Nyakoojo v Kanyunyuzi & Another (Civil Revision 19 of 2023) [2024] UGHC 849 (29 August 2024)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT FORT PORTAL CIVIL REVISION APPLICATION NO. 019 OF 2023 (ARISING FROM FPT-00-LD-CS-021 OF 2017) NYAKOOJO VICENT ::::::::::::::::::::::: APPLICANT VERSUS 1. KANYUNYUZI GRACE ::::::::::::::::: RESPONDENTS 2. SENIOR PETER**

### **BEFORE HON. MR. JUSTICE VINCENT EMMY MUGABO**

#### **RULING**

The applicant filed this revision application by way of a Notice of Motion under provisions of Article 28 of the Constitution of the Republic of Uganda, sections 83 and 98 of the Civil Procedure Act Cap. 282, and Order 52 Rules 1 and 2 of the Civil Procedure Rules seeking for the orders that;

- i. Judgement and decree in FPT-00-LD-CS-021 OF 2017 be revised and set aside. - ii. The suit be re-tried before another court of competent jurisdiction - iii. Costs of the application be provided for

#### **Background**

The applicant filed Civil Suit No. 021 of 2017 before the Chief Magistrate's Court of Fort Portal at Fort Portal against the respondents seeking a declaration that he is the rightful owner of the suit land, a declaration that the respondents are trespassers on the suit land, an order for permanent injunction, general damages and costs of the suit.

The applicant's claim against the respondents is that he is a coadministrator of the estate of the late John Kifumu. Most of the estate was distributed but a small plot of land measuring 30ft by 150ft (hereinafter referred to as the "suit land") was left undistributed to cater for the burial expenses of the late Tibahwerwayo Josephine, a wife to the late John Kifumu.

That upon the death of Tibahwerwayo Josephine, family members including the respondents herein sat and agreed that the applicant would pay for her burial expenses in exchange for the suit land. The applicant obliged. However, after the last funeral rites, the respondents forcibly entered the suit land and started constructing a semi-permanent house thereon without the applicant's consent or permission.

In their written statement of defence, the respondents denied the claims by the applicant and stated that the suit land is part of the estate of the late John Kifumu and the 1st and 2nd respondents were beneficiaries of the estate, in their capacity as daughter and grandson to the deceased, respectively.

On the 28th of January 2020, after hearing the evidence from the applicant as the plaintiff's 1st witness, the learned trial magistrate, His Worship Arinaitwe Elisha, pronounced himself on the finality of the matter without allowing the parties to present their evidence on the issues framed by the court.

This application seeks for revision of the trial magistrate's orders on the basis that the trial magistrate exercised his jurisdiction illegally and with material irregularity.

# **Grounds for Application**

The grounds for this application are set out in the affidavit of Nyakoojo Vicent, the applicant, the gist of which is that:

- (a)The applicant filed Civil suit No. 21 of 2017 before the Chief Magistrate's Court of Fort Portal at Fort Portal. - (b)At the trial, the trial magistrate only heard evidence from the applicant and immediately concluded the hearing and decided the case on that basis without allowing the applicant to call other witnesses and without hearing evidence from the respondents. - (c) The trial magistrate failed to exercise the jurisdiction vested in him by not hearing evidence from both sides before delivering the judgement which occasioned a miscarriage of justice. - (d)The trial magistrate exercised his jurisdiction illegally and with material irregularity as he determined the suit without hearing all witnesses or evidence from the respondents and their witnesses. - (e) The trial magistrate exercised his jurisdiction illegally and with material irregularity when it granted orders to the respondents by appointing them administrators of the estate of the deceased when they had not prayed for such orders. - (f) The applicant has been served with a notice of eviction. - (g)The grant of this application will not cause any hardships to the respondents.

The respondents filed an affidavit in reply, deponed by the 1st respondent, opposing this application on the following grounds:

(a)The applicant filed Civil Suit No 21 of 2017 against the respondent seeking, among others, a declaration that the respondents are trespassers on the suit land.

- (b) At the hearing of the case, the respondents moved the court for the orders sought to be revised and the court made the said orders in the presence of both parties and their advocates. - (c) The trial magistrate had jurisdiction to hear the matter from which this application arose, and he lawfully exercised his jurisdiction, and this court has no basis to revise the said orders. - (d)That the orders sought to be revised were made in the year 2020 and this application was filed with inordinate delay. - (e) The suit land belongs to the estate of the 1st respondent's father and the orders granted by the trial court are fair, just and equitable.

# **Representation and Hearing**

Mr. Cosma A. Kateeba represented the applicant while Mr. Wahinda Enock represented the respondents. Only Counsel for the applicant filed written submissions which have been considered in this ruling.

#### **Issues for determination**

In this application, the issues for determination are;

- i. Whether the application raises sufficient grounds for this court to make revision orders. - ii. What remedies are available to the parties?

# **Submissions by Counsel for the Applicant**

In his submission, counsel for the applicant referred this court to section 83 of the Civil Procedure Act which empowers this court to make revision orders. Counsel submitted that this court is enjoined to make revision orders in cases where a magistrate court exercises jurisdiction not vested in it in law, fails to exercise a jurisdiction so vested, or acts in the exercise of its jurisdiction with material irregularity.

Counsel for the applicant argued that the duty of this court to exercise its revision powers entails an examination of the record of any proceedings of the lower court for purposes of satisfying itself as to the correctness, legality or propriety of any finding, order or any decision. Counsel referred this court to the case of *Johnson Katebalirwe v. Segonga Godwin T/A Platinum Associates, Revision Cause No. 12 of 2017*.

Counsel for the applicant submitted that the hearing of a case is governed by Order 18 Rule 2 of the Civil Procedure Rules which provides that the party having the right to begin, the applicant in this case, shall state his or her case and produce his or her evidence in support of the issues which he or she is bound to prove, then followed by the opposite party.

Counsel for the applicant submitted that to the contrary, the record of the court showed that the applicant filed several witness statements to support his case. That on the 28th of January 2020 when the case was determined, the applicant had 3 witnesses ready to testify but none of them was given an opportunity to be heard and the applicant did not indicate to the court that he had closed his case.

Counsel argued that closing the case without hearing all the plaintiff's witnesses, violated the applicant's right to a fair hearing and the decision of the learned trial magistrate was reached at illegally and with material irregularity.

Counsel for the applicant also submitted that the trial court gave orders which had not been prayed for by any of the parties to the suit whose consequence was the deprivation of the applicant of the suit land hence occasioning a miscarriage of justice.

Counsel argued that this court is empowered to revise Civil Suit No. 21 of 2017 since such a revision will not cause hardships to the respondents notwithstanding the passage of time, of over 3 years, from when the decision of the trial court was made.

# **Consideration by Court**

# **Issue 1: Whether the application raises sufficient grounds for this court to make revision orders.**

The law governing revision proceedings is found in section 83 of the Civil Procedure Act which provides thus:

# **"***83 Revision*

*The high court may call for the record of any case which has been determined under this act by any Magistrates Court, and if that court appears to have -*

- **a.** *exercised the jurisdiction not vested in it in law;* - **b.** *failed to exercise the jurisdiction so vested; or* - **c.** *acted in exercise of its jurisdiction illegally or with material irregularity or injustice, the High Court may revise the case and make such order in it as it thinks fit:"*

The term revision is also defined in **Black's Law Dictionary, 8 th edition, page 1346** as *'a re-examination or careful review for correction or improvement.'* From the wording of section 83 of the Civil Procedure Act, it is apparent that revision applies to jurisdiction alone, the irregular exercise or nonexercise of it, or illegal assumption of it. The section is not directed against the conclusions of law or fact in which the question of jurisdiction is not involved.

Where a court has jurisdiction to determine a question and it determines that question, it cannot be said that it has acted illegally or with material irregularity because it has come to an erroneous decision on a question of fact or even law, which error would then qualify to rectified on appeal.

## **(***See: Matemba v. Yamulinga [1968] EA 643, 645***.)**

The duty of the court in that regard would be to revise the case and make such order as it deems fit. Therefore, the subject of re-examination by the High Court sitting in its revision jurisdiction would be the lower court record for purposes of ascertaining whether or not such court did perpetuate the misnomers spelt out in sub-sections (a), (b) and (c) of section 83 of the Civil Procedure Act. This court revises the record of the lower court to satisfy itself as to the correctness, legality or propriety of any finding, order or any other decision and the regularity of any proceedings before the High Court.

In the instance case, the applicant contends that the trial magistrate closed his case before leading evidence of 3 witnesses and proceeded to make final orders in the matter without allowing the respondents to state their case and produce their evidence. It is the argument of counsel for the respondent that such a decision denied the applicant the right to a fair hearing and was reached with illegality and with material irregularity. The record of the court shows that at scheduling, both the applicant and the respondent herein adopted their list of witnesses as per the plaint and the written statement of the defence, respectively. On the plaint, the applicant lists 5 witnesses, and, indeed, the applicant filed 5 witness statements.

The issues for court's determination, as framed by the trial court, were as follows:

- *1. Whether the plaintiff is the owner of the suit land* - *2. Whether the defendants are trespassers.* - *3. What remedies [are available to the parties].*

When the matter came up for hearing of the applicant's case on the 28th of January 2020, Mr. Businge, counsel for the applicant, indicated to the court that he had 3 witnesses in court and was ready to proceed with all of them. Court proceeded to cross-examine the 1st witness, the applicant herein, and thereafter, without allowing re-examination of the applicant, proceeded to make the following orders:

> *"From the evidence on record, it is already apparent that this was an estate which was properly dealt with according to the law. Therefore the distribution is hereby set aside as far as the said property is concerned. I accordingly make the following orders:*

- *1. that the plaintiff is only entitled to the space on the suit land where his house and toilet rest.* - *2. That any other occupation by the plaintiff other than the aforementioned ceases.* - *3. That the plaintiff shall shift his project off the suit land to elsewhere.*

- *4. That the remaining part of the property be taken by the defendants* - *5. That the plaintiff and the 1st defendant are appointed administrators to ensure that the above directive of the court is complied with.* - 6. *That the administrators shall file an inventory within one month from today."*

Article 28(1) of the Constitution of the Republic of Uganda is to the effect that in the determination of civil rights and obligations or any criminal charge, a person shall be entitled to a fair, speedy and public hearing before an independent and impartial court or tribunal established by law.

Order 18 Rule 2 of the Civil Procedure Rules provides that:

*"2. Statement and production of evidence.*

*(1) On the day fixed for the hearing of the suit, or on any other day to which the hearing is adjourned, the party having the right to begin shall state his or her case and produce his or her evidence in support of the issues which he or she is bound to prove.*

*(2) The other party shall then state his or her case and produce his or her evidence, if any, and may then address the court generally on the whole case.*

*(3) The party beginning may then reply generally on the whole case; except that in cases in which evidence is tendered by the party beginning only he or she shall have no right to reply."*

The import of this rule is that the plaintiff should be accorded the right to state his or her case and produce evidence in support of his or her case through witnesses. After the plaintiff has concluded his or her case, the defendant is accorded the same right. In cases where a hearing should be conducted, like the instant one, judgment can be pronounced only after the case has been heard *(see: Order 21 Rule 1 of the Civil Procedure Rules).*

Given the circumstances of the cases and issues framed for determination, it was prudent to hear all the parties in the case, and a judgement pronouncement would have been made upon the conclusion of the hearing. However, the record shows that the trial magistrate heard from only one witness of the plaintiff who was not even allowed to be reexamined in accordance with section 137(3) of the Evidence Act, and then the trial magistrate proceeded to pronounce a final judgement.

I find that the trial magistrate exercised his jurisdiction with material irregularity by pronouncing himself on the finality of the matter without allowing the parties to produce their evidence on the issues that had been framed by the court, well knowing that this is a case where a judgement would be given after hearing both parties.

The decision of the learned trial magistrate was irregularly arrived at based merely on the evidence called by him. This is a classic case of a judicial officer descending into the arena of the disputants, which eventually clouded his vision with a dust of conflict and occasioned a miscarriage of justice.

Justice is best done by a judicial officer who holds the balance between the contending parties without taking part in their disputations *(see Zakaria Onno v. Orlando Difasi HCCA No. 25 of 2013)*. Unfortunately, the trial magistrate failed to strike a balance between the parties and chose to be part of the dispute. The magistrate eventually determined the matter without hearing the evidence from the parties. Although the trial magistrate's jurisdiction is not contested, I find that his jurisdiction was exercised with material irregularity.

It is therefore the finding of this court that this application raises sufficient grounds for this court to make revisionary orders.

## **Issue 2: What Remedies are available to the parties?**

Counsel for the applicant submitted that this court has the power to grant any orders to meet the ends of justice. The applicant prayed that Civil Suit No. 21 of 2017 be revised and set aside, and an order for a retrial be issued. Regarding costs, counsel for the applicant argued that this is a case where an order for costs should not be made because the irregularities complained of were made by the trial court.

Section 83 of the Civil Procedure Act is to the effect that no such power of revision shall be exercised, where, inter alia, from lapse of time or other cause, the exercise of that power would involve serious hardship to any person *(See: Kibalama Mugwanya v. Butebi Investment Enterprises Ltd CACA No. 190 of 2013)*

In the instant case, although the respondents stated that the application was brought with inordinate delay, they did not demonstrate to the court how the grant of any revisionary orders would occasion any serious hardship to them or any other person. In the absence of any evidence that the grant of this application will cause serious hardship to the parties herein or any other person, I find no reason why this application should not be granted.

I, therefore, find that this is a proper application for revision and accordingly, the application succeeds with the following orders:

- a) The judgement and orders of the trial Magistrate Grade 1 in Civil suit No. 21 of 2017 delivered on the 28th of January 2020 are hereby set aside. - b) An order for a retrial of Civil suit No. 21 of 2017 is hereby issued. - c) The Deputy Registrar shall transmit the lower court file back to the lower court for a retrial. - d) Each party shall bear its own costs of this application.

It is so ordered.

Dated at Fort Portal this 29th day of August 2024.

**Vincent Emmy Mugabo Judge**