Anetcho v Beneya and 15 Others (Civil Revision 2 of 2018) [2024] UGHC 501 (12 March 2024)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT ARUA CIVIL REVISION NO. 002 OF 2018 (Arising from Land Case NEB $-$ 00 $-$ CV $-$ LD 0048 of 2017)


#### BEFORE: HIS LORDSHIP HON. JUSTICE OYUKO. ANTHONY OJOK $25$

### **RULING**

The applicant brought this application by way of letter requesting that the Land Case No. NEB – $00 - CV - LD$ 0048 of 2017 be placed before the Resident Judge of Arua for Revision subject to Sections 83, 98 and 64(c) of the Civil Procedure Act and Sections 17, 33 and 38(1) & (3) of the Judicature Act.

The grounds in support of the application are as follows;

- 1. That had the trial Magistrate, Her Worship Achayo Rophine, conducted a full hearing of the suit by taking evidence from the plaintiff and the defendants, she would not have reached a rush and unjust decision as she did. Inter-alia, the court would have been furnished with Annexture "C" being Letters of Administration dated 21<sup>st</sup> December 2017 obtained by the applicant. - 2. That the trial Magistrate lacked diligence and prudence when she admitted Annexture "D" which was undated and only signed by Ogal Valentino (2<sup>nd</sup> Respondent) excluding the other fifteen respondents:

- a. That the issue Ogal Valentino ( $2^{nd}$ respondent) raised over this suit land, is an afterthought since all the Respondents in their Written Statement of Defence dated 15<sup>th</sup> November 2017 hereto Annexture "E" never revealed that the suit land was before determined by a competent court. - b. That the trial Magistrate lacked keenness in realizing that the parties to the case that Ogal Valentino ( $2^{nd}$ Respondent) referred to for example Annexture "F" hereto being the Decree in Original Suit dated 14<sup>th</sup> June 2010 are different from the present parties in this case. The trial Magistrate, therefore, failed to address herself on the issue of Resjudicata. The Applicant and all the respondents are not named in that alleged former land case. That land case was in respect to Muraro Farm whereas the present land case is a customary one situated in Alindi Village not forming part of Muraro Farm. - 3. That it was irregular and informal for the trial Magistrate to rely and admit what was alleged in Annexture "D" while denying the Applicant the chance and legal opportunity to make a reply. The trial Magistrate failed to address herself on the legal principle of *audi alterem partem* and this exhibited bias and partiality since the decision was made after hearing only one side. - 4. That since the trial Magistrate did not conduct any hearing of evidence from both sides, it was improper for her to schedule a locus-in-quo as per Annexture "G" dated 24<sup>th</sup> April 2018. - 5. That the trial Magistrate on top of the numerous messes she made, she continued and did not take any records of what took place at the locus – in - quo and did not take and/or draw any sketch map of the suit land since she stood in one place on the land owned by M/s Dott Services Uganda Ltd neigbouring the suit land. - 6. That the trial Magistrate, when the Applicant on 19<sup>th</sup> June 2018 wrote to her for a typed copy of the court proceedings and ruling, she on 20th June, 2018 refused to avail the same and she wrote on the same letter Annexture "B" hereto. - 7. That if this Application for a Revisional Order is not heard, the Applicant is bound to suffer irreparable damages and permanent loss.

The respondents did not file an affidavit in reply opposing the application.

## Representation:

The applicant was self-represented whereas the respondents were represented by 35 Mr. Michael Ezadri even though no reply was made to the application. Oral submissions were made by both parties in open court.

# Submissions:

The applicant submitted that there were mistakes made by the trial Magistrate for instance, the suit was dismissed based on a letter written by one of the defendants 40 without according the applicant an opportunity to be heard. Secondly, that the trial

2 | Page

$25$

$10$

Magistrate went for locus before hearing of the case and only stood at one point without reaching the suit land.

Counsel for the respondents on the other hand cited Section 83 of the Civil Procedure Act and submitted that the time the trial Magistrate went to visit locus, the applicant was in the lead directing the trial Magistrate. That the applicant even presented to court witnesses whom court heard, the same happened with the defendants. That it was found that the applicant had no interest in the suit land. That he was merely evicting the peasants. Thus, the instant application lacks merit and the trial Magistrate cannot be faulted in arriving at his decision. Counsel concluded that the application should be dismissed with costs.

# Analysis of court:

The law:

$\mathsf{S}$

Section 83 of the Civil Procedure Act provides that: the High Court may call for the record of any case which has been determined by any subordinate court and may revise the case if that court appears to have done any or one of three things;

- a. Exercised a jurisdiction not vested in it by law. - b. Failure to exercise a jurisdiction vested in that court; - c. Acted in the exercise of its jurisdiction illegally or with material irregularity or injustice. - In the case of Magembe Peter v. Ssegujja Richard, Civil Revision No. 0008 of 2021, 20 it was stated that; for a matter to qualify for revision, it must be apparent that it involves a failure to exercise or an irregular exercise of jurisdiction.

Revision does not concern itself with conclusions of law or fact in which the question of jurisdiction is not involved. Dissatisfaction with a decision by a court with jurisdiction in favour of the other party cannot be a matter for revision. (See: Nadiope & 8 Ors v Maluku Development Association Ltd, HCT-04-CV-MA-0073-2010 [2012] UGHC 103 (13 June 2012).

I have carefully perused the court record and considered the oral submissions of both parties in resolving this application while being mindful of the law.

The applicant contended that the letter as relied on by the trial Magistrate to reach 30 his decision as written by Ogal Valentino was not dated and only signed by him out of the 15 defendants sued by the applicant.

It is indeed correct that Ogal Valentino the 2<sup>nd</sup> defendant (now deceased) wrote informing court that there had been a suit with the same subject matter before court with the same parties and same facts, however, the letter was not dated.

Secondly, that in the said letter the defendants in Civil Suit No. 48 of 2001 are not known because the court was not availed with that information to confirm that

indeed the parties in the said suit are the same as those that the applicant sued in the lower court. The decree as attached merely states "Raphael Awachango & Another versus Rwoth Ubimo Cero Ukungu II & 11 Others." There is also no indication as to whether the applicant was a party to that suit for Civil Suit No. 0018 of 2017 to be found barred by Res Judicata.

Thirdly, whereas Ogal Valentino in his letter indicated that the trial Magistrate declared that the suit land belonged to the community of a population of over 2000 or clan land, upon perusal of the judgment, I found that the trial Magistrate actually only decreed the suit land to the defendants in the suit and ordered for repossession of their customary land.

This court was therefore left in suspense as to who exactly the land was decreed to since the annextures on record do not indicate who the defendants in the earlier suit were apart from the 1<sup>st</sup> defendant. From, the decree and judgment on record and the locus in quo visit, it is clear that the applicant was never party to the suit,

During the locus in quo conducted by this court it was found out that the 15 defendants in Civil Suit No. 0048 of 2007 were the same as those in Civil Suit No. 0003 of 2018 and were still occupying their respective pieces of land over which they were sued in 2007.

The plaintiff's claim in his suit was for 40 acres and it is not known the extent of the land that was claimed in Civil Suit No. 48 of 2007 since the plaintiff in that 20 suit described his land only as Muraro Farm which was found on ground to be next to the suit land however, no measurements were availed.

On court record are declarations by Angala Moris, Omirambe Orwinyo, Odaga Owinyo that the suit land belongs to the applicant. These declarations are however,

misplaced as such declarations can only be made by a court of law during the $25$ determination of the main suit. Thus, they cannot be brought by the applicant during a Revision application. And the said parties have no powers to make such declarations as to ownership, they can only adduce evidence in that regard; such powers are only limited to courts of law. Odaga Orwinyo confirmed having left the suit land during the locus visit. 30

Whereas, the Magistrate in his decision after visiting the locus in quo in this matter found that the suit land was community land, what was decreed in Civil Suit No. 48 of 2007 was Muraro farm and the respondents during the locus visited confirmed that it was the same land they were sued over in Civil Suit No. 0003 of

2018 which made it Res Judicata. Even though the applicant in the instant case 35 was not party to the earlier suit but all the same defendants were the same so was the subject matter.

The law on *Res Judicata* is Section 7 of the Civil Procedure Act and it provides that;

$\mathsf{S}$

"No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim. Litigating under the same title, in a court competent to try the subsequent suit or the suit in which the issue has been subsequently raised, and has been heard and finally decided by that court."

"The minimum requirements under that provision were stated by the

In the case of Onzia Elizabeth v. Shaban Fadul (As legal representative of Khemisa Juma), H. C. C. A No. 0019 of 2013, it was stated that;

$10$

$\mathsf{S}$

Supreme Court in Karia and Another v. Attorney General and Others [2005] 1 E. A 83 to be that; (a) there has to be a former suit or issue decided by a competent court (b) the matter in dispute in the former suit between the parties must also be directly or substantially in dispute between the parties in the suit where the doctrine is pleaded as a bar and (c) the parties in the former suit should be the same parties or parties under whom they or any of them claim, litigating under the same fitle."

Therefore, for a suit to be barred by Res Judicata, the same suit should have previously been heard to completion with the same subject matter and the same parties by a court of competent jurisdiction. In Civil Suit No. 48 of 2007 the suit

- land was described as Muraro Farm, while the applicant contended that it was 20 different from the subject matter in Civil Suit No. 0003 of 2018, the respondents at locus were found in occupation of the same pieces that they occupied at the time Civil Suit No. 48 of 2007 was instituted from 2001 to date having being given the same by Akeci. - In the instant case whereas the applicant was not party to Civil Suit No. 48 of 2007; $25$ when this court visited the locus in quo and it found that the applicant had never used the suit land, the applicant was found to have previously occupied a different piece of land so did his brother which they claimed to have inherited from their father. The land the applicant claimed to be the suit land, was said to be land that initially belonged to Akeci as the original owner who gave land to all the 30 defendants and also the applicant's father. In the case of Amir Khan v. Sheo Baksh Singh (1885) 11 CA 16, A 237, it was held that;

"Where a Court has jurisdiction to determine a question, it cannot be said that it acted illegally or with material irregularity because it has come to an erroneous decision on the question of fact or even law".

The law is clear that revision proceedings apply beyond questions of jurisdiction or lack thereof and extend to the nature of exercise of that jurisdiction. Specifically, the High Court is enjoined to interrogate the question of whether the jurisdiction of the subordinate court was exercised illegally or with material irregularity.

In the case of Mabalahanya v. Sanga [2005] E. A 152, it was held that; in cases where the High Court exercises its revisional powers, its duty entails examination of the record of any proceedings before it for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, order or any other decision and the regularity of any proceedings before the High Court.

Having carefully considered the merits of this application and the entire court record, I find and hold that the trial Magistrate in this case did exercise his jurisdiction as vested in him by law properly and he did not act illegally or with material irregularity or injustice. This application therefore does not satisfy the preconditions for a grant of revisional orders.

The application therefore lacks merit. It is hereby dismissed.

Each party bears their own costs since the respondents did not file an affidavit in reply to the application nor did they file any submissions much as they were represented by counsel.

Right of appeal explained. 15

OYUKO ANTHONY OJOK

JUDGE

$\mathsf{S}$

$12/3/2024$ $20$