Ssekito v Katumba (Revision Cause 13 of 2024) [2024] UGHCLD 236 (11 October 2024)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA **LAND DIVISION REVISION CAUSE NO. 013 OF 2024**

(ARISING FROM CIVIL SUIT NO. 06 OF 2022)

# **SSEKITO MUSA (suing through his lawful Attorney Nakibuule Fatinah) ::::::::::::::::::::::::::::::::::::**

#### **VERSUS**

KATUMBA STEPHEN ::::::::::::::::::::::::::::::::::::

# BEFORE: HON. LADY JUSTICE NALUZZE AISHA BATALA RULING.

# **Introduction;**

- 1. The applicant brought this application against the respondent under section 83 of the Civil Procedure Act Cap 282 and Order 52 rules 1,2 and 3 of the Civil Procedure Rules for orders that; - $i$ The court calls for the record and revises the orders of the Chief Magistrate Court of Kasangati in Civil Suit No.06 of 2022(formerly Nabweru CS. NO 92 of 2018) delivered on the $8^{th}$ of November 2023. Hamleyey -

- ii) That Civil Suit No.06 of 2022 (formerly Nabweru CS No.92 of 2018) and the proceedings thereof be declared a nullity and dismissed. - iii) Costs of the application be provided for.

## *Applicant's evidence;*

- 2. The application is supported by an affidavit deponed by Nakibuule Fatinah which briefly states as follows; - i) That the respondent on the 17th of July 2018 filed Civil Suit No.92 of 2018 against the applicant in Nabweru Chief Magistrates Court claiming ownership of land comprised in Kyadondo Block 124 Plot 648 which is located in Nabutaka Village Gayazza Parish, Nangabo, Kasangati town council. - ii) That the case proceeded exparte against the applicant in Nabweru Chief Magistrate Court and after the hearing of the respondent's evidence, the suit was transferred from the Chief Magistrate Court of Nabweru to Kasangati Chief Magistrate court for completion. - iii) That upon the transfer of Civil Suit No.92 of 2018 from Nabweru Chief Magistrate Court to Kasangati Chief

Magistrate Court, the said suit was given a new civil suit number vide Civil Suit No.06 of 2022.

- iv) The exparte proceedings were however set aside by the Kasangati Chief Magistrate Court and the applicant was granted leave to file his written statement of defence. - v) That in the written statement of defence that was filed, the applicant raised preliminary points of law in regards to the geographical jurisdiction of court and the legality of the transfer of the suit from Nabweru Chief Magistrate Court to Kasangati Chief Magistrate Court. - vi) That when the suit came up for hearing before the Chief Magistrate of Kasangati, the said Chief Magistrate dismissed the objections and decided to proceed with the hearing of the suit. - vii) That the suit was initially filed in Nabweru Chief Magistrate Court which did not have geographical jurisdiction over the subject matter at that time.

## *Respondent's evidence;*

- 3. The application is responded to by an affidavit in reply deponed by the respondent which briefly states as follows; - i) That the decision to transfer all matters filed in Nabweru Chief Magistrate Court was purely administrative and aimed at extending and easing access of judiciary services to the people. - ii) That the Chief Registrar has made it clear that this was an administrative decision and as the Chief Registrar of the high court, the matters were transferred legally and no technical issue should arise or be seen to deter substantive justice. - iii) That the transfer of the main suit to Kasangati was legal and therefore I shouldn't be shut out from the arena of justice.

# *Rejoinder;*

- 4. The applicant rejoined to the affidavit in reply briefly as follows; - i) That the Chief Magistrates Court of Nabweru ceased to have jurisdiction over matters arising in Nangabo the moment the Chief Magistrate Court of Kasangati was operationalized in 2017.

- ii) That ever since the operationalization of the Chief Magistrate Court of Kasangati, the Chief Magistrate Court of Nabweru has been visiting the court to hear matters within the jurisdiction of the Chief Magistrate. - iii) That the proper court in which the subject suit ought to have been filed in in the first place is Kasangati Chief Magistrate Court not the Chief Magistrate Court of Nabweru.

### *Representation;*

5. The applicant was represented by Counsel Sengendo Eric of M/S Richard Kabazzi & Partners Advocates whereas the respondent was represented by Counsel Derrick Magezi of M/S Muhumuza-Kiiza Advocates & Legal Consultants. Both parties filed their written submissions which I have considered in the determination of this matter.

#### *Issues for determination;*

i) Whether the orders of the Chief Magistrate Court of Kasangati in Civil Suit No.06 can be revised?

### *Submissions of counsel for the applicant;*

- 6. Counsel for the applicant relied on the provision of section 83 of the Civil Procedure Act which is to the effect that the high court is given powers to call for the record of any case which has been determined under the 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 jurisdiction so vested, c) acted in the exercise of its jurisdiction illegally or with material irregularity or injustice. - 7. Counsel for the applicant submitted that the high court may revise the case and may make such orders in it as it thinks fit but no such power of revision shall be exercised; a) unless the parties shall first be given the opportunity of being heard or where from the lapse of time or other cause, the exercise of that power would involve serious hardship to any person. - 8. Counsel further submitted that the main ground of this application is that the main suit was initially filed in the Chief Magistrate Court of Nabweru on the 17th of July 2018 which court

at the time was not seized with the geographical jurisdiction to entertain and try the matter and the subsequent transfer of the said suit from the Chief Magistrate Court of Nabweru which court did not have jurisdiction over the matter to Kasangati Chief Magistrate Court was illegally done without jurisdiction and with no legal effect.

9. It is the submission of counsel for the applicant that the magistrates court (magisterial Areas) instrument of 2007 which had previously conferred jurisdiction to Nabweru Chief Magistrate Court over the suit lad situate in Nangabo had since been revoked by the magistrates court(magisterial areas) instruments of 2017 which was gazetted on the 20th of January 2017 and the said instrument designated Kasangati court as a Chief Magistrate Court with jurisdiction over claims and matters arising from Nangabo in which the suit land is situate.

#### *Submissions by counsel for the respondent;*

10. Counsel for the respondent submitted that Civil Suit No.92 of 2018 was filed in Nabweru Chief Magistrate Court on the 17th of July 2018 and that the magistrates court (magisterial areas)

instrument of 2017 established the Chief Magistrate Court of Kasangati however the said court did not start operations immediately.

- 11. Counsel for the respondent submitted that the Kasangati Chief Magistrate Court started operating and accommodating the filing of civil suits sometime later after the deployment of a Chief Magistrate in 2022 and that despite being established on paper it was not yet operational. - 12. Counsel for the respondent draws reference to the letter attached on the affidavit in reply dated 5th September 2024 from the Chief Registrar which stated that *"Kasangati Chief Magistrates Court had a full-time Chief Magistrate for the first time in July 2022. Before then, subject to availability of funds enabling a Chief Magistrate to a circuit, cases of Kasangati could be heard in Nabweru………"* - *13.* Counsel for the respondent further submitted that the circumstances surrounding the case warranted the filling of the matter to Nabweru Chief Magistrate Court because the plaintiff at the time could not wait in uncertainty on how to recover his land yet all other matters from Kasangati Magisterial Area were still

being filed in Nabweru Court, counsel relied on the supreme court decision in **former employees of G4S security vs G4S security services ltd (supreme court civil appeal no.18 of 2010) at pages 14 and 15** in the judgement of SCJ Hon. Dr. Esther Kisaakye stated the following regarding established courts which are not yet operational *"……apart from the supremacy of the constitution which was discussed earlier in this judgement, it is important to note that the industrial court currently only exists in name, despite the law creating it having come into force over five and half years ago. It would, in my opinion, not be legally proper for this court to hold that persons with employment disputes cannot resort to the ordinary courts of law for justice, where the industrial court is non-existent, such a holding would leave aggrieved Ugandan employees and employers with no legal forum to see justice and peaceful resolution of their employment disputes……"*

14. On the issue of transfer, counsel for the respondent submitted that the effect of section 17 of the Civil Procedure Act is that any court on its own motion can apply to the high court to transfer a suit to another court and that it is possible for a subordinate court to apply to the high court seeking administrative intervention for transfer of a matter where the need to meet the ends of justice dictate so and that necessary legal administrative steps were taken to have this matter and the various others affected, transferred from Nabweru to Kasangati.

#### *Submissions in rejoinder;*

- 15. Counsel for the applicant submitted that the Chief Registrar in a letter dated 6th November 2023(annexure F to the affidavit in support of the application) made it clear that Kasangati Chief Magistrate Court was operationalized on 22nd of August 2017 with the Chief Magistrate of Nabweru as a visiting Chief Magistrate thereof and that the same averment is addressed in the Chief Registrar's letter attached on the respondent's affidavit in reply. - 16. Counsel for the applicant further submits that at the time of filing of the suit in issue at Nabweru, both the Nabweru Chief Magistrate Court and the then newly created Kasangati Chief Magistrates Court were presided over by the same magistrate and that couldn't in any way justify the filing of the suit in Nabweru

which had seized to have jurisdiction over cases in respect of land at Nangabo.

## *Analysis by court;*

- **17.** The High Court's power of revision is provided for under Section 83 of the Civil Procedure Act, Cap 282, which states 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 —(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…"* - 18. The applicability of the provision is strictly in specific respect to the exercise of, or the wrongful exercise of and /or the failure to properly exercise the jurisdiction so vested, by a subordinate court*. (See: Tayebwa vs. Bangonzya & Anor [1992-93] HCB 143)*

- 19. In the decision of **Mabalagnaya Vs Sanga (2005) EA 152** it was held that in cases where High Court exercises its revision powers, its duty entails examination of the record of any proceedings before it for purposes of satisfying itself as to the correctness, legality or propriety of any finding, order or any other decision and the regularity of any proceedings. - 20. Arising from the position of the law above and the holding in the above cited cases, the decisions of the lower courts may be revised when a trial magistrate is alleged to have failed to exercise his or her jurisdiction or where he or she acts illegally or with material irregularity. - 21. In the instant application, the dispute is based on the question as to whether the Chief Magistrate Court of Nabweru had the geographical jurisdiction to handle the main suit at the time it was filed whose subject matter was in Kasangati. - 22. It is not disputed that the respondent filed the main suit on the 17th of July 2018 in Nabweru Chief Magistrate Court and that the magistrates court (magisterial areas) instrument of 2017 established the Chief Magistrate Court of Kasangati.

23. I will draw reference to the letter attached onto the affidavit in support of the application from the chief registrar addressed to the applicant's lawyer dated the 6th of November 2023 with the subject of *"REQUEST TO BE ADVISED ON THE DATE WHEN THE KASANGATI CHIEF MAGISTRATES COURT BECAME OPERATIONAL WITH THE CHIEF MAGISTRATE OF NABWERU AS A VISITING CHIEF MAGISTRTATE"* The content of the letter reads as follows, *"reference is made to your letter on the above subject, "the Chief Magistrate Court of Kasangati was operationalized by magistrates court(magisterial areas) instrument, 2017. The Chief Magistrate, Nabweru started visiting Kasangati Chief Magistrate's Court after its operationalization on 22nd August, 2017.*

*24.* In another letter from the chief registrar addressed to the respondent's lawyers dated the 5th of September 2024 stated as follows *"Kasangati chief magistrate court was operationalized in 2017 but did not have a full time magistrate sitting at the court, the court had a full time chief magistrate for the first time in July 2022. Before then, subject to the availability of funds enabling a chief*

# *magistrate circuit, cases of Kasangati could be heard in Nabweru merely because both courts were presided over by the same chief magistrate"*

- 25. The reading of the two letters from the chief registrar takes me to the understanding that the Kasangati Chief Magistrate Court was operationalized on the 22nd August 2017 but without a sitting Chief Magistrate until July 2022 and at that time matters were filed at the Chief Magistrate Court of Nabweru as the custodian of the physical files of the Chief Magistrate of Kasangati. - 26. Further at the time the main suit was filed on the 17th of July 2018, the Kasangati Chief Magistrate Court did not have a sitting chief magistrate much as it had been gazzeted through the magistrate's court (magisterial area) instrument of 2017 and matters arising from within Kasangati (Nangabo) were filed in Nabweru Chief Magistrate Court. - 27. Aggrieved residents of Nangabo in Kasangati could not sit back and sleep with their land grievances then wait until the Kasangati Chief Magistrate Court had a sitting chief magistrate to enable them seek redress from the court of law, the only course of action available to such persons would be filing their claims before a

court that they see and believe to be fully operational with a sitting judicial officer.

- 28. The fact that the matters arising from Kasangati were filed in the Nabweru Chief Magistrate Court until July 2022 justifies the filing of the main suit in Nabweru chief magistrate court. - 29. This court is of the finding that the Chief Magistrate Court of Nabweru had jurisdiction to entertain the matter at the time it was filed. - 30. As to whether the later transfer of the main suit was tainted with illegalities? - 31. Upon the finding that the Kasangati Chief Magistrate Court was operationalized in 2017 but without a sitting magistrate and at that time matters were filed in the Nabweru Chief Magistrate Court. - 32. The transfer of cases to Kasangati is an act that was done administratively by the Chief Registrar of court for easy access of justice to the different litigants in the said magisterial areas. I do not find how the said transfer would be prejudicial to the applicant but instead a move to ensure that the applicant easily accesses

justice since the court was brought within the area where the subject matter of the suit was located.

33. In the result, it is to the findings of this court that the Chief Magistrate Court of Nabweru had jurisdiction to entertain Civil Suit No.006 of 2022 at the time it was filed in court and that the transfer of the same matter to Kasangati Chief Magistrate Court was purely administrative, therefore the instant application is hereby dismissed with no orders as to costs.

## **I SO ORDER.**

## **NALUZZE AISHA BATALA**

## **Ag. JUDGE**

### **11/10/2024**

## **Delivered on the 11th of October, 2024 electronically via ECCMIS.**