[2024] UGHC 975

#### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT ARUA

### CIVIL APPEAL NO. 0023 OF 2019

(Appeal against the Ruling and Orders of His Worship Kedi Paul, the Learned Grade 1 Magistrate of Arua in Civil Suit No. 0067 of 2018 in the Chief Magistrate's Court of Arua and Arising from High Court Miscellaneous Cause No. 0016 of 2019)

# 1. ARUA PENTECOSTAL CHURCHES INITIATIVE LIMITED....................................

#### VERSUS

- 1. NATIONAL PENTECOSTAL CHURCHES OF UGANDA - 2. BORN AGAIN FAITH FEDERATION OF UGANDA LIMITED - 3. JOHN MATOGO BABU:::::::::::::::::::::::::::::::::::

#### **JUGEMENT**

#### BEFORE HON. JUSTICE COLLINS ACELLAM

$20$

#### Brief Introduction.

This is an Appeal arising from the Ruling and orders of His. Worship Kedi Paul, the learned Grade 1 Magistrate of Arua in civil Suit No. 0067 of 2018 delivered on the 5^th day of April 2019.

#### **Background**

$25$ The Appellant herein filed Civil Suit No. 0067 of 2018 in the Chief Magistrate's Court of Arua at Arua against the Respondent for a declaration that the Appellant is the lawful owner of the land and property at Plot 2 Wadrif Close in Bibia Village, a declaration that the 1^st and 2^nd Respondent's actions of threatening to evict the Appellant and its members from the suit property is illegal and unlawful, a declaration that the 1^st and 2^nd Respondent are not lawful 30 owners of the suit property and thus are Trespassers and liable for nuisance. The appellant also sought for these declaratory orders, a permanent injunction against the Respondents, their agents and or assignees, exemplary, punitive, aggravated and general damages, interest and costs of the suit.

The Appellant's cause of Action is that in 2002, Arua Pentecostal Church, before its registration 35 bought the suit land from Mr. George Gorogoro, Mr Anyaku David and two other brothers and in May 2016, the Board of Trustees of Arua Pentecostal Church registered the church as a company in the name of Arua Pentecostal Churches Initiatives limited. In December 2017, the 3^rd Defendant ceased to be a member and Director of the Plaintiff Company and Publicly resigned. That the Respondents then started writing threatening letters to the Plaintiff and its 40

members threatening to illegally evict the plaintiff without recourse to legal process

In response, the Respondents filed in their WSD and Counterclaim in which they raised a number of preliminary objections namely that there was no cause of action against them and as such, the suit is incompetent before the court, that the Appellant lacked locus to appear and

- prosecute the suit as it does in anyway own the suit property. the 3^rd Respondent raised a $\mathsf{S}$ Preliminary Point of law that the plaint did not disclose a cause of action against him hence he was wrongly sued. A counterclaim was also filed for declaration that the 1^st and 2^nd Respondents are the lawful owners of the suit property as the land does not belong to the plaintiff /appellant but rather property of the 1^st Respondent. The Respondents then sought for a declaration that 10 the defendant/appellant are Trespassers, an order of eviction, permanent injunction, general - damages, mesne profits and costs of the suit.

When the matter came up for hearing, the Respondents through their lawyers raised preliminary objections and upon listening to both parties on the said preliminary objections, the trial court upheld them thereby dismissing the Appellant 's suit and summarily entered Judgment in the counterclaim against the Appellant.

Dissatisfied with the ruling, the Appellant appealed to this honourable court.

## Decision of Lower Court.

At the trial, the Respondent raised a Preliminary Objection as to whether the plaintiff has locus standi to commence the suit and whether the plaint discloses a cause of action against the defendants.

In the lower court, the Respondents through their lawyers raised preliminary objections and upon listening to both parties on the said preliminary objections, the trial court upheld that the plaintiff has no locus standi to bring the suit because it is not the owner of the suit property and hence there was no cause of action it can sustain over property that does not belong to it thereby dismissing the Appellant's suit and entered Judgment in the counterclaim against the Appellant.

#### **Grounds of Appeal**

Dissatisfied with the decision of the lower court the Appellant lodged this appeal listing the following grounds: -

- 1. That the learned trial Magistrate erred in law and fact when he made a declaratory judgment in favour of the counterclaimant without any form of evidence adduced thereby occasioning a miscarriage of Justice. - 2. That the learned Trial Magistrate erred in law and fact when he failed to evaluate evidence on record and made an erroneous decision that the suit property belonged to the National Pentecostal Churches of Uganda thereby occasioning a miscarriage of Justice.

3. That the learned trial Magistrate erred in law and fact when he failed to address his mind on the pecuniary Jurisdiction of Grade 1 Magistrate Court thereby occasioning a miscarriage of Justice.

### **Legal Representation**

During hearing, the Appellants were represented by M/S Bandaru & Co. Advocates whereas the 40 Respondents were represented by M/s Madira & Co. Advocates.

I wish to note that counsel filed written submissions on record, however, I shall not reproduce the same but rather consider the submissions in the determination of this appeal.

#### **Resolution of the Appeal**

Duty of court. 45

$\Delta$

I have carefully studied the record, the parties' submissions and the law & authorities relied on 5 therein. I have also had regard to the law and authorities not cited by the parties but relevant to the determination of the present appeal.

This is a first appeal, the legal obligation of this Court, therefore, is to re-appraise the evidence and draw inferences of fact. SEE: Rule 30 (1) (a) of the Judicature (Court of Appeal Rules) Directions S.113-10.

While discussing the duty of the first appellate court in the case of *Uganda vs. George Wilson* Simbwa, Criminal Appeal No. 37 of 2005, the Supreme Court stated as follows:

"This being the first appellate court in this case, it is our duty to give the evidence on record as a whole that fresh and exhaustive scrutiny which the appellant is entitled to expect and draw our own conclusions of fact. However, as we never saw or heard the witnesses give evidence, we must make due allowance in that respect."

The parties are entitled to the court's own decision on issues of fact as well as of law. In case of conflicting evidence, the court has to make due allowance for the fact that it has neither seen nor heard the witnesses. See: Fr. Narcensio Begumosa and others =Vs= Eric Tibebaga SCCA No. 17/2002; Bance Arabe Espanal -Vs-Bank of Uganda SCCA No. 008/1998.

This Court therefore has a duty to appreciate the evidence adduced in the trial Court, subject it to exhaustive scrutiny and re-evaluate evidence and be mindful to avoid a miscarriage of justice in a bid to reach its own conclusion.

Before I proceed to resolve the grounds, I wish to note that the Appellants withdrew ground 2 of the Appeal as stated in the Memorandum of Appeal and sought leave of Court to concede to 25 the withdrawal which is granted.

#### Ground 1

That the learned trial Magistrate erred in law and fact when he made a declaratory judgment in favour of the counterclaimant without any form of evidence adduced thereby occasioning a miscarriage of Justice.

# **Submission of the Appellants**

Counsel quotes Order 8 rules 2 (1) of the Civil Procedure Rules which provides specifically for counterclaims and state that a defendant in any action may ...set up by way of counterclaim against the plaintiff, any right of claim and the counterclaim shall have the same effect as a cross action so as to enable the court to pronounce a final judgment in the same action ......

Further order 8 rule 13 of the Civil Procedure Rules provides that if in any case in which the defendant sets up a counterclaim, the suit of the plaintiff is stayed, discontinued or dismissed, the counterclaim may nevertheless be proceeded with.

Counsel submits that when civil suit No. 0067 of 2018 was filed by the Appellant against the 40 Respondents, the said Respondents filed a counterclaim which they served on the Appellant who further replied to the same as shown in the record of appeal. That the Counterclaim had the same legal effect as a cross action against the Appellant as provided for under Order 8 rule 2 (1) of the CPR and this explains why the Appellants replied to the same by filling a Reply to the Counterclaim as required by Order 8 rule 11 of the CPR. Counsel concludes that the Trial 45

Magistrate had all the powers to proceed with the Counterclaim if so decided as provide for

$Am$

$\mathsf{S}$ under Order 8 rule 13 of the Civil Procedure Rules. The Magistrate summarily proceeded with the counterclaim, no scheduling was done, no evidence was led by the counterclaimants to prove their claims in the counterclaim.

### <u>Submission of the Respondents</u>

On ground 1, counsel submits that the Appellants have no locus standi to bring this suit and the 10 plaint is defective and incompetent as it discloses no cause of action against the Respondents. That there is no right the plaintiff is enjoying in the suit property, there is no title that the plaintiff is earning from the suit property only that they forced their way and that is why there is a counterclaim which form no basis for determination since the plaint is an ambiguous pleading in its entirety and offends the rules of procedure under Order 7 rule 11 (a) of the CPR 15 and the case of Auto Garage. Counsel concludes that the Appellant have not appealed against

the dismissal of the main suit as a matter of fact but instead are trying to use the issue of counterclaim to set aside the dismissal of the main suit which is unattainable in law.

#### Submission in Rejoinder.

In rejoinder, the Appellants submit that the basis of this Appeal is the summary manner in which 20 the trial court dismissed the Appellant's case and proceeded to enter Judgment on a contested counterclaim without any hearing of the same. The Trial court declared the Respondents as owners of the suit property without evidence thereby occasioning a grave miscarriage of Justice to the Appellant.

#### Analysis of court

#### $25$ Position of the law on counterclaims.

# The Black's law dictionary, $S^th$ Edition defines a counterclaim as a claim for relief asserted against an opposing party after an original claim has been made.

Order 8 rules 2 (1) of the Civil Procedure Rules which provides specifically for counterclaims and state that a defendant in any action may ...set up by way of counterclaim against the plaintiff, any right of claim and the counterclaim shall have the same effect as a cross action so as to enable the court to pronounce a final judgment in the same action ......

Order 8 rule 13 of the Civil Procedure Rules provides that if in any case in which the defendant sets up a counterclaim, the suit of the plaintiff is stayed, discontinued or dismissed, the counterclaim may nevertheless be proceeded with.

35 In law, a counterclaim is not predicated on the main suit. Being technically a suit by the defendant against the plaintiff in the same proceedings but at the same time being regarded as an independent and separate suit in which the defendant and counterclaimant is in opposition of the Plaintiff in the same proceedings. It survives the termination of the main suit.

#### See DFCU BANK LIMITED & 3 ors Vs M. P Electronics Limited & Another. Miscellaneous 40 Application No. 0124 of 2024

Being Independent and distinct from the main suit, counterclaim cannot be burdened to suffer any defect in the main suit in any way. A counterclaim has all the components of a suit in law. it has its own pleadings, evidence and is determined separately from the main suit.

$\overline{4}$

1am

It is only right to state that a counterclaim is an independent claim, separate from the plaintiff's $\mathsf{S}$ claim and it is enforceable by a cross - action in favour of the defendant.

The Counterclaim will be decided on merit even if the plaintiff's claim is dismissed, discontinued or withdrawn. It will be treated as a plaint and all rules governing the plaint shall apply and reply filed by the plaintiff in answer for the counterclaim shall be treated as a written statement as it is an independent action against the plaintiff.

The right of the counterclaimant /defendant to secure his rights in counterclaim is kept intact and is not affected by the dismissal, withdrawal, termination of the main suit. It is treated independent and separate.

In the instant facts, I agree with the Appellants that the mode of dismissal of the Counterclaim by the trial Magistrate without hearing on it was untenable in law and a gross violation of the 15 rules of procedure as envisaged under order 8 of the Civil Procedure Rules. The Trial Magistrate allowed the counterclaim as in its pleadings with costs. With due respect to the trial Magistrate, this was a gross violation of the rules of procedure.

Accordingly, in light of the above, this grounds therefore succeeds.

Ground $3$ 20

That the learned trial Magistrate erred in law and fact when he failed to address his mind on the pecuniary Jurisdiction of Grade 1 Magistrate Court thereby occasioning a miscarriage of Justice.

#### Submission of the Appellants

- Counsel submits that section 207 (1) b of the Magistrate's Court Act as amended provides that 25 a Magistrate Grade 1 shall have Jurisdiction where the value of the subject matter does not exceed twenty Million shillings. Counsel adds that although there is no valuation report on court record to show the actual value of the suit land, it was still incumbent on the trial Magistrate to ascertain whether he had jurisdiction to handle the matter before him or not. - That what is clear on the pleadings is that the suit property contains place of worship, a fence 30 and a school known as little angels Nursery and Primary school as shown under paragraphs 7 and 8 of the counterclaims. Counsel adds that the value of the subject matter is way beyond the pecuniary jurisdiction of this Court. Counsel concludes that this does not fall within the exceptions because in the instant case, the dispute is not governed by customary law which confers upon the Magistrate unlimited Jurisdiction, but it is a dispute over land wherein both 35 - parties claim ownership. All the above indicates that the suit was not governed only by civil customary law but also contractual law which arise from its purchase.

#### Submission of the Respondents

In response, the Respondents submit that Magistrate Grade 1 has unlimited Jurisdiction in matters which are civil in nature and purely governed by Civil Customary law. That the suit 40 property is unregistered customary land which fits within the pecuniary Jurisdiction of the meaning of section 207 (1) (b) of the Magistrate Act. That the Appellants are being far-fetched and speculative on their allegation because there is no valuation report on records to determine the value of the suit property and in fact they are guilty of failure to exercise due diligence when filing this suit since they were the Plaintiffs who sued the defendants in this suit and at the same

45 time, they lacked locus standi to bring this civil suit No. 0067 of 2018.

$\mathbf{A}\mathbf{A}$

#### Analysis of Court. $\mathsf{S}$

Jurisdiction means the Authority which a court has to decide matters that are before it or take cognizance of matters presented in a formal way for its decision. The Limits of this Authority are imposed by statute under which the court constituted and may be extended or restricted by the like means. See Owners of Motor Vessels Lillian Vs. Caltex Oil Kenya Limited (1989) KLR 1.

Lack of Jurisdiction cannot be cured under Article 126 (2) e of the constitution of Uganda and 10 neither can it be conferred on a court or taken away by consent of the Parties and that any waiver on the part cannot make up for the lack of defect of Jurisdiction. See Mulindwa George Williams Versus Kisubika Joseph Civil Appeal No. 12 of 2024. Supreme Court of Uganda.

Section 207 (1) b of the Magistrate (Amendment) Act 2007 provides that a Magistrate Grade 1 shall have Jurisdiction where the value of the subject matter does not exceed twenty Million 15 shillings.

Subsection 2 provides that where a cause or matter of a civil nature is governed by Civil customary law, the Jurisdiction of a Chief Magistrate and Magistrate Grade 1 shall be unlimited.

Section 1 (1) a of the Magistrate Court Act defines Civil Customary law as the rules of conduct which govern legal relationship bs as established by custom and usage and not forming part of 20 common law not formally enacted by parliament.

In light of facts and on perusal of the record, the claim is for declaration of ownership of property sold to the 1^st Respondent on which the Appellants claim its ownership. It is their claim if they contend that the suit property has developments whose value is greater than the pecuniary jurisdiction of the Magistrate Grade 1. The suit property arose out of a purchase made by the 1^st

25 Respondent.

With or without Evidence, if the Magistrate didn't have jurisdiction, then such cannot be cured by failure of a litigant to present the value of the subject matter, it is incumbent on officers of court to ensure they are clothed with such power to entertain a matter.

Pursuant to the forgoing, this ground succeeds. 30

> I hereby set aside the decision of His. Worship Kedi Paul, the learned Grade 1 Magistrate of Arua in Civil Suit No. 0067 of 2018 delivered on the 5^th day of April 2019 and direct the parties to file their suit in a court of competent Jurisdiction for determination on its merits.

I so Order.

a Solver 2024 ......day of......... Dated at Arua this.........

Collins Acellam 40

**JUDGE**