Meshach v Kibirango (Civil Revision 18 of 2020) [2022] UGHCLD 58 (26 April 2022)

# THE REPUBLI C OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (LAND DIVISIONI

### CTVIL REVISION NO.18 OF 2O2O

(Arislng from Mlscellaneous Appllcdtlon No.374 of 207a) (All arlslng out of Luwero ChleJ Maglstrate's Coura, Clvil Sult No.77O ol2Ol7)

### MES}IACH PETER SEKALEKA

## 10 (Suing through his Lcwlul Attorneg SSERUFUSA EDWARD MULEMA MUKASAI:::::::::::::::::::::::::;::::::::::::::::::::::::::::::::APPLICANT

#### \/ERSUS

KIBIRANGO MOSSY SALONGO & 15 OTHERST::::::::;:::i:::::::::::::::::::::: RESPONDENTS

## 15 Before: Ladu Justice Alexandra Nkonqe Ruqadua.

## RuIinq.

The applicant brought this application under Sections a3 & 9a of the Ciuil Procedure Act Cap. 77 and Order 52 rules 7 & 3 of the Civil Procedure Rules SI 77-7 seeking a revision of the ruling of the Chicf Magislrates Court tn Miscellaneous Application No. 374 oI 2O1a

20 dated 24th August, 2020; and sctting asidc of the dismissal ordcr; stay of the orders therein as wcll as costs of this application.

The gist of this application as can be deduced from the affidavit in support by Mr. Sserufusa Edward Mulema Mukasa is that the applicant through his lawful attorneys filed Ciuil Suit No.770 of2O77 in the Chief Magistrate's Court of Luwero and later amended the plaint upon realizing that some parties implicated in the fraudulent sale and subsequent transfer of the suit land had not been included in the plaint.

That the donee of power of attorney had expressly instructcd the applicant's counsel, Ms. Aisha Aliwara not to withdraw the suit under any circumstances but on 1 1th December 2018, the suit was withdrawn with costs and that the said withdrawal was as a result of mistake of

30 counsel from whom the applicant and the donees immediately withdrew instructions.

The applicant then filed Miscellq.neous Appllcation No.374 of 2OI8 seeking an order setting aside the order of withdrawal and reinstatement of Ciull Suit No.77O oJ 2017 but the same was dismissed by ITis Worship Samuel Munobe, thc Chicf Magistrate at Luwero, who according to the donec of power of attorncy failed to scrutinize the eyidence of mistake of counsel.

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That because of the said ruling, thc applicant will suffer substantial loss if the said ruling is not revised by this court.

I failed to locate an affidavit of service to the respondents but it appears from the rejoinder and submissions by counsel for the applicant that the 7tt', 8th, 9s, 1oth, 11th, i2tl' & 18t]' respondents filed an afhdavit in reply which was not availed to court.

The question for determination by this court is whether or not this is a proper and flt case for revision of the orders of the Chief Magistrate's Court in respect of Mlscellaneous Appllcatlon No. 374 of 20la.

Sectlon a3 of the C-lvll Procedure Act, Cap 7I empowers this court to revise decisions of magistrates' courts where the magistrate's court appears to have; /a/ exercised a luisdiction not uested in it in lau; (b) failed to exercise a jurtsdiction so uested; or (c) acted in the exercise of its T,tisdiction illegatlg or with material inegularitg or injustice.

It entails a re-examination or careful review, for correction or improvement of a decision of a magistrate's court, after satisfying oneself as to the correctness, legality or propriety of any finding, order or any other decision and the regularity of any proceedings of a magistrate's

court.

tn the instant case, the applicant filed this application based on the fact that the trial Magistrate erred when he failed to scrutinize the evidence and found that there was no mistake of counsel in withdrawing the main suit.

Errors of facts or law in the decision arrived at itself are matters for an appeal, where the appellate court has the liberty to take an entirely different view of the material that was presented to the trial court. 20

It is settled that wherc a court has jurisdiction to determine a question and it determines that question, it cannot be said that it has acted illegally or with material irregularity because it has come to an erroneous decision on question of fact or even of law. Consequently, a revision is not a substitute for an appeal (see lrtatemba u. Yamullnga [7968] 1 EA 643).

In the instant case, the applicant did not adduce any evidence of any illegality of material irregularity but rather raised issues of appeal based on his belief that the trial Magistrate not only erred when he failed grant the initial application but also that he did not consider the evidence pointing to the mistake of counsel.

I have also had occasion to peruse the record ofthe lower court and I find no evidence ofany illegality or irregularity on the record from the record to merit a revision. The aPPlicant ought to have filed an appeal to this court since he was dissatisfied by the decision of the trial magistrate.

U'i"4

As it turns out, this appears to be a veiled appeal against the decision of the lower court, which this court has no jurisdiction to deal with if brought under sectlon a3 of the CPA. Courts should not be mired by endless litigation which would occur if litigants were allowed to file all manner of application during and after trial without any restrictions.

For all the foregoing reasons, I do not find any merit in the application and it is hereby dismissed with costs to the respondents.

Alexandra Rugadyd

.ludge 10

26t^ April, 2022.

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