Twinomujuni Eric v Ganya Florence & Anor (Revision Application 6 of 2023) [2024] UGHC 406 (31 May 2024)


THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT FORT PORTAL

REVISION APPLICATION NO. 06 OF 2023

(ARISING FROM MISC. APPLICATION NO. 39 OF 2022 & MISC. CAUSE NO. 005 OF 2022)

TWINOMUJUNI ERIC ::::::::::::::::::::::::::::::::::::::::::: APPLICANT

VERSUS

  1. GANYA FLORENCE

  2. KABULEETA WILLIAM ::::::::::::::::::::::::::::::::::: RESPONDENTS

BEFORE: HON. JUSTICE VINCENT WAGONA

RULING

Introduction:

The applicant brought this motion under Sections 83 and 98 of the Civil Procedure Act Cap. 71, Section 33 of the Judicature Act, and Order 52 rules 1 and 3 of the Civil Procedure Rules for orders that:

  1. The ruling and orders of His Worship Kule Moses Lubangula vide Misc. Application No. 39 of 2022 delivered on 4th October 2022 be revised and set aside.

  2. The costs of the application be provided for.

Grounds of the Application:

The application was supported by the affidavit of the applicant where he averred that:

  1. That the Respondents instituted an application against the 1st Respondent and him vide Misc. Application No. 39 of 2022 for orders of contempt. The said application was determined in the respondents favour.

  2. That the trial magistrate delivered a ruling and orders in Misc. Application No. 39 of 2022 and exercised his jurisdiction illegally with material irregularity and injustice. That the applicant was not aware of the orders in Misc. Application No. 05 as they were no served upon him.

  3. That the applicant did not in any way violate the court orders or participate in the exhumation as alleged by the Respondents. That there exists reasonable cause for this Honorable Court to revise and set aside the ruling and orders of His Worship Kule Moses Lubangula in Misc. Application No. 39 of 2022 with costs against the Respondents. That no injustice shall be occasioned to the Respondents if this application is allowed.

Reply of the Respondents:

The application was opposed through the affidavit of the 1st Respondent who contended as follows:

  1. That the application before Court is not amenable for revision as it does not satisfy the conditions for revision. That the trial Magistrate rightly exercised the jurisdiction vested in him and there is no illegality, or material irregularity to justify revision by the High Court.

  2. That the applicant was fully aware of the order in Misc Cause No. 5 of 2022 stopping exhumation of the remains of the late Florence Kakyo, Kusemererwa Margaret and William Baguma. That the exhumation was done illegally with one Baguma Justus whose application for exhumation had been dismissed by Court.

  3. That the applicant had knowledge of the exhumation of the remains of persons that requires an order of court. That the applicant returned home to exhume other remains of the deceased persons on the same land and this time he was arrested demolishing concrete graves and taken to police and detained and photos of the demolished graves were attached to the application.

  4. That the applicant is the sole beneficiary of the exhumation since it creates an access road for him that is used by him alone. That the trial Magistrate was satisfied on the evidence presented that the applicant had knowledge of the order and was in contempt thereof and as such there is nothing illegal or irregular in the finding.

  5. That if the applicant was aggrieved by the order of court, he would have appealed and not lodged the current application. That the application ought to fail.

Rejoinder of the Applicant:

  1. That the current application is amenable for revision since the learned trial Magistrate exercised jurisdiction vested in him with material illegality or irregularity.

  2. That the applicant did not participate in the exhumation. That it was not true that he was arrested demolishing the concrete on the graves; he was arrested at Kachwamba while heading home. He maintained that the application be allowed.

Issues:

  1. Whether the application raises grounds for revision.

  2. Remedies available

Representation and Hearing:

The applicant represented himself while Mr. Nyakaana Patrick appeared for the Respondents. The Applicant filed written submissions in support of the application as well as learned counsel for the Respondents which I have duly considered.

Resolution:

Section 83 of the Civil Procedure Act Provides thus:

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

The above provision was given judicial consideration in Misc. Application No. 0021 of 2015, Uganda Telecom Limited Vs. Adratere Oreste where Mubiru J noted thus:

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”.

The Court of Appeal in Civil Appeal No. 190 of 2013, Kibalama Mugwanya Vs. Butebi Investment Enterprises Ltd, also considered the said provision and guided 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 Hitila vUganda (1969) E.A 219, Court guided that in exercising the powers of revision, the High Court could use its wide powers in any proceedings in which it appears that an error material to the merits of the case or involving a miscarriage of justice has occurred.

In summary, the powers of revision by the High Court are exercisable where the trial magistrate exercised jurisdiction not vested in him or her or where he or she failed to exercise such jurisdiction vested in him or her or where the jurisdiction so vested was exercised with material illegality or irregularity.

The applicant submitted that the learned trial magistrate exercised jurisdiction so vested in him with illegality or with material irregularity when he found him to be in contempt of the orders of court in Misc. Application No. 005 of 2022 when he had no knowledge of such order and did not participate in the proceedings thereof.

In reply, learned counsel for the Respondent submitted that the application did not raise grounds for review. That if the appellant was aggrieved with the findings of the trial court, he would have appealed. He cited the case of Kagwa Hanington & 5 others v Uganda, Revision Cause No. 005 of 2018 where Kwesiga, J observed that; “It is worth noting therefore that, merely because a magistrate’s court has taken a wrong view of the law or misapprehended the evidence on the record cannot by itself justify interference or revision unless it has also resulted in grave injustice, not merely to rectify every error however inconsequential. However, according to the grounds in the notice of motion the applicant has not demonstrated any grave injustice or threat of injustice against the applicant. It is rather evidence that the applicant is inviting court to evaluate the evidence which is a disguised appeal and an abuse of court process. Evaluation of evidence goes to the quality and or sufficiency of evidence of which is the business in appeal and not revision proceedings.” He asked court to adopt the afore-mentioned dicta and to be pleased to dismiss the application with costs.

I have considered the submissions of both counsel and the pleadings of the parties. I have previously observed in relation to revision in Susan Byenkya v Byaruhanga Efurazia, HC Revision Application No. 005 of 2021 thus:

The Courts in the above cases sanctioned the wide power of the High Court in Revision to address issues of want of jurisdiction and failure to exercise the 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 Court in Revision, it has the discretion to make such orders as it thinks fit. It is therefore my understanding that even where the Magistrate’s Court had jurisdiction, where such 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 irregularity or injustice which cannot be left to stand in the interests of justice, the High Court can revise the case and make orders that it deems fit.” (Further Emphasis is mine).



The complaint by the applicant is that whereas the trial court had the jurisdiction to try the case, it exercised such jurisdiction with material illegality or irregularity. It was contended that the manner in which the jurisdiction was exercised was illegal and irregular. The application in issue arises from contempt proceedings where the applicant was found to be in contempt.

Contempt of court as a doctrine connotes the willful disregard or disobedience of the orders issued by court. It encompasses any act which is calculated to embarrass, hinder, or obstruct court in administration of justice, or which is calculated to lessen its authority or its dignity. Contempt is committed by a person who does any act in willful contravention of its authority or dignity, or tending to impede or frustrate the administration of justice, or by one who, being under the court's authority as a party to a proceeding therein, willfully disobeys its lawful orders or fails to comply with an undertaking which he has given. (See KajumbaProscovia Vs. SedrackMwesige& 25 Others, Misc. Application No. 094 of 2022).

The main import of the doctrine of contempt of court is to ensure that the orders of court are respected and to protect the sanctity of the institution that issues such orders by seeing to it that the orders issued are put into effect. This was elaborately brought out by Romer J in Hadkinson v Hadkinson [1952] All ER, where he relied on the case of Church v Cremer (1 Coop Temp Cott 342) where it was held thus; "A party who knows of an order whether null or valid, regular or irregular, cannot be permitted to disobey it. . . as long as it existed".

In Carey vs. Laiken [2015] 2 R.C.S 79 which position was cited with approval by the Court of Appeal in Lukenge Hakim Vs. Hajjat Ajiri Namagembe and others, Court of Appeal Civil Application No. 0290 of 2020 arising from Civil Appeal No. 0311 of 2015, the Hon. Lady Justice Elizabeth Musoke observed that three elements must be proved before a finding of civil contempt can be made, namely: "First, the order alleged to have been breached "must state clearly and unequivocally what should and should not be done" Second, the party alleged to have breached the order must have had actual knowledge of it. Third, the party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels."[Emphasis added]

She went on to state thus: “It must be stated that each of the elements of civil contempt must be proved to the standard applied in criminal cases, which is beyond reasonable doubt.” In Hon. Sitenda Sebalu v The Secretary General of the East African Community, in Reference No. 8 of 2012, The East African Court of Justice laid down the grounds to prove in an action for contempt to include; 1. Existence of a lawful order; 2. The Potential Contemnor’s knowledge of the Order; 3. The potential contemnor’s ability to comply; 4. The potential contemnor’s failure to comply.”

The question which I am called upon to examine herein is whether the trial magistrate exercised the jurisdiction in entertaining the application for contempt regularly or legally.

The application for contempt arose from Miscellaneous Cause No. 005 of 2022 where the 2nd applicant had applied for an order to exhume the remains of his children, that is, Florence Kakyo, Kusemererwa Margret, and William Baguma who were buried with permission on the land of the late Tereza K. Kabuleta. The said application was objected to by the Respondents and consequently, the learned trial magistrate dismissed it with no orders as to costs. The Respondents later filed Misc. Application No. 39 of 2022 for contempt where they alleged that the applicant together with Baguma Justus went ahead and exhumed the remains of the deceased in contempt of the orders of the lower court. The Chief Magistrate found the applicant and Baguma Justus in contempt and condemned them to general damages and costs.

There is however no evidence on the lower court record, of the orders that the applicant is alleged to have disobeyed, and that he had any knowledge of the said orders. It is clear from the record of the lower court that the applicant was not even a party to the proceedings in Miscellaneous Cause No. 005 of 2022 from where the contempt proceedings arose. It is furthermore clear from the said record that the application in Miscellaneous Cause No. 005 of 2022 was merely dismissed. There was no order stopping the applicant or any person from exhuming the remains of the deceased persons or directing him or any person to act or not act in a given manner. It thus means that the order which the applicant is said to have disobeyed was the dismissal order in Miscellaneous Cause No. 005 of 2022 which in my finding could not give rise to contempt.

As guided by the court of appeal in Lukenge Hakim (supra), the order which the applicant is alleged to have disobeyed must clearly and unequivocally state what should and should not be done. That is, such order must be in place for contempt to arise. In the present case, there was no such order. Therefore contempt could not arise. If the Respondents were aggrieved with the acts of the applicant or any other person, they ought to have filed a criminal case against him or a separate suit in which they would seek damages and other reliefs. Further, the learned trial magistrate did not make an evaluation as to whether the applicant was aware of any such order for him to be liable for disobeying the same. There was actually no order in place that anyone acted against in order to be found liable in contempt.

It is thus finding that whereas the learned trial magistrate had the jurisdiction, the same was exercised illegally and with material irregularity which caused injustice to the applicant. I therefore find that this is a proper application for revision and accordingly this application succeeds with the following orders:

  1. The ruling and orders of His Worship Kule Moses Lubangula in Misc. Application No. 39 of 2022 are hereby set aside.

  2. I made no orders as to costs in the interest of harmony since the parties involved are relatives.

  3. I order that the lower court file be sent back by the Deputy Registrar.

It is so ordered.

Vincent Wagona

High Court Judge

FORT-PORTAL

DATE: 31/05/2024

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