Nakku v Nalule (Civil Revision 19 of 2022) [2024] UGHC 292 (22 March 2024)

Full Case Text

# THE REPUBLIC OF UGANDA THE HIGH COURT OF UGANDA AT MASAKA **CIVIL REVISION NO 19 OF 2022** (Arising from Civil Suit No.12 of 2017 in the Chief Magistrate Court of

#### **Masaka at Mbirizi)**

NAKKU HALIMA::::::::::::::::::::::::::::::::::: -VERSUS-

NALULE ZULAIKA alias TEREZA ::::::::::::::::::::::::::::::::::::

#### **Before: HON JUSTICE LAWRENCE TWEYANZE**

#### **RULING**

#### **Background:**

- 1. The background as captured by the trial Court is that the Respondent/Plaintiff instituted Civil Suit No. 12 of 2017 against the Applicant seeking orders that the Applicant was a trespasser, a permanent injunction, an eviction order, general damages, and costs of the suit. - 2. The Respondent/Plaintiff claimed that she is the rightful owner of the Kibanja situate at Kanku village which she inherited from her paternal Grandmother Late Tereza Nalule (See Will dated 10th day of October 1977 annexed on the Plaint marked as 'A'). The clansmen confirmed the said Will on the 5th day of September 2015 and the Respondent/Plaintiff obtained Letters of Administration on 21st day of October 2015. That the Respondent/Plaintiff was in full enjoyment till the Defendant trespassed on 4th day of February 2017. The Applicant/Defendant is the biological mother of the Plaintiff. - 3. In defence, the Applicant/Defendant contended that she married a one Lumala Abdul who was the Father to the Respondent/Plaintiff, where Tereza Nalule gave her the suit Kibanja in 1972. That the Applicant/Defendant and her husband now deceased had been in possession since cultivating coffee and there is a banana plantation. That when Tereza Nalule died, she left the Applicant/Defendant and her in possession. That the husband Lumala Abdul in 1990,

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SMUMMA

Applicant/Defendant's husband died and she remained in possession of the suit Kibanja. That in 2014, the Respondent/Plaintiff attempted to evict her. The Applicant/Defendant avers that the Respondent/Plaintiff has never been in possession of the suit Kibanja. So she prayed for dismissal of the suit with costs.

4. The trial Court determined the matter in favour the of Respondent/Plaintiff and made the orders captured in the copy of the Judgment dated 7th February 2018.

# **The Application.**

- 5. This Application Civil Revision No. 19 of 2020 is brought under Section 83 of the Civil Procedure Act Cap 71, and Order 52 rule $(1)$ , $(2)$ & $(3)$ of Civil Procedure Rules, seeking for orders that the Judgment and Order of Court in Civil Suit No. 12 of 2017 be revised and set aside. The Applicant further prayed for costs of the Application. - 6. The Application is supported by the Affidavit of Nakku Halima, the Applicant herein where it is stated that, That Learned trial Grade One Magistrate at the Chief Magistrates Court of Masaka at Mbirizi, illegally exercised jurisdiction not vested in him by determining and disposing off a matter not within his pecuniary jurisdiction; That the Magistrate Grade 1 Court, exercised his powers illegally by determining matters on the land/ Kibanja that was not in contention; The pecuniary value the Kibanja sitting on Block 346 Plot 63 measuring 15 acres situate at Kanku village, Lwengo District far exceeds the pecuniary jurisdiction of the Magistrate's Grade One Court; That the trial Magistrate exercised jurisdiction not vested in him when he heard and determined the ownership of 15 acres of land instead of the 1 acre which was originally in dispute. - 7. That the rest of the 14 acres which were subject of trial Magistrate's judgement do not belong to her and that their respective owners were not parties in Civil Suit No.12 of 2017. That the pecuniary value of the 15 acres of the Kibanja in dispute is approximately 60 million. That the Magistrate Grade One didn't take into account the size and pecuniary value of the

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SHUMMARD

Kibanja that was subject of the litigation. That the Magistrates Grade 1 does not have the power to preside over and determine matters whose pecuniary value exceeds 20 million Uganda shillings.

# The Affidavit in Reply.

8. In reply, the Respondent/Plaintiff, Nalule Zulaika, swore an affidavit and deponed that there exists completely no ground to warrant the revision of the trial Magistrate's judgment. That throughout the trial Magistrate's Judgment, he did not at any time mention about the claimed 15 acres as stated by the Applicant/Defendant, the trial Magistrate only evaluated evidence concerning the suit Kibanja given to the Respondent/Plaintiff.

# Representation.

9. The Applicant/Defendant was represented by $M/s$ Kalibala Associated Advocates while the Respondent/Plaintiff was self-represented.

### **Issue for determination.**

10. The grounds raised by the Applicant disclose one issue for determination by this Court, namely; Whether the application raises sufficient grounds for revision of the lower Court's proceedings, judgment and Orders.

# **Submissions.**

11. The parties were directed and indeed they filed their respective written submissions which are on Court record. I have considered all the submissions on record which I will not restate here since they repeat the averments in the Affidavits. I will only refer to them where necessary.

### **Decision of Court.**

12. Revision is the process under which the High Court exercises its powers of supervision over Magistrates' Courts. Section 83 of the Civil **Procedure Act (CPA) Cap 71** provides as follows:

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"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 $-$

- (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, the High Court may revise the case and may make such order in it as it thinks fit; but no such power of revision shall be exercised – - (d)unless the parties shall first be 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". - 13. In the instant case, the first allegation by the Applicant/Defendant is that the trial Magistrate exercised jurisdiction that was not vested in him by determining and disposing off a matter not within his pecuniary jurisdiction. The second ground is that the Magistrate Grade 1 Court, exercised his powers illegally by determining matters on the land/Kibanja that was not in contention. In my view these grounds in the Application are within the ambit of Section 83 of the CPA and properly brought before the High Court. - 14. The argument or the first complaint by the Applicant/Defendant is that the pecuniary value of the Kibanja sitting on Block 346 Plot 63 measuring 15 acres situate at Kanku village, Lwengo District far exceeds the pecuniary jurisdiction of the Magistrate's Grade One Court; That the pecuniary value of the 15 acres of the Kibanja in dispute is approximately 60 million. That the Magistrate Grade One did not take into account the size and pecuniary value of the Kibanja that was subject of the litigation. That the Magistrates Grade 1 does not have the power to preside and determine matters whose pecuniary value exceeds 20 million Uganda shillings. Counsel for the Applicant/Defendant submitted that the record of proceedings does not indicate the size of the Kibanja in dispute and its value but rather indicates boundaries as Kiwangala Road, Dantiva Maria, Kayiira Remegio, Fabiano Rosa, Nakyibanga which were boundaries to the 15 acres that belonged to the late Tereza contrary to the 1 acre in dispute.

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SMITTHEF

- 15. Secondly, that the trial Magistrate exercised jurisdiction not vested in him when he heard and determined the ownership of 15 acres of land instead of the 1 acre which was originally in dispute. That the rest of the 14 acres which were subject of trial Magistrate's judgement do not belong to her and that their respective owners were not parties in Civil Suit No.12 of 2017. That the magistrate Grade 1 Court, exercised his powers illegally by determining matters on the land/ Kibanja that was not in contention. - 16. In effect, Counsel for the Applicant/Defendant faulted the trial Magistrate and submitted that the trial Magistrate did not take into account the size and pecuniary value of the suit Kibanja hence occasioning a miscarriage of justice. - 17. The law is that issues of jurisdiction are substantive and go to the core of a case. If a court lacks jurisdiction, whether pecuniary or territorial, over the subject matter in dispute, its judgment and orders, however precisely certain and technically correct, are mere nullities and not simply voidable. Such judgment and orders are of no legal consequence and may not only be set aside any time by the court in which they were rendered but may be declared void in every court in which they are presented. Similarly, jurisdiction cannot be conferred on a court by consent of the parties, and any waiver on their part cannot make up for the lack of jurisdiction. See: Gabula vs Wakidaka, HCCA No. 29 of 2006 and Assanand & Sons (U) Ltd v. East African Records Ltd (1959) E. A 360. - 18. From the facts at hand, the dispute is in respect to a Kibanja between a mother and a daughter. I have carefully perused the pleadings and proceedings of the Lower Court. There is nowhere the value of the subject matter was indicated. The Applicant/Defendant did not as well object to under the proceedings and even paragraph $23$ of the Applicant's/Defendant's Written Statement of Defence, the Applicant as Defendant then stated that she submitted to the jurisdiction of the Honourable Court. The Applicant/Defendant did not move Court to file a valuation report of the disputed Kibanja and even in this Application, there is no proof of the value of the subject matter save for the allegation under paragraph 7 of the Applicant's affidavit that the pecuniary value of the 15 acres of the Kibanja in dispute is approximately 60 million.

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SMELKBA

- 19. Clearly, for all intents and purposes as derived from the pleadings in the Lower Court and this Application, the dispute was over 1 acre of the land but not all the 15 acres. From page 6 of the trial Court's record of proceedings, DW1 Abdulsalam Mayanja stated that the disputed Kibanja forms part of the 15 acres. This indicates that the dispute was not over the 15 acres but only a Kibanja contrary to what is alleged by the Applicant. - 20. I have carefully read through the judgment and proceedings of the trial Court and I have not found any decision by the trial Court over the entire 15 acres but rather only the disputed Kibanja. I do not know where the Applicant/Defendant came to this conclusion of alleging what the trial Magistrate did not state in his judgment. Moreover, the Applicant/Defendant has not provided any evidence to prove her purported value of the disputed Kibanja. - 21. That being the case, I find that the Applicant/Defendant has not proved any sufficient grounds for revision of the lower Court's proceedings, judgment and Orders. There is no proof that the dispute over the Kibanja could not be handled by the trial Magistrate Grade One. This application fails and is therefore dismissed. The Judgement and orders of the Lower Court are upheld. - 22. I will not order for costs as both parties are Daughter and Mother and are advised to reconcile instead of fighting over a Kibanja.

Ruling signed and delivered by email this 22nd day of March 2024

LAWRENCE TWEYANZE JUDGE. $22^{nd}$ March, 2024.

MULLIK