Mariam vs Hajji Bunkeddeko Badru Civil Appeal No. 0005 of 2021 wherein the court relying on the case of Kinawa Jamira versus Asuman Bakali HCMA No. 427 of 2014 Justice Alice Komuhangi Khaukha on deliberating on the issue of jurisdiction of Sharia Courts stated that in light of the above provisions and case therefore, it is my finding that even though parliament has not yet enacted an enabling law to give effect to Article 129(1) (d) of the Constitution in practice, the Sharia Courts have been operating and continue to be operational in Uganda where the Parties profess the Mohammedan faith.

In light of the above findings, I also find that the Sharia Courts are operational in Uganda. I find that they had jurisdiction to handle this matter.

In respect to the decree that the applicant is seeking to be enforced, there are a lot of illegalities and unanswered questions therein.

For instance, Counsel for the Applicant submitted that both parties submitted to the jurisdiction of the Sharia court in respect to this matter and that all parties were in attendance. On the other hand, Counsel for the Respondent submitted that the Respondent was never served with summons to attend to this matter in the Sharia Court and that he only got know about the purported Decree when this application was instituted and served on him.

I have indeed perused the record from the Sharia Court and there is no where it shows that indeed the respondent received notice of the proceedings in respect to case No. LD 0003/7/3/2023. Its just summons inviting the respondent but with no proof of service of the same or acknowledgement of receipt on the side of the Respondent.

Further Counsel for the Applicant submits that the Respondent attend all the Sharia Court proceedings sessions and attached attendance lists therein. Counsel for the Respondent on the other hand submitted that the Respondent did not attend any of those proceedings because he never got communications in respect to that matter but only got summons in respect to other suits which have never been handled by the Sharia Court to date.

I have indeed perused the attendance lists attached by the Applicant and at all times the Respondent's name is registered but he did not sign for any of the sittings.

**ARA**

Given my findings above, I agree with Counsel for the Respondent that the Respondent was not given a fair hearing while adjudicating on this matter which is in contravention and contradiction with Article 28 of the 1995 Constitution of Uganda as amended.

On another note, the suit land in this aspect is not described properly by the Applicant save for its location, there is no title to the same and no description is stated in the proceedings.

These are all important aspects in such matters regarding property/land.

A court of law can not sanction what is illegal and an illegality once brought to the attention of court overrides all questions of pleadings and admissions made therein. See; Makula International Ltd vs His Eminence Cardinal Nsubuga and Another (1982) HCB 11

Therefore, given my findings above, I find that this application is not tenable as the Decree that the Applicant is seeking to enforce is full of illegalities that this court can not enforce.

In respect to the costs of the suit, it is trite law that costs follow the event as provided for under Section 27 of the Civil Procedure Act.

#### Orders

This application is dismissed for reasons I have stated herein. And consequently, costs of the suit are awarded to the Respondent.

I so order

Dated this....................................

Hon. Justice Collins Acellam

Judge