Court name
HC: Civil Division (Uganda)
Case number
Revision Application 5 of 2018
Judgment date
2 June 2021

Nsubuga v Ndiwalana (Revision Application 5 of 2018) [2021] UGHCCD 57 (02 June 2021);

Cite this case
[2021] UGHCCD 57
Coram
Ojok, J

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT MPIGI

REVISION APPLICATION NO. 05 OF 2018

(Arising from Miscellaneous Application No. 060 of 2017)

NSUBUGA JOSEPH………………………………………………….…...APPLICANT

VERSUS

NDIWALANA LAWRENCE……………………………...…………….RESPONDENT

 

BEFORE: HIS LORDSHIP HON.JUSTICE OYUKO. ANTHONY OJOK, JUDGE

Ruling

Background:

The applicant filed Civil Suit No.14/2016 in Chief Magistrate’s court of Mpigi at Mpigi claiming a balance of UGX 20,000,000/= for the land he had sold to the Respondent by an agreement dated 11th February, 2013. The parties entered into a consent judgment on the 20th January 2016 that the agreed balance was UGX 15,000,000/= and further agreed that the Respondent in this application would pay UGX 5,000,000/= as costs and interest.

The Respondent having paid UGX 16,000,000/= out of the agreed sum of UGX 20,000,000/= then learnt from the applicant himself that Semulibo John William from whom the Applicant had acquired title in land comprised in Block 107, Plot 251 Gomba, land at Maddu in 2003, having himself obtained letters of administration from Mpigi chief Magistrate’s Court in respect of the late Natumbwe Florence was not the rightful administrator to that estate.  That the rightful administrator was Sewanjala Livingstone who had obtained Letters of Administration from the High court of Nakawa in 2006, vide Administration case No. 532/2006 and had sold the same to Serwadda Stephen.

That Serwadda Stephen was demanding for vacant possession from the applicant. The Applicant then came to Mpigi court and filed Civil Suit No. 14 of 2016, before Her Worship Nkore who made a ruling that the applicant deposit UGX 25,000,000/= at court which he had received from the Respondent for safecustody, which was done.  It is then that the Respondentfiled Revision Case No. 3 of 2017 in this court, in which the order to mediation cause No. 14/2016 was set aside.

After setting aside the orders in the mediation cause to depositUGX 25,000,000/=, the said money was not paid back to the Applicant and the file was referred back to the Chief Magistrate for further management. 

That when the file was taken back, the Applicant in the instant application filed Misc. application No. 60 of 2018 in which he was seeking to review and set aside the consent judgment that was entered into in civil suit No. 14/2016.  The said application was fixed for hearing on 17th August, 2017.  Both counsel appeared and a schedule for filing submission was made and the matter fixed for a ruling on 14th September, 2017. On that very day a complaint was lodged by the respondent’s lawyer on the 11th September,2017 with the Chief Registrar.

The Chief Registrar made an order directing her Worship Nkore who had personal conduct of the mater to transfer the file to His Worship Karemani JamesonKaremera who was then Chief Magistrate Buganda Road Court and it was done.   His worship Karemani delivereda judgment dismissing the suit and ordered parties to fulfill the consent and the terms of the agreement.

Being dissatisfied with the decision, the Applicant brought the instant application for revision by Motion under Sections 83 and 98 of the Civil Procedure Act, Section17 of the Judicature Act, Order 52Rules 1 and 3 of the Civil Procedure Rules against the Respondent.

The application seeks the following orders;

  1. That the ruling and orders of Court in Miscellaneous Application No. 060 of 2017 be revised and set aside.
  2. That the consent settlement dated the 18th day of November, 2016 entered by the court between the parties hereto in Civil Suit No. 026 of 2016; be reviewed and or set aside by this Court.
  3. That the amount of money amounting to UGX 25,000,000/= (Twenty Five Million Shillings) deposited by the applicant in Mpigi Chief Magistrate’s Court for custody be paid back.
  4. The costs of this application and the court below be provided.

 

The application is supported by the affidavit sworn by the applicant and the pertinent grounds briefly are as follows;

  1. That His Worship Karemani Jameson Karemera, the Chief Magistrate at the Chief magistrate’sCourt of Buganda Road illegally exercised jurisdiction not vested in him by entertaining and disposing of a matter not falling within his geographical/territorial jurisdiction on instructions of the Chief Registrar.

 

  1. That the Chief Registrar acted illegally or with material irregularity when he directed for transfer of the file in Miscellaneous Application No. 60 of 2017 (herein called “the file”) from the trial Magistrate, the Chief Magistrate Mpigi, to his Worship Karemani Jameson Karemera, the (then) Chief Magistrate Buganda Road Court to hear the case on which he had no territorial jurisdiction.

 

  1. That the Chief Registrar illegally exercised powers not vested in him by any law by administratively interfering with the independent administration of justice by the trial Magistrate.

 

  1. That the respondent never raised any objection on ground of bias against the trial Magistrate at trial or at all and the date for the ruling was set with his knowledge.

 

  1. That the Chief Registrar caused grave injustice to the applicant when he acted on the respondent’s complaint by ordering the Chief Magistrate of Mpigi to transfer the file to his Worship Jameson Karemani without notifying the applicant or his counsel about the respondent’s complaint hence breaching the principle of natural justice.

 

  1. That the Chief Registrar’s directive to transfer the file was illegal as it was intended to override a court order.

 

  1. That this application has been brought without any delay and no hardship shall be caused by granting the orders sought by the applicant herein.

The application was opposed by the Respondent through his affidavit in reply and the pertinent grounds are as follows;

  1. That in specific reply to paragraph 12, the Respondent stated that he made a complaint to the Chief Registrar after he felt uncomfortable with the trial Magistrate’s conduct of the case after she had entered a consent judgment and later without his knowledge or that of his then lawyers entertainedMediation cause No. 14 of 2016 exparteand setting aside the consent in my absence.

 

  1. That in reply to paragraph 16 of the Applicant’s affidavit in support, the Respondent stated that all communications regarding his complaint to the Chief Registrar and the Chief Registrar’s responses were made to the Applicant’s lawyers and their failure to inform their client is solely their own legal business for which he is not a party to.

 

  1. That in reply to paragraphs 12, 13, 15, 16, 17, 21, 22, 23, 24, 25, 26 and 27, the Respondent stated that he was informed by his lawyers which information heverily believed to be true that the Chief Registrar in transferring the suit file from the Chief Magistrate of Mpigi to the Chief Magistrate of Buganda Road was acting within his supervisory powers granted to him by the laws of Uganda.

 

  1. That upon the advice of his lawyers which advice he verily believed to be true and correct, the complaint of the respondent to the Chief Magistrate is not a type in respect of which the laws of Uganda require a hearing to be conducted. The claim of infringement of the principle of natural justice is baseless.

 

  1. That in reply to paragraphs 25, 28, 29, 30, and 31, he was informed by his lawyers of M/s Kusiima & Co. Advocates which information he verily believe to be true that there is no law that creates Buganda Road Court as a specialized court for hearing and determining of criminal cases only but rather the suit was transferred to His Worship Karemani Jameson Karemera, as a judicial officer despite being attached then at Buganda Road court as the Chief Magistrate who could independently determine the issues after I had found doubts in Her Worship Shwanda Nkore Jolly.

 

  1. That in reply to paragraphs 27. 28, 29, 30, 31 and 32 of the Applicant’s affidavit in support, the Respondent stated that His Worship Karemani Jameson Karemera was clothed with the jurisdiction to make a ruling out of the submissions filed by both Counsel for the parties in Miscellaneous Application No. 060 of 2017 as a directive from the Chief Registrar to meet the ends of justice.

 

  1. That upon the advice of his lawyers, which advise he verily believes to be true and correct, this matter is Res judicata the same having been adjudicated upon and finally disposed of by this Honourable Court in Civil Revision No. 003 of 2017, Ndiwalana Lawrence v. Joseph Nsubuga. 

Representation:

M/s Joseph Kiryowa & Co. Advocates appeared for the applicant whereas M/s Kusiima & Co. Advocates represented the Respondent.

Both counselmade oral submissions.

The law:

Black’s Law dictionary (9th edition), definesRevision as; a re-examination or careful review for correction or improvement or an altered version of work.

The parameters for the High court to properly apply in its Revisional Jurisdiction are set out under Section 83 of the Civil Procedure Act that provides as follows;

“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;

  1. Exercised a jurisdiction not vested in it in law
  2. Failed to exercise a Jurisdiction so vested
  3. 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…..’’

In the case of Mabalaganya v. Sanga (2005) E.A 152it was held that; in cases where High Court exercises its Revisional powers, its duty entails examination of the record of any proceedings before it for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, order or any other decision and the regularity of any proceedings before the High court.

Therefore, decisions are revised when the trial Magistrate fails to exercise his or her Jurisdiction or where he or she acts illegally or with material irregularity or unjustly.

The Applicant further sought from this court an order to review or set aside the consent judgment entered into with the respondent, which I will briefly consider as follows;

The law governing review and setting aside consent judgments was well articulated in the case of  Ken Group of Companies Ltd. v. Standard Chartered Bank & 2 Others, H.C.M.A 116 of 2012 (Commercial Court) by Hon. Justice Madrama citing the case of Hirani v. Kassam 1952 E.A at 131 where the Court of Appeal held that;         

“A consent judgment cannot be varied or discharged unless obtained by fraud, collusion, or by an agreement contrary to the policy of court or if the consent is given without sufficient material facts or in misapprehension or ignorance of material facts or in general for any reason which would enable the Court set aside an agreement.”

It is essential to emphasize that a consent judgment derives its legal effect from the agreement of the parties, and may only be set aside on the same grounds upon which a contract may be set aside or rescinded because it is governed by the ordinary principles that govern a contract. Such grounds include collusion, fraud and any other reason that would enable the court to vary or altogether rescind the contract.

Section 82 of the Civil Procedure Act provides that;

“Any person considering himself or herself aggrieved by a decree or order  from which an appeal is allowed by this Act, but from which no appeal has been preferred; or by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order on the decree or order as it thinks fit.”

Order 46 Rule 1 (b) of the Civil Procedure Rules provides;

“Application for review of judgmentby a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter of evidence which, after the exercise of due diligence, was not within his or her knowledge or could not be produced by him or her at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him or her, may apply for a review of judgment to the Court which passed the decree or made the order”

The grounds for review were enunciated in the case of FX Mubuuke v. UEB High Court Misc. Application No.98 of 2005 to be;

  1. That there is a mistake or manifest mistake or error apparent on the face of the record.

 

  1. That there is discovery of new and important evidence which after exercise of due diligence was not within the applicant’s knowledge or could not be produced by him or her at the time when the decree was passed or the order made.

 

  1. That any other sufficient reason exists.

Further in the case of Edison Kanyabwera v. Pastori Tumwebaze, Supreme Court Civil Appeal No. 6 0f 2004 as cited by Counsel for the respondents the court found that;

“In order that an error may be a ground for review, it must be one apparent on the face of the record, i.e. an evident error which does not require any extraneous matter to show its incorrectness. It must be an error so manifest and clear that no Court would permit such an error to remain on record. The error may be one of fact but it is not limited to matters of a fact and includes also error of law.”

In the instant case counsel for the applicant submitted that the Chief Registrar acted illegally and irregularly in transferring the file to another Judicial Officer. That as per the case of Attorney General v. Gladys Nakibule Kiseka, SCCA No. 2 of 2016, it was held thatjudicial independence requires that an individual judge be unconstrained by colloquial and institutional premises in deciding a question of law and fact.

Counsel further submitted that the applicant was never informed about the transfer of the file or given any notice as to the presence of a complaint so as to be heard, therefore the transfer interfered with the independence of the Chief Magistrate at Mpigi and that it was incompetent and illegal for His Worship Karemani to deliver a ruling in which he had no jurisdiction.That the Chief Magistrate lacked territorial jurisdiction to do so and that the matter having been in the Chief Magistrate’s Court of Mpigi at Mpigi could not be handled by the Chief Magistrate of Buganda Road.

Counsel relied onSection 212 of the Magistrates Courts Act which createsterritorial jurisdiction of Magistrate courts and that the issue being  immovable property and  situated at Gomba, it was the chief Magistrate’s court of Mpigi  that had jurisdiction. 

From my understanding of the facts of this application, the cruxis that the consent judgment made by the parties ought to be set aside,given the fact that the applicant discovered that the person who sold to him the land had no powers to do so and the person who had the proper Letters of Administration over the estate of the late Florence Nantumbwe had sold the same to Stephen Serwadda who was demanding for vacant possession from the applicant

Counsel for the applicant submitted that the consent judgment and the agreement between the applicant and the respondent cannot therefore be performed as anticipated and even if court ordered that the parties go ahead with the same, it may jeopardize the applicant who will be evicted when the land is taken by Serwadda Stephen. 

The applicant sought to have the decision in Miscellaneous Application No. 60 of 2017 revised on grounds of the Chief Magistrate lacking territorial jurisdiction and that the process under which the file was allocated to him was illegaland also sought to have the consent settlementreviewed and set aside.

It is noteworthy that this application was brought by way of revision under Sections 83and 98of the Civil Procedure Act.The applicant asked for the consent judgment to be reviewed under a revision application. I will therefore resolve the application under the law of revision as elaborated above and not review which has also been outlined above since the two are totally different and carry different conditions that ought to be satisfied before Court.

In an application for revision, one has to prove that the judicial officer acted without jurisdiction, or failed to exercise the jurisdiction so vested or acted illegally, irregularly or unjustlywhereasfor review applications, one has to prove that there was an error on the face of the record, discovery of new evidence and sufficient cause.

In my view, the Chief Registrar overseesand supervises Registrars and Magistrates as part of his or her administrative duties. However, the High Court is clothed with the power to transfer matters upon application of any of the parties or by its own motion under Section 218 of the Magistrates Courts Act which provides that;

On the application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard, or of its own motion without that notice, the High Court may at any stage—

(a)transfer any suit, appeal or other proceeding pending before it for trial or disposal to any magistrates court competent to try or dispose of it;

(b)withdraw any suit or other proceeding pending in any magistrate’s court, and—(i)try or dispose of it;(ii)transfer it for trial or disposal to any court subordinate to it and competent to try or dispose of it; or(iii)retransfer it for trial or disposal to any court from which it was withdrawn.

(2)Where any suit or proceeding has been transferred or withdrawn as aforesaid, the court which thereafter tries the suit may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn.”

While it is true that the Chief Registrar’s office is one that is mostly administrative in nature created under Article 145 (1) of the Constitution of the Republic of Uganda, 1995, and has power to manage the judiciary on a day to day basis and this includes transfer of Magistrates, supervision of the same among others, a transfer of a file on the basis of bias as the case was in the present case ought to have taken the trajectory provided under Section218 of the Magistrates Courts Act. It is therefore, the High Court as referred to under section 218 of the Magistrates Courts Act and section 17 of the Judicature Act which is presided over by a Judge that has the power to transfer files.

The Chief Registrar in my view ought to have forwarded the complaint to the Resident Judge of Mpigi to handle the matter and hear both parties as to the intended transfer of the said file since the power to transfer any file and supervise magistrate’s courts is a preserve of the High Court.

 In the alternative, the Chief Registrar in the exercise of his/her administrative functions would have assigned another Chief Magistrate to handle the matter in Mpigi and the same be disposed of as opposed to transferring it to a Chief Magistrate in a different territorial jurisdiction.

It is therefore, my finding that the transfer of the file from Mpigi Magisterial area to Buganda Magisterial Court in the present case was made illegally. There is no law that grants the Chief Registrar powers to have files transferred to another judicial officer in exercise of his or her supervisory powers.Such supervisory powers are limited/preserved to the High Court presided over by a Judge.

The Chief Registrar therefore had no power to transfer the court file from one magisterial area to another on the basis of unfounded allegations of bias. If every timea complaint is lodged against a judicial officer and action such as was taken in the present case is taken, the administration of justice would be defeated by unfounded complaints by parties who wish to delay or defeat justice.

The parties in the instant case have had several applications made and these have all touched on the consent judgment. The consent judgment was made and then set aside in Mediation Cause No. 014 of 2016. The Respondent then lodged a revision application No. 003 of 2017 which restored the consent judgment that had been set aside under Mediation Cause No. 014 of 2016. The applicantthen sought to have the consent settlement reviewed in Miscellaneous Application No. 60 of 2017. The Applicant has also prayed for the consent judgment to be reviewed under the instant application.

Reviewing the consent judgment under the instant revision application is not procedurally possible given the different nature of both procedures. The consent judgment has been the subject of all the applications by the parties and the same was also in issue in Miscellaneous Application No. 060 0f 2017 where the Chief Magistrate ordered the parties to fulfill the terms therein under specific performance.

Having earlier found that the transfer of the file in the instant case was illegal,the decision of the Chief Magistrate is equally illegal for he lacked the jurisdiction to handle the application. Also, the procedure leading to the transfer being illegal means that the decision of the Chief of the Magistrate was null and void. The decision of the Chief Magistrate, the ruling in Miscellaneous Application No. 060 of 2017 is hereby set aside. The consent judgment equally suffers the same fate and is hereby set aside.

The Applicant brought this application seeking to set aside the consent judgment on the premise that he had discovered that the vendor from whom he acquired title to the suit land before passing the same to the Respondent did not have good title to the suit land.

In that regard the UGX 25,000,000/= deposited with the Chief Magistrate Court as security should be refunded to the Applicant subject to verification.

The UGX 16,000,000/= received by the Applicant in fulfilment of part of the terms of the consent judgment be refunded to the Respondent. If there is any other money that was involved in the purchase transaction between the parties in Civil Suit No.14/2016 other than that disclosed in this Application, the same should also be paid back.

Theapplication is hereby allowed. Each party bears its own costs.

Right of appeal explained.

 

…………………………….

OYUKO. ANTHONY OJOK

JUDGE

02/06/2021