Rwakikabuzi v Kemitana (HCT-05-CV-CR 31 of 2022) [2024] UGHC 781 (28 August 2024)


# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MBARARA HCT-05-CV-CR-0031-2022** 5 **(ARISING FROM MBR-00-CV-MA-0031-2022) (ALL ARISING OUT OF NYAKIBWERA LC1 COURT CASE OF 2020)**

**RWAKIKABUZI ELIAB ------------------------------------------------ APPLICANT**

# **VERSUS**

10 **KEMITANA NZERAMERESI --------------------------------------- RESPONDENT**

**BEFORE:** Hon. Justice Nshimye Allan Paul M.

#### **RULING**

### **REPRESENTATION**

15 The Applicant was represented by Advocate Arinaitwe Ambrose from M/s Bwatota Bashonga & Co Advocates/Solicitors, while the Respondent was represented by Advocate Lydia Ahimbisibwe from M/s Ahimbisibwe & Agaba Co Advocates.

#### 20 **BACKGROUND**

The Applicant brought this application under Sections 83 and 98 of the Civil Procedure Act Cap 71; Order 52 Rules 1, 2 & 3 of the Civil Procedure Rules and other enabling laws seeking orders for;

- a) Revision of the ruling and orders of His Worship Kabombo Andrew, the - Chief Magistrate Mbarara, delivered on 19th 25 October, 2022 in Miscellaneous Application No.0031 of 2022 arising from Nyakabwera LC1 Court case of 2020. - b) Costs of the application be provided for.

The application is supported by an affidavit deponed by the Applicant, and it is 30 opposed through an affidavit deponed by the Respondent.

# **GROUNDS**

The grounds of the application as stated in the notice of motion are;

- 1) That the Chief Magistrate acted in exercise of his jurisdiction illegally and with material irregularity or with injustice to the Applicant. - 5 2) That the Chief Magistrate while exercising his powers condoned illegality. - 3) That the Chief Magistrate while exercising his powers acted on an illegal LC1 judgment Nyakabwera Cell, Kyandahi Parish, Kagongi Sub County, Mbarara District. - 4) That the Chief Magistrate while exercising his supervisory powers over LC - 10 Courts failed to move himself as Court to revise the same for ends of justice and instead granted execution orders. - 5) That this Honourable Court has powers to revise the said ruling and orders issued by the Chief Magistrates Court on 19th October, 2022 - 6) That this Honourable Court has unlimited jurisdiction and can also revise the - 15 said LC1 judgment of Nyakabwera Cell. - 7) That the LC1 Court has no mandate to hear and determine land disputes at all. - 8) That this application has been brought timely and no hardship shall be caused to Court or anybody. - 20 9) That the applicant will endeavour that the Respondent is heard in this matter.

### **SUBMISSIONS**

The parties proceeded by filing written submissions.

### 25 **Applicant's submissions in support**

It was submitted for the Applicant that the dispute between the parties herein regards ownership of land which is not within the mandate and jurisdiction of LC1 Courts to adjudicate upon. That such jurisdiction is bestowed upon LC2 Courts by Section 76A of the Land Act 2004, and thereby, the LC1 Court decision

30 based on by the Chief Magistrate to issue execution orders in Misc. Application No.031/2022 was illegal and a nullity in law. Counsel cited **PETER MUGOYA VS JAMES GIDUDU & ANOTHER (1992) 2 HCB** for the position that no Court can sanction an illegality in form of granting consent to execute orders arising from illegal proceedings. Counsel added that if the LC1 Court judgment is left to stand, the Applicant will illegally be deprived of his land. Counsel prayed for the application to succeed.

## **Respondent's submissions**

- 5 Counsel submitted that the application does not warrant revision because the matter before the LC1 Court was a family matter and for malicious damage to property, but not a dispute over ownership of land. That the Applicant did not object to the jurisdiction of the LC1 Court as it proceeded and he duly complied with its judgment by building the house he had demolished. It was contended - 10 that one cannot approbate and reprobate and that revision is not an alternative to appeal **(see OKANA DAVID VS OCAYA ROBERT CIVIL REVISION CAUSE NO. 05 of 2022).** It was further argued that it was the Applicant who moved the LC1 Court to entertain family matters but turned around when judgment was not in his favour. Counsel further contended that revision will not be granted if it would - 15 result into hardship, and that granting this application would see the Respondent evicted from the house which was constructed by the Applicant on the orders of the LC1 Court. Counsel prayed for the application to be dismissed.

# **Applicant's rejoinder**

20 Counsel largely reiterated his earlier submissions. Counsel emphasised that a judgment from a court without jurisdiction is a nullity and can not be enforced.

### **DETERMINATION**

25 It is the law that a High Court can exercise powers of revision where it appears that a Magistrate's courts in its decision (a)exercised a jurisdiction not vested in it in law; (b) failed to exercise a jurisdiction so vested; or (c)acted in the exercise of its jurisdiction illegally or with material irregularity or injustice as is provided in section 83 of the Civil Procedure Act.

The High court exercises its revisionary power by satisfying itself as to the correctness, legality or propriety of any finding, order or any other decision of the Magistrate's Court as was stated in **MABALAGANYA V. SANGA (2005) E. A 152**.

Where a case for revision has been made out, the High Court in exercise its unlimited powers in section 98 of the Civil Procedure Act may make such orders as it thinks fit.

- 5 It is trite that Revision by the High Court under section 83 of the Civil Procedure Act (CPA) CAP 282 applies to decisions of the Magistrates court but not the decision of the Local Council Court decisions because the operative section 83 (1) of the CPA states that. - 10 "The High Court may call for the record of any case which has been determined under this Act by **any magistrate's court…….." (bold emphasis mine)** - In this application, the applicant seeking a revision of the decision of the Chief 15 Magistrate dated 19-10-2022 wherein he was handling an application for execution of a judgement of the Nyakabwera LC1 Court as provided in section 9 (3) of the Local Council Courts Act CAP 18 - This High court in conducting a revision is concerned with 20 the correctness, legality or propriety of the decision of the Magistrate's Court only.

The Chief Magistrate was legally mandated to handle Misc Application 31 of 2022 seeking to execute the judgement of the Nyakabwera LC1 Court as 25 provided in section 9 (3) of the Local Council Courts Act CAP 18. It is worth noting that even the applicant is not arguing that the Chief Magistrate cannot legally handle an application to execute a Local Council Court decision.

The Argument forwarded by the applicant is that the dispute between the 30 parties herein regards ownership of land which is not within the mandate and jurisdiction of LC1 Courts. It is the applicant's opinion that the Chief Magistrate ought to have declined to make orders of execution of the decision of LC 1 court. In my analysis of the applicant's argument, I note

- 1. The applicant did not appeal the decision of the village Local Council court as is stipulated in section 31 (2)(a) of Local Council Courts Act cap 18 - 2. The applicant did not object to the jurisdiction of the Local Council Court 5 as is stated in section 11 of Local Council Courts Act cap 18. - 3. The legal jurisdiction of the Local Council Court is provided in section 9 of the Local Council Courts Act cap 18, which states that; - "*9. Legal jurisdiction*

*(1) Subject to the provisions of this Act and of any other written law,* 10 *every local council court shall have jurisdiction for the trial and determination of—*

> *(a) causes and matters of a civil nature specified Schedule 2 to this Act;*

*(b) causes and matters of a civil nature governed only by* 15 *customary law specified in Schedule 3 to this Act;*

> *(c) causes and matters arising out of infringement of bye-laws and Ordinances duly made under the Local Governments Act; (d) matters specified under the Children Act;*

*(e) matters relating to land." ( emphasis mine)*

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The provisions of Section 9 Of the Local Council Courts Act cap 18, as well as the schedule 3 to the said Act, provide that the village local council Court can handle matters disputes in respect of land held under customary tenure and disputes concerning marriage.

The applicant did not attach the ruling of the village local council Court to its application, yet in his arguments he was addressing the same. I have perused the village local council court ruling attached as annexure A1 to the affidavit in support of the application in Mbarara Chief Magistrate Misc application 31 of

30 2022, I find that the village Local Council Court's decision dealt with non-titled land that was owned by the husband and wife. In my view this Is in line with the jurisdictional scope in Section 9 Of the Local Council Act.

Lastly the applicant in this application has argued that the village local council 35 court had no jurisdiction to handle the matter but rather it should have been the LC2 Courts by Section 76A of the Land Act 2004. I note that The Local Council Courts Act was enacted in 2006 which is after the land amendment Act of 2004 that introduced section 76A that was dealing with jurisdiction of Executive Committee Courts under the Executive Committees (Judicial Powers) Act. The

Executive Committees (Judicial Powers) Act was repealed by section 50 of the $\mathsf{S}$ Local Council Courts Act 2006. I therefore don't agree with the arguments of counsel for the applicant which are influenced by a repealed law.

I find that the learned Chief Magistrate exercised his jurisdiction legally and the applicant has not made out a case to justify revision of the learned Chief $10$ Magistrates decision in Mbarara Chief Magistrates court MA 31 of 2022.

In conclusion, I order that this application is dismissed with costs to the Respondent.

**NSHIMYE ALLAN PAUL M. JUDGE** 28-08-2024

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