Mulindwa v Kayondo & Another (Civil Revision 4 of 2023) [2024] UGHC 319 (9 January 2024)

## **THE REPUBLIC OF UGANDA**

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

## **CIVIL REVISION NO. 04 OF 2023**

# **(ARISING FROM CHIEF MAGISTRATE'S COURT CIVIL SUIT NO.069 OF 2019)**

**ANNE MULINDWA :::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT**

## **VERSUS**

## **1. KAYONDO FRED**

**2. KATENDE HENRY :::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENTS**

*Before; Hon. Justice Victoria Nakintu Nkwanga Katamba*

## **RULING**

### **Background:**

The Applicant filed this suit for revision of the orders of Her Worship **Sylvia Nvanungi vide Civil Suit No. 69 of 2019** delivered **03/07/2023**. The Applicant faults the learned trial magistrate in the aforementioned suit for having exhibited bias when she stated that the Applicant and her Advocate are relatives who do not follow court procedures and that the Advocate could not represent the Applicant.

The Applicant further faults the learned Trial Chief Magistrate for having dismissed the main suit at the locus hearing of a Temporary Injunction Application M. A No. 04/2023, yet the main suit was not before her.

The Applicant prayed that this court be pleased to revise the orders of the learned Trial Chief Magistrate, set aside the impugned order of dismissal of the suit, maintain the orders and the status quo that was existing in the matter prior to issuance of the dismissal order among other reliefs.


The Respondents on the other hand supported the learned Trial Chief Magistrate's decision to dismiss the main suit. They claim that whereas the main suit was dismissed at the locus hearing of the Temporary Injunction Application, the main suit was also mentioned at the same event.

It is the Respondents' case that the value of the subject matter in the suit exceeded the pecuniary limit of the Chief Magistrates court and that for the above reason, the learned Trial Chef Magistrate rightly dismissed it.

The Respondents prayed that this court be pleased to dismiss the instant Application with costs.

#### **Representation**:

The Applicant was represented by **M/s Alaka & Co. Advocates**

The 1st Respondent was represented by **M/s Mugisa, Namutale & Co. Advocates.**

The 2nd Respondent was represented by **M/s Xander & Co. Advocates**.

The parties were given directives to file written submissions when the matter came up for hearing on 30th October 2023. The same are not on the record of this court, nevertheless, I will proceed to determine the Application on the affidavit evidence before me.

#### **Issues:**

- *1. Whether appropriate grounds exist to warrant revision of proceedings in Civil Suit No. 069 of 2019?* - *2. What remedies are available to the parties?*

### **Applicant's Case:**

The Applicant states that the learned Trial Chief Magistrate exhibited bias when she lost her Judicial temper, hurled insults at her and her Advocate in the presence of the local area leaders.

The Applicant further states that the learned Trial Magistrate erred when she dismissed the main suit which was not before her, at the locus visit/ hearing of Application for a temporary injunction.


The Applicant contends that the above conduct of the learned Trial Chief Magistrate deprived her of her right to a fair hearing and that it's against the above background that she seeks to have the said orders revised and set aside.

#### **Respondents Case**:

The 1st Respondent submitted that he is the registered proprietor to the suit land on which the Applicant claims to be a bona fide occupant of 6acres.

The 1st Respondent sold 3.5 acres to the 2nd Respondent out of the over 44hectares. It is this 3.5 acres which is the suit land because the Applicant claims that the 1st Respondent sold it without her consent.

The Respondents state that the main suit was also mentioned on the day the suit was dismissed.

The Respondents supported the findings of the learned Trial Chief Magistrate that the value of the subject matter exceeded UGX. 50,000,000/= which is her pecuniary limit.

The Respondents also vehemently objected to having the suit transferred to the High court for hearing which conduct they maintain, is illegal. They prayed that the Application be dismissed with Costs.

#### **Determination by court**

I have had the benefit of reading the affidavit evidence of both parties and below are my findings on the issues disclosed by the instant Application.

## *1. Whether appropriate grounds exist to warrant revision of proceedings in Civil Suit No. 069 of 2019?*

This court is empowered by *section 83 of the Civil Procedure Act, Cap 71 to revise decisions of Magistrates' Courts where the magistrate's 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. It entails a re-examination or careful review, for correction or improvement, of a decision of a magistrate's court, after satisfying itself as to the*

## *correctness, legality or propriety of any finding, order or any other decision and the regularity of any proceedings of Magistrates Court.*

The Applicant criticized the learned trial Chief Magistrate for having dismissed the main suit at the locus visit/hearing of a temporary Injunction yet the main suit was not before her. Whereas, the Respondent contends that the main suit also came up for mention on that day, there is no proof of a mention notice nor by adjournment on the record to show that the main suit had been cause listed for hearing on the day of dismissal.

The record shows that the learned trial Chief Magistrate had earlier on directed the Applicant to produce before court, the valuation of the suit land so as a guide to the court on whether the suit in dispute was triable in her court. In a strange twist of events, she later made a decision to dismiss the suit without first satisfying her own conviction regarding its pecuniary jurisdiction.

The trial Chief Magistrate's doubt as to the pecuniary jurisdiction of the subject matter is clearly discernable in the last paragraph of the record of proceedings at page 7 where she stated and I quote; *"The same property under litigation seems to be above the jurisdiction of this Honourable Court; the same having permanent structures."* She later reiterated her advice/directive to the Applicant to have it valued while at the same time, dismissed the suit.

It is therefore the finding of this court that the learned trial Chief Magistrate acted with material irregularity and unjustly when she dismissed the suit without first ascertaining the value of the subject matter. *Article 28 of the Constitution of Uganda enjoins Courts and other tribunals to afford a fair and speedy hearing to parties with civil disputes and those against whom criminal accusations have been brought.*

It is clear that the learned trial Chief Magistrate omitted to afford the Applicant her right to a fair hearing on the aspect of pecuniary jurisdiction when she did not wait for her to produce before her a valuation report and when she dismissed the main cause that was clearly not before her.

Further, there is on record an agreement that the suit land had been purchased by the 2nd Respondent from the 1st Respondent a year ago at UGX. 33,000,000/= which is well within the jurisdiction of a Chief Magistrates court. The fact the 2nd Respondent had initiated construction of

a building on the suit land was immaterial because, the Applicant's interest is in the suit land but not in the said structure whose legality is yet to be ascertained.

In conclusion, having found that the Applicant was not afforded a fair hearing before the dismissal order was made by the learned trial Chief Magistrate, I hereby answer the issue in the affirmative.

#### *2. What remedies are available to the parties?*

The Applicant prayed that the orders of the learned Chief Magistrate be set aside and the status quo that was prevailing at the time the impugned order was made be maintained. These orders are hereby granted.

The Applicant also prayed that this court be pleased to call up this matter for hearing by the High Court. The Applicant's key concern was that the learned Chief Magistrate is biased and she is unlikely to get Justice in her Court.

I take Judicial notice of the fact that the learned Chief Magistrate has since been transferred to Mitooma Chief Magistrates Court. The sum effect of this transfer means that another Chief Magistrate was allocated to the Chief Magistrate Court of Masaka.

I will therefore, not call up the matter for hearing by High Court because in my opinion, this is a matter whose pecuniary value did not exceed UGX. 50,000,000/= at the time it was instituted. This issue should not be re-litigated upon by the Chief Magistrates Court because, the parties that bore the burden of proof (Respondents) did not furnish the trial court with any evidence to prove their allegation at the trial/ the locus visit hearing of the temporary injunction.

I so order.

Orders:

- 1. The orders of the learned Chief Magistrate are hereby set a side. - 2. The status quo that was prevailing at the time the impugned dismissal order was made is hereby maintained.

3. The Applicant is awarded Costs of this suit to be collected at the determination of the main cause.

Dated at Masaka this 09th day of January, 2024

## **Victoria Nakintu Nkwanga Katamba.**

**Judge.**