Kirimbwa & Another v Nakiluuta (Civil Revision 12 of 2022) [2023] UGHC 402 (3 July 2023)

### **THE REPUBLIC OF UGANDA**

#### **IN THE HIGH COURT OF UGANDA AT MASAKA**

### **CIVIL REVISION NO. 12 OF 2022**

#### **(ARISING FROM DOMESTIC VIOLENCE CAUSE NO. 197 OF 2022)**

### **1. SSALONGO KIRIMBWA ANTHONY**

**2. KYEYUNE LATIF …………………………….…………….………… APPLICANTS**

#### **VERSUS**

**NAKILUUTA LYDIA ………………………………….….…………….. RESPONDENT**

### **RULING**

*Hon. Lady Justice Victoria N. N. Katamba*

#### **BACKGROUND**

The Respondent instituted Domestic violence cause No. 197 of 2022 against the Applicants in the Chief Magistrates court of Masaka at Masaka. The matter was allocated to the Chief Magistrate who upon realising that it was a matter that is required to be disposed of at the earliest opportunity re- allocated it to a magistrate grade one at her station to handle.

At the hearing, the Applicants' raised a preliminary objection as to the trial magistrate's lack of territorial jurisdiction to hear the matter because the dispute arose at Lukaya. The Applicants maintained that the trial magistrate grade one had no jurisdiction to hear the matter because there is a magistrate's court at Lukaya. The record of the trial court shows that the trial magistrate referred the Applicants' objection to the Chief magistrate for further guidance. The Chief magistrate still referred the file back to the said trial magistrate grade one with firm instructions that she should handle the matter.

Accordingly, the trial magistrate grade one heard the parties and delivered her Ruling in the matter on the merits. The Applicants were dissatisfied with the orders of the trial magistrate grade one and thus instituted the instant appeal based on the same objection among others.


#### **Representation**

The Applicant was represented by **M/s Kitimbo & Co. Advocates**.

The Respondent was on the other hand represented by **Counsel Regina Babukiika of M/s Justice Centers**.

#### **Applicant's Submissions**

#### **ISSUES**

The Applicant raised the issues below for trial;

- a) Whether appropriate grounds exist to warrant revision of the proceedings in miscellaneous cause No 197 of 2022; Nakiluuta Lydia -versus- Ssolongo Kiribwa Anthony & Another. - b) What remedies are available to the parties?

# I**ssue one** – *whether appropriate grounds exist to warrant revision of the Proceedings in miscellaneous cause No 197 of 2022; Nakiluuta Lydia -versus- Ssolongo Kiribwa Anthony & Another.*

The Applicant defined revision in accordance with the **Black's law Dictionary (9th Edition**), revision is defined as; "a re- examination or careful review for correction or improvement or "an altered version of work."

The Applicants also submitted that revision is provided for under *Section S.83 of the Civil Procedure Act, Cap. 71 in which it is provided thus;*

*"The High Court may call for the record of any case which has been determined under the Civil procedure by any Magistrate Court, and if that Court appears to have-*

- *a. Exercised jurisdiction not vested in it in law;* - *b. Failure to exercise jurisdiction so vested; or*


*c. Acted in the exercise of jurisdiction illegally or with material irregularity or injustice…"*

# **Exercise of jurisdiction not vested in it in law.**

The Applicants submitted that acting without jurisdiction is an instance of illegality. They referred this court to the authority of *Pastoli V Kabale District Local Government Council and others (2008) 2 E. A 300).*

The Applicants, further submitted that **Section 215 (1) (a) of the Magistrates Courts Act cap 16 as amended by the Magistrates Court (Amendment) Act, 2007** provides for the territorial jurisdiction of Magistrates Court; it provides that every suit shall be instituted in a Court within the local limits of whose Jurisdiction where the Defendant resides or where the cause of action wholly or in part arises.

The Applicants supported their submissions with the decision of the *Hon. Mr. Justice Lawrence Tweyanze* in *Walakira Jakobo Versus Nakalanzi Rose High Court Civil Revision No.7 of 2021* in which it was held that;

*"when civil suit No. 150 of 2012 was filed in Masaka chief Magistrates Court and allocated to a grade one Magistrate at Masaka to try it, Rakai Magistrate Grade One Court was already established by virtue of SI 45 of 2007 and therefore it was a competent Court seized with power to try it"*

The Applicant thus invited this Honourable Court to find that the trial court exercised Jurisdiction not vested in it in law.

# **It is also the Applicant's contention that the trial court acted in the exercise of jurisdiction illegally or with material irregularity or injustice**

To prove their claims, the Applicants argued that trial magistrate erred in hearing an application which was commissioned by Counsel for the Respondents from Justice Centres who was counsel in personal conduct of the case; Ms. Regina Babukiika

The Applicants submitted that *Regulation 9 of the Advocates (Professional conduct) Regulations SI 267-2 bars an advocate from representing a client in a matter in which they are potential witnesses.*


The Applicants also cited *Section 4(1) of the Commissioner for oaths [ Advocates] Act Cap 5 provides that bars commissioners for oaths from commissioning matters in which he or she is the advocate for the parties to the proceeding or concerned in the matter or clerk to any such advocate or in which he or she is interested.*

The Applicants buttressed their submissions with the case of *Mpanga Farouq -Versus-Ssenkubuge Isaac & Electoral Commission Election Petition Appeal No. 13 OF 2021*in which the Justices of Appeal stated thus;

*''the appellant's/Petitioner's affidavit in support was commissioner by a one Ms. Nampera Juliet who was a practicing advocate under M/s Lukwago & Co. Advocates, the same firm which is represented the petitioner that drew and filed his petition. We agree with the learned trial Judge that Ms. Nampera Juliet was concerned and/or interested in the petitioners/appellants petition by virtue of her employment as an advocate at the same law firm that represents the appellant/petitioner. According to the law, she would be interested in the matter even if she was a merely a clerk in the firm. M/s Nampera Juliet's actions therefore contravened section 4(1) of the Commissioner of Oaths Act''*

The Applicants also quoted *Schedule 2 (Rule 19) under rule 4 of the Judicature (mediation) Rules 2013 (Statutory Instrument 10 of 2013)* which provides that a mediator shall disclose to the parties to the mediation any matter which could be regarded as a conflict of interest, the mediator shall disclose the conflict of interest as soon as the conflict of interest arises which could be prior to or during the mediation. They submitted that Justice Centres having conducted mediation in the matter could not have represented the Respondent in the trial court because according to them this also created a fiduciary relationship under under *Regulation 10 of the Advocates (Professional conduct) Regulations 267-2.*

In conclusion the Applicants submitted that the learned trial Magistrate applied her jurisdiction with material irregularity thereby occasioning a miscarriage of justice.


#### **What remedy is available to the parties**

The Applicants made the prayers below;

- a) The ruling and orders issued by Her Worship Nyakato Maureen Grade One Magistrate of Masaka at Masaka be revised and set aside. - b) A declaration to issue that the learned Trial Magistrate exercised Jurisdiction not vested in her in law when she entertained **Domestic Violence Cause No. 197 of 2022; Nakiluuta Lydia -versus- Ssolongo Kiribwa Anthony & Another** and issued the impugned orders. - c) A declaration that the learned Trial Magistrate unlawfully assumed jurisdiction not vested in her, exercised it with material irregularities and with injustice. - d) Costs of this Application be provided for and to be paid by the Respondent.

# **Respondent Submission's**

*a) Whether appropriate ground exist to warrant revision of proceedings in Misc. App. No.197 of 2022; Nakiluuta Lydia Versus Ssalongo Kirimbwa Anthony and Another.*

The Respondent submitted that Misc. App. No.197 of 2022; Nakiluuta Lydia Versus Ssalongo Kirimbwa Anthony and Another was brought under the provision of the Domestic Violence Act. That Section 9 of the Act provides that every Magistrate has jurisdiction over matters of Domestic violence and the courts are granted powers to issue reliefs sought for.

The Respondent also submitted that the Act gives every Magistrate power and jurisdiction to hear and determine any Domestic violence cause before him or her, and determine the cause as provided for under the Domestic Violence laws expeditiously or within 48 hours.

The Respondent further submitted that the cause of action in the trial court vide Misc. Application No. 197 of 2022 was for acts of Domestic violence to wit intimidation, harassment, emotional verbal abuse, economic abuse meted out against the respondent by the applicants. That the Respondent sought court's intervention to deter such acts by ordering the applicants to desist from the said actions but not to determine rights over the Matrimonial property/Kibanja as alleged by the applicants.


That although the acts of domestic violence occurred at Lukaya in Kalungu District and there exists a Grade One Court, the said Grade one is within the Chief Magisterial area of Masaka. The Domestic Violence Cause vide Misc. Application No. 197 of 2022 was first heard by the Chief Magistrate of Masaka on the 5 th day of May, 2022 in presence of all parties and their counsel and raised no objection as to jurisdiction. The said Chief Magistrate later after serious communications about the urgency of the matter re – allocated the file to the Grade one with directions to expedite the same. The Grade I Magistrate acted upon the administrative directives of the Chief Magistrate handled and concluded the matter in accordance with the Domestic violence laws and procedures.

The Respondent quoted **Section 171 of the MCA** which provides that; *"the Chief Magistrate may transfer any case of which she or he has taken cognizance for trial to another Magistrate holding a court empowered to try the case within the Magisterial area of the jurisdiction of the Chief Magistrate". That in the instant case, the trial Magistrate acted on the administrative directives of the Chief Magistrate as per annexture "D" under paragraph 12 of the respondent's* affidavit in reply thus there was no failure to exercise or an irregular exercise of jurisdiction by the Grade I Magistrate under the Domestic Violence Act.

*On the issues that the affidavit in support of Misc. App. No.197 of 2022; Nakiluuta Lydia Versus Ssalongo Kirimbwa Anthony and Another commissioned by Regina Babukiika, and that Justice Centres - Uganda was the meditator and counsel at the same time all raised in paragraph 9 (a &b), the Respondent replied thus;*

Regina commissioned the Affidavit as Commissioner for Oath **in her capacity as a commissioner for oath** before the same file was assigned to her by Justice Centers Uganda head office Kampala to provide legal representation to indigent and vulnerable applicant [now Respondent] and that she did not anticipate that she would be called as a witness to the case.

The Respondent buttressed her submission with the authority of Uganda **Development Bank versus Kasirye, Byaruhanga & Co. Advocates, SCCA No. 35/1994**, it which it was held that; *"There is no reason to believe that the respondent's Counsel is required to appear as a witness as a matter of fact, that his knowledge of the transaction is immaterial".*

That in this case, Regina Babukiika Tronera, was not required to appear as a witness in the matter and that indeed she did not appear as a witness in the said domestic violence proceedings since the said matter would not require examination of witnesses.


On the issue of Justice Centres representing the applicant [now Respondent] yet it had earlier conducted meditation, the Respondent submitted that this issue is far –fetched, misconceived and irrelevant in this revision cause since it was not averred to by the applicants in their affidavits in support and that counsel was submitting on the same from the bar*.*

#### *Remedies;*

The Respondent prayed that this honorable court dismisses this application with costs to the Respondent, uphold the trial court decision and orders thereof including contempt orders.

It was further prayed for the Respondent that this honorable court be pleased to exercise its powers under **Section 98 of the Civil Procedure Act Cap 71 and Section 33 of the Judicature Act Cap 13** and lengthen the term of imprisonment for contempt of court orders by the applicants herein formally issued by the trial court from 1 (one) month to a period of 6 (six) months imprisonment. That this will set a good precedent for Domestic violence perpetrators.

#### *Determination by Court*.

I have read and critically analyzed the pleadings and submissions of the parties in this matter whose details are on the record of this court and below is my decision.

*Section S.83 of the Civil Procedure Act, Cap. 71 provides that the High Court may call for the record of any case which has been determined under Civil procedure by any Magistrate Court, and if that Court appears to have- a) Exercised jurisdiction not vested in it in law; b) Failure to exercise jurisdiction so vested; or c) Acted in the exercise of jurisdiction illegally or with material irregularity or injustice…"*

b) Whether appropriate grounds exist to warrant revision of the proceedings in miscellaneous cause No 197 of 2022; Nakiluuta Lydia -versus- Ssolongo Kiribwa Anthony & Another.

Critical among the Applicant's complaints is that the trial Magistrate Grade One Hw. Nyakato Moreen exercised territorial jurisdiction not vested in her when she heard and determined the Domestic violence action from which this appeal emanates.


The record of the trial court however, shows that this matter was initially before the Chief Magistrate who owing to the urgency of Domestic violence actions reallocated it to Hw. Nyakato Moreen to hear the parties. On the record is a letter from Hw Nyakato Moreen addressed to the Chief Magistrate, dated 18th May 2022 in which she referred to a memo from the Chief Magistrate instructing her to handle the matter. In this letter the trial Magistrate was referring the Chief Magistrate to a preliminary objection raised by the Applicants/then Respondents on her territorial limits. This letter is attached as annexure "C" to the Respondent's affidavit in reply to the instant application.

In a letter dated 20th May 2022, the Chief Magistrate replied to the trial Magistrate Grade One's letter reminding her that this is a matter which is required to be disposed of within 48 hours at law and she categorically stated that in exercise of her supervisory powers she was returning the file to Hw. Nyakato Moreen for quick disposal. This letter is also attached as Annexture "D" to the Respondent's reply.

I am therefore, inclined to agree with counsel for the Respondent that the trial Magistrate acted within her jurisdiction because, the file was allocated to her by her supervisor the Chief Magistrate in exercise of her supervisory powers under S.171 of the Magistrates Court Act. The facts in the *Walakira Jacob decision of my learned brother the Hon. Mr. Justice Lawrence Tweyanze* relied on by the Applicants are different from those of the instant matter before this court because in the earlier precedent, there was directive given to the trial Magistrate from a Chief Magistrate to handle the matter that clearly lay in a different territorial jurisdiction as was in the instant matter.

As regards the other complaints rooted in rules made under the Advocates Act on Counsel Commissioning an affidavit in support, those in the mediation rules of 2013 over Justice Centers having conducted mediation; at their best, are mere mistakes of Counsel that cannot be visited on the Respondent who ran to court for Justice.

Most importantly though, actions brought under the Domestic Violence Act are not only supposed to be handled within 48 hours only but also *Regulation 29(3) of the Domestic violence regulations of 2011 made under the Act expressly empowers court, when conducting proceedings, to depart*


*from any strict rule of practice or procedure; if it considers that departure from that practice or procedure would ensure substantive Justice is done*

With the above requirements in determination of Domestic Violence actions in mind, I am unable to fault the trial Magistrate Grade One for having summarily dismissed the Applicant's objections at the trial. The overriding interest of justice required expedient disposal of the suit within the shortest time possible. Entertainment of the objections on the rules of practice would only have delayed the ends of Justice leading to an absurdity. The Court of appeal decision of *Mpanga Farouq relied on by the Respondents was not a Domestic violence action but an Election Petition which may be heard over a 30-day period as contrasted to the 48-hour period of Domestic Violence civil disputes.*

Accordingly ground one fails and is rejected.

#### **b) What remedies are available to the parties?**

Having resolved ground one in the negative, I hereby find no merit in the application. It is hereby dismissed with costs to the Respondent.

I so order.

Orders;

- 1. The Application is dismissed. - 2. The Applicants shall pay the Respondent's costs for defending this application.

Dated and delivered by email this day 3rd day of July, 2023


# **HON. LADY JUSTICE VICTORIA NAKINTU NKWANGA KATAMBA**