Harjit v Buchana (Civil Revision 21 of 2019) [2024] UGHCCD 209 (2 January 2024)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (CIVIL DIVISION)

#### CIVIL REVISION No. 21 OF 2019

(Originating from Mengo Chief Magistrate's Court Civil Suit No. 66 of 2016)

**HARJIT SINGH**

**APPLICANT JATT VERSUS STEVEN BUCHANA :::::::::::::::::::::::::::::::::::: RESPONDENT**

**BEFORE: THE HON MR JUSTICE MICHAEL ELUBU**

## **RULING**

This is an Application filed under Section 83 of the Civil Procedure Act Cap. 71 and Order 52 Rules 1 & 2 of the Civil Procedure Rules SI 71-1.

The Applicant seeks Orders that:

1. Revision issues quashing/setting aside the Ruling and Orders of the Chief Magistrates Court of Mengo (His Worship Mushabe Alex Karocho) in Civil Suit No. 66 of 2016 for want of jurisdiction; and

2. Costs of this Application be provided for.

The grounds on which this application is based are stated in the Notice of Motion and elaborated in the supporting affidavit of the Applicant **Harjit Singh Jatt.**

The grounds briefly are that:

- 1. The Respondent filed Mengo Chief Magistrates Court Civil Suit No. 66 of 2016, against the Applicant, for the recovery of land and eviction of the Applicant from land comprised in Block 29 Plot 501 at Mulago. - 2. The Applicant filed a defence and a counterclaim in Civil Suit No. 66 of 2016, contending that the Registration of the Respondent as proprietor of the suit land was procured by fraud - 3. The value of the disputed land was pleaded by the Respondent to be Shs. 100,000,000/= in 2007, while the Applicant adduced evidence claiming the $100,000,000$ /= in 2007, while the Applicant adduced evidence claiming the value of the disputed land to be shs. $400,000,000/=$ in 2015. - 4. The Chief Magistrates Court (His Worship Mushabe Alex Karocho) ruled on questions of Law in Civil Suit No. 66 of 2016, that the court has both territorial and pecuniary jurisdiction to hear and determine the suit whereas not. - 5. The Applicant is prejudiced by the Ruling and Orders of the Chief - Magistrate's Court of Mengo in Civil Suit No. 66 of 2016. - 6. It is just and equitable that this Application should be allowed.

The Respondent did not file an affidavit in reply to oppose this Application. On 06th October 2020, the Applicant filed a supplementary affidavit in support of this Application.

### **Background**

On the 21st day of July 1967, a one Adoniya Luwede Kajumba as the owner of Kibuga Block 29 Plot 501 Mulago Hill, land held under the Mailo tenure system (the

suit land), concluded a lease agreement with one Erieza Lugesera Sebabi over the suit land. The lease term was to run for 49 years. The lease agreement was registered as LRV 654 Folio 21 Plot 501 Kibuga Block 29 Mulago Hill. Subsequently, the leasehold interest in the suit land was passed from Erieza Lugesera Sebabi to the Applicant.

In 2007, the Applicant realized that Adoniya Luwede Kajumba bequeathed the suit land to his son Enock Kigala Kajumba. That on 12th August 2010, the said Enock Kigala Kajumba was registered as proprietor on the original Mailo certificate of Title formerly held by Adoniya Luwede Kajumba. Then on the 17th September 2015, Enock Kigala Kajumba sold his Mailo interest in the suit land to the Respondent at Shs 400,000,000.

That when the lease expired on the 29th of August 2016. The respondent then wrote to the applicant to vacate the suit land. The applicant opposed the demand for vacant possession.

On the 16th November 2016, the Respondent instituted Mengo Chief Magistrates Court Civil Suit No. 66 of 2016, by way of a specially endorsed plaint, against the Applicant. He sought an Order to evict the Applicant from the suit land.

The Applicant was granted leave to appear and defend Civil Suit No. 66 of 2016. In his Written statement of Defence and Counterclaim the Applicant pleaded that at the onset of the trial, he would raise preliminary objections that the lower court lacked both the territorial and pecuniary jurisdiction to hear Civil Suit No. 66 of 2016 because the suit land falls under Kawempe Division which is under the Nabweru Court Chief Magisterial area and not Mengo Court Chief Magisterial Area where the suit was lodged. Secondly that the value of the mailo interest and leasehold interest in the suit land are Uganda Shillings $400,000,000/=$ and $100,000,000/=$ which is above the pecuniary jurisdiction of a Chief Magistrate.

The learned Trial Magistrate dismissed both objections on 2nd September 2019 prompting the applicant to file the instant application for the orders laid out above.

The learned trial magistrate held that the dispute and cause of action in this matter relates to trespass for which a chief magistrate has unlimited jurisdiction.

Secondly, regarding territorial jurisdiction, that Chief Magistrates Court at Mengo had the territorial jurisdiction to handle matters falling within the Central Division of Kampala where the suit land was located.

It should be noted here that the respondent did not file a reply to this application. This Court was informed that the respondent had on the 16th of January 2020 filed a Notice of withdrawal of Civil Suit No 66 of 2016. However, by the time of the hearing of this application the said notice had not been endorsed by the Chief Magistrate.

Secondly, on the 29th of January 2020, the respondent filed a fresh suit in the High Court Land Division. That suit is against the applicant over this same subject matter, seeking a declaration that the respondent is the lawful owner of the land and the applicant is a trespasser. He also seeks order for the eviction of the defendant from the land.

#### **Issues**

- 1. Whether the lower Court lacks the jurisdiction to hear Civil Suit No. 66 of 2016 - 2. What remedies are available

#### Issue 1

# Whether the lower Court lacked the jurisdiction to hear Civil Suit No. 66 of 2016

In his supplementary affidavit in support of this application, the applicant attached the plaint filed in the land division. In it, the respondent stated that the land was worth 400,000,000/-. This is the same value attached to the land in the land sale agreement concluded between the respondent and Enock Kiggala Kajumba.

The respondent's specially endorsed plaint in the Mengo Court states that he is the proprietor of the suitland. That the applicant was served with a notice to vacate which he has ignored or refused to comply with. For that reason, the respondent sought an order of eviction.

Before the matter was heard the applicant challenged the lower court's jurisdiction to hear the matter but was overruled hence this application.

The pecuniary civil jurisdiction of the Chief Magistrate is prescribed in section 207 (1) (a) of the Magistrates Courts Act. It sets the limit at Ug Shs 50,000,000 but adds that the Chief Magistrate shall have unlimited jurisdiction in disputes relating to conversion, damage to property or trespass.

This is the provision relied on by the trial magistrate to dismiss the objections. It is not in dispute here that the value of the land is set at shs 400,000,000. The question is whether this was an application purely based on trespass.

It is evident that the applicant disputes the ownership claim by the respondent. He alleges fraud on the part of the respondent and contests ownership. He seeks cancellation of title. For these reasons the matter was not limited to trespass and eviction orders but included determination of ownership.

Section 83 of the Civil Procedure Act under which this application is filed provides as follows:

The High Court may call for the record of any case which has been determined under this Act by any magistrate's court, and if that court appears to have—

(a) exercised a jurisdiction not vested in it in law;

(b) failed to exercise a jurisdiction so vested; or

irregularity or injustice,

This section has been reviewed and interpreted by the Court in the case of **Matemba** vs Yamulinga (1968) E. A 643 holding that the provisions apply to jurisdiction alone, the irregular exercise or non-exercise of it, or the illegal assumption of it.

I note that the parties have all filed pleading in the Land Division. It is also true that although by the time the application came up for hearing, the Chief Magistrate in Mengo had not granted leave to withdraw the suit, it is nevertheless clear that the intention of the parties was have the matter withdrawn and heard in the Land Division of the High Court. The respondent in his claim at the land division prays for a declaration that he is the owner of the land.

After considering all the foregoing, it is now the finding of this court that the lower court did not have the jurisdiction to handle the matter because this was clearly a dispute involving a claim for the recovery of land. Both parties asserted claims to ownership with applicant alleging fraud and praying for the cancellation of the respondent's certificate of title. It is a matter that would require a determination and declaration as to who the rightful owner of the suitland was.

Trespass deals principally with possession of land and interference with that possession. The Supreme Court decision in Justine E. M. N. Lutaaya Vs Stirling

Civil Engineering SCCA No 11/2002 where trespass to land is defined held that Trespass to land occurs where a person makes an unauthorised entry to land and thereby interferes or portends to interfere with another person's lawful possession of that land ... the tort of trespass to land is committed ... against the person who is in actual or constructive possession of the same. At common law, the cardinal rule is that only a person in possession of the land has capacity to sue in trespass.

As the matter was not limited to trespass but required a determination of ownership, the lower court did not have the pecuniary jurisdiction to hear it. That was because the subject matter had already been stated to be worth Shs 400,000,000.

For the above reasons this dispute was beyond the jurisdiction of the trial court. When the Chief Magistrates Court of Mengo held that it could hear the matter, it assumed a jurisdiction not vested in it. In any event the decision of a court without jurisdiction is a nullity.

In "Lilian S" vs Caltex Oil (K) Ltd [1986-1989] 1 EA 305 (CAK), Justice Nyarangi held that:

Jurisdiction is everything. Without it, a court has no power to take one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence ...

Issue 2

#### **What remedies are available?**

The Orders which the Applicant sought from this Court have already been set out above.

The Court makes the following Orders:

- 1. The Ruling of the Lower Court dated 02nd September 2019 is hereby set aside. - 2. The Lower Court lacks both the pecuniary jurisdiction to hear Civil Suit No. 66 of 2016. - 3. The Applicant is awarded Costs of this Application.

**Michael Elubu**

Judge

2.1.2024