THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT JINJA
CIVIL APPEAL NO.070 OF 2016
(Arising out of the Chief Magistrates Court of Jinja Holden at Jinja Civil Suit No. 030 of 2012)
- NAMULONDO GETURUDA
- NAMULONDO FAITH….……….......................APPELLANTS
- MUKWANGA FATINA
- KINTU ASHRAF…….………….…………….…..RESPONDENT
JUDGMENT ON APPEAL
BEFORE HON. LADY JUSTICE EVA K. LUSWATA
This is an appeal from the decision of His Worship Peter Mutala Magistrate GD1 Jinja, delivered on 18/05/2016. The appeal was presented by Mr. Okoth-Osillo Advocates but argued by Mr. Moses Kizza, while Mr. Nakueira Musa represented the respondents. Submissions were made orally in Court on 7/5/2019.
The appellants were the plaintiffs in the lower court and sued the defendants for a declaration that they are the lawful owners of land and developments comprised in LRV 1950 Folio 15 Plot 27 in Kagoma County Block 6 Buwenge (hereinafter the suit property), and cancellation of the 2nd respondent’s title thereto for fraud. The appellants contended in their plaint that at some point, the suit land belonged to Petero Namanda (hereinafter referred to as the deceased) who left it to them as a gift intervivos before his death. That they then appointed one Abubakar Mukwanga as caretaker of the suit property, allowed him to take possession and empowered him to collect and remit to them rent from the suit property. That following Abubakar Mukwanga’s death, the 1st respondent his widow, refused to vacate the suit property or to remit any rent to the appellants. That after they filed a suit against her, they discovered that the 2nd respondent had procured registration of the suit property and both respondents are thus in illegal occupation of it.
When the matter came up for hearing, respondent’s counsel raised three preliminary objections that the Court had no jurisdiction to cancel a certificate of title, the plaint did not disclose a cause of action and was barred by the Limitation Act. The Learned Magistrate overruled the last two objections but agreed that his Court had no powers to order cancelation or alteration of a certificate of title. He dismissed the suit and advised the appellants to file a fresh case in the High Court. They were dissatisfied with that decision and thus filed this appeal on the following two grounds that:
- The Learned Trial Magistrate erred in law when he ruled that appellants’ suit was barred by law and could not be entertained by his court, thusdenying the appellant the right to be heard.
- The Learned trial Magistrate erred in law and fact when he summarily dismissed the appellants’ suit on the sole ground that the court lacked jurisdiction to cancel certificate of title, thus denying the appellant a right to be heard on the merits of their case.
Duty of the Court
My powers and limits as a first appellate Court are well documented and will apply whether the appeal is against a final decision, or one against a decision made in interlocutory or preliminary proceedings. I must reconsider the points of law raised at the trial vis-à-vis the nature of the pleadings and evaluate them to the extent that I draw my own conclusions. In doing so, I am bound to apply the law in much in the same way as the trial Court should have done and make a findingof whether the trial Magistrate came to a correct decision after applying the law (and if necessary the facts in the pleadings) as presented. See for example D. R. Panyda Vrs R (1957) EA 33 and Selle & Another Vrs. Associated Motor Boat Company Ltd & Another (1968) EA 126.
Resolution of the grounds of appeal:-
Grounds 1 and 2
In his brief submissions, Mr. Kizza argued that available authorities hold the view that Magistrates have jurisdiction to hear cases seeking orders to cancel title, provided that the decision is then forwarded to the High Court to implement the cancellation order. That it is only preferable that such matters be filed in the High Court which has unlimited jurisdiction, to avoid double litigation and ensure expeditious dispensation of justice. He continued that the accepted principle dating back to the 1980’s is that Magistrates, in particular a Chief Magistrate and Grade One Magistrate, have concurrent jurisdiction with the High Court in such matters.That this implied jurisdiction can be traced to Section 177 RTA. Counsel provided several pertinent cases, persuasive to this court which shall be considered.
In response, Mr. Nakueria submitted that the Learned Magistrate’s decision was correct because he lacked jurisdiction conferred by law. His interpretation of Section 177 RTA is that it expressly and impliedly bars a Magistrate from handling matters involving cancellation of title, which is a preserve of the High Court. He explained that it is only a party who has successfully applied for declaratory orders for recovery of land, who can then apply to the High Court for consequential orders for cancellation, which is not the case here. He concluded that the Magistrate did not issue an order that determined the rights of the parties, but only dismissed the suit, one filed before a court without jurisdiction and therefore, a nullity. He submitted further that the appellants had infact filed a fresh suit in the High Court (HCCS No. 13/2017), involving the same parties, with the addition of the Registrar of Titles, as a defendant.
Mr. Nakueria argued secondly that the current appeal which does not lie as of right, offends Order 44 rr (1) and (2) CPR because the appellants did not seek leave of either the Magistrate or High Court before it was filed. He deemed it incompetent and prayed for its dismissal.
In his brief response, Mr. Kizza argued that for cases where a ruling finally determines the matter, the right of appeal is automatic. He provided the decision of the Supreme Court in Hwan Sung Ltd Vrs M. and D. Timber Merchants & Transporters Ltd SCCA No. 2/ 2018, which considered the provisions of Article 126(e) of the Constitution to find that Order 44 CPR is not mandatory in all cases. He conceded that subsequent to filing this appeal, his clients filed a fresh suit but that the existence of the suit is not a bar to prosecute this appeal. He argued that a new party was introduced in the fresh suit, and arguing the appeal was necessary so that what an illegal decision of the Learned Magistrate is addressed.
It is provided in Section 77 RTA that:
Upon recovery of any land, estate or interest by any proceedings from the person registered as proprietor thereof, the High Court may in any case in which the proceedings is not herein expressly barred, direct the Registrar to cancel any certificate of title or instrument, or any entry or memorial in the Register Book relating to that land, estate or interest, and to substitute such certificate of title or entry as the circumstances of the case require, and the Registrar shall give effect to that order”
Going by the above provision, I would agree with Mr. Kizza that adjudication of cases involving recovery of land is not the preserve of the High Court alone. The jurisdiction of the High Court can be invoked by any party who has recovered land by decree of Court, including a Magistrate’s Court. The High Court would then, in any case not otherwise barred, invoke her powers to order the Registrar of Titles to cancel any certificate of title or instrument and cause rectification of the Register.
It is the agreed position in many of the authorities provided that a Magistrate Court that issues an order of cancellation, can be moved by application to the High Court, to forward the record and decree to the High Court for consequential orders to be made. See for example, Isaka Semakula & Anor Vrs William Setimba HCCA No. 05/2013. Justice Musota advised in Sajjabi John Vrs Zziwa Charles HCCA No. 50/12(following Munobwa Muhamed Vrs Uganda Muslim Supreme Council HCCR No. 1/2006) that, the rationale of that section is that although the title could be subject to cancellation, the suit has been disposed of by a competent Court. The consequential order is made only after recovery of land to enable one to obtain registration and rectification of the Register in their favour and against the party previously so registered. See Andrea Lwanga Vrs Registrar of Titles (1980) HCB 24.
In their plaint, the appellants sought (interalia) for a declaration that the suit land belonged to them and an order for cancellation of the 2nd respondent’s name from the title in their favour as beneficiaries of the deceased’s estate. In no uncertain terms, the appellants were seeking an order for the recovery of an interest in land which they pleaded they lost through fraud. The trial Magistrate had jurisdiction to adjudicate the matter and had he found in favour of the appellants, then it would have been open to them to engage the High Court to issue consequential orders to the Registrar of Titles to cancel the 2nd respondent’s title and rectify the Register of Titles. Thus the suit was not barred by any statute and the Learned Trial Magistrate had jurisdiction to hear it.
The grounds of appeal would on that footing succeed
My decision above notwithstanding, Mr. Nakueira in addition raised an objection that the appeal being one made against a ruling to determine preliminary objections raised against the suit, offends the provisions of Order 44 CPR. This is because no leave of the Magistrate or of this Court was sought before it was filed. Should this objection have merit, then the appeal would be barred by law.
It was argued for the respondents and I agree that an order by a Magistrate under Order 7 rr 11(d) CPR is not appealable as of right. Appeals being creatures of statute, the jurisdiction of the High Court on appeal would automatically extend only to those decrees passed under Order 44rr 1 and 2 CPR. Mr. Kizza agreed with that position of the law but argued that the Learned Magistrate’s decision finally determined the matter and as such, an appeal against his order would be appealable as of right.
The decision in Hwang Sung Ltd Vrs M. & D. Timber Merchants & Transporters Ltd (supra) is applicable to the facts of this case. In that case, the Supreme Court was considering an appeal against the order which dismissed a case under Order 7 rr 11(d) for being time barred. The Court considered the definition of a “decree” given in Section 2(c) CPA which provides that:
“decree means the formal expression of an adjudicating which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to any of the matters in controversyin the suit and may be either preliminary or final. It shall be deemed include the rejection of a plaint or writ and the determination of any question withinSection 34 and 92……”
Justice Butera also considered the decision of the Court of Appeal of EA in South British Insec Co Ltd Vrs Mohamedali Taibji Ltd (1973) EA 210 which interpreted that section thus:
“If the decision conclusively determines the rights of the parties, then it would be a decree, otherwise it would be an order. If for instance portions of a plaint are struck out as being frivolous or vexatious, or if the suit is stayed, sucha decision would be an order, whereas if a suit is dismissed with costs, that could be a decree. A decree is appealable, and an order made in terms of Order 6 rr 29 is appealable also.”
He then went on to advise that interpretation of the provisions in Section 2 of the CPA should take precedence over those in Order 44 rr 2 CPR because the former being a principle legislation, takes precedence over the latter.
Similarly in this case, the Magistrate dismissed the suit on the preliminary ground that his Court had no jurisdiction to entertain the matter and ordered costs in favour of the respondents. Although he made an additional order (per curiam) that the appellants can file a fresh suit in the High Court, his decision wholly determined the matters in controversy before him, and would thus be deemed to be a decree and not an order of his Court. His decision which is envisaged to be a decree under Section 2(c) CPA, is appealable as of right without first seeking leave. I would accordingly overrule Mr. Nakueira’s objection.
I note that Mr. Nkueira submitted, and it was conceded by Mr. Kizza that subsequent to filing this appeal, the appellants filed a suit in the High Court on the same facts and seeking similar orders, with the only new matter being the addition of the Registrar of Titles as a defendant. The effect of the suit is that the appellants are seeking a similar remedy in two different courts which is against the policy of court. Mr. Kizza explained that this anomaly may have been due to inadequate legal advice, and considerations were being made to withdraw the suit in the High Court. Be it as it may, the suit in the High Court would not prevent my court from making a decision on this appeal which was filed first in time. Should the appellants choose or fail to withdraw it, that issue can be raised when the suit is called to hearing and appropriate orders made.
In summary I have agreed with Mr. Kizza that the Learned Magistrate was clothed with jurisdiction to hear the matter and the appellants did not require leave of Court to file this appeal. The appeal accordingly succeeds and I make the following orders
- The ruling of His Worship Peter Mutala dated 18/5/2016 and all orders therein are set aside
- Civil Suit No. 030/2012 is reinstated and shall be heard by another Magistrate
- The appellants are granted costs of this appeal and of the court below.
I further direct that the record be returned to the Magistrate’s Court in Jinja for my order to take effect.
I so order.
EVA K. LUSWATA