Muteteri Feibe v Bamudali Charles (Civil Appeal No. 38 of 2012) [2019] UGCA 2117 (25 October 2019)

#### THE REPUBLIC OF UGANDA

#### IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

#### CIVIL APPEAL NO. 38 OF 2OI2

ETERI FEIBE APPELLANT

#### VERSUS

#### MUDALI CHARLES RESPONDENT

(An appeal from the ruling of che High Court oflJganda at Masqka by Hon. Mr. Justice Musoke Kibuka dated 22nd Februory, 201.2 in High Court Civil Miscellaneous Applicotion No. 138 of2011)

ORAM: Hon. Mr. fustice Alfonse Owiny- Dollo, DCf

Hon. Mr. Justice Kenneth Kakuru, f A

Hon. Mr. f ustice Stephen Musota, lA

#### IUDGMENT OF IUSTICE KENNETH KAKURU. IA

e respondent instituted a suit against the appellant in the LCL Court Kyalulangira village under Kyalulangira LC1 Court Civil Suit No. 40 of 2009 seeking orders that the appellant vacates from the suit kibanga fCustomary holding under 'moilo' tenure) within three months. Thc Judgment was delivered on the 31.tday of October 2009 in favour ofthe respondent. Subsequently a warrant for vacant possession was issued by the Chief Magistrate Court at Masaka in his favour. The respondent proceeded to execute the said warrant against the appellant following the execution, the appellant filed a revision application vide High Court Miscellaneous Application No. 138 of 201'L in the High Court at Masaka seeking for orders that the Kyalulangira

I Council 1 Court Judgment be quashed on grounds that the Local Council <sup>L</sup> rt did not have furisdiction to determine the matter. The revision application s heard and dismissed on the 24th day of February, 2012.

e appellant being dissatisfied with the decision of the High Court filed this appeal the following grounds;-

- 1. That the learned Judge erred in law when he reached a decision basing on <sup>a</sup> repealed low. - 2. That the learned Judge erred in law when he made a ruling that the trial LC <sup>1</sup> Court ot Kyalulangira village had jurisdiction to entertain and determine Civil Suit No. 40 of 2009. - 3. That the learned Judge erred in law when he disagreed with the consent position of both parties' Counsel. - 4. The learned Judge erred in law and fact when he failed to properly evaluate the evidence on record and thereby reoching a wrong decision.

t the hearing of this appeal Mr. Godfrey Mafabi learned Counsel appeared for the ppellant with Ms. Zilla Nobukalu learned Counsel appeared for the respondent.

#### n

is appeal arises from a revision order of High Court and not from an appeal. This ppeal therefore emanates from the decision ofthe High Court exercising its original urisdiction as the proceeding from which this appeal arose did not come to the High Court by way of appeal.

This being a first appellate Court, it has a duty to re-evaluate the evidence, weighing conflicting evidence and reach its own conclusion on the evidence, bearing in that it

did Ap ot see and hear the witnesses. ln Kifamunte vs Uganda Supreme Court Criminal al No. 70 of 1997, Court stated that;-

> "We agree that on first appeal, from a conviction by a Judge the appellant is entitled to have the appellate Court's own consideration and views of the evidence as a whole and its own decision thereon. The first appellate court has a duty to review the evidence of the case and to reconsider the materials before the trial judge. The appellate Court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it."

Ti S s C t Pandyo vs. R. (1957) E. A. 336, Fr. Narcensio Begumisa & others vs Eric baaga, Supreme Court Civil Appeal No. 17 of 2002, Bogere Moses vs Uganda, preme Court Criminal Appeal No. 1 of 1997 and Rule 30(1) of the Rules of this urt.

T is appeal is premised on the question as to whether or not the Kyalulangira LC1 urt had lurisdiction to hear and determine a case of trespass on customary land. his is a question of law and we have not found it necessary to delve into other atters of fact that appear irrelevant to the determination of this appeal,

he pertinent part of the iudgment states as follows;-

"We the LC7 court members of Kyalulangira sitting at Kyalulangira village this 37st dqy of October 2009 in the presence of both parties and area residents have heard and determined this matter..."

It is evident that the suit was brought in October 2009 and was in respect of trespass on customary land. The question is whether or not at that time the Local Council 1 Courts were in existence legally and if so whether they had jurisdiction to hear and determine the matter from which this appeal arises.

1,

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05 the Constitution was amended to provide for country's return to multiparty ical dispensation. It had hitherto been under the movement system provided nder Article 70 of the Constitution. In

above notwithstanding, the Local Councils elected under the movement system inued in existence and operated normally without regard to the Constitutional ndment.

006 one Rubaramira Ruranga instituted a petition at the Constitutional Court llenging the legality of continued existence of Local Council institutions and mittees elected under the movement system. The Constitutional Court in baramira Ruranga vs Electoral Commission & Attorney General, Constitutional urt Constitutional Petition No. 2L of 2006 held that such Local Council committees t were in existence prior to, or were elected or constituted after the <sup>2005</sup> endment of the Constitution were u nconstitutional. ln

e High Court had an opportunity to pronounce itself on this matter in Ocitti omono vs Okello Ocen High Court Civil Miscelloneous Application No. 54 of 2014 by utonyi J. I am constrained to reproduce in extenso the pertinent parts of her dgment with the approval of this Court. She observed as follows;-

" ... I would wish to make it clear that much as we have the Local Council Courts Act, we do not have Local Council I and II courts which are constitutionally and legal constituted.

The former made of constitution, or current if at all they exist was declared unconstitutional in Constitutional Petition No. 21 of 2006 Rubaromira Ruranga vs Electorql Commission & Attorney General.

This was way back on 3/4/2007 there hos never been any elections of Local Council executives at the two levels of I and ll.

Much as we hqve stotutes like the LCCA and the Children's Act which give the Local Council court's jurisdiction over some mqtters, the courts do not have judicial powers as of now because they have not been fully constituted in accordance with the provisions of the Constitution of the Republic of Uganda.

They will have judicial power after the Uganda Electoral Commission conducts the elections of the executive members of the committees. The only court which is constituted under Local Council Courts Act is the LC lll which is an appellate court under S. 32(1)(2)(b) of the LCCA 2006.

I do agree with the submission of submissions of counsel for the applicant that Amar LC II court had no jurisdiction to adjudicate over this matter as court of first instance rendering their proceedings a nullity.

The Chief Magistrate upon receipt of the application for execution should have exercised his jurisdiction under S. 83(a) of the Civil Procedure Act by forwarding the file for Revision.

The learned Chief Magistrate did not have a legal Judgment to execute, The Chief Magistrate is obliged under the law to ensure the legality, regularily, propriety and fairness of LC Court before allowing execution of its orders. Even if 5.22 (5) of the LCCA is applied which provides as follows, "At the hearing of <sup>a</sup> case in a town, division or sub county local council court whether sitting as an original or appellate court, a summary of the evidence given by each person shall be recorded separately" it would be erroneous interpretation, if the court is to think that LC Il or parish have concurrent jurisdiction with LC I as courts of first instance in land matters 5.22(5) had to be read together with S. 50 (1) and (3) ofthe LCCA.

S. 50(1) of the LCCA repealed the Executive Committees Judicial Powers Act and S. 50(3) allowed qny case pending before a court under the Executive

Committees (Judicial Powers) Act qt the commencement of the Act to be continued ond concluded by that court notwithstanding the repeal ofthat Act.

This by construction and if not misconstrued meqns that only pending cases would continue to be handled and not new cases like the case under Revision. By the time the LCCA came into force the case under consideration was not pending. lt is trite law that exercising jurisdiction not vested in court renders the judgment and its orders null and void and therefore unenforceable."

ree with the observations of the learned Judge set out above, as she sets out rectly the position of the law, I would accordingly adopt her observations, as my ision, as the case that was before her is on all fours with one before me now cording I find that, by the time Civil Suit No. 40 of 2009 was filed at the alulangira LC1 Court that Court did not have jurisdiction to hear and determine tter. It had ceased to legally exist. The Constitutional Court had already nounced itself on the question of the Local Council Courts legality. The LCl. urts could not be legally constituted in absence of legally elected members of LC ho could constitute into Court. The Local Council 1 Courts remained in abeyance d did not have jurisdiction since they were not fully constituted in accordance ith the provisions of the Constitution.

ccordingly I find merit in this appeal which is hereby allowed.

would grant the following orders and declarations which were sought under iscellaneous application no. 138 of 2011;-

- 1. A declaration that the Kyolulangira LCl Court did not have jurisdiction to try the matter qs it was not a legally constituted court. - 2. The Kyolulongira LC1 judgment in Civil Suit No, 40 of 2009 is hereby quashed. - 3. The execution done in Civil Miscellaneous Application No. 109 of2010 is hereby set aside.

- The warrant giving vacant possession of the suit land to the respondent and its $4.$ subsequent executions are all null and void and the said warrant is hereby vacated. - 5. *The Registrar of the High Court is hereby directed to issue a warrant of vacant* possession in favour of the appellant against the current occupants of the suit *property and restore the property to her.* - 6. The respondents shall pay costs at this Court, at the High Court and the Magistrates Court.

It is so ordered.

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| | Dated at Kampalathis $\frac{25}{\text{day of}}$ Oct. 2019. | |--------------|------------------------------------------------------------| | $\mathbf{I}$ | Kenneth Kakuru<br><b>JUSTICE OF APPEAL</b> | | | |

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#### THE REPUBLIC OF UGANDA

### IN THE COURT OF APPEAL OF UGANDA

#### CIVIL APPEAL NO. 38 OF 2012

MUTETERI FEIBE ::::::::::::::::::::::::::::::::::: $5$

#### **VERSUS**

#### BAMUDALI CHARLES ....................................

(Arising from the Ruling of the High Court (at Masaka before his Lordship Hon.) Kibuuka musoke dated 22<sup>nd</sup> day of February, 2012 in High Court Civil Misc. Application No. 138 of 2011)

#### CORAM: 15

$2b$

# HON. MR. JUSTICE ALFONSE OWINY DOLLO, DCJ HON. JUSTICE KENNETH KAKURU, JA HON. MR. JUSTICE STEPHEN MUSOTA, JA

#### **JUDGMENT OF JUSTICE STEPHEN MUSOTA, JA**

I have had the benefit of reading in draft the judgment of my learned brother Hon. Mr. Justice Kenneth Kakuru, JA. I agree with his conclusions and the proposed orders and declarations. I allow this appeal.

It is true that by the time the LC1 Kyalulangira village court convened to determine the suit in respect of trespass on customary land in October 2009, $\overline{25}$ they had no jurisdiction to do so because in 2005, the constitution was amended to provide for the country's return to multiparty political dispensation. The LC'S elected prior to the 2005 constitutional amendment were declared unconstitutional by the constitutional court in **Rubaramira Ruranga Vs** 30 Electoral Commission and Attorney General Constitutional Petition No. 21 of 2006.

Kyalulangira LC1 had ceased to legally exist and therefore had no jurisdiction because by that time, the LC's remained in abeyance because they were not fully constituted in accordance with the constitution.

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Dated at Kampala this....................................

Januahur.

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$\blacksquare$

$\bullet$ $\rightarrow$ $\sqrt{ }$

> Stephen Musota JUSTICE OF APPEAL

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL AT KAMPALA

CORAM: OWINY - DOLLO DCJ, KAKURU AND MUSOTA JJA.

### CIVIL APPEAL NO 38 OF 2012

peal from the ruling of Kibuuka J; in High Court of Masaka Civil Misc. Application No. 138 0f 2011) p

FEIBE APPELLANT

VERSUS

ALI CIIARLES .... RESPONDENT

## JUDGMENT OF OWINY - DOLLO; DCJ

have had the benefit of reading the judgment of my learned brother kuru, JA in draft. I agree with him that this appeal should succeed When, in October 2009, the LCI Kyalulagira village Court heard and determined the suit which has been appealed against up to this Court, the LCI Courts had no jurisdiction to do so since they were not legally constituted.

Since Musota JA also concurs, orders are hereby given in the terms proposed by Kakuru JA.

Dated, and signed at Kampala tnis ..355v or \*\*.r..... rors

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tA Alfonse C. Owiny - Dollo Deputy Chief Justice

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