Talemwa v Byaruhanga (Revision Application 9 of 2013) [2024] UGHC 476 (24 May 2024)

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

#### **IN THE HIGH COURT OF UGANDA AT HOIMA**

**REVISION APPLICATION NO. 009 OF 2023** (Arising from Civil Suit No. 047 of 2021)

**TALEMWA JUSTUS:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT**

#### **VERSUS**

### **BYARUHANGA GEOFREY::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

## *BEFORE: HON. JUSTICE BYARUHANGA JESSE RUGYEMA*

# **RULING**

[1] This is an application brought under **S.33 of the Judicature Act, Ss 83 (a), & (c) CPA, O.52 rr 1,2, & 3 CPR.** Seeking for order of this court to revise the order/Ruling of H/w Elijah Iradukunda, Magistrate Grade I; where he dismissed Civil Suit No. 47 of 2021 on ground that it is *resjudicata.*

## **Background:**

- [2] The Applicant as plaintiff sued the Respondent as defendant in **Civil Suit No. 047 of 2021** for trespass to land. - [3] The Applicant's case was that he acquired the suit land/kibanja measuring approximately 1½ acres situate at Kyentale – Kirindamaizi Cell, East Division, Hoima City, Hoima District through his mother a one **Specioza Kato.** The Applicant's mother had in turn acquired the suit kibanja/land way back in 1973 as first occupant. In addition, she had sued the Respondent in the LC II Court of Bucunga Parish over ownership of the suit land but the matter was completed in 2010 by way of an appeal in LC III of Buhanika Sub-county which decided the matter in favour of the Applicant's mother.

- [4] Thereafter, in 2021 after about ten years, the Respondent allegedly once again trespassed over the suit land by way of uprooting boundary marks, slashing and cutting down trees of the Applicant. As a result, the Applicant instituted **Civil Suit No.047 of 2021** in the Chief Magistrate's Court seeking among other things, a declaration that he is the rightful/customary owner of the suit land. The matter proceeded exparte for the Respondent's default to file a written statement of defence despite having been duly served with the summons to file one. - [5] When the matter was pending judgment, the Respondent filed **M. A No.03 of 2023** seeking to arrest the judgment wherein he raised among other things, that the matter was heard and determined by the Local Council Courts that had jurisdiction to handle the matter of land that is customary in nature and therefore, that it was *res-judicata.* - [6] On 13th June 2023, the trial Magistrate agreed with the Respondent and dismissed the case on ground that the case is *res-judicata.* that prior, it had been adjudicated upon by the LCIII Court.

### **Issue; Whether the trial Magistrate acted illegally or with material irregularity or with injustice in dismissing Civil Suit No.047 of 2021 for being res-judicata**

- [7] The law providing for the High Court's power of revision is provided for under **S.83 of the CPA** which provides as follows: - - *(1) 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) a*cted 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;……"

- [8] The applicability of the above provision appears clear, i.e., strictly in respective to the exercise of, or the wrongful exercise of and /or the failure to properly exercise or exercise with injustice the jurisdiction so vested by a subordinate court. - [9] In the instant case, it is not in dispute that the trial Magistrate had jurisdiction to entertain the dispute. The Applicant is relying on **S.83 (c)** that the trial Magistrate's Court acted in the exercise of jurisdiction illegally or with material irregularity or injustice. - [10] In **Mabalanganya Vs Sanga [2005]2 EA 152;** the Court of Appeal of Tanzania held that in cases where it exercises its revisional jurisdiction, its duty entails examination by the court of the record of any proceedings before the High Court for the purposes of satisfying itself as to the correctness, legality or propriety of any proceedings before the High Court. In **Munobwa Muhamed Vs UMSC, H. C Civil Revision No. 01/2006,** Court held that the parameters set by the court in **Mabalanganya (supra)** properly apply to the High Court of Uganda in its revisional jurisdiction which is set out in **S.83 of the CPA.** - [11] The powers of the High Court in revision of the proceedings of the Magistrate's Court are very wide and not limited, **Twine Amos Vs Gamusiza James H. C. Civil Revision No.11 of 2009.** - [12]In the instant case, Counsel for the Appellant correctly submitted while relying on **S.7 CPA** and the authority of **Maria Kevina Vs Kyaterekera Growers Co-op Society [1996], KALR 160** that for the doctrine of *resjudicata* to apply to any case, the essential elements which must be fulfilled are that the matter in issue must be similar or must have been directly or substantially in issue in a previous suit, the parties must be the same or other parties, but claiming from the parties in the previous suit, the court in either case must be of competent jurisdiction and matters should have been heard on merits and finally determined by the previous competent court. He concluded that the dismissal of **Civil Suit No. 047/2021,** was in error and it did not pass all the elements for it being *resjudicata,* since the parties were different and the cause of action arose at different material times.

- [13] On the other hand, Counsel for Respondent submitted that the trial Magistrate acted legally when he looked at the judgment of the LC Court and found that the matter was *res-judicata* and thereafter dismissed **C. S No. 047/2021** accordingly. That therefore, there is no ground that necessitates the revision of orders or decree of the trial court since procedurally the trial Magistrate was alive to the law and did not breach any laid procedure that required a revisional application. - [14] In this case, while the trial Magistrate was dismissing **C. S No.047 of 2021,** he observed thus; - ; *"I have looked at the judgment of the Local Council Three Court and established that there was an appeal by Respondent's [present Applicant] mother, Specioza Kato against the Applicant [present Respondent]…. The LC3 heard the matter and concluded that "Accordingly, judgment is hereby entered in favour of Appellant Specioza Kato and declared her the rightful owner of the land"* - [15] It is clear from the decision of the trial Magistrate that he was alive to the fact that the LC proceedings were between the Applicant's mother, **Specioza Kato** and the Respondent, **Byaruhanga Geoffrey.** - [16]Secondly, as per the pleading in **Civil Suit No.047 of** 2021 which were dismissed for being *res-judicata*, the cause of action was trespass to land occurred in the **Month of July, 2021,** while the previous suit before the LCs were finally decided on **22nd June 2010,** nearly after ten years. - [17] Thirdly, it is clear from the examination of the record that the Respondent did not plead *res-judicata* since he never filed any defence in **Civil Suit No. 047 of 2021.** *Res-judicata* as an estoppel is not a pure question of law but a mixed question of fact and law. It has to be specifically pleaded; See **Khristiana Chandra & Ors Vs Nilakantha Mohanty, AIR 1996 Ori 1.** *Resjudicata* is a point of law which must be pleaded or must arise by clear implication out of the pleadings so that if argued may disposal of the suit; See the principle laid down in **Mukisa Biscuit Vs West End [1996] EA 696.**

- [18] From the foregone, it is clear that the requirements of *res-judicata* under **S.7 CPA** were not met. The Applicant having acquired the suit land from his mother who had successfully litigated it against the Respondent filed **Civil Suit No. 047 of 2021** seeking a declaration that he was the rightful owner of the suit land by virtue of the status of the suit having been decreed to the Applicant's mother in the previous L. C suit. The Applicant's suit is therefore not *res-judicata* at all. - [19] In the premises, I find that the trial Magistrate's dismissal of the Applicant's suit was an error material to the merits of the case since the dismissal amounted to termination of the suit without it being concluded on its merits. The object behind **S.83(c) CPA** is to empower the High Court to prevent failure of justice. The impugned dismissal order clearly brought about a failure of justice thereby rendering it absolutely necessary for the High Court to interfere by way of revision for the purposes of securing ends of justice of the case. - [20] In conclusion, I find that the trial court in its exercise of its jurisdiction vested in it by law acted unjustly and in so doing occasioned an injustice to the Applicant whose suit was wrongfully terminated without being heard on its merits. The Application is accordingly granted with orders setting aside the dismissal order of **Civil Suit No. 047 of 2021** and it is directed that the trial Magistrate proceeds to conclude it accordingly. - [21] Costs of this application are awarded to the Applicant as the successful party.

Order accordingly.

Dated at Hoima this **24th day** of **May, 2024.**

**…………………………………… Byaruhanga Jesse Rugyema JUDGE**