Mugisha & 7 Others v Ndyahabwa (Miscellaneous Application 59 of 2020) [2025] UGHC 74 (27 February 2025)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MBARARA HCT-05-CV-MA-0059-2020

(Arising from MBR-00-CV-CS-0035-2018)

**1. MUGISHA ELIAB**

**2. JUSTINE BARIGYE**

- 3. RWIGAMBA - 4. MUGARURA

5. MUGUME STEPHEN

- **6. MUHANGI WILSON** - 7. KYOBUTUNGI PRISCILLA

## **8. ROBERT RUTEBEMBERWA ::::::::::::::::::::::::::: APPLICANTS VERSUS**

**WILLIAM NDYAHABWA :::::::::::::::::::::::::::::::::::**

**BEFORE:** Hon Lady Justice Joyce Kavuma **RULING**

## Introduction.

[1] By a notice of motion dated $20<sup>th</sup>$ February 2020, the Applicants sought for orders that;

- 1. An order doth issue setting aside the ruling of the learned trial Magistrate Her Worship Sanyu Mukasa Magistrate Grade One delivered on the 28<sup>th</sup> day of June 2019 whereby the learned Magistrate overruled the preliminary objection by counsel for the $1^st$ to $8^{th}$ Applicants to the effect that a G1 Magistrate's Court does not have jurisdiction to hear and determine Civil Suit no. 35 of 2018. - An order doth issue setting aside the consent order of a temporary injunction against the $1^{\mbox{\scriptsize st}}$ to $7^{\mbox{\scriptsize th}}$ Applicants in

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Miscellaneous Application no. 566 of 2018 arising from Civil Suit no. 035 of 2018 entered by the learned trial Magistrate on 23<sup>rd</sup> January 2019 for want of jurisdiction.

- 3. An order doth issue setting aside the ruling and orders of the learned trial Magistrate in Miscellaneous Application no. 14 of 2019 arising from Miscellaneous Application no. 566 of 2018 also arising from Civil Suit no. 35 of 2018 in which she adjudged the $1^{st}$ to $7^{th}$ Applicants of contempt of court. - 4. An order doth issue that the $1^{st}$ and $2^{nd}$ Applicants be refunded UGX 1,000,000/ $=$ each being payment for a fine they made when the trial Magistrate erroneously committed them to Civil Prison for Contempt of Court. - 5. Costs of the application be provided for.

### Background.

The factual background of the application is ably stated in the **[2]** body of the application and an affidavit sworn by Justus Barigye the 2<sup>nd</sup> Applicant who deposed that;

He was one of the holders of Letters of Administration of the estate of the late Domnic Kawakuri and holder of powers of attorney to represent the interests of the other parties to this application who were also defendants in Civil Suit no. 35 of 2018.

That the Respondent filed Civil Suit no. 35 of 2018 against the Applicants for trespass on land which formed part of the estate of the late Dominic Kawakuri. That when hearing of Civil Suit no. 35 of 2018 commenced, his advocate raised a preliminary objection to the effect

that a Magistrate Grade One does not have jurisdiction to entertain, hear and determine Civil Suit no. 35 of 2018 that was founded in trespass to land where the pecuniary value of the suit land was above UGX 20,000,000/=. That the court overruled their preliminary objection and ordered the Respondent to amend the plaint to state the value of the suit land and to file the amended plaint in court accordingly. That the Respondent went ahead and filed an amended plaint in which he stated that the value of the suit land was UGX 19,500,000/ $=$ . That based on information from his lawyers, the learned trial Magistrate's ruling was tainted with illegality and material irregularity and injustice.

$[3]$ In his affidavit in reply, the Respondent deposed that the advice that the $2<sup>nd</sup>$ Applicant received from his advocate was misconceived. That he was advised by his advocate that the lower court was vested with jurisdiction to hear the matter for trespass and that the trial Magistrate's decision was not tainted with any illegality or material irregularity or at all.

#### Representation.

The Applicants were represented by M/s Mujurizi, Alinaitwe & $[4]$ Byamukama (MAB) Advocates while the Respondent was represented by M/s Ahimbisibwe & Agaba Co. Advocates. Both counsel submitted *viva voce* before me and I considered their submissions while making this ruling.

Analysis and decision of the court.

This court has jurisdiction under Section 83 of the Civil Procedure **[5]** Act to revise decisions of Magistrate's Courts. The Section provides as follows:

"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;

- Exercised a jurisdiction not vested in it in law $a)$ - b) Failed to exercise a Jurisdiction so vested - 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"

In the case of **Mabalaganya vs Sanga (2005) E. A 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 Magistrate court.

Therefore, decisions are revised when the trial Magistrate fails to exercise his or her Jurisdiction or where he or she acts illegally or with material irregularity or unjustly. In an application for revision, one has to prove that the judicial officer acted without jurisdiction, or failed to exercise the jurisdiction so vested or acted illegally, irregularly or unjustly

It therefore follows that **Section 83** of the Civil Procedure Act can $[6]$ only be invoked when or if it appears that the lower Court acted in the exercise of its jurisdiction illegally or with material irregularity or injustice.

In the case of **Matembe vs Yamulonga (1968) 1 EA 643**, court held that:

"Revision applies to jurisdiction alone, the irregular or nonexercise of it, or the illegal assumption of it. The section is not directed against conclusions of law or fact in which the question of jurisdiction is not involved." [Emphasis mine]

The crux of the instant application as can be deducted from the $[7]$ pleadings and submissions of counsel was that when the learned Magistrate heard MBR-00-CV-CS-0035-2018, she lacked pecuniary jurisdiction to do so and that as a result all the resultant orders therefrom were a nullity. M

Jurisdiction has been defined by the Court of Appeal as the power and authority constitutionally conferred upon or constitutionally recognized as existing in a court or judge to pronounce the sentence of the law, or to award the remedies provided by law, upon a set of facts, proved or admitted, referred to the tribunal for decision, and authorized by law to be the subject of investigation or action by that tribunal, and in favour of or against persons who present themselves, or who are brought before the court in some manner sanctioned by law as proper and sufficient. (See Elizabeth Kyomuhangi vs Uganda (Court of Appeal Criminal Appeal no. 131 of 2020 at page 6).

It follows that jurisdiction is everything to a court, without it, a court or tribunal cannot proceed to take any more step in any matter as whatever will be decided by it will merely be a nullity. (See Owners of Motor vessel Lillian "s" vs Caltex Oil Kenya Limited [1989] KLR 1). Jurisdiction can be either territorial, pecuniary or appellate jurisdiction

depending on the subject matter. (See Shyam Thanki and Others vs New Palace Hotel (1971) EA 199).

From the pleadings before me, the instant matter is rooted on **[8] Section 83(a)** of the Civil Procedure Act above, that is, that, *the learned* Magistrate Grade one exercised jurisdiction not vested in her in law. It was averred that the value of the suit land the subject matter of MBR-00-CV-CS-0035-2018 was above UGX 20,000,000/ $=$ which is the upper limit of the pecuniary jurisdiction of a Magistrate Grade One. Pecuniary jurisdiction of court entails the exercise of the power of court to decide a case and issue a decree or order over a subject matter, of a monetary value, over which court is allowed to exercise power. (See

Akullu Owot vs Lakony (High Court Civil Revision no. 1 of 2023).

**Section 4** of the Civil Procedure Act is instructive on the stance of the law in relation to pecuniary jurisdiction of courts. It provides that;

> "Except in so far as is otherwise expressly provided, nothing in this Act shall operate to give any court jurisdiction over suits the amount or value of the subject matter of which exceeds the pecuniary limits, if any, of its ordinary *jurisdiction." [Emphasis mine]* The aforementioned provision limits the jurisdiction of lower courts other than this court unless expressly provided for by the law.

The civil jurisdiction of Magistrate Courts is provided for under $[9]$ Section 207 of the Magistrates Courts Act (as amended) as follows;

"Subject to this section and any other written law, the jurisdiction of magistrates presiding over magistrates courts for the trial and determination of causes and matters of a civil nature shall be as follows—

(a) a chief magistrate shall have jurisdiction where the value of the subject matter in dispute does not exceed fifty million shillings and shall have unlimited jurisdiction in disputes relating to conversion, damage to property or trespass;

(b) a magistrate grade I shall have jurisdiction where the value of the subject matter does not exceed twenty million shillings $\mathcal{H}$

(c) a magistrate grade II shall have jurisdiction where the value of the subject matter in dispute does not exceed five hundred thousand shillings.

(2) Notwithstanding subsection (1), where the cause or matter of a civil nature is governed only by civil customary *jurisdiction of a chief magistrate and* law. the a magistrate grade I shall be unlimited.

(3) Whenever for the purposes of jurisdiction or court fees it is necessary to estimate the value of the subject matter of a suit capable of a money valuation, the plaintiff shall in the

plaint, subject to any rules of court, fix the amount at which he or she values the subject matter of the suit; but if the court thinks the relief sought is wrongly valued, the court shall fix the value and return the plaint for amendment.

According to the foregoing provision, Section 207 (1)(b) provides for the pecuniary jurisdiction of a Magistrate Grade One as UGX 20,000,000/ $=$ . Of importance to the instant matter, it is also worth pointing out further that under subsection (2) above, where the cause or matter of a civil nature is governed only by civil customary law, the jurisdiction of a Magistrate Grade one shall be unlimited.

Furthermore, under **Subsection** (3) where for the purposes of determining their jurisdiction, it is necessary to estimate the value of the subject matter of a suit capable of a money valuation, the plaintiff shall in the plaint, subject to any rules of court, fix the amount at which he or she values the subject matter of the suit; but if the court thinks the relief sought is wrongly valued, the court shall fix the value and return the plaint for amendment.

[10] According to the record of MBR-00-CV-CS-0035-2018, when the matter first came up for hearing on 29<sup>th</sup> April 2019 before the learned trial Magistrate, counsel for the Applicants raised a preliminary objection to the effect that the trial Magistrate lacked jurisdiction to entertain and determine the suit where the pecuniary value of the subject matter was above UGX 20,000,000/=.

The learned trial Magistrate reserved her ruling for 28<sup>th</sup> June 2019. In her ruling, the learned trial magistrate, having rightly laid down the law on jurisdiction of Magistrates' courts found that she had jurisdiction to hear the suit and ordered the Plaintiff to amend his plaint to state the value of the subject matter.

Counsel for the Applicant submitted before this court that it was $\mathbf{r}_{111}$ their contention that the suit before the learned trial Magistrate was one where she could not rely on the aforementioned Section 207 (2) of the Magistrates' Courts Act which gave unlimited jurisdiction to the trial Magistrate were a cause or matter was of a civil nature governed by only civil customary law. Counsel submitted further that the suit before the trial Magistrate was not only governed by civil customary law since according to him, the Respondent had relied, as his list of authorities, on the Constitution, Civil Procedure Act, Land Act, the Evidence Act. It was his prayer that the suit be transferred to the Chief Magistrate who was clothed with jurisdiction to entertain the matter. $\blacktriangledown$

Counsel for the Respondent on the other hand submitted that the Applicants' remedy in the instant matter ought to have been to appeal the decision of the learned trial Magistrate and not have filed the instant application which he referred to as an abuse of the process of the court. That the Respondent in his amended plaint had averred that he was a customary owner of the suit land a fact which was not disputed by the Applicants and it did not matter the value of the land since it was not registered land so the learned trial Magistrate had jurisdiction.

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[12] Before delving into the merits of this matter I found it prudent to address some misconceptions in the submissions of both counsel as stated above.

Firstly, I had the benefit of reading the learned trial Magistrate's ruling on the matter of jurisdiction before her, with greatest respect to both counsel, no where in her decision did she base, as her ratio decidendi on the fact that she had unlimited jurisdiction in the matter because the subject matter land was one governed by civil customary law.

Contrary, the learned trial Magistrate relied on **Section 11** of the Civil Procedure Act which is in pari materia with Section 207 (3) of the Magistrates' Court Act quoted hereinabove when she sent the Plaint to be amended.

Secondly, I disagree with counsel for the Respondent's preposition that by pleading that the subject matter of a suit was customary land or by the subject matter of a suit being unregistered land, it automatically makes the same customarily held and thus conferred jurisdiction upon the trial court.

[13] It is now trite that although evidence of user of unregistered land may be sufficient to establish customary ownership of such land, and possession can sometimes be used as an indicator of ownership or even. to create ownership, proof of customary tenure at the least requires evidence of a practice that has attained such notoriety that court would be justified in taking judicial notice of it under the law. (See Marko Matovu and 2 Ors vs Mohammed Sseviiri and 2 Ors Supreme Court Civil Appeal No. 7 of 1978; Geoffrey Mugambi and 2 ors vs David K.

## M'mugambi and three others, C. A. No. 153 of 1989 and Ogaba vs Kilama (High Court Civil Appeal No. 51 of 2015)).

To prove whether the suit land in the instant matter was or was not governed by civil customary law would have required, in view of this court, for further evidence beyond the pleadings to be laid before the learned trial Magistrate. This in effect would have ordinarily brought the Preliminary Objection out of the ambit of preliminary objections in sensu stricto since they ought to be purely points of law that do not require ascertainment of other facts before resolving it. ((see Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd [1969] EA 696 and Yaya vs Obur and Ors (High Court Civil Appeal No. 81 of $2018$ ).

[14] The above notwithstanding, it is the law that where no pecuniary value has been attached to the suit property in the pleadings, the trial Court ought to put itself on notice and go ahead to determine whether the matter actually falls within its pecuniary jurisdiction or not. (See Wadri Mathias and 4 others vs Dranilla Angella (High Court Civil Revision no. 0007 of 2019) (Civil Division)).

As a matter of law, **Section 207(3)** of the Magistrates Courts Act above, makes it incumbent on a plaintiff to state the value of the subject matter of a suit. The first question therefore, which a Court in which a suit or other proceeding has been instituted has to consider, is whether it has the jurisdiction to hear and decide it.

In Umar Asuman vs Olila Moses High Court Civil Revision no. 1 of **2006**, this court rightly observed that;

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"Jurisdiction of courts is a creature of statute, and a judicial officer worth the name must keep abreast with developments in court laws to ensure jurisdiction. It is now trite law that where a suit is filed in a court without jurisdiction, it is a non-existent suit. Whatever is decided in such a suit a suit amounts to no decision."

The question of jurisdiction is therefore very fundamental and should be one that must be determined before the case can proceed to its finality.

In the instant matter, when objection was raised by counsel for the Applicants regarding the jurisdiction of the learned trial Magistrate, she rightly in my view properly exercised her discretion within **Section 207(3)** of the Magistrates Courts Act by ordering the Plaintiff to amend his plaint to state the value of the suit land and accordingly serve the Defendants with it. Should there have been any objection in relation to the new value as stated by the Plaintiff, then the Defendants would have objected to it rather than file the instant application.

In effect therefore, this court does not find merit in the instant application and it is accordingly dismissed with costs.

I so order.

Dated, delivered and signed at Mbarara this. ...................................

Joyce Kavuma Judge

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