Nyakatonzi Growers Cooperative Union v Kyarumba Tulibaghuma Growers Cooperative Society (Civil Revision 13 of 2024) [2025] UGHC 33 (9 January 2025)

**THE REPUBLIC OF UGANDA**

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

**HCT-25-CV-CR-0013-2024**

**(Arising from Judgment of Kabirizi LCII Court in Lake Katwe Sub-County Kasese District dated 19th July 2024)**

**NYAKATONZI GROWERS COOPERATIVE UNION===================APPLICANT**

**VERSUS**

**KYARUMBA TULIBAGHUMA GROWERS COOPERATIVE SOCIETY====RESPONDENT**

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

**RULING**

**REPRESENTATION:**

Applicant represented by Tropical Law Advocates.

Respondent represented by Sibendire, Tayebwa and Co. Advocates.

**BACKGROUND:**

This application is brought by way of Notice of Motion under Sections 83(a) and 98 of the Civil Procedure Act; and Sections 14, 17(2)(a) and 33 of the Judicature Act seeking the orders that:

1. The Judgment and Orders of the LCII Court Kabirizi Parish dated 19th July 2024 be revised and set aside. 2. Costs of the Application be provided for.

The grounds of the Application as laid out in the Affidavit in Support sworn by Kambere Julius the Vice Chairman of the Board of Directors of the Applicant are that:

1. The LCII Court at Kabirizi lacked original jurisdiction to entertain the matter as a court of first instance. 2. The LCII Court acted illegally at all material times when it passed a judgment with orders when it had no jurisdiction. 3. It is just and equitable that the application be heard and allowed in the interests of justice.

The Application is supported by the affidavit of Julius Kambere the Vice Chairperson of the Board of Directors and Chairperson Land Committee of the Applicant. The deponent stated that in 2023 the Applicant reported a land matter to the LCII Court stating that the Respondent had decided to divide the suit land where its stores were located. The Respondents denied dividing the Applicant’s land and the matter was subsequently heard and determined in favour of the Respondents by the LCII Court. The Applicant was then advised by their lawyers that the LCII Court had no jurisdiction to hear the matter as a court of first instance and that the judgment was illegal and ought to be set aside. The Deponent subsequently prayed that the Court revise the matter and set aside the judgment.

In response to the application the Respondent filed an Affidavit in Reply sworn by one Baluku Julius Balinda. In the affidavit the Deponent raised two preliminary points of law as follows:

1. The Application is incompetent having been served on the 12th of September 2024. 2. The Application is wrongly filed before this Court.

The Deponent further stated that the Applicant ought to have appealed to the LCIII Court and that the Applicant was wrongly advised about the jurisdiction of the LCII Court. Furthermore, the Deponent maintained that the judgment of the LCII Court was not illegal and ought not to be set aside and that furthermore this Court cannot revise judgments of LC Courts.

The Applicant subsequently filed an Affidavit in Rejoinder sworn by one Sarah Kanyesigye who stated that the Application was competent having been sealed by the Court on the 30th day of August 2024 and then served on the 12th day of September 2024. It was further stated in rejoinder that the High Court is vested with inherent jurisdiction to hear and determine this application. It was further reiterated that the suit was wrongly filed before the LCII Court as a court of first instance before the coming into force of the LC Courts Act in 2006 and that the judgment was illegal to that extent.

**Applicant’s Submissions:**

Counsel for the Applicant filed written submissions by which he raised two issues to wit:

1. Whether the LCII Court had jurisdiction to hear a matter as a court of first instance. 2. Remedies available to the Applicant.

Counsel cited the inherent powers of the High Court under Section 98 of the Civil Procedure Act and remedial powers of the High Court Section 33 of the Judicature Act as the foundation for the claim.

Counsel further cited Section 83(a) of the Civil Procedure Act which empowers the High Court to revise decisions of Magistrate Courts where the court appears to have exercised a jurisdiction not vested in it by law.

Counsel then went on to argue that while the aforementioned section does not directly empower the High Court to revise matters from LCII Courts, Section 17 of the Judicature Act and Section 40 of the Local Council Courts Act imply that the High Court can revise matters arising from LCII Courts. Counsel cited the decision in **Pascal Juma Wasike v Alex Onyango Situbi and Another – HCMA 04 of 2010** quoted with approval in **Luvule Ronald v Kasirivu Richard – HC Revision Cause No 24 of 2023** as the basis for his argument.

The Applicant reiterated his prayer that the lower court ruling be set aside in revision.

**Respondent’s Submissions:**

By way of preliminary objection Counsel for the Respondent argued that the application was incompetent for having been served outside of the time of 21 days specified under Order 5 Rule 1(2) of the CPR. Counsel further cited the decision of the Court of Appeal in **Alex Mulyabintu v Case Western Reserve University (Ohio) and Makerere University – Civil Appeal No. 190 of 2013** as the basis for the argument that the application was incompetent. Counsel argued that the application having been filed and issued on 26th July 2024, it was then served on 12th September 2024 one and a half months after it was filed.

Counsel further argued on preliminary grounds that the application was wrongly filed before the High Court as Section 83(a) of the Civil Procedure Act specifically refers to revision of matters before Magistrate Courts. Counsel further cited the decision of the High Court in **Eriu Marcilous v Epitu Raymond – HCMA 15 of 2012** in support of this position.

Counsel went on to argue that inherent powers of the High Court as cited under Section 98 of the Civil Procedure Act are exercised within the context of Section 1 of the Civil Procedure Act and cannot therefore be deemed to extend generally beyond proceedings before the High Court and Magistrate Courts. Counsel further argued that there was no provision for revision of decisions of LC Courts in the LC Courts Act of 2006.

Counsel further argued that Section 40 of the LC Courts Act concerning the extension of the High Court powers of supervision over Magistrate Courts under the Judicature Act to the Chief Magistrate in relation to LC Courts does not extend to revision.

Counsel went on to argue substantively that the LCII Court had the requisite jurisdiction to handle the suit in issue a court of first instance citing among others the decision of the Court of Appeal in **Nalongo Burashe v Kekitibwa Mangadalena – Civil Appeal No. 89 of 2011.**

Counsel concluded by stating that there was nothing for the Court to revise and that the application should be dismissed.

**Applicant’s Submissions in Rejoinder:**

As concerns the preliminary points raised by the Respondent, Counsel for the Applicant argued that the Application had been served within the required time as the Notice of Motion was sealed on 30th August 2024 and subsequently served on 12th September 2024. Counsel argued that the time started running the day after the Notice of Motion was sealed in line with Section 34(1)(a) of the Interpretation Act.

Counsel for the Applicant further argued in rejoinder that the application was properly before this Court citing the decision of **Luvule Ronald v Kasirivu Richard** as cited above.

As concerns whether the LCII Court had jurisdiction to hear the matter as a court of first instance, Counsel reiterated that this was not the case as Section 11 of the LC Courts Act provided that all suits in the first instance shall be instituted in a Village Council Court. Counsel also cited Section 32 of the LC Courts Act as further emphasis that LCII Courts were appellate in nature. Counsel also placed reliance on the decision in the case of **Mutonyi Margaret Wakyala v Tito Wakyala & Others (2011) UGHC 117** to argue that the question of concurrent jurisdiction in land matters in LCI and LCII Courts is resolved by application of principles of statutory interpretation to the effect that where an earlier statute conflicts with a latter one then the latter statute prevails. To that extent Counsel argued that Sections 10 and 11 of the LC Courts Act were applicable and invited this Court to depart from the decision of the Court of Appeal in **Nalongo Burashe v Kekitibwa Magdalena** cited above.

**ANALYSIS:**

Before addressing the substantive issues in this application I shall first address my mind to the preliminary issues raised by the Respondent these being:

1. Whether or not the Application was served within the time specified under Order 5 Rule 1(2) of the Civil Procedure Rules. 2. Whether this Court can revise decisions of LC Courts.

As concerns whether the application was served within the time specified under Order 5 Rule 1(2) of the Civil Procedure Rules I find it a misdirection on the part of the Respondent to assume that the Notice of Motion was issued on the 26th of July 2024 for purposes of ascertaining the period of service. Section 19 of the Civil Procedure Act provides that every suit shall be instituted in such manner as may be prescribed by rules. Order 5 Rule 8 of the Civil Procedure Rules specifies that service of summons, in this case the Notice of Motion, is done by delivering or tendering a duplicate of summons *signed by the judge, or such officer as the judge appoints for this purpose, and sealed with the seal of court* (emphasis added).

It is therefore apparent from the above, that the Notice of Motion can only be treated as a valid summons once it has been properly endorsed by Court and accordingly sealed (see **Kaur v City Auto Mart [1967] EA 108**). It would therefore follow that the time for service only starts to be computed upon Court’s endorsement and sealing of the summons or in this case the Notice of Motion. The Notice of Motion in this matter was endorsed and sealed by Court on the 20th day of August 2024 and not 30th August 2024 as claimed by Counsel for the Applicant.

According to the affidavit of Jonathan Ikiriza, a Court Clerk attached to the High Court, he served the Respondent on the 12th of September 2024. If one takes into account Section 34(1)(a) of the Interpretation Act to exclude the date of endorsement and sealing, it is apparent that service of the Notice of Motion was done 23 days later which was clearly in contravention of Order 5 Rule 1(2) of the Civil Procedure Rules. The failure to serve the Notice of Motion within the period specified for service is clear per Order 5 Rule 1(3)(a)&(b) of the Civil Procedure Rules. Once summons have been issued under the relevant rule and service has not been effected within 21 days and there is no application for extension of time then the suit shall be dismissed without notice.

In light of the above I find that this Application fails for failure to serve the Respondent within the time specified under Order 5 Rule 1(2) of the Civil Procedure Rules.

However, before I take leave of this matter I find it prudent to also address myself briefly to the preliminary issue raised by the Respondent regarding whether this Court can revise decisions arising from LC Courts. It was the argument of Counsel for the Respondent that the power of revision of the High Court is restricted to decisions arising from the Magistrate Courts per Section 83(a) of the Civil Procedure Act. Counsel further argued that it was erroneous to apply the inherent powers of the High Court under Section 98 of the Civil Procedure Act and to this matter.

In response to the above, Counsel for the Applicant went to great lengths to argue to that the power of the High Court to revise decisions of Local Council Courts laid out in Section 17 of the Judicature Act and Section 40 of the LC Courts Act. I have considered the provisions of Section 17 of the Judicature Act concerning the inherent powers of this Court and more particularly the opening words of subsection 2 thereof where it is stated that, “*With regard to its own procedures and those of the magistrates courts, the High Court shall exercise its inherent powers - …”* (Emphasis mine).

By the wording above, it is expected that in exercising inherent power under Section 17 of the Judicature Act, this Court is expected to have due regard to its own procedures. To extend the High Court power of revision to decisions of LC Courts ostensibly on the basis of Section 17 of the Judicature Act would be in clear disregard of the provisions of Section 83(a) of the Civil Procedure Act which specifically limit the High Court’s power of revision to decisions of Magistrate Courts. I also fail to appreciate how Section 40 of the LC Courts Act which applies the powers of the High Court to supervise Magistrate Courts to the Chief Magistrate on the High Court’s behalf in relation to Local Council Courts can be construed to mean that the High Court has power to revise decisions of LC Courts. The High Court’s power of revision is wholly and specifically contained in Section 83 of the Civil Procedure Act and short of amendment or repeal cannot be seen to apply beyond decisions of Magistrate Courts. Therefore even if this matter had not been already caught up by time under Order 5 Rule 1(2) of the Civil Procedure Rules, I find that it would still not have been sustainable before this Court as the High Court power of revision is restricted to decisions of Magistrate Courts.

**ORDER:**

In line with the foregoing analysis this Application is hereby dismissed in accordance with Order 5 Rule 1(3)(a)&(b) of the Civil Procedure Rules with costs to the Respondent.

I so order.

Ruling delivered this 9th day of January 2025.

**David S. L. Makumbi**

**JUDGE**