Court name
High Court of Uganda
Case number
Civil Appeal 94 of 2015
Judgment date
13 August 2020

Ndifuna and anor v Auma and anor (Civil Appeal 94 of 2015) [2020] UGHC 190 (13 August 2020);

Cite this case
[2020] UGHC 190
Coram
Luswata, J

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT JINJA

 

CIVIL APPEAL NO. 094 OF 2015

(ARISING FROM M/A NO. 154 OF 2015 AND M/A NO. 27/2014)

AND

(ARISING FROM CIVIL SUIT NO. 04 OF 2002 OF RESISTANCE COMMITTEE COURT OF MAYIRINYA VILLAGE, KIGANDALO SUB COUNTY, MAYUGE DISTRICT)

 

  1. NDIFUNA MAGIDU
  2. DHAFA BENEFANSIO………………………………APPELLANTS

 

VERSUS

 

  1. AUMA ROSE
  2. ACHOLA JANE………………………………….…RESPONDENTS

 

JUDGMENT ON APPEAL

BEFORE HON. LADY JUSTICE EVA K. LUSWATA

 

            This is an appeal from the decision of Her Worship Nabakooza Flavia Kalungi, Learned Chief Magistrate, Iganga Chief Magistrate’s Court, delivered on 17/02/2015.

 

Background

            Auma and Achola the respondents were on 7/8/2002 the successful parties in Civil Suit No. 4/2002 before the Resistance Committee Court (RC).1 Court of Mayirinya Village, Kigandalo Sub County in Mayuge District. They proceeded by motion to move the Chief Magistrate of Iganga in Miscellaneous Application No. 27/2014, to execute the judgment of the RC.1 Court. Ndifuna and Dhafa the appellants unsuccessfully opposed that application and the Chief Magistrate allowed execution to proceed. The appellant being dissatisfied with that decision presented this appeal by an amended memorandum of appeal on four grounds:-

  1. THAT the learned Chief Magistrate erred both in law fact when she failed to properly analyze and evaluate the evidence on record thereby arriving at a wrong decision.
  2. THAT the learned Chief Magistrate erred both in law and fact when she rejected the affidavits in reply for Hadijja Auma and Waiswa Marijani despite their overwhelming evidence and relevance to the issues before Court.
  3. THAT the learned Chief Magistrate erred both in law and fact when she believed, upheld and ordered execution of the RC. 1 Judgment of 2002, which was nonexistent at the time.
  4. THAT the learned Chief Magistrate erred both in law and fact when she believedand relied on the false affidavit in rejoinder of Wakotoli Wilberforce that he was elected LC.1 Chairman in 1992, 1996 and 2001 whereas not.

 

 

Duty of the Court

            My powers and limitations as a first appellate Court are now

well settled. I am under duty to subject the entire evidence on record to fresh and exhaustive scrutiny and make my own conclusions. In doing so, I am not bound necessarily to follow the trial Court’s findings of fact especially if it appears that the Court clearly failed in some way to take account of particular circumstances and probabilities. I hasten to add that this was not necessarily an appeal on the facts of the court of first instance, but on the decision of the Chief Magistrate in upholding a judgment of what is stated to be a nonexistent court and against the way she handled certain affidavit evidence. None the less, my duties as the first appellate court would not vary from what I have stated above. See for example Panyda Vrs R. (1967)EA 336 and Sanyu Lwanga Musoke Vrs Sam Galiwango SCCA No. 48/1995.

 

            Were David represented the appellants while the respondents were represented by Ngobi Balidawa. Both counsel filed written submissions as directed, and all shall be considered in my decision.

 

Resolution of the grounds of appeal:-

Ground 1

5]         Counsel Were chose to argue the first three grounds omnibus and counsel Ngobi Balidawa responded by arguing grounds 1, 3 and 4 in the same manner. As I have stated above, this appeal did not necessarily attack the manner in which the evidence was handled. The bone of contention was that the judgment of the RC Court was not legitimate and that certain affidavit evidence was wrongly rejected and false evidence admitted. The first ground would thus be misplaced. In any case I find it to be too be too general and thus in contravention of Order 43 rr. 2 CPR which requires that the memorandum shall have concise grounds of appeal. I believe the appellants’ reasons for appeal are well supported in the other three grounds.

 

            Accordingly, the first ground is rejected and for the above reasons fails.

 

            Ground 3

            The judgment in contention is headed “R.C.1. COURT OF MAYIRINYA VILLAGE, KIGANDALO SUBCOUNTY AT MAYUGE”. It is on record that the proceedings were recorded before the office of the R.C.1. Committee whose members are given. It is not clear when the respondents’ complaint was lodged in the Court but according to the record, hearing commenced on 5/6/2002 and a judgment was handed down on 7/8/02. According to Counsel Were, the judgment is a forged document because R.C. Courts did not exist in 2002. He argued that those courts were established under the Resistance Committee Statute 1987 (RC Statue) which was repealed in 1987 and the Courts were also later phased out by the Local Government’s Act (LGA). Further that RC and Local Council Courts (LC Courts) could not exist at the same time and thus, the RC Court had no jurisdiction and its judgment was an illegality that the Chief Magistrate should not have endorsed or allowed an execution. Giving reasons and extensively citing the law, counsel Ngobi disagreed. With respect, I find more merit in counsel Ngobi’s legal arguments, and the following are my reasons.

 

            The powers of the Chief Magistrate to order an execution of an LC Court are statutory and indeed were not contested. Section 40 Local Council Courts Act (LCC Act) gives a Chief Magistrate supervisory powers (on behalf of the High Court) over LC Courts in their jurisdiction. The LGA established administrative units but did not entrust judicial powers to the committees of those units. As stated by counsel Ngobi, judicial powers of the RC Courts were first provided for in the Executive Committee (Judicial Powers Act) 1988. The title to the Act is clear on that point. It is stated that it is:

“An Act to provide for the judicial powers of executive committees, to establish executive committees as courts, define their jurisdiction, powers and procedure and for other purposes connected therewith”.

 

            That Act was later to be repealed by the LCC Act that came into force in 2006. I would agree therefore that by the time the case was filed, argued and determined, it was the RC Courts that were still operational. By operation, the RC Courts metamorphosed in the LC Courts in 2006 and continued to operate with renewed powers given in the LCC Act. Thus the RC Court of Mayirinya was the Court with jurisdiction to hear and determine the case because it was the committee Court by law established under Section 2 of the Executive Committee (Judicial Powers Act) 1988. Its proceedings and judgment were legal, and the Chief Magistrate was correct to issue an order for execution.

 

            Accordingly, ground three fails.

 

Grounds 2 and 4

            In her judgment, the Chief Magistrate rejected the affidavits of Waiswa Mariajani and Hadija Auma on grounds that they were filed out of time and without leave of court. It was submitted for the respondents that he impugned affidavits were filed together with the applicant’s submissions, which was after the respondents had responded to the application. That is a true submission.

 

            Ndifuna and Dhafa responded to the application in their affidavits filed on 28/5/2014. A rejoinder was filed by Wakatoli Wilberforce on 23/6/2014. Whether contested or not, Wakatoli’s affidavit signified closure of evidence and any other additional affidavits could only be filed with leave of court. Waiswa and Auma’s affidavits were filed on 6/1/2015 seven months after evidence was closed and on the same date that submissions for the respondent were filed. Not only was this inordinate delay, but it also left no room for Auma and Achola as applicants to respond to any allegations therein. Those affidavits were indeed late and improperly filed and as such, correctly rejected by the Chief Magistrate.

 

            It is correct that Wakatoli Wilberforce did not file an affidavit in support of the application. He would under such circumstances have no basis to file an affidavit in rejoinder. However I note that in their affidavits, Ndifuna and Dhafa contested the judgment as being forged by one Wakatoli, who they claimed was in fact not the RC I chairperson of Mayirinya Village at the relevant time. This was a new matter which only Wakatoli could best respond to. He did so in what he referred to as an “affidavit in rejoinder/supplementary affidavit” filed on 23/6/2014. It was still open for the respondents to file affidavit by themselves or their witnesses by then. The accepted position is that affidavit evidence should be given by the person most conversant with the facts therein. Wakatoli’s affidavit was thus a supplementary affidavit which was in fact not contested. There would thus be no basis to claim that his affidavit was false and any submissions purporting to dispel his facts would thus be evidence from the bar, and inadmissible.

 

            Grounds 2 and 4 would thus fail

 

            Accordingly, I find no merit in the appeal and it is dismissed. The respondents shall have the costs of the appeal and of the Court below, as originally awarded.

 

I so order.

 

…………………………………..

Eva K. Luswata

JUDGE

13/08/2020