Rwakaino v Kakuru & Another (Civil Revision 16 of 2023) [2024] UGHC 379 (29 May 2024)

### IN THE HIGH CoURT OF UGANDA AT MBARARA THE REPUBLIC OF UGANDA HCT-05-CV-CR-0016-2023

(Arising from MBR-00-CV-MA-0027-2022) (Arising from MBR-00-CV-LD-0027-2016)

#### MARGRET RWAKAINO VERSUS APPLICANT

## 1. KAKURU CHARLES

#### 2. TUMUSIIME ELIAS : BEFORE: HON LADY JUSTICE JOYCE KAVUMA RESPONDENTS

### RULING

### Introduction.

[] By a notice of motion dated 22nd March 2023. Margret Rwakaino (hereinafter referred to as the Applicant), sought for orders that the ruling and orders of court in MBR-O0-CV-MA-0027-2022 be revised and set aside: that the proceedings and orders of the Chief Magistrate in MBR-00-CV-LD-0027-2016 be set aside and costs of the application and in the court below be provided for.

## Background.

[2] The factual background of the application is ably stated in the body of the application and an affidavit sworn by Margaret Rwakaino the Applicant. The Applicant contends that she is the Defendant in MBR-00-CV-LD-0027-2016 in which the Respondent seeks orders that she be found a trespasser, an eviction and permanent injunction order be issued against her and damages. That during the hearing of MBR 00-CV-LD-0027-2016, she filed MBR-00-CV-MA-0027-2022 in which

she challenged the pecuniary jurisdiction of the trial Magistrate since the property in question was valued at UGX 420,000,000/=.

The trial Magistrate heard and determined that he did not have the requisite pecuniary jurisdiction to hear MBR-00-CV-LD-0027-2016 stating further that:

> "Since I do not have jurisdiction to determine whether the claim falls under section 207)(a) of the MCA, I hereby direct that the file be placed before the Chief Magistrate for further management.

The Applicant contends that the learned trial Magistrate did not have jurisdiction to give such further orders regarding MBR-00-CV-LD 0027-2016 other than dismissing it. That by ordering the file to be placed before the Chief Magistrate, he did not act judiciously.

The Applicant further deposed that when the Chief Magistrate heard and determined the question of jurisdiction, he concluded that he had pecuniary jurisdiction to hear MBR-00-CV-LD-0027-2016 and made further orders that the parties file joint scheduling memoranda and witness statements. According to the Applicant, the learned trial Chief Magistrate also lacks pecuniary jurisdiction to hear the matter.

[3] In an affidavit deposed to by Kakuru Charles the 1\* Respondent, it was contended that the learned Chief Magistrate is vested with jurisdiction to hear the matter since it was for trespass. That the learned trial Magistrate Grade one was correct to place the file before the Chief Magistrate having judiciously ascertained that he had the jurisdiction since the matter was filed in the Chief Magistrate's Court.

That the suit land was not valued at UGX 420,000,000/= because the Applicants in their plaint were not claiming the whole land. That by the Magistrate Grade One not having jurisdiction, it did not oust the jurisdiction of the Chief Magistrate.

In rejoinder, the Applicant contended that any orders emanating $[4]$ from a court that has no jurisdiction over the matter is a nullity and of no legal consequence and the court without pecuniary jurisdiction can only dismiss the suit and not refer the suit that has already been heard.

#### Representation.

The applicant was represented by M/s Asingwire & Kakuru $[5]$ Advocates while the Respondents were represented by M/s Ahimisibwe & Agaba Co. Advocates. Both counsel in the matter filed written submissions which I have considered.

### Analysis and decision of court.

[6] The jurisdiction of this court to revise decisions of the subordinate $\mathbb{S}$ courts is provided for under Section 83 of the Civil Procedure Act. The **Section** provides as follows;

> "The High court may call for the record of any case which has been determined under this Act by any Magistrate's court and if that court appears to have;

> Exercised a jurisdiction not vested in in law it $\overline{a}$ $\mathcal{S}\mathcal{O}$ vested *Jurisdiction exercise* $\overline{a}$ *Failed* to $\overline{b}$ c) Acted in the exercise of its jurisdiction illegally or with

material irregularity or injustice, The High court may revise the case and may make such order in it as it thinks fit"

In the case of Mabalaganya vs Sanga (2005) E. A 152, it was held that; in cases where High Court exercises its Revisional powers, its duty entails examination of the record of any proceedings before it for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, order or any other decision and the regularity of any proceedings before the Magistrate court.

Therefore, decisions are revised when the trial Magistrate fails to exercise his or her Jurisdiction or where he or she acts illegally or with material irregularity or unjustly. In an application for revision, one has to prove that the judicial officer acted without jurisdiction, or failed to exercise the jurisdiction so vested or acted illegally, irregularly or unjustly

[7]lt therefore follows that Section 83 of the Civil Procedure Act can only be invoked when or if it appears that the lower Court acted in the exercise of its jurisdiction illegally or with material irregularity or injustice.

In the case of Matembe vs Yamulonga (1968) 1 EA 643. court held that:

"Revision applies to jurisdiction alone, the irregular or non exercise of it, or the illegal assumption of it. The section is not directead against conclusions of law or fact in which the question of jurisdiction is not involved." [Emphasis mine]

[8] The gravamen of this application from the pleadings and submissions of both parties can in my considered opinion be summarized in the following issue:

1. Whether the learned trial Magistrate who handled MBR-00 CV-MA-0027-2022 had jurisdiction to forward MBR-00-CV LD-0027-2016 to the learned Chief Magistrate for further management.

# Whether the learned trial Magistrate who handled MBR-00-CV-MA-O027 2022 had jurisdiction to forward MBR-00-CV-LD-0027-2016 to the learned Chief Magistrate for further management.

[9] The brief facts under this issue as can be deducted from the pleadings before me are that MBR-00-CV-LD-0027-2016 was filed in the trial court on 24th May 2016 in the Chief Magistrate's Court of Mbarara at Mbarara. The matter was allocated to a Magistrate Grade One at the same station. During the pendency of the suit, the Applicant herein filed MBR-00-CV-MA-0027-2022 in which she challenged the pecuniary jurisdiction of trial Magistrate Grade One. Her challenge was inter alia that the suit land was registered under the RTA and comprised in land at Rwemkoma, Rwampara, Ankole Block 2 plots 70 and 88 valued at UGX 420,000,000/= beyond the jurisdiction of the learned trial Magistrate. She prayed for the suit to be dismissed.

As I already observed, the learned trial Magistrate Grade One who heard MBR-00-CV-MA-0027-2022 found that he lacked pecuniary jurisdiction and further stated as follows;

> "Since I do not have jurisdiction to determine whether the claim falls under section 207(1)(a) of the MCA, / hereby direct that the file be placed before the Chief Magistrate for further management.

The abOve statements of the learned trial Magistrate are the crux of the instant issue.

[10] Counsel for the Applicant submits that there is no law that grants a Magistrate Grade One power to transfer the file to another Magistrate where a point of law has been raised. That such powers to transfer the file are the preserve of only the High Court. Counsel submitted further that these actions were illegal and unjust to the Applicant herein.

On the other hand, counsel for the Respondent submits, on authority of this court in Aisha Nabisere Mukamusinzi vs Muhamad Kizito (High Court Civil Appeal no. 1 of 2023), that the learned trial Magistrate Grade One exercised jurisdiction vested in him in law and the learned Chief Magistrate exercised properly jurisdiction vested in him when he handled a file forwarded to him by the Magistrate Grade One who found that he did not have jurisdiction to handle the same. The ratio decidendi for the trial Magistrate Grade One's decision to place MBR-00-CV-LD-0027-2016 before the Chief Magistrate can be traced from page 4 to 5 of his uling where he stated that:

> "From the evidence of the applicant, the suit land is registered and comprised in Ankole block 2 plot 70 and 88 alone is valued at UGX 420.000,000.

This fact was not denied by the Respondents and in particular the affidavit of the respondents. It is stated that the respondents do not laim the entire land in certificate of title comprised in plot 7 block 2 Rwampara.:.. However, this honorable court was invited to determine whether the respondent's claim falls under Section 207(2) of the MCA... To succeed in an action for trespass the plaintifs are required to prove the ingredients developed by common law and not customary law. / further agree with counsel for the applicant that the land is governed by an Act of Parliament and not customary law. It can be deduced from the above that as a Magistrate grade one, I do not have jurisdiction to hear and determine the respondents' cdaim under section 207()(b) and section 207(2) MCA.

Therefore, it renains to be determined whether the Chief Magistrates Court of Mbarara at Mbarara has jurisdiction to hear and determine the dispute under section 207()(a) of the MCA. I agree with cOunsel for the repondents that

Page 7 of 11

the allocation of court files is the duty of cOurt. Since l do not have jurisdiction to determine whether the claim falls under section 2O7(1) (a) of the MCA, I hereby direct that the file be placed before the Chief Magistrate for further management. "

[11] Jurisdiction has been defined by the Court of Appeal as the power and authority constitutionally Conferred upon Or constitutionally recognized as existing in a COurt or judge to pronounce the senternce of the law, or to award the remedies provided by law, upon a set of facts, proved or admitted, referred to the tribunal for decision, and authorized by law to be the subject of investigation or action by that tribunal, and in favour, of or against persons who present themselves, or who are brought before the court in some manner sanctioned by law as proper and sufficient. (See Elizabeth Kyomuhangi vs Uganda (Court of Appeal Criminal Appeal no. 131 of 2020 at page 6).

It follows that jurisdiction is everything to a court, without it, a court or tribunal cannot proceed to take any more step in any matter as whatever will be decided by it will merely be a nullity. (See Owners of Motor vessel Lillian "s" vs Caltex Oil Kenya Limited [1989] KLR 1).

[12] The powers to transfer suits is a jurisdiction exercisable only by the High Court as rightly submitted by counsel for the Applicant. (See Section 17 of the Civil Procedure Act, David Kabungu vs Zikarenge

## [1995] 3 KALR 48 and Kagenyi vs Musiramo and another [1968] EA 43).

In the instant case therefore, did the actions of the learned trial Magistrate grade one amount to transferring the file within the truest meaning of the word?

"Transfer of a case" is defined to mean "the removal of a case from the jurisdiction of one cOurt or judge to another by lawful authority": (See Garner, B. A., & Black, H. C. (2009). Black's Law Dictionary. 9th ed. St. Paul, MN, West at page 1636).

In Aisha Nabisere Mukamusinzi vs Muhamad Kizito (High Court Civil Appeal no. 1 of 2023), this court was faced with a similar situation as the instant one where a Magistrate Grade One forwarded a file to the Chief Magistrate for reason that the trial Magistrate lacked territorial jurisdiction to hear the matter. The court observed at page 11 of its decision as follows;

> "In regard to the Chief Magistrate, entertaining the matter. I find no fault in this as the same Chief Magistrate was caretaking Butambala at the tine which falls under the magisteial area of Mpigi therefore entertaining the petition from Mpigi did not ocasion a miscarriage of justice to either of the parties.

> It is not in dispute that the Chief Magistrate has Supervisory powers under Section 221 of the Magistrates Courts Act which is to supervise all Magistrates Courts in

hisher Magisterial area. This includes calling for and examining records of any proceedings before the lower COurts. In the instant case the Chief Magistrate, properly exercised her supervisory powers in regard to a file that was fowarded to her by a magistrate grade one wno found that she lacked territorial jurisdiction to handle the same.": [Emphasis mine]

[13] From the foregoing persuasive words of my learned brother Judge and definition above, it would therefore follow that the action of the learned trial Magistrate Grade One placing MBR-00-CV-LD 0027-2016 before the learned Chief Magistrate who had allocated the file to him for further management instead of dismissing it for want of pecuniary jurisdiction did not amount to transferring the case file a jurisdiction that could only be exercised by the High Court. The file was not transferred to another jurisdiction but forwarded to the Chief Magistrate who had allocated the file to exercise his supervisory powers over the said trial Magistrate.

[14] Access to justice is a fundamnental right guaranteed under Article 126(2) (e) of the 1995 Constitution of Uganda which requires courts while dispensing justice to administer justice without undue regard to technicalities and to proceed to trial on mnerit unless the matter before it does not disclose a cause of action. (See Attorney General vs Major General David Tinyefuza (Supreme Court Civil Appeal no. 1 of 1997 and Ismail Serugo vs Kampala City Council & Another (Suprene Court Civil Appeal no. 2 of 1998).

Furthermore, Section 98 of the Civil Procedure Act gives the court inherent power to make such orders as may be necessary for the ends of justice to be met; to intervene and issue suitable directions wherever such directions are considered necessary to do or complete justice to the parties where the court is satisfied that denial of an order of forwarding a case file from or back to the allocating Chief Magistrate will deny the litigant his/her right of access to justice.

This application is therefore without merit and is dismissed. The costs of the application shall be borne by the Applicant. I so order.

Dated, delivered and signed at Mbarara this 29th day of May 2024.

Joyce Kavuma Judge