Opio v Otaka and Another (Civil Appeal No. 124 of 2013) [2022] UGCA 288 (15 December 2022)

THE REPUBLIC OF'UGANDA CTVIL APPEAL NO.124 OF 2013 OPIO DANIEL : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : :APPELLANT IN THE COURT OF APPEAL OF UGANDA AT I(AMPALA

### VERSUS

#### I. OTAKA VINCENT

# 2. LIRA MUMCIPAL COITNCIL : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : :RETSPONDENT CORAM: HON. MR. WSTICE BARISHAI{I CHTBORION, JA HON. MR. .,USTICE STEPHEN MUSOTA, JA

HON. MR. WSTICE CHRISTOPHER MADRAMA, JA

### JI'DGMENT OF HON. WSTICE STEPHEN MUSOTA, JA

This is an appeal against the Judgment of the High Court at Lira before the Hon. Mr. Justice Byabakama Simon Mugenyi delivered on 24Lh Jarluary,2Ol3 in Land Civil Suit No.74 of 2009.

### 1s Background ofthe Appeal

The Respondent/plaintiff claims he is registered proprietor of Plot No.70 Ogwarguji Road, Lira Municipality having acquired the said Plot from his father George Washington Bua. He alleges that prior to construction of his house, he obtained permission from the Lira zo Municipal Council to start the development on the land. He also claims that he obtained a bill of quantities and constructed his house on the suit land up to ring beam level without any interference from any person, body or authorit5r. He further alleges that on 17th

Page 1 of 18


November 2008, the 1"t Defendant and the 2nd Defendant's agents, servants and/or employees without his consent entered upon his suit plot and destroyed his house in the process of opening Ogwanguzi Road. That the road was opened in total disregard of the existing house plan. That the Plot and the house therein were outside the planned road.

As a result of these facts the plaintiff claimed that he had suffered mental anguish, loss and inconvenience for which he is entitled to special and general damages. Accordingly, on 116 June 2009 the appellant lodged plaint uide Civil Suit No.74 of 2OO9 in the Chief Magistrates Court of Lira at Lira against the respondents as defendants. The appellant's cause of action was for trespass to land situate at Plot No.7O Ogwanguji Road, Lira Municipality. In the plaint the appellant prayed as follows;

## "WHEREFORE, the plaintiff praAs for Judgment against the Defendants for:

- a) Special Damages o/ UG. Shs 46,201,000/ = - b) A declaration that the Plot No.70 Ogwangazi Road in Lira Municipalitg belongs to the Plaintiff. - c) A permanent injunction restraining tle Defendants, their agents, seruants and/ or emplogees from further trespassing, damaging, uasting and/or alienating the Plaintiffs land - d) General damages for trespass - e) Interest

## fl Costs of the suit"

On 22"d June 2009, the respondents filed a Written Statement of Defence stating that the plaint does not disclose a cause of action, is fatally defective and that the actions of the appellant were fraudulent as he colluded and connived with unscrupulous offrcia-ls to illegally, maliciously and fraudulently deprive council of its legal Property.

The matter was heard by Chief Magistrate Gabriel O. Nyipir interparty on different dates that is; lOl9l2OO9, 8/lOl2OO9, t9,tt,2oo9, 2tl t2l2oo9, t912l2oto, tl4l2oto, ttl6l2oto, 30l9l2OtO, t8/12/2OrO, 16l2/2}rr, 25l3l2ott, tlrtl2OtL, t2l tt l2ott.

The plaintiffs frled written submissions in the Chief Magistrates Court of Lira at Lira.

15 On2l12 l2ol1 judgment was read and explained in open court by the Chief Magistrate Gabriel O. Nyipir who noted on the court record as follows;

"2/ 12/2011:- Plaintiff present.

Counsel for Plaintiff absent.

Acan Stella Taking bief for Mr. Twontoo for

Defendants

Ongom Clerk

Judgment read and explained in open.

Case refened

Page 3 of 18

,n

To the High Court cosfs in the cause.

So Ruled.

### GABRIEL O. ffYIPIR CHIEF IVIAGISTRATE 2/72/2077',

In his Judgment the Chief Magistrate found that whereas the appellant had presented evidence of Certificate of Title to the suit land, the defendant raised issues of fraud pralnng that the Certificate of Title be disregarded for being nonexistent by reason of fraud. In the final he stated thus;

> "... With all the aboue it has become categortcallg clear that this is a matter inuoluing cancellation of land title. The intimation of the defence is that they are urgtng this court to consider the land title cs if it is cancelled, which consideration cannot lawfullg be done bg this court since this court locks jurisdiction on matter consideing cancellation of land title. This would in itself onlg be entertained lawfullg in the High Court. To resolue the issues of this case comprehersiuelg, once and for all I do deem it appropiate that the matter be referred and hondled to the High Court that mag appropiatelg haue the juisdiction to attend to all the issues inuolued in the matter

> I do accordinglg refer the matter to the High Court Lira for appropriate determination of the matter.

Let costs be in the cause.

Page 4 of 18

So ruled.

### GABRIEL O. NYIPIR CHIE? IUTAGISTRATE 2/72/2077'

5 ThereaJter the matter carne up before Hon. Justice Byabakama Mugenyi Simon on 24 / I l2ol3 as Land Suit No.74 of 2OO9 who made an order as follows;

"Order: -

It is not in dispute the suit land hos title. This was a fact within the knowledge of the plaintiff since he is the registered propietor of the suit land. He was represented by Counsel at the trial. Although it was a graue error on the part of the tial magistrate to hear the matter up to the stage of judgment, the Plaintiff and hb Counsel ought to haue known theg were in the urong court.

In uiew of the apparent illegalitg, the entire proceedings were a nullitg and this court cannot be asked to determine merits of the cause which is encumbered bg manifest illegalities. The purported reference bg the tial Magistrate is therefore null and uoid.

In the result the said proceedings and the judgment are uitiated on account of the stated illegalitg.

As for costs, f haue qlreadg stated the plaintiff was in the urong Court. On the other hand Counsel for the defendants should haue raised an objection to the lack of juisdiction on

zo

Page 5 of 18

the part of the trial Magistrate. Although Mr. Twontoo *fervently argues he raised the objection, the record does not* bear him out. The defendants therefore willfully and *willingly participated in the illegal trial.*

In view of the forgoing, the defendants are awarded $\frac{1}{2}$ (one *half) of the taxed costs. I so order.*

#### BYABAKAMA MUGENYI **JUDGE"**

The appellant was dissatisfied with the decision of the High Court and lodged this appeal. 10

### **The Appeal**

In the Memorandum of Appeal, the appellant raises the following grounds of appeal;

- 1. The learned trial Judge erred in both law and fact when he failed to properly evaluate all the evidence on record and dismissed the Applicants suit on grounds that the Chief Magistrates Court had no jurisdiction to hear the case because the suit land has a Certificate of Title in the names of the Appellants. - 2. The Learned Trial Judge erred both in law and fact when 20 he failed to evaluate all the evidence on record and determine the issues framed when the case was referred to him by the then Chief Magistrate for appropriate determination of the matter.

The Appellant proposes that this Court grants orders that;

a. The Judgment qnd Orders ottlrc Louer Court be set astde.

- b. A declqrqtlon that tlrc DeJendant trespqssed on tlrc plalnttffs lo;nd and should pag speclal dam.ages worlhUg. Shs 46,207'0O01= onlg plus @nerq.l Damages. - c. The rrppellant be qwqrded costs of both thls Honorable Court and that of the Louter Court.

#### Representatlons / aDDearances

At the hearing of the appeal, Mr. Samuel Ondoma appeared for the Appellant. There was no appearance made for the Respondent.

The appellant filed conferencing notes on 22"d October, 2O2O. The respondent filed conferencing notes on 16o November, 2020. This court allowed the prayer to adopt the Appellant's conferencing notes and decided to consider the 2"d respondent's conferencing notes on the court record in deciding this appeal.

# Duty of this court as a first appellate court.

This is a first appeal arising from the decision of the High Court in exercise of its original Jurisdiction. It is therefore important for this court to remind itself of its duty as a hrst appellate court. The duty of a first appellate court is well settled. In the case of Klfannunta Henry a Uganda (Supreme Court Crtmtnal Appeql No.7O of 7997) it was held that

Page 7 of 18

"The first appellate court has a duty to review the evidence of the case and to reconsider the materials before the trial judge. The appellate Court must then make up its own mind not disregarding the judgment from but carefully weighing appealed and considering it. When the question arises as to which witness should be believed rather than another and that question turns on manner and demeanour the appellate Court must be guided by the impressions made on the judge who saw the witnesses. However, there may be other circumstances quite apart from manner and demeanour, which may show whether a statement is credible or not which may warrant a court in differing from the Judge even on a question of fact turning on credibility of witness which the appellate Court has not seen. See Pandya vs. R. (1957) E. A. 336 and" Okeno vs. Republic (1972) E. A. 32 Charles B. Bitwire ys Uganda - Supreme Court Criminal Appeal No. 23 of 1985 at page 5.

The duty of the Court of Appeal to re-appraise evidence on an appeal 20 from the High Court in its original jurisdiction is set out in rule 29 **Rules of the Court of Appeal** as follows;

> " $29(1)$ on any appeal from a decision of a High Court acting in the exercise of its original jurisdiction, the court may;

$\mathsf{S}$

Page 8 of 18

(Q re-appralse the evldence and draw lnference of fact,

(b) ln lts dlscretlon, for sttfficlent reason tqke addltlonal evldence or dlrect tho:t addttlonal euldence be taken bg the trlql Court or bg commiss{onerl

- (2)............ - (3) t,

I shall abide by this duty as I resolve the issues in this appeal.

## Consideration of the A eal

I have decided to determine the grounds of appeal in the order in which they have been stated in the memorandum of appeal. 10

C;round, 7 The leqrned ffi.al Judge erred ln both law and fact when he fatled to properlg eaqluate all the euldence on record and dlsmlssed the Appellant's sult on grounds that the Chlef

Maglstratcs Court ho,d no Jurlsdictlon to hear the case because the sult lqnd has a Certlficate oJ Tttle ln tlrc n,olrtes of the Appellants. 15

### Appellant's Submlssions

The appellant submitted that there is no law that stops Chief Magistrates Court from hearing cases/suits where the suit land has a certificate of title. It is only the power to order for cancellation of title that is vested in the High Court. 20

Further the appellant submitted that in the instant case the learned trial Magistrate heard the suit interparty, visited locus in quo and the appellant/plaintiff filed written submissions while the defendant/respondent did not file submissions. The learned trial s Magistrate did not deliver Judgment yet he had jurisdiction to do so but instead he unlawfully referred the suit to the Judge without the notice and consent of the parties. The learned trial Judge instead of legally and judiciously guiding the parties and the trial Chief magistrate to deliver his judgment to the dismay of the appellant the 10 trial Judge dismissed the suit on grounds that Chief Magistrate Court had no Jurisdiction to hear the suit because the suit had a certificate of title. The Judge observed that the plaintiff/appellant should have frled the suit in the High Court because the suit land had a certificate of title and that there was apparent illegally and the entire rs proceedings was a nullity because the suit was frled in Chief Magistrate Court.

The above decision of the learned trial Judge in the appellant's view was erroneous because it is not supported by any law. That there was a mistrial by the Learned trial Judge considering the way he 20 conducted the suit. That the Chief Magistrate had the jurisdiction to hear the issues framed and to deliver its judgment. That if at all there was an order requiring cancellation of certilicate of Title and there is no appeal then the successful party would apply for consequential orders to the High Court.

Page 10 of 18

That had the learned trial Judge properly and judiciously evaluated the evidence on court record referred to him, he would have found the respondents/defendants trespassed on the suit land. That there was no fraud attributed to the appellant or proved.

- 5 That both respondents do not own the suit land and have completely no interest in it. It is Lira District Land Board which lawfully leased the suit land to the appellant and the land board has no complaint against the appellant. That there is no suit or counter claim by the respondent/defendants liled against the lessor that is Lira District Land Board which is mandated by law and has powers to allocate the 10 - land. The municipality is only a planning authority and has no right of ownership and powers to allocate land.

That in a nutshell the appellant prays that judgment be delivered by this court in favor of the appellant with costs of this appeal and of the lower court. That this court should frnd that Chief Magistrates Courts have powers to order for calcellation of Title.

### Res ondent's Submlsslons

The 2"d respondent states in the conferencing notes that a court that has no Jurisdiction over a matter filed before it like in the instant case cannot legally transfer the same. For a court to transfer a file to another Court the suit must have been filed in a court with Jurisdiction to try it. The 2"d Respondent referred to the cases of Davld Kabungu vs Zlkabuga & 4 Others HCMA No.39/1969 as quoted with approva-l in Osuna vs Oftvono HCT 04 MA77 l20l2 and Ktgeuyi v Mlslramo & Ors 1968 EA 43 and others. 20 25

That therefore the trial Judge was right to dismiss the case.

# Determinatlon of Ground <sup>1</sup>

I have carefully considered the submissions of the parties. It appears to me that to resolve this ground of appeal I need to answer two questions; did the Magistrate have Jurisdiction to entertain the civil suit over titled land and whether the trial Judge erred in law and fact in dismissing the appellant's civil suit.

I must on tl:e outset state that a magistrate's court can entertain a civil suit relating to land which has a certificate of Title. Section 11

10 of the Magistrates' Courts (Amendment) Act No.7 of 2OO7 provides as follows;

11. Amendment of section 207 of the pincipal Act.

Section 207 of the principal Act is amended in subsection (1) as follows-

(a) in paragraph (a), bg substituting for "fiue million shillings" the words "fifiq mitlion shillings'; 15

> (b)in paragraph (b) by substituting for "two million shillings" the words "twentg million shillings";

(c) bg repealing paragraph (d).

Further Section 2O7 of the Magistrates Courts Act Cap 16 which the above amendment Act amended stated as follows; 20

"207. Ciuil juisdiction of magistrates.

Page 12 of 18

(1) Subject to this section and ang other u.titten law, the jurisdiction of magistrates presiding ouer magistrates' courts for the trial and detennination of causes and matters of a ciuil nature shatl be as follows-

(a) a chief magistrate shall haue juisdiction where the ualue of the subject mqtter in dispute does not exceed fi.ue million shillings and shall haue unlimited junsdiction in disputes relating to conuersion, damage to propertg or trespass;

(b) a magistrate grade I sholl haue jurisdiction u.there the ualue of the subject mqtter does not exceed two million shillings;

(c) a magistrate grade II shall haue jurisdiction where the ualue of the subject matter in dispute does not exceed fiue hundred thousand shillings; and

(d) a magistrate grade III sholl haue jurisdiction where the ualue of the subject matter in dispute does not exceed two hundred ond fifiq thousand shillings.

(2) Notwithstanding subsection (1), where the cause or matter of o ciuil nahtre is gouerned only bg ciuil customary law, the jurisdiction of a chief magistrate and a magistrate grade I shall be unlimited.

(3) Wheneuer for the purposes of juisdiction or court /ees it is necessary to estimate the ualue of the subject matter of a suit capable of a moneg ualuation, the plaintiff shall in the plaint, subject to anA rules of court, fix the amount at which he or she

Page 13 of 18

ualues the subject matter of the suit; but if the court thinks the relief sought is wronglg ualued, the court shall fix the ualue and return the plaint for amendment.

(4) In ang suit uthere it is impossible to estimate the subject mqtter at a moneg ualue in which, bg reason of ang finding or order of the court, a declarqtion of ounership of anA moneA or propertg is made, no decree shall be issued for an amount on the claim exceeding the peanniary limits of the ordinary juisdiction ofthe court passing the decree.

(5) A magistrate's court mag grant any relief which it has power to grant under this Act or under ang other written law and make such orders as maA be provided for bg this Act or anA written law in respect of any case or matter before the court." 10

It is furtlrer stated in Secfion 208 of the Magistrates Courts Act Cap <sup>J</sup>6 that; 15

"208. Courts to try all ciuil suits unless baned.

Euery magistrate's court shall, subject to this Act, haue juisdiction to try all suits of a ciuil nqture excepting suits of which its cognisance is either expressly or impliedlg barred; but euery suit instituted in a magistrate's court shall be instituted in the court of the lowest grade competent to try and determine it.,

The same Magistrates Courts Act gives powers to the High Court to withdraw and transfer cases.

"278. Power of High Court to withdraw and transfer cases.

Page 14 of 18

(1) On the application of ang of the parties and afier notice to the parties and afier heaing such of them as desire to be heard, or of its own motion without that notice, the High Court mag at any stage-

<sup>5</sup> (a) transfer ang suit, appeal or other proceeding pending before it for tial or disposal to ang magistrates court competent to try or dispose of it;

> (b) withdraw anA suit or other proceeding pending in ang magistrate's court, and-

(i) try or dispose of it;

(ii) transfer it for tial or disposal to ang court subordinate to it and competent to try or dispose of it; or

(iii) retransfer it for tial or disposal to ang court from which it utas withdrawn.

- (2) Where ang suit or proceeding has been transferred or withdrawn as aforesaid, the court which thereafier tries the suit mag, subject to ang special directions in the case of an order of transfer, either retry it or proceed from the point at which it uas tr ansferred or uithdrawn. " 15 - In this appeal the matter was first handled by a Chief Magistrate whose pecuniary Jurisdiction in civil matters is fifty million. In the instant case the plaint stated in paragraph 4 that; 20

"The plaintiffs cause of action against the defendant is for trespass to land situate at Plot No. 70 Ohuanguji Road, Lira Municipalitg and he seeks orders of permanent injunction restraining the Defendants, their agents, serua.nts and/or s emplogees from further trespassing, damaging, wasting and./ or alienating the suit land, Ug. Slts 46,20L,000/= being speciat damages, general damages qnd costs of the suit.,,

The claim therefore involved the suit land on which the plaintiff sought a permanent injunction against the respondents/defendants. 10 In my assessment this suit far exceeded the pecuniary Jurisdiction of a chief Magistrate. The special damages claimed on their own were 46,20|,000/= before valuation of the suit land itself. Which in my assessment would ordinarily exceed the 4 million which was left on the pecuniary damages claimed by the appellants. On that basis I 1s would frnd that the trial magistrate indeed had no pecuniar5r jurisdiction to entertain the matter. Therefore, the learned chief Magistrate had no power or Jurisdiction or authority to entertain the case at all.

A suit filed in a court that has no jurisdiction cannot be transferred from that court. Accordingly, the order of transfer of the suit to the High Court was not rooted in law and was null and void. The power to withdraw and transfer suits from Magistrates courts is vested in the High Court under Section 218 of the Magistrates Courts Act Cap 16 and not in the Chief Magistrate. 20

On the issue of whether a Magistrates court can hear a dispute over titled land, to my mind there is no law that bars a magistrate's court to hear a case involving land which has a certificate of title to it or land under The Registration of Tttles Act, Cap 230. What a Magistrates court cannot do is cancel a Certificate of Title or make orders to effect any changes on the Register of Titles. I would therefore find that the learned trial Judge indeed erred in finding and holding that the Chief Magistrate did not have jurisdiction to entertain a civil suit over land that has a Certificate of Title. This is because of Section 177(1)of the Registration of Titles Act Cap 23O which provides: -

"Upon recouery ofang land, estate or interest bg ang proceedings from the person registered as proprietor thereof, the High Court may in anA case in whichthe proceedings is not herein expresslg barred, direct the Registrar to cancel ang certificate of title or instrument or anA entry or memoial in the Register Book relating to that land, estate or interest and substitute such certificate of title or entry as the circumstances of the case require, and the Registrar shall giue effect to that order."

I accordingly would find merit in ground 1 of the appeal.

@ound 2 The l\*arned lH.al Jud,ge ened, both ln laut and. fact when he falled to eualuate all the euldence on record and detennlne the lssues framcd. when the case utas referred. to hlrrr. bg the then Chtef Maglstrate for appropdatc detcnnlnatlon of the mattcr. 20

Page 17 of 18

Having found in resolving ground I that the referral was illegal null and void and without basis in the law, it follows that the trial Judge could not legally consider any merits of the case. I accordingly find no merit in this ground of appeal.

# s Concluslon

For the reasons I have given the appeal would partly succeed on ground l ofappeal.

I would find no merit in ground 2 of the appeal.

Having found that the civil suit exceeded the pecuniary jurisdiction of the Chief Magistrate and since tJle Chief Magistrate had no power or authority to transfer the civil suit, he ought to have dismissed the suit. I would accordingly decline to grant the orders as prayed for in this appeal. 10

15 I would instead order that the appeal be dismissed with each pargr bearing its own costs and I hereby do so.

I so order

Dated this day of 2022 -.tt

\*rfu^?

Stephen Musota WSTICE OF APPEAL

Page 18 of 18

### <sup>5</sup> THE REPUBLIC OF UGANDA,

### IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

## (C0RAM: CHEBORION, MUSOTA, MADRAMA, JJA)

### CIVIL APPEAL NO 124 OF 2013

oPro DANIEL) APPELLANT

## <sup>10</sup> VERSUS

### 1. OTAKA VINCENT]

2. L|RA MUNICIPAL CoUNCIL) RESPONDENTS (Appeal from the Judgment of Byabakama J of the High Court of Uganda as he then was at Lira in High court Land civil suit No. 74 of 2009 dated 24h January, 2013)

### JUDGMENT OF CHRISTOPHER MADRAMA IZAMA, JA

<sup>I</sup>have had the benefit of reading in draft the Judgment of my Learned brother Hon Justice Stephen Musota, JA.

- 20 <sup>I</sup>agree that the appeaI be dismissed for the reasons given in the judgment and with the orders proposed therein. For emphasis paragraph 9 of the pLaint in the Magistrates court read together with the attached notice of intention to sue, annexure "F'' to the pl'aint, in paragraph 1 (h) thereof ends with the averment that: - 25

The value of the subject matter of the suit, genera[ damages and costs of the suit is approximateLy Uganda shitlings 100,000,000/=.

<sup>I</sup>therefor concur that the pteadings disctose that Magistrates court had no pecuniary .lurisdiction to hear the suit and I have nothing usefuI to add

Dated at Kampal.a tne5tav or Ltr- <sup>2922</sup>

fls opher Madrama

Justice of Appeal,

#### THE REPUBLIC OF UGANDA

### IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

(Coram: Cheborion Barishaki, Stephen Musota & Christopher Madrama, JJA)

#### CIVIL APPEAL NO.124 OF 2013

#### <table> OPIO DANIEL::::::::::::::::::::::::::::::::::::

#### **VERSUS**

#### 1. OTAKA VINCENT

#### 2. LIRA MUNICIPAL COUNCIL::::::::::::::::::::::::::::::::::::

(Appeal from the judgment of Byabakama, J (as he then was) in the High Court of *Uganda at Lira in Land Civil Suit No. 74 of 2009 dated 24<sup>th</sup> January, 2013)*

#### **JUDGMENT OF CHEBORION BARISHAKI, JA**

I have had the benefit of reading in draft the judgment in this Appeal prepared by my brother Stephen Musota, JA and I agree with him that the Appeal succeeds in part. Clearly the Civil Suit exceeded the pecuniary jurisdiction of the Chief Magistrate who ought to have dismissed it and since he failed to do so, the appeal arising from those proceedings cannot succeed and has to be dismissed.

Since Madrama, JA also agrees, this Appeal is dismissed with each party bearing its own costs.

It is so ordered.

Dated at Kampala this $\frac{1}{\sqrt{2}}$ $\dots$ day of $\dots$

Cheborion Barishaki

**JUSTICE OF APPEAL**

$1$ | Page