Kaye & 2 Others v Nansamba (Civil Appeal 36 of 2024) [2025] UGHC 59 (31 January 2025)

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#### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA HOLDEN AT KIBOGA

#### CIVIL APPEAL NO.0036 0F 2024

## (ARISING FROM KIBOGA CIVIL SUIT NO.12 OF 2019)

#### 1. KAYE HANNINGTON

2. LWANGA JOHN

**}...................................**

# 3. IRENE MITALA SEMAGANDA (ADMINISTRATRIX OF THE ESTATE OFTHE LATE STEPHEN SEMAGANDA)

#### **VERSUS**

1. NANSAMBA HASIFA JUSTINE **MATEEGA ROBERT** (ADMINSTRATORS OF THE LATE PAULO SSALONGO LUBYAYI KAGGWA)

**}:::::::::::::::::: RESPONDENTS**

#### **BEFORE: HON. MR JUSTICE KAREMANI JAMSON. K**

#### **JUDGMENT**

#### Background.

The appellants were the defendants at trial while the respondents were the plaintiffs. The respondents sued the appellants jointly and severally for trespass, a declaration that the plaintiffs are the lawful owners of the suit property situate at Bukwiri, Butemba town council, Kyankwanzi district.

The respondents' case was that they are children and administrators of the estate of the late Paulo Lubyayi Kaggwa Salongo who purchased the suit land from a one Deo Ssemuwemba on 9/7/1987. That the late Paulo Lubyayi KaggwaSalongo constructed a house thereon and the respondents' grandfather the late Fred Semaganda requested the respondents' father to let

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him use one of the rooms as his political office. That upon the demise of Fred Semaganda, the appellants refused to vacate the premises claiming that the property belonged to the estate of the late Fred Semaganda.

In their written statement of defence, the appellants denied the respondents' claim and instead contended that the suit property belonged to the late Fred Semaganda who purchased the same from Christine Balimporeza and thereafter built a house with some rooms which he was renting to various people. That the 1<sup>st</sup> appellant was only a caretaker of the houses on the land and the $2^{nd}$ appellant is a tenant thereon. That the $3^{rd}$ defendant is a widow of the late Stephen Semaganda who was also the son of Fred Semaganda. They prayed that the suit be dismissed with costs.

## Decision of the trial court.

The trial court found that the suit land belonged to the respondents and that the appellants were trespassers thereon. Court had prior found that the suit was not barred by limitation and that the court had jurisdiction to try the case.

## Grounds of appeal.

The appellant being dissatisfied with the findings of the trial court appealed to this court on the following grounds:

- 1. The learned trial magistrate erred in law by holding that the magistrate grade one had the jurisdiction to determine a dispute whose subject matter value exceeded Shs. $50,000,000/=$ . - 2. The learned trial magistrate erred in law and fact by holding that the plaintiffs' cause of action was not time barred. - 3. The learned trial magistrate erred in law and fact by holding that the plaintiffs' suit was not barred by the doctrine of lis pendens in light of the existence of civil suit no. 33 of 2011 Paulo Lubyayi Salongo V Rev. Kaye Hannington and Another.

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- 4. The learned trial magistrate erred in law and fact when he held that the defendants were trespassers on the suit land in disregard of cogent oral and documentary evidence of the defendants' claim to ownership and authority over the property. - 5. The learned trial magistrate erred in law and fact in granting a permanent injunction against the $3^{rd}$ defendant from accessing the suit property despite the fact that she is the registered proprietor of the property.

The appellant prayed that the judgment, orders and decree of the trial magistrate be set aside and varied.

#### Representation.

The appellants were represented by Mr. Keneth Kiapi of M/S MMAKS Advocates while the respondents were represented by Mr. Sajjabi Richard of Kahara & Co. Advocates.

## First appellate court's duty.

This being a first appeal, this court is under an obligation to re-evaluate the evidence presented to the court below and subject it to a fresh and exhaustive scrutiny and re-appraisal before coming to its own conclusion. This duty is well explained in **Father Nanensio Begumisa and** three Others V Eric Tiberaga, SCCA 17 of 2000; [2004] KALR 236 thus;

"It is a well-settled principle that on a first appeal, the parties are entitled to obtain from the appeal court its own decision on issues of fact as well as of law. Although in a case of conflicting evidence the appeal court has to make due allowance for the fact that it has neither seen nor heard the witnesses, it must weigh the conflicting evidence and draw its own inference and conclusions."

This court therefore is enjoined to weigh the conflicting evidence and draw its own inferences and conclusions in order to come to its own decision on issues of fact as well as of law and remembering to make due allowance for the fact that it has neither seen nor heard the witnesses. The appellate Court is confined to the evidence on record. See also; Alule Richard V Agwe Dominc HCCA No. 032 of 2014.

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Consideration of the grounds of appeal.

#### Ground 1

1. The learned trial magistrate erred in law by holding that the magistrate grade one had the jurisdiction to determine a dispute whose subject matter value exceeded Shs. 50,000,000/ $=$ .

The learned counsel for the appellant submitted that the learned trial magistrate in Miscellaneous Application No.02 of 2021 that challenged the pecuniary jurisdiction of the court admitted that the value of the property exceeded twenty million shillings but proceeded to find that he had the requisite pecuniary jurisdiction as in his view the dispute was nonmonetary and accordingly one of civil customary law which the court had unlimited jurisdiction under section 207(2) and (4) of the Magistrate's Court Act (MCA)

Counsel further cited section 1 (a) of the MCA which defines civil customary law as the rules of conduct which govern legal relationships as established by custom and usage and not forming part of common law nor formally enacted by parliament. That the respondents' claim shows that it was primarily for trespass and recovery of kibanja interest in land based on a contract between their late father and Deo Ssemuwemba. The respondents also claimed mesne damages from the appellants which were not specified in the plaint. That these matters are governed by the land act which deals with equitable interests in land such as kibajas, the contracts act and the action for trespass is maintainable under the common law action for trespass. Furthermore, that the interest claimed by the respondents formed part of a titled interest comprised in block 776 plot 5 at the time which was brought to the attention of the court. counsel cited the case of Koboko District Local Government V Okujjo misc. civil application no. 001 of 2016.

On the other hand, the learned counsel for the respondents submitted that the appellants had a duty to produce evidence showing the value of the suit property when the cause of action arose. That it was erroneous for the trial magistrate to state at page 183 of the record of

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proceedings that the value of the property was beyond twenty million shillings without evidence from the appellants showing the value of the subject matter at the time of filing the suit. That the valuation report that the appellants wish to rely upon was based on the value of the property in 2020 and not when the cause of action arose.

## Analysis.

Jurisdiction of courts is a creature of statute and is only granted by law. If proceedings are conducted by a court without jurisdiction, they are a nullity and the award or judgment arising from the proceedings of court without jurisdiction are also a nullity. **See: Desai V Warsama** $(1967)$ EA 351.

At the trial, the appellants filed Misc. Application No. 02 of 2021 challenging the jurisdiction of the trial court and also seeking that the suit be struck out for being time barred by law. The appellant attached a valuation report which showed that the market value of the land with private mailo interest as the subject matter was shs. $112,000,000/$ = and the market value as a customary interest was shs. 100,000,000/ $=$ . The trial court went ahead to visit the locus to satisfy itself on the issue of valu.

On page 183 of the record of appeal (paragraph 6), trial magistrate observed that although in his opinion the valuation report may have been hyped, that the property was way beyond twenty million which is the maximum limit as far as jurisdiction of the court was concerned.

No other valuation report to the contrary was presented before the magistrate by the respondents. The trial magistrate however ignored that valuation report and his own observation at the locus which had informed him of the value of the subject matter. He went ahead to hear the case on grounds that the court has unlimited jurisdiction because the land was governed by civil customary law.

**Section 206 (1) (2) of MCA** provides that a Magistrate Grade I shall have jurisdiction where the value of the subject matter does not exceed twenty million shillings. **Subsection 2** further provides that where the cause or matter of a civil nature is governed only by civil customary law, the jurisdiction of a chief magistrate and a grade one magistrate shall be unlimited.

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Section 1 of the MCA defines civil customary law to mean rules of conduct which govern legal relationships as established by custom and usage and not forming part of common law nor formally enacted by parliament.

In the case of **Koboko District Local Government v Okujio (supra)** cited by counsel for the appellant, the court found as follows:

"Upon examination of the plaint as filed in the Magistrate's Court at Koboko, it is evident that although the respondent claimed to have owned the land under customary tenure, his claim in contract (for the agreed sum of shs. $1,500,000/$ = as compensation for his cassava) and trespass (for the activities of the applicant and the rest of the defendants which continued upon expiry of the two months) was not governed "only by civil customary law" but also by the law of contract both under common law and The Contract Act, 2010. The action in trespass as well is maintainable under the common law of torts. The claim was therefore based on legal relationships forming part of the common law and partly by enactment of Parliament. This was not an action based exclusively on civil customary law. Therefore, the Grade One Magistrate's Court did not have unlimited jurisdiction but rather its pecuniary jurisdiction was limited to shs $20,000,000/$ = as stipulated by s $207(1)(b)$ of The Magistrates Courts Act."

In this case, the respondents/plaintiffs sought that they be declared the lawful owners of the suit land and that the appellants be declared trespassers on the suit land. The said suit land having been said to belong to their late father Paulo Lubyayi Kaggwa Salongo. It was the respondents' contention that their late father purchased the land from a one Deo Ssemuwemba. The agreement of purchase was tendered in court as PEX1. This implied that the suit land was governed both by the Contract Act and the Land Act for which the respondents claimed lawful occupancy.

Further of importance to note, is that it was brought to the attention of the trial court that the suit land formed part of land comprised in Singo block 776 plot 110 at Kyankwanzi. Certificate of title was admitted in evidence as DEX8. In the judgment of the trial court, on page 12 the trial magistrate found that the $3<sup>rd</sup>$ defendant owned the 300 acres comprised in

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block 776 plot 110 at Butemba Kyankwanzi subject to the respondents' interest. This shows that the trial magistrate was well aware that the suit land was governed by the Registration of Titles act but choose to ignore that fact and treat the land as customary land.

In the case of Wakisa Fred V Katabarwa Josephine HCCA No. 06 of 2021, the court found that the subject matter was governed by the Registration of Titles Act and therefore, the Magistrate Grade I did not have that unlimited jurisdiction.

From the above observations, it is my finding that the current suit was not based exclusively on civil customary law and the trial magistrate had no jurisdiction to entertain and hear the matter that was clearly beyond the court's pecuniary jurisdiction. He ought to have dismissed the case at the stage when he became aware of the value of the subject matter or refer the same to the Chief magistrate for re-allocation. The trial magistrate however chose to ignore what was clearly before him and entertained the matter without jurisdiction.

In the circumstances, the proceedings in the lower court were a nullity for lack of jurisdiction.

I find no need to continue with other grounds of appeal since this ground alone disposes off the entire appeal.

This appeal succeeds with the following orders;

- 1. The proceedings of the magistrate's court are a nullity for lack of jurisdiction. - 2. The Judgment, orders and decree of the trial court are hereby set aside. - 3. Costs of the appeal and the lower court are awarded to the appellants.

I so order.

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KAREMANI JAMSON. K

**JUDGE**

$31/01/2025$