[2023] UGHC 442

#### THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA **HOLDEN AT RUKUNGIRI** CIVIL APPEAL NO.028 OF 2022 (FORMERLY CIVIL APPEAL NO.018/2019-KABALE HIGH COURT) (ARISING FROM CIVIL MISC. APPLICATION NO.076/2014) (ARISING FROM THE DECISION OF LCIII COURTOF NYAKISHENYI DATED $26/05/2004$ )

#### KACWANGANYI WILSON:::::::::::::::::::::::::::::::::::: **VFRSUS**

#### PETERO BANAGAKANWA::::::::::::::::::::::::::::::::::

(Appeal from the Ruling of the Chief Magistrates Court of Rukungiri, delivered by the His Worship Kule Moses Lubangula, Chief Magistrate dated 17/04/2019 Miscellaneous Application No. 76 of 2014 Arising from L. C. III Court Nyakishenyi dated 26/05/2004)

#### BEFORE: HON. JUSTICE TOM CHEMUTAI, JUDGE.

#### JUDGMENT

#### **Brief facts**

The appellant, Kacwanganyi Wilson filed this appeal against the decision of His Worship Kule Moses Lubangula, Chief Magistrate, Rukungiri, dated 17^th April, 2019, where he ordered for execution of the decision of the LCIII Court of Nyakishenyi subcounty dated 26/05/2004 with costs of the application and that of the lower LC courts, vide Misc. Application No.076/2014.

The facts as ascertained from the records of the lower courts are that the Respondent successfully sued the Appellant before the LC1 Court of Kijubwe in 1998 and the said court delivered its decision on 15/04/1998, declaring the Respondent as the owner of the suit land located at Kijubwe cell, Kafunjo Parish, Nyakishenyi Sub County, Rukungiri District.

The appellant, being aggrieved and dissatisfied with the said decision appealed to the LCII court of Kafunjo Parish but did not pursue the appeal until in 2003 when the said LC II court forwarded the matter to LCIII court of Nyakishenyi for further management, vide a letter dated 9^th June, 2003. According to the records the

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appeal was lodged before the LCII court of Kafunjo in April 1998. The LCIII court of Nyakishenyi upon receipt of the matter subsequently summoned the parties (appellant and the respondent herein) and together with the parties visited the locus in quo on 12/03/2004 after which it delivered its judgment on 26/05/2004 in which the respondent emerged victor.

It is alleged that since then the respondent had been in possession of the suit land until 2012 when the appellant trespassed, hence the filing of Miscellaneous Application No.076/2014 by the respondent for enforcement of the decision of the LCIII Court of Nyakishenyi dated 26/05/2004. The application was allowed by court and the appellant being aggrieved, filed this instant appeal.

### Representation

During the hearing of this appeal, the Appellant was represented by M/S Ainembabazi Ambrose & Co. Advocates and the Respondent was represented by M/S Mark Mwesigye & Co. Advocates.

Court ordered both parties to file their submissions and both complied through their respective counsel and court shall take the said submissions into account.

### Grounds of appeal

- 1. The learned Chief Magistrate erred in law and fact when he upheld the decision of LC1 Court of Kijubwe, Kafunjo parish, Nyakishenyi Sub County when it was not vested with the jurisdiction. - 2. That the forwarding letter of LCII Court didn't become a judgment to vest LCIII Court with appellate powers and to determine nonexistent appeal. - 3. The learned chief magistrate erred in law and fact when he carried out locus visit, received evidence on matters whose proceedings were nullity.

### Preliminary objections

Before handling the merits of this appeal, this court shall address the preliminary objection raised by counsel for the Respondent to the effect that the appeal was filed without leave of court and that the appeal was filed out of time. Counsel for the appellant did not make any submissions in rejoinder on these points of objections. Court shall ignore the same and make a finding on the points of objections as hereunder.

# Whether the Appeal was filed without leave of court.

Section 16 (1) of the Judicature Act enjoins the High Court with the jurisdiction to determine appeals from decisions of Magistrates courts in the exercise of their original or appellate jurisdiction.

Section 77 (1) of the Civil Procedure Act stipulates as follows; -

# "Except as otherwise provided no appeal shall lie from any order made by a court in the exercise of its original or appellate jurisdiction"

Order 44 Rule 1 of the Civil Procedure Rules is to the effect that except as otherwise provided, no appeal shall lie from any order made by a court in the exercise of its original or appellate jurisdictions save for interlocutory decisions specified in Order 44 Rule 1(1) of the Civil Procedure Rules.

Order 44 Rule 1(2) of the Civil Procedure Rules is to the effect that where the order sought to be appealed from is not listed in order 44 Rule 1 (1) of the Civil Procedure Rules, leave must be sought before an appeal is made.

Order 44 Rule 1(3) of the Civil Procedure Rules requires leave to be made before the same court which made the order.

Section 220 (4) of the Magistrate's Courts Act is to the effect that the application for leave should be made within 30 days from the date of the decision sought to be appealed from and within 14 days to the High Court upon refusal by the Chief Magistrate to allow the application.

In the instant matter, it is not disputed that there was no application for leave before the Chief Magistrate or an application for such leave before the High Court upon refusal by the Chief Magistrate.

This Court is aware of the decision of the Supreme Court in Re Christine Namatovu Tibaijjukira [1992-93] HCB 85 in which the court held that;-

"The administration of justice should normally require that the substance of disputes should be investigated and decided on the merits and that errors

and lapses should not necessarily debar a litigant from the pursuit of his right."

The said decision was intended to apply in simple procedural matters only. The instant matter before court is an appeal, which must be filed as of right. It is trite law that there is no such a thing as an inherent right of appeal, an appeal being a creature of statute.

In Attorney General vs Shah No. 4 [1971] E. A P. 50 SPRY Ag President of the Defunct East African Court of Appeal, noted that ;-

"Appellate jurisdiction springs only from statute. There is no such a thing as inherent appellate jurisdiction."

In Baku Raphael Obudra and Obiga Kania vs Attorney General (Supreme Court Constitutional Appeal No.1 of 2005, It was held by Odoki CJ that;-

"Appellate jurisdiction must be specifically created by law. It cannot be inferred or implied."

The Supreme Court in Dr. Sheik Ahmed Mohamed Kisuule vs Greenland Bank (in liquidation) Civil Appeal No. 11 of 2010, held as follows on this issue at page 10 of the Judgment of Kitumba JSC.

"Where leave is required to file an appeal and such leave is not obtained, the appeal filed is incompetent and cannot even be withdrawn as an

A right to an appeal can-not be inferred, there must be a statute providing for it and if leave is required, failure to seek such leave is not a simple procedural matter which can be cured by invoking Article 126 (2) (e) of the Constitution, which is most often sought as a relief for defaulting litigants.

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Consequently, I find that this appeal is incompetent before this court and for that reason alone it must fail. However, for completeness and notwithstanding the foregoing, I shall proceed to address the other pertinent issues raised in the grounds of appeal.

Ground No.1: the learned Chief Magistrate erred in law and fact when he upheld the decision of LC1 Court of Kijubwe, Kafunjo parish, Nyakishenyi Sub County when it was no vested with the jurisdiction.

I must state that, clearly the judgment that the Chief Magistrate ordered its execution is not of the LC1 Court of Kijubwe but rather that of LCIII Court of

It is submitted for the appellant that the Local Council 1 Court did not have jurisdiction to handle a matter whose subject matter is over 5000 shillings in view of section 5 of the Executive Committee (Judicial Powers) Act, 1988. It was further submitted for the appellant that the subsequent hearing of the case in 2003 was at the time when the land tribunals were in operation.

The Respondent in reply submitted that the appellant's claims were never subject to litigation and was raised as an afterthought. It was further submitted that the Chief Magistrate's orders arose from an application for execution and before allowing the application, the Chief Magistrate granted the parties a fair hearing by allowing both parties to appear at the land in dispute. He prayed for the appeal

The applicable law to the instant matter was the Executive Committees (Judicial Powers) Act (Cap 8), which commenced on 22 January 1988, though repealed by S. 50(1) of the local council Act, Act 13 of 2006 on 8 June 2006].

S. 30 of the Land (Amendment) Act, 2004 introduced S. 76 A of the land Act which states that ".... The Parish or Ward Executive Committee courts shall be the courts of first instance in respect of Land disputes".

Therefore, before the repeal of the Executive Committees (Judicial Powers) Act (Cap 8), LC1 Courts were vested with the powers to handle land matters of customary nature as a court of first instance. This matter was first handled by LC1 Court of Kijubwe, exercising its powers as the Court of first instance which entered judgment in favour of the Respondent, dated 15^th April, 1998. The matter

commenced before the LC1 Court of Kijubwe in 1998 and was finally settled by LCIII court in 2004 and the applicable law for the whole time had been the Executive Committees (Judicial Powers) Act (Cap 8), now repealed.

With due respect to counsel for the Appellant, Local Council Courts had unlimited jurisdiction to handle land matters of customary nature as per section 5 (1) (b) and the second schedule of the Executive Committees (Judicial Powers) Act (Cap 8).

Whereas the jurisdiction of the Court was in respect of causes and matters specified in Part 1 of the First Schedule where the value of the subject matter in dispute did not exceed five thousand shillings as per section 5 (2) (a), there was an exception in section 5 $(2)$ (b) to the effect that jurisdiction of the court in respect of causes and matters specified in Part 2 of the First Schedule and in the Second Schedule would not be restricted by the monetary value of the subject matter in dispute. Land matters are one of those listed in the second schedule of the said Act. Therefore, it is my finding that the Local Council Court had jurisdiction to handle the matter.

Interestingly, the judgment which was sought to be enforced by the Respondent was that of the LCIII Court. The Chief Magistrates are vested with the powers to exercise supervisory and appellate powers over Local Council Courts by entertaining appeals from such courts and enforcement of judgments from the Local Council Courts. In the instant matter, the appeal lies in a decision of the learned trial Chief Magistrate for ordering execution of a judgment of the LCIII Court of Nyakishenyi.

In view of the foregoing discussions, the learned trial Chief Magistrate failed, in my opinion to address his mind to the above laws governing appeals from Local Council Courts. Had he done so, he would have realized that the decision of the LCIII court, which he approved and ordered for its execution vide Misc. Application No.076/2014, lacked merit since there was no appeal from the LCII court. The LCIII court simply acted on a nonexistent appeal and made its own

In my opinion The Learned Chief Magistrate ought to have dismissed the application for execution since the decision, which was be executed, was subject to laws of limitation and laws governing execution, was that of the LCI Court of Kijubwe and could have advised the applicant (now Respondent) appropriately.

I therefore set aside the decision of the Chief Magistrate, dated 17/04/2019.

Since the judgment and orders of LC1 Court of Kijubwe, dated 15/04/1998 was valid and the same was never set aside by any Courts, I find no reason to disturb it and I therefore uphold it.

## Ground 2: that the forwarding letter of LCII Court didn't become a judgment to vest LCIII Court with appellate powers and to determine nonexistent appeal.

It was submitted for the appellant that the decision of LCIII Court was null and void since the letter forwarding the matter to it was not a judgment to vest appellate jurisdiction to the LCIII Court.

I have already stated that the applicable law in this matter is the Executive Committees (Judicial Powers) Act (Cap 8), though repealed.

An appeal from LC1 Court would lie to LCII Court and then to LCIII Court as per section 28 (2) (a) and (b) of the Executive Committees (Judicial Powers) Act (Cap 8) respectively.

I must clearly note that the decision of the LCIII Court Nyakishenyi sought to be enforced was irregular since there was no appeal to it by the LCII Court of Kafunjo. The LCII court of Kafunjo clearly did not handle an appeal in view of forwarding letter dated 9^th June, 2003. This was an irregularity and the LCIII Court upon receipt of the said matter ought to have sent the matter back to the LCII Court with clear directions to handle the same.

I find that the proceedings by LCIII Court of Nyakishenyi were premature and irregular and were exercised without jurisdiction. A decision or proceedings of court, proffered without jurisdiction vested is void abnitio.

Consequently, the decision of the LCIII Court of Nyakishenyi was null and void for lack of jurisdiction.

Ground 3: the learned Chief Magistrate erred in law and fact when he carried out locus visit, received evidence on matters whose proceedings were nullity.

I have already found in ground two that the proceedings of the LCIII Court of Nyakishenyi, dated 26/05/2004 were null and void since the Court didn't have the jurisdiction. Therefore, I find that the learned Chief Magistrate erred in law and fact when he relied upon the said judgment of LCIII Court of Nyakishenyi dated 26/05/2004 and ordered for its executions vide Misc. application No.076/2014 through an order dated 17/04/2019.

In the final result, this Court orders that;

- 1. This appeal is incompetent and it is dismissed. - 2. The decision of the decision of the learned Chief Magistrate dated 17/04/2019, ordering for execution of the judgment of LCIII Court of Nyakishenyi dated 26/05/2004 was irregular and improper since the proceedings and decisions of the said LCIII court were null and void abnitio. - 3. The judgment and orders of LC1 Court of Kijubwe dated 15/04/1998 is - 4. The costs of this appeal are awarded to the Respondent.

Delivered at Rukungiri this..... ...... day of $S$ $E$ $P$ $T$ .................................. TUM CHEMUTAI **JUDGE**