Mugema and Another v Mugisa and Another (Revision Application 2 of 2021) [2024] UGHC 883 (23 August 2024)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT HOIMA

#### REVISION APPLICATION CAUSE NO. 02 OF 2021 (Arising from the Judgment of His Worship Kule Moses - Chief Magistrate Masindi Civil Appeal No. MSD 002 of 2018) (Arising from Kigwera Sub-County LC III Civil Case No. 10 of 2017, **Buliisa District)**

| 1. MUGEMA PATRICK | |----------------------------------------------------------| | 2. HAPPY IGNATIOUS:::::::::::::::::::::::::::::::::::: | | VERSUS | | 1. MUGISA MOSES | | 2. BYARUHANGA ALFRED:::::::::::::::::::::::::::::::::::: |

BEFORE: HON. JUSTICE BYARUHANGA JESSE RUGYEMA

## **RULING**

This application is brought under Ss.83 & 98 CPA, S. 33 of the $[1]$ Judicature Act, O.52 rr 1, 2 & 3 CPR seeking orders that the ruling/judgment and orders of the Chief Magistrate H/W Kule Moses on appeal dated $29/1/2020$ be revised and set aside. The application was supported by the affidavit of **Happy Ignatious**, the $2^{nd}$ Applicant while it was opposed by the affidavit in reply of the Respondent, Byaruhanga Alfred.

#### **Background**

In 2017, a one Francis Gahwera and John Akibua filed Civil Suit $[2]$ No. 10 of 2017 against the 2 Respondents, Mugisa Moses and Byaruhanga Alfred in L. C. III Court of Kigwera in Buliisa District for recovery of a customary land measuring approximately 8 acres located at Kirama Village in Kigwera Sub-County, Buliisa District. The case was heard and judgment was delivered in favour of the Plaintiffs on the $6/6/2018$ .

$\mathbf{1}$

[3] The Respondents being dissatisfied with the judgment and orders of the L. C. III Court of Kigwera Sub-County, filed **Civil Appeal No.** 2 of 2018 in the Chief Magistrate's Court of Masindi at Masindi against the Applicants, **Mugema Patrick** and **Happy Ignatious** (the children of Francis Gahwera and John Akibua, who were the plaintiffs in the L. C III Court). The Applicants were therefore not parties to the judgment in **Civil Suit No. 10 of 2017** filed in the Sub-County Court of Kigwera (L. C. III) in Buliisa District. The learned Chief Magistrate dismissed the appeal for being incompetent having been filed out of time and, later ordered the Applicants to pay costs of the appeal and of the lower court. It is noted that the Applicants were not party to the suit in the lower court. They were not the ones who instituted the suit before the L. C. II court.

## Determination of the Application

- During the trial of the appeal, Counsel for the Respondents in his $[4]$ submissions raised 2 preliminary points of law as follows: (a) That the appeal was filed out of time. - (b) That the appeal was filed against a wrong party. - The Appellate Chief Magistrate at P. 3 para. of his Ruling found $[5]$ and held as follows:

"Accordingly, it is my finding that the appeal was filed out of time. In the circumstances, this appeal is dismissed as being incompetent. No order is made as to costs."

$[6]$ In **Mukisa** Biscuits Manufacturing Co. Ltd Vs Westland Distributors Ltd [1969] E. A 696, as to what constitutes a preliminary objection, court held thus:

> " A preliminary objection consists of an error on the face of the pleadings which rise by clear implication out of the pleadings and which if argued as a preliminary objection may dispose of the suit."

By the above authority, it means that once the learned Chief $[7]$ affirmatively established Magistrate $\alpha$ r any both $\mathbf{O}f$ the Respondents' preliminary objections, the appeal would be disposed and indeed he did so by accordingly dismissing the appeal for having been filed out of time. However, in this case, upon the learned Chief Magistrate's dismissing the appeal on a point of preliminary objection successfully raised by the Respondents, he proceeded in the same judgment to further find and hold thus:

"An order made without competent jurisdiction is itself not competent. It is a nullity. Since the instant matter was not commenced in the L. C. I Court or not appealed to L. C. II and III and then to the Chief Magistrate's Court, the orders made therein were made by L. C. III Court without jurisdiction and they are themselves not competent. In the premises, I hereby pass a ruling as under that: -

- 1. The appeal is allowed and I declare that proceedings and orders therein a nullity since they were made without *competent jurisdiction.....* - 2. The Appellant(s), is granted costs of the appeal and those in the lower L. C. III Court."

Whereas the Chief Magistrate was entitled to proceed and tackle the other issues, he could not and was not permitted to condemn the Respondents (Now the Applicants) to costs over an appeal he had already dismissed by upholding their preliminary objection in their favour. He could only make declarations over the other issues raised.

- Under **S.83 CPA**, the High Court may call for the record of any case $[8]$ which has been determined under this Act by Magistrate's Court, and if the court appears to have: - exercised a jurisdiction not vested in it in law $(a)$ - (b) failed to exercise a jurisdiction invested or - acted in its exercise of its jurisdiction illegally or with material $(c)$ irregularity or injustice.

the High Court may revise the case and may make such order as it thinks fit. In Munobwa Mohamed Vs UMSC High Court Civil

Revision No. 01 of 2006, it was held that in cases where it exercised its revisionary jurisdiction, the High Court's duty entails examination 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 it. In Hitila Vs Uganda [1969] 1 E. A 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 had occurred.

- [10] In the instant case, the learned Chief Magistrate dismissed the appeal for it being incompetent and at the same time allowed it on the grounds that the L. C. III decision being appealed against was a The Chief Magistrate then proceeded to condemn the nullity. Respondents (Now Applicants) to pay costs of the said appeal without first determining the objection raised by the Applicants that they were not parties to the initial L. C. III suit being appealed I do find that this was irregular and occasioned a against. miscarriage of justice to the Applicants. The claim by Counsel for the Respondents that the Applicants were in the habit of changing names and therefore were the right parties to the appeal is not backed by any proof. Instead, there is evidence from the lower court of L. C. III proceedings and judgment that the Respondents (Now Applicants) were merely, the children of the plaintiffs. Therefore, the mere fact that the Applicants in the present application used to merely attend the proceedings in the lower L. C. III Court could not by itself render them parties to the case. - [11] It is therefore the finding of this court that whereas the learned Chief Magistrate had jurisdiction in the matter, he in the exercise of his jurisdiction acted with material irregularity and injustice in condemning the Respondents (Now Applicants) to costs in an appeal that he had found incompetent and dismissed. In the premises that the Chief Magistrate found the proceedings in the lower L. C. III Court a nullity, he ought to have made no order as to

costs so that each party meets its own costs. In any event, in this case, it is apparent on record that the Applicants were not parties to those illegal proceedings before the lower L. C. III Court.

[12] In conclusion, I find that this application is a proper one for the revision of the ruling and orders regarding the award of costs by the learned Chief Magistrate in Civil Appeal No. 2 of 2018, Masindi Chief Magistrate's Court. I accordingly set aside the Order for costs awarded in the appeal and in the lower L. C. III Court and substitute it with an order that each party bears its own costs. No orders are made as regards the present application for revision. Neither party can be condemned to costs on errors committed by court itself.

Dated at Hoima this $23^{rd}$ day of August. 2024.

Byaruhanga Jesse Rugyema

**IUDGE**