Susan Byenkya v Byaruhanga Efurazia (Revision Application No. 5 of 2021) [2022] UGHC 42 (8 November 2022)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT FORT PORTAL. **REVISION APPLICATION NO. 005 OF 2021** (ARISING FROM FPT – 00 – CV – MC 04 OF 2019) SUSAN BYENKYA ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

BYARUHANGA EFURAZIA :::::::::::::::::::::::::::::::::::

# BEFORE HON, JUSTICE VINCENT WAGONA RULING

#### Introduction:

This Application was brought under Section 33 of the Judicature Act, Sections 83 and 98 of the Civil Procedure Act and Order 52 Rules 1, 2 and 3 of the Civil Procedure Rules seeking orders that:

(a) The order of the Chief Magistrate quashing the proceedings, 15 judgment and orders of the L. C. II Court of Kasusu Ward, South Division, Fort Portal Municipality, Kabarole District be revised and set aside.

(b) The judgment and orders of the L. C. II Court of Kasusu Ward,

Southern Division, Fort Portal Municipality, Kabarole District be executed.

(c) Costs of this application be provided for.

#### The History:


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The Applicant filed Case No. 1/Oct/2019 against the Respondent in the LC2 Court of Kasusu Ward, South Division, Fort-portal Municipality where he was complaining of being blocked from developing his land located at Kasusu B by the Respondent and the LC2 Court handled the case. The LC2 Court after full

trial inter-party, declared the applicant the rightful owner of the said land and it $\overline{5}$ was directed that she was at liberty to continue with her planned activities.

The Respondent herein after losing the case first wrote a complaint dated 18<sup>th</sup> October 2019 to the Chief Magistrate of Fort-portal through M/s Kayondo & Atuhaire Advocates stating that the proceedings of the LC2 Court were null and 10 void *ab initio* citing Sections 11 (1) and 32 (2) (a) of the Local Council Courts Act, 2006 and the case of Suleiman Etegu v. Igonu Majuma & 2 Ors, Soroti High Court Revision Cause No. 11/2009 for the position that the law only vests the LC2 Court with appellate jurisdiction, but no power whatsoever over original cases; that the High Court had strictly emphasized this position in that 15 case

The Respondent herein later filed Miscellaneous Cause No. 004 of 2019 in the Chief Magistrate's Court of Fort-portal through M/s Kayondo & Atuhaire Advocates seeking an order of court to set aside the judgment and proceedings 20 of the LC2 Court on the grounds as stated in the Notice of Motion that: (i) The proceeding of the LC2 Court between the parties was insufficient in law, followed a wrong procedure and should have been commenced in the LC1 Court; (ii) That it is in the strong interests of the substantive justice of the matter that the Applicant be granted protection from the illegal attempt of the 25 Respondent to undermine her rights. The Notice of Motion was supported by


affidavit of the Applicant whose gist was that the LC2 Court, based on the provisions of Sections 11 (1) and 32 (2) (a) of the Local Council Courts Act 2006, lacked original jurisdiction to handle a land dispute.

Miscellaneous Cause No. 004 of 2019 was filed in court on 31<sup>st</sup> October 2019. $\overline{S}$ On 27th November 2019, a letter was filed by M/s Kayondo & Atuhaire Advocates, informing the Chief Magistrate that Mr. T. Atuhaire who was having personal conduct of the matter could not attend court as he was indisposed. The same letter appeared to present submissions in the matter in contending that the Kasusu LC2 Court Judgment was void for illegality as per Sections 11 (1) and 10 32 (2) (a) of the Local Council Courts Act, 2006 and citing the case of Suleiman Etegu v. Igonu Majuma & 2 Ors, Soroti High Court Revision Cause No. 11/2009 for the position that the law only vests the LC2 Court with appellate jurisdiction, but no power whatsoever over original cases; that the High Court had strictly emphasized this position in that case. 15

By letter of 13/11/2019, the Chief Magistrate summoned the parties to appear before his Chambers on 20<sup>th</sup> November 2019. According to the affidavit of Susan Byenkya, when the parties reported, the Chief Magistrate told the parties that he would read through the record of the LC2 Court and make his decision.

The Chief Magistrate His Worship Kaggwa John Francis then issued an order on 22<sup>nd</sup> January 2020 quashing and setting aside the judgment and proceedings of the LC2 Court for want of jurisdiction and advised the parties to file a fresh suit in a court with competent jurisdiction preferably the Fort-portal Chief Magistrate's Court.

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Whereas the Order of the Chief Magistrate dated 22<sup>nd</sup> January 2020 states that the application came up on 22<sup>nd</sup> January 2020 for hearing in the presence of Counsel Ahabwe James for the Applicant and in the presence of both parties. according to the affidavit of Susan Byenkya, when the parties reported in 5 response to the letter of the Chief Magistrate inviting them to attend court, the Chief Magistrate had told the parties that he would read through the record of the LC2 Court and make his decision; and that on 22<sup>nd</sup> January 2020. the Respondent in the Application that was before the Chief Magistrate, was told at Court that the Proceedings and Judgment of the LC2 Court had been quashed and set aside simply because the dispute was handled by the LC2 Court. Indeed 10 in the present Application, none of the parties cites or refers to any content of the proceedings or ruling of the Chief Magistrate of 22<sup>nd</sup> January 2020.

The Applicant herein being aggrieved by the Orders of the Chief Magistrate made on 22<sup>nd</sup> January 2020, filed this Application seeking orders of court 15 revising the orders made by the Chief Magistrate in Miscellaneous Cause No. 4 of 2019. The grounds of the application are that:

- 1. The Chief Magistrate exercised his jurisdiction illegally and with material irregularities. - 20 - 2. The LC2 Court of Kasusu Ward South Division, Fort-portal Municipality, Kabarole District had jurisdiction to handle land disputes. - 3. The Chief Magistrate has jurisdiction in matters regarding the execution of the Local Council Courts Judgment Orders and decisions.

4. That it is just, fair and equitable that this Application is allowed.


# **Representation:**

M/s Ngamije Law Consultants & Advocates represented the Applicant while M/s Kayondo & Atuhaire Advocates represented the Respondent. Both Counsel filed written submissions which I have considered together with their pleadings.

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## Issues:

Two issues were framed by Counsel for resolution:

- 1. Whether the Chief Magistrate exercised his jurisdiction illegally and with material irregularities. - 2. What remedies are available to the parties?

Issue One: Whether the Chief Magistrate exercised his jurisdiction illegally and with material irregularities.

#### **Applicant's Submissions:** $15$

Counsel for the Applicant submitted that Section 83 of the Civil Procedure Act empowers the High Court to call for the record of any case which has been determined by any magistrate's court where it appears that the court exercised jurisdiction not vested in it by law or where it failed to exercise jurisdiction vested in it or where it exercised the same illegally or with some material 20 illegality or injustice to revise the same and make orders as it thinks fit. That this can only be done after giving the opposite party a right to be heard. Counsel argued that the procedure adopted by the Respondent's Counsel which was by way of a letter and sanction by the Chief Magistrate was illegal and did not conform to the dictates of Section 19 of the Civil Procedure Act. Counsel 25

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further argued citing the decision of the Hon. Justice Stephen Mubiru in Uganda Telecom Limited Vs. Adratere Orseste. Misc. Appn. No. 0021 of 2015 that original jurisdiction to handle land matters is vested in the LC2 Courts and not LC1 as suggested by the Chief Magistrate and argued that the Chief Magistrate exercised the jurisdiction vested in him illegally and with material irregularity when he set aside the judgment of the LC2 Court for want of jurisdiction. He thus asked court to be pleased to allow this Application.

## **Respondent's Submissions:**

- In response Counsel for the Respondent argued that the Chief Magistrate rightly $10$ found that the LC2 Court had no jurisdiction as a court of first instance. He relied on the case of Kemish Ibrahim Vs. Dima Dominic PoruRev. Cause No. 16 of 2015 where the Hon. Justice Stephen Mubiru held that LC2 Courts only have appellate jurisdiction as per Section 11 of the Local Council Act. That the decision of Hon, Justice Mubiru in UTL Vs. Oretse Adratere, Revision 15 Application No. 21 of 2015 was decided wrongly and the error was later corrected by the Hon. Justice Mubiru in the subsequent decision of Kemis (supra). Counsel relied on the decision of Hajji Seilman Etegu Vs. Igonu Majuma & 2 others, Misc. Application No. 11 of 2009 where court drew a distinction between the Local Council Courts Act and the Land Amendment Act 20 and it was held that the applicable law to Local Council Courts is the Local Council Courts Act of 2006 that came after the Land Amendment Act of 2004 that vested jurisdiction to try matters in the LC1 court as a court of first instance. Counsel thus submitted that LC2 Courts only have appellate jurisdiction and not jurisdiction to try matters as a court of first instance. He 25 - asked court to dismiss the application with costs.

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## Consideration of the issues by Court:

The Application was brought under Section 33 of the Judicature Act, Section 83 and 98 of the Civil Procedure Act and Order 52 Rules 1, 2 and 3 of the Civil Procedure Rules

Section 83 of the Civil Procedure Act in providing for Revision 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, 15

> the High Court may revise the case and may make such order in it as it thinks fit; but no such power of revision shall be exercised—

> (d) unless the parties shall first be given the opportunity of being heard: $\alpha$ r

(e) where, from lapse of time or other cause, the exercise of that power 20 would involve serious hardship to any person."

Section 33 of the Judicature Act relating to general provisions as to remedies states as follows:

"The High Court shall, in the exercise of the jurisdiction vested in it by the Constitution, this Act or any written law, grant absolutely or on such


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terms and conditions as it thinks just, all such remedies as any of the parties to a cause or matter is entitled to in respect of any legal or equitable claim properly brought before it, so that as far as possible all matters in controversy between the parties may be completely and finally determined and all multiplicities of legal proceedings concerning any of those matters avoided."

Section 98 of the Civil Procedure Act in providing for savings of inherent powers of court states as follows:

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"Nothing in this Act shall be deemed to limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court."

Order 52 Rule 1 of the Civil Procedure Rules states that: All applications to the

- court, except where otherwise expressly provided for under these Rules, shall be $15$ by motion and shall be heard in open court. Rule 2 provides that: No motion shall be made without notice to the parties affected by the motion; except that the court, if satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order ex - parte upon such terms as to costs or otherwise, and subject to such undertaking. 20 if any, as to the court may seem just, and any party affected by the order may move to set it aside. Rule 3 provides that: Every notice of motion shall state in general terms the grounds of the application, and, where any motion is grounded on evidence by affidavit, a copy of any affidavit intended to be used

shall be served with the notice of motion. 25

 Courts overtime imposed a strict application of Section 83 of the Civil Procedure Act appearing to limit it to jurisdiction alone. In this regard, it has been observed by court in different decisions that where court had the jurisdiction to try a matter and arrived at a finding of law or fact, then a party cannot move the High Court under Section 83 on account that the jurisdiction was exercised with illegality or material irregularity. In Amir Khan VS Sheo Baksh Singh (1885) 11 CA 16, A 237, a Privy Council case, it is settled that, "where a Court has jurisdiction to determine a question, it cannot be said that it acted illegally or with material irregularity because it has come to erroneous

decision on the question of fact or even law." (see also Sentamu Jamilu & 2 $10$ others Vs. Sekatawa Haruna, Civil Revision No. 21 of 2018). [Emphasis addedl

The application of the above position of case law appears to limit the application of Section 83 of the Civil Procedure Act to only those instances 15 where a magistrate's court exercised a jurisdiction not vested in it in law or failed to exercise a jurisdiction so vested, tending to disregard written statute law expressly stated in the case of our law in Section 83 (c) of the Civil Procedure Act that allows the High Court in Revision to also address instances where the magistrate's court is alleged to have acted in the exercise of its $20$ jurisdiction illegally or with material irregularity or injustice. In Uganda, the development of our case law tends to support the view that the High Court if after consideration of the record of the magistrate's court, finds some irregularities or illegalities that occasioned a miscarriage of justice, Section 83 can be invoked by the High Court to cure those illegalities and irregularities. 25

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In Misc. Application No. 0021 of 2015, Uganda Telecom Limited Vs. Adratere Oreste, the Hon. Justice Stephen Mubiru noted that:

"revision entails a re-examination or careful review for correctness or improvement of a decision of the magistrate's court after satisfying oneself as to the correctness, legality or propriety of any finding, order or any other decision and the regularity of any proceedings of a magistrate's court. It is a wide power exercisable in any proceedings in which it appears that an error material to the merits of the case or involving a miscarriage of justice occurred". [Emphasis added]

The Court of Appeal in Civil Appeal No. 190 of 2013, Kibalama Mugwanya Vs. Butebi Investment Enterprises Ltd, observed at page 7 thus:

Section 83 of the Civil Procedure Act gives the High Court power to revise the case which has been called for Revision on ground that the court appears to have exercised jurisdiction not in it in law, or failed to exercise jurisdiction so vested; or acted in the exercise of its jurisdiction illegally or with material irregularity or injustice. Upon such revision having taken place, the High court has discretion to make such order as it thinks fit however no such power of Revision shall be exercised unless the parties are given opportunity of being heard unless where from the lapse of time or some other cause the exercise of that power would involve serious hardship to any person.

In the case of Hitila v Uganda [1969] E. A 219, the Court of Appeal of Uganda held that in exercising its power of revision, the High Court could use its wide 25


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powers in any proceedings in which it appeared that an error material to the merits of the case or involving a miscarriage of justice had occurred.

In the case of Matembe vs Yamulinga [1968] E. A 643, Mustafa J held that: " it will be observed that the section applies to jurisdiction alone, the irregular $5$ exercise or non exercise of it, or the illegal assumption of it. The Section is not directed against conclusions of the law or fact in which the question of jurisdiction is not involved". [Emphasis added]

- The courts in the above cases sanctioned the wide power of the High Court in $10$ Revision to address issues of want of jurisdiction and failure to exercise a jurisdiction, as well as whether the jurisdiction was exercised illegally or with material irregularity or injustice. It is further confirmed that after the High Court examining the entire record of the magistrate's court in Revision, it has the - discretion to make such orders as it thinks fit. It is therefore my understanding 15 that even where the magistrate's court had jurisdiction, where the jurisdiction is found to have been exercised with material irregularity or illegality or injustice. the High Court has the power in Revision to examine the legality, correctness and propriety of the decision made and where it is found that the jurisdiction - was exercised illegally or with material irregularities or injustice which cannot 20 be left to stand in the interests of justice, the High Court can revise the case and make orders that it deems fit. Additionally, I am convinced that Section 33 of the Judicature Act and Sections 83 and 98 of the Civil Procedure Act when read together, empower the High Court to provide remedies that meet the ends of - justice, prevent abuse of the process of the court, and avoid multiplicity of 25 proceedings.

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The contention before me is whether the Chief Magistrate rightly found that the LC2 Court lacked the requisite original jurisdiction as a court of first instance.

In Nalongo Burashe Vs. Kekitiibwa Mangadalena, Court of Appeal Civil Appeal No. 89 of 2011, which decision was delivered on 10<sup>th</sup> November 2014, $\mathbf{S}$ the Court of Appeal agreed with the proposition of the law as set out by the learned Hon. Lady Justice Kigundu Jane (High Court Judge as she then was) where she had observed and held as follows at Pages 3-4 of her ruling:

"As far as this court is concerned, the main issue to be decided upon is the issue of jurisdiction of the LC 11 court."

Learned counsel Baryajunwa argued that an LC 11 court has no original jurisdiction in Civil matters. He quoted S. 30 and S. 32(2) of the local council Courts Act. Act 13/2006. He submitted that S.32 (2) gives Lc courts powers to handle matters arising from cases and causes from LCI courts. That this section only confers jurisdiction to LC 11 courts as appellate courts.

Learned counsel Mr. Mulindwa Fredrick did not address this issue. Court has taken note and has this to say. The matter in this case arose 21.12.2008. The applicable law therefore is the Land Act, (Cap227), and the Land (Amendment) Act, Act 1 of the 2004 and the Local Council courts Act, Act 13 of 2006.

S. 50(1) of the local council Act, Act 13 of 2006 repealed the Executive Committees (Judicial Powers) Act (Cap 8)."

S. 30 of the Land (Amendment) Act, 2004 introduced S. 76 A of the land Act which states that ".... The Parish or Ward Executive Committee


courts shall be the courts of first instance in respect of Land disputes". It therefore follows that these two pieces of legislation removed the legal jurisdiction from a village executive committee court to try and determine land disputes. My opinion is that the court of first instance in respect of Land disputes is the Parish or ward executive committee court and NOT the village executive Committee court.

In dismissing the application for execution, this court is not sure which law the Chief Magistrate relied on. May be relied on the argument of counsel.

The applicant brought this application to this court for orders nullifying the orders of the LC 11 court on the ground that the LC 11 court had no original jurisdiction to try a Civil matter. This court finds that in cases of Land, the LC 11 court has original jurisdiction to hear and determine Land matters.

In conclusion, this court has no choice but to dismiss the application herein with costs and it is hereby so ordered." [Underlining added].

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I agree with the decision of the Court of Appeal which is binding on me.

In this case, I have considered Miscellaneous Cause No. 4 of 2019 filed in the Chief Magistrates Court at Fort Portal by the Respondent herein which was determined by the Chief Magistrate on 22<sup>nd</sup> January 2020. It was purely about 25 the jurisdiction of the LC2 Court of Kasusu Ward, South Division, Fort Portal Municipality to handle the land case at hand as a court of first instance. The

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Learned Chief Magistrate set aside the decision of the LC2 Court of Kasusu on the sole basis that the LC2 Court lacked the required original jurisdiction to try the land dispute between the parties as a court of first instance. This court finds that the LC2 Court had original jurisdiction to hear and determine land matters

in the circumstances of this case. As such, the LC2 Court of Kasusu Ward, $5$ South Division, Fort Portal Municipality had jurisdiction to handle the land case at hand as a court of first instance.

In my view the Chief Magistrate did have the jurisdiction to entertain Miscellaneous Cause No. 004 of 2019. However, it appears from the lack of $10$ formal proceedings and the lack of a formal ruling by the Chief Magistrate, that the learned Chief Magistrate did not pay attention or adequate attention and care that was legally expected or required of him to satisfy himself as to the correctness, legality or propriety of his own findings, decision or orders and the regularity of his own proceedings or indeed those of the LC2 Court that were $15$ before him; as such, I find that the learned Chief Magistrate acted in the exercise of his jurisdiction illegally, with material irregularity and injustice, resulting in errors material to the merits of the case and involving a miscarriage of justice that was caused to the Applicant herein.


Furthermore, there is no evidence on record to show that when the Respondent herein filed Miscellaneous Cause No. 004 of 2019 in the Chief Magistrate's Court, the Applicant herein was served with that application and given an opportunity to respond and be heard. All that is on record is that by letter of 13/11/2019, the Chief Magistrate summoned the parties to appear before his Chambers on 20<sup>th</sup> November 2019. According to the affidavit of Susan


Byenkya, when the parties reported, the Chief Magistrate told the parties that he would read through the record of the LC2 Court and make his decision. There is also a letter of 24/10/2019 where the Chief Magistrate wrote to Kasusu LC2 Court copying in the Applicant herein, calling for their case file in the matter

- with a reason that he had received a complaint and needed to peruse the file. $5$ The Applicant herein in reply, wrote to the Chief Magistrate on 5<sup>th</sup> November 2019 submitting relevant documents and requesting the Chief Magistrate to make a locus-visit to the suit-land. There is no evidence that the Applicant herein was ever given an opportunity to be formally heard on the matter in response to Miscellaneous Cause No. 004 of 2019 that had been filed in the $10$ - Chief Magistrate's Court by the Respondent herein. I find that that by taking a decision affecting the rights of the Applicant herein without according her the opportunity to be heard, the Chief Magistrate exercised jurisdiction improperly and irregularly.

Based on the foregoing, I find that the learned Chief Magistrate acted in the exercise of his jurisdiction illegally, with material irregularity and injustice when he set aside the judgment and proceedings of the LC2 Court for want of jurisdiction. I thus set aside the orders of the Chief Magistrate in Miscellaneous Cause No. 4 of 2019 dated 22 January 2020.

Issue Two: Remedies.

I allow this application with the following orders:

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- (a) That the orders of the Chief Magistrate in Miscellaneous Cause No. 4 of 2019 dated 22<sup>nd</sup> of January 2020 are hereby set aside. - (b) The judgment of the LC2 Court was legal since it was passed by a court with the requisite original jurisdiction to handle the land dispute and the same shall remain binding unless set aside by a competent court. - (c) The Respondent is at liberty to apply for execution of the judgment of LC2 Court of Kasusu Ward, South Ward, Fort-portal Municipality in a court competent to order such execution.

(d)Each party shall bear their own costs.

15 I so order.

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Vincent Wagona

High Court Judge

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