Okello v Kibeti (Miscellaneous Application 6 of 2023) [2024] UGHC 662 (12 July 2024)

Full Case Text

### The Republic of Uganda

In the High Court of Uganda at Soroti

Miscellaneous Application No. 0006 of 2023

(Arising from the Judgements passed by LC II Court of Nyada Parish on 25/3/2012 and LC III *Court of Kapelebyong Sub County on 19/12/12)*

$\mathsf{S}$

Okello Charles ::::::::::::::::::::::::::::::::::::

Versus

Kibeti Joseph ::::::::::::::::::::::::::::::::::::

# Before: Hon. Justice Dr Henry Peter Adonyo

# Ruling.

# 1. Introduction.

The applicant brought this application by notice of motion under section 83(a), section 98 of the Civil Procedure Act, Order 52 rule 1 of the Civil Procedure Rules, sections 14 (2) (b) & (d), sections 33 of the Judicature Act and section 40 of the Local Council Courts Act for orders that;

- a) That the judgment/orders of the LC II Court of Nyada Parish dated 25th of April 2012 and by LC III Court of Kapelebyong County dated 19th of December 2012 be revised and set aside. - b) That the costs of this application be provided for.

#### 2. Grounds. $5$

The grounds of this application as set out in this application and the affidavit in support as sworn by the applicant are that;

- a. Both the LC II Court of Nyada Parish and the LC III Court of Kapelebyong sub county were devoid of jurisdiction by the time they purported to handle the land dispute between the applicant and the respondent. - b. That both the LC II and LC III Courts exercised jurisdiction not conferred on them, the LC II Court having no original jurisdiction. - c. That the decisions reached by both LC II Court of Nyada parish and the LC III Court of Kapelebyong sub county are consequently nullities which the applicant is entitled to be set aside. - d. That is just, fair and equitable that this application be granted.

The respondent in his affidavit in reply stated that at the hearing of this application he would raise a preliminary objection that this application is irregular and an abuse of court process.

That it is true that the matter in the LC II Court was decided in favour of the 20 applicant and on appeal to the LC III Court the matter was decided in the favour of the respondent. That the LC II Court at that time had time jurisdiction to entertain the said matter as a court of first instance.

That although the High Court has unlimited jurisdiction over civil matters, the

power to supervise the local council courts is a reserve of the Chief Magistrate's 25 Court as provided under the Magistrates Courts Act.

That the High Court in entertaining this application, it will be usurping the supervisory powers of the Magistrate's court.

- In rejoinder the applicant stated that this application meets the requirements of $5$ the law and the intended preliminary objection us misconceived. That the LCII Court has no original jurisdiction in matters concerning customary land. That the Chief Magistrate has only supervisory powers but not revisionary powers. - 3. Representation. - The applicant was represented by M/s Echipu and Co. Advocates while the 10 respondent was represented by M/s Engwau & Co. Advocates.

This matter proceeded by way of written submissions and the same have been duly considered.

- 4. Determination. - a) Preliminary point of law. 15

Counsel for the respondent in his submissions raised a preliminary objection that this application was prematurely and or wrongly field before this honourable court.

That section 40 of the Local Council Courts Act provides that the general powers of supervision over local council courts may be exercised by the Chief Magistrates 20 court on behalf of the high court.

Counsel submitted that the judicial independence of every court in passing orders in cases filed before it is well settled by Article 128 of the Constitution of the Republic of Uganda and Principle 1 of the Uganda Code of Judicial Conduct, 2003.

This independence cannot be interfered with by any court, including a superior 25 court. However, by express statutory provisions, the High Court's authority over proceedings pending in Magistrates court is either of a prerogative or a supervisory nature. Both powers are prescribed by the law and therefore a party seeking the High Court's intervention in proceedings that are ongoing in a

Magistrates Court, is expected to invoke either power and not otherwise. $\mathsf{S}$ (Counsel relied on Simba Properties Investment Co. Ltd & 5 Ors vs Vantage Mezzanine Fund II Partnership & 6 Ors MA No. 0414 of 2022).

Counsel further submitted that the power of the High Court to control the course of litigation in the inferior courts and tribunals is a power which must be exercised with caution since its abuse would nullify the ordinary appellate procedure.

That in this context, the applicant has not sought the supervisory jurisdiction of the Chief Magistrates Court but rather prematurely run to this Honourable Court. Counsel additionally submitted that although the High Court has unlimited jurisdiction over civil matters, the power to supervise the local council courts is a

reserve of the Chief Magistrates Court. 15

He prayed that this Honourable court be pleased to make a finding that this preliminary point of law disposes of this matter with costs to the respondent.

The applicant made no submissions in reply to this preliminary point of law.

b) Finding on the preliminary point of law.

This application seeks orders that the judgment/orders of the LC II Court of Nyada 20 Parish dated 25th of April 2012 and by LC III Court of Kapelebyong County dated 19th of December 2012 be revised and set aside.

Section 40 of the Local Council Courts Act provides for the Chief Magistrate's supervisory powers thus;

The general powers of supervision over Magistrates' Courts conferred upon the 25 High Court by the Judicature Act may be exercised by the Chief Magistrate over local council courts on behalf of the High Court.

This provision clearly indicates that the supervisory powers over the local council $\mathsf{S}$ courts is the reserve of the Chief Magistrates Court and the applicant ought to have filed his application before the Chief Magistrates Court.

The power to revise or hear appeals arising from Local Council Courts lies with the Chief Magistrates Court.

The applicant in his affidavit in rejoinder contended that the Chief Magistrate 10 Court only had supervisory powers but not revisionary powers.

This position the applicant is relying on is legally incorrect for the supervision of the Local Council courts in its essence is revision because it entails the Chief Magistrate calling for and examining the record of any proceedings of that court

for the purpose of satisfying himself or herself as to the correctness, legality or 15 propriety of any finding, judgment or order recorded or passed.

Section 83 of the Civil Procedure Act further proves that this court has no jurisdiction to hear an application for revision of a local council judgement, inter *alia*, it provides that;

The High Court may call for the record of any case which has been determined 20 under this Act by any magistrate's court... (emphasis mine).

This court can only revise matters arising from the Magistrates Courts, not the Local Council courts.

This preliminary point of law is therefore found to have merit and the same is maintained.

Having noted that it is imperative that matters must be handled by the lowest court which has appropriate jurisdiction, I would consider that this application for the judgment/orders of the LC II Court of Nyada Parish dated 25th of April 2012 and by LC III Court of Kapelebyong County dated 19th of December 2012 be

revised and set aside would best be handled by the Chief magistrate Court which $5$ has not only appellate powers over those courts but can hear and revise, if it so finds so decisions of those said court where it deems fit.

Accordingly, this application is misfiled in this court.

I would have ordered the refiling of this application in the lower trial court of the Chief Magistrate's court. However, given the nature of this matters and in the 10 interest of the justice of this matter, I do exercise my discretion under section 98 of the Civil Procedure Act and order that it be forwarded to be heard and determined by the Chief Magistrate's Court holden at Katakwi with the cost of this application to abide the decision of the said court.

I so order. 15

Hon. Justice Dr Henry Peter Adonyo

Judge

12th July 2024