[2024] UGHC 607

## THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT MBALE

## REVISION CAUSE NO.4 of 2023

# (ARISING FROM CHIEF MAGISTRATES COURT OF PALLISA, CIVIL SUIT NO.36 OF 2020)

- ........:APPLICANTS MUJASI EMMANUEL: - WERE PANUHA - MUGOYA APOLLO - 4. MUBENE MARTIN - 5. EFUSA PANUHA

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#### **VERSUS**

- MATAYA MICHEAL :::::::::::::::: :::RESPONDENTS - 2 MATAYA MILSAINT ZILIRYA

### BEFORE: LADY JUSTICE MARGARET APINY

### **RULING**

#### **INTRODUCTION** 20

The applicants brought this application under 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 for orders that;-

1. The order of His Worship Owino Paul Abdonson, the Learned Chief Magistrate of Pallisa Chief Magistrates Court dated 16^th January 2023 to transfer Civil Suit No. 36 of 2020 from Pallisa Chief Magistrates Court to the Chief Magistrates Court of Budaka at Budaka be revised and set aside with costs to the applicants.

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- 2. Civil Suit No. 36 of 2020 be dismissed with costs to the defendants therein/applicants for having been filed in a court that does not have jurisdiction. - 3. Costs of this application be provided for. - The grounds of the application are set out in the application and the affidavit in support of the 30 application deponed by Mr WERE PANUHA, the 1^{st (2nd)} applicant herein who deposed the affidavit on behalf of the 1^st, 3^rd, 4^th and 5^th applicant but briefly are that; - 1. The learned trial Chief Magistrate of Pallisa at Pallisa Chief Magistrates Court exercised a jurisdiction not vested in him or the court in law when he ordered a transfer of Civil Suit No. 36 of 2020 from the Chief Magistrates Court of Pallisa at Pallisa to the Chief Magistrates Court of Budaka at Budaka. - 2. The Learned Chief Magistrate of Pallisa at Pallisa failed to exercise powers so vested in him when he failed to dismiss Civil Suit No. 36 of 2020 with costs to the applicants for having been filed in a court without jurisdiction. - 3. It is fair, just and equitable that the order transferring Civil Suit No. 36 of 2020 to the Chief Magistrates Court at Budaka be revised and set aside with costs to the applicants and Civil Suit No. 36 of 2020 be dismissed with costs to the defendants.

The respondents opposed the application through an affidavit in reply deponed by Mr. Mataya Micheal the 1^st respondent and on behalf of the 2^nd respondent in which he inter-alia averred that they are the lawful proprietors of the suit land and property having obtained the same by way of purchase on 6thy March 2018 at a consideration of UGX 42,000,000/ (Fourty two million shillings). He averred further that the other respondent assumed and enjoyed quiet and undisturbed occupation of the entire portion of the suit land, utilizing the same for crop farming and chicken raring for their common benefit. That in 2019, the applicants without any lawful justification trespassed upon the suit land and destroyed the food crops thereon.

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He contended that on 30^th September 2020, he and the 2^nd respondent instituted Civil Suit No. 36 of 2020 in the Chief Magistrates Court of Pallisa for among others, a declaration that the respondents are the lawful proprietors of the suit land, an order for nullification of the Budaka District Land Board Minute, a permanent injunction and costs of the suit. That on 20^th October 2020, the defendants lodged their Written Statement of Defense clearly submitting and acknowledging the jurisdiction of the Chief Magistrates Court of Pallisa.

He averred that on the 14^th November 2020, the parties filed a Joint Scheduling Memorandum under which both parties acknowledged that the Chief magistrates Court of Pallisa enjoyed jurisdiction to preside over the matter. That, at the time the matter was filed, the Chief Magistrates Court of Budaka was not operational and had not yet received a substantive Chief Magistrate to preside over the court.

He stated that the Magistrates Court (Magisterial Areas) Instrument, S. I 11 of 2017 which established, the Budaka Chief Magisterial area came into force on the 27^th January 2017, but the court started sitting in 2021 when a visiting Chief Magistrate started entertaining criminal matters while civil matters began in 2022.

He also contended that the issue of jurisdiction was raised at the instance of the Chief Magistrate Court of Pallisa who was then the Acting Chief Magistrate of Budaka who directed that the matter be heard and determined by the Chief Magistrates Court of Budaka which was operational.

He contended that the trial Magistrate acted rightly when he transferred the file to the Chief 70 Magistrates Court of Budaka. The decision of the trial Magistrate was fair and proper so as to avoid unjustifiably condemning innocent litigants for omissions of the trial court. He contended further that the application is baseless and merely intended to derail the trial of the actual matter in dispute.

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In rejoinder, the applicant reiterated the contents of the affidavit in support of the application 75 and added that he was advised by his lawyer that failure to have a substantive Chief Magistrate is not an excuse to file a suit in a court without jurisdiction. He added that he was informed by his lawyers that once the trial Magistrate found his court to lack jurisdiction, the only remedy available was a dismissal and not a transfer.

#### REPRESENTATION 80

At the hearing, the applicants were represented by Mr. Ouma Francis together with Mr. Ezra Nyalwa while with the help of counsel for the applicants this court learnt that Mr. Nangulu Eddie represents the respondents.

Since there was evidence of service upon counsel for the respondents, this court issued directions for filing of written submissions upon an undertaking by counsel for the applicants 85 to extract the same and serve upon counsel for the respondents. Whereas counsel for the applicants filed his submissions within the given timelines i.e 23^rd November 2023, counsel for the respondents did not comply with the stated timelines, the same being filed over one month from the agreed timeline, i.e on $19^th$ January 2024.

Given that the evidence on record shows that counsel for the applicants only served the 90 directives of this court on the 5^th of December 2023, almost two weeks after, this court will proceed to determine the matter as it should. Such conduct exhibited by both counsel will not be tolerated in future.

### **SUBMISSIONS**

#### COUNSEL FOR THE APPLICANTS'S SUBMISSION 95

From the submissions, the issue for consideration is whether the Chief Magistrate of Pallisa had powers to order a transfer Civil Suit No. 36 of 2020 to Budaka Chief Magistrates Court.

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In his submission counsel for the applicants relied on the provisions of section 83 of the Civil Procedure Act which empowers the High Court to revise the decisions of the Magistrates Court where it appears that the court exercised a jurisdiction not vested in it in law, failed to exercise a jurisdiction so vested or acted in the exercise of its jurisdiction illegally or with material irregularity or injustice and make such orders as it deems fit.

According to counsel for the applicants, the order of the Chief Magistrate of Pallisa sitting at Pallisa transferring Civil Suit No. 36 of 2020 to Budaka Chief Magistrates Court is illegal as the Chief Magistrates Court did not have jurisdiction to hear or transfer the suit.

He submitted that jurisdiction is a creature of statute and that any order issued by a court without jurisdiction is a nullity. In his view, by the chief Magistrate exercising such powers as he did in his ruling it constituted an illegality, he simply could not exercise any powers of transfer. Counsel maintained that the only remedy the trial chief Magistrate had after finding that he lacked jurisdiction was to dismiss the suit with costs. He relied on the authority of Cyprian Obbo v Alafari Onyango & 17 Others (Civil Appeal No. 130 of 2012.

Counsel contended that the Chief Magistrates Court of Budaka which had jurisdiction over the matter was created in 2017 and has since been operational, hence the filling of Civil Suit No. 36 of 2020 in the Chief Magistrates Court of Pallisa was an illegality and the suit ought to have been dismissed with costs instead of transferring it to the Chief Magistrates Court of Budaka.

In conclusion counsel contended that by transferring a matter that was filed in the court without jurisdiction, the Chief Magistrate exercised a jurisdiction not vested in him and failed to exercise a jurisdiction vested in him when he did not dismiss the suit.

He thus prayed that the application be allowed with costs, the order transferring the suit be 120 set aside and that Civil Suit No. 36 of 2020 be dismissed with costs.

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# COUNSEL FOR THE RESPONDENTS' SUBMISSION

In his submission in reply, counsel for the respondents argued that the application before this court ought not to be determined on the law, but the factors and circumstances prevailing. On the strength of the above assertion, counsel opted to address in my view, the reasons why Civil Suit No. 36 of 2020 was filed in the Chief Magistrates Court of Pallisa.

From the head and tail of his submissions, counsel conceded to the fact that at the time the suit was instituted, the Chief Magistrates Court of Budaka was already established by the Magistrate's Courts (Magisterial Areas) instrument, S. I No.11 of 2017. He, however contended that at the time the suit was filed in 2020, the court was not operational and yet 130 the respondents were in dire need of justice since the applicants had begun the process of evicting the respondents as well as processing a certificate of title in respect of the suit land. Counsel also added that during the trial, none of the parties raised any issues of jurisdiction because it was judicially noticed that the court was then not operational.

Counsel maintained that the applicants's preliminary objection was not in respect of the 135 jurisdiction of the trial court but the legality of the respondents' interests which the trial court overruled. He however, submitted that in the course of his ruling, the trial Magistrate noted that the subject matter is situate in Budaka district under the jurisdiction of the Chief Magistrates Court of Budaka where he was presiding as a visiting Magistrate and consequently directed the transfer of the file to the Chief Magistrates Court of Budaka 140

Counsel also contended that under section 18 of the Civil Procedure Act, this court is empowered to withdraw and transfer cases before the subordinate courts. He submitted that this is a proper case in which the High Court should exercise its powers to ensure that the ends of justice are not defeated.

In rejoinder, Counsel in his submission reiterated his earlier submission and added that the 145 respondent had failed to appreciate the position of the case by calling upon this court to cause the transfer of the suit by invoking the provision of section 18 of the Civil Procedure Acts.

He submitted that a suit can only be transferred by the High Court where it was in the first instance instituted in a court with jurisdiction.

On the none operations of the Chief Magistrate Court of Budaka, he submitted that the 150 applicant did not support the assertion with any supporting evidence even when he had stated in paragraph 14 of his affidavit that he would provide this court with a certified copy of the register and a communication confirming the same.

He contended that jurisdiction is a creature of statute and no exception is created to allow parties to institute proceedings in court without jurisdiction. 155

## DETERMINATION OF COURT

Section 83 of the Civil Procedure Act provides;

The High Court may call for the record of any case which has been determined under this Act by any Magistrates' 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.

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Counsel for the applicants contends that by the Chief Magistrate of Pallisa sitting at Pallisa transferring Civil Suit No. 36 of 2020 to Budaka Chief Magistrates Court, he acted illegally as the Chief Magistrates Court did not have jurisdiction to hear or transfer the suit. That the only remedy the trial chief Magistrate had after finding that he lacked jurisdiction was to dismiss the suit with costs.

The ruling of the trial Chief Magistrate of Pallisa dated 16^th January 2023, on the last page paragraph 3 reads;

- "On issue No. 3 whether the subject matter is situate within the jurisdiction of this court, I have 175 further observed and established that the suit land is not located within Pallisa district, territorial jurisdiction of this court. Section 12 (a) and (d) of the CPA Cap 71 provides for suits to be instituted where subject is situate. It was therefore improper to file this matter in the chief Magistrates Court of Pallisa when the subject matter is situate in Budaka district. The - proper forum should have been the Chief Magistrates Court of Budaka at Budaka. None of 180 the legal counsel to the parties pointed at this point with regard to territorial jurisdiction whereas it is very crucial, it affects the outcome of the whole trial.

Issue No. 4 shall be disposed of by the trial court.

In result, it is ordered that this matter be transferred to the proper court, the Chief Magistrates Court of Budaka at Budaka as is required by the law".[Emphasis added].

It is evident from their respective submissions that both parties did not dispute the fact that at the time the suit was instituted in 2020, the Chief Magistrate Court of Budaka had already been established by virtue of the Magistrates Courts (Magisterial Areas) Instrument, S. I 11 of 2017 which came into force on 27^th January 2017, thereby curving out the magisterial area of the Chief Magistrates Court of Budaka from the then existing Chief Magistrate Court of Pallisa where Civil Suit No. 36 of 2020 was instituted.

It is a settled principle of law that jurisdiction is a creature of statute. This was re-emphasized in the case of Baku Raphael Obudra & Anor v AG (S. C. C. A No. 1 of 2005), where the Supreme Court held that;

"Courts are established directly or indirectly by the constitution and their respective 195 jurisdictions are accordingly derived from the constitution or other laws made under the authority of the constitution."

To that effect section 12 of the Civil Procedure Act and section 212 (1) of the Magistrates Court Act provide for territorial jurisdiction wherein it demands that suits for immovable property be instituted in a court where the subject matter is situated.

In establishing whether a Magistrates court has territorial jurisdiction, reference has to be made to the Magistrates Courts (Magisterial Areas) Instrument, S. I of 2017) which is made according to sections 2 and 3 of the Magistrates Court Act that empowers the Minister in consultation with the Chief Justice to establish magisterial areas across the country.

- According to the Magistrates Courts (Magisterial Areas) Instrument, S. I of 2017, the Chief 205 Magistrate Court of Budaka was established in 2017. In that regard, it follows that the court with jurisdiction to entertain all matters arising from Budaka including Civil Suit No. 36 of 2020 was the Chief Magistrates Court of Budaka as was rightly held by the trial Chief Magistrate in his ruling. - Counsel for the applicants argued that having found that he has no jurisdiction, the Chief 210 Magistrate ought to have ordered the dismissal of the suit and not the transfer of the suit to the Chief Magistrate Court of Budaka.

The law on transfer of suits is provided under Sections 218 of the Magistrates Court Act and Section 18 of the Civil Procedure Act. The identical sections empower only the high court to

withdraw and transfer suits from one court to another which is competent to try the suit. (See 215 Wilson Osuna Otwani vs Apollo Yeri Ofwono HCMA No. 77 of 2022).

In the case of Okello John Felix vs Oloya Samuel No. 159 of 2018, it was held that;

"The High Court can only exercise its powers of transfer concerning matters that were properly and legally filed in the correct court clothed with jurisdiction in the first place, the court from which the suit is sought to be transferred must be subordinate to the High Court and the High Court should be competent to try or dispose of the suit, which competency does not only include pecuniary, but also territorial competency".

In the instant case, the Chief Magistrate having ruled that it was improper to file this matter in the Chief Magistrates Court of Pallisa when the subject matter is situate in Budaka district and further stating that the proper forum should have been the Chief Magistrates Court of Budaka at Budaka and observing that territorial jurisdiction is very crucial as it affects the outcome of the whole trial, in a rather unprecedented manner ordered that the matter be transferred to the proper court, the Chief Magistrates Court of Budaka at Budaka as is required by the law.

What is evident is that even the high court can only exercise its powers of transfer in 230 circumstances where the matter/s in issue were properly and legally filed in the correct court clothed with jurisdiction in the first place. It therefore follows that the Chief Magistrate did not have the powers to transfer Civil Suit No. 36 of 2020 from the Chief Magistrates Court of Pallisa to the Chief Magistrates Court of Budaka since the transfer of cases is a preserve of the High Court, in which case the High Court ought to have satisfied itself that the suit was 235 filed in a court with jurisdiction which is not the matter in this case. The orders of transfer of the suit was therefore an illegality.

This court therefore finds that the trial Chief Magistrate acted illegally when he ordered the transfer of Civil Suit No. 36 of 2020 from the Chief Magistrates Court of Pallisa to the Chief Magistrates Court of Budaka hence exercising a jurisdiction not vested in him and failed to exercise a jurisdiction vested in him when he declined to dismiss a suit for want of jurisdiction.

Consequently, I find merit in the application and allow the application with the following orders:

- The order of His Worship Owino Paul Abdonson, the Learned Chief Magistrate of $i$ Pallisa Court dated 16^th January 2023 to transfer Civil Suit No. 36 of 2020 from Pallisa Chief Magistrate Court to the Chief Magistrate Court of Budaka at Budaka is revised and set aside. - ii) That Civil Suit No. 36 of 2020 is dismissed with costs to the defendants therein/applicants for having been filed in a court which lacked jurisdiction. - iii) The costs of this application are awarded to the applicant.

I so order. 250

| | | | | Dated this | | |--|--|--|--|------------|--| |--|--|--|--|------------|--|

Margaret Apiny

**JUDGE**

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