Nyanzira v Rukera & Another (Civil Appeal 31 of 2022) [2025] UGHC 229 (24 April 2025)

### THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT KABALE

# CIVIL APPEAL NO. 0031 OF 2022

(Arising from Miscellaneous Application No. 45 of 2022)

# (Arising from Land Claim No. 0007 Of 2019)

NYANZIRA VANGILISITA====================APPELLANT 10

### **VERSUS**

# 1. RUKERA JAMES

# 2. MUZURI JACKLINE $==$ $==$ $==$ $==$ $==$ $==$ $=$ $=$ $RESPONDENTS$

# **BEFORE: HON. JUSTICE SSEMOGERERE KAROLI LWANGA JUDGMENT**

This is an appeal from a ruling made on December 6, 2022 by the learned Trial Magistrate, Grade I, Kisoro, His Worship Raphael Vueni in Miscellaneous Application No. 45 of 2022 by the Appellant against the Respondents challenging the propriety of the proceedings brought under a non-existent Land Claim No. 007 of 2019.

# **Brief Facts.**

The brief facts are, the Appellant and Respondents were parties in Land Claim No. 007 of 2017 in which the Appellant sued for her share of the matrimonial home and certain properties jointly acquired by her and the first respondent, her husband. The second Respondent is the second wife of the first respondent.

In a consent judgment closing Land Claim No. 007 of 2017 entered on March 28, 2022, the respondents agreed to surrender all of the suit pieces of land (land and

$\mathsf{S}$

#### $20$

the house thereon) unconditionally to the Appellant. They agreed never to disturb $\mathsf{S}$ the Appellant in any way on ownership, possession and use of the suit properties which comprised mainly of the matrimonial home and land acquired in 2005 by the Appellant and first respondent. The claim was closed.

Subsequently, the respondents appeared before the <u>same</u> magistrate with an oral $10$ complaint to the effect that the Appellant was misinterpreting the contents of the consent judgment and pursuing other pieces of land which were not part of the consent judgment. Court summoned the Appellant by way of summons dated November 7, 2022, to appear in court to respond to these allegations. Appellant declined to appear and filed an application (**Miscellaneous Application No. 45 of 2022**) seeking the following orders:

- 1. A declaration that the Appellant had never instituted land claim no. 007 of 2019, which was a non-existent claim; - 2. The applicant had never been served with a copy of a complaint of defence in Land claim no. 007 of 2019; - 3. Striking out the court proceedings as an abuse of court process; and 4. Costs.

This application to strike out court proceedings was brought under Section 98 of the Civil Procedure Act, Cap 282 (formerly, Cap 71) invoking the inherent powers of Court and by notice of motion under Order 52, Rules 1,2 and 3 of the Civil Procedure Rules SI 71-1. The notice stated the obvious, that there was no such claim, Land Claim No. 007 of 2022 between the parties [this statement was also in error]. However, the Appellant's own application was a miscellaneous application No. 45 of 2022, whose affidavit in support referenced Land Claim No.

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$25$

- 007 of 2019 as the parent suit [this statement, too was also in error]. The affidavit $\mathsf{S}$ stated the obvious that she had never instituted Land Claim No. 007 of 2022. She also attached the summons and hearing notice dated October 27, 2022 with the details of the incorrect claim; Land Claim 007 of 2019 rather than Land Claim 007 of 2017. - The respondents in their joint affidavit in reply impliedly admitted the above 10 errors. In paragraph 4, of their affidavit, they stated that the court clerk was instructed by the learned Trial Magistrate to refer to case file No. 007 of 2017 (this was the claim in which a consent judgment had been entered). That they took out the summons knowing it was in accordance with the instructions by the - Trial Magistrate who tried the original Land Claim 007 of 2017. In paragraph 7, 15 they stated the only claim that could be referred was the aforementioned claim and no other. In the rest of their affidavit, they stated this was an ill-concerted effort by the Appellant to circumvent the summons.

The learned Trial Magistrate summarily dismissed Miscellaneous Application 45 of 2022 finding at page 2 of his short ruling that the Appellant had failed to $20$ respond to the summons to answer allegations against her. He found that the Appellant's application lacked merit and dismissed it with costs against the [*respondent*]. This was also another obvious error, as the Respondents were the successful parties.

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#### **Grounds of Appeal:** $\mathsf{S}$

The Appellant framed three grounds of appeal in their Memorandum of Appeal filed in this court on December 13, 2022. These also were troubling in some respects. I reproduce them below with slight modification. These are:

- 1. The learned Trial Magistrate erred in law and fact when he held that Miscellaneous Application No. 45 of 2022 arising from Land Claim No. 007 of 2019 was brought under the Penal Code Act, Cap 71. - 2. The learned Trial Magistrate erred in law and fact when he failed to evaluate evidence that there is no suit for the Appellant against the respondents registered under No. 007 of 2019. - 3. The learned Trial Magistrate erred in law and fact when he focused on Land Claim 007 of 2017 that had been concluded *inter partes* between the Appellant and respondents thereby reaching the wrong decision.

Appellant asked this Honorable Court for the following orders:

- 1. That the appeal be allowed. - 2. The ruling and orders of the Trial Magistrate be set aside.

3. Appellant be awarded costs in this court and in the courts below.

# **Representation:**

At the commencement of the appeal, the Appellant was represented by M/S Legal Aid Project of the Uganda Law Society, and their notice of instructions is dated June 19, 2024. The respondents were represented by M/S Bikangiso & Co Advocates. When the appeal came up for final disposal before this court on April 15, 2025, the Appellant was self-represented. No cessation of instructions or

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change of representation is available and court found itself with the task of $\mathsf{S}$ informing the Appellant, the matter was ready for judgment. Parties presented their case by written submissions. $\%$

# **Discussion and Analysis:**

- For purposes of disposing of this appeal, I will for brevity cite the decision of this 10 court in Beyanga Apollo v Lucia Baryezo Babyayanga and another in High *Court Civil Appeal No. 28 of 2022* decided April 15, 2025. This decision sets forth the duty of the first appellate court to *evaluate evidence* on the record and make *its' own conclusions [emphasis mine].* - I have read the short record of this application and made a number of 15 observations. I have also read the record of the underlying suit in Land Claim 007 of 2017 which ended in a consent judgment and appreciated its contents.

I have perused the submissions of Counsel for the respondent and the Appellant and studied the authorities cited. Briefly, the appellant emphasized the effect of the errors, whose effect was the illegality of the court proceedings. The respondent's submissions repeated the Learned Magistrate's contention that there was only one claim, Land Claim 007 of 2017. In short, the respondents' don't contest the errors, but argue they were of no effect. I will adopt the same grounds with some modification for resolution of this appeal.

Before I dispose of this appeal, it is important to state that it is also the duty of $25$ the first appellate court to establish the completeness of the record, and non derogation to all the parties' constitutional right to a fair hearing prescribed by Articles $28(1)$ and $44(c)$ of the Constitution of the Republic of Uganda, 1995. Self-

presented or pro-se litigants present even more unique challenges, for example, $\mathsf{S}$ have they understood the nature of the proceedings? Is the judicial officer even handed? Precise and predictable judicial practices are part of this right. The opposite of this is judicial anarchy or the practice of kangaroo trials prohibited by Article $126(1)$ and $(2)$ of the Constitution that establishes limits to the exercise of judicial power. The use by court of its inherent powers to meet the ends of justice $10$ under Section 98 of the Civil Procedure Act, Cap 282 is an exercise in judicious use of judicial power.

At the outset, neither party offered that the record itself could be corrected. That made the submissions of both parties less effective to court, given the fact, that the record was riddled with a number of errors. I turn to resolution of the appeal.

Ground 1. The learned Trial Magistrate erred in law and fact when he held that Miscellaneous Application No. 45 of 2022 arising from Land Claim No. 007 of 2019 was brought under the Penal Code Act, Cap 71.

With due respect to Counsel who drafted this ground, I find this ground an undisguised form of malfeasance to the appeal, or simply professional incompetence. At a first glance, I was tempted to believe there was a criminal complaint, or criminal reference, and I found none. The ruling of the learned Trial Magistrate did not in its short 2 pages mention or cite the Penal Code Act anywhere. ("It is possible it was the intention to refer to the Civil Procedure Act, but it is not the responsibility of court to correct the appellant's memorandum of appeal!") Rather it reproduced the grounds in the Appellant's notice of motion as brought under Section 98 of the Civil Procedure Act, Cap 282 (the "Civil Procedure Act") and Order 52, rules 1,2 and 3 of the Civil Procedure Rules SI 71-

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1. Both the Appellant and Counsel after the ruling was issued had ample $\mathsf{S}$ opportunity to bring an application for review rather than an appeal under Section 82(a) of the Civil Procedure Act, and Order $46(1)(b)$ of the Civil Procedure Rules, to correct obvious "errors" on the face of the record. The definition of such error that meets statutory muster, is reproduced in the Supreme Court decision of Edison Kanyabwera v Pastori Tumwebaze Civil Appeal No. 6 of 2004, at $10$

page 13, where Oder J. S. C., citing a passage from A. I. R. Commentaries: The Code of Civil Procedure by Manohar and Chitaley, Vol. 5, 1908 said,

"it is stated that in order that an error may be a ground for review, it must be one apparent on the face of the record, i.e. an evident error which does not require <u>any extraneous matter to show its incorrectness</u>."

He then added.

"It must be an error so manifest and clear, <u>no court would permit such an</u> error to remain on the record (emphasis mine). The error may be one of fact, but it is not limited to errors or fact, and also includes an error of law."

In the instant case, the summons, marked Annexure "A" to the Appellant's $20$ application had an obvious error, which necessitated review on motion by the dissatisfied party under the relevant provisions of the law. It's a travesty of justice, that the Appellant then proceeded to use the wrong procedure, to appeal against the Learned Trial Magistrate's ruling, and then included an "error of law" by citing the wrong statutory provisions in a ground of appeal. $25$

Ground 1 must fail for the above stated reasons.

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#### Ground 2: $\mathsf{S}$

The learned Trial Magistrate erred in law and fact when he failed to evaluate evidence that there is no suit for the Appellant against the respondents registered under Land Claim No. 007 of 2019.

I have already stated in my resolution of Ground 1, that there was an obvious error on the face of the record. This situation could have been arrested if the 10 Appellant had appeared to answer the summons and pointed out the obvious. No plausible argument exists for the learned Trial Magistrate's effort to continue a complaint that could have been corrected to adjudicate the dispute. I find the respondents' assertions in paragraphs 6 and 7 of their joint affidavit in reply to the effect that it was obvious, the one and only obvious land claim was Land Claim 15 007 of 2017, the subject of the consent impossible to defend.

I also find the failure by the learned Trial Magistrate to correct the obvious errors in the record impermissible under existing law. It is as well possible, the complaint by the respondents necessitated a separate suit, as from their own affidavit, and complaint, the Appellant was encroaching on their rights on nonmatrimonial land.

This ground succeeds.

# Ground 3:

The learned Trial Magistrate erred in law and fact when he focused on Land Claim 007 of 2017 that had been concluded inter partes between the $25$ Appellant and respondents hereby reaching the wrong decision

$\overline{\mathbb{A}}$

I have closely studied the submissions of the Appellant on this ground, which $\mathsf{S}$ would have supported an application for review rather than an appeal under Section 82(a) of the Civil Procedure Act, whose basis I have discussed in my resolution of Ground 1. I have also studied the respondent's submissions who seemed to have appreciated the point of view, that there were curable defects in the approach the Appellant took. This matter would have benefited from a full 10 hearing on the merits, rather than the Appellant's use of the Miscellaneous Application to avoid hearing of the substantive complaint.

There is nothing in the short record of the application to support this conclusion. This ground also in my considered opinion fails.

#### Comment: 15

This appeal is a prime example of the backlog that is clogging the court system and its ability to adjudicate disputes expeditiously, fairly and judiciously. The learned Trial Magistrate should have remembered that our power under our supreme law must be exercised in conformity with the law. Second, parties should have resolved these errors and supported use of scarce judicial resources to resolve their dispute. This matter has come on appeal, waited 2 years for a decision without a hearing on the merits of the respondents' complaint against the Appellant!

# **Conclusion:**

This is a case where Section 82 of the Civil Procedure Act and Order 46 of the 25 Civil Procedure Rules would come to the assistance of court and litigants.

AAO

However, I reverse the order made by made by the learned Trial Magistrate $\mathsf{S}$ awarding costs to the Respondents for a matter that had barely started.

Second, the wording of the order as to costs was an improper use of judicial power. There was an error on the face of record, costs were awarded against the successful party, the respondents. No taxation of costs can proceed in such an irregular manner.

Lastly, I order a new trial under Section $80(1)(e)$ of the Civil Procedure Act, before a different Trial Magistrate in the Kisoro Chief Magistrate's magisterial area to expeditiously determine the merits of the respondents' complaint.

I so order, 15

soempa and

Ssemogerere Karoll Lwanga, Judge.

April 24th, 2025.

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