[2025] UGHC 507

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT JINJA MISC. APPLICN. NO 74 OF 2025 (ARISING FROM MISC APPLICATION No. 45 OF 2023 ( ALL ARISING FROM MAFUMBIRA WARD LC11 COURT No LCC/MAF/09/2022

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# <table> MAGUMBA HALID::::::::::::::::::::::::::::::::::::

### **VERSUS**

## 1. MUDUAWULIRA APPOPHIA

2. BITULI SAM :::::::::::::::::::::::::::::::::::

# **BEFORE: HON. LADY JUSTICE JOANITA BUSHARA**

### **RULING**

### **BACKGROUND**

This is an application brought by way of Notice of Motion under Section 33 of the Judicature Act, Sections 18 and 98 of the Civil Procedure Act, and Order 52 Rule 1 and 3 of the Civil Procedure Rules (as amended), seeking for orders that:

- Miscellaneous Application No. 45 of 2023 be withdrawn from the Chief 1. Magistrates Court of Jinja and transferred before this Honorable Court for trial. - Costs of this application be provided for. $2.$

## **GROUNDS OF THE APPLICATION**

This application is supported by the affidavit of Magumba Halid, and the grounds are briefly as follows:

1. Sometime in 2022, the Applicant filed a land claim (vide Court No. LCC/MAF/09/2022) at the Local Council II Court at Mafubira Ward, Jinja

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City, against the Respondents for trespass to family unregistered land located at Kitovu Cell, Jinja City.

- 2. It was decreed by the Local Council II Court that the Applicant is the lawful owner of the unregistered land situated at Kitovu Cell, Jinja City, and thus has exclusive rights to use and enjoy the land without challenge. - 3. Subsequently, on 29th September 2023, the Applicant filed Miscellaneous Application No. 45 of 2023, seeking to execute the judgment and orders of the LCII Court. - 4. To date, the said application has not been determined due to repeated adjournments by the Chief Magistrate of Jinja Court, which prompted the Applicant to lodge a complaint against her before the Chief Registrar. - 5. The Chief Magistrate intimated to one of the Applicant's lawyers that she would not handle the matter to its logical conclusion until a new Chief Magistrate was posted, as her decisions would not be believed due to being labelled a biased judicial officer. - 6. Given that the Chief Magistrate of Jinja Court has promised not to $25$ conclusively handle Miscellaneous Application No. 45 of 2023, and that Grade One Magistrates have no jurisdiction to entertain the matter, it is fair and equitable that the application be withdrawn from Jinja Chief Magistrates Court and transferred to this Honorable Court with unlimited jurisdiction for trial. 30

## **REPRESENTATION**

The Applicant was represented by Counsel Luwambya Musa of M/s Wetaka, Bukenya & Kizito Advocates. The record indicates that the 2nd Respondent indicated his desire to be removed from the case, and the 1st Respondent, though served with the instant application, did not file a reply. Consequently, the application proceeded ex parte against the Respondents.

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#### **DECISION** $\overline{5}$

I have carefully considered the Application and the affidavit in support sworn by Magumba Halid, the documents annexed thereto and submissions of the Applicant and the provisions of the law.

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The main issue for determination is whether the Misc Application 45 of 2023 should be transferred to this Honourable Court for trial.

Article 139(1) of the Constitution of the Republic of Uganda as amended provides that:-

"The High Court shall, subject to the provisions of this Constitution, have unlimited original jurisdiction in all matters and such appellate and other jurisdiction as may be conferred on it by this Constitution or other law."

Additionally, under Section 37 Judicature Act Cap 16 (Formerly Section 33, Cap $\overline{20}$ $13)$ ,

"The High Court shall, in the exercise of the jurisdiction vested in it by the constitution, this Act or any written law, grant absolutely on such terms and conditions as it thinks just, all such remedies as any of the parties to a cause or

- matter is entitled to in respect of any legal or equitable claim properly brought 25 before it, so that as far as possible all matters in controversy between the parties may be completely and finally determined and all multiplicities of legal proceedings concerning any of those matters avoided. "(emphasis of this Court). - The power of the High Court to transfer cases is primarily derived from Section 30 18(1)(b) of the Civil Procedure Act Cap 282, which provides:

"(1) On application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard, or of its own motion without such notice, the High Court may at any stage –

(b) withdraw any suit or other proceeding pending in any court subordinate to it, and

*try or dispose of the suit or proceeding;* $(i)$

- transfer the suit or proceeding for trial or disposal to any court $(ii)$ subordinate to it and competent to try or dispose of it; or - retransfer the suit or proceeding for trial or disposal to the court from (iii) which it was withdrawn."

This provision is echoed in Section 217 of the Magistrates Courts Act Cap 19. $10$

Courts have laid down principles to guide the exercise of the power of transfer. In Musisi Kibugujje Badman Versus Namakula and Anor HCMA No.303 of 2017, Court stated that Section 18 CPA empowered the High Court to transfer cases unto itself or to other subordinate courts but made no mention of jurisdiction or lack of it of the Court from which such a matter originates.

As was noted by Hon. Justice Stephen Mubiru in Okello John Felix Vs Oloya Samuel & Anor, Miscellaneous Civil Application No. 159 of 2018, a common reason for transfer is the existence of a reasonable apprehension in the mind of a 20 party that they will not get justice at the hands of the presiding judicial officer. However, the transfer of cases is a serious matter that indirectly casts doubt on the integrity or competence of the judicial officer from whom the matter is transferred. Therefore, while the High Court has wide powers to transfer cases in the interest of justice and fair play, this power must be exercised judiciously and objectively, $25$ ensuring it does not unnecessarily impute dishonourable or unjustifiable disgrace or slur on the court from which the suit is transferred. When exercising this power, the Court must act judicially guided by its sense of justice, on objective considerations and not subjectively.

In the case of Kagenyi vs. Misiramo & ors [1968] EA 43, Udo Udoma J. (as he then was) held that;

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the onus lies on the party applying for a case to be transferred to make out a strong case to the satisfaction of the court that the application ought to be granted. He proceeded to give the principles that the High Court could consider in allowing such an application e.g. balance of convenience, questions of expense, possibilities of undue hardship and interests of justice. He did stress however that jurisdiction of the court of first instance, remains *a fundamental question.*

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Before a valid order for transfer can be passed, the Court must be satisfied on three core conditions, as reiterated in Okello John Felix Vs Oloya Samuel & Anor (supra) including that 1) the suit must be pending in a court competent to try it, 2) the court from which transfer is sought must be subordinate to the High Court, and 3) the High Court must be competent to try or dispose of the suit.

In this matter the Applicant's primary ground for seeking transfer is the alleged bias of the Chief Magistrate. The Applicant contends that the Chief Magistrate has repeatedly adjourned the execution application, and following a complaint lodged against her, she allegedly intimated that she would not handle the matter to conclusion. The Applicant argues that this situation prevents him from obtaining timely justice and offends the principle of fair trial under Article 28 of the Constitution.

It is the constitutional obligation of this court to guarantee a reasonable trial and 20 promote the interests of justice according to Article $126(2)(c)$ of the Constitution. When the court is satisfied that the applicant is not likely to have a "fair trial" in the court from which he or she seeks to transfer a case, it is not only the power, but the duty of the court to make such order (Okello John Felix Vs Oloya Samuel & Anor

$(supra)$ ). 25

While the court does not make a finding on the veracity of the alleged bias or the Chief Magistrate's stated intentions based solely on the Applicant's affidavit, the fact remains that the Applicant perceives a situation where the matter cannot proceed expeditiously or fairly before the Chief Magistrate. The delay since September 2023 in determining an execution application is significant. Execution proceedings are generally intended to be swift to give effect to judgments. The impasse described by the Applicant, whether founded on actual bias or a perception arising from the complaint, appears to have brought the proceedings before the Chief Magistrate to a standstill.

In such circumstances, where there is a clear indication that proceedings in a subordinate court are stalled due to reasons related to the judicial officer handling the matter, and the subordinate court is unable or unwilling to proceed, it serves the

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- 5 interests ofjustice to transfer the matter to a court that can ensure its timely disposal. The High Court, with its unlimited jurisdiction and supervisory powers, is wellplaced to handle such a matter to prevent fuither delay and ensure that the LCII judgment, if valid and executable, is given effect. - 10 The Applicant also points out that Grade One Magistrates lack the jurisdiction to handle execution applications from LCII Courts, implying that transferring the case to another Magistrate Grade I within the same court would not resolve the issue. This reinforces the argument that transfer to the High Court is necessary if the Chief Magistrate cannot handle the matter. - 15

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In the case of Samwiri Massa v Achen [1975J HCB 297, the Court stated:

"Where certainfacts are sworn to in an ffidavit, the burden to deny them is on the other party, and if he does not, they are presumed to have been accepted."

Furthermore, it is a principle of law that uncontroverted facts contained in an affidavit are taken as true, and only minimal proof is required of such evidence. Every affidavit constitutes evidence; where one party fails to counter the evidence adduced by the other party unless the evidence is not of probative quality, the Court would be justified to rely on it and use it to resolve the issue in controversy, provided

the asserted facts are plausible. (See Kalanzi Shorif v Attorney General and Others, HCMC No. 276 of 2022, Fortune International Bank Plc v City Express Bank Ltd (2012) t4 NWLR (Pt 1319) and Adebiyi v Umar (2012) 9 NWLR (Pt 1305) ²⁷⁹ (cA)).

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The application proceeded ex parte against the Respondents who, despite service, did not fi|e any response to oppose the transfer. This suggests they either do not oppose the transfer or have no strong grounds to do so. The Applicant submitted that transferring the matter to the High Court in Jinja, which is in close proximity to the Chief Magistrate's Court, would not cause undue expense or hardship to the

3s

Considering the prolonged delay in the execution proceedings, the Applicant's uncontroverted assertions regarding the Chief Magistrate's alleged position on

Respondents. Given the lack of opposition, this assertion is unchallenged.

⁵ handling the matter, and the potential for justice delayed, the Court is satisfied that ^astrong case has been made out for transferring Miscellaneous Application No. ⁴⁵ of 2023 to this Court for expeditious handling and disposal in the interests ofjustice.

Accordingly, the Application is hereby granted for the transfer of Miscellaneous Application No. 45 of 2023 from the Chief Magistrate's Court of Jinja to this Honourable Court. L0

Costs of the Application be in the cause.

¹⁵ Dated and signed at Jinja this 30th day of April, 2025.

²⁰ JOANITA BUSHARA JUDGE

Ruling delivered on 30th April 2025 via email to the parties Sent to luwambya@email.c-qm for the counsel for the Applicant

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# ⁵ THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT JINJA MISC. APPLICN. NO 74 OF 2025 (ARISING FROM MISC APPLICATION No. 45 OF 2023 ( ALL ARISING FROM MAFUMBIRA WARD LCll COURT NO ¹⁰ LCC/IVIAFIO9I2O22

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## MAGUMBA HALID:::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT

## VERSUS

## 1. MUDUAWULIRA APPOPHIA

2. BITULI SAM :::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENTS

## BEFORE: HON. LADY JUSTICE JOANITA BUSHARA

# RULING

## BACKGROUND

This is an application brought by way of Notice of Motion under Section 33 of the Judicature Act, Sections 18 and 98 of the Civil Procedure Act, and Order ⁵² Rule I and 3 of the Civil Procedure Rules (as amended), seeking for orders that:

- 1. Miscellaneous Application No. 45 of 2023 be withdrawn from the Chief Magistrates Court of Jinja and transferred before this Honorable Court for trial. - 2. Costs of this application be provided for.

## GROUNDS OF THE APPLICATION

This application is supported by the affidavit of Magumba Halid, and the grounds are briefly as follows:

l. Sometime in 2022, the Applicant filed a land claim (vide Court No. LCCA{AF!O91}O22) at the Local Council II Court at Mafubira Ward, Ji

),

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- City, against the Respondents for trespass to family unregistered land located at Kitovu Cell, Jinja City. - 2. It was decreed by the Local Council II Court that the Applicant is the lawful owner of the unregistered land situated at Kitovu Cell, Jinja City, and thus has exclusive rights to use and enjoy the land without challenge. - 3. Subsequently, on 29th September 2023, the Applicant filed Miscellaneous Application No. 45 of 2023, seeking to execute the judgment and orders of the LCII Court. - 4. To date, the said application has not been determined due to repeated adjournments by the Chief Magistrate of Jinja Court, which prompted the Applicant to lodge a complaint against her before the Chief Registrar. - 5. The Chief Magistrate intimated to one of the Applicant's lawyers that she would not handle the matter to its logical conclusion until a new Chief Magistrate was posted, as her decisions would not be believed due to being labelled a biased judicial officer. - 6. Given that the Chief Magistrate of Jinja Court has promised not to $25$ conclusively handle Miscellaneous Application No. 45 of 2023, and that Grade One Magistrates have no jurisdiction to entertain the matter, it is fair and equitable that the application be withdrawn from Jinja Chief Magistrates Court and transferred to this Honorable Court with unlimited jurisdiction for trial. 30

## **REPRESENTATION**

The Applicant was represented by Counsel Luwambya Musa of M/s Wetaka, Bukenya & Kizito Advocates. The record indicates that the 2nd Respondent indicated his desire to be removed from the case, and the 1st Respondent, though served with the instant application, did not file a reply. Consequently, the application proceeded ex parte against the Respondents.

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## 5 DECISION

I have carefully considered the Application and the affidavit in support sworn by Magumba Halid, the documents annexed thereto and submissions of the Applicant and the provisions of the law.

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The main issue for determination is whether the Misc Application 45 of 2023 should be transferred to this Honourable Court for trial.

Article 139(1) of the Constitution of the Republic of Uganda as amended provides that:-

"The High Court shall, subject to the provisions of this Constitution, have unlimited original jurisdiction in all matters and such appellate and other jurisdiction as may be conferred on it by this Constitution or other low."

²⁰ Additionally, under Section 37 Judicature Act Cap 16 (Formerly Section 33' Cap 13),

"The High Court shall, in the exercise of the jurisdictton vested in it by the constitution, thts Act or any written law, grant absolutely on such terms and conditions as it thintcs just, all such remedies as any of the parties to a cause or

- 25 matter is entitled to in respect of any legal or equitable claim properly brought before it, so that os far as possible all matters in controversy between the parties may be completely andfinally determined and all multiplicities of legal proceedings concerning any of those matters avoided. "(emphasis of this Court). - 30 The power of the High Coun to transfer cases is primarily derived from Section 18(1)(b) of the Civil Procedure Act Cap 282, which provides: o

"(t) On application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard, or of its own motion without such notice, the High Court may at anY stage -

(b) withdraw any suit or other proceeding pending in any court subordinate to it, and

(i) try or dispose of the suit or proceeding,'

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- transfer the suit or proceeding for trial or disposal to any court $(ii)$ subordinate to it and competent to try or dispose of it; or - retransfer the suit or proceeding for trial or disposal to the court from (iii) which it was withdrawn."

This provision is echoed in Section 217 of the Magistrates Courts Act Cap 19. $10$

Courts have laid down principles to guide the exercise of the power of transfer. In Musisi Kibugujje Badman Versus Namakula and Anor HCMA No.303 of 2017, Court stated that Section 18 CPA empowered the High Court to transfer cases unto itself or to other subordinate courts but made no mention of jurisdiction or lack of it of the Court from which such a matter originates.

As was noted by Hon. Justice Stephen Mubiru in Okello John Felix Vs Oloya Samuel & Anor, Miscellaneous Civil Application No. 159 of 2018, a common reason for transfer is the existence of a reasonable apprehension in the mind of a 20 party that they will not get justice at the hands of the presiding judicial officer. However, the transfer of cases is a serious matter that indirectly casts doubt on the integrity or competence of the judicial officer from whom the matter is transferred. Therefore, while the High Court has wide powers to transfer cases in the interest of justice and fair play, this power must be exercised judiciously and objectively, 25 ensuring it does not unnecessarily impute dishonourable or unjustifiable disgrace or slur on the court from which the suit is transferred. When exercising this power, the Court must act judicially guided by its sense of justice, on objective considerations and not subjectively.

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In the case of *Kagenyi vs. Misiramo & ors [1968] EA 43, Udo Udoma J.* (as he then was) held that;

the onus lies on the party applying for a case to be transferred to make out a strong case to the satisfaction of the court that the application ought to be granted. He proceeded to give the principles that the High Court could consider in allowing such an application e.g. balance of convenience, questions of expense, possibilities of undue hardship and interests of justice. He did stress however that jurisdiction of the court of first instance, remains *a fundamental question.*

$\overline{4}$

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Before a valid order for transfer can be passed, the Court must be satisfied on three core conditions, as reiterated in Okello fohn Felix Vs Oloyo Samuel & Anor (supro) including that 1)the suit must be pending in a court competent to try it,2)the court from which transfer is sought must be subordinate to the High Court, and 3)the High Court must be competent to try or dispose of the suit.

In this matter the Applicant's primary ground for seeking transfer is the alleged bias of the Chief Magistrate. The Applicant contends that the Chief Magistrate has repeatedly adjourned the execution application, and following a complaint lodged against her, she allegedly intimated that she would not handle the matter to conclusion. The Applicant argues that this situation prevents him from obtaining timely justice and offends the principle of fair trial under Article 28 of the Constitution.

- 20 It is the constitutional obligation of this court to guarantee a reasonable trial and promote the interests of justice according to Article 126(2)(c) of the Constitution. When the court is satisfied that the applicant is not likely to have a "fair trial" in the court from which he or she seeks to transfer a case, it is not only the power, but the duty of the court to make such order (Okello John Felk Vs Oloya Samuel & Anor - 25 (supra)).

30 o

While the court does not make a finding on the veracity of the alleged bias or the Chief Magistrate's stated intentions based solely on the Applicant's affidavit, the fact remains that the Applicant perceives a situation where the matter cannot proceed expeditiously or fairly before the Chief Magistrate. The delay since September 2023 in determining an execution application is significant. Execution proceedings are generally intended to be swift to give effect to judgments. The impasse described by the Applicant, whether founded on actual bias or a perception arising from the complaint, appears to have brought the proceedings before the Chief Magistrate to ^a standstill.

In such circumstances, where there is a clear indication that proceedings in ^a subordinate court are stalled due to reasons related to the judicial officer handling the matter, and the subordinate court is unable or unwilling to proceed, it serves

- 5 interests ofjustice to transfer the matter to a court that can ensure its timely disposal. The High Court, with its unlimited jurisdiction and supervisory powers, is wellplaced to handle such a matter to prevent further delay and ensure that the LCII judgment, if valid and executable, is given effect. - 10 The Applicant also points out that Grade One Magistrates lack the jurisdiction to handle execution applications from LCII Courts, implying that transferring the case to another Magistrate Grade I within the same court would not resolve the issue. This reinforces the argument that transfer to the High Court is necessary if the Chief Magistrate cannot handle the matter. - 15

a

o

In the case of Samwiri Massa v Achen [1975J HCB 297, the Court stated:

"Where certainfacts are sworn to in an affidavit, the burden to deny them is on the other party, and if he does not, they are presumed to have been accepted."

Furthermore, it is a principle of law that uncontroverted facts contained in an affidavit are taken as true, and only minimal proof is required of such evidence. Every affidavit constitutes evidence; where one party fails to counter the evidence adduced by the other party unless the evidence is not of probative quality, the Court would be justified to rely on it and use it to resolve the issue in controversy, provided

25 the asserted facts are plausible. (See Kalunzi Sharif v Attorney General and Others, HCMC No. 276 of 2022, Fortune International Bank Plc v City Express Bank Ltd (2012) 14 NI4/LR (Pt 1319) and Adebiyi v Umar (2012) 9 NWLR (Pt 1305) 279 (CA)),

t

The application proceeded ex parte against the Respondents who, despite service, did not file any response to oppose the transfer. This suggests they either do not oppose the transfer or have no strong grounds to do so. The Applicant submitted that transferring the matter to the High Court in Jinja, which is in close proximity to the Chief Magistrate's Court, would not cause undue expense or hardship to the

Respondents. Given the lack of opposition, this assertion is unchallenged.

Considering the prolonged delay in the execution proceedings, the Applicant's uncontroverted assertions regarding the Chief Magistrate 's alleged position on

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5 handling the matter, and the potential for justice delayed, the Court is satisfied that a strong case has been made out for transferring Miscellaneous Application No. ⁴⁵ of 2023 to this Court for expeditious handling and disposal in the interests ofjustice'

10 Accordingly, the Application is hereby granted for the transfer of Miscellaneous Application No. 45 of 2023 from the Chief Magistrate's Court of Jinja to this Honourable Court.

Costs of the Application be in the cause.

¹⁵ Dated and signed at Jinja this 29th day of April ,2025.

JOANITA BUSHARA JUDGE 20

Ruling delivered on29th April 2025 via email to the parties Sent to luwambya@gmail.com for the counsel for the Applicant

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⁵ handling the matter, and the potential for justice delayed, the Court is satisfied that a strong case has been made out for transferring Miscellaneous Application No. 45 of 2023 to this Court for expeditious handling and disposal in the interests ofjustice.

Accordingly, the Application is hereby granted for the transfer of Miscellaneous Application No. 45 of 2023 from the Chief Magistrate's Court of Jinja to this Honourable Court. L0

Costs of the Application be in the cause

## ¹⁵ Dated and signed at Jinja this 30th day of April, 2025.

## JOANITA BUSHARA JUDGE 20

Ruling delivered on 30th April 2025 via email to the parties

Sent to luwambya@gmail.com for the counsel for the Applicant

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