Nakku v Nagawonye (Revision Cause 6 of 2024) [2025] UGHCFD 6 (17 February 2025)

Full Case Text

# THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA (FAMILY DIVISION)

#### **REVISION CAUSE NO. 006 OF 2024** (ARISING FROM KASANGATI CHIEF MAGISTRATES COURT EXECUTION APPLICATION NO. 44 OF 2022) (ALL ARISING FROM KASANGATI CHIEF MAGISTRATES COURT DIVORCE CAUSE NO. 6 OF 2014)

NAKKU ELIZABETH :::::::::::::::::::::: <pre>....................................

#### VERSUS

CHRISTOPHER NAGAWONYE ::::::::::::::::::::::::::::::::::::

# Before: HON. LADY JUSTICE DR. CHRISTINE A. ECHOOKIT

#### **RULING:**

#### **INTRODUCTION:**

- [1] This ruling is in respect of an application for revision brought under Article 126(2) (e) of the Constitution of the Republic of Uganda, Section 33 of the Judicature Act, Section 83 and Section 98 of the Civil Procedure Act and Order 52 rule 1 and 3 of the Civil **Procedure Rules** for orders that; - a) The decision of the Chief Magistrate at the Chief Magistrate's Court of Kasangati in Execution Application No. 44 of 2022, refusing to grant an Order of execution of the Decree in Divorce Cause No. 6 of 2014, be revised and set aside. - b) An order issuing execution of the Decree in Divorce Cause No. 6 of 2014 be granted. - c) Any other Orders that this Honorable Court may deem fit and just in the circumstances be granted. - d) Costs be provided for.

[2] The application was supported by the affidavit of Nakku Elizabeth who is the Applicant. The Respondent filed an affidavit in reply and the Applicant filed a rejoinder.

#### **BACKGROUND:**

- [3] Divorce Cause No. 6 of 2014 between the Applicant and Respondent was determined by Her Worship Prossy Katushabe Magistrate Grade 1 in Kasangati Chief Magistrate's Court in 2017. By consent of the parties, the grounds for divorce were resolved. The only pending issue that the court resolved was sharing of the matrimonial property. By the Judgment of court dated 6th December, 2017, court divided the matrimonial property at Kiteezi between the parties. The total acreage of the land was 10 acres (annextures "A" and "B" to the affidavit in support). - [4] The Applicant was aggrieved by that decision and filed an appeal to this court (Civil Appeal No. 24 of 2017). That appeal collapsed in 2019 for want of prosecution. The reason was that the lower court file could not be traced (annexure "C" to the application). - [5] The Applicant then filed **Execution Application No. 44 of 2022** in the Chief Magistrates Court of Kasangati at Kasangati which was heard by the Chief Magistrate - Her Worship Kainza Beatrice. Being dissatisfied with the decision, the Applicant has filed the present motion for revision

# REPRESENTATION AND HEARING:

[6] Counsel Richard Sajjabi and Ibrahim Munyasin represented the Applicant. Counsel Nakwera Musa represented the Respondent. The Applicant and Respondent were present in Court.

# **GROUNDS FOR REVISION:**

For purposes of clarity to avoid confusion, I will refer to the Magistrate Grade 1 who heard Divorce Cause No. 06 of 2014 as the trial Magistrate, and Her Worship Kainza Beatrice the Chief Magistrate who heard the Execution Application No. 44 of 2022 as the Chief Magistrate.

- [7] The grounds for revision as stated in the Applicant's motion and supporting affidavit are: - a) The Chief Magistrate failed to exercise jurisdiction vested in her by law by denying grant of an order of execution based on unproved rights of a third party who was not part of the Decree in Divorce Cause No. 6 of 2014. - b) The Chief Magistrate materially erred by improperly incorporating a locus in quo in execution proceedings without witness testimony, relying on unrecorded evidence in a concluded case, and basing the decision on the purported rights of unnamed non-parties, thereby declining the execution application.

## DETERMINATION BY THE COURT:

Ground 1: That the trial Magistrate failed to exercise jurisdiction vested in her by law by denying grant of an order of execution based on unproved rights of a third party who was not part of the Decree in Divorce Cause No. 6 of 2014.

[8] Revision by the High Court is provided for under section 83 of the Civil Procedure Act, Cap. 282 which states that:

(1) "The High Court may call for the record of any Magistrate's Court, and if it appears to have-

(a) exercised a jurisdiction not vested in it in law;

(b) failed to exercise a jurisdiction so vested; or

the High Court may revise the case and may make such order in the record as the court considers fit.

(2) The power of revision referred to in subsection (1) shall not be exercised-(a) unless the parties are first given the opportunity of being heard; or

(e) where, from lapse of time or other cause, the exercise of that power would involve serious hardship to any person".

- [9] Revision entails a re-examination or careful review, for correction or improvement of a decision of a Magistrate's court, after the court has satisfied itself as to the correctness, legality or propriety of any finding, order or any other decision and the regularity of any proceedings of a Magistrate's Court. Revision is a wide power exercisable in any proceedings in which it appears that an error material to the merits of the case or involving a miscarriage of justice occurred. - [10] The High Court may call for the record of any Magistrate's Court, and if it appears to have 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. - [11] In the instant case, Execution Application No. 44 of 2022 arose from Divorce Cause No. 06 of 2014 where Court granted ordered that; - a) the burial grounds shall be left as it is and one acre set apart for it; - b) the Petitioner takes the matrimonial house where she is currently living; - c) each party gets a share of 4.5 acres of land; - d) the Petitioner shares her 4.5 acres with Simon Bwebale, Namugenyi Christine and Mukasa David who occupy the land already; - e) the 3 acres sold by the Respondent be part of his share and should not be tampered with; - *f)* the Respondent remains with 1.5 acres which he is free to deal with as he wishes; - g) each party shall bear its costs.

So did the learned trial Magistrate err in the exercise of her jurisdiction under section 83 of the CPR?

For this to be the case, it must be proved that the learned trial Magistrate either;

- (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.* - [12] It was submitted for the Applicant that Her Worship Kainza Beatrice the Chief Magistrate who heard Execution Application No. 44 of 2022 failed to exercise her jurisdiction to grant an order of execution by her ruling dated 20th December, 2023 (Annexure I to the affidavit in **support**). In that ruling, the court observed that;

"However, both parties confirmed that the land which is subject to execution referred to in the judgment as a wetland is in possession of a third party. ..... Therefore, court cannot proceed to execute since that part is in possession/occupation of a third party whose rights had not yet been determined by court.

- [13] The Applicant avers that the denial of issuance of an order of execution has inflicted significant injustice upon her and allowed the Respondent and the third parties to establish unsubstantiated rights and alienation of the property without legal basis; and that the Court illegally used its jurisdiction to vary the Decree by considering third party interests which were not proved in Divorce Cause No. 6 of 2014. - [14] It was further submitted for the Applicant that no objection proceedings were ever filed under Order 22 rules 86 and 88 of the Civil Procedure Rules (CPR); that there has never been a lawful challenge to the execution of the orders in Divorce Cause No. 6 of 2014; and that to deny the Applicant her rights as decreed by court will in essence lead to defeat of a judgment that was issued in rem not in personam.

- [15] Specifically, it was submitted for the Applicant that the conduct of the learned Chief Magistrate has caused numerous injustices viz. that; - 1) The Applicant cannot live in the matrimonial home as granted by the decree. - 2) Some of the children of the Applicant have been accused of criminal trespass (annex D of the rejoinder affidavit). - [16] It is obvious to me that the arguments by the Applicant target the perceived impact of the decision of the learned Chief Magistrate, not the lack of jurisdiction. The complaint of the Applicant seems to be that the Chief Magistrate took into account unsubstantiated rights of a third party when she decided to deny the execution order. The said third party was not part of the Divorce Cause No. 06 of 2014 between the parties that gave rise to the Divorce Decree said not to have been executed by court.

# The question would then be; Whether the lack of objector proceedings by the third party referred to by the Applicant means that the learned Chief Magistrate did not lawfully exercise the jurisdiction vested in her

[17] Section 34 (1) & (2) of the Civil Procedure Act Cap 282 provides that;

- (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge, or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit. - (2) The **court may**, subject to any objection as to limitation or jurisdiction, treat a proceeding under this section as a suit, or a suit as a proceeding, and may, if necessary, order payment of any additional court fees. (emphasis mine).

- [18] This provision enjoins the court executing the decree to determine all questions arising between the parties to the suit in which the decree was passed not by separate suit namely objector proceedings. - [19] It was submitted for the Respondent that under page 2 of her ruling (paragraph 3 page 2 of annex 1 to the application) the Chief Magistrate noted that executing this Decree would contravene Article 28 of the Constitution, the third party's right to be heard who was not a party to the proceedings. The wording of the ruling by the learned Chief Magistrate was; "Proceeding to execute against that third party would contravene Art. 28 of the Constitution of the Republic of Uganda 1995 which provides for a fair hearing" - [20] The Respondent also submitted that Order 22 rule 86 of the CPR gives a third party in occupation of property the right to resist execution. Therefore, granting the execution order could be making the order in vain. - [21] On perusal of Order 22 rules 86 and 88 of the CPR, this court finds that the said Order is about how to deal with resistance or obstruction by a bona fide claimant to possession of land by a decree holder. Under rule 88, such bona fide claimant may institute a suit to establish the right which they claim in respect of the property. However, such objector proceedings are not mandatory. Besides, objector proceedings can only apply where a decree for possession has been served on the occupant of the property, the claimant resists or obstruct possession and then brings objector proceedings. - [22] That said, the courts have held that execution cannot issue against a non-party to the suit (see; Rajimpex Vs National Textiles Board and Another H. C. C. S No. 1033 of 1986 (1991) 21 H. C. B at page 62). It is therefore the finding of this court that in this regard the Chief Magistrate lawfully exercised her jurisdiction.

Page 7 of 15

# Did the decision of the learned Chief Magistrate infringe on the entitlement of the Applicant as per the Decree in the Divorce Cause?

- [23] The Respondent submitted that at the time of the Decree the Petitioner in the Divorce Cause was already living in her house and the Petitioner's children were already occupying the land given to them together with the Applicant; that the Respondent had already sold the 3 acres of the 4.5 acres given to him as per the Decree to third parties and he gave 1.5 acres to his children; and that the Applicant was ordered not to tamper with the 3 acres sold. - [24] The Applicant contends that Block 111 has two Plots viz. Plot 86 and Plot 145 comprising the matrimonial property measuring 10 acres; that the land in Block 111 Plot 145 comprising 3 acres as per paragraph 10 of the Respondent's reply, was sold by the Respondent to a one Kawooya before the decision in Divorce Cause No. 6 of 2014 and Kawooya later sold it to a one Musisi. - [25] Counsel for the Applicant obtained a court order that authorized the survey of land comprised in Kyadondo Block 111 Plots 2200, 2203 and 2205 land at Kiteezi, which survey showed that the 3 Plots were mutated out of Plot 86. - [26] The Respondent submitted that the land comprised in Kyadondo Block 111 Plot 86 was subdivided in order to implement the orders of the said decree; and that he is willing to transfer the Certificates of Titles into the names of the Applicant and his children but the Applicant has rejected the said Certificates of Titles. - [27] At the hearing of this application, the Respondent submitted to court 4 certificates of title for land totalling 4.5 acres – all registered in the Respondent's name. These included a title for Block 267 Plot 280 referred to in paragraph 11 of the affidavit in reply. The Applicant rejected the title in respect of Block 267 Plot 280 on the ground that it is not part of matrimonial property. Counsel for the Respondent submitted that under paragraphs $9 - 11$ of the affidavit in reply, the Applicant is indicated as having rejected her share for being in a wetland. The said part is now in occupation of a third party. Respondent's counsel further submitted that to put the Applicant in the position she should be in, the Respondent obtained Block 267 Plot 280, and that If indeed it is the intention of the Applicant to reject the said offer, the Applicant is at liberty to use other proceedings.

$\mathcal{J}^{-1}$

- [28] This court does not find any merit in the argument that the Applicant was deprived of property due to her. The discourse above is clear that the Applicant has in her possession the said property. There was no need for the third party to file any objector proceedings in respect of the land he had acquired and was in possession of before the ruling of the learned trial Magistrate. In any event, it is not contested that the 3 acres acquired by the third party were the Respondent's own share in the Divorce Cause. But if the contention is in regard to "land *in a valley*" referred in in paragraph 34 of this ruling, that matter in handled in that paragraph and subsequently. - [29] In view of the above, it is evident that the learned Chief Magistrate exercised the jurisdiction vested in her legally and that she did not infringe on the rights of the Applicants accorded to her in the Decree in Divorce Cause No. 06 of 2014. Ground one of the revision fails. - Ground 2: The Chief Magistrate materially erred by improperly incorporating a locus in quo in execution proceedings without witness testimony, relying on unrecorded evidence in a concluded case, and taking into account purported rights of unnamed non-parties, thereby declining the execution application.

[30] As already stated above, Section 34 of the Civil Procedure Act empowers a court executing a decree to determine all questions arising related to the execution of that decree.

- [31] Locus in quo proceedings are provided for Order 18 rule 14 of the CPR which provides that the Court may at any stage of a suit inspect any property or thing concerning which any question may arise. Locus in quo proceedings form part of the trial and all rules observed in court are also observed at locus proceedings. (Ddamulira Aloysius Vs Nakijoba Josephine HCCA No. 59 of 2019). - [32] The Hon. Justice Stephen Mubiru in Alule Richard Vs Agwe Domnic HCCA No. 32 of 2014 held that;

The practice of visiting the locus in quo is to check on the evidence by the witnesses, and not to fill gaps in their evidence for them or lest Court may run the risk of turning itself a witness in the case.... It may also be for purposes of enabling the magistrate to make up his or her mind on disputed points raised as to something to be seen there. ..... The visit is intended to harness the physical aspects of the evidence in conveying and enhancing the meaning of the oral testimony."

- [33] Perusal of the record shows that before making a decision in Execution Application No. 44 of 2022, the learned Chief Magistrate Her Worship Kainza Beatrice conducted locus on the said land comprised in Block 111, Plots 86 and Plot 145 at Kiteezi, Wakiso District to get further clarity on the said land as she was not the trial magistrate. This is evidenced through the Locus Execution Proceedings marked annexure "G" is attached to the Notice of **Motion** - [34] Her Worship Prossy Katushabe the learned trial Magistrate in her judgement in Divorce Cause No. 06 of 2016 stated in the last paragraph at page 3 that;

"At locus it was established that there is land in a valley which the parties referred to as a wetland. Each party should have a share on that land. Further there were various houses on the land that belonged to the children of the parties. In the sharing of this land, in the opinion of Court it

is not available for sharing and in case of any issue as to their ownership of the land or the buildings on the land it can be resolved as a land matter but not part of the divorce proceedings in this case and dissolution of this marriage."

- [35] From the above statement, it is clear that Her Worship Prossy Katushabe observed that the said land was a wetland; that the same was inhabited; and that if there were any issues pertaining ownership, these matters would be resolved as a land matter and not in the Divorce Cause. At a later stage in my ruling, I will handle the aspect of the land being a wetland. - [36] It was submitted for the Applicant that there was no indication in the locus proceedings that the learned Chief Magistrate provided for the 10 acres in the divorce proceedings. She only indicated that 4.5 acres had been taken over by the Respondent (1.5 acres for his children and 3 acres he sold as part of his share). Whereas that is indeed the case as seen in the Locus Proceedings report referred to in paragraph 37 of this ruling, the Chief Magistrate in page 1 of the Locus Report and page 1 of her ruling referred to the orders of the trial Magistrate in Divorce Cause No. 06 of 2014 which referred to all the 10 acres. Her focus in the locus in quo (annexture "G" to the applicant page 2 last paragraph) was apparently in respect of the land that, in the words of court; "both parties ... confirmed .... as a wetland ....in possession of a third party." In paragraph 1 of page 2 of her ruling the learned Chief Magistrate stated that the said land was the subject of execution and concluded that it was not available for execution. - [37] The Respondent submitted that upon court conducting the locus visit, the learned Chief Magistrate included a paragraph which was not in the Decree – that each party should have a share of land referred to as a wetland (1st page 2nd last bullet of Chief Magistrate's ruling). I note, however, that the learned Chief Magistrate's ruling picked up that reference to a wetland from the trial magistrate's ruling as indicated in paragraph 34 of this ruling. Under

section 38(a) of the Civil Procedure Act, Cap. 282, execution of a decree is in respect of property specifically decreed, subject to such conditions and limitations as may be prescribed. The sharing of a wetland was not included in the Decree by the trial Magistrate although it was in her ruling; the learned Chief Magistrate did not try to add that reference to the order of court although she commented on it in the Locus Proceedings; and in her ruling she said it was not available for execution as indicated in paragraph 36 of this ruling.

- [38] The assertion that the learned Chief Magistrate relied on unrecorded evidence in a concluded case suggests that the magistrate may have referred to or used evidence that was not properly recorded or documented in the case's official proceedings and, therefore, may not have been subject to cross-examination or scrutiny. In the Locus Proceedings of 6th October 2023, the learned Chief Magistrate recorded that the parties in the presence of their respective lawyers took court around the property which was the subject of execution; and that both parties identified the land in issue. The learned Chief Magistrate then recorded her observations during the locus viz. - a) that the Petitioner has constructed a house on the burial grounds and is excavating marram from it; - b) that the Petitioner is living in the matrimonial houses as ordered; - c) that the Respondent had divided 1.5 acres of land which is part of his share among the named 5 children; - d) that there are third parties in possession of the three acres which the Respondent sold as part of his share; and - e) that both the Petitioner and the Respondent confirmed that the land referred to as a wetland was sold off by the Respondent and is in occupation by a third party.

[39] Practice Direction No. 1 of 2007, at paragraph 3 regarding visits to locus in quo advises judicial officers to;

- a. Ensure that all the parties, their witnesses, and advocates (if any) are present. - b. Allow the parties and their witnesses to adduce evidence at the locus in quo. - c. Allow cross-examination by either party, or his/her counsel. - d. Record all the proceedings at the locus in quo. - e. Record any observation, view, opinion or conclusion of the court, including drawing a sketch plan, if necessary. - [40] This court observes that other than allowing parties to adduce evidence for cross examination, the learned Chief Magistrate, complied with the Practice Direction of 2007. There is nothing in the record of the Locus Proceedings to lend credence to the assertion by the Applicant that the learned Chief Magistrate while conducting locus relied on unrecorded evidence in a concluded case. Instead, it is apparent to me that she conducted the locus visit to confirm matters that the trial Magistrate had included in her ruling and the extracted Decree. - [41] As to the issue about witness testimony, the report of the locus proceedings does not include any record of contentious matters for which witness testimony could have been needed. In my view, it is certainly not mandatory for a judicial officer visiting locus to call witnesses if she or he is satisfied that she only needs to obtain clarity about the evidence already adduced in court. - [42] About the averment that there were unnamed third parties, paragraph 24 of this ruling indicates the third parties referred to by the parties. The ruling of the trial Magistrate Her Worship Katushabe at page 3 in the third last paragraph stated that; "the Respondent already sold off 3 acres of land which he allowed to be counted as part of his share." It is obvious that the third party interest did not just manifest during the locus visit by the learned Chief Magistrate. Also, the issue about third party rights was already handled under Ground 1. If the third party rights are about land referred to as a wetland, then paragraph 43 below responds to that issue.

- [43] It is critical to note that the contested portion of land has been consistently referred to as a wetland. It is against the National Environment Act Cap. 181 for persons to parcel out land deemed to be a wetland as such land is protected from alienation by Article 237(2)(b) of the Constitution and section 45 of the Land Act Cap. 236. No such land should be a subject of wrangles between parties as wetlands are not a subject of proprietary interest. - [44] That the Chief Magistrate declined the Execution Application erroneously has not been proved. The Decree arising from Divorce Cause No. 06 of 2014 is clear in its content and extent. The Chief Magistrate was right in confining herself to the aspects in the Decree as going outside of the Decree would be beyond the scope of the Execution Proceedings. As a result, this court does not find merit in the elements under Ground 2 viz. improper incorporation of the locus in quo, reliance on unrecorded evidence, and consideration of nonparties' rights. - [45] On the whole, I find that the Chief Magistrate exercised her jurisdiction legally without any material irregularity or injustice to either party to the Execution Application. I therefore conclude that this is not a proper case for a revision order and that the Applicant is not entitled to the orders sought. Nonetheless, this being a family matter, each party shall bear its own costs.

## **CONCLUSION:**

[46] In the final result;

- a) Revision Cause No. 06 of 2024 is dismissed. - b) I uphold the decision of the Chief Magistrate to decline the Execution Application and to advise the Applicant/Petitioner to seek appropriate remedies in the circumstances. - c) The certificates of title and the transfer forms as appropriate in respect of land comprised in Kyadondo Block 111 Plots 2200, 2203 and 2205 land at Kiteezi mutated out of Bock 111 Plot 86 shall be transferred by CHRISTOPHER NAGAWONYE the Respondent to the

Page 14 of 15

persons entitled to the same in accordance with the Decree in Divorce Cause No. 06 of 2014.

d) Each party shall bear their own costs.

I so order.

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

that we

DR. CHRISTINE A. ECHOOKIT **JUDGE**

The right of appeal explained.

### THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT KAMPALA (FAMILY DIVISION)

## **REVISION CAUSE NO. 006 OF 2024** (ARISING FROM KASANGATI CHIEF MAGISTRATES COURT EXECUTION APPLICATION NO. 44 OF 2022) (ALL ARISING FROM KASANGATI CHIEF MAGISTRATES COURT DIVORCE CAUSE NO. 06 OF 2014)

#### NAKKU ELIZABETH ::::::::::::::::::::::::::: **\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\***

### **VERSUS**

CHRISTOPHER NAGAWONYE ::::::::::::::::::::::::::::::::::::

## **ORDER**

This application coming up for hearing on this 17th day of February, 2025 before HON. LADY JUSTICE DR. CHRISTINE A. ECHOOKIT, in the presence of Mr. Richard Sajjabi and Ibrahim Munyasin counsel for the applicant, Mr. Nakwera Musa counsel for the respondent, the applicant and the respondent.

# IT IS HEREBY ORDERED THAT:-

Given under my hand and Seal of this Honourable Court this.................................... of Felon any 2025.

JUDGE

the ful-