Kirangi v Karimunda & 2 Ors (Hct Civil Revision No. 06 of 2011) [2012] UGHC 191 (21 September 2012)

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KABALE

HCT CIVIL REVISION NO. 06 OF 2011

(From Kagarama Parish Civil Suit 10 of 2007)

KIRANGI VANANSIO :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT

VERSUS

1. KARIMUNDA JACKSON

2. BABIGAMBA FRANCIS :::::::::::::::::::::::::::::::::::::RESPONDENT

3. KINYONGORE

BEFORE THE HON. JUSTICE J. W. KWESIGA

RULING

This application for Civil Revision was brought by a Notice of Motion made under section 82 (a) and (b) of Civil Procedure Act and Order 52 of the Civil Procedure Rules.

The grounds of the Application were that the Local Council Court erred when it heard the suit ex parte and decided against the Applicant when he had not been served thus denying him the opportunity to be heard.

The alternative ground is that the LC II Court had no original jurisdiction to hear and determine the suit. The other grounds of the application in the Notice of motion which indicates to have been drawn by the applicant, presumably a lay person, are repetitive and need not be reproduced in this decision. From what can be gathered from the Applicants' Affidavit in support of this application and the annextures to the affidavit, it is clear that the proceedings in the LC II Court of Kagarama were irregular and mixed up and incapable of passing as a court decision to form a basis of determining the parties' rights.

The Applicant, the three Respondents and other people referred to in the suit are children from a polygamous family of late Rwabinumi Bernard who died intestate. It is stated that the deceased's four wives are also dead and the dispute is over the land that they controlled and cultivated while they were alive. The matter for determination simply is customary succession which, unfortunately, is being obscured by lower courts erroneous proceedings and Advocates legalistic submissions that do not concentrate on the root of the matter. I have read the lengthy submissions and academic arguments raised by the Advocates in this case that make matters even more complicated for these rural litigants who are only interested in effectual and practical resolution of their dispute. For these reasons I will concentrate my decision on the aspects of the case that promote justice and provide remedies that will redirect the case on a course that will enable the parties to resolve the issues. For this reason I have disregarded most of the advocates' unhelpful submissions.

I have examined the LC II Court proceedings and judgments. On 2nd June, 2006 LC II Court heard ex-parte, the case of KARIMUNDA & 2 OTHERS VS KIRANGI VANANSIO based on various letters. There was no evidence of service of summons or hearing Notices. The contents of the letters relied upon are not made part of the court record, clearly the Defendant Kirangi was not accorded the right to be heard (see Annexture 'B') to this application. In un clear event on 4th November, 2006 the same court in a case of KIRANGI (see Annexture I to this application, judgment was entered in favour of Kirangi against KINYONGORE and BABIGAMBA who are party to the first case above. The two decisions revolve over the same or related pieces of land which should be adjudicated by a court with competent jurisdiction after hearing both sides. It is a cardinal rule of natural justice and central in our Justice system that no man shall be condemn unheard. Fair trial demands that both sides be heard. In Breen Vs Amlgamented Engineering union (1971) 1 AU E. R 1148 Lord Denning stated;

"*It is now settled that a statutory body which is entrusted by statute with discretion must act fairly. It does not matter whether its functions are described as judicial or quasi-judicial on the other hand..... it must act fairly. It must in a proper case give a chance to be heard."*

In the case of General Medical Council Vs Spark man [1943] 2 AU. E. R 337. Lord Wright had the following to say;

"*If the principles of natural justice are violated in respect of any decision, it is, indeed, immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice. The decision must be declared to be no decision."*

In view of the above authorities applied to the instant case, the LC II decision complained of by KIRANGI VANANSIO was arrived at in breach of the natural justice that both sides must be heard or be given opportunity to be heard consequently it was no valid decision and shall be set aside with all its consequential orders and their executions.

In view of the above decisions it is further ordered that in order to avoid similar mix up and confusion in determination of the rights of the parties. It is ordered that matters related with the distribution of this contentious estate of late Rwabinumi Bernard be filed for a judication by The Magistrate Grade I under whose geographic jurisdiction the estate falls. Considering that this is a family dispute condemning any of the parties to costs of these proceedings would be aggravating matters. Therefore each party shall bear his costs in this application and lower courts' proceedings.

Dated at Kabale this 21st day of September, 2012.

.................................

J. W. KWESIGA JUDGE 21/9/2012

In presence of:

Rev. Bikangiso for the Respondent. Respondent absent. Applicant and his Advocate absent.

Mr. Joshua Musinguzi- Court-Clerk.