[2025] UGHC 401

**THE REPUBLIC OF UGANDA**

**IN THE HIGH COURT OF UGANDA AT KASESE**

**HCT-25-LD-CA-0003-2024**

**(FORMERLY FORT PORTAL HCT-01-LD-CA-0023-2022)**

**(ARISING FROM KAS-00-CV-CS-MC-0014-2022)**

**BWAMBALE DAVID=========================================APPELLANT**

**VERSUS**

**JANE TIBAKUNIRWA MASWENTO============================RESPONDENT**

**BEFORE JUSTICE DAVID S. L. MAKUMBI**

**JUDGMENT**

**Representation:**

Appellant represented by M/s Spero Advocates.

Respondent represented by M/s Sibendire, Tayebwa & Co. Advocates.

**BACKGROUND:**

This is an Appeal against the ruling and orders of His Worship Opio James the Chief Magistrate of Kasese in which he had found that the Appellant was served and he ignored court summons, that the Local Council Court lacked territorial and Pecuniary Jurisdiction and further ordered that execution of the Judgement of the LC II court Judgement of Kitsutsu passed on 3rd November 2021 be carried out.

The above appellant being aggrieved and dissatisfied by the Ruling and orders passed on 7th October 2022 brought this appeal seeking prayers thus;

1. That the appeal be allowed. 2. That the ruling and orders of the learned trial Chief Magistrate be set aside and substituted with an order dismissing the respondents' application. 3. That the Respondent pays the costs of this appeal and the Court below. 4. That any other relief be given to meet the ends of justice.

The grounds of appeal are set out in the Appellant’s Memorandum of Appeal and are that;

1. The learned trial Chief Magistrate erred in law and fact when he failed to find that the suit land was located in Kasungu I village, Kacungiro parish, Munkunyu Sub County but not in Nkunyu village, Kitsutsu parish. Munkunyu Sub County in Kasese District. 2. The learned trial Chief Magistrate erred in law and fact when he failed to find that the appellant at the time of commencement of the suit was residing in Kasungu I village, Kacungiro parish, Munkunyu Sub County where The Court had jurisdiction in the suit land. 3. The learned trial Chief Magistrate erred in law and fact when he failed to find that the Kitsutsu parish Local Council Court had no jurisdiction to entertain a matter concerning the suit land which was not arising within its territorial area of the council for which the Court is established. 4. The learned trial Chief Magistrate erred in law and fact when he failed to find that the Appellant was not served in person with the summons to appear before Kitsutsu parish local council II Court and that there was no proof of affidavit of service on record annexed to the original summons stating the manner in which the summons were served to the Appellant. 5. The learned trial Chief Magistrate erred in law and fact when he held that there is evidence showing that Appellant / Respondent was several times summoned but ignored the Kitsutsu Parish Local Council II Court summons. 6. The learned trial Chief Magistrate erred in law and fact when he held that the Appellant never challenged the Local Council II judgment of Kitsutsu parish by way of appeal or take any lawful steps to reverse the same. 7. The learned trial Chief Magistrate erred in law and fact when he failed to find that the Kitsutsu parish Local Council II Court conducted the trial irregularly and failed to afford the Appellant opportunity to properly present his case. 8. The learned trial Chief Magistrate erred in law and fact when he held that execution of LC II Court judgment of Kitsutsu parish passed on 3rd November 2021 be carried out and that the said execution to follow eviction guidelines. 9. The learned Trial Chief Magistrate erred in law and fact when he failed to and did not properly or at all evaluate the evidence on record and as a result he came to a wrong and erroneous decision thereby occasioning miscarriage of Justice.

**Duty of the First Appellate Court:**

The duty of this Court as a first appellate court as laid down by the Supreme Court in the case of **Father Nanensio Begumisa and three others v. Eric Tiberaga Civil Appeal No. 17 of 2000** is as follows,

*“It is a well-settled principle that on a first appeal, the parties are entitled to obtain from the appeal court its own decision on issues of fact as well as of law. Although in a case of conflicting evidence the appeal court has to make due allowance for the fact that it has neither seen nor heard the witnesses, it must weigh the conflicting evidence and draw its own inference and conclusions*.”

This Court therefore has a duty to re-evaluate the evidence before the lower Court in its entirety and the subsequent decision of the Court and reach its own decision on the correctness of the decision of the lower Court taking into account the arguments of the parties in the appeal.

**PRELIMINARY ANALYSIS:**

In responding to the appeal Counsel for the Respondent raised the following preliminary objections.

1. The appeal is incompetent for being filed without leave of Court. The Respondent submitted that the appeal had been filed without leave contrary to Section 76 of the Civil Procedure Act and Order 44 of the Civil Procedure Rules. 2. The appeal is frivolous, vexatious and an abuse of court process. The Respondent argued that the appeal is based on grounds that cannot be determined in an application for consent to execute. 3. The submissions in the application were filed out of time without leave of Court.

In response to the above, Counsel for Appellant argued that the objection was misconceived. Counsel argued that the application seeking consent of the Chief Magistrate to execute a judgment of the Local Council Court is provided under Regulation 58(3) of the Local Council Courts Regulations 2007 and was therefore at execution level. To that extent Counsel submitted that the matter was governed purely by Local Council Courts Act and the attendant Regulations.

Counsel for the Appellant cited Regulation 60(1)(d) of the LC Courts Regulations concerning appeals against orders and decrees arising from appeals before the Chief Magistrate shall be filed to the High Court either with leave of the Chief Magistrate or of the High Court. This position is also provided in Section 32(2)(d) of the Local Councils Courts Act. Counsel argues that the application being appealed was not a substantive appeal before the Chief Magistrate but merely an application for consent to execute and was therefore excluded from the requirement for leave to appeal under the Local Councils Act and Regulations.

Counsel argued that the consent to execute was an exercise of original jurisdiction that was therefore appealable by virtue of Section 219(1)(a) of the Magistrates Courts Act.

I have considered the foregoing arguments of both Counsel in this matter.

Article 139(2) of the Constitution provides with regard to appeals to the High Court that subject to the provisions of the Constitution and any other law, decisions of any court lower than the High Court shall be appealable to the High Court. Therefore by virtue of the Constitution an appeal is not a matter of right but rather a creature of statute.

In this matter the Appellant argued that the nature of the application being appealed is such that there is an automatic right of appeal by virtue of Section 219(1)(a) of the Magistrates Courts Act.

Section 219(1)(a) of the Magistrates Courts Act provides that subject to any written law and except as provided in this section an appeal shall lie from the decrees or any part of the decrees of a Magistrate’s court presided over by a Chief Magistrate or a Magistrate Grade 1 in the exercise of its original civil jurisdiction, to the High Court.

The question for this Court to determine on a preliminary level therefore is whether an order of the Chief Magistrate under Section 39 of the Local Council Courts Act and Regulation 58(3) of the Local Council Courts Regulations qualifies as an exercise of original civil jurisdiction qualifying for appeal within the meaning of Section 219(1)(a) of the Magistrates Courts Act.

According to Black’s Law Dictionary, 2nd Edition, original jurisdiction is defined as the authority of the court that tried the case originally. The 11th Edition further refines the definition to a court’s power to hear and decide a matter before any other court can review the matter.

Section 39 of the Local Councils Courts Act grants the Chief Magistrate general supervisory authority under the Judicature Act over Local Council Courts on behalf of the High Court.

In relation to the above, Regulation 58(3) of the Local Council Courts Regulations provides that Court shall not make an order for the attachment of the immovable or real property of a judgment debtor, crops still in the field, the dismantling of his or her dwelling house or the removal of the judgment debtor from the land except with the written consent of a Chief Magistrate.

Regulation 58(3) of the Local Councils Courts falls under Part IX of the Regulations titled Enforcement of Judgment or Decision of Court and the plain context of the Regulation itself shows that the object of the regulation is to secure written consent of a Chief Magistrate as part of the process of enforcement of a judgment or decision of a Local Council Court. This regulation cannot therefore be interpreted to mean the exercise of original jurisdiction by the Chief Magistrate. Clearly the Chief Magistrate never tried the case for which the consent is sought and was not sitting to hear and decide the matter for which consent was being sought. The learned Chief Magistrate cannot therefore be seen as exercising original jurisdiction.

The argument by Counsel for the Appellant concerning the application of Section 219(1)(a) of the Magistrates Courts Act to this matter in terms of right of appeal is therefore misconceived and erroneous. However, I must also point out that even the premise upon which the preliminary objection is founded is itself erroneous.

Counsel for the Respondent argued that the appeal was incompetent for being filed without leave of court contrary to Section 76 of the Civil Procedure Act and Order 44 of the Civil Procedure Rules. However, as pointed out above, appeals to the High Court are creatures of statute born of the requirement laid out under Article 139(2) of the Constitution where it is provided that decisions of any Court lower than the High Court shall be appealable to the High Court subject to the Constitution and any other law.

Appeals in civil matters before the High Court are primarily governed by the provisions of Part VIII of the Civil Procedure Act and the attendant provisions of the Civil Procedure Rules. Part VIII of the Civil Procedure Act speaks of appeals only in the context of decrees and orders of Courts. It follows therefore that a matter that is the subject of appeal to the High Court must arise from a decree or order of a Court.

Section 2(c) of the Civil Procedure Act defines a decree to mean *inter alia* the formal expression of an adjudication which, so far as the court expressing it, conclusively determines the rights of parties with regard to any of the matters in controversy in the suit and may either be preliminary or final.

Section 2(o) of the Civil Procedure Act defines an order to mean the formal expression of any decision of a civil court which is not a decree, and shall include a rule nisi.

From the definitions above, it is clear that the consent of the Chief Magistrate sought under Regulation 58(3) of the Local Council Court Regulations cannot be construed as a decree or order. It is only a legal condition precedent by which the actual order or decree of the Local Council Court becomes enforceable and is therefore not even a matter for which leave to appeal can be sought.

I have had the benefit of perusing the ruling of His Worship Opio James, the Chief Magistrate in the lower Court vide Kasese Chief Magistrate Court **KAS-00-CV-CS-MC-0014-2022** from which this appeal arises and noted that having listened to arguments of both sides in the matter he couched his consent to the execution of the judgment in the following terms.

*“ … it is hereby ordered thus:*

* *Execution of LCII court judgment of Kitsutsu LCII Court passed on 3/11/2021 be carried out.* * *The said execution to follow eviction guideline.* * *Each party to bear own costs.”*

In my considered view the manner in which the learned Chief Magistrate conducted this matter suggests that he may not have addressed his mind to the provisions of Regulation 58(3) of the Local Council Court Regulations. If he had then he would have realized that the only thing required of him was to either consent or not consent to the enforcement of the judgment, in which case he would provide his reasons for not consenting and refer the matter back to the Local Council Court. Once he consented it was not within his powers to order the enforcement of the Local Council Court decision. Regulation 58(3) clearly stipulates that it is the Local Council Court that makes the order upon receiving the consent of the Chief Magistrate. His role was therefore restricted only to consenting and not making orders.

The reasons extended by the Chief Magistrate for consenting to the judgment of the LC 2 court cannot be construed as a grounds for a substantive appeal to the High Court because the subsequent consent is neither meant to be an order nor a decree as explained above. Any party aggrieved by the consent of the Chief Magistrate can only appeal in the context of the decree or order of the Local Council Court for which the consent is given but not the consent itself.

The consent of the Chief Magistrate under Regulation 58(3) of the Local Council Court Regulations is not an appealable matter because the said consent is neither an order nor a decree arising from a suit within the meaning of the definitions under Section 2 of the Civil Procedure Act.

Therefore while I disagree with the premise of the preliminary objection concerning the absence of leave to appeal as the implementation of Regulation 58(3) does not result in an order or decree, the objection still has merit on the basis that this appeal is incompetent. This is not because of absence of leave to appeal but rather because the Chief Magistrate had no power to make orders in a matter requiring consent within the meaning of Regulation 58(3). The application before the lower Court was incompetent to the extent that the Applicant sought orders in a matter where the Chief Magistrate was restricted to only granting consent to the Local Council Court to issue the relevant orders. There are therefore no orders within the meaning of Civil Procedure Act to appeal against.

It is on the basis of the analysis above that I uphold the first preliminary objection to the extent that the appeal is incompetent as the consent of the Chief Magistrate under Regulation 58(3) of the Local Council Court Regulations is neither an order nor a decree for purposes of appeal.

I further find that this objection serves to dispose of the appeal in its entirety and I find it unnecessary to address the rest of the objections and substantive merits of the appeal.

**ORDERS:**

1. The Appeal fails. 2. The orders of the lower Court vide **KAS-00-CV-CS-MC-0014-2022** are hereby set aside and substituted with consent to execute the judgment of the Kitsutsu LC 2 Court passed on 3rd November 2021. In the event that the Appellant takes issue with the merits of the LC 2 Court he should exercise his right of appeal subject to the relevant laws. 3. Each party shall bear its own costs in the appeal.

I so order.

**David S. L. Makumbi**

**JUDGE**

**18/02/25**