Byakutaga v Kakururu (Civil Revision 8 of 2021) [2022] UGHC 124 (15 December 2022)

# **THE REPUBLIC OF UGANDA** IN THE HIGH COURT OF UGANDA AT MBARARA HCT-05-CV-CR-0008-2021

(Arising from LC III Court of Nkungu Sub-County No. 005-2010)

## BYAKUTAGA JAMES ::::::::::::::::::::::::::::::::::::

#### VERSUS

## KAKURURU EDWARD ::::::::::::::::::::::::::::::::::::

**BEFORE:** HON LADY JUSTICE JOYCE KAVUMA

## **RULING**

### Introduction.

The Applicant moved this court by Notice of Motion brought $\mathfrak{m}$ under Order 52 rules 1, 2 and 3 of the Civil Procedure Rules and Section **83(a)** of the Civil Procedure Act for orders that:

- 1. The judgment and orders made by the LCIII Court of Nkungu subcounty in Kazo district under Civil Suit no. 005/2010 be revised. - 2. Costs be provided for.

The motion was supported by the affidavit sworn by the Applicant and opposed by that sworn by the Respondent. I have considered both affidavits in this ruling.

### Representation.

The Applicant was represented by M/s Mugarura, Mwijusya & Co. $[2]$ Advocates while the Respondent was represented by M/s Twinamatsiko & Agaba Advocates.

## Analysis and decision.

As a starting point, I must first point out the casual and defective **F31** manner in which the Notice of Motion in this matter was drafted.

It should be pointed out that there is no prescribed procedure for bringing an application for revision. As a matter of fact, some cases have held that such applications may be initiated by an ordinary complaint to this court. (See Jaffer vs Gupta [1959] EA 406). The procedure adopted is always within the discretion of the court.

I however, take the view that where a party opts for a particular procedure that is provided for under the law in bringing an application for revision, then that procedure must be fully and correctly complied with.

As a matter of law, where a Notice of Motion is the procedure adopted for initiating an action, the motion must comply strictly with the provisions of Order 52 of the Civil Procedure Rules.

Order 52 rule 3 of the Civil Procedure Rules provides for the $[4]$ contents of a notice. It provides that;

## "3. Contents of notice.

Every notice of motion shall state in general terms the grounds of the application, and, where any motion is grounded on evidence

by affidavit, a copy of any affidavit intended to be used shall be served with the notice of motion."[Emphasis mine]

The Notice of Motion before me in the instant application is a total violation of the above provision and is fatally defective as it does not state in general terms the grounds of the application.

The provision I have quoted herein above is couched in mandatory terms and the effect of its violation would mean that I have to strike out the motion.

As it stands, the motion is struck out.

For completeness, before I leave this matter, I want to address the $[5]$ issue of jurisdiction of this court to revise the decisions of Local Council Courts which formed part of the Applicant's submissions.

Jurisdiction has been defined by the Court of Appeal as the power and authority constitutionally conferred upon or constitutionally recognized as existing in a court or judge to pronounce the sentence of the law, or to award the remedies provided by law, upon a set of facts, proved or admitted, referred to the tribunal for decision, and authorized by law to be the subject of investigation or action by that tribunal, and in favour of or against persons who present themselves, or who are brought before the court in some manner sanctioned by law as proper and sufficient. (See Elizabeth Kyomuhangi vs Uganda Court of Appeal Criminal Appeal no. 131 of 2020 at page 6).

It follows that jurisdiction is everything to a court, without it, a court or tribunal cannot proceed to take any more step in any matter as whatever will be decided by it will merely be a nullity. (See Owners of Motor vessel Lillian "s" vs Caltex Oil Kenya Limited [1989] KLR 1).

It was counsel for the Applicant's submission that according to [6] Section 98 of the Civil Procedure Act, this Court's power is not limited only inherent powers but to also supervise subordinate courts. That in line with Article 274(1) and (2) of the Constitution, this had supervisory powers over Magistrate Courts. That the Chief Magistrate had supervisory powers over decisions of Local Council Courts and therefore because of this, this court had supervisory powers over decisions Local Council Courts.

$\sim$

I notice that this submission was a direct replica of the holding of this court in the case of **Sorowen James Kapsus vs Herop Stephen HCT-04-**CV-CR-007-2015 which counsel attached to their submissions.

The correct position of the law was I think laid down well by the Court of Appeal in **Ddegeya Trading Stores (U) Ltd vs Uganda Revenue** Authority Civil Appeal No. 44 of 1996. In that case, the court while interpreting Section 84 of the Civil Procedure Acts which is the current Section 83 of the revised edition of the Civil Procedure Act held that;

"Section 84 grants revisional jurisdiction to the High Court in respect of proceedings in magistrates court and formerly Subordinate Courts when they existed. Subordinate Courts were

$\mathcal{P}$

abolished by section 35 of the Magistrates Courts Act Cap. 39 which has now been replaced by the Magistrates Courts Act, Act 13 of 1970. It leaves only the Magistrates Courts in respect of which, under section 84 of the Civil Procedure Act, the High Court has revisional jurisdiction."

It therefore follows that the appropriate procedure was for the Applicant to appeal to the Chief Magistrate in line with their supervisory powers laid down under **Section 40** of the Local Council Courts Act 2006 wherein after, if need be, apply to revise the decision of that Chief Magistrate before this court.

$\sim$

I'm buttressed in this by the observations of my learned brother Judge in Kemish Ibrahim vs Dima Dominic Poru HMA 16 of 2015 where he observed that:

"This was a first appeal to a court of judicature arising out of proceedings conducted under the Local Council Court system, comprising courts mainly constituted by lay persons and before which advocates have no right of audience. The likelihood of irregularities in their proceedings is heightened by the very nature of their composition. It would be prudent of a Chief Magistrate's Court considering an appeal from an L. C. III Court, and I dare say a legal duty incumbent on the court, to proceed like a first appellate court would. When parties appeal to a Chief Magistrate from the L. C. III Courts, they are entitled to a fresh and exhaustive scrutiny of the proceedings right from the court of first instance up until the appeal before the Chief Magistrate. I am buttressed in this view by section 40 of the Local Council Courts Act,

2006 which imposes upon Chief Magistrates, a supervisory role to be exercised over local council courts on behalf of the High Court, with such general powers of supervision as are conferred on the High Court over Magistrates' Courts. The chief magistrate ought to have subjected the entire record of proceedings of the L. C Courts to a fresh and exhaustive scrutiny. Had he done so, he would have discovered the illegality in the underlying proceedings." [Emphasis added]

In essence, this application would still also fail on the issue of jurisdiction. This application is therefore dismissed with costs to the Respondent.

I so order.

15 day of Deletter 2022. Dated, delivered and signed at Mbarara this..

Joyce Kavuma Judge