Ategeka v Asiimwe (Civil Revision 1 of 2024) [2024] UGHC 705 (12 July 2024)

#### **THE REPUBLIC OF UGANDA**

#### **IN THE HIGH COURT OF UGANDA AT FORT PORTAL**

#### **CIVIL REVISION CAUSE NO. 001 OF 2024**

# **(ARISING FROM KYENJOJO CHIEF MAGISTRATE'S COURT CIVIL SUIT NO. 036 OF 2020)**

**ATEGEKA JAMES :::::::::::::::::::::::::::::::: APPLICANT**

#### **VERSUS**

**ASIIMWE TOBIA :::::::::::::::::::::::::::::::::: RESPONDENT**

### **BEFORE HON. MR. JUSTICE VINCENT EMMY MUGABO**

#### **RULING**

#### **Introduction**

This matter was forwarded to this court by the Chief Magistrate of Chief Magistrate's Court of Kyenjojo at Kyenjojo pursuant to provisions of section 221(2) and (3) of the Magistrates Court Act. When this court received this matter, it registered it as a Revision Cause No. 001 of 2024 for a proper record, determination, and ease of reference, hence this ruling.

#### **Background**

The background to this application as gathered from the parties' pleadings as per the lower court record is that the applicant filed Civil Suit No. 36 of 2020 before the Chief Magistrate's Court of Kyenjojo at Kyenjojo against the defendant seeking a declaration that he is the owner of the suit land, a declaration that the respondent is a trespasser on the suit land, a permanent injunction restraining the defendant from further trespass on the suit land, an order of eviction, mesne profit, general damages for trespass, and costs of the suit.

The applicant's claim is that he is the owner of the suit land, having inherited it from his grandfather, the late Lwahwire Eria. However, upon the death of his grandfather, the suit land remained under the custody of one Kabapagasi. The defendant forcefully took possession of the suit land but was stopped by the clan members in the year 2007. However, in the year 2020, the defendant again entered the suit land.

In his amended written statement of defence, the respondent denied the claims by the applicant and stated that he is the owner of the suit land having acquired it from his paternal uncle the late Celestino Bamulimbya.

At the time the lower court file was forwarded to this court, no substantive hearing had taken place, save for the orders granting the applicant leave to amend the plaint and a temporary injunction restraining the respondent, his agents or anyone claiming title under him from carrying out any permanent developments on the suit land pending hearing and final determination of the head suit.

Pursuant to section 221 of the Magistrates Court Act, the learned Chief Magistrate's Court of Kyenjojo examined the record and concluded that the learned trial Magistrate Grade 1 had proceeded and given orders in a matter without jurisdiction. She then forwarded the matter to this court for revision.

## **Issues for determination**

In this application, the issues for determination are;

i. Whether the matter raises sufficient grounds for this court to make revision orders.

# **Consideration by Court**

# **Issue 1: Whether the matter raises sufficient grounds for this court to make revision orders.**

The law governing revision proceedings is found in section 83 of the Civil Procedure Act which provides thus:

## **"***83 Revision*

*The high court may call for the record of any case which has been determined under this act by any Magistrates Court, and if that court appears to have -*

- **a.** *exercised the jurisdiction not vested in it in law;* - **b.** *failed to exercise the jurisdiction so vested; or* - **c.** *acted in exercise of its jurisdiction illegally or with material irregularity or injustice, the High Court may revise the case and make such order in it as it thinks fit:"*

The term revision is also defined in **Black's Law Dictionary, 8 th edition, page 1346** as *'a re-examination or careful review for correction or improvement.'*

From the wording of section 83 of the Civil Procedure Act, it is apparent that revision applies to jurisdiction alone, the irregular exercise or nonexercise of it, or illegal assumption of it. The section is not directed against the conclusions of law or fact in which the question of jurisdiction is not involved.

Where a court has jurisdiction to determine a question and it determines that question, it cannot be said that it has acted illegally or with material irregularity because it has come to an erroneous decision on a question of fact or even law, which error would then qualify to rectified on appeal.

## **(***See: Matemba versus Yamulinga [1968] EA 643, 645***.)**

The duty of the court in that regard would be to revise the case and make such order as it deems fit. Therefore, the subject of re-examination by the High Court sitting in its revision jurisdiction would be the lower court record for purposes of ascertaining whether or not such court did perpetuate the misnomers spelt out in sub-sections (a), (b) and (c) of section 83 of the Civil Procedure Act. This court revises the record of the lower court to satisfy 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.

The Magistrates Court Act Cap. 16 provides for the pecuniary jurisdiction of the chief magistrates and magistrate grade 1. Section 207(1)(a) and (b) of the Act provides thus:

# *"Civil jurisdiction of magistrates*

*(1) Subject to this section and any other written law, the jurisdiction of magistrates presiding over magistrates courts for the trial and determination of causes and matters of a civil nature shall be as follows — (a) a chief magistrate shall have jurisdiction where the value of the subject matter in dispute does not*

*exceed fifty million shillings and shall have*

*unlimited jurisdiction in disputes relating to conversion, damage to property or trespass (b) a magistrate grade I shall have jurisdiction where the value of the subject matter does not exceed twenty million shillings."*

In the instant case, the amended plaint puts the value of the suit land to UGX. 45,000,000/=. This exceeds the pecuniary jurisdiction of a Magistrate Grade 1 but is well within that of a Chief Magistrate.

Nonetheless, the value of the subject matter was not originally pleaded in the original plaint. Thus, the trial magistrate had jurisdiction to hear and entertain the matter, but this jurisdiction was taken away when the amendment was filed on record.

I note that the trial Magistrate Grade 1 had issued a temporary injunction restraining the respondent his agents or anyone claiming title under him from carrying out any permanent developments on the suit land pending hearing and final determination of the head suit vide Misc. Application No. 16 of 2021 before the amendment was made.

The orders vide Misc. Application No. 16 of 2021 were issued at a time when the pecuniary jurisdiction of the trial Magistrate Grade 1 was not in contention. This order is valid, as it was made prior to the amendment of the plaint and shall remain in force until the final determination of the head suit or as may be directed by the trial court.

Consequently, I find that a Magistrate Grade 1 lacks the pecuniary jurisdiction to hear and determine Civil Suit No. 036 of 2020. The orders in Misc. Application No. 16 of 2021 remain valid pending the final determination of the head suit or as may be directed by the trial court.

In the premises, I direct the Deputy Registrar to send back the lower court file for the Chief Magistrate to hear and determine the matter expeditiously.

It is so ordered.

This ruling was made ready by 30th June 2024 before the 7th Revised Edition of the Principal Laws was published and therefore sections cited herein apply mutatis mutandis.

Dated at Fort Portal this 12th day of July 2024.

**Vincent Emmy Mugabo Judge**