Sewava Ssalongo and 18 Others v Male Mukasa and 2 Others (Revision Application 34 of 2018) [2021] UGHCLD 471 (1 March 2021)

#### **THE REPUBLIC OF UGANDA**

#### **IN THE HIGH COURT OF UGANDA AT KAMPALA [LAND DIVISION]**

#### **REVISION APPLICATION NO.34 OF 2018**

#### **(ARISING FROM CHIEF MAGISTRATE COURT OF NABWERU AT KASANGATI CIVIL SUIT NO.073 OF 2013)**

**1. ERIAS SEWAVA SSALONGO**

- **2. MATHIAS MUKWAYA** - **3. JOWELI MUWONGE** - **4. PETER BUKENYA** - **5. SAM LUBWAMA** - **6. JOHN KADDU** - **7. MADA NAKIBUULE** - **8. JOSEPHINE NALWADDA** - **9. REGINA MAKWAYA** - **10. NAMANDA MARY** - **11. HENRY BAGALA::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANTS**

**12. SSEBUGWAWO IMMACULATE**

- **13. NAKITYO HARRIET** - **14. MULYANGA NANSABA OLIVIA** - **15. COSMA SEWAKILYANGA** - **16. MALE ROBERT** - **17. NAKAYIZA BEATRICE** - **18. JOVIA NAMPIMA ROBINAH** - **19. NANYONJO BETTY**

**VERSUS**

**1. RICHARD MALE MUKASA**

## **2. THE REGISTERED TRUSTEES**

# **OF KAMPALA ARCHDIOCESE**

**3. JUDE MAKANGA:::::::::::::::::::::::::::::::::::::::::::::RESPONDENTS**

## **RULING**

## **BEFORE: HON. MR. JUSTICE HENRY I. KAWESA**

This application was brought by the Applicant under **Section 83(C) & 98 of the Civil Procedure Act Cap 71, Section 17 and 33 of the Judicature Act Cap 13, and 0.52 rr1 & 3 of the Civil Procedure Rules S. I 71-1**.

The application seeks orders that:

- 1. This Honourable Court calls the file from the Chief Magistrates Court of Nabweru at Kasangati and quash the proceedings and orders that impinge on the rights to fair trial. - 2. The order granted by the Magistrate Grade one of the Chief Magistrates' Court of Nabweru at Kasangati on 21st March, 2018 be revised and set aside for being materially irregular and unjust. - 3. That the 2nd and 3rd Respondents/1st and 2nd Defendants be subjected to crossexamination by the advocates for the Applicants/3rd to 21st Defendants. - 4. The order of the costs against the Applicants/3rd to 21st Defendants of the day at Shs.30,000/- (*shillings thirty thousand)* be revised and set aside for being irregular. - 5. Costs of this revision be in the cause.

The grounds of the application are supported by the affidavit deponed to by Henry Bagala and opposed by three separate affidavits in reply of the Respondents deponed to by the Richard Male Mukasa, Jude Makanga, and Paul Zziwa.

I will first deal with the preliminary objection raised by Counsel for the 2nd and 3rd Respondent, to the effect that the application is incompetent for having been sworn by the 11th Applicant without authority from the rest of the Applicants.

In his submissions, Counsel for the Respondents argued that the affidavit in support does not indicate whether the deponent deposed to it on behalf of the rest of the Applicants. That as such, the application by the rest of the Applicants is not supported by their respective affidavits and therefore naked. Alternatively, he also argued that if the deponent deposed to the affidavit for himself and on behalf of the other Applicants, then he ought to have attached written authority and having not done so, the affidavit is defective. He supported his submission with **O.1 r8** *and Yustus Tinkasimire & Others versus the Attorney General & Dr. Malinga Stephen H. C. M. C No.35 of 2012***.**

In reply, Counsel for the Applicants argued that the deponent to the affidavit did so on his own behalf and not on behalf of others. That as such, no authority is required from the rest of the Applicants. In doing so, he relied on the case of *Ssenyimba Vincent & 2 Others versus Birikadde Peter & Another; M. A. No.378 of 2018***.** It was also his submission that the instant application is distinguishable from *Yustus Tinkasimire & Others versus Attorney General & Dr. Malinga Stephen* (*supra*), in that the case was dealing with other unnamed residents of Rwamwanja. Accordingly, he prayed that the preliminary objection be overruled.

I have heard and read the submissions of both Counsel and have addressed myself to the law. I am in agreement with Counsel for the Applicant's arguments that the deponent to the affidavit in support swore the same in his own capacity and did not purport to do so on behalf of the rest of the Applicants. For this reason, no written authority is needed.

Accordingly, the application is competent in that respect. However the rest of the Applicants did not file any affidavit in support of the application, implying that they put themselves outside the ambit of the same. The application is therefore defective in their respect.

This omission however is not fatal to the entire application and the affidavit in support of the application suffices to enable the Court hear out the Applicant. Consequently, the preliminary objection partially succeeds.

Going to the merits of the case; it is provided under **Section 83 of the Civil Procedure Act, Cap 71** that:

#### *"83. Revision*

*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:- (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, The High Court may* **revise** *the case and may make such order in it as it thinks fit.*

According to the case of *Matembe versus Yamuringa [1968] EA 643*, the above provisions apply to jurisdiction alone, the irregular exercise of or non-exercise of it or the illegal assumption of it by a Magistrate's Court.

Page **4** of **9** The section is not directed against conclusions of law or fact in which the question of jurisdiction is not involved. *See* also *Kyawo David versus Kamangire Herbert HCCR No. 01 of 2012; Opwanya Daniel versus Oodo Stephen Iporotum HCCR No.01 of 2012* and *Abiro Margaret versus Eswagu William HCCR No.9 of 2014***.** This, the 2nd and 3rd Respondents' Counsel ably submitted upon it and cited the case of *Nadiope &*

# *8 Others versus Maluku Development Association Ltd. H. C. M. A No.0073 of 2010, and Bwambale Byasaki versus Shaka Augustine H. C. M. A No.0064 of 2014***,** in support thereof.

In this case, the Applicant asserts that the Magistrate Court exercised its jurisdiction illegally or with material irregularity or injustice. The acts complained of are that the Court declined the Applicant Counsel's application to cross-examine the 2nd and 3rd Respondents; and also penalised the Applicants to costs of the day totaling to Ushs.300,000/- *(three hundred thousand)* payable before the next adjournment.

Regarding the first complaint, the record indicates that after DW1; a witness for the 2nd Respondent (*1 st Defendant in the case*) herein, Counsel for the Applicants (3rd to 19th *Defendants in the case*) sought leave to cross examine DW1 on ground that there was some information he wanted to get from the witness which had not been given in examination in chief or cross examination by Counsel for the Plaintiff. The application was motivated by the perception that the 1st Defendant was conniving with the Plaintiff thereby necessitating the need to test the credibility of co-Defendant's witnesses.

The application was denied on grounds that; there is no procedure providing for cross examination of a Defendant or his or her witness by a co-Defendant; and that Court was not guided by Counsel as regards the same.

In this case, Counsel for the Applicant argues that DW1's evidence, if taken without any cross-examination will greatly affect the interest of the Applicants. That the same would occasion an injustice of the highest degree. It is also his submission that due process requires that a party tests the evidence against him or her; and that anything that closes cross-examination is an abuse of Court process which this Court is enjoined to prevent under **Section 17 of the Judicature Act Cap 13, and Section 98 of the Civil Procedure Act Cap 71.**

In reply, Counsel for the Respondents argued that a co-Defendant has no right to cross examine a fellow Defendant or witness of that other Defendant; and that Counsel for the Applicants has cited no law to the contrary. It was his submission that the Applicants having filed a separate defence, they have the opportunity to prove their case and to even disprove the defence of the 2nd and 3rd Respondents.

In rejoinder, Counsel for the Applicant cited **Section 136(2) of the Evidence Act Cap 6,** which provides that "*the examination of a witness by the adverse party shall be called his or her cross-examination."* He then urged me to be persuaded by observations of H. N. Narayan. J in **Sri Mohamed Ziaulla versus Mrs. Sogra Begum & Anor ILR 1997 KAR 1378,** that the word adverse means "*going in contrary direction; counter action; opposing, calamitous, unprosperous etc*."

Additionally, Counsel cited the case of *Lord versus Colvin 1855, 24 LJ Ch 517, 3 Drew 222 as cited in Sri Mohamed Ziaulla versus Mrs. Sogra Begum & Anor* **(***supra***)** wherein Court observed that:

*"The learned judge in the said case after consulting all the equity, judges held that before an examiner in Chancery, one Defendant might cross-examine another Defendant's witness. The said right exists between the Respondent and co-Respondent in divorce cases provided, either is hostile to the other, for if friendly, e.g where both deny adultery, each can only be examined as the other's witness and not cross-examined. A Defendant may cross-examine his co-Defendant who gives evidence or any of his co-Defendant's witnesses if his co-Defendant's interest is hostile to his own. Therefore, the procedure that has been followed by the Courts in England and in India has not left this question in doubt. Where it is shown that the interest between the Defendants' inter-se conflict each other, the other Defendant has necessarily to be treated as an adversary and he is certainly entitled to cross-examine the other Defendant or his witness's.*

The above observations are persuasive and I certainly agree with them. My repetition is only for emphasis. Where it is shown that the interest between the Defendants' *interse* conflict each other, the other Defendant has necessarily to be treated as an adversary and he is certainly entitled to cross-examine the other Defendant or his witness.

In this case, the trial Court did not object that part of DW1's evidence was in conflict with that of the rest of the Applicants. The only fault on its part was its failure to recognise the possibility of a Defendant cross-examining a co-Defendant or his or her witness, having not been guided by Counsel.

I have had the benefit of looking at paragraphs 4, 5, 6, 7, 10, 11, 12, 13, and 14 of DW1's evidence in chief. This obviously conflicts with the Applicant's defence against the Plaintiff in the case, as regards the ownership of the suit land. As Counsel for the Applicant argued, this evidence is prejudicial to the Applicant's defence; and if left unchallenged by the Applicants, they are likely to suffer an injustice. It was, therefore, a material irregularity for the trial Court to deny the Applicants an opportunity to crossexamine DW1.

Accordingly, the first complaint succeeds.

As regards condemning the Applicants to costs of the day, I have ably reviewed the record. This indicates that when the matter was adjourned for further hearing on the 2nd of July, 2017, none of the Applicants nor their Counsel appeared. It was intimated to Court that Counsel for the Applicants had another matter before the High Court Commercial Division, but no effort was made to inform Court or Counsel for the Respondents prior. Court being aware that this was the second time the matter was adjourned at the instance of the Applicant's Counsel and it being an old case, it found it fit to condemn the Applicants to costs payable before the next adjournment.

Under **O.17 r3 of the Civil Procedure Rules,** where, on the day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed for that purpose by Order IX of these rules, or make such order as it thinks fit. The powers enshrined in these provisions are purely discretional. When the Court condemned the Applicants to costs, it was simply exercising its discretionary power, which is within the law.

It being the case, I find no illegality or material irregular or unjust in the Court's exercise of its discretionary power.

This complaint therefore fails.

Consequently, the application partially succeeds and the following orders are hereby made:

- 1. That the 2nd and 3rd Respondents/1st and 2nd Defendants be subjected to crossexamination by the advocates for the Applicants/3rd to 21st Defendants. - 2. The original trial record and this order should be returned to the trial Court for that purpose. - 3. Costs of this application to the applicant.

I so order.

……………………………

Henry I. Kawesa

## **JUDGE**

01/03/2021.

#### 01/03/2021:

Ahumuza Edward for the applicant.

Respondents (Mukwaya).

Applicants: (11th Applicant).

Court:

Ruling delivered to the above parties.

……………………………

Henry I. Kawesa

## **JUDGE**

01/03/2021.