Court name
HC: Land Division (Uganda)
Judgment date
9 November 2020

Lukyamuzi Kalyango v Balikuddembe (Civil Appeal-2019/98) [2020] UGHCLD 47 (09 November 2020);

Cite this case
[2020] UGHCLD 47
Coram
Kawesa, J

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

LAND DIVISION

CIVIL APPEAL NO. 98 OF 2019

(ARISING FROM CIVIL SUIT NO.028 OF 2015 CHIEF MAGISTRATES COURT OF MAKINDYE AT MAKINDYE)

LUKYAMUZI KALYANGO ABUBAKER:::::::::::::::::APPELLANT

VERSUS

IBRAHIM BALIKUDDEMBE::::::::::::::::::::::::::::RESPONDENT

(Suing through his lawful attorney

Steven Mbalinda)

JUDGMENT

BEFORE:   HON JUSTICE HENRY I. KAWESA

This appeal arises from the judgment of Her Worship Nantege Christine, a grade one Magistrate, sitting at the Chief Magistrates Court of Makindye at Makindye; wherein she decreed in favour of the Respondent in respect of a Kibanja located in Mudde, Katuuso Zone.

The grounds of the appeal are:

  1. That the learned trial Magistrate erred in law and fact when she entertained a suit outside her pecuniary jurisdiction and wrongfully determined the same thus rendering her judgment nullity.
  2. That the learned trial Magistrate erred in law and fact when she proceeded under O.9 r9 of the Civil Procedure Rules, thereby reaching a decision that prejudiced the Appellant.
  3. That the learned trial Magistrate erred in law and fact when she failed to properly weigh and evaluate the evidence on record adduced at trial as a whole, thereby arriving at a wrong decision.
  4. That the visit to the locus in quo and the proceedings thereat were a complete farce as the trial Magistrate flagrantly disregarded the principles governing inspection of sites by the Courts and thus occasioned gross injustice to the Appellant.

Counsel for both parties filed written submissions which I shall consider in determining the aforesaid grounds.

I am mindful of this Court’s duty, on first appeals, to evaluate the evidence on record and come up with its own opinion bearing in mind that it did not have the opportunity to observe the demeanor of witnesses.  Counsel for the Appellant ably submitted about this and cited Begumisa & Others versus Tibebaga [2004] 2 E.A 17 in support thereof, among others.

Ground one:

That the learned trial Magistrate erred in law and fact when she entertained a suit outside her pecuniary jurisdiction and wrongfully determined the same thus rendering her judgment nullity.

I have looked at the parties’ pleadings in respect of the value of subject suit land. This was never specifically captured in the plaint as required by O.7 r. 1(i) of the Civil Procedure Rules.  However; the Respondent pleaded, in his plaint, that he acquired the suit land, in 1993, at Ugshs.3,650,000/- (shillings three million, six hundred fifty thousand) unlike the Appellant’s written statement of defence  which is completely silent but pleads that he also acquired the suit land from Equatorial Real Estates Ltd and attached a sale agreement to that effect.  

The monetary consideration in this sale agreement, dated 3rd January, 2016, is Ugshs.25,000,000/- (shillings twenty five million).  I also note that the suit had another defendant, whose purchase agreement attached, to his written statement of defence as annexures “B”, intimates that he obtained the suit land at Ugshs.78,000,000/- (shillings seventy eight million).

At trial, Counsel for the Appellant raised the issue of jurisdiction but this was overlooked, the trial Magistrate noting three things upon which she dismissed his objection that is:

(1) That the matter was governed by civil customary law for which she had jurisdiction as per Section 207(2) of the Magistrates Court Act, Cap 16,

(2) That the value of the subject matter was never pleaded by the parties, and;

(3) that the suit was entirely founded on trespass to land for which she was competent to handle as per Section 207(3) of the Magistrates Court Act, Cap 16. All this, given the circumstances of the suit, in my opinion, was erroneous.

First, the matter was not governed by Civil Customary Law. It is trite that, the status and rights of bibanjas occupants is a matter of statutory law under the Land Act Cap 277.

Two, although no party specifically pleaded the value of the subject matter, it could be gathered from the Appellant and the other defendant’s written statement of defences, the pleadings and the attachments, that the same was Ugshs.25,000,000/- (shilling twenty five million), or even more.

Lastly, the suit was not entirely premised on trespass to land but also touched the issue of ownership of the suit land since the Respondent sought “for a declaration that the Plaintiff is the lawful owner of the Kibanja…” For this reason alone, I reject Counsel for the Respondent’s submission that the suit was premised only on trespass to land.

According to Section 207 (1) (b) of the Magistrates Court Act, Cap 16, as amended, a Grade I Magistrate is competent to handle civil matters whose pecuniary value does not exceed Ugshs.20,000,000/- (shillings twenty million).  In this case, the value of the suit land evidently exceeded Ugshs.20, 000,000/- (shillings twenty million).  The matter was not one governed by Civil Customary Law, or entirely premised on trespass to land which the learned Magistrate could competently handle under Section 207(2) and (3) of the Magistrates Court Act Cap 16.  As such, I agree with the Appellant Counsel’s submission and find that the learned trial Magistrate lacked jurisdiction to handle the suit.

Regarding the effect of the above finding, it is trite that any judgment rendered without jurisdiction is a nullity.   See Stephen Mubiru versus Annet Mubiru HCRev. Cause No.04 of 2014.  Additionally, Counsel for the Appellant also ably cited George Wandera versus Gerald Wafula H.C.C.A No.032 of 2008 wherein I observed that; ‘a suit filed in a Court without jurisdiction is also a nullity’.

Accordingly, it is my finding also that the suit, judgment and orders rendered in the lower Court are a nullity.  The above findings disposes of the rest of the grounds of the appeal.  Consequently, the appeal is allowed; and the judgment and orders of the lower Court are hereby set aside.  A judgement without jurisdiction amounts to a nullity.

The said judgment is accordingly nullified and the suit from which it is founded being before a Court without jurisdiction is consequently dismissed therefrom.  

If the Respondent desires to proceed with the matter, he should file a fresh suit before a competent Court.  The costs incurred by the Appellant in this appeal and in the lower Court shall be borne by the Respondent.

I so order.

………………………

Henry I. Kawesa

JUDGE.

9/11/2020.

 

 

 

9/11/2020:

Counsel Kakeeto Siraj for the Appellant.

Counsel Segujja Isma for the Respondent.

Attorney in Court.

Clerk – Nakabuye.

 

Court:

Ruling delivered today.

Sgd:

Flavia Nabakooza K.

DEPUTY REGISTRAR.