Lukoma v Ngabompya (Miscellaneous Application 5 of 2023) [2024] UGHC 239 (12 April 2024)

#### THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT MUKONO **MISCELLANEOUS APPLICATION NO. 005 OF 2023** (ARISING FROM CIVIL SUIT NO. 0013 OF 2021 FROM THE CHIEF MAGISTRATES' COURT OF MUKONO AT NAKIFUMA) LUKOMA JOHN ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

# NGABOMPYA WILLIAM :::::::::::::::::::::::::::::::::::: BEFORE HONOURABLE JUSTICE DAVID MATOVU **RULING**

# Introduction

- 1. Lukoma John hereinafter referred to as the "Applicant" brought this application against Ngabompya William hereinafter referred to as the "Respondent" seeking for orders that the exparte judgment of H/w Gukiina Peter, Magistrate Grade one of Nakifuma Court, dated 2<sup>nd</sup> June 2022 in Civil suit No. 0013 of 2021 be revised and set aside, Civil suit No. 0013 of 2021 be retried and/ or heard by this Honourable Court or another competent Magistrate and costs of the application. - 2. This application is brought under Articles 28, 44 (c) and 126 (2) (e) of the Constitution, Sections 16, 17 and 33 of the Judicature Act, Sections 83 and 98 of the Civil Procedure Act and Oder 52 rules 1, 2 and 3 of the Civil Procedure Rules.

# **Background**

- 3. The background of this application is that the Respondent herein sued the Applicant seeking for a declaration that he is the lawful owner of the suit land situate at Nalubabwe, Bamusuta village in Mukono District, declaration that the Applicant/ defendant is a trespasser, an order for vacant possession, a permanent injunction, general and special damages, an order for payment of mesne profits and costs of the suit. - 4. The Defendant/ Applicant did not file a defense and the matter proceeded exparte. - 5. However, while the hearing of the suit was ongoing, the Applicant filed Miscellaneous Application No. 002 of 2022 to Court for it to appoint Kenny Kambo as guardian ad litem for the applicant. - 6. However, the same was dismissed by Court on grounds that the relatives/ guardians of the Applicant herein did not follow the right procedure as prescribed by law; that is the Mental Health Act, 2018 and Administration of Estates of persons of unsound mind. - 7. Subsequently judgement was entered in favour of the Respondent in the following terms; - a) A declaration that the Plaintiff is the lawful owner of the suit land, - b) A declaration that the defendant's unlawful interference with the Plaintiff's use and enjoyment of the suit land amounted to trespass. - c) An order of eviction against the defendant - d) A permanent injunction

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- e) General damages of Shs $1,000,000/$ = - f) Costs of the suit, and, - g) Interest at a Court rate of 7% - 8. The Applicant then filed this application.

#### **Applicant's evidence**

- 9. This application was supported by an affidavit of Nanteza Sarah, who was stated to be a sister to the applicant. - 10. The deponent stated that the applicant has been laboring with mental illness for long time and had been first admitted to Butabika Hospital in 2007. - 11. That upon learning that the Respondent had sued the applicant in Civil suit No. 0013 of 2021, her brother Kenny Kambo who was taking care of the Applicant applied in the Chief Magistrates Court of Nakifuma to be appointed as guardian ad litem of the Applicant and for the ex-parte hearing to be set aside. - That however, the Trail Magistrate dismissed the said $12.$ application, proceeded ex-parte and delivered judgement in favour of the Respondent. - That the Applicant has never recovered from mental illness and $13.$ is incapable of understanding Court process or even how to read or write. - 14. That the Trial Magistrate's act of opting to proceed ex-parte violated the Applicant's right to a fair hearing and that there is a miscarriage of justice and injustice apparent on the face of the record.

- 15. That the suit land claimed forms part of the Estate of the Late Kinene Patrick, for whose estate a grant has not yet been issued. - 16. That this Honourable Court is clothed with jurisdiction to revise and set aside the ex-parte judgement and proceedings. - 17. That it is in the interest of justice that this application is allowed.

# **Respondent's evidence**

- 18. The Respondent filed an affidavit in reply opposing this application. - 19. The Respondent stated that whereas it was true that he filed Civil suit No. 013 of 2021 before the Chief Magistrates Court holden at Nakifuma, the Applicant was duly served with summons to file a defence by a one Taaka Clare, a process server attached to the Court, but he decided not to file his defence. - 20. That the Applicant failed to apply to Court for a personal representative as provided under Section 62 of the Mental Health Act. - 21. That further, at the time of service of court process, the Applicant was neither admitted at Butabika Hospital, nor did he produce evidence to show that he was mentally ill and could not understand Court process. - 22. That the application is supported by affidavits of Keny Kambo and Nanteza Sarah who have not made any application to be legal manager or personal representative of the Applicant.

- 23. That the Applicant is seeking for revision but has not cited any illegality and irregularity and as such the application is intended to waste Court's time. - 24. That the Applicant will not suffer irreparable damage if this application is not granted. - 25. That it is in the interest of justice that this application is dismissed with costs to the Respondent.

# Representation

26. The Applicant was represented by Mr. Mbasa Dennis while the Respondent was self-represented.

## **Submissions**

27. Both parties filed written submissions, which this Court has carefully read and put into consideration while arriving at its decision.

# **Issue for determination**

28. Whether Miscellaneous Application No. 005 of 2023 satisfies the conditions that warrant revision?

# **Decision of court**

29. Section 83 of the Civil Procedure Act provides that: -

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

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(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.

- 30. In the case of **Mabalaganya versus Sanga (2005) EA 152**, it was held that; in cases where High Court exercises its revisional powers, its duty entails examination of the record of any proceedings before it 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. - 31. Further, in the case of **Hitila versus Uganda (1969)1 EA 219.** the Court of Appeal of Uganda 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 has occurred"

32. 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".

- 33. From the above provision of the law cited above and the holding in the above cited cases, the decisions of lower courts maybe revised by the High Court when a Trial Magistrate is alleged to have failed to exercise his or her jurisdiction or where he or she acts illegally or with material irregularity or unjustly. - 34. In the instant matter, it is the contention of Counsel for the Applicant is that the Trial Magistrate acted unjustly and/ or with material irregularity when he failed to establish the truth as to the state of mind of the Applicant. - 35. Further, that the Applicant/ Defendant did not file a defence and when a one Kenny Kambo, a care taker learned about the case against the Applicant, he applied to the Court to be appointed guardian ad litem, however, the same was dismissed by the Trial Magistrate. - 36. Counsel for the Applicant cited the case of Jordan Ssebuliba Kiwanuka versus Mohan Musisi Kiwanuka HCMC No. 249 of 2019 wherein Justice Ssekaana stated that "... it would be very desirable that the Judge should seek some personal interview with the alleged insane, not with a view to forming a final opinion as to his or her real condition but to satisfy himself in the ordinary way, in which a layman can do, that there is real ground for supposing that there is something abnormal in his or her mental condition which might bring him or her within the lunacy act..." - 37. This Court agrees with Counsel for the Applicant and further adds that at the moment the defence of insanity was raise, by the

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caretaker filing an application to be appointed guardian ad litem, the Trial Magistrate should have interested himself as to the mental state of the Applicant for purposes of hearing the suit and dispensing justice.

# Conclusion

In the final result, this application is allowed. 38.

- 39. The ex-parte judgement of H/w Gukiina Peter in Civil suit No. 0013 of 2021 from the Chief Magistrates' Court of Mukono at Nakifuma is hereby set aside. - 40. The Chief Magistrate is hereby directed to have this matter retried and heard expeditiously. - 41. Costs shall be in the cause.

Dated this $12^{\circ}$ day of $A^{\circ}$ 2024 David Matovu JUDGE