Bakiriza v Batenda (Miscellaneous Application 904 of 2024) [2024] UGHCLD 134 (20 May 2024)

Full Case Text

### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

## (LAND DIVISION)

# **MISCELLANEOUS APPLICATION NO. 0904 OF 2024**

### (ARISING FROM REVISION CAUSE NO. 0025 OF 2023)

(ALL ARISING FROM KAJJANSI CHIEF MAGISTRATES CIVIL SUIT NO. 27 OF 2021)

BIKIRIZA AUGUSTINE....................................

#### **VERSUS**

BATENDA JAMES.................................... 10

#### **RULING:**

# Before: Lady Justice Alexandra Nkonge Rugadya.

The applicant Birizika Augustine seeks prayers for the rectification of an error made by this court in respect of the decision and orders made in **Civil Revision**

No. 0025 of 2023, under the slip rule so as to provide proper course of action 15 to be taken by the Chief Magistrate of Kajjansi regarding the main suit; and that the applicant be released from civil prison.

#### **Background to this application:**

By way of a brief background, this court was presented with an application for revision of the orders of the Kajjansi Chief Magistrates' court, made vide **Civil** 20 Suit No. 27 of 2021,

The said application for revision: CR No. 0025 of 2023 challenged the correctness, legality and propriety of the order of the presiding magistrate Grade I, H/W Birungi Phionah claiming that court proceeded to entertain and deliver

(Intal)

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judgment in Land civtl suht No o27 OJ 2021 without the requisite vested jurisdiction.

The applicant also questioned the regularity of the entire proceedings and the manner in which they were handted and accordingly sought a revision of the

5 judgement delivered on the 13fi day of July, 2023 by the learned Magistrate and asked this court to have it declared a nullity.

# Detertnination of this Court.

The slip rule under sectioTr 99 of the ciuil Proced.ure Act 7I provides for amendment of judgements, decrees or orders. It is to the effect that the court may at any time correct any errors arising in its orders made from any accidental slip or omission.

This court made its decision: REvIsIoN CAUSE NO. OO25 of 2023, premised on the background that the trial court acted outside of its jurisdiction in Kajjansi Chief Magistrates Court Land. Ciuil Suit lVo. OO27 of 202 1.

In the said ruling by this court under REVISION CAUSE NO. OO25 of 2023, dated lSe March, 2024, it had this to say: 15

> " In the premises, I tend to agree that section 83 of the CPA is applicable in the present ciranmstances

> The main suil is therefore refened to the Chief Magistrate for proper management.

It is also lies within the discretion of this court to order a stag of the pending execution of the orders of the tri-al court, until all pending motters are fullg and finatly resolued by the court presided ouer by the Chief Magistrate'"

Furthermore:

That the proper thing utoutd haue been for the court to refer the entire file to the chief Magistrote tuho by uirhte of section 2o7 of the Magistrates' court's Act, had unlimited juisdiction to handle disputes relating to trespass. 25

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That u-then the triot court made declaratory orders that the respondent/ plaintiff u.tas the lanuful ouner of the suit lond, granting him an order of uacant possession/ euiction; and declaing the defendant a trespasser thereof, in effect it dealt utith and. made conclusions on matters it had cautioned itself against in respect of its competence/ juisdiction to deal uith the entire dispute'

It is the opinion of this coutt thot tt-then a tial court is faced with such dilemma' uhere it is feels that it has no juisdiction to hear some ospects of the dispute and/ or grant part of the praaers sought; or that some of the reliefs sought would be d.ealt taith by a court ranking higher in juisdiction, then the proper thing tttould

be for the trial court to hand ouer the fite to that court. Howeuer, u-that the tial court did in ciuil suit No. oo27 of 2021 was to deal uith some dspects and omit the rest, u.tithout euen drawing the attention of the Chief Magistrate to the question of competence to handle the entire dispute. 10

where a defendant disputes the valuation put by the plaintiff, it is the duty of the trial court to inquire into and pass an appropriate order. Ref. section 11 2 of the CPA. 15

The existence of such preliminary or collateral fact is sine qua non or a condition precedent to the assumption of jurisdiction. Adjudicatory fact is a fact in issue and can be determined by a court on the basis of evidence as adduced by the

parties. Such always implies that a court has jurisdiction to decide disputed questions. on the other hand however, an jurisdictional fact is a preliminary 1SS1-lC. 20

Thus where a court lacks jurisdiction, its judgment however precisely certain and technically correct are mere nullities and have no effect and would be deciared void by every court in which they may be presented. (Imeld'a

# Ndiualungl us Roy Busuuluta and another [1994 HCB 74.)

The issue is a pure point of 1aw and is better raised at the earliest opportunity simply because a defect goe s to the root of the matter and strikes at the authority of a court to pass a decree. It is also important to note therefore that whenever

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challenged that same court would have inherent jurisdiction to decide the said question.

It has also been stated in various authorities that where a court finds that it has no jurisdiction to handle the matter, the proceedings shouid be halted and transferred to the relevant court where possible. (Per tLle uqanda clull Justice 5

Bench Book - 7"t Edn. Jan. 2076 -pa oe 46,)

This court also holds the view that there is no concept of half-junsdiction. It goes without saying therefore that any award or judgment arising from such proceedings of a court which is abie to handlc some, but unable lo handle others within the same dispute would render such orders a nullity'

This was further emphasized in Muooua Jamcs Gidudu & Anor [79971 HCB 63 in which the court held that:

,A judgment of court taithout juisdiction is a nullity. The orders which follout such ajudgment must be set aside ex-debits iudititial (as of nght). The proceedings ond

pleadings before the Leanned Tial Magistrate utere enough for him to inuestigate the question of juisdiction and confirm the peanniary ualue since it had come in 15 issue. ... '

It is counsel for thc applicant's submission that even with the stay of all orders of the trial court by this court, the applicant was not released from civil prison

20 and he is sti11 under incarceration to date.

As it also turned out, the judgment in REVISION CAUSE NO' OO25 of 2023, itself did not bar thc plaintiffs/ respondents from taking steps to have the orders executed when part of the dispute remained unresolved. This requires correction of the orders of this court as empowered by law, under section 99 oJ the CPA,

25 This court shal1 accordingly revise its earlicr orders as foilows:

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- 1. The proceedings and determination in the trial suit were done outside the jurisdiction of the trial magistrate and as such the whole trial and its judgement were a nullity. - 2. It thus follows that all orders made there under are set aside; and the applicant is to be immediately released from civil prison. - 3. The main suit is accordingly referred to the Chief Magistrate for retrial. - 4. Each party to bear its own costs.

Abbey.

Alexandra Nkonge Rugadya. 15

Judge

20th May, 2024.

Defined by mail Andread Debug T 20/5/2024

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