THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA HOLDEN AT GULU
HCT-02-CV-MA – 0125/2014
(Arising from CS No. 007/2009)
AJAYI AND BROTHERS,
SONS OF ERONESI AWILO:::::::::::::::::::::::::::: APPLICANTS
ROBERT ODOKI ODIYA::::::::::::::::::::::::::::RESPONDENT
RULING OF HONOURABLE LADY JUSTICE
This is an application for Revision of the Judgment and Orders of His Worship Watyekere George Wakubona in CS. No. 007/2009 and setting aside the orders and stay of execution.
The grounds upon which the application is based are contained in the affidavit of Ojera Isaac the Applicant but briefly are as follows:-
- That the Magistrate Grade 1 Amuru Court failed to exercise a jurisdiction so vested in determining CS. No. 007/2009.
- The Magistrate Grade 1 acted in the exercise of his jurisdiction illegally or with material irregularity or injustice.
- In the alternative but without prejudice to the foregoing, court failed to exercise its jurisdiction judiciously, thereby causing material irregularity that occasioned a miscarriage of justice to the applicant.
- That if the order of the magistrate is not revised and set aside urgently, a lot of hardship, injustice and irreparable damage shall be occasioned to the applicant.
The Applicant was represented by Odongo and Co. Advocates while the Respondent was represented by Katutsi and Lamunu Advocates.
The brief background of the case is that Robert Odoki Odiya hereinafter referred to as the Respondent filed a Civil Suit against Ajayi and Brothers, Sons of Eronesi Awilo hereinafter referred to as Applicants for a declaration of ownership, permanent injunction, general damages and costs of the suit.
He stated in his plaint under paragraph 4 that he was the customary owner of 1,280 hectares of land located at Pawotomera Paira, West Acholi, Gulu District. He applied for and was offered a lease, which he duly accepted in respect of the suit land between 1975 and 1976.
That the defendants’ father was allowed to temporally settle on the suit land during the rainy seasons as their own land would be flooded and become unfit for settlement.
That the plaintiff has since requested the defendants to vacate his land to no avail. He averred that the defendants do not have any interest whatsoever in the suit land whether legal or equitable.
He prayed for a declaration that the plaintiff is the legal owner of the suit land and a permanent injunction restraining the defendants, their agents, and or assignees from interfering in any way with the plaintiffs’ enjoyment of the suit land, general damages for inconvenience and costs of the suit with interest.
The defendant also made a counterclaim praying for dismissal of the suit and permanent injunction stopping the respondent from surveying and acquiring title to the land that he does not own, costs of the suit and any other relief. Both sides brought witnesses and the court visited the locus but I did not come across any map or proceedings at locus.
Judgment was entered in favour of the plaintiff as he was declared the lawful owner of the land in dispute with the eviction order against the defendant. He was also awarded 5,000,000/= as general damages.
It is apparent that the defendant did not appeal but opted for revision.
Both Counsel filed written submissions in support of their respective cases and I will refer to them as and when necessary.
Section 83 of the Civil Procedure Act Cap 71 Laws of Uganda provides for Revision. The High Court may interfer with the judgment of the lower court if it appears that the lower court (Magistrates) court (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 court may upon proof of the above essential elements, revise the case and make such orders in it as it thinks fit.
Both parties have been given an opportunity to be heard because their Counsel made written submissions.
Before the High Court can exercise its revisional powers, it must peruse the lower record, thoroughly well to satisfy itself as to the correctness, legality, propriety, irregularity of any proceedings or finding.
Counsel for the Appellant raised three issues in his submission. The first was a preliminary point of law. He submitted that the person who signed the affidavit in reply is Rev. Onen Jackson who was given the Power of Attorney to prosecute the original suit on his behalf. He submitted the affidavit in reply is defective because the person who deponed did not have authority under 0.3 r 2 (a) of the CPR and that it was purported to have been commissioned in Kampala and yet the commissioner for oaths, Judith Oroma is based in Gulu.
He also raised the issue of filing the affidavit in reply out of time in contravention of 0.12 r 3 (2) of the CPRs. That the Respondent was served on 6/11/2014 and they filed the affidavit in reply on 1/12/2014 out of 15 days.
Thirdly, he raised the issue of naming the parties. The applicant/Defendant was named as Ajoyi and brothers, sons of Eronesi Awilo which offends the provisions of the Civil Procedure Rules that require parties to be named.
He submitted the trial magistrate and even Counsel on both sides with due respect who handled this matter failed to amend the pleadings to include proper names. He concluded that the trial magistrate therefore acted in the exercise of its jurisdiction illegally or with material irregularity or injustice which calls for Revision.
In reply, Counsel for the Respondent submitted this application was misconceived, without merit and an abuse of court process. She submitted the trial court did not act illegally or where was any material irregularity since the applicant submitted to the jurisdiction and went to locus before judgment. That there was no objection in whatever way since the Applicant was legally represented. She relied on the case of Amir Khan v Sheo Bakish Singh 1885 11 CAL 61 A 237 where it was held 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 be erroneous decision on a question of fact or even law. She further submitted on the merits of the case.
As High Court, I perused the lower record starting from pleadings to satisfy myself as to the legality, irregularity and propriety.
The submissions raised the following issues:
- Whether the magistrate failed to exercise the jurisdiction vested in him in this case.
- Whether in the exercise of his jurisdiction, he acted illegally or with material irregularity or injustice which calls for Revision of his judgment.
The above issues are premised on the fact that, the trial magistrate had jurisdiction to preside over this case.
On the first issue, the magistrate had the authority to hear and determine this case. He went ahead to sign the summons, fixed the case for hearing, visited the locus and finally wrote judgment.
He therefore exercised his jurisdiction. The first issue is resolved in the affirmative.
The second issue is about the irregularity of the exercise of jurisdiction. When the court exercises its jurisdiction, it is expected to act regularly and within the established legal Procedures and Rules.
This exercise starts from the time of filing the case and runs through up to judgment and execution of the orders.
The Respondent/plaintiff filed his case on 3/2/2009. His plaint was drafted as follows: The Republic of Uganda in the Chief Magistrates Court of Uganda Holden at Gulu.
Robert Odoki Odiya ………………………..…………Plaintiff
Ajayi and Brothers sons of Eronesi Awilo …. Defendants.
Under paragraph 2 of the plaint, he described the defendants as follows:-
“The defendants are adult male Ugandans believed to be of sound minds on whom the plaintiff undertakes to effect service of court process”
Under paragraph 4(c) he stated “That the defendants’ father was allowed to temporally settle on the suit land during rainy seasons as their own land would be flooded and become unfit for settlement”
Under paragraph 4(d), “That the plaintiff has since requested the defendants to vacate his land to no avail”.
And under paragraph 5, he stated, “The plaintiff shall further aver and contend that the defendants do not have any interest whatsoever in the suit land whether legal or equitable”
Under the prayers, he prayed under paragraph (b) for A permanent Injunction restraining the defendants, their agents, and or assignees from interfering in any way with the plaintiffs enjoyment of the suit land.
From the above excepts of the plaint, the Respondent/plaintiff was not suing one defendant but several defendants.
The plaintiff did not name the defendants and describe their place of residence apart from putting Ajayi and brothers, sons of Eronesi Awilo.
The questions which should have come to the mind of the trial magistrate are as follows: How many defendants are they. Who are they? What are the names of Ajayi’s brothers. Are they adults or minors. Is he suing the Ajayi as a representative of others?
0.7 r 1 of the CPR is very clear about what should be contained in the plaint.
0.7 r 9 of the CPR provides for the procedure on admitting a plaint. The plaintiff has to present as many copies as there are defendants and if one person is sued in representative capacity, it should be clearly stated. (0.7 r (9) (2) of the Civil Procedure Rules.
The plaint in the lower court did not show that Ajayi was representing his brothers or all the sons of Awilo.
Ajayi and brothers sons of Eronesi Awilo is not the name of any defendant within the requirement of 0.7 r 1(c).
Perusal of the record also reveals that one Ojera Isaac testified as the defendant. In the summary of evidence, the plaintiff stated that he will adduce evidence to show he is the customary owner of the suit land. That the defendants are only squatters who were granted temporary residence on the suit land due to flooding.
No other person filed a defence, because they were not served with the summons and yet the plaintiff knows very well that he is saving many people whom he claims to be squatters on the land.
It is the duty of the trial court to ensure that service of summons is effected on all defendants where they are several. This is provided for under 0.5 r 9 which provides
“Except as otherwise prescribed, where there are more defendants, than one, service of the summons shall be made on each defendants.
The trial magistrate has acted irregularly by allowing to proceed on a plaint which was vague about the description of the defendants.
When the so called defendant came to court to testify, he was described as Ojera Isaac, a different name from what is appearing on the plaint.
Counsel for the respondent submitted, the Applicant submitted to the jurisdiction and even went to the locus. The question is, who is the applicant. Is it Ojera Isaac who was not sued according to the pleadings in court or Ajayi and brothers? Who are the brothers? Can they be bound by the judgment when they were not served with any court process?
The trial magistrate acted with material irregularity when he acted on a plaint which was vague on the description of the defendant.
Even if one Ojera Isaac who is not mentioned anywhere in the pleadings is still holding out as Ajayi and brothers, sons of Eronesi Awilo the defendant, because the plaint describes the defendant as such, this court being a court of record cannot allow this irregularity to stand.
The Application for Execution is against Ajayi and brothers, sons of Eronesi Awilo.
The sons of Eronesi Awilo must be having names. They were not served with summons and the plaint. They were not given an opportunity by the trial magistrate to defend themselves as required under the law. Even if the court was to apply the principles of natural justice, they are met only if an opportunity is given to the defendant to present his case on the proposed action.
The demands of natural justice are not met even if the very person proceeded against has furnished information on which action is based if it is furnished in a casual way, Isaac Ojera participated in the proceedings in the lower court in a very casual way because all pleadings do not mention that name.
The sons of Eronesi Awilo should have been made to know that they are required to respond to the allegations which would lead to certain acting being taken against them like eviction. The trial magistrate should not have issued a futile order against the sons of Eronesi Awilo who were not given an opportunity to be heard because of a plaint that was drafted in such a way that it offends the provisions of the Civil Procedure Rules.
A proper hearing must always include a fair opportunity to these who are parties in the controversy for correcting, or contradicting anything prejudicial to their interest.
If Ajayi is Isaac Ojera, he did not in any way represent the interest of his brothers because the plaintiff did not state anywhere that Ajayi is representing his brothers.
With due respect to Counsel for respondent, I do not concur with him that the defendants/Applicant was ably represented and therefore the magistrate acted without any irregularity. The magistrate has the judicial obligation to ensure that pleadings comply with the statutory provisions.
The plaint should have been rejected because it did not comply with the rules. It did not name the defendants. Proceedings on such a plaint was irregular and needless to mention has occasioned injustice not only to the applicant but to the respondent as well. I agree with counsel for the applicant that execution of the orders of the lower court would cause injustice to the occupants on this land who were never heard.
I also perused to proceedings much as the magistrate mentions visiting locus, there is no evidence that he visited the locus. There is no sketch plan, no minutes recorded at the locus.
In his judgment which was not numbered by page, but it would be page 4, if it was numbered, “ At the locus, court also came to learn that indeed the defendant and his family have got land in Got Ngur and simply came to settle in Pawatomero after their father was given some land there. Court found for a fact that the defendant’s father was given some land in the 1960’s and lived there for a long time undisturbed although the plaintiff wanted court to believe that the allocation was temporary”
On page 5, first paragraph, the trial magistrate stated
“When court visited the land, it indeed came to confirm that the defendant’s father started staying on that land in the 1960’s and lived there undisturbed for a long time can it be said thus that the stay of the defendants’ father was merely temporary. In court’s opinion, I think not.
What court found disturbing was the fact that simply because it was difficult to define the exact portion allocated to the defendants father, the defendant decided to take over the whole land in total disregard of the interest of the family of the plaintiff. In court’s opinion therefore, although the original entry was lawful, the conduct of grabbing more land to the extent of denying the interest of the plaintiff and his family rendered their actions unlawful and as such amount to trespass in law”
When he concludes that their actions were unlawful, he is certainly referring to more than one person. He does not even mention whose actions are unlawful.
He also stated that on the strength of the lease offer, the respondent/plaintiff was the lawful owner. The lease offer was granted in 1975 whereas the family of Awilo were in occupation in 1960’s. Because he failed to establish the boundary or exact portion, which was the responsibility of the plaintiff to prove his case, he visited his disappointment on the family that was not served with court process.
His conduct of proceedings were irregular because there is no evidence that the plaintiff knew even the area, the family of Awilo Eronesi had occupied for a very long time since the 1960’s. The locus visit proved that the family of Awilo had lived on the land since 1960’s and came on the land since 1960’s and came on the land lawfully. This being customary land according to the pleadings, the plaintiffs applied for lease while knowing there were occupants on the land. The lease offer in any case is no longer subsisting as it expired long a long. There is no evidence on record that the land in dispute is public land. The plaintiff himself stated it was customary land.
Customary land holding is determined by usage. The family of Awilo have used the land and lived on it since the 1960’s. The plaintiff to the contrary, has never used the land but attempted to secure a lease over the land in 1975.
The trial magistrate in his judgment, ordered for vacant possession against people who have used the land and are in occupation over 50 years as things stand now, the plaintiff has no legal right of ownership, neither equitable right. The decision of the trial magistrate if left to stand would cause injustice to the occupants of this land who have lived on it since the 1960s.
I am not going to dwell on the issue of commissioning the affidavit from Kampala and representation of the plaintiff by the Reverend who is said not to have authority under 0.3 r 2 (a) of the CPRs. I did not come across any Powers of Attorney on record.
With the findings above, this court is of the view that the trial magistrate acted with material irregularity when he proceeded to act on a plaint which did not comply with the provisions of the Civil Procedure Rules.
The omnibus way of naming defendants who were not identified and served with court process renders the whole proceedings irregular, allowing it to stand, would cause a miscarriage of justice.
In the result, (1) the judgment and orders of the Grade One Magistrate His Worship Wakubona George Watyekere are revised and set aside.
2. No order is made as to costs because Ajayi and Brothers, sons of Eronesi Awilo were not properly named as defendants.
3. The Respondent/Plaintiff is at liberty if he feels he has a cause of action to file a fresh and proper suit in accordance with the provisions of the Civil Procedure Rules.
4. The status quo prevailing in respect of the suit land before 2009 should be maintained.
Ruling delivered in the presence of Geoffrey Anyuru for the applicants.
2. All applicants in court.
3. Anna – court clerk.