Kugonza and 12 Others v Kaahwa (Revision Application 2 of 2023) [2024] UGHC 584 (30 April 2024)

### **THE REPUBLIC OF UGANDA**

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

### **REVISION APPLICATION NO. 0002 OF 2023**

### **(ARISING FROM CIVIL SUIT NO. KDGO LAND CASE NO. 009 OF 2019)**

| | 1. | KUGONZA JACKSON | |----|----|----------------------------------------------------------------| | | | | | | 2. | ERIFAAZI BIHEMAISO | | | 3. | BUSINGE GODWIN | | 10 | 4. | NYANDER TEOPISTA | | | 5. | KATUSIIME JOYCELIN | | | 6. | BAGONZA FRED | | | 7. | ATUGONZA SARAH | | | 8. | DUNGU | | | 9. | OTEBA | | | | 10. BITERA FRED | | | | 11. IBRAHIM | | | | 12. JONATHAN | | | | 13. TALEMWA ERIC ………………………………………………………………………………………… APPLICANTS | | 20 | | | | | | VERSUS |

**KAAHWA SEDRAK ………………………………………………………………………………………………… RESPONDENT**

### **Before: Hon. Justice Isah Serunkuma**

### **RULING**

This is an application by way of Notice of Motion brought under Sections 83(a) of the Civil Procedure Act Cap 71 & Order 52 rules 1,2, and 3 of the Civil Procedure Rules and all other enabling laws against the Defendant seeking the following orders.

- 30 1. The Honourable Court be pleased to call for the record of KDGO Land Case No. 0009 of 2019 to revise and set aside the orders of Her Worship Kabahuma Lucy Koojo setting aside the orders of His Worship Byamugisha Derik Magistrate Grade One (as he was then). - 2. The costs of the application be provided.

The application was supported by the affidavit deponed by Ebifaazo Bihemaiso, the 2nd Applicant, on behalf of all other Applicants in which he deponed that.

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- 1. The Respondent filed 3 suits i.e. Civil Suits No. 0013 of 2002, No. 0079 of 2003, and No. 045 of 2016 (which were consolidated) over the suit land which forms part of the estate of the late Kiiza Mubwijwa, and which is the subject matter in Administration Cause No. 0014 of 2014 and No. 0018 of 2022. - 2. They successfully applied for a stay of hearing of the consolidated suits pending the disposal of Administration Cause No. 14 of 2014 as per a ruling delivered by His Worship Byamugisa Derik, a Magistrate Grade One by then. - 3. That following the transfer of His Worship Byamugisa Derik, the matter was taken over by Chief Magistrate Her Worship Kabahuma Lucy Koojo. - 10 4. That Her Worship Kabahuma Lucy Koojo was irregularly moved by the Respondent to set aside the ruling of His Worship Byamugisa Derik and started hearing the suit again when Administration Cause No. 0014 of 2014 was still pending before this honorable court. - 5. That a decision of the Magistrate Grade One is appealable to the High Court and a Chief Magistrate has no power to set aside such a decision. - 6. That no party shall suffer hardship because of hearing this application.

The Respondent swore an affidavit in reply in which it was stated that.

- 1. It is true that His Worship Derik Byamugisha stayed the proceedings pending the determination of Administration Cause No. 14 of 2014. - 20 2. That the setting aside of the ruling by Her Worship Kabahuma Lucy is not an act of irregularity. - 3. The purpose of staying the proceedings (Civil Suit No. 45 of 2016) was to determine Administration Cause No. 0014 of 2014, in which His Worship Kintu Simon Ziritunsa dismissed the application for lack of action by the Applicants. - 4. There is no longer a need for a stay on the proceedings as this Honourable Court already determined the administration cause. - 5. That the order of His Worship Byamugisha was conditional and not absolute.

## *Representation.*

The Applicants were represented by M/s Tugume-Byensi & Co. Advocates, while the Respondent was represented by M/s Odongo & Co. Advocates.

## *Submissions of the parties.*

The Applicants do not have submissions on the record.

## *Respondent's submissions.*

The Respondent's Counsel defined revision by the Black's Law Dictionary as a reexamination, careful review for correction or improvement, or an altered version of work. Counsel submitted that the question to determine is whether the Chief Magistrate has 10 jurisdiction to set aside an order of a fellow Chief Magistrate court.

Counsel submitted that the Chief Magistrate has jurisdiction to set aside the stay of proceedings. He submitted that Civil Suit No. 0045 of 2016 was stayed pending the determination of Administration Cause No. 0014 of 2014. His Worship Kintu Simon Ziritunsa dismissed this application for want of action by the applicant, and there was no longer any reason for the stay to continue as the administration cause had already been determined. The chief Magistrate thereafter had the power to continue with the other suits. The Chief Magistrate invoked her inherent powers under Section 98 of the Civil Procedure Act to ensure the expeditious and complete determination of the suit.

# *Ruling of Court*

20 The Applicants did not file submissions or an affidavit in rejoinder. Therefore, it is presumed that they concur with the pleadings set out by the Respondents in their submissions and affidavit.

It is a general principle of law, as has been held in cases such as *Massa v. Achen (1978) HCB 297,* that facts sworn in an affidavit if not denied or rebutted by the opposite party, the presumption is that such facts are accepted. Therefore, given that the applicant did not raise

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any submissions or affidavit in rejoinder, the Court shall proceed with the pleadings on record to make its finding regarding the issue of revision.

Revision, as has been defined by the Respondent in reference to the Black's Law Dictionary, is a re-examination or careful review for correction or improvement or an altered version of work. Revision of matters arising from the Magistrate's court is done by the High Court and based on the instances provided for in **Section 83 of the Civil Procedure Act** and the said section states as follows.

## *83. Revision*

10 *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.*

The Applicant has submitted that the Chief Magistrate acted without jurisdiction when she set aside His Worship Byamugisha Derik's ruling that stayed the proceedings in the consolidated applications. The Respondent argues that the Chief Magistrate didn't set aside the ruling but only proceeded with the consolidated matters hearing following the 30 administrative proceedings' dismissal.

I have considered the ruling of His Worship Byamugisha Derrick in which he held that the current consolidated applications were to be stayed pending the determination of the Administration Cause No. 0014 of 2014. The rationale he gave was that the Magistrate's Court being subordinate to the High Court, the findings of the High Court shall take precedence over those of the Magistrate's Court. The Respondent has presented an order of court by which the said Administration Cause No. 0014 of 2014 by the High Court.

The court shall associate with the pleadings of the Respondent that the ruling handed down by His Worship Byamugisha was conditional, and the condition was that the determination of the administration cause was dismissed. Following the dismissal of the administration cause, the Magistrate's court was mandated to pick up the consolidated applications and 10 address them to their determination. The continuation of the hearing of the consolidated

matters by the Magistrate's court did not overrule any decision as the matter in the High Court was no longer pending.

That being the finding, this application fails and is dismissed with costs to the respondents.

**I so rule.**

**DATED and delivered on this 30th Day of April 2024.**

20 **……………………… Isah Serunkuma JUDGE**