Taali and 2 Others v Omonuk and Another (Revision Application 16 of 2022) [2024] UGHC 606 (4 July 2024)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MBALE **REVISION APPLICATION NO. 016 OF 2022** (ARISING FROM CIVIL SUIT NO. 18 OF 2016)

- $\overline{5}$ - TAALI DAVID - OKANYA JULIUS - :::::::::::::::::::::::APPLICANTS 3 OPOLOT DAVID ....................................

#### **VERSUS**

- OMONUK ABRAHAM 10 - **\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*** KALENZI JOHN ....................................

## BEFORE: HON. LADY JUSTICE MARGARET APINY

#### **RULING**

### Introduction

- The applicants brought this application under Sections 98 & 93 of the Civil Procedure Act, 15 Cap 71, Section 17 of the Judicature Act Cap 13, Order 52 Rules 1 & 3 of the Civil Procedure Rules, S.1 71-1 seeking orders that: - 1. The decisions and or orders of Her Worship Nantongo Sarah, Magistrate Grade 1 at Chief Magistrates Court of Pallisa at Pallisa in Civil Suit No. 018 of 2016 be revised and set aside. - 20 - 2. Costs of this application be provided for.

The grounds of the application are contained in the application and in the affidavit in support deponed by the applicants which briefly are that:

1. The applicants filed Civil Suit No. 018 of 2016 in the Chief Magistrates Court of Pallisa at Pallisa for recovery of land measuring approximately 4 (four) acres located at Kaukura- Bugolya village in Pallisa district.

2. The applicants are the sons and beneficiaries in the estate of the late Pyei Emmanuel and thus acquired the suit land from the late Pyei Emmanuel by way of inheritance.

- 3. The late Pyei Emmanuel passed on in 2003 way back when they were all still of minority age and as a result the suit land was put in the care and or hands of the defendants herein who held the same in trust for them. - 4. The trial magistrate at the time of hearing the matter did not consider that the suit land being litigated upon by the parties in Civil Suit No. 018 of 2016 was or is trust property. - 5. During the trial, the trial magistrate admitted the Sales agreement presented by the defendants as proof of purchase of the suit land and the applicants were not allowed to cross-examine the defendants on the same. - 6. The 1st defendant/ respondent's evidence was considered and admitted in court without the applicants being allowed to cross-examine him. - 7. The trial magistrate having denied the applicants the opportunity to cross-examine the defendants/ respondents proceeded to base on the unchallenged evidence of the respondents in arriving at the conclusion that the suit is barred by limitation. - 8. The applicants were advised by their lawyers of M/s Ekirapa & Co. Advocates that the trial magistrate acted with material illegality and injustice when she denied them their right to cross-examine the 1st respondent/ defendant then and thus based on the same to rule in favour of the respondents. - 9. They were advised by their lawyers of M/s Ekirapa & Co. Advocates that they have a right to cross-examine the opposite party at the time after he had testified in court since they were not represented at that time. - 10. The applicants were further advised by their lawyers that having been denied the right - to cross-examine the 1st respondent/defendant at the time of hearing the matter

indicates that the applicants were not accorded a fair hearing as enshrined in the constitution.

11. The applicants were advised by their lawyers that being denied to cross-examine the opposite party at the time of hearing the matter is a total abuse of the rules of natural justice.

The respondents opposed the application through an affidavit deposed by the 1st respondent who deposed the same on his behalf and on behalf of the 2nd respondent wherein he contended that the application is misconceived and off target and the affidavit is fraught with falsehoods and misrepresentations.

- The 1st respondent averred that in 1968 he purchased four gardens of land at a consideration 60 of about UGX 700/= from Taali s/o Mupyei and a Sales agreement was drafted and executed. Taali begot a son Kanya who begot Pyei Emmanuel, Piyoto and Beatrice and Pyei Emmanuel begot the applicants and therefore the applicants are the great-grandchildren of Taali. That he occupied and utilized the suit land undisturbed for 18 years when Taali died in 1986. - He contended that the application is not good in law since Civil Suit No. 18 of 2016 was 65 dismissed on a point of law of limitation of time where the appropriate recourse would have been an appeal and not a revision. He further contended that the affidavit in support of the application is materially defective for want of consent of the other applicants.

The 1st respondent averred that the applicants over assumed that cross-examination of the 2nd respondent would salvage Civil Suit No. 18 of 2016 from the point of law raised which 70 disposed of the whole suit without going to the merit. He contended that in dismissing the suit, the trial magistrate acted legally, regularly and rightly without going to the merit of the suit.

That it is just, fair and equitable that this application be dismissed with costs.

The applicants filed an affidavit in rejoinder which was deposed by Mr. Taali David on his behalf and on behalf of the $2^{nd}$ and $3^{rd}$ applicants in which he reiterated the contents of the 75

affidavit in support and averred further that at the time of filing this application, they could not extract the court order since the court file was inaccessible from court hence the failure to attach the dismissal order in Civil Suit No. 018 of 2016.

He was advised by their lawyers that the affidavit in reply is incurably defective for being verbose and argumentative which offends the rules of affidavit evidence and that he will apply to court to have the same struck off the court record.

He was advised by their lawyers that the 2nd respondent was handed the suit property to hold in trust for the applicants and there was no way the 2nd respondent could have dealt with the suit property without letters of administration. He was further advised by their lawyers that the

property in dispute was trust property for which the limitation Act does not apply and it was 85 pleaded in the plaint.

That it is in the interest of justice that this application be allowed and the orders of the lower court be revised and set aside.

#### Representation

- The applicants were represented by Mr. Obbo Alex Brian while the respondents were 90 represented by Mr. Sam Okiror Ourum together with Kisale Nicholas. When the matter came up for hearing, counsel for the respondent intimated to court that he intended to raise preliminary objections to the application and leave was granted for parties to file written submissions which were filed and have been considered by this court. - Respondents' submission 95

In his submission, counsel for the respondents raised the following preliminary objections, that the application is incompetent for failure to attach the decision sought to be revised, the revision application is misconceived, the application was served out of time without leave of court and that the Supporting affidavit is defective and fraught with illegalities, falsehoods and misrepresentations. I shall follow the order as set out by counsel for the respondents.

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## The application is incompetent for failure to attach the decision to be revised

Counsel for the respondent submitted that the applicant willfully omitted to attach to the application a decision to be revised by this court to hoodwink this court. He submitted that it is mandatory for an applicant to attach a certified copy of the decision or order to be revised. He relied on the decision in Captain Kabareebee vs Banyenzake Civil Revision No. 16 of 2013 to support his proposition and prayed that the objection be upheld and the suit dismissed accordingly.

## Revision application misconceived.

Counsel argued that Civil Suit No. 18 of 2016 from which this application emanates was determined on a point of law based on limitation of action. He submitted that there was no 110 decision entered by court on merit which would have made such a decision amenable to revision. Counsel relied on the authority of Kwayo David vs Kamanyire Herbert, HCCR No. 1 of 2012 in support. He prayed that the point of law be upheld.

## The application was served out of time without leave of court.

Counsel contended that whereas the application was filed on 16th October 2022 and sealed 115 by court on 26th October 2022, ought to have been served on the respondents by 24th November 2022, but it was only served on the respondent on 27th February 2023, about five months after it was required to be served.

Counsel submitted that orders 5 and 49 which apply to service of applications require that service of applications of this nature ought to be effected within 21 days. According to counsel, 120 the penalty for default under order 5 rule 1 (3)(a) of the Civil Procedure Rules is dismissal of the suit or the application. He relied on the authority of Edison Kanyabwera vs Pastori Tumwebaze, Civil Appeal No. 6 of 2004, [2005] 2E. A 86. He contended that having failed to effect service within time, the application is rendered bad in law. He invited this court to dismiss Misc. App. No.16 of 2022 with costs. 125

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## Affidavit in support is defective, and fraught with illegalities, falsehoods and misrepresentation.

Counsel for the respondents contended that the three applicants jointly deposed a single affidavit in support of the application contrary to the dictates of Order 19 Rule 3 of the Civil Procedure Rules which demands that the contents of affidavits ought to be confined within the deponent's own knowledge. Counsel contended further that the affidavit is incompetent and defective since it is riddled with illegalities as evidenced by the way it was drawn. He cited the case of MHK Engineering Services (U) Ltd vs MacDowell Limited, Misc. App. No. 825 of 2018. He prayed that the preliminary objections be upheld and the application dismissed.

Applicants' submission. 135

### Failure to attach the decision to be revised.

Counsel for the applicants argued that the orders sought to be revised were attached to the affidavit in rejoinder which forms part of the applicant's pleading. He relied on the case of Moses K. Katuramu vs AG HCCS No. 2 of 1985 to support his proposition that where a plaint is defective, it may be cured by a reply to the defence. He also contended that at the time of filing the suit, efforts to access the record of proceedings did not come to fruition since they were only availed with the same in October 2022.

He prayed that the objection be overruled by this court.

## Amenability of the application to Revision.

Counsel maintained that the point of law is misconceived, he argued that whereas he agreed 145 with counsel for the respondents that the trial magistrate had jurisdiction to try Civil Suit No. 18 of 2016, he contended that the trial magistrate exercised that Jurisdiction with material irregularity when she denied the applicants the opportunity to cross-examine DW2 thereby making a finding that the suit was time-barred in disregard of the applicants pleading exemption to the limitation in their plaint. 150

6 | Page He contended that the trial magistrate erroneously decided the suit on account of her failure to allow the applicants to cross-examine DW2 which to him was an exercise of jurisdiction irregularly which is amenable to revision by this court. He prayed that the objection be overruled.

#### The application was served out of time. 155

According to counsel, the application was served within time. Counsel submitted that the applicants filed the application on 14th October 2022 and the same was signed by the deputy registrar on 26th October 2022. He however contended that the failure to serve within time was due to the delay or failure of court to fix the matter for hearing on time after the Registrar had sealed the application. That the same was only served after fixing the hearing date. He 160 invited court to take judicial notice that such is a common practice by the registrar to seal applications and forward the same to the trial judge for fixing which causes delays in retrieving pleadings and effecting service. To support his proposition, he cited the case of Nabanja vs Nabukalu HCMA No. 250 of 2015.

Supporting affidavit is defective and, fraught with illegalities, falsehoods and 165 misrepresentations.

For the applicants, it was submitted that order 17 Rule 3 of the Civil Procedure Rules makes provision for matters for which the contents of affidavits may be confined. He contended that the contents of an affidavit ought to be confined to such facts as the deponent is able of his

own knowledge to prove except in interlocutory application when an affidavit may contain 170 statements of information and belief for which sources and grounds must be shown.

He contended that the contents of the affidavit in support are within the knowledge of the deponents therein save for information which sources are disclosed.

He invited court to be persuaded by the Supreme Court Practice Direction 1997, order 41 rule 2. He prayed the objections be overruled and the application determined on merit. 175

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### Determination of court.

# The application is incompetent for failure to attach the decision to be revised

Order 7 rule 14 provides thus;

"Where a plaintiff sues upon a document in his or her possession or power, he or she shall produce it in court when the plaint is presented, and shall at the same time deliver the document or a copy of it to be filed with the plaint". Emphasis added.

The above position of the law was considered in the case of Frakrudin Vallibhai Kapasi & Anor vs Kampala District Land Board HCMA NO. 570 of 2015 wherein court held that the dictates of order 7 rule 14 are mandatory and must be complied with since it goes a long way in clothing a party with *locus standi* and cause of action against the defendant or a respondent.

In view of the above, where an applicant is out to challenge an order of court by way of revision, such applicant ought to attach to his / her application a certified true copy of the order sought to be revised at the time of filing the application for revision and the same must be served on the respondent accordingly. This in my view is intended to inform the respondent

- as to which order a redress is sought from, so that the respondent is given an opportunity to 190 effectively reply to the application with full knowledge of the content of the order. In my opinion, this purpose cannot be served through filing an affidavit in rejoinder as the contents of an affidavit in rejoinder are limited to facts that controvert the facts in stated in an affidavit in reply. - This preliminary objection is therefore upheld. 195

# Amenability of the application to Revision.

Section 83 of the Civil Procedure Act provides;

"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— 200

(a) exercised a jurisdiction not vested in it in law;

(b) failed to exercise a jurisdiction so vested; or

In Matemba vs. Yamulinga [1963] EA 643 it was held that section 83 of the Civil Procedure Rules relates only to jurisdiction and the High Court will not interfere merely because a lower court allowed an application which was barred by limitation.

In the instant case, the respondents contend that the application is not amenable to revision as Civil Suit No. 018 of 2016 was dismissed on a point of law which did not require the trial 210 magistrate to subject the suit to a trial. The applicants in their affidavit deposed jointly contended at paragraph 6 that the trial magistrate admitted the sales agreement presented by the defendants as proof of purchase of the land without affording a chance to applicants to cross-examine the respondent on the same.

In her ruling on the untyped record of proceedings, the learned trial magistrate remarked that 215 "this suit is barred by limitation as per both the constitution and the limitation Act, counsel should have brought this to the attention of court but since he did not, I decline to grant him costs"

Order 7 rule 29 provides that;

"If, in the opinion of the court, the decision of the point of law substantially disposes of the 220 whole suit, or of any distinct cause of action, a ground of defence, setoff, counterclaim, or reply therein, the court may thereupon dismiss the suit or make such other order in the suit as may be just".

It follows that where a trial court believes that a suit is barred by limitation, the court is at liberty to dismiss that suit or make any orders in the suit as may be just.

It is therefore evident that the contention by the applicants that the failure of the trial magistrate to allow the applicants to cross-examine DW2 before disposing of the suit is not in any way an irregularity in the exercise of the jurisdiction vested in her however much the decision may be erroneous in law as the justice of the matter would demand.

For those reasons, the preliminary objection succeeds as far as the application is not 230 amenable to revision by the High Court.

# Application is served out of time.

It is evident from the submissions of counsel that both parties agree that the application was served out of time. It is clear from the record of court that the application was filed on 14th October 2022, and sealed on 26th October 2022 but allegedly only served on the respondent on 27th February 2023. However, whereas the applicants agree to the above position, it was

contended by counsel for the applicants that late service of the application was occasioned by the court's failure to fix the matter after endorsement by the registrar.

It is trite law that orders 49 and 5 of the Civil Procedure Rules apply to service of applications of this nature.

Specifically, order 49 rule 2 provides that;

"All orders, notices and documents required by the Act to be given to or served on any person shall be served in the manner provided for the service of summons".

For order 5 rule 1 (2) of The Civil Procedure Rules it is provided that;

"Service of summons issued under sub-rule (1) of this rule shall be effected within twenty-one 245 days from the date of issue; except that the time may be extended on application to the court,

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made within fifteen days after the expiration of the twenty-one days, showing sufficient reasons for the extension. (underlined for emphasis)"

The use of the word "shall "in my view, prima facie makes that requirement mandatory. It is meant to eliminate suits which are filed for the sake of achieving unwarranted objectives other 250 than the genuine determination of justiciable disputes and as a means of expeditiously disposing of frivolous or speculative suits. It is thus settled law that the provisions of Order 5, Rule 1 of The Civil Procedure Rules are mandatory and should be complied with strictly. (see Kanyabwera v. Tumwebaze [2005] 2 EA 86 at 93).

In my view, the argument that the court failed to fix a matter for over five months from the date 255 it was sealed by the registrar does not suffice as this court is alive to the decision in Kananura Andrew vs Kaijuka Henry SCCR No. 15 of 2016 to the effect that litigants/parties are duty bound to exercise vigilance to ensure that their suits are effectively prosecuted to the logical end. I entirely agree with the above authority and find the applicant's arguments unsustainable. 260

The preliminary objection therefore succeeds.

Considering that the above three preliminary objections are answered in the affirmative, I do not think it is necessary for me to converse the 4th preliminary objection since it will not salvage this suit from a dismissal.

This application is hereby dismissed with costs. 265

I so order.

Dated at Mbale, this 4th day of July 2024.

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