Musimenta v Kitswamba Sub-County Local Government (Civil Appeal 2 of 2024) [2025] UGHC 26 (28 January 2025)

**THE REPUBLIC OF UGANDA**

**IN THE HIGH COURT OF UGANDA AT KASESE**

**HCT-25-CV-CA-0002-2024**

**(FORMERLY FORT PORTAL HCT-01-CV-CA-0013-2020)**

**(ARISING FROM KAS-00-CV-MA-0058-2019)**

**MUSIMENTA HOPE=========================================APPELLANT**

**VERSUS**

**KITSWAMBA SUB COUNTY LOCAL GOVERNMENT===============RESPONDENT**

**BEFORE JUSTICE DAVID S. L. MAKUMBI**

**JUDGMENT**

**REPRESENTATION:**

Appellant represented by M/S Ahabwe James & Co. Advocates

**BACKGROUND:**

This is an appeal by which the Appellant, being aggrieved and dissatisfied with the ruling and orders of His Worship Sakyewo Emmy Geoffrey, Chief Magistrate in **KAS-00-CV-CS-MA-0058-2019** appealed against the same on the following grounds:

1. The Learned Trial Magistrate erred in law and fact when he failed to review the judgment in KAS-00-CV-CS-0058-2019 hence causing a miscarriage of justice. 2. The learned Trial Magistrate erred in law and fact when he held that revision or appeal were the most appropriate for the Appellant hence coming to a wrong decision.

The Appellant accordingly made the following prayers:

1. The Appeal be allowed. 2. The ruling and order of the trial court be set aside. 3. The ruling and order of the trial court dismissing Civil Suit No. 155 of 2018 be set aside. 4. Court finds that the Respondent breached an agreement for land rent and grants all the reliefs the Appellant is seeking in Civil Suit No. 155 of 2018.

The brief facts in this matter are as follows.

The Plaintiff/Appellant brought a suit against the Defendant/Respondent on 18th December 2018. The Plaintiff’s claim in the suit was for a declaration that the Defendant unlawfully terminated a contract with the Plaintiff. The contract between the Plaintiff and Defendant was for rent of land belonging to the Defendant in Ibuga Village – Block B, Kitswamba Sub-County, Kasese district. According to the Plaintiff, she rented five acres of land at a rate of UGX 750,000 during August 2017 but later learnt that the Defendant had rented the land to someone else and promised to refund the amount paid by the Plaintiff. The Plaintiff tried unsuccessfully to claim the amount she paid and as a result she suffered great loss and inconvenience from breach of the contract. The Plaintiff subsequently prayed to Court for the following.

1. Declaration that Defendant unlawfully terminated a contract with the Plaintiff. 2. General damages for the loss and inconveniences suffered by the Plaintiff. 3. Special damages of UGX 6,587,500 being the value of rent and lost income. 4. Costs of the suit. 5. Any other relief to meet the ends of justice.

The suit subsequently proceeded ex parte and on 21st May 2019 the learned Trial Magistrate decided against the Plaintiff on the grounds that Counsel for the Plaintiff failed to furnish proof of special damages having relied upon photocopies exhibited as identified documents.

The Plaintiff then applied to the lower Court for review on 11th July 2019 seeking the following orders:

1. The judgment of the Court in Civil Suit No. 155 of 2018 delivered on 21st May 2019 be reviewed. 2. Court finds that the Defendant breached the agreement for land rent with the Plaintiff and is entitled to all the reliefs sought in the Civil Suit No. 155 of 2018. 3. The orders issued by Court in Civil Suit No. 155 of 2018 on 21st May 2019 2019 be set aside. 4. Costs of the Application be provided for.

The grounds for the application for review were basically that the Applicant had discovered the original receipt against which she had made payment for renting the land and that the receipt was proof that she was entitled to the special damages sought in the lower Court. The Applicant further contended that the decision of Court to the effect that the Applicant did not give evidence to prove entitlement to special damages was an error apparent on the record.

The Trial Magistrate subsequently dismissed the application stating that whereas the remedy prayed for may appear to be good, revision of the order or appeal would be appropriate. The Trial Magistrate gave no reason for the dismissal.

It is on the basis of the Trial Magistrate’s dismissal of the application for review that the Applicant lodged the instant appeal on the grounds and for the remedies cited hereinabove.

**Duty of the First Appellate Court:**

The duty of this Court as a first appellate court as laid down by the Supreme Court in the case of **Father Nanensio Begumisa and three others v. Eric Tiberaga Civil Appeal No. 17 of 2000** is as follows,

*“It is a well-settled principle that on a first appeal, the parties are entitled to obtain from the appeal court its own decision on issues of fact as well as of law.  Although in a case of conflicting evidence the appeal court has to make due allowance for the fact that it has neither seen nor heard the witnesses, it must weigh the conflicting evidence and draw its own inference and conclusions*.”

This Court therefore has a duty to re-evaluate the evidence before the lower Court in its entirety and the subsequent decision of the Court and reach its own decision on the correctness of the decision of the lower Court taking into account the arguments of the parties in the appeal.

Grounds 1 and 2 of this application are inter-related with the first ground having direct bearing on the second. I shall therefore address them concurrently.

**Appellant’s Submissions:**

As concerns the first ground Counsel for the Appellant reiterated the grounds upon which the application for review was based and argued that the Trial Magistrate was wrong not to have considered the grounds for review. He argued that the Appellant had discovered new and important evidence that warranted review of the lower Court decision and that furthermore the Appellant had also applied for review on grounds that the lower Court decision was erroneous but the Trial Magistrate had failed to address the error.

With regard to the second ground the Appellant argued that the Trial Magistrate was wrong to have concluded that revision or appeal was the most appropriate remedy for the Appellant and yet no grounds for revision were apparent.

The Respondent did not enter appearance.

**ANALYSIS AND DECISION OF COURT:**

I have had the benefit of reading the lower Court record both in the application for review and the main suit on which the application was founded. The ruling of the learned Trial Magistrate on the application for review was very short and was as follows.

*“Whereas the remedy prayed for may appear on the face of it to be good, at this time of litigation, revision of the order could be appropriate or appeal within the time permitted by law. In this regard, I am reluctant to accept the direction prayed for and dismiss this application. Leave to appeal against this decision is granted. No costs ordered”*

With regard to review Section 82 of the Civil Procedure Act provides that any person considering himself or herself aggrieved by a decree or order from which an appeal is allowed by this Act but from which no appeal has been preferred; or by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order on the decree or order as it thinks fit.

Furthermore, Order 46 Rule 1 of the Civil Procedure Rules reproduces Section 82 of the Civil Procedure Act but adds more detail to the effect that an aggrieved person thereunder who from discovery of new and important matter of evidence which, after the exercise of due diligence, was not within his or knowledge or could not be produced by him or her at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason desires to obtain a review of the decree passed or order made against him or her, may apply for a review of the judgment to the court which passed the decree or made the order.

From the above, what is apparent is that for one to apply for review the following conditions must be met.

1. The Applicant must have suffered a legal grievance (see **Re Nakivubo Chemists Ltd [1979] HCB 12**). 2. There must be a decree or order against the Applicant for which he or she is aggrieved.

For the application to be allowed the following conditions also need to be met.

1. Discovery of new and important matters of evidence which after exercise of due diligence was not within the Applicant’s knowledge or could not be produced by him or her at the time of passing the decree or order. 2. A mistake or error apparent on the face of the record. 3. Any other sufficient reason analogous to the first two conditions above.

In this matter the Appellant applied to the lower court for review and according to Paragraph 5 of the Appellant’s Affidavit in support of the application she had discovered the original receipt against which her payment had been received by the local government.

Furthermore, according to Paragraph 7 of the aforementioned Affidavit the Appellant stated that she gave both oral and documentary evidence which was unchallenged proving that the Respondent breached an agreement and that the Court decision about her Counsel not giving evidence proving entitlement to special damages was an error on the face of the record.

Having examined the Application before the lower Court I find that the Applicant did meet the conditions for applying for review. She indicated that she had discovered new evidence and also that there was an error apparent on the Court record. In both cases the duty of the lower Court was to evaluate the substance of the application and determine it on the merits. However, as is evident from the ruling of the learned Trial Magistrate he opted to avoid the merits entirely and for no apparent reason decided that the Appellant was better off proceeding by way of revision or appeal.

A ruling as I understand it in civil matters is a form of judgment delivered in miscellaneous applications or causes. To that extent it falls within the context of a judgment as defined under 2(i) of the Civil Procedure Act to mean the statement given by the judge of the grounds of a decree or order. In the application for review the Appellant sought orders from the lower Court. It was therefore the duty of the lower Court to respond to the application by giving the appropriate orders.

According to Osborn’s Concise Law Dictionary (7th Edition), a judgment is a decision or sentence of a court in a legal proceeding, or the reasoning of the judge which, leads him to his decision. By this definition and indeed sound judicial practice, there must always be some form of reasoning by which a judicial decree or order should be justified. It is not open to a judicial officer to dismiss an application on the whimsical basis of simple reluctance. By this measure one could even argue that the application remained undetermined to the extent that there was no reasoning to support the ruling. Furthermore, whereas the learned Trial Magistrate ruled that the Appellant ought to have proceeded by way of revision or appeal, he gave no reasons for this conclusion. It is clear therefore that the Trial Magistrate failed without reason to exercise the power of review as prayed by the Appellant.

In light of the foregoing I do hereby find that the Trial Magistrate erred in law and fact when he failed without clear reasons to review his own decision despite the grounds advanced by the Appellant, and furthermore that the Trial Magistrate erred in law and fact when he ruled that the Appellant ought to have proceeded by way of revision or appeal without considering the merits of the application for review.

I therefore uphold both grounds of appeal in this matter.

**ORDERS:**

1. The Appeal succeeds. 2. The ruling and orders of His Worship Sayekwo Emmy Geoffrey in Kasese Chief Magistrate Miscellaneous Application No. 58 of 2019 are hereby set aside. 3. Kasese Chief Magistrate Miscellaneous Application No. 58 of 2019 is hereby referred back to Chief Magistrate in Kasese for determination on the merits and the final determination of Civil Suit No. **KAS-00-CV-CS-0155-2019**. 4. Costs shall abide in the cause.

I so order.

**David S. L. Makumbi**

**JUDGE**

**28/01/25**