Wamoka v Wandulu (Miscellaneous Application 62 of 2024) [2025] UGHC 7 (15 January 2025)

## THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT MBALE

# **MISCELLANEOUS APPLICATION NO. 62 OF 2024**

#### (ARISING FROM CIVIL SUIT NO.53 OF 2016)

#### **..................................... WAMOKA PETER ::::::::::::::::::::::::::::::**

## **VERSUS**

**WANDULU NICHOLAS ::::::::::::::::::::::::::::::::::::**

# BEFORE HON. JUSTICE LUBEGA FAROUQ

### **RULING**

## 1. Introduction

- 2. This application was brought by way of Notice of Motion under section 83 and 98 of the Civil Procedure Act, section 17 (2) of the Judicature Act and order 52 rules 1 & 3 of the Civil Procedure Rules for orders that - a. The decision of the trial Magistrate H/W Nantawo Agnes Shelagh (Magistrate Grade One, Mbale) in Civil Suit No. 53 of 2016 be revised and/or set aside; - b. A retrial be directed in a court with competent jurisdiction; - c. Execution and taxation proceedings in Civil Suit No. 53 of 2016 be stayed and set aside; and - d. Costs of this application be provided for. - 3. This application is supported by the affidavit of the Applicant which has been relied upon in the determination of this application and briefly states that - a. In the year 2003, he purchased the suit land located in Silakano Village, Bungwa Parish, Namisindwa district from the Respondent at UGX.


200,000/- (Two hundred thousand shillings only) but did not make an agreement for the sale as he was a close friend to him;

- b. He constructed a house on the said land where he now lives with his family; - c. In 2016, the Respondent filed a case in the LCIII Court alleging that the Applicant did not own the land yet the Applicant had used it for more than thirteen years unchallenged by anyone; - d. The LCIII Court passed judgment against the Applicant which he appealed against to the Chief Magistrate H/W Kintu Simon Zirintusa in 2016; - e. The Chief Magistrate set aside the judgment and orders of the LCIII Court and allowed a fresh case to be filed; - f. The Respondent then filed Civil Suit No. 53 of 2016 in the Chief Magistrate's Court of Mbale which was heard and determined by $H/W$ Nantawo Agnes Shelagh, Magistrate Grade One; - g. Judgment was entered in favor of the Respondent and orders were made against the Applicant for costs; - h. A taxation hearing notice and bill of costs were served upon him which was coming up on Friday 23<sup>rd</sup> February, 2024; - i. The trial magistrate had no territorial jurisdiction to entertain the matter as it is within the jurisdiction of Bubulo Chief Magistrate's Court; - The hearing of the matter by Her Worship Nantawo Agnes Shelagh without $i$ . territorial jurisdiction was an illegality in law. - 4. This application is opposed by the affidavit in reply of the Respondent which has been relied upon in the determination of this application and briefly states that-

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- a. The present application is incompetent before this court as it was not served on the Respondent within the stipulated time and his said lawyers at the commencement of the hearing shall raise a preliminary objection that the application be struck off the record with costs; - b. He inherited the suit land from his late father and in 2009, he allowed the Applicant to use the same for planting cassava and in 2015, he asked the Applicant to vacate which the Applicant refused, a fact which he informed the lower court which gave judgment in his favor; - c. The lower court ordered the Applicant to vacate the Respondent's land but he refused and went ahead to construct a house thereon; - d. The trial magistrate had territorial jurisdiction to entertain the Civil Suit No. 53 of 2016 and hence the Applicant should be put to strict proof thereof; - e. When he instituted Civil Suit No 53 of 2016, the Bubulo Chief Magistrate Court was not yet in existence and Manafwa District where the suit land was located fell under the Chief Magistrate Court of Mbale; - f. The Bubulo Chief Magistrates Court only came into existence in 2017; - g. It is even the reason that the current Applicant while appealing against the decision of the LC in 2016, appealed to the Chief Magistrates Court of Mbale not Bubulo since it was not in existence; - h. The suit land is situated in Manafwa which used to fall within Mbale magisterial area; - i. The trial magistrate had jurisdiction to hear the matter and hence there was no any illegality committed; - j. This application is brought in bad faith as it is intended to defeat the finding by the court that the suit land belongs to the Respondent after finalizing investigations into ownership claim;

k. This application is also brought as an afterthought only after the Applicant being served with taxation hearing notices and he prays that it is dismissed with costs.

# 5. Legal representation

6. M/s Spencer Associated Advocates represented the Applicant while the Respondent was represented by Owori & Co. Advocates.

# 7. Submissions

- 8. During the hearing of this application, counsel for the parties requested timelines for filing their written submissions. The court granted the request, and both parties duly complied. These submissions have been carefully considered in the determination of this application - 9. Counsel for the Applicant proposed four issues which were adopted by court in the determination of this application, to wit - a. Whether the decision of the trial magistrate grade one in Civil Suit No. 53 of 2016 should be revised and/or set aside? - b. Whether a retrial should be directed in a court of competent jurisdiction? - c. Whether execution and taxation proceedings in Civil Suit No. 53 of 2016 should be stayed and set aside? - d. Whether the applicant should be granted costs of the application?

#### Determination of legal issues 10.

Issue 1: Whether the decision of the trial magistrate grade one in Civil 11. Suit No. 53 of 2016 should be revised and/or set aside?

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Section 83 of the Civil Procedure Act Cap 282 provides-12.

> "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; but no such power of revision shall be exercised- - (d) unless the parties shall first be given the opportunity of being heard; $or$ - (e) *where, from lapse of time or other cause, the exercise of that power would involve serious hardship to any person.*" - In Mabalaganya vs Sanga (2005) EA 132, it was held-13.

"In cases where a High Court exercises its revision powers, its duty entails examination of the record of any proceeding before it for the purpose of satisfying itself as to the correctness, illegality or propriety ...... It is worth noting that in an application for revision one has to prove that the judicial officer acted without jurisdiction or failed to exercise Jurisdiction vested or acted illegally, irregularly or unjustly."

The Applicant averred in paragraphs 11 and 12 of the affidavit in support $14.$ that the trial magistrate had no territorial jurisdiction to entertain and hear the matter as it is within the jurisdiction of Bubulo Chief Magistrate's Court which was an illegality in law.

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- In reply, the Respondent averred in paragraphs 8, 9, 10 and 11 of the 15. affidavit in reply that the trial magistrate had territorial jurisdiction to entertain the Civil Suit No. 53 of 2016 because Bubulo Chief Magistrates Court was not yet in existence, it only came into existence in 2017 and Manafwa District where the suit land was located at the time fell under the Chief Magistrates Court of Mbale which is also the reason that the Applicant while appealing against the decision of the LC in 2016, appealed to the Chief Magistrate Court of Mbale not Bubulo since it was not in existence by then. - Bubulo Chief Magistrate Court was established under the Magistrates' 16. Courts (Magisterial Areas) Instrument, 2017, which, according to the preamble, was enacted on September 13, 2016. Civil Suit No. 53 of 2016, as indicated by its citation, was filed in 2016. Therefore, it is evident that Bubulo Chief Magistrate Court was not operational at the time the suit was instituted in 2016 - Therefore, the fact that Bubulo Chief Magistrate Court was not operational 17. in 2016, Civil Suit No. 53 of 2016 was filed in the proper court which had jurisdiction to handle the same. - The question of whether Bubulo Chief Magistrate Court became operational 18. before the conclusion of the suit by Mbale Chief Magistrate cannot be used to assert that it lacked jurisdiction." - Ordinarily, a court can be established through a statutory instrument; 19. however, it may not immediately become operational. The process of rendering newly established courts functional is an administrative matter overseen by the judiciary. Therefore, in the absence of evidence from the judiciary's administration indicating the date when the court became operational, the Applicants' allegations remain speculative.

- In the circumstance, I find that the trial magistrate at Mbale Chief 20. Magistrate Court had jurisdiction to handle Civil Suit No. 53 of 2016. - Issue one is answered in the negative. 21. - Issue 2: Whether a retrial should be directed in a court of competent 22. *iurisdiction?* - Having resolved issue 1 in the negative, issue 2 is automatically answered 23. in the negative as well. - Issue 3: Whether execution and taxation proceedings in Civil Suit No. 24. 53 of 2016 should be stayed and set aside? - Considering my findings under issue No.1, execution and taxation 25. proceedings in Civil Suit No. 53 of 2016 cannot be stayed. Stay of execution is granted through a formal application to the court and is only granted upon meeting specific conditions. - 26. Issue No. 3 id answered in the negative. - 27. Issue 4: Whether the applicant should be granted costs of the application? - Having resolved issues 1, 2 and 3 in the negative, the Applicant is not 28. entitled to any remedies. - Costs of this application are granted to the Respondent. 29.

I so order

LUBEGA PAROUO Ag. JUDGE

Ruling delivered via the emails of the advocates of the parties on $15<sup>th</sup>$ day of January, 2025