[2025] UGHC 463


# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MBARARA HCT-050CV-CR-0031-2024**

#### 5 **(ARISING OUT OF NTUNGAMO CHIEF MAGISTRATES NTU-00-CV-MISC-APP NO.67 OF 2023) (ARISING FROM THE JUDGEMENT OF THE LC11 COURT OF KINONI CELL, AT KINONI WARD)**

**MUGISHA MOSES MUGYENYI …….……………..….…………. APPLICANT**

## 10 **VERSUS**

## **REV. CAN GANTUNU NYARINO………………………………. RESPONDENT**

**BEFORE:** Hon. Justice Nshimye Allan Paul M.

#### **RULING**

## **REPRESENTATION**

The Applicant was represented by Advocate Godlive Nayebare from M/s 20 Rukabura-Ruhome Advocates, while the Respondent was represented by Advocate Mugisha Arnold from M/s Mugisha Arnold & Co. Advocates.

## **BACKGROUND**

The Applicant brought this application under Section 83 & 98 of the Civil 25 Procedure Act Cap 71, Section 33 of the Judicature Act Cap 13, and Order 52 Rules 1,2 &3 of the Civil Procedure Rules, seeking orders that;

- 1. The ruling and orders under **Misc. App No. 67 of 2023** in Ntungamo chief Magistrate's court be revised. - 2. The judgement and orders of the LC11 Court of Kikoni Cell, sitting at Kikoni 30 ward be revised. - - 3. The taxation hearing in **No. 81 of 2024** arising out of Rev. App. No. 57/2023 be stayed. - 4. Execution of the ruling and orders in MA No. 164/2024 (Mugisha Moses Mugyeya vs Rev. Canon Gantunu) be stayed. - 35 5. Any remedies this court deems fit. - 6. The costs of this application be provided.

The application is supported by an affidavit deponed by the Applicant and is opposed through an affidavit deponed by the Respondent.

## **GROUNDS**

- 5 The grounds of this application as stated in the notice of motion are; - a) That the Applicant has been advised his lawyers M/S Rukabura-Ruhome Advocates that the Chief Magistrate's Court of Ntungamo at Ntungamo acted in the exercise of its jurisdiction illegally or with material irregularity or injustice. - 10 b) That the LC11 court of Kikoni cell, sitting at Kikoni ward acted without jurisdiction as the subject matter of the suit is titled land under Leasehold Register Volume 2872 Folio 7. - c) That the Chief Magistrate's court of Ntungamo enforced an illegality by granting the application to execute the decision and orders of the LC11 15 court of Kikoni cell, sitting at Kikoni ward. - d) That an illegality goes to the root of the proceedings before the Chief Magistrate's court of Ntungamo at Ntungamo and the LC11 court of Kikoni cell, sitting at Kikoni ward rendering them null and void. - e) That it is just and fair that this application is granted with prayers sought by - 20 the Applicant.

## **SUBMISSIONS**

The parties filed written submissions that I have considered.

## 25 **Applicant's submissions**

Counsel submitted that the suit land is titled property over which an LCII Court does not have jurisdiction under Section 10(1)(b) and the third Schedule of the Local Council Courts Act **(see: Peter Mugioya vs James Gidudu & Another [1991] HCB 61 and Karoli Mubiru & 21 Others vs Edmond Kayowa [1979] HCB**

30 **212).** That proceedings before a Court without jurisdiction are illegal and a nullity. Counsel also challenged the decision of LCII court at Kikoni. She then prayed for the application to be granted.

## **Respondent's submissions**

- 35 Counsel raised several preliminary objections on locus standi, and contended that the application offends Section 40 of the Local Council Courts Act which places revisionary powers over Local Council Courts' judgment in the Chief Magistrate who exercises the same on behalf of the High Court. Other objections raised relate to the substance of the dispute in the main suit and - 40 taxation matters. Counsel prayed for the application to be dismissed with costs.

#### **DETERMINATION**

I would like to state on the onset that both parties raised many matters that are not subject to revision but would have been suited for an appeal. It is important to note that an application for revision is not appeal as the 5 consideration in both are different. I will focus on matters for consideration suited for an application for revision.

In principle a High Court can exercise powers of revision where it appears that a Magistrate's courts in its decision (a)exercised a jurisdiction not vested in it in 10 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, as is provided in **SECTION 83 OF THE CIVIL PROCEDURE ACT CAP 282**.

The High Court exercises its revisionary power by satisfying itself of 15 the correctness, legality or propriety of any finding, order or any other decision of the Magistrate's court as was stated in **MABALAGANYA V. SANGA (2005) E. A 152**. When a case for revision has been made out, the High Court in exercise its unlimited powers in **SECTION 98 OF THE CIVIL PROCEDURE ACT CAP 282** may make such orders as the court considers fit as was stated in **FAUSTINE** 20 **NTAMBARA VS BENON SUBUJISHO SUPREME COURT CIVIL APPEAL NO. 08 OF 2021 2025] UGSC 19 (14 MAY 2025).**

It should be noted that revision decisions of the High Court made under **SECTION 83 OF THE CIVIL PROCEDURE ACT, CAP. 282** are final and are not 25 appealable to the Court of Appeal as was held by the Supreme Court of Uganda in **FAUSTINE NTAMBARA vs BENON SUBUJISHO SUPREME COURT CIVIL APPEAL NO. 08 OF 2021 2025] UGSC 19 (14 MAY 2025).** It is therefore important that an application for revision strictly focuses on the grounds for revision in the application guided by **SECTION 83 OF THE CIVIL PROCEDURE** 30 **ACT, CAP. 282.**

It is trite that revision by the High Court under **SECTION 83 OF THE CIVIL PROCEDURE ACT CAP 282** applies to decisions of a Magistrates court but not the decision of the Local Council Courts or decisions of administrative bodies, 35 because **SECTION 83 OF THE CIVIL PROCEDURE ACT CAP 282** states that:

> "The High Court may call for the record of any case which has been determined under this Act by **any magistrate's court…….." (bold emphasis mine)**

It means that it is important that there is a decision or an order of a Magistrate's court that is brought to the High Court for revision on the grounds stipulated in **SECTION 83 OF THE CIVIL PROCEDURE ACT CAP 282.**

- 5 I have perused the court record, I find that Ntungamo Miscellaneous application 67 of 2023 was seeking consent to execute the judgment of kikoni Ward LCII court dated 15/05/2023. An order that the Chief Magistrate granted in an order made on 4th December 2023. - 10 The applicant has averred that the matter handled before the LCII court related to titled land. I was prompted to look at the judgment of the LCII court to determine what was adjudicated upon in the LC II court. The Judgment of the LC II court is attached as annexture B and its English translation is annexture C to the affidavit in support to the motion in Ntungamo Miscellaneous 15 application 67 of 2023. I discovered that the claim in the LC II court was in respect to trespass with the respondent herein claiming that the applicant herein removed his boundary marker plants known as emyenje/ emigorora. I am of the considered opinion that matters that deal with removal of boundary marker plants known as emyenje/ emigorora can be heard within the 20 jurisdiction of the LCII court as provided in **SECTION 9 OF THE LOCAL COUNCIL COURTS ACT CAP 18.**

## **SECTION 9 OF THE LOCAL COUNCIL COURTS ACT CAP 18 provides that;**

25 "*9. Legal jurisdiction*

*(1) Subject to the provisions of this Act and of any other written law, every local council court shall have jurisdiction for the trial and determination of -*

30 *a) causes and matters of a civil nature specified in Schedule 2 to this Act;*

- *b) causes and matters arising out of a civil nature governed only by customary law specified in schedule 3 to this Act;* - *c) causes and matters arising out of infringement of byelaws and* 35 *ordinances duly made under the Local Governments Act;* - *d) matters specified under the Children Act;* - e) *matters relating to land."* **(bold emphasis is mine)**

The matters listed in Schedule 2 to the Local Council Courts Act are

"The cases and matters of a civil nature which may be triable by local *council courts are;*

- *a) debts;* - b) contracts; - *c)* assault or assault and battery; - d) conversion; - e) damage to property; and - *f*) *trespass*" - 10

$\mathsf{S}$

It is my finding that the law in SECTION 9 OF THE LOCAL COUNCIL COURTS ACT CAP 18, read hand in hand with SCHEDULE 2 OF THE LOCAL COUNCIL COURTS ACT give the LC courts jurisdiction to handle matters dealing with trespass and matters dealing with land.

$20$

The evidence on record contained in The Judgment of the LC II court that is attached as annexture B and its English translation as annexture C to the affidavit in support to the motion in Ntungamo Miscellaneous application 67 of 2023, shows that LC II court dealt with a matter of trespass whereby the respondent herein claimed that the applicant herein removed his boundary marker plants known as emyenje/ emigorora.

The Chief Magistrate was then requested to consent to execute the judgment relating to a decided trespass matter in which damages of shillings 1,500,000/=

were granted, in complince to the law in SECTION 9 (3) OF THE LOCAL COUNCIL $25$ COURTS ACT CAP 18 that provides for reference to the Chief Magistrate of the area for the purposes of execution of the order subject to the law.

I find that the learned Chief Magistrate in making his decision acted within the law in accordance to his jurisdiction and without any illegality or irregularity. I 30 find that there is no basis for revision of the decision of the Learned Chief Magistrate. In conclusion, I order that

- a) The application is dismissed - b) The applicant shall pay the costs to the respondent.

WOUTER

**NSHIMYE ALLAN PAUL M.** JUDGE 30-06-2025