Kirumira v Kagaba & 16 Others (Civil Revision 5 of 2023) [2024] UGHCCD 197 (20 November 2024)

### **THE REPUBLIC OF UGANDA**

### **IN THE HIGH COURT UGANDA AT KAMPALA**

#### **CIVIL DIVISION**

#### **CIVIL REVISION APPLICATION NO.0005 OF 2023**

### **(ARISING FROM MISC. APPLICATION NO. 23 OF 2022)**

# **(ITSELF ARISING FROM LAND CIVIL SUIT NO. 090 OF 2019 AT WAKISO AND WAKISO CRIMINAL CASES No. 152 of 2017; 280 of 2018;041 of 2019)**

**ALLAN S. KIRUMIRA:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT**

### **VERSUS**

- **1. DR. KAGABA PETER** - **2. BABIRYE MILLY MUTYABA** - **3. STEPEHEN KISOLO (DECEASED)** - **4. BETTY KISOLO** - **5. KAWOOYA SABITI (DECEASED)** - **6. GRACE NAKAMANYA** - **7. KIGGALA BAMWEYANA CHARLES ::::::::::::::::::::::::::::::::::::::RESPONDENTS** - **8. ALICE MAZZI** - **9. NADAGIRE FLORENCE; NAMUSAVA JOYCE; KANAKULYA ROBERTY; & NAWAATI JOYCE AS ADMINISTRATORS OF THE LATE TOM WASSWA GOLOOBA** - **10. NAKAZZI ANNET; ZALWANGO MARGARET LUBADDE; LUKANGA GEOFFREY; & SSIMBWA DENNIS AS ADMINISTRATORS OF THE ESTATE OF THE LATE JOHN GOLOOBA** - **11. WANDERA KAMARADI DESIRE** - **12. GILBERT ARINAITWE BWAANA** - **13. GIMEI TOPHER** - **14. REGIONAL OFFICER IN-CHARGE CID KAMPALA METROPOLITAN POLICE NORTH** - **15. DIRECTOR HUMAN RIGHTS & LEGAL SERVICES, UGANDA POLICE FORCE** - **16. DIRECTOR PUBLIC PROSECUTIONS** - **17. ATTORNEY GENERAL**

## **BEFORE: HON. JUSTICE SSEKAANA MUSA**

## **RULING**

This is an application for revision of the ruling and orders of the Magistrate Grade One at Wakiso, His Worship Ssajjabi Noah Norbert, dated the 27th June 2022 and the Order extracted therefrom dated 15th July 2022, dismissing with costs and disposing of a human rights violations suit in miscellaneous Application No. 023 of 2022 at the Chief Magistrates Court of Wakiso, on a procedural technicality of a preliminary objection as prayed for the following orders;

- 1. That the court makes a finding that the record of proceedings in **LAND CIVIL SUIT NO. 090 OF 2019 AT WAKISO AND WAKISO CRIMINAL CASES No. 152 of 2017; 280 of 2018;041 of 2019)** reveal gross abuse of the applicant's fundamental human rights - 2. That the court makes a finding that the record of pleadings and proceedings in **LAND CIVIL SUIT NO. 090 OF 2019 AT WAKISO AND WAKISO CRIMINAL CASES No. 152 of 2017; 280 of 2018;041 of 2019)** before the chief Magistrates court are so infested with illegalities that have plagues their handling and prosecution to the disadvantage of the applicant/accused person, and make remedial orders necessary for the ends of justice or prevent abuse. - 3. That this court invokes its general powers of supervision over magistrate's court by making a finding that there is derogation from enjoyment of the applicants non derogable right to fair hearing in criminal cases **No. 152 of 2017; 280 of 2018;041 of 2019** that are being tried before the Chief Magistrates Court of Wakiso. - 4. That all the applicant's properties and documents confiscated, looted and or grabbed by or with assistance of the respondents following a police search be unconditionally returned. - 5. That nullification and a declaration of invalidity be made against all the same of land and or transfer of registered proprietary legal interests in land and related transactions.

- 6. That in the alternative, this court orders prompt payment of fair and adequate compensation of the applicant in respect of the current market value of the applicant's properties confiscated, looted and grabbed and sold to third parties now standing at 3,065,000,000/= prior to taking possession or acquisition. - 7. That a compensation of the applicant/accused person to the tune of Ug 300,000,000/= against all the respondents.

The application was supported with an affidavit in support by the applicant which was quite extensive and long of 191 paragraphs in 52 pages.

The 6th, 10th 7 th filed affidavits in reply.

The following issues were raised for determination.

- *1. Whether the learned Magistrate exercised a jurisdiction not vested in him or acted illegally and/ or with material irregularity and injustice?* - *2. What remedies are available to the parties?*

The applicant was self-represented while the 10th, 7th and 6th respondents were represented by *Barikurungi Faisal* of *Kabega, Bogezi & Bukenya Advocates*

## *Preliminary Objections*

The respondents' counsel on record raised objections to the propriety of the affidavit in support and thus the incompetency of the application. It was their contention that the application was incurably defective for being argumentative, prolix and being based on matters of law for which it ought to be struck off.

It was counsel's submission that where a notice of motion is the procedure is adopted as it is in this application, it must be accompanied by a valid affidavit. The applicant's affidavit in support contains matter of law and very argumentative.

The applicant in his submission contended that these preliminary objections do not necessarily apply to the instant human rights violations matter of this magnitude with all the evidence of all these illegalities motivated by fraud.

## *Analysis*

The applicant filed an affidavit which was extremely long contained in *52 pages with 191 paragraphs* which were very repetitive and argumentative. Legal arguments, objections and prayers should be left to counsel in submissions and not to be ventilated in the affidavit. Affidavits are intended to be probative of the facts which the party filing affidavit seeks to prove before the court. See *Life Insurance Corporation of India v Panesar [1967] EA 614*

Facts deposed to in affidavits are apparent on their face. If they are argumentative or if they are extraneous, then the court ought to strike out such offending paragraphs. The court is not obliged to allow defective and erroneous affidavit or content to be used in litigation without doing anything to rectify or remedy it. See *Pattni v Ali [2005] KLR 269; Re:Bukeni Gyabi Fred HCMA No.63 of 1999*

The deponent is counsel who represented himself at the trial drafted his own application and the supporting affidavit. A deponent of an affidavit shall make his depositions to conform as near as possible to oral evidence admissible in court and deal with facts and avoid objections, prayer or legal argument and conclusion. An affidavit which is found to be argumentative should be struck out and not relied on. See *Nakiridde Namwandu v Hotel International Ltd [1987] HCB 85*

Affidavits should not loosely be drafted or turned into submissions of counsel in order to drive his legal arguments home. The respondents have not made any meaningful answer to the application on factual basis and the affidavit is accordingly struck out for offending the rules of drawing affidavits and being argumentative. Where an affidavit is found to be prolix and non-compliant with order 19 rule 3 of the civil Procedure rules, such affidavit ought to be struck out. See *Male H Mabirizi K Kiwanuka v AG SC Misc Appn No. 7 of 2018; Rohini Sidipra v Freny Sidipra & Others HCCS No. 591 of 1990*

The consequence of striking out the affidavit in support is that there is no competent application before this court and the same ought to be struck out for incompetency and be dismissed as such. Order 19 rule 3 provides that costs of every affidavit which shall unnecessarily shall be paid by the person filing the affidavit. In the case of *Wadri Mathias & Others vs Dranilla Angella, Civil Revision No. 0007 of 2019* court held that;

*A deponent who makes an argumentative affidavit which is incurable can be penalized by paying costs of the applications. In the instant case having pointed out to this court that the affidavit is prolix and non-compliant with the Civil Procedure Rules, the affidavit ought to be struck out and the consequence is that there would be no competent application before the court.*

This application is struck out for incompetency after the affidavit is struck out for being prolix and argumentative.

# *Whether the learned Magistrate exercised a jurisdiction not vested in him or acted illegally and/ or with material irregularity and injustice?*

According to **Section 83 of the Civil Procedure Act (Cap 71)** the High Court may call for the record of any case which has been determined under this Act by any magistrates court and that court appears to have;

a) Exercised a jurisdiction not vested in law

b) Failed to exercise a jurisdiction so vested, or

c) Acted in exercise of it's 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.

It is important to note that revision is a remedy available to an aggrieved party of any judgement passed by the subordinate court where no appeal lies; filed in the High Court by him or her. It is a discretionary and supervisory power of the superior court thus there's no statutory right of revision to an aggrieved party.

In a matter for revision, the court does the examination for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, order or any other decision and the regularity of any proceedings before the High Court.

For revision to stand, there must have been an error material to the merits of the case or involving a miscarriage of justice and exercise of that power must not involve hardship to any person.

In the case of *Hitila vs Uganda [1969] 1 E. A 219* Court of Appeal of Uganda, where it was held that;

*"In exercising its power of revision, the High court could use its wide powers in any proceedings in which it appeared that an error material to the merits of the case or involving a miscarriage of justice had occurred. It was further held that the court could do so in any proceedings where it appeared from any record that had been called for by the court or which had been reported for orders or in any proceedings which had otherwise been brought to its notice''.*

The applicant contends that the learned Magistrate exercised a jurisdiction not vested in him and acted illegally and/or with material irregularity and injustice when: dismissed with costs and disposed of a human rights violations suit in Miscellaneous Application No. 023 of 2022 at the Chief Magistrates Court of Wakiso, on a procedural technicality of a preliminary objection.

Revision is intended to correct errors which do not go to the merits / substance of the dispute not the determination of the rights of the parties. Where a court has jurisdiction to determine a question, it cannot be said that it acted illegally or with material irregularity because it has come to erroneous decision on the question of fact or even law.

The court does the examination for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, order or any other decision and the regularity of any proceedings before the High Court. For revision to stand, there must have been an error material to the merits of the case or involving a miscarriage of justice and exercise of that power must not involve hardship to any person.

Where a court has jurisdiction to determine a question, it cannot be said that it acted illegally or with material irregularity because it has come to erroneous decision on the question of fact or even law. The learned Magistrate was within his powers to dispose of the matter as a preliminary point of law. This is because revision is intended to correct errors which do not go to the merits /substance of the dispute not the determination of the rights of the parties.

I therefore find that this application doesn't satisfy the grounds for revision as laid down in **Section 83 of the Civil Procedure Act** because the learned magistrate was acting within his jurisdiction and his decision doesn't have any illegalities or material irregularities in exercise of that jurisdiction. Thus, this application is not competent for revision.

Merely because the Magistrates court has taken a wrong view or law or misinterpreted the evidence on record cannot in itself justify revision unless it has also resulted into a grave injustice. In addition, a decision on a question of law reached by the subordinate court which has no relation to questions of jurisdiction of that court cannot be corrected by the High Court.

It should be noted that revision is restricted to illegalities and irregularities, and non-exercise or irregular exercise of jurisdiction. The main view of revision is not to interfere with or alter the judgement of a lower court but to correct or improve such a judgement keeping subordinate courts within the bound of their jurisdiction. A decision on a question of law reached by the subordinate court which has no relation to questions of jurisdiction of that court, cannot be corrected by the High Court.

If the applicant was dissatisfied, he would have preferred an appeal to the High Court.

This application is dismissed with costs to the respondents.

I so Order

*Ssekaana Musa Judge 20 th November 2024*