Ndago Barisa Kweterana Cooperative Society v Mushushu & 3 Others (Revision Cause 1 of 2024) [2024] UGHC 327 (25 January 2024)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT RUKUNGIRI **REVISION CAUSE NO.01 OF 2024** (ARISING FROM CIVIL SUIT NO.021 OF 2010)

### NDAGO BARISA KWETERANA COOPERATIVE SOCIETY ::::::::::: PLAINTIFF **VERSUS**

- 1. MUSHUSHU ERIC - 2. BAGASHA VICENT - 3. BAGAMBIREBYO TITO - 4. KABASHEKYE :::::::::::::::::::::::::::::::::::

# **BEFORE: HON. JUSTICE TOM CHEMUTAI**

#### **RULING**

The Plaintiff filed Civil Suit No.021 of 2010 at the Chief Magistrate's Court of Rukungiri against the Defendants seeking recovery of land, permanent injunction, general damages, costs of the suit, and any other reliefs the Court deems fit.

#### Background

The background facts are that, Plaintiff (Ndago Barisa Cooperative Society) claimed to be the rightful owner of the suit land situated at Ndago Parish, Nyarushanje Sub-County, Rukungiri District. It is alleged that the suit land was acquired in 1964 from Ndago Parish committee, that since then Ndago Barisa has been in possession of the suit land for grazing cattle. That on $21^{\text{st}}$ March and 23<sup>rd</sup> May 2009, the Defendants trespassed on the suit land, in particular Bagasha Vicent ( $2<sup>nd</sup>$ Defendant) who constructed a house there-on and that some boundary marks were uprooted. That the Defendant's action interfered with the rights of the members of the Plaintiff as they could not graze cattle on the suit land. The trial Court at *locus in quo* noted that the disputed land covered a whole hill, part of which consists of the Defendants' gardens and houses. It is alleged by the Plaintiff that the suit land was acquired by the

Plaintiff for grazing cattle. The Plaintiff prayed to the trial Court for an order to evict the Defendants especially Bagasha Vicent and Eric Mushushu.

The Defendants denied the Plaintiff's allegations, and contended that the Plaintiff was formed in 1989 and that Mushushu Eric (DW1) was the founder member of the society. They also contended that they were owners of the suit land and that it was demarcated with plants (trees) locally known as "Oruyenje." That the residents (Bataka) agreed to help the Plaintiff to use their land for grazing purposes subject to their interests since they were all Agriculturalists. That the said arrangement turned sour when members of the society attempted to forcefully evict the Defendants and other residents in total disregard of their interests. That the Plaintiff was only meant to graze animals without interfering with their interests, but as it turns out they were claiming ownership of the suit land. The Defendants also contended that Ndago Parish committee had not yet been formed in 1964 and added that the suit land belonged to the Residents of that parish whose object was cultivation. That the Defendants were in possession of the suit land even before society was formed. The further averred they were born on the suit land and their fore fathers were buried on it.

Upon perual of the file, I got the view that the judgment of the Chief Magistrate lacked clarity, hence there was need for a revision.

The trial Chief Magistrate delivered her judgment on the 1st February, 2022, whereupon she dismissed the suit with costs to the Defendants and further made the following orders; -

- 1. That the Plaintiff is not the rightful owner. - 2. The Defendants are not trespassers - 3. The Plaintiff has no legal capacity to sue or be sued. - 4. The judgment is entered in favour of the Defendants against the Plaintiff in the above

The High Court under section 83 of the Civil Procedure Act, may call for the record of any case that has been determined by any subordinate court and may revise the case if that court appears to have: -

- (a) exercised a jurisdiction not vested in it by law. - (b) failure to exercise a jurisdiction vested in that court.

## (c) acted in the exercise of its jurisdiction illegally or with material irregularity or injustice.

During the trial, the Defendants raised a preliminary point of law on the nonexistent of the plaintiff society as a legal entity but the trial Chief Magistrate chose to address it as an issue at the conclusion of the case. The resolution of the preliminary point of law would have disposed of the suit from the on-set.

The trial Chief Magistrate correctly found merit in issue one, that the Plaintiff society was not registered and had no legal capacity to sue or be sued or even to own property. She should have thereafter dismissed the suit without further indulging into the merits of other issues concerning the ownership of the suit land and whether the Respondents were trespassers, because the Plaintiff was non-existent.

Therefore, it was irregular for the trial Magistrate to proceed with the merits of the case yet the plaintiff was a non-existent party and even to award costs to the Defendant against the non-existent party (Plaintiff).

Due to the above irregularity, I hereby make this Revision with the following orders:

- 1. The Civil Suit No. 021 of 2010 is hereby dismissed due to the nonexistent of the Plaintiff as a legal entity. - 2. The judgment and Orders of the trial Chief Magistrate in Civil Suit No. 021 of 2010 are hereby set aside. - 3. No order is made as to the costs in Civil Suit No. 021 of 2010 and in this Revision Cause.

It is so ordered.


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