Kibuya v Khayemba & 6 Others (Revision Cause 9 of 2023) [2024] UGHC 765 (22 August 2024)

### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT HOLDEN AT MBALE

# **REVISION CAUSE NO.09 OF 2023**

# (ARISING FROM CIVIL SUIT NO.4 OF 2014 AT SIRONKO MAGISTRATES COURT)

ANDREW KIBUYA MUTUBUSI ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

- 1. KHAYEMBA PETER KUNDU - 2. KWEMBOI JOHN - 3. MBUYIRA ROBERT STIN - 4. MUHAMED BARASA - 5. WAFULA ROBERT SUNGURA - 6. NASWA PILIA

7. PETER WESANJA :::::::::::::::::::::::::::::::::::

### BEFORE HON. JUSTICE LUBEGA FAROUQ

### **RULING**

### 1. Introduction

2. This application was brought by way of notice of motion under sections 83 and 98 of the Civil Procedure Act Cap 282, Section 37 Judicature Act Cap 16 and Order 51 Rules 1 and 3 of the Civil Procedure Rules CPR SI.71-1 for orders that-

(a) The decree and orders of the trial Magistrate in Sironko Civil Suit No.4 of 2014 dated 28th January 2020 be revised and set aside;

(b) Execution of the decree in Civil Suit No.4 of 2014 be annulled, cancelled and/or set aside; $\frac{1}{2}$

(c) The suit be heard and determined by the Grade One Magistrate Court of Bulambuli, and

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(d) Costs of this Application be provided for.

### 3. Background

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4. This is an application to revise the proceedings and judgment by his worship Kityo Patrick Magistrate Grade One of Sironko in Civil Suit No.4 of 2014 which the Applicant claims was illegal for offending the Magistrate Courts Act, the Magistrate Courts (Magisterial Areas) Instrument of 2017 since the same was handled without jurisdiction to try and determine a land suit falling under the territorial jurisdiction of the Bulambuli Magistrate Court which was operational and presided over by a substantive grade one magistrate in 2017. The hearing of stated suit commenced on 15th November 2017 to 28th January 2021 when the Bulambuli court was operational.

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- 5. The Applicant also claim that the suit land is titled and measuring 325 acres for which the trial grade one magistrate did not have powers to determine its ownership without dealing with the certificate of title. Therefore, his decision s. was made in error and ought to be corrected by grant of this application. - 6. On the other hand, the Respondents refuted the Applicants claims and stated that the trial Magistrate had jurisdiction to handle the matter since the same was filed in 2014 before the Bulambuli Magistrates Court was created and there was no directive by a higher court or by the Chief Registrar to transfer the file which was already partly heard to Bulambuli. - 7. The further contended that by the time Bulambuli Magistrates Court started operating in 2018, the matter had already been handled by the trial Magistrate and the same was in is advanced stages. Therefore, this Application lacks merit and the same was only brought to waste court's time and resources. - 8. He prayed that the same be dismissed with costs for lack of substance. - 9. This application was supported by the affidavits of **JOSHUA WABUYI AND** JENNIFER NABWIRE the holders of the powers of attorney for Reverand Father Andrew Kibuya Mutubusi the Applicant whose affidavits are similar in content briefly they averred that

a. The Respondents sued the Applicant in the Magistrate's court of Sironko where judgment/decree was given has glaring errors and irregularities on the face of the record and the same should be revised and set aside;

b. The Applicant is aggrieved by the judgment and decree of the Magistrate Grade One as a whole and the orders therein;

c. The trial Magistrate exercised the jurisdiction not vested in him by hearing and determining a land matter originating from Bulambuli magisterial area contrary to the Magistrates Courts (Magisterial Areas) Instrument of 2017;

d. The Bulambuli magistrate court was operational at the time of hearing and judgment of this case in 2020;

e. The trial Magistrate erred in law and fact when he held that the Applicants admitted the Respondents' claims that he did not buy the land in respect of the 1st, 3rd, 4th and 5th Plaintiffs/Respondents contrary to the record of proceedings;

f. The trial Magistrate erred in law and fact when he decreed the suit land to the Plaintiffs/Respondents well knowing it is registered land and without cancellation or impeachment of certificate of title.

This application was opposed by the affidavit in reply of the 4th 10. Respondent **MUHAMMED BARASA** and briefly stated that-

a. At the commencement of the hearing, he shall raise preliminary points of law to the effect that-

i. this application is incurably defective as it was filed against one of the Respondents, KWEMBOI JOHN who died long time and that the Applicant is fully aware of the same

ii. this application is frivolous and vexatious and a wastage of court's time as the Applicant already filed this application under Revision Cause No.2 of 2022 and the same was dismissed for nonappearance per dismissal order marked $B''$ ), and

iii. The affidavit in support is incurably defective as no powers of attorney have been attached to prove authority to depone the same;

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b. The trial Magistrate had jurisdiction to entertain the matter since the same was filed in 2014 before the Bulambuli Magistrate's Court was created;

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c. There was no directive by any higher court or the Chief Registrar for the trial Magistrate to transfer the file that was partly heard to Bulambuli Court; d. The Bulambuli court was created in 2017 and started operating in 2018, when the matter was already being heard by the trial Magistrate Grade One of Sironko;

e. The orders sought for in this Application cannot be tenable;

f. The case the Respondents filed in the lower court was for trespass and declaration of ownership, and not for cancellation of the certificate of title since they only got to know about it in 2019, towards judgment;

g. The Applicant was fully represented during the hearing and he never raised any objection as to the jurisdiction of court;

h. The Applican't ought to have applied to set aside the dismissal order and reinstate Civil Revision No.02 of 2022 instead of making a fresh application; and

i. This application is a sham, only intended to waste court's precious time and resources.

In rejoinder **JOSHUA WABUYI** averred briefly as follows-11.

a. The affidavit in reply is incurably defective for lack of consent of parties and ought to be struck out with costs;

b. The death of the 2nd Respondent has not been proved and it does not abate this suit since other parties are alive;

c. The previous Miscellaneous Cause No. 2 of 2022 arising from Sironko Civil Suit No.4 of 2014 was commenced by George Masolo in this court without the knowledge or consent of the Applicant when he had long ceased to be a holder of power of attorney for the Applicant and this explains why he did not prosecute it to its conclusion;

d. That Applicant instituted this application through the deponent and a one Jeniffer Nabwire who have powers to represent him in this case;

e. The trial Magistrate did not have the geographical jurisdiction to hear and determine the case being preserve of Bulambuli Magistrate Court that was operative since 2017 under the Magistrates' Courts (Magisterial Areas) Instrument 1 l of 2017;

f. At the time of hearing and determination of this case Hw Agwango Julian was deployed as substantive Grade One Magistrate of Bulambuli;

g. The trial Magistrate illegally and with material irregularity presided over a land dispute in Bulambuli district which is a case involving a certificate of title whose value was high and above his jurisdiction.

#### 12. **Legal Representation**

The Applicant was represented by Counsel Iman Ali on brief for Counsel 13. Kikwe Allan while the Respondents were represented by Counsel Nicholas Agaba.

#### 14. **Submissions**

At the hearing of this Application, both counsel where given schedules to 15. file their respective written submissions and they all complied.

#### **Analysis of court** 16.

Before I deal with the merit of the application, I will handle the preliminary 17. objections raised by the parties in their respective submissions and evidence as below.

#### Preliminary objections by the Respondents 18.

- (a) This application is incurably defective as it was filed against one of the Respondents, KWEMBOI JOHN who died long time and that the Applicant is fully aware of the same; - (b) This application is frivolous and vexatious and a wastage of court's time as the Applicant already filed this application under Revision Cause No.2 of 2022 and that the same was dismissed for nonappearance, and - (c) The affidavit in support is incurably defective as no Powers of Attorney have been attached to prove authority to depone the same. - The 1<sup>st</sup> Preliminary objection: whether this application is incurably 19. defective for being against KWEMBOI JOHN who died long time.

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Order 24 Rule 1 of the Civil Procedure Rules SI.71-1 provides-20.

THE RELAXED BETTER RELAXED

With a Adding particular particular particular in the

the state of the state

"The death of a plaintiff or defendant shall not cause the suit to abate if the cause of action survives."

was been provided

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See: Eriakim Kasegu and 10 others V. Francis Kaahwa Civil Appeal No.106 of 2022

ing Antario Sample and Company Company Sample and Application

- 21. I have perused the amended plaint of Sironko Civil Suit No.14 of 2014 from which the instant application arises and it is evident in paragraph 3 that the plaintiffs' action was against the Applicant/defendants jointly which means the death of one of them would not make the cause of action cease because it was joint and therefore can be pursued by the surviving parties. - In view of the above, this application is therefore not defective for being 22. against KWEMBOI JOHN who died because the cause of action survived his death and the verdict following this application will directly affect his estate. - 23. The $1^{st}$ preliminary objection is hereby overruled. - The $2^{nd}$ Preliminary objection: whether this application is frivolous 24. and vexatious and a wastage of court's time because it was previously filed under Revision Cause No.2 of 2022 and was dismissed for nonappearance.

25. Order 9 Rule 18 of the Civil Procedure Rules provides-

> "Where a suit is dismissed under rule 16 or 17 of this order, the plaintiff may, subject to the law of limitation, bring a fresh suit or he or she may apply for an order to set the dismissal aside; and if he or she satisfies the court that there was sufficient cause for his or her not paying the court fee and charges, if any, required within the time fixed before the issue of the summons or for his or her nonappearance, as the case may be, the court shall make an order setting aside the dismissal and shall appoint a day for proceeding with the suit."

$26.$ Also see Crown Beverages Limited Vs Stanbic Uganda Limited Misc. Application No.0181 of 2005.

27. I have gone through the court record and there is no such application or dismissal order of the same on the court record. It is important to note that court does not act on speculations but on evidence. Therefore, the Respondent ought to attach the same for this court to take notice of it.

- In any case, since the alleged application was dismissed without it being 28. heard on its merit, the same does not prevent the Applicant from instituting a fresh application. - The $2^{nd}$ preliminary objection is overruled. 29.

## The $3^{rd}$ Preliminary objection: The affidavit in support is incurably 30. defective as no Powers of Attorney have been attached to prove authority to depone the same.

- The Applicant stated in paragraph 4 of the affidavit in rejoinder that the 31. previous Miscellaneous Cause No.2 of 2022 arising from Sironko Civil Suit No.4 of 2014 was commenced by George Masolo in this court without the knowledge or consent of the Applicant when he had long ceased to be a holder of Power of Attorney and this explains why he did not prosecute it to its conclusion. There is however no proof to the effect that George Masolo had ceased to be a lawful attorney for the Applicant. - 32. According to the court record particularly the affidavit in rejoinder, three individuals were appointed by the Applicant as his attorneys to wit-John Wabuyi, Jennifer Nabwire and George Masolo who are supposed to work jointly. - John Wabuyi and Jennifer Nabwire averred that the Misc. Cause No. 2 of 33. 2022 was dismissed because a one George Masolo had filed it without their consent however even in the instant case, it is not indicated whether George Masolo consented to the instant Application or not since looking at the Power of Attorney attached, he is still a lawful attorney. - Nevertheless, John Wabuyi attached a copy of the Power of Attorney dated 34. 10th May 2021 and registered on 15th December 2021 which shows that John Wabuyi and two others were appointed by the Applicant to be his lawful attorneys. - The affidavit in support is therefore not defective because the deponents 35. had the authority to depone the same,

The 3<sup>rd</sup> preliminary objection is overruled. 36.

#### 37. Preliminary objection by the Applicant

The Applicant in paragraph 2 of his affidavit in rejoinder stated that the 38. affidavit in reply is incurably defective for lack of consent of parties and ought to be struck out with costs.

## In Baligasiima Vs Kiiza & Ors Miisc. Application No.1495 of 2016 39. [2019] UGHCLD 17 (23 January 2019) court held-

"An affidavit is defective by reason of being sworn on behalf of another without showing that the deponent had the authority of the other".

**SET OF SECONDARY**

and the large state provided the first

that and a support of the

40. In Najjuma Jesca and Others Vs Moses Joloba and Another Misc. Application No.770 of 2019 while citing with approval of the case of Kaingana V. Dabo Boubou (1986) HCB 59, it was held-

> "Whereas in representative suits, the party who obtains the order to file the suit can swear affidavits binding on others on whose behalf the suit is brought, this exception does not apply to all other suits. In cases where an affidavit is sworn on one's behalf and on behalf of others, there is need to prove that the others authorized the deponent to swear on their behalf. Proof of such authorization is by a written document attached to the affidavit."

- On critical observation of the affidavit in reply to this application, it is clear 41. that it was deponed by the 4<sup>th</sup> Respondent on behalf of others but there is no averment or proof attached to the effect that he had authority to swear on behalf of the rest of the Respondents. - In Grace Namulondo & 3 Others Vs Jone Johns Serwanga Salongo, 42. Senyonga Patrick and the Commissioner for Land Registration, Misc. Cause No. 001 of 2019 it was held-

"No proceeding in a court of law should be allowed to be defeated on mere technicalities. The provisions of the civil procedure rules must be interpreted in a manner so as to serve and advance the cause of justice rather than to defeat it. Every omission or mistake in practice or procedure is henceforth to be regarded as an irregularity which court can and should rectify, as long as it can do so without injustice and is not an abuse of court process."

- In the instant case, the 4<sup>th</sup> Respondent who deposed the affidavit in reply 43. indicated that he got authority from other Respondents to do so. The law above cited however requires such authority to be in writing but since the Respondents' evidence is needed for the proper determination of this Application, indication that he was given authority, is sufficient enough. - 44. This preliminary objection is overruled.

## 45. Merits of the application

- This court framed two issues for the determination of this application to 46. wit - **i.** Whether this application discloses any grounds for revision? - ii. What remedies are available to the parties? - Issue No. 1: Whether this application discloses any grounds for 47. revision? - The Black's Law Dictionary, 9th Edition; defines revision as a re-48. examination or careful review for correction or improvement or an altered version of work. - Section 83 of the Civil Procedure Act Cap 282 provides-49.

"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

(c) acted in the exercise of its jurisdiction illegally or with material *irregularity or injustice, the High Court may revise the case and may* make such order in it as it thinks fit; but no such power of revision shall be exercised(d) unless the parties shall first be given the opportunity of being heard; or

(e) where, from lapse of time or other cause, the exercise of that power would involve serious hardship to any person."

50. Section 5 of the Civil Procedure Act provides-

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"Any court shall, subject to the provisions herein contained, have jurisdiction to try all suits of a civil nature excepting suits of which its *cognisance is either expressly or impliedly barred."*

51. In Vidyodaya Trust and Ors Vs Mr. Mohan Prasad R and Ors Appeal (civil) 3679 of 2006 the Supreme Court of India held that-

> "The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which *no appeal lies thereto, and if such subordinate Court appears* (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make each order in the case as in thinks fit provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings."

- 52. This court is therefore under duty to determine whether the trial Magistrate exercised jurisdiction not vested in him by law or failed to exercise a jurisdiction so vested or acted in the exercise of its jurisdiction illegally or with material irregularity. - 53. It is trite that a court cannot give itself jurisdiction in a case outside its jurisdiction on the ground that it would be for the convenience of parties and witnesses. (See: Assanand and Sons (Uganda) Ltd V. East African Records Ltd $[1959]$ EA 360.)

- It is a settled law that if a court has no jurisdiction whether pecuniary or $54.$ territorial over the subject matter of the litigation, its judgment and orders, however precisely certain and technically correct, are mere nullities and therefore have no effect. (See: Seif V. Shariff Muhamed Shatry (1940) 19 (1) KLR $9.$ ) - The Applicant under paragraphs 5 and 6 of the affidavit in support and in 55. submissions stated that the trial Magistrate exercised a jurisdiction not vested in him by hearing and determining a land matter originating from Bulambuli magisterial area contrary to the Magistrates Courts (Magisterial Areas) Instrument of 2017 yet the Bulambuli Magistrate Court was operational at the time of the hearing and judgment of Sironko Civil Suit No.4 of 2014 in 2020. - I have studied the Magistrates Courts (Magisterial Areas Instrument of 56. 2017) and noted that at number 78 among the courts that were created in Soronk district, Bulambuli grade one magistrate was one of them but it is not clear as to when it started operating since that proof was not tendered in court by the Applicant. - According to the court record, the hearing of Land Suit No. 004 of 2014 57. started in 2015, scheduling proceedings were conducted on $11/\frac{07}{2016}$ and the 1<sup>st</sup> plaintiff's witness testified on 15<sup>th</sup>/11/2017. The said instrument which created the alleged court commenced on 27<sup>th</sup> of January, 2017 which means by the time it commenced, the mentioned suit was already under hearing. - Ordinarily, when a particular court is created by a statutory instrument, 58. it does not start to operate immediately since there is usually a lot to be done administratively to ensure its effective operation. Some of the courts may start to operate in months of the issuance of the instrument or after a year. - 59. After the creation of a court station by any statutory instrument, it becomes a matter of internal administration of the judiciary to ensure its operation. Usually, when such a court is ready for operation, the court which handled matters of that particular jurisdiction receives previously

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instructions from the administrators to transfer those cases to that court as per section 170 of the Magistrates Courts Act Cap 19. However, no such document was tendered by the Applicant.

- In any event, if the magistrate grade one had received such instructions 60. from the chief magistrate of the station, he would definitely have forwarded the same to him or her for further action. - 61. Be the above as it may, following the wording used by the Chief Justice in Magistrates Courts (Magisterial Areas Instrument of 2024) under Rule 5 of the instrument, he said; all civil and criminal matters **previously filed and pending hearing** be transferred to the respective courts. - 62. Land Suit No. 004 of 2014 was previously filed in Sironko Chief Magistrate Court and in 2017, it was under hearing and not pending hearing. This means that if matters were to be transferred from Sironko court to Bulambuli court. Land Suit No. 004 of 2014 would not fall under the category in Rule 5 since the same was under hearing. - 63. In the circumstance, magistrate grade one of Sironko court had the geographical jurisdiction to hear Land Suit No. 004 of 2014. - The Applicant further averred under paragraph 10 of the affidavit in 64. rejoinder that the magistrate grade one of Sironko illegally and with material irregularity presided over a land dispute in Bulambuli district and decided a case involving a certificate of title whose value was high and above his jurisdiction. - 65. Section 206 (1) of the Magistrates Courts Act Cap 19 is to the effect that every magistrate shall have the jurisdiction to handle all the matters of civil nature excepting suits of which its cognizance is either expressly or impliedly barred by law. - Section 206 (3) of the same Act provides that-66.

"Whenever for the purpose of jurisdiction or court fees it is necessary to estimate the value of the subject matter of a suit capable of a money valuation, the plaintiff shall in the plaint, subject to any rules of court,

fix the amount at which he or she values the subject matter of the suit..."

Order 6 rule 1 (i) of the Civil Procedure Rule SI.71-1 provides that-67.

"The Plaint shall contain the following particulars-

(i) a statement of the value of the subject matter of the suit so far as the case admits."

In Murakatete Faith Vs Boniface Ayebare, High Court Civil Revision 68. No.43 of 2011 it was held that-

> "Although at the time of filing the suit it was ostensibly within the pecuniary jurisdiction of the court, the chief magistrate acted without jurisdiction when he passed judgment and issued a decree which *was beyond his pecuniary jurisdiction and rightly declined to execute* the decree because his judgment and subsequent orders were void and an order of revision was made setting them aside."

- 69. The Respondents in the present application sued the Applicant under Civil Suit No. 004 of 2014 for trespass, ownership, permanent injunction and general damages. The value of the subject matter was however never indicated in the plaint as required by the law. - 70. There was therefore no value of the land on the record to guide the trial magistrate. - In Tarema V. Kitetenyi and 2 Ors Civil Revision No.1 of 2017 Justice 71. Dr. Flavian Nzeija while referring to Owners of Motor Vessel Lillian V. Caltex Oil Kenya Limited (1989)(1) KALR stated that-

"....any prudent judicial officer ought to have inquired about the exact *value of the estate in question before handling the matter. More so by* merely looking at the Plaint and the stating of over 400 heads of cattle this would have rang a bell in the mind of the trial Magistrate about the value of the subject matter. Whether the subject matter was pleaded or not, the trial Magistrate ought to have inquired and established the amount of the estate involved first before she determined the matter and granted the orders she did. Jurisdiction is

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Astinable William Was the Self in $\mathcal{A}^{(k)}\left(\mathcal{A}^{(k)}\right)\left(\mathcal{A}^{(k)}\right)\left(\mathcal{A}^{(k)}\right)$ a very crucial aspect in litigation. Without it a court has no power to make any step. A court of law downs its tolls in respect of the matter *before it the moment it holds the opinion that it is without jurisdiction.*

and the contract of the second party of

Paras and resident to the second state and the state and the same

ing with the transformation of the state of the state of the state of the state of the state of the state of the

A the side the distance is a subsequent to be the control of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the state of the s

- I agree with my brother judge. Since the law clearly provides that the value 72. of the subject matter should be included in the plaint, it bestowed a duty upon any judicial official handling a matter where the value of the subject must be established to inquire in to the same before it is adjudicated upon. - Counsel for the Applicant submitted that the suit land is titled land 73. measuring 325 acres and the trial magistrate did not have power to decide ownership of the same. - 74. I have looked at the certificate of title for Block 4, Plot 151 land at Bubulo in Bulambuli district issued to the Applicant on $16/07/2014$ under instrument No. 00005416. The suit land per the title measures 132.4110 hectares. - Although the value of the subject land was not adduced by the Applicant, 75. it is obvious that the value of approximately 327.511 acres of titled land is beyond the jurisdiction of the magistrate grade one, considering the value of the land in that area. - Consequently, the trial magistrate having handled the matter without 76. inquiring into the value of the subject matter, failed to exercise the diligence required of a judicial officer and exercised the jurisdiction not vested in him by the law. - 77. In the circumstances, it is found that the trial magistrate handled a matter beyond his pecuniary jurisdiction. - 78. Issue No. 1 is answered in the affirmative.

国际中国科学 计结构 计自由调整

- Issue No. 2: What remedies are available to the parties? 79. - 80. It is trite that the effect of hearing a matter without jurisdiction nullifies the results of the trial court. - Therefore, the decree and orders of the trial magistrate in Civil Suit No. 4 81. of 2014 dated 28<sup>th</sup> of January, 2020 are hereby nullified and set aside.

Parties are advised to institute this case in a court with jurisdiction to hear 82. the same.

83. I so order.

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$\mathcal{P}_{\mathcal{M}}^{(1)}(S_{\mathcal{M}}) = 0$


## LUBEGA FAROUQ

## **JUDGE**

Ruling delivered via the emails of the parties on 22<sup>nd</sup> day of August 2024

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