[2024] UGHC 1235

## **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KABALE**

# **CIVIL Revision NO. 0001 OF 2023 (Arising from Civil Miscellaneous Application No. 0007 of 2020) AND (Divorce Cause No. 0006 of 2016)**

### **1. RUGAMBWA ANNAH**

**2. TUHIRWE SCOVIA**::::::::::::::::::::::::::::::::::::::::::::::::::**APPLICANTS VERSUS**

## **1. TURYAMWIJUKA DICKSON**

**2. KYOSIMIRE JUSTINE**:::::::::::::::::::::::::::::::::::::::::::::::**RESPONDENTS**

#### **BEFORE: HON. JUSTICE SAMUEL EMOKOR**

#### **RULING**

The Applicant brings this application by Notice of Motion under **Section 83** and **98** of the **Civil Procedure Act**, **Section 33** of the **Judicature Act**, **Order 52 Rules 1, 2 and 3** of the **Civil Procedure Rules** seeking revision of the Ruling and Orders of His Worship Olupot Pascal delivered on 26/05/2022 that the same be set aside and provision be made for costs.

## **Background.**

The brief background to this application is that the first Respondent was a Petitioner in Divorce Cause No. 0006 of 2016 against the 2nd Respondent and a decree absolute was entered on the 08/02/2019, under which interalia the following matrimonial properties were divided amongst the couple.

- 1) A shamba of trees one found in Kanaba and another in Rwembogo. - 2) A swamp found in Muyebe and another in Karubanda Rwembogo village.

After the decree absolute was passed, the first Respondent filed an application for review under Miscellaneous Application No. 0069 of 2019 where he applied for review of the orders in Divorce Cause of No 0006 of 2016 seeking orders to review the decree that some of the properties especially those listed above do not belong to the Petitioner but rather the estate of his later father Zikamukuba Stanely and that his siblings had shares in those pieces of property the decree had given to the second Respondent. As a consequence of this application a variation was made by the trial Court of the Decree passed in Divorce Cause No 0006 of 2016 in which the trial Court made a finding that such properties could not be shared between the parties upon divorce. The Chief Magistrate upon learning of the same forwarded the file to the Resident Judge under **Section 221(2)** and **(3)** of the **Magistrates Court Act** seeking guidance on whether it was proper for the trial Court to review some of its orders after issuing a Decree absolute.

The High Court Judge Hon. Justice Moses Kazibwe Kawumi (as he then was) upon perusal of the file made a finding that the file reveals that the applicant could not fit in the category of a person aggrieved for the reason that:

- **a) There was no important matter or evidence that came to the Applicants' knowledge warranting a review of the order.** - **b) There was no mistake or error apparent on the face of the record to warrant a review of the order.** - c) **If the Applicant claims the disputed pieces of land to belong to "other parties" it should have been those "parties" to file objector proceedings contesting the order of the trial Magistrate.**

The instant Applicants then filed Miscellaneous Application No.0007 of 2020 against the Respondents seeking that the orders in Divorce Cause No. 0006 of 2016 be reviewed to vary the orders that gave the 2nd Respondent land that wasn't matrimonial property. The application was based on an error or mistake apparent on the face of the record and they alleged that the land situated at Rwembongo Muyebe Parish was land comprised in a certificate of title of Karubanda Grazing Company Ltd and that the father in-law of the second Respondent only had shares in the company. Further that the land mentioned in paragraph (d) of the Divorce Cause No. 0006 of 2016 at Kanaba Village Muyebe Parish comprised in the land title is comprised in the certificate of Muyebe Byansi Cooperative Society Ltd.

The trial Magistrate in his Ruling delivered on the 26/05/2022 dismissed the application citing that there is high reliance on extraneous matters to show the incorrectness of the record meaning that the error is not manifest that a Court can permit such an error to remain on the record.

The Applicants by this application seek revision of the decision of His Worship Olupot Pascal.

The ground upon which the instant application is premised is that the trial Magistrate acted in exercise of his jurisdiction illegally or with material irregularity or injustice when he proceeded to hold that His Lordship Moses Kazibwe Kawumi's (As he then was) opinion that the other parties claiming the disputed pieces of land ought to file objector proceedings contesting the order of the trial Magistrate was binding and conclusive.

The Application is supported by the affidavit of the Applicants. The first Respondent in his affidavit in reply agreed with the position of the Applicants and supported the application. While the second Respondent in her affidavit in reply opposed the application averring that the same is misconceived as there is no material irregularity that was committed by the trial Court and the Applicants were not specific on the error apparent on the record which the trial Magistrate was mandated to correct.

#### **Representation.**

At the hearing of this application Messrs Bikangiso & Co. Advocates appeared for the Applicant while the first Respondent was represented by Messrs Elgon Advocates and the second Respondent by Messrs Nasiima Patience & Co. Advocates.

The Counsel in this matter proceeded by way of written submissions.

The thrust of the Applicant's Counsel is that the trial Magistrate acted with material irregularity and injustice when he proceeded to hold that the opinion of the Judge for other parties to file objector proceedings was a binding and conclusive decision. Counsel also contends that the guidance of the Honourable Resident Judge alluded to by the trial Magistrate that the Applicants ought to have filed objector proceedings contesting the order of the trial Magistrate was inapplicable because there was no pending application for execution or any of attachment in Divorce Cause No. 0006 of 2016 and thus the guidance of the High Court had been overtaken by events. To buttress his point Counsel relies on the decision in **Chotabhai M. Patel versus Chaprabhi (1958) ED 743**.

The first Respondent's Counsel in his written submissions concedes to the application.

The 2nd Respondent's Counsel in her written submissions contends that the trial Magistrate did not base his decision perse on the guidance of he Resident Judge but also went ahead to relate the application with the law applicable and held that the application did not meet the qualifications under the law and thus dismissed the same with costs.

#### **Determination.**

In **Mabalaganya versus Sanga (2005) EA 152** the Court held that in a case of revision the Court has the duty to examine the record before it for the purpose of satisfying itself as to the correctness, legality or propriety of any finding order or decision of the trial Magistrate Court.

**Section 83** of the **Civil Procedure Act** empowers this Court to revise decisions of Magistrates Courts where the Magistrates 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,

"*Material irregularity"* within the context of this section is used in the restricted sense of *"method of conducting a case"* The expression means some material irregularity in procedure which may possibly have produced error or defect in the decision of the case upon the merits (**Oyet Celestino versus Okello Lujuno HCMA No. 0053 of 2017)** This section on revision only calls upon the High Court to examine the application of jurisdiction by the Magistrate Court. The Court on revisionary powers will only assess the exercise or no exercise or illegal assumption of jurisdiction. The High Court does not merely interfere with the merits of a decision of the trial Magistrate Court on law or fact but will interfere only to ensure that the requirements of the law have been properly followed by the Court whose order is subject to revision **(Matembe versus Mulinga (1968) EA 643).**

The ground upon which this application is premised is that the trial Magistrate acted in exercise of his jurisdiction illegally or with material irregularity or injustice when he proceeded to hold that the opinion of his Lordship Moses Kazibwe Kawumi (as he then was) that other parties claiming the disputed pieces of land ought to file objector proceedings contesting the order of the trial Magistrate was binding and conclusive.

My assessment should be whether the trial Magistrate followed the right procedure to arrive at his decision in this case. The instant Applicant applied for review on grounds that there was an error apparent on the face of the record alluding to the distribution of pieces of land allegedly belonging to the Estate of the Late Stanley Zikamukuba. The **Supreme Court** dealing with this ground in **Edison Kanyabwera versus Pastori Tumwebaze SCCA No.0006 of 2004** observed that,

*"In order that an error may be a ground for review, it must be one apparent on the face of the record that is an evident error which does not require any extraneous matter to show its in correctness. It must be an error so manifest and clear that no Court would permit such an error to remain on record"* The above implies that for a Court to rule that an error is apparent on the face

of the record it must be manifestly clear. The Court ought not to look at any evidence not on its already existing record to arrive at the conclusion that this is an error apparent on the face of the record. Procedurally the trial Magistrate was expected to examine the entire record under Divorce Cause No. 0006 of 2016 and evaluate the extent of the errors mentioned by the Applicants under Miscellaneous Application No 0007 of 2020. A perusal of the Ruling reveals that the trial Magistrate was alive to the provisions of the law and of what was required of him in the application. The trial Magistrate in his analysis arrives at the conclusion that there was no error manifest on the record because all that was alleged as errors required proof of extraneous evidence that the properties that were given to the 2nd Respondent in this case belonged to her father in-law. I find no reason to fault the finding of the trial Magistrate.

The Applicants did not in their application provide to the Court evidence of any error or mistake that was apparent on the face of the record.

The Applicants have been critical of the trial Magistrate that he heavily relied on the guidance of the Resident Judge in regard to applying for objector proceedings to dismiss their application for review. This criticism of the trial Magistrate is un founded. While it is true that the trial Magistrate alludes to the guidance of the learned Resident Judge he does so after making a finding that the application was unfit for a review process under **Order 46** of the **Civil Procedure Rules** as there was no error apparent on the face of the record.

This was the main ground of the application and the trial Magistrate properly pronounced himself on the same I so find.

The arguments of the Applicant and their Counsel that objector proceedings

advised by the learned Resident Judge and trial Magistrate was premature is moot as delving deeper in to the same would not in any way affect the outcome of this application.

The revisory powers of the High Court are limited to the procedural defects and jurisdiction application questions.

It is therefore my finding that the Applicants have not met the legal test necessary for grant of the orders sought.

The instant application is therefore hereby dismissed with costs to the second Respondent.

It is so ordered.

Before me,

…………………………………… **Samuel Emokor Judge 28/11/2024**