[2024] UGHC 287

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT MUKONO **MISCELLANEOUS CAUSE NO. 062 OF 2023** (ARISING FROM CIVIL SUIT NO. 055 OF 2011)

**MAKABUGO DAVID (Suing as the Administrator of the Estate** of Late Paul Mukasa Kalya) ::::::::::::::::::::::::::::::::::::

### **VERSUS**

### 1. MUGABO DEOGRATIOUS

2. NALONGO KIBIRIGE GERTRUDE ::::::::::::::::::::::::::::::::::::

## BEFORE HON. LADY JUSTICE FLORENCE NAKACHWA

#### **RULING**

- 1. This application was for revision of the ruling and orders of the Chief Magistrate of Mukono Chief Magistrate's Court in Civil Suit No. 055 of 2011. The application was brought by Notice of Motion under the provisions of sections 83 and 98 of the Civil Procedure Act. Cap. 71, and Order 52 rules 1, 2 and 3 of the Civil Procedure Rules. S. I 71-1. seeking for orders that: - (a) this honourable court sets aside the ruling and orders in Civil Suit No. 055 of 2011 of the Chief Magistrate's Court of Mukono at Mukono entered against the Applicant;

- (b) the ruling and orders of the trial Magistrate were unjust, an abuse of court process and erroneous; and - (c) costs of the application be provided for. - 2. The application is supported by the affidavit of the Applicant sworn on 25^th September, 2023. The Applicant stated that the application's subject property is land at Kayunga Bugerere, Block 123. Plot 298, measuring approximately 0.0500 Hectares, registered in the names of Paulo Mukasa Kalya (the Applicant's late father, to whose Estate he was granted letters of administration), with a caveat by the Administrator General registered on 15^th September, 1969 and a lease of 25 years under Volume 448 Folio 12, registered on 27^th November, 1958 (lapsed). The Applicant further stated that after several unsuccessful attempts to re-establish the control and ownership of the suit property-consecutively meeting the vicious repulsion of the $1^{st}$ Respondent, with the help of the $2^{nd}$ Respondent, in the year 2011, the Applicant instituted a civil suit of trespass against the two (2), only for them to raise a preliminary objection to the effect that they had obtained a court order, dated 8^th April, 2011; granting them vacant possession of the suit premise allegedly making his suit barred by res judicata. He argued that the Respondents while filing Miscellaneous Cause No. 05/2011, knew of the Applicant's interest in the suit property having been served earlier with a demand notice to vacate the suit premise but still excluded him, and with the exclusion, the Applicant

herein could never have had any opportunity or locus in law to challenge the same even when he was affected and dissatisfied with it. The Applicant stated that with the suit being brought for trespass against the two (2) Respondents herein, which had never been litigated anywhere before, the raised court order could indeed never bar the instant suit. The learned trial Magistrate upheld the preliminary objection and dismissed the suit.

- 3. Given the above facts, the Applicant argued that: - (a) the learned trial Magistrate in proceeding as relayed above exercised her jurisdiction with material irregularity and in so doing occasioned an injustice on the Applicant when she upheld an erroneous preliminary objection; - (b) the learned trial Magistrate also exercised her jurisdiction with material injustice when she dismissed the Applicant's suit against the Defendants/Respondents herein without entertaining its merits; - (c) as a result of the unjust and irregular exercise of the trial Magistrate's jurisdiction relayed above, the Applicant and the whole late Paulo Mukasa Kalya's estate have been subjected to enormous pain, loss and suffering; and - (d) it is in the interest of justice that the ruling in Civil Suit No. 055/2011 be revised, and orders therefrom be set aside.

- 4. The application was opposed by both Respondents through their affidavits in reply deponed on 18^th December, 2023 and filed in this court on the same day. The grounds of the contention are as below that: - (a) by agreement dated the $17^{th}$ January, 2011, the $1^{st}$ Respondent bought the land which is the subject of this application from M/s Kayunga Growers Co-operative Society and which had been mortgaged to Cooperative Bank (in liquidation): - (b) after the sale of the said land, there was a tenant in the house who was put there by the previous owner but who failed to pay rent and was to vacate the premises; - (c) the $1^{st}$ Respondent applied for an order for vacant possession vide Miscellaneous Cause No. 005 of 2011 before the Chief Magistrate's Court of Mukono Holden at Kayunga and he was granted an order for vacant possession and the same was executed by granting a warrant of execution against the Respondents. That the 1^st Respondent herein took lawful possession of the suit land: - (d) the 1^st Respondent's interest is in land comprised in lease hold LRV 448. Folio 12:

- (e) the lessor the late Paulo Mukasa Kalya leased the suit land to Wilson Richard Mukasa of Kisoga Gombolola of Musale, Bugerere for a term of 25 years commencing on the 27^th day of November, 1958 expiring by the 27^th day of November, 1983 and the suit land transferred to a one Yozefu Galyenkanawa in 1965, and transferred to Kayunga Growers Co-operative Society Limited in 1972 for the remaining period; - (f) before the expiration of the lease term, the lessor and lessee by a variation deed registered on the 13^th day of January, 1983 agreed that the said lease be extended for a period of 49 years from 30^th October, 1983 and the expiry date of the term is due in the year 2032; - (g) the lessee Kayunga Growers Cooperative Society used its lease hold title to obtain a loan in Cooperative Bank but failed to pay it back; - (h) the 1^st Respondent lawfully purchased the suit land by an agreement dated the 7^th day of January, 2011 from the vendor, that is Kayunga Growers Cooperative Society and Cooperative Bank; - (i) the 1^st Respondent is the registered proprietor of the suit land the same having been transferred and registered in his names on 19^th day of July, 2018 and by this he attained

a legal interest in the suit land as indicated in the certificate of title:

- (i) the $2^{nd}$ Respondent was not a party to this sole transaction and does not have any interest whatsoever in the suit land; - (k) it is only the $1^{st}$ Respondent who applied for an order of vacant possession vide Miscellaneous Cause No. 0005 of 2011, before the Chief Magistrate's Court of Mukono Holden at Kayunga and was granted an order for vacant possession and the same was executed by granting a warrant of execution against the then Respondents; - (I) when the Applicant instituted Civil Suit No. 218 of 2017, he added the 2^nd Respondent as the 2^nd Defendant but the application at hand concerns setting aside an order in Civil Suit No. 055 of 2011, which she was not a party to; - a preliminary objection was raised challenging the $(m)$ determination of Civil Suit No. 055 of 2011 while an order for vacant possession was still subsisting, the preliminary objection was upheld and the suit was dismissed; - (n) the trial Magistrate ordered that in order for the issues in Civil Suit No. 055 of 2011 to proceed and be decided, the orders granted in Misc. Cause No. 005 of 2011 need to first be set aside as doing otherwise would amount to an abuse of court process:


- (o) the 1^st Respondent proceeded and occupied the suit land and the 2^nd Respondent was not involved in his process of taking possession of the suit land; - (p) the Applicant disregarded the direction of the trial Magistrate and instituted Civil Suit No. 218 of 2017 in this honourable court against the Respondents but this application is silent about the said suit which concerns the same cause of action as was in Civil Suit No. 055 of 2011; - (q) by this application the Applicant seeks to set aside the orders in Civil Suit No. 055 of 2011, which if granted two suits concerning the same matter will be pending before this honourable court and the Chief Magistrate's Court of Mukono and this would amount to an abuse of court process: - (r) Civil Suit No. 055 of 2011 was rightly dismissed as considering the suit would amount to an abuse of court process if it was heard and determined before setting aside the order in Miscellaneous Cause No. 005 of 2011; - (s) the decision that was passed in Miscellaneous Cause No. 005 of 2011 was not irregular or illegal but it was justly passed and the same has never been challenged in any court of law by the present Applicant and it's still standing;

$\overline{7}$

- (t) the Applicant could not be made a party to Miscellaneous Cause No. 005 of 2011 as he was not a tenant and that his interest in mailo title is different from the 1^st Respondent's interest in the lease hold title: - (u) the Magistrate rightly exercised the jurisdiction vested in her judiciously and the Applicant did not suffer any injustice as the suit land belongs to the 1^st Respondent as the lease having not expired yet; and - (v) it is in the interest of justice that this application be struck off the court record with costs for being incompetent and an abuse of court's process and a waste of court's time. - 5. In rejoinder, the Applicant deponed that the proposition that the 1^st Respondent bought the suit land from M/s Kayunga Growers Cooperative Society and that it had been mortgaged to Cooperative Bank (in liquidation) is ridiculously false; as indeed, none of the said persons is known to the Applicant. That the Respondents' replies at the very least operate in proof of the coincidence of triable issues in Civil Suit No. 055/2011 that was spontaneously dismissed without regard to its merits. That an order of vacant possession rightly against tenants issued in Misc. Cause No. 005/2011 could (in law) never have been the instrument that conferred ownership of the suit subject property to the 1^st Respondent and as such could never have barred a suit of trespass against the 1^st Respondent.

- 6. Further, that the Respondent does not own or have any interest in the suit subject land, be it a leasehold, as there is no proof for any transaction or dealing between the 1^st Respondent and the Applicant, being the only authorized administrator of the Estate of the registered proprietor of the suit land that is the late Paulo Mukasa Kalya) to assume any lawful interest in the suit subject land. - 7. During the hearing of the application, the Applicant was represented by Counsel Kabunga Hannington from M/s Sam Sserwanga & Co. Advocates. The Respondents were represented by Counsel Ssekatawa Alex from M/s Baganda Ssekatawa & Co. Advocates. Both parties filed their written submissions and the Applicant filed submissions in rejoinder which are considered herein below in the determination of the application. - 8. The Applicant's counsel raised a preliminary objection to the effect that the affidavit in reply deponed by Rev. Fr. Mugabo Deogratious Binangwa is fatally and incurably defective on the ground that the certificate of translation is attributed to a female. However, upon perusal of the 1^st Respondent's reply referred to by the Applicant, I find that the certificate of translation refers to a male and not female deponent as alleged by the Applicant's counsel. Therefore, the preliminary objection is hereby overruled. Now, I proceed to determine this application on merit. - 9. The Applicant's counsel submitted that the trial court acted in exercise of its jurisdiction illegally or with material irregularity or injustice onto the Applicant and the whole estate for which he was acting in the impugned action. That the impugned ruling and order as granted, upholding an irregular preliminary objection, dismissed Civil Suit No. 055/2011. The Applicant's counsel added that the learned trial Magistrate exercised a jurisdiction not vested in her, in law, for lack of the requisite pecuniary jurisdiction when she entertained a matter whose subject property, a prime registered land in Kayunga Trading Centre measuring approximately 0.005 hectares. valued $at$ approximately UGX. 200.000.000/= which is above her prescribed pecuniary jurisdiction of not exceeding UGX. 50.000.000/ $=$ . That for the mere fact that the trial court acted in exercise of a jurisdiction not vested in it in law, for lack of the requisite (pecuniary) jurisdiction, the application as instituted presents a proper case for revision before this honourable court. - The Applicant's counsel noted that there was never a suit $10$ of trespass between them hence res judicata could never suffice, as no court heard or has ever tried a suit or issue of the proceedings arising from the impugned decision directly or substantially between the same parties, or between parties under whom they or any of them claims, to finality. Counsel submitted that in upholding an objection of a purported Grade II

trespass to land as brought by the dismissed suit, to which the Applicant herein was not a party, affording him no chance to be heard on it or set it aside, the court acted in exercise of its jurisdiction illegally or with material irregularity or injustice onto the Applicant and the whole estate for which he was acting in the impugned decision proceedings. Counsel prayed that court finds in the affirmative that the trial court acted in exercise of its jurisdiction illegally or with material irregularity or injustice onto the Applicant and the whole estate for which he was acting in the impugned decision proceeding.

- On the other hand, the Respondents' counsel contended $11.$ that the Respondents are not delving into the substance of the suit and are not adducing more proof for the incidence of the persisting triable issues but they only replied to the application in relation to orders that the Applicant is seeking in this honourable court which include this court to invoke its revisionary powers and set aside the ruling and orders of the lower court made by her Worship Ikit Mary, the then Chief Magistrate of Mukono Chief Magistrate's Court at Mukono delivered on the 6^th October, 2011. - It was further submitted for the Respondents that their $12.$ preliminary objection was genuine and regular and thus basing on that preliminary objection, the Chief Magistrate dismissed the civil suit. That the Respondents through their lawyer raised a preliminary objection to the effect that there is a pending court order granted by that court on 8^th April, 2011 and that the order

still stands before the court as it was never set aside or varied. Counsel prayed that court finds that the preliminary objection correctly resulted in the dismissal of the stated suit and that it was not irregular as claimed by the Applicant.

- 13. Counsel further added for the Respondent that the trial court exercised jurisdiction that is vested in it and therefore it has pecuniary jurisdiction. That the Applicant filed Civil Suit No. 055 of 2011 in the Chief Magistrate's Court of Mukono at Mukono on the 20^th day of April, 2011, when the value of the subject matter to wit land comprised in Bugerere Block 123, Plot 298 measuring approximately 0.05 Hectares was below fifty million shillings and therefore could fall under the Chief Magistrate's pecuniary jurisdiction. That the Applicant cannot base on the current value of the subject matter to submit that the Chief Magistrate had no pecuniary jurisdiction to try the matter. - $14$ Furthermore, that the Chief Magistrate considered the Applicant's pleadings to ascertain whether she had pecuniary jurisdiction or not. That the Applicant's plaint was made in line with the provisions of Order 7 rule 1 of the Civil Procedure Rules that describes the particulars to be contained in the plaint. That the Applicant in his pleadings under paragraph 8 of his plaint stated that the cause of action against the Defendants arose in Kayunga Trading Centre within the monetary and territorial jurisdiction of this honorable court as the subject matter is around $50,000,000/=$ .

- $15.$ That with the above, its right to submit that the trial court had pecuniary jurisdiction to hear and determine the matter and that the Applicant's lawyers cannot submit that the Applicant filed the suit in a wrong court which lacked jurisdiction since he was being represented and guided by his previous lawyers M/s Khainza Nangatsa & Co. Advocates who had made the Applicant's pleadings. The Respondent's counsel concluded that the Chief Magistrate had pecuniary jurisdiction to hear and determine Civil Suit No. 055 of 2011 and prayed that this honourable court maintains that the Chief Magistrate had pecuniary jurisdiction in the matter. That even if the Chief Magistrate did not have jurisdiction as claimed, it was the wrong choice of the Applicant to file the case in that court and still the Chief Magistrate cannot be faulted for dismissing it as she never entertained it on merit but dismissed it on a preliminary objection. - 16. The Respondent's counsel averred that the Chief Magistrate did not in any way exercise her jurisdiction illegally or with material irregularity as submitted by the Applicant. That there was indeed a court order from Miscellaneous Cause No. 0005 of 2011 before His Worship Elias, Magistrate Grade II of Kayunga Court, which ordered for vacant possession of the Applicant's (1^st Respondent herein) premises. That the Chief Magistrate stated that this court order has not been set aside.

- The Respondent's counsel submitted that this was a court 17. order by a competent court and thus if not set aside first, it still stands good and effective and should not be lightly dealt with so as to deprive the holder of the lawful fruits of the order. That if the Chief Magistrate had not considered such court order, then she would have been considered to have exercised her jurisdiction illegally as she would have demeaned the powers of Magistrate Grade II who had jurisdiction to hear and determine the Miscellaneous Cause No. 005 of 2011. - The Respondent's counsel submitted that the Chief 18 Magistrate never denied the Applicant an opportunity to be heard. That what the Chief Magistrate ordered was for the Applicant to first set aside the court order in Miscellaneous Cause No. 005 of 2011 and then proceed with Civil Suit No. 055 of 2011 or any other suit. Counsel argued that the subject matter in Miscellaneous Cause No. 005 of 2011 which is land comprised in RV 448, Folio 12, situated on Mailo Land in Bugerere Block 123, Plot 298 measuring approximately 0.05 hectares is the same subject matter in Civil Suit No. 055 of 2011 in which the Applicant is suing the Respondents for trespass and of which the 1^st Respondent has a court order from Miscellaneous Cause No. 005 of 2011 and if that court order that the 1^st Respondent holds is not set aside first, this will affect the hearing and determination in Civil Suit No. 055 of 2011

- The Respondent's counsel concluded that the Applicant is 19. not entitled to any of the remedies prayed for in this application as he has failed to satisfy the ground for grant of revision. Counsel prayed that the application be dismissed with costs to the Respondents. - In rejoinder, the Applicant's counsel submitted that the 20. Respondents do not dispute the current estimated application subject property pecuniary value of approximately UGX. 200.000.000/= (Two Hundred Million Shillings Only). And that it is also true that the application subject property, was, even at the impugned decision time of 2011, a prime registered land, measuring approximately 0.005 hectares, holding a business building of about 20 rental units, and could as such, inter alia, certainly not in a time-span of just 12 (twelve) years, have gained a value triple its former price value, thus even with a remote possibility of an allowance for having gained value, the property could never have been valued at approximately less than UGX. 100.000.000/= (One Hundred Million Shillings Only) at the time of the impugned decision which is still way above the Chief Magistrate's Court's pecuniary jurisdiction. - Counsel reiterated the Applicant's earlier submission that $21.$ the court of the impugned decision indeed lacked the requisite pecuniary jurisdiction to even entertain the matter and as such whatever resulted of that illegality cannot be seen to be sanctioned by this honourable court. Counsel prayed that this

honourable court be pleased to find the issue in affirmative holding that the court exercised a jurisdiction not vested in it, in law, for lack of the requisite pecuniary jurisdiction.

## Issue: Whether this was a proper case for civil revision. **Court's consideration**

Section 83 of the Civil Procedure Act, Cap. 71, provides 22 thus:

> "The High Court may call for the record of any case which has been determined under this Act by any magistrate's court, and if that court appears to have—

(a) exercised a jurisdiction not vested in it in law:

(b) failed to exercise a jurisdiction so vested; or

(c) acted in the exercise of its jurisdiction illegally or with material irregularity or injustice,

the High Court may revise the case and may make such order in it as it thinks fit; but no such power of revision shall be exercised—

(d) unless the parties shall first be given the opportunity of being heard; or

(e) where, from lapse of time or other cause, the exercise of that power would involve serious hardship to any person."

The exercise of revisionary power is discretionary in nature. $\overline{23}$ The High Court may make such order as it deems fit. The court will not usually interfere with the lower court proceedings and

decision where justice has been done. The revisionary power of the court is unlimited. It is an established principle of the law that an order should only be made in revision when both parties in the application are heard. In addition, such orders are not to be made if they would occasion serious hardships to the parties involved in the revision proceeding.

- The instant application challenges the authority of the trial $24.$ Chief Magistrate in upholding a preliminary objection raised by the 1^st Respondent to the effect that Civil Suit No. 55 of 2011 is res judicata in as far as an order of vacant possession in Miscellaneous Cause 005 of 2011 issued by a Magistrate Grade Il is in existence. The application seeks to revise and set aside the said ruling and the orders therefrom on the ground that the trial Magistrate acted illegally and with material irregularity. - Section 7 of the Civil Procedure Act, Cap. 71, provides $25$ thus:

"No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim litigating under the same title, in a court competent to try the subsequent suit or the suit in which the issue has been subsequently raised and had been heard and finally decided by the court."

Robinah Namakula Masinde v. Masiko $26.$ In Sam Miscellaneous Application No. 0580 of 2021 at page 9 of the ruling, I stated thus:

> "Res judicata is a Latin expression or term that means a matter once adjudicated, cannot be re-adjudicated. The doctrine technically means that where a matter in issue has already been tried by a competent court, then trial between the same parties in respect of the same matter shall not be allowed. It is a fundamental doctrine of all courts that there must be an end of litigation."

$27.$ In Halsbury's Laws of England, 4^th Edition Reissue (1992) Vol 16 paragraph 975 at pages 860 - 861 the essentials of res judicata are stated thus:

> "In order that a defence of res judicata may succeed it is necessary to show not only that the cause of action was the same but also that the Plaintiff has had an opportunity of recovering and but for his own fault might have recovered in the first action that which he seeks to recover in the second. A plea of res judicata must show either an actual merger, or that the same point has been actually decided between the parties. Where the former judgment has been for the defendant, the conditions necessary to estop the Plaintiff are not less stringent. It is not enough that the matter alleged to be estopped might have been put in issue, or that the relief sought might have been claimed. It is necessary to show that it actually was so put

 in issue or claimed. ......the doctrine applies to all matters which existed at the time of the giving of the judgment and which the party had an opportunity of bringing before the court. If however, there is a matter subsequent which could not be brought before the court at the time, the party is not estopped from raising it."

- 28 To give effect to the plea of *res judicata*, the matter directly and substantially in issue must have been heard and finally disposed of in the former suit. While deciding whether the plea of res judicata exist or not, the court must substantiate the two pleadings and the issue arising therefrom as well as peruse the judgment or ruling in the previous case. - 29. Therefore to succeed in alleging res judicata, a party alleging it must show to the trial court that: - (a) the matter in issue is identical in both cases; - (b) the parties in the both cases are substantially the same: - (c) there is a concurrence of jurisdiction of the court; - (d) the subject matter is the same; and - (e) there is a final determination of the previous case on merits between the same parties or parties through whom they claim.

30. The case of Kamunye & others v. the Pioneer General **Assurance Society Ltd (1971) E. A 263 provides the test to be**

applied by court to determine the issue of res judicata. It held thus:

"The test whether or not a suit is barred by res judicata seems to me to be $-$ is the plaintiff in the second suit trying to bring before the court in another one and in the form of a new cause of action, a transaction which he has already put before a court of competent jurisdiction in earlier proceedings and which has been adjudicated upon. If so, the plea of res judicata applies not only to points upon which the first court actually required to adjudicate but to every point which properly belonged to the subject of litigation and which parties, exercising reasonable diligence, might have brought forward at the time. The subject matter in the subsequent suit must be covered by the previous suit, for res judicata to apply."

Further, in Halsbury's Laws of England, Volume 12 31. (2009) 5^th Edition, it is stated that:

> "The law discourages re-litigation of the same issues except by means of an appeal. It is not in the interest of justice that there should be re-trial of a case which has already been decided by another court, leading to the possibility of conflicting judicial decisions, or that there should be collateral challenges to judicial decisions; there is a danger not only of unfairness to the parties concerned, but also of bringing the administration of justice into disrepute."

- 32. In a nutshell therefore, where the previous decision was not made on the merits of the suit, the matter cannot be res *judicata*. In the case at hand, the trial Chief Magistrate neither took any evidence of the parties nor had before it copies of the pleadings and proceedings of the Magistrate Grade II to ascertain whether Miscellaneous Cause No. 005 of 2011 and Civil Suit No. 55 of 2011 are substantially the same or are different. It relied entirely on a copy of the court order of vacant possession adduced by the 1^st Respondent to dismiss Civil Suit 55 of 2011 - 33. In my judgment, this preliminary dismissal was materially irregular considering that it was clearly brought to the attention of the trial Chief Magistrate that the Applicant was not a party to Miscellaneous Cause No. 005 of 2011. The parties to Miscellaneous Cause No. 5 of 2011 were Mugabo Deogratious as applicant versus Nalwanga Harriet and Mukasa Paul as respondents. The court order that the 1^st Respondent was relying on was merely an order of vacant possession against tenants who were occupying the premises within the suit land. In essence, this means that the issue of ownership of the suit land was never determined to its final conclusion between the current parties by any court of competent jurisdiction Therefore, the suit was not res judicata.

- The Applicant in his submissions further brought out the $34.$ aspect of the trial Chief Magistrate giving a ruling in a matter whose subject matter valued beyond the jurisdiction of the Magistrate's Court. Jurisdiction of court is a creature of statute and it is expressly conferred by law. A court cannot confer jurisdiction on itself nor can parties confer jurisdiction on a court by agreement when the court does not have one. Jurisdiction is a fundamental issue that goes to the root of any subject matter and the competence of court to try any case. - Consequently, it is prudent that in all matters, the court 35. must first ascertain whether it has the requisite jurisdiction before determining the case before it. Accordingly, any proceedings conducted by a court without jurisdiction, and any award, judgment, ruling or orders arising therefrom are a nullity. - 36 The jurisdiction of the Magistrates Courts is governed by the provisions of Magistrate's Courts (Amendment) Act No. 7 of 2007 which amended section 207 (1) of the Magistrates Courts Act, Cap.16. Section 207 (1) of the Magistrate's Court Act, as amended, provides as follows:

"Subject to this Act and other written law, the jurisdiction of magistrates presiding over magistrates' courts for the trial and determination of causes and matters of a civil nature shall be as follows:

(a) A Chief Magistrate shall have jurisdiction where the value of the subject matter in dispute does not exceed fifty


million shillings and shall have unlimited jurisdiction in disputes relating to conversion, damage to property or trespass:

(b) A Magistrate grade 1 shall have jurisdiction where the value of the subject matter does not exceed twenty million shillings."

37. I have perused the plaint in Civil Suit No. 055 of 2011 and paragraph 8 of the plaint states thus:

> "The cause of action against the Defendants arose in Kayunga Trading Centre within the monetary and territorial jurisdiction of this Honourable court as the subject matter is around 50,000,000/=."

According to the Oxford Concise English Dictionary, 38. 9^th Edition (1995) at page 68, the word "around" means approximately or near to. Therefore, from the above quoted paragraph of the plaint, it was clear to the trial Chief Magistrate that the value of the subject matter though a registered land squarely falls within the jurisdiction of the Chief Magistrate's Court, considering the fact that only the parties to the suit knew more about the suit land and its estimated monetary value. If the Plaintiff who made such averment now claims to contest his own contention, then such was a grave misdirection of the trial court on the part of the Plaintiff and such misdirection cannot be faulted on the trial Chief Magistrate who knew less about the suit land but simply relied on the parties' pleadings to determine the

court's jurisdiction. Through the pleadings, the plaintiff placed the suit within the jurisdiction of the Chief Magistrate.

- 39 I have also noted that Civil Suit No. 55 of 2011 from which this application arises concerns only the Applicant and the 1^st Respondent. Therefore, it was procedurally wrong for the Applicant to join the $2^nd$ Respondent in this application and vet she was not a party in the suit before the lower court. The 2^nd Respondent has labored to reply to the application and also attended the court hearing. - 40 Since it has been brought to the attention of this court that the current value of the subject matter in Civil Suit No. 55 of 2011 is beyond the jurisdiction of the Chief Magistrate's Court, and the Applicant has filed Civil Suit No. 218 of 2017 against the Respondents in this court, this court cannot order for reinstatement of the suit in which, by notice to this honourable court, the lower court currently lacks jurisdiction to entertain. Furthermore, it would be a duplication to have two civil suits over the same subject matter in two courts of judicature. Pursuant to the foregoing analysis, the application is hereby allowed and I hold that Civil Suit No. 55 of 2011 is not res judicata but I order for its discontinuation under section 17 $(2)$ (a) of the Judicature Act, Cap 13 with costs to the 1^st Respondent who is the defendant in Civil Suit No. 55 of 2011. I further order that:

- (a) the Applicant pays costs of this application to the 2^nd Respondent who was erroneously added in this application; - (b) the Applicant and the 1^st Respondent shall bear their own costs of this application.

I so rule and order accordingly.<br> The article delivered this ....................................


In the presence of:

- (1) Counsel Kabunga Hannington from M/s Sam Sserwanga & Co. Advocates, for the Applicant: - (2) Counsel Ssekatawa Alex from M/s Baganda Ssekatawa & Co. Advocates, for the Respondents; - (3) Mr. Makabugo David, the Applicant; - (4) Ms. Pauline Nakavuma, the Court Clerk.