THE REPUBLIC OF UGANDA

IN THE SUPREME COURT OF UGANDA AT KAMPALA

CIVIL APPEAL NO. 08 OF 2021
FAUSTINE NTAMBARAT:!:r:::::::r:i::::::::::::!::::i::::::::APPELLANT
vERSUS
BENON SUBUJISHO:::::::::::::::::::::::::::::::::::::::r::::RESPONDENT
(Appeal from the decision of the Court of Appeal (Egonda-Ntende, Muhanguzi and
Tuhaise, A) dated 2Zd October, 2019 in CivilAppeal No.61 of2012.)
CORAM: HON. LADY JUSTICE ELIZABETH MUSOKE, JSC
HON. MR. JUSTICE STEPHEN MUSOTA, JSC
HON. MR. JUSTICE CHRISTOPHER MADRAMA IZAMA, ]SC
HON. LADY JUSTICE CATHERINE BAMUGEMEREIRE, JSC
HON. LADY JUSTICE MONICA K. MUGENYI, JSC

JUDGMENT OF ELIZABETH MUSOKE, JSC

I have had the benefit of reading in draft the respective judgments of my
learned brother and sister Madrama and l'4ugenyi, JJSC. Before stating my
conclusion in this appeal, I would like to add a few words of my own on the
questlon of whether an appeal can be preferred against a decision of the
High Court in a civil revision application.
Revision is a mechanism through which the High Court exercises its
supervisory powers over Magistrates' Coufts under Section 17 of the
Judicature Act, Cap. 16. Revision is further provided for under Section 83 of
the Civil Procedure Act, Cap. 282 ("the CPA") which provides for the grounds
for revision, namely; first, that a IYagistrate's Court exercised a jurisdiction
not vested in it in law, or secondly, that a lvlagistrate's Court failed to exercise
a jurisdiction vested in it, or thirdly, that a Magistrate's Court acted in the
exercise of its jurisdiction illegally or with material irregularity. Section 83 of
the CPA further provides that where the High Court is satisfied that any of
the above grounds exist, it may revise the case and make such order in the
record as the court considers fit.

1
On the point of whether, under the CPA, an appeal is allowed against a
decision in a revision application, the approach to answering the same is by
taking lnto consideration the well-established position that an appeal is a
creature of statute and the right to prefer an appeal/ whether as of right or
with leave, has to be expressly stated in the statute. In Attorney-General
vs. Shah (No 4) [1971] 1 EA 50, it was held that appellate jurisdiction
springs only from statute. There is no such thing as inherent appellate
jurisdiction. This position has been approved by this Court in various
decisions such as Baku Raphael Obudra vs. Attorney General,
Constitutional Appeal No. 1of 2005. In relation to revision decisions, it
will be noted that Section 83 of the CPA makes no provision for an appeal
against a revision decision. Furthermore, it should be noted that under Article
134 (2) of the 1995 Constitution, an appeal lies to the Court of Appeal only
against such decision as may be prescrlbed by law. In this case since Section
83 of the CPA does not prescribe an appeal against a revision decision, and
no other law was shown as prescribing an appeal against a revision decision,
the inevitable conclusion is that a revision decision is flnal and not
appealable. Therefore, in this case, the decision by Murangira, I dismissing
the revision application ln this case was flnal and the Court of Appeal should
not have entertained an appeal against it. Consequently, the present appeal
against the decision of the Court of Appeal cannot also be preferred.
The next question to determine is what course should be taken considering
the above findings which indicate that the Cout of Appeal entertained and
made a decision in an appeal against a decision that was not appealable.
Does the Court of Appeal, and by extension this Court, have discretion to
overlook the applicable legal provisions mentioned above, which do not
provide for an appeal against a revision decision, and proceed to entertain
such an appeal? The authorities establish that whether a matter is
appealable is a jurisdictional polnt so that if a matter is not, under the
relevant law, appealable, a court is barred from entertaining it. In this case,
it can be argued that there were glaring irregularities ln the manner in which
the original trial was conducted in that the learned trial Magistrate made
his/her judgment without hearing evidence but relying only on attachments
to the pleadings and a dubious survey report from a survey which was
2
conducted only at the Court's volition. In my view, the defendants in the
original trial were justifiably aggrieved with the unjust manner in which the
proceedings in the trial Court were conducted. However, in using the revision
procedure to address their grievance, the original defendants should have
known that, under the law as explained above, whatever decision the High
Court gave in the revision application was final and not appealable to the
Court of Appeal. Therefore, whereas the original defendants deserve all the
sympathy for being the victims of an unjust decision, their appeal to the
Court of Appeal was not provided for and no exceptions can be made for
them,

In view of the above reasons, I would agree with Madrama, JSCt conclusion
that the High Court's revision decision was not appealable to the Court of
Appeal and ought to have been struck out. Similarly, the appeal to this Court
is incompetent and also ought to be struck out. Accordingly, by majority
decision (Musoke, Musota, Madrama and Bamugemereire, JJSC; Mugenyl,
JSC dissenting) this Court makes the following declarations and orders:

1. Revision decisions of the High Court made under Section 83 of the Civil
Procedure Act, Cap. 282 are final and are not appealable to the Court of
Appeal.

2. The decision in Court of Appeal Civil Appeal No. 61 of 2012 which arose
from an incompetent appeal against a revision decision is hereby nullified.
3. The appeal in thls Court arising from the Court of Appeal's decision in an
incompetent appeal is also incompetent and is struck out.
4. No order is made as to costs of this appeal and the appeal in the Court of
Appeal.

Dated at Kampala this lAll}' day of 2025.

Elizabeth Musoke
lustice of the Supreme Court
\l\AI.AAW
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 THE REPUBLIC OF UGANDA

IN THE SUPREME COURT OF UGANDA AT KAMPALA

CryIL APPEAL NO. 14 OF 2023

[CORAM: MUSOKE, MUSOTA, MN)RAMA, BAMUGEMEREIRE &

MUGEITIYI; JJSCI

FAUSTINE NTAMBARA :::::::::::::::::::::::::::::::::::: : APPELLANT

VERSUS

BENON SEBUJISHO :::::::::::::::::::::::::::::::::::::::::: : RESPONDENT

(Appeol from the decision of the Court of Appeal (Egonda Ntende, Muhanguzi & Tuhaise,
JJA) in Ciuil Appeal No. 61 of2012)

JUDGMENT OF STEPHEN MUSOTA, JSC

I have had the benefit of reading the judgment of my learned

brother, Justice Christopher Madrama lzama, JSC, and I entirely
agree with his reasoning and conclusion that the present appeal is
incompetent before this Court.

This appeal arises from a sequence of proceedings that were

fundamentally revisionar5r in nature. It is trite that revisionary
jurisdiction is discretionary and supervisory, and distinct from
appellate jurisdiction. The refusal to revise does not constitute a
decision made in the exercise of original or appellate jurisdiction,

l lPage
nor does it determine the substantive rights of the parties in a
manner that gives rise to a right of appeal.

The Civil Procedure Act does not confer a right of appeal from a
High Court's decision refusing to exercise revisionaqr powers. As my
learned brother aptly observes, there is no statutory provision in
civil procedure akin to Section a5pl of the Criminal Procedure
Code, which deems certain revision proceedings as appeals only for
the purpose of procedure, and not for conferring a substantive right
of appeal.

Section 6(1) of the Judicature Act provides that an appeal lies to

this Court as of right where the High Court has exercised original
jurisdiction and the decision is confirmed, varied, or reversed by the
Court of Appeal. However, in the present case, the High Court never
exercised original jurisdiction, nor did it issue a substantive order
upon which the Court of Appeal's decision could be rooted in
appellate jurisdiction. Instead, the High Court's refusal to revise is
an exercise or more precisely, a non-exercise of supervisory
jurisdiction, which falls outside the purview of Section 6(1) of the
Judicature Act.
The Court of Appeal, in taking up the matter and exercising
revisionary jurisdiction where the High Court had declined to do so,
effectively assumed original supervisory jurisdiction. While it is
within the Court of Appeal's mandate to ensure justice is done, it
cannot, by such assumption, give rise to a right of second appeal to
this Court that is not otherwise provided for by law.

2lPage
To hold otherwise would effectively expand the appellate jurisdiction
of the Supreme Court beyond what is permitted by statute, and
would open the door to appeals in all manner of interlocutory or
supervisory decisions, contraqr to the spirit and structure of our
appellate framework.

I therefore concur with Justice Madrama lzanna, JSC, that the

appeal is incompetent. It does not arise from a decision made in the
High Court's original or appellate jurisdiction, nor is it authorized
by any statutory provision. The law is clear that the jurisdiction of
this Court must be exercised strictly in accordance with statute,
and no right of appeal exists in the circumstances of this case.

Accordingly, I would dismiss this appeal AS incompetent and

without merit.

Dated this day of 2025

@ v&^)
Stephen Musota
JUSTICE OF THE SUPREME COURT

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N€+4 3lPage

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 THE REPUBLIC OF UGANDA,

IN THE SUPREME COURT OF UGANDA AT KAMPALA

(CORAM: MUSOKE, MUSOTA, MADRAMA, BAMUGEMEREIRE & MUGENYI,

JJSC)

CIVIL APPEAL NO 8 OF 2021

10 FAUSTINE NTAMBARA} APPELLANT

VERSUS

BENoN SEBUJTSHo) ............................ ...................RESp0NDENT

((Appeal from the decision of the Court of Appeal (Egonda Ntende,

Muhanguzi & Tuhaise, JJA) in Civll Appeal No. 61 of 2012)

15 JUDGMENT OF CHRISTOPHER MADRAMA IZAMA, JSC

I have read in draft the Judgment of my learned sister Mugenyi, JSC and
respectfutty do not agree with the decision that the appeaL before this court
is competent. I woutd therefore express myself on[y on the question
whether the appeal before thrs court is incompetent.

20 The issue of competence firstty arises from my interpretation of sectjon 6

(l) and (2) of the Judicature Act as wett as the provisions on appeals from
orders under section 76 of the Civit Procedure Act which bar second
appeats in intertocutory matters. ln the atternative, where there is a right of
appeat, the issue is whether it shoutd be wath leave to appeal first obtained
25 under provisions of the Judicature (Court of Appeat Rutes) Directions or of
the Supreme Court under the Judicature (Supreme Court Rutes) Directions
before any appeal in from revision order is lodged and finalty whether a
right of appeat exjsts at at[ in the circumstances.

The facts which are material for consideration of the issue of competence
30 have been set out by my learned sister Mugenyi, JSC but for purposes of

1
 5 this judgment, I witt set out the gist of the facts necessary for resolution of
the issue of competence of the appeat.

The appeat before the Supreme Court originated as a suit by the appetlant
for trespass in a Magistrates Court in Civil Suit No. 47 of 2003, which suit
succeeded. The respondent did not appeat and instead apptied for revision
10 in the High Court, Nakawa Division in HCMA No. h of 2OO7 and their
apptication was dismissed on 30rh of September 2010. The respondent
sought for leave to appeal to the Court of Appeat against the dismissal and
this was granted in Juty 2010. The respondent's appeal which is entitled as
Court of Appeal Civil Appeat No. 61 of 2012 was altowed. The appellant was
15 aggrieved and appealed to this court without an order granting Leave to
appeat.

My learned sister Mugenyi, JSC considered the revision order as an order

issued in the exercise of the untrmited originat jurisdiction of the High Court
thereby giving the Supreme Court second appellate jurisdiction under
20 section 6 (1) of the Judicature Act. The fact is that there was no order by the
High Court in revision as the application for revision was dec[ined with an
order of dismissal. The power of the High Court to revise proceedings of a
Magistrates Court in civiI proceedings is statutory and is founded on section
83 of the CiviI Procedure Act. There are simitar powers conferred on a Chief
25 Magistrate under section 221 of th|e Magistrates Courts Act to revise
.judgment and orders of a subordinate court. In this matter the High Court
decline to exercise revisionary jurisdiction.0n appeat, the supervisory
powers of revision were exercised by the Court of Appeat which revised the
case and made consequentiaI orders.

30 Section 83 of the Civit Procedure Act deals with revision and provides that:
83. Revision.

The High Court may cal[ 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 taw:

2
 5 (b) faited to exercise a jurisdiction so vested; oT

(c) acted in the exercise of its jurisdiction ittegatty or with materiaI irregularity or
injustice, the High Court may revise the case and may make such order in it as it
thinks tit; but no such power of revision shal[ be exercised-

(d) unl.ess the parties shatt first be given the opportunity of being heard; or

10 (e) where, from lapse of time or other cause, the exercise of that power woutd
invotve serious hardship to any person.

Revision occurs where the High Court calts for the record of a case which
has been determined by a Magistrates Court so that it revises the
proceedings to establish whether the Magistrate's court, (a) exercised a
15 jurisdiction not vested in it in law or whether, (b) it failed to exercise a
jurisdiction so vested; or whether (c) it acted in the exercise of its
jurisdiction ittegatly or with material irreguLarity or injustice. Any of the
three grounds for revision can stand on their own and the power of the High
Court to revise the proceedings of the subordinate court is discretionary. lt
20 may revise the case and may make such order in the suit as it thinks fit. The
High Court declined to exercise this jurisdiction and the respondent sought
leave and leave was granted to appeat the refusal to the Court of Appeat.

I notethat revision is an atternative remedy to an appeal where the power

can be exercised under special statutory grounds as I have set out above. I
25 further observe that the power of revision rhymes with the power of the
High Court to exercise supervisory contro[ over Magistrates Courts under
section 17 of the Judicature Act which provides that:
17. Supervision of magistrates courts

('l) The High Court sha[[ exercise generaI powers of supervision over magistrates
30 courts.

(2) With regard to its own procedures and those of the magistrates courts, the
High Court shatt exercise its inherent powers to prevent abuse of the process of
the court by curtaiting detays, inctuding the power to Limit and stay detayed
prosecutions as may be necessary for achieving the ends of justice.

3
 5 ln criminaL matters this jurisdiction is exercised inter aLia through
revisionary powers under sections 50 to 51 of the Criminal Procedure Code
Act. Section 50 (l) provides that:

50. Power of High Court on Tevrsron.

('l) ln the case of any proceedings in a magistrate's court the record of which has
10 been catted for or which has been reported for orders, or which otherwise comes
to its knowtedge, when it appears that in those proceedings an error materia[ to
the merits of any case or involving a miscarriage of justice has occurred, the High
Court may-

(a) in the case of a conviction, exercise any of the powers conferred on it as a

court of appeal by sections 34 and 4l and may enhance the sentence;

(b) in the case of any other order, other than an order of acquitta(, atter or reverse
the order.

The High Court has no power to convert an order of acquittat to one of

conviction under section 50 (4). The High Court may be moved to exercise
20 its revisionary powers by the petition of an aggrieved party under section
50 (5) of the Criminal Procedure Code Act. Further under section 50 (5) no
petition for revision by the High Court shatt be entertained where the
petitioner could have appealed against the finding, sentence or order and
has not appealed. The remedy of revision in criminal matters is therefore
25 restrlcted to situations where the petitioner could not have appeated.
Section 45 of the Criminal Procedure Code Act deats with second appeats
and provides in subsection I thereof that:
45. Second appea[s

(i) Either party to an appeaI from a magistrate's court may appeat against the
30 decision of the High Court in its appettate jurisdiction to the Court of AppeaL on a
matter of taw, not inctuding severity of sentence, but not on a matter of fact or of
mixed fact and [aw.

Several subsections of section 45 of the CriminaL Procedure Code Act make

provisions on the orders that may be made in second appeats but what

4
 stands out is section 45 (7) of the Criminal Procedure Code Act which
provides that:
(7) For the purposes of thjs section. the proceedings of the High Court on revision
shatl be deemed to be an appeat.
My understanding of this section is that the proceedings in revision (which
10 is not an appeat) shatt be taken to be an appeal for purposes of the orders
and procedure provided therefor under section 45 of the Crimrnat
Procedure Code Act. This section particularty sets out the kind of orders
that may be issued where there is an acquittal or conviction order by the
subordinate court. Section 45 (7) of the Criminal Procedure Code Act adopts
15 the law on second appeats stiputated therein to revisionary proceedings. lt
does not per se confer any right of appeat and deats with situations where
the petitioner could not have appeated. lt envisages revision proceedings
forwarded from a Chief l'/agistrates Court after revision by the Chief
Magistrate.

20 In civil matters on the other hand there is no singte statutory provision that
confers a right of appeal from an order made in revision. The generaI power
of supervision over subordinate courts under section 17 (l) of the Judicature
Act is exercised by the High Court through apptication of section 83 of the
Civil Procedure Act. Section 83 of the CPA confers power on the High Court
25 white section 221 conferc power on a Chief Magistrates Court to catl for the
record of a completed case in a subordinate magistrate's court to estabtish
whether the magistrate exercised a.jurisdiction not vested in it in law or
whether it faited to exercise a.jurisdiction so vested; or whether it acted in
the exercise of its jurisdiction ittegatly or with materia[ irregularity or
30 injustice. The High court after revision may issue an appropriate order
inctusive of quashing the proceedings for il.tegatity or want of jurisdiction.

ln considering whether an order of the High Court in revision in civi[

proceedings is appeatabte to the Court of Appeat and uLtimatety to the
Supreme Court, I have set out below section 6 (1) (2) of the Judicature Act
35 which defines the civiL appettate jurisdiction of the Supreme Court:
6. Appeal.s to the Supreme Court in civiI matters.
5
 5 ('l) An appeal shaLL Lie as of right to the Supreme Court where the Court of Appeat
confirms, varies oT reveTses a judgment or order, inctuding an intertocutory
order, given by the High Court in the exercise of its originat. jurjsdiction and either
confirmed, varied or reversed by the Court of Appeat.

Under section 6 (1) there is a right of appeat to the Supreme Court from the
ro decision of the Court of Appeat only where the Court of Appeat confirms,
varies or reverses a judgment or order, including an interlocutory order,
given by the High Court in the exercise of its original jurisdiction. The
defining question is whether the Court of Appeat confirmed, reversed or
varied a judgment or order of the High Court in the exercise of its original
1s jurisdiction. Was the dismissal of the apptication for review made in the
exercise of original jurisdiction? My answer is in the negative. Before I
expand on that I need to emphasize that this court has no jurisdiction except
where the High Court had exercised originat jurisdiction in the matter in
terms of section 6 (1) of the Judicature Act. ln Attorney Generat Vs Hajj
20 Swaibu Nuweaine Kikwanzi, Civit Applications Nos 013 of 2019 and 0'15 of
2020: l202Al UGSC 14 (13 June 2024), the Supreme Court hetd that section 6
(i) of the Judicature Act onty confers jurisdiction on the Supreme Court in
cases where the Court of Appeal exercised appeltate jurisdiction and
confirmed, varied or reversed the judgment or order of the High Court in
2s the exercise of its originaI jurisdiction. They hightighted the fact that the
Supreme Court exercises the jurisdiction of a second appettate court and
the law emphasizes that the High Court must have exercised original
jurisdiction in the matter.

ln my judgment, the apptication for revision heard by the High Court and
30 dismissed was not dismissed in the exercise of originat jurisdiction but on[y
using lnherent jurisdiction. Black's Law Dictionary Ninth Edition has a
concise definition of the term originat jurtsdictton and states that,

original jurisdiction. ('l7c) A Court's power to hear and decide a matter before any
other court can review the matter.

35 Further, the Concise Oxford Dictionary of Potitics (3 ed.) lain Mclean and
Atistair McMittan define originaI jurisdiction as:

6
 5 originat.iurisdiction The right of a court, usuatty a minor or trial court, to hear a
case at its inception.

By definition, the exercise of originat.jurisdiction by a court refers to the

court's power to hear and determine a case for the first time. This means
the court is the initiat forum where the dispute is brought for adjudication.
10 The manner of commencement of a suit depends on the procedure. The
court receives pteadings from the parties and then takes evidence, hears
arguments, and makes findings of fact and law to reach a decision on any
controversy or controversies disclosed in the pLeadings. The distinguishing
characteristic of exercise of originaI jurisdiction is that the court exercising
15 the power is the primary decision-maker in the matter. lt is where the case
originates or where proceedings are commenced and where the initiat
judgment or order is made.

Conversely, the exercise of jurisdiction to revise a completed judgment or

order of a subordinate court is fundamentatly different. Revisionary
20 jurisdiction involves a higher court reviewing a decision already made by a
Lower court. The higher court is not hearing the case for the first time.
lnstead, it examines the record of the proceedangs and the judgment or
order of the subordinate court to determine if there were any wrong
exercise of jurisdiction not vested in the court, faiture to exercise
25 jurisdiction so vested or iLtegat use of jurisdiction with materiaI irreguLarity
of injustice in the proceedings, or improprieties that warrant intervention in
terms of section 83 of the Civit Procedure Act. The higher court can onty
exercise revision jurisdiction after a suit, petition or other cause or matter
was commenced and determined by a Lower court. The exercise of revision
30 jurisdiction is therefore anciltary or consequential upon the exercise of
originaL jurisdiction of a subordinate court.

The key elements of originat jurisdiction include, the commencement of

proceedings. Commencement invotves initiating or commencing a new case
by a party or parties, paying court fees and serving the respondent or
35 defendant. Revisionary jurisdiction on the other hand invoLves reviewing an

1
 5 existing case that has been compteted and a judgment or order issued by a
subordinate court.

Secondty, the scope of inquiry is not the same. ln the exercise of originat
jurisdiction, the court hears the merits of the case, inctuding reception of
evidence and arguments. In revlsionary jurisdiction, the court's inquiry is
10 Iimited to examining the tegatity, regutarity, and propriety of the subordinate
court's decision. lt does not typicatty re-evaluate the facts or evidence
unless there is a ctear error of [aw or procedure.

Thirdty the nature of the decision varies. Exercise of originaI jurisdiction

results in a primary decision on the matter. 0n the other hand, exercise of
15 revisionary jurisdiction results in a decision to uphotd, modify, or set aside
the subord inate court's decision.

Fourthty, it can be distinguished on the basis of purpose. The exercise of

original jurisdiction aims to resoLve a drspute by making an initiaI
determination of issues in controversy in the surt. 0n the other hand,
70 exercise of revrsionary jurisdiction aims to ensure the correctness, legatity,
and fairness of decisions made by subordinate courts.

In essence, originat jurisdiction is about starting and deciding a case, white

revisionary jurisdiction is about reviewing and correcting a case that has
already been decided. This distinction is crucial for understanding the
different roles and powers of courts within a hierarchical Judiciat system
and for reaching the conctusaon that revision jurisdiction is not originaI
jurisdiction. lt fottows that section 6 (1) of the Judicature Act, does not confer
any jurisdiction on the Supreme Court in this matter which had been
commenced as a suit in a magistrate's court which exercised original
30 jurisdiction in the originat suit and an appeaI was Lodged subsequentty
against refusal by the High Court to review the judgment issued in the
exercise of originat jurisdiction of a magistrate's court Moreover, the basis
of revision is an alternative remedy to an appeal from the decision of a
subordinate court. That means that no appeal was lodged against the
35 decision of the Magistrates Court.

8
 5 Further the Chief Magistrates Court atso has supervisory powers over
subordinate courts. The supervisory powers are enabted further by the
power of revision of a Lower court's decision. Section 221 of the Magistrates
Courts Act is self-explanatory and provides that:

221. Supervisory powers of chief magistrates.

10 (1) A chief magistrate shatl exercise generaI powers of supervision over atl
magistrates courts within the area of his or her jurisdictjon.

(2) Without preludice to the generality of subsection (1), a chief magistrate may
catt for and examine the record of any proceedings before a magistrate's court
inferior to the court which he or she is empowered to hotd and situate within the
15 toca[ [imits of his or her jurisdiction for the purpose of satisfying himself or
hersetf as to the correctness, tegatity or propriety of any finding, sentence,
decision, judgment or order recorded or passed, and as to the regutarity of any
proceedings of that magistrate's court.

(3) lf a chief magistrate acting under subsection (2) is of the opinion that any
20 finding. sentence, decision, judgment or order is ittegat or improper, or that any
proceedings are irregutar, he or she shall forward the record with such remarks
therein as he or she thinks fit to the High Court.
(4) Where a chief magistrate forwards a record of criminaI proceedings to the
Hiqh Court under subsection (3), he or she may retease any person serving a
25 sentence of imprisonment as a resutt of those proceedings on baiL, pending the
determination of the High Court, if he or she is of the opinion that it is in the
interests of justice so to do.

Firstly, revisionary proceedings before a Chief Magistrate can further be

forwarded to the High Court under section 221 (3) of the MCA. This ties up
30 with section 45 (7) of the Criminal Procedure Code Act that proceedings
thereunder can be considered for purposes of application of that section as
an appeat. lt fotlows that the statutory provisions thus far examined atlow
for a revisionary proceeding to be forwarded by a Chief Magistrate to the
High Court. There is no provision for such proceedings to be forwarded to
35 the Court of Appeat. Moreover, these are proceedings where no appeaI was
possibte and therefore they are not appettate proceedings but proceedings
in the exercise of supervisory powers over subordinate courts' There is no
9
 5 constitutional power or statutory provision that enables the Court of Appeat
to exercise supervisory jurisdiction or powers over the High Court by way
of revision in civitproceedings. What is avaitabte is the exercise of appettate
jurisdiction and appetlate jurisdiction js a creature of statute and as we note
below, there is no provision conferring a right of appeal from decisions and
10 orders of the High Court in the exercise of its powers of revision.
Conversety, an app[ication for revision of a High Court judgment or order
made to the Court of AppeaL under section 83 of the CiviI Procedure Act
woutd be incompetent.

The second aspect I deal with invoLves [eave to appea[. The respondent
15 sought for and was granted leave to appeal the refusal of the High Court to
exercise revisionary power. The High Court advised the appLicant to pursue
an appeal (atbeit the appeal was out of time). The exercise of revisionary
power is a discretionary power under section 83 of the Civit Procedure Act
even if the statutory grounds for revision do exist. The wording of the
20 section upon estabtishing the grounds for revision is that: ?re High Court
may revise the case". fheref ore, even if there are grounds for revision, the
High Court may, in its statutory discretion, dectine to revise. ln this matter,
when the High Court dectined to revise, the respondent sought leave to
appeat the refusal to the Court of Appeat and the apptication for Leave to
25 appeaL was attowed. This rests on the premises that the respondent needed
leave to appeal to the Court of Appeat and therefore leave was necessary
to further appeal to the Supreme Court.

Appettate jurisdiction is a creature of statute and appeats from orders are

governed by the Civit Procedure Act or the Judicature Act. The rules
30 demonstrate that an order refusing revision does not fat[ under 0rder 44 (1)
(a) - (u) of the Civit Procedure RuLes as an order where appeal [ies as a
rjght. lnstead, if there is a right of appeat at att, (something which I witt
determine below) it would falt under Order 44 rute (2) of the Civit Procedure
Rutes and therefore it required leave of the High Court or the Court of
35 Appeat for the order refusing to revise the decision of the Magistrates Court
to be appealable to the Court of Appeat.

10
 An apptication for leave to appeal is enabted by rute 39 (2) of the Rutes of
this Court which provides that.
39. Apptication for certificate of importance or leave to appeaI in civiL matters

(1) ln civit matters-

(a) where an appeal Lies if the Court of Appeal certifies that a question or
10 questions of great pubtic or genera[ importance arise,...

(2) Where formerly an appeal lay from the High Court to the court with leave of
either the High Court or the court, the same rules sha[[ appty to appeats from the
Court of Appeat to the court-

(a) where an appeal Lies with leave of the Court of Appeal., application for the
15 leave sha[[ be made informalty at the time when the decision against which it is
desired to appeaI is given; or faiting that appIication or if the court so orders, by
notice of motion within fourteen days after the decision; and

(b) if the Court of AppeaL refuses to grant leave, or where an appeal otherwise
lies with leave of the court, application for the leave shatl be todged by notice of
20 motion within fourteen days after the decision of the Court of Appeat refusing
Leave or, as the case may be, within fourteen days after the decision against which
it is desired to appeat.

Under rute 39 (2) of the Rutes of this Court, leave is necessary to be sought
where an appeal lies to the Court of Appeat with the [eave of the High Court
25 or the Court of Appeat. Secondty the order granting leave shoutd be part of
the record of appeal.. Rul.e 83 (2) (c) of the Rutes of this Court sets out items
which shaLt be incLuded in a record of appeat and provides that the orden if
any, giving leave to appeal should be inctuded.

Where an appeal ties with [eave to the Court of Appeal., it foLl.ows that leave
30 appeal to the Supreme Court is necessary and ought to have been sought
but was not and the appeal on that basis is incompetent. The above
notwithstanding, appeats from orders are governed by section l6 and77 of
the Civit Procedure Act (CPA). Section 76 (1) of the CPA sets out the orders
from which an appeal lies and it states that:
35 76.0rders from which appea[ lies

11
 5 (1) An appeat shatt tie from the fottowing orders, and except as otherwise
expressly provided in this Act or by any law for the time being in force from no
other orders-
(a) an order superseding an arbitration where the award has not been compteted
within the period aLtowed by the court;

10 (b) an order on an award stated in the form of a special case;

(c) an order modifying or correcting an award;

(d) an order staying or refusing to stay a suit where there is an agreement to

refer to arbitration;

(e) an order fiting or refusing to fite an award in an arbitration without the

15 intervention of the courti

(f) an order under section 65;

(g) an order under this Act imposing a fine or directing the arrest or detention in
prison of any person, except where the arrest or detention is in execution of a
decree,

20 (h) any order made under rutes from which an appeal is expressty attowed by
rules

(2) No appeal. shaLt tie from any order passed in appeaI under this section

Section 76 (1) is expticit and provides that an appeal sha[[ Lie from certain
orders [isted as (a) - (h) and from no other orders except as otherwise
25 provided for by any other [aw. lt provides that to appeat from an order, a
party must appeal from an order resutting from the matters set out un
subsection (1). The appeat from a revision order does not even fa[[ under
sectjon 76 (l) (a) - (h) of the Civit Procedure Act as it is not an appeal under
the Civit Procedure Rutes from which an appeal Lies as of right under 0rder
30 44 rute 1 (a) - (u) of the CiviI Procedure RuLes. lhave atready determined
that section 6 (1) of the Judicature Act does not confer jurisdiction on the
Supreme Court where the matter appealed from is an order issued by the
High Court in revision proceedings. This flows from the determination I

made that the matter did not arise from the exercise of originat jurisdiction
35 by the Hiqh Court. Section 6 (1) is therefore a bar to an appeal to the
72
 5 Supreme Court in the circumstances. Further section 76 (1) of the Civit
Procedure Act appl.ies and exctudes the order issued in revision
proceedings from being appeated. Moreover, section 76 (1) is entrenched by
section 77 of the CPA which stiputates that:
77. 0ther orders

10 (1) Except as otherwise expressly provided, no appea[ shatl lie from any order
made by a court in the exercise of its original or appellate jurisdiction; but, where
a decree is appealed from, any error, defect or irregu[arity in any order affecting
the decision of the case may be set forth as a ground of objection in the
memorandum of appeaL.

15 Section 77 of the Civil Procedure Act makes it crystal clear that no appeal
shalt Lie from any order except as provided for under the Civit Procedure
Act and we have noted that appeats from orders are provided for under
section 76.

ln the finat anatysis, there is no right of appeal to this Court or to the Court
20 of Appeat in the circumstances. ln any case an appeal cannot tie without
leave to this Court. There is no right of second appeal to the Supreme Court
from the refusal of the High Court to exercise powers of revision in a case
decided by a Magistrates and we have no jurisdiction in this matter.

ln the premises, I woutd make an order striking out the appeal in this court
25 for want of jurisdiction. I further dectare that the Court of AppeaI acted
without jurisdiction and its proceedings are a nuttity. ln the circumstances
both parties acted without proper advice on jurisdiction and I woutd make
an order that each party shatt bear its own costs of the appeaL.

Dated at Kampata,n" J4{$"v or it\ilL() 2025

30

Christopher Madrama lzama

Justice of the SuPreme Court

U€a.,r"-;*4 l./.", @-d *n'; l@ fuo^,3,

nue 13

"-a'
Cfr'*A
6NN*-
2es^
 THE REPUBLIC OF UGANDA

THE SUPRTME COURT OF UGANDA

AT I{AMPALA
(Coram: Musoke, Musota, Madrama, Bamugemerete & Mugenyi, JJSC)

CIVIL APPEAL NO. 8 0F 2021

BETWEEN

FAUSTINE NTAMBARA APPELLANT

AND

BENON SUBUJISHO RESPONDENT

(Appeal fron the decision of the Court of Appeal (Egonda Ntende, Muhanguzi & Tuhaise, JJA) in
Civil A,ppeal No.61 of 2012)

Civil Appeal No. 8 of202l

 JUDGMENT OF MONICA KALYEGIRA MUGENYI, JSC

A. lnhoduction

Mr. Faustine Ntambara ('the appellant') lodged this Appeal in this Court contesting the decision of

the Court of Appealin Civil Appeal No. 61 of 2012, The background to the Appeal is that the appellant

had vide Civil Suit No. 47 of 2003 sued Mr, Benon Subujisho ('the respondent') and others that are

not party to this Appeal in the Chief Magistrates Court of Mubende at Kiboga for trespass to his land

comprised in plot 7 Block 647 Kapeka, Kiboga, Judgment was entered in his favour in that case.

2. The respondenlliled Miscellaneous Application No. 4 of 2007 in the High Court seeking the revision

of the Magistrates Court's decision in Clvll Sull No. 47 of 2003 but that application was dismissed by

the Nakawa High Court, This prompted lhe filing of Miscellaneous Application No. 248 of 2010, an

application for leave to appeal the decision of the High Court in Miscellaneous Application No, 4 of

2007. Ihal application was allowed hence the liling ol Civil Appeal No. 61 of 2012 in the Court of
Appeal by the respondent.

3. TheCourtof Appeal allowed the respondent's appeal, declared a mislrial ol CivilSuitNo.4T of 2003
and ordered a retrial of the matters in contention between the parties before another magistrate.

Dissatisfied with that decision, the appellant lodged the present Appeal that profiers the following

grounds of appeal:

l. The Courl of Appeal ened in law when it failed to determine whether CACA No. 61 of

2012 complied with s. 76 of the Civil Procedure Act.

ll. The Coul of Appeal ened in law and failed to properly evaluate evience on record in
entelaining CACA No. 61 of 2012 that is barred by law.

lll. The Cout of Appeal ened in law and failed to properly evaluate evidence on record in

enteftaining CACA No, 61 of 2012 filed beyond the 14 days ordered by courl for filing

the appeal without seeking leave to appeal out of time.

lV. The Courl of Appeal erred in law and failed to properly evaluate evidence on record in

enteftaining CACA No. 61 of 2012 filed in violation of the order granting leave to appeal

thereby condoning an illegality.

Civil Appeal No. 8 of202l

4. At the hearing, the appellant was represented by Messrs. Alex Candia and Akuku Saviour Olikare,

while Mr. Enoch Bwesigye appeared for the respondent. The parties relied upon written submissions

filed in the matter,

B. Determination

5. Arguing Ground 1of the Appeal, leamed Counsel for the appellant fault the Court of Appeal for not

determining the competence of the appeal that was before it in relation to the provisions of section

76 of the Civil Procedure Act, Cap.282 (CPA). ln their view, the High Court's ruling that revisionary

orders are not appealable as of right was not itself appealable to the Court of Appeal, This position

is anchored in the decision in Joy Tumushabe & Another v Anqlo-African Ltd & Another 119991

UGSC 5, where it was observed that failure to consider and resolve matters in contention would be

a failure on the part of a court in the discharge of its duty and necessitates an appellate court
(including a second appellate court) to intervene to ensure that no miscarriage ofjustice is occasioned

by such failure.

6. ln relation to Grounds 2, 3 and 4, it is argued that the fact that revisionary orders are not appealable

as of right, as well as the appeal itself having been filed beyond the '14-day limit that had been ordered

by the High Cowlin Miscellaneous Application No.248 of 2010, renders the appeal that was before
the Court of Appeal inherently incompelent. The respondent is faulted for falsifying the court record

in that application by purportedly extracting an order that materially contradicts the ruling of the High

Court in that matter. The failure of the respondent to file the notice of appeal that was before the

Court of Appeal within the time stipulated in rule 76(2) and (4) of the Court of Appeal Rules and

without validation as supposedly required under rule 5 of the same rules of procedure is opined to

have had the effect of invalidating the entire Appeal.

7. Conversely, in response to Grounds 1,2 and 4 of lhe Appeal, the respondent concedes that orders

emanating from revision proceedings are not envisaged among matters from which an appeal may

ensue as of right. lt is nonetheless asserted that the respondent did comply with the applicable
procedural rules by bringing an application under Order 44 rules 2 - 4 of the Civil Procedure Rules

(CPR) for leave to appeal the decision in Miscellaneous Application No. 4 of 2007. With regard to

Ground 3, the respondent maintains that the appeal was filed within the 14-day period directed by

lhe High Coun.in Miscellaneous Aoplication No. 248 of 2010, the Notice of Appeal having been filed

on 13th July 2011 - seven days after the date of the applicable court ruling. Similarly, the
Memorandum of Appeal is opined to have been lodged within the 60-day period prescribed under
J

Civil Appeal No. 8 of 2021

 rule 83(1) of the Court of Appeal Rules, excluding the period taken to secure the record of
proceedings from the lower court as stipulated under section 79(2) of the CPA.

8. In any event, it is argued that the points of law raised in the appeal that was before the Court of

Appeal highlighted grave illegalities that the court could not ignore and rightly addressed, Reference

in that regard is made to Makula lnternational Limited & Another v Cardinal Nsubuqa & Another

t19821 UGSC 2 and Ham Enterprises Limited & Others v DTB Ltd & Another [20231 UGSC'15,
It is further argued that the appellant ought to have raised the points of law he now raises in relation

to the competence of the appeal that was before the Court of Appeal in that court, rather than
belatedly before this Court.

9, By way of reloinder, the appellant cites this Court's decision in Ham Enterprises Limited & Others

v DTB Ltd & Another (supra) for the proposition that an appeal is filed in court by the lodging of a

memorandum of appeal (as opposed to a notice of appeal) and therefore the memorandum of appeal

that was filed on 1st June 2012 was way out of the time allotted in Miscellaneous Application No. 248

of 2010, whtch lapsed on 20th July 20'1'1. lt is further argued that in the absence of an automatic right

of appeal, the appellant had no recourse to rule 83(2) of the Court of Appeal Rules. Furthermore,
rule 83(2) would neither over-ride the timelines for the filing of the appeal issued by the High Court

in Miscellaneous Application No. 248 of 2010, nor in any event did the appellant possess the mandate

to enlarge the time for the filing of his appeal under the pretext of a delayed record of appeal. Citing

Drake Lubeqa v Attorney General & Others, Co nsolidated Miscellaneous Aoolication No. 31 &

32 of 201'l (unreported), it is proposed that a contemnor cannot be entertained in a matter in relation

to which s/he is in contempt of court orders,

10. Two broad issues arise from the foregoing legal arguments: first, the competence of the appeal (Civll

Appeal No. 61 of 2012\ that was before the Court of Appeal vis-d-vis the provisions of section 76 of

the CPA; and, secondly, the effect of the respondent's alleged violation of the orders issued in
Miscellaneous Application No. 248 of 2010,which granted leave to appeal the High Court's decision

in Miscellaneous Application No. 4 of 20!7. The first issue is canvassed under Grounds 1 and 2 oI
the Appeal, while the latter issue ensues under Grounds 3 and 4 thereof. The Appeal shall therefore

be determined on that basis.

11. Section 76 of the CPA, read together with Order 44 rule 1(1) of the Civil Procedure Rules (CPR),

makes provision for orders from which appeals would lie as of right. No provision is made thereunder

for revisionary orders or orders that emanate from the High Court in exercise of its revisionary powers
4

Civil Appeal No. 8 of202l

 under section 83 of the CPA. In this case, however, this is a moot question given that the respondent

conceded as much and filed Miscellaneous Application No. 248 of 2010, an application for leave to

appeal the decision of the High Court in the revision proceedings, To the extent that the respondent

did seek leave from the High Court to appeal that decision, he duly comply with the imperative in

Order 44 rule 1 (2) of the CPR that an appeal shall not lie from any other order 'except with the leave

of the court making the order.' I therefore find no merit whatsoever in Grounds 7 and 2 of this
Appeal.

12. Grounds 3 and 4, on the other hand, essentially fault the Court of Appeal for entertaining an appeal
that had been lodged out of time either as by law established or by order of court in Misce//aneous

Application No.248 of 2010, lt is common ground herein that the High Court (Mwondha, J as she

then was) did on 6t' July 2011 grant the respondent leave to appeal the same court's decision in

Miscellaneous Application No. 4 of 2007 (Murangira, J), and directed that the appeal be filed in the

Court of Appeal within fourteen days of herruling. A notice of appeal was subsequently filed on 13tt'

July 201 1 , while the memorandum of appeal was lodged in the Court of Appeal on 1't June 2012.

13. Before interrogating the competence of the appeal that was before the Court of Appeal, I consider it

necessary to address the jurisdiction of this Court to entertain the present Appeal, The crux of lhe

matter is whether a decision of the Court of Appeal in respect of a decision of the High Court in the

exercise of the lower court's civil revisionary powers atkacts an automatic right of appeal to this Court.

14. Article 132(2) of the Constitution restricts the jurisdiction of the Supreme Court to 'such decisions

of the Court of Appeal as may be prescribed by law.' Section 6(1) of the Judicature Act then
grants an automatic right of second appeal to the Supreme Court from decisions made by the Court

of Appeal sitting as a first appellate court in decisions of the High Court made 'in the exercise of its

original jurisdiction.' However, subsection (2) of the same section delimits third appeals to the
Supreme Court from the decision of a chief magistrate or grade I magistrate to matters of law of great

public or general importance, on the one hand, or where lhe Supreme Court considers it necessary

in the interest ofjustice. For ease of reference section 6 of the Judicature Act is reproduced below.

(1) An appeal shall lie as of right to the Supreme Court where the Court of Appeal
confirms, varies or reverses a judgment or order, including an interlocutory order,
given by the High Court in the exercise of its original jurisdiction and either
confirmed, varied or reversed by the Court of Appeal.

Civil Appeal No. 8 of 2021

 (2) Where an appeal emanates from a judgment or order of a chief magistrate or a

magistrate grade I in the exercise of his or her originaljurisdiction, but not including

an interlocutory matter, a party aggrieved may lodge a third appeal to the Supreme

Court on the certificate of the Court of Appeal that the appeal concerns a matter of

law of great public or general importance, or if the Supreme Court considers, in its

overall duty to see that justice is done, that the appeal should be heard.

15. This begs the question as to whether or not the High Court sits in exercise of its original jurisdiction

when it undertakes its civil revisionary powers. The notion of original jurisdiction is defined in B/ack's

Law Dictionaryl as 'a court's power to hear and decide a matter before any other court can

review the matter.'

16. Article '139 of the Constitution delineates the jurisdiction of the High Court to include 'unlimited

original jurisdiction in all matters and such appellate and other jurisdiction as may be
conferred on it by this Constitution or other law.' A literal inlerpretation of that constitutional
provision would suggest that the High Court is vested with unlimited original jurisdiction in all matters

but does concurrently enjoy appellate jurisdiction and such other jurisdiction (being presumably
neither original nor appellate jurisdiction) as may by law be conferred upon it.

'17. The High Court's appellate jurisdiction is clearly outlined in section 16 of the Judicature Act and need

not be belaboured here. lt ensues in respect of decisions of magistrates' courts and other
subordinate courts in the exercise of their original or appellate lurisdiction. On the other hand, section

83 of the Civil Procedure Act (CPA) vests the High Court with revisionary power as follows:

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 havB-

(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 lurisdiction illegally or with material irregularity

or injustice,

the High Court may revise the case and may make such order !4..4 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

t 8th Edition at p. 869

Civit Appeal No. 8 of202l

 (e) where, from lapse of time or other cause, the exercise of that power would

involve serious hardship to any person.

18. The High Court's revisionary power is thus exercised in respect of a decision of a magistrate's court

that appears to have violated that lower court's jurisdictional authority. The trial court or court of first

instance in the substantive dispute would be the magistrate's court, and it is therefore that court that

is the court of original jurisdiction in that matter. The High Court's intervention under its revisionary

powers would be restricted to the interrogation of the lower court's compliance with its jurisdictional

mandate, and does not exlend to a determination of the factual merits of the substantive dispute.

19. However, the situation is entirely different once an appeal is lodged in respect of the High Court's

decision in exercise of its revisionary powers. Section 83 of the CPA is couched in terms that

designate the High Court's revisionary function as an intervention to redress a jurisdictional lapse by

a magistrate's court. That revisionary mandate is the exclusive domain of the High Court and should,

in my considered view, be understood within the context of the High Court's unlimited jurisdiction.

20. Mulla's Code of Civil Procedure, as cited with approval by this Court in Paul Semwoqerere & 2
Others v Attornev General t20041 UGSC 49 (per Oder, JSC), contextualizes the notion of unltmifed
jurisdiction in the following terms:

By jurisdiction is meant authority which a Court has to decide matters that are litigated before

it or to take cognizance of matters presented in a formal way, lor its decision. The limits of
this authority are imposed by statute, charter or commission under which the Court is
constituted and may be exercised or restricted by the like means. lf no restriction or limit is
imposed the iurisdiction is unlimited. (my emphasis)

21. lt thus follows that insofar as article 139 of the Ugandan Constitution explicitly confers unlimited
original jurisdiction on the High Court, that lurisdiction can only be restricted by either the Constitution

itself or an Act of Parliament that is enacted under the Constitution.

22. I draw fortitude for this view from the contextual rule of statutory interpretation whereby words are
intenogated within their legislative context, including the comparison of a law with other laws, that

are made by the same legislator, that have some affinity with the subject, or that expressly relate to

Civil Appeal No. 8 of202l

 thesamepoint.2 Inthatregard, I am alive to the provisions of section 45(7) of theCriminal Procedure
Code Act (CPC), which equate criminal revisions to appeals in the following terms:

For the purposes of this seclion, the proceedings of the High Court on revision shall be

deemed to be an appeal.

23. lt is clear from the wording of that statutory provision that the equating of revision proceedings to an
appeal is restricted to second appeals under section 45 of the CPC, and by implication applies only

to criminal revisions that are covered by that statute. So that, the High Court's criminal revision
proceedings in respect of a decision of a magistrate's court would under section 45(7) of the CPC be

deemed to be a first appeal from the lower court's decision, and an appeal arrsing therefrom would

be a second appeal to the Court of Appeal. I am hard pressed, however, to find an equivalent
provision in the civil procedure laws.

24. Consequently, on the authority ol Mulla's Code of Civil Procedure, I take the view that the High
Court's unlimited original jurisdiction extends to its exclusive jurisdiction over civil revision as
delineated in section 83 of the CPA. Indeed, had it been the intention of the legislature that civil

revisions be tantamount to first appeals, it would have stated so as unequivocally as is the case in

the criminal law regime. Appeals being creatures of statute, I would refrain from reading equivalence

of appeal into civil revision in the absence of express statutory provision therefor.

25. ln the result, I find that the Court of Appeal rightly entertained an appeal from an order in revision
proceedings as a first appellate court, and the present Appeal is properly before this Court as a

second appellate court.

26, Turning to the competence of the appeal thatwas before the Court of Appeal, rule33of the Court of
Appeal Rules provides for the institution of appeals in that court by the filing of a memorandum of

appealand record of appealwithin sixty days from the date that the notice of appeal in a matter was

lodged. For ease of reference, that procedural rule is reproduced below.

(1) Subject to rule 113 of these Rules, an appeal shall be instituted in thecourtby
lodging in the registry, within sixty days after the date when the notice of appeal was
lodged-
(a) a memorandum of appeal, in six copies, or as the registrar shall direct;

) See Blockstone, wi iam, 1723-1780, Commentories on the LowsofEnoldnd. Boston: Beocon Press,7962,
vol. 7, pora.60.
8

Civil Appeat No. 8 of202l

 (b) the record of appeal, in six copies, or as the registrar shall direct;
(c) the prescribed fee; and
(d) security for the costs of the appeal.
(2) Where an application fora copy ofthe proceedings in the High Court has been made

within thirty days after the date of the decision against which it is desired to appeal,
there shall, in computing the time within which the appeal i3 to be instituted, be
excluded such time as may be certified by the registrar ol the High Court as having

been required for the preparation and delivery to the appellant of that copy.

(3) An appellant shall not be entitled to rely on subrule (2) of this rule, unless his or her

application forthe copy was in writing and a copy of it was served on the respondent,

and the appellant has retained proof of that service.

27. The record of appeal referred to in sub+ule (1Xb) above would include the proceedings in the High
Court or indeed any other court, the decision of which is the subject of the appeal. lt should be

applied for within thirty days from the date of the decision sought to be appealed, the time taken for

its preparation and delivery to be excluded from the computation of time within which the appeal

should be lodged, See section 79(2) of the CPA and rule 83(2) of the Courl of Appeal Ru/es,

28, I have carefully considered the memorandum and record of appeal that were lodged in the Court of
Appealin Civil Appeal No.61 of 2012. They include a record ofappeal that was lodged in the Court

of Appeal on 26th March 2021 , as well as the supplementary record of appeal filed in the same court

on '12tt April 2021 . Both records do not include a record of proceedings in respect of the matter

appealed from, Miscellaneous Application No, 4 of 2007. Whereas the supplementary record of

appeal indicates that Counsel for the respondent did request for the record of proceedings in respect

of that application for revision, the record of proceedings enclosed in pages 84 - 86 of the same

record of appeal pertains to a different nalter, Miscellaneous Application No, 248 of 2010.

29. Consequently, having appended the wrong record of proceedings to the supplementary record of
appeal, it is incorrect for learned counsel for the respondent to suggest that the appeal that was

before the Court of Appeal was lodged within the prescribed time. To the extent that the

memorandum of appeal that was lodged in that court on 1st June 20 12 was accompanied by a record

of appeal that contained the wrong record of proceedings, there was no properly instituted appeal
before the Court of Appeal. Certainly, recourse cannot be made to rule 83(2) of the Court of Appeal

Rules to justify the late filing of that appeal when the appeal itself was defective.

Civil Appeat No. 8 of 2021

30. Be that as it may and without in any way hifling the defects in the appeal that was before the Court
of Appeal, as shall be demonstrated forthwith, the nature of this case brings to the fore the
constitutional imperative of substantive justice that is highlighted in article 126(2)(e) of the

Constitution. The parties framed only one issue for determination before the Court of Appeal, to wit,

'whether the ruling of the judge (in revision) constituted an error in law and fact when he ruled that

the natter was not tenable for revision but should have been an appeal.' No mention whatsoever

was made to the incompetence of that appeal either in the present appellant's submissions before

that court or by way of preliminary objection at the brief hearing held in respect ofthat appeal. Indeed,

no reference whatsoever was made rn the submissions that were before that court to rule 83(2) of

the Court of Appeal Rules in relation to the impugned record of proceedings or at all. So that, in
effect, the present respondent had no fair notice of the incompetence of the appeal that was before

the Court of Appeal.

31. I am alive to the position in Warehousinq & Fonrvardinq Co. of East Africa Ltd v Jafferali & Sons
Limited 119631 EA 385, as cited with approval by this Court in Ham Enterprises Limited & Ohers
v DTB Ltd & Another (supra), to which we were referred by learned Counsel for the appellant. Those

cases propound the view that a question of law may be raised for the first time in a court of last resort

such as the Supreme Court. Similarly, in Makula lnternational Ltd v His Eminence Cardinal

Nsubuqa & Another [19821 UGSC 2 this Court observed that'whether an appellant can on appeal

raise a new point of law not argued before the lower court is a matter for the discretion of the

appellate court.' The exercise of that discretion is nonetheless subject to settled rules as invariably

laid down by the courts, Thus, in Tanqanvika Farmers Association Limited v Unvamwezi

Development Corporation Limited [19601 EA 620 at 626 (also cited with approval by this Court in

the Ham Enterprises Ltd appeal), it was held that 'an appeal court has discretion to allow a new

point to be taken on appeal but it will permit such a course only when it is assured that full
justice can be done to the parties.'

32. Stated differently, the justice of the matter before a court is one of the factors that inform the exercise
of an appellate court's discretion to allow a new point of law on appeal. ln principle, therefore, this

Court enjoys the discretion to entertain the point of law raised by the appellant on the (in)competence

of the appeal that was before the Court of Appeal, provided that the point of law would realistically

facilitate substantive justice between the parties. I take the view that the circumstances of the Appeal

presently before us bespeak to the contrary.

10

Civil Appeat No. 8 of202l

33. To begin with, the appellant's conduct denotes the undesirable practice of trial by ambush. No

attempt was made to raise the issue of the appeal's competence at the stage of the pleadings,

framing of issues or at the hearing of the appeal. Pleadings such as memorandum of appeals in

appellate courts serve a dual function of, on the one hand, informing parlies of the case against them

to enable adequate preparation and, on the other hand, clarifying the real issues in controversy
between the parties that a court is called upon to adjudicate. See lntertreiqht Forwarders U)
Limited v East African Developnent Bank 119931 UGSC 16. The framing of issues arising from
pleadings then narrows down with precision the specific matters in contestation and gives the parties

fair notice thereof. See Bhaq Bhari v Mehdi Khan t19561 EA 94. Over and above these procedural

arrangements, at the commencement of the hearing, parties are at liberty to raise preliminary

oblections that articulate points of law that would dispose of a matterwithout recourse to the evidence

orwith recourse to issues of fact that are not in contention. See Mukisa BiscuitMilubg lDseo.
Ltd v West End Distributors Ltd t19691 EA 696.

34. The appellant did not raise the defect in issue presently in his pleadings before this Court but
belatedly sought to address it orally at the hearing of this Appeal. lt seems to me that had the fact of

the wrong record of proceedings been pointed out before the court in which the first appeal was

lodged, the present respondent would have had the opportunity to remedy it by filing the correct

record of proceedings. This brings to bear the notion of estoppel by conduct, of which Halsbury s

Laws of Enqlan& postulates that 'parties to litigation who have continued the proceedings with

knowledge of an inegularig of which they might have availed themselves are stopped from
aftenrards sefting it up ' I am reminded of the observation in Attornev General of the Republic

of Uqanda & Another v Omar Awadh & 6 Others t20 12-2015 EACJ LR 214 , that 'he who claims

a right, must not (like Rip Van Wrinkle) sleep or slumber on his right.'

35. Secondly, and perhaps more importantly, the determination of the appeal that was before the Court
of Appeal without the missing record did not of itself occasion a miscarriage of justice, As a first
appellate court, the Court of Appeal is under rule 30(1)(a) of its Rules of Procedure enjoined to

reappraise the material on record and arrive at its own conclusions, thus essentially conducting a

rehearing of the matter that was before the trial court.

36. lt is blatantly apparent from the record of proceedings before the trial court that Civrl SutI No. 4/ of
2003 was decided in the present appellant's favour without the calling of any evidence whatsoever

3
Volume 16(2), p.8, para. 1058.
ll
Civil Appeal No. 8 of 2021
 by either party, or any rndication that either or both the parties had waived their right to do so. On 6m

July 2005 an interim injunction that had been previously issued by the court was extended with the

consent of both parties, pending the conclusion of a survey of the land that was the subject of that

dispute, When the matter next came up for hearing on 2no November 2005, it was adjourned to 16tr

November 2005 at the request of one of the advocates. 0n 16th November, the defendants (including

the present respondent) did not appear but, owing to the absence of proof of service of the hearing

notice upon them, the matter was adlourned to 28th November 2005. However, in amost bewildering

twist of events, on 28th November 2005 (in the absence of either the defendants or their advocate)

the learned trial magistrate decided suo molo that their seemed to be no further evidence expected

from either party and fixed the matter for judgment on 27th December 2005, albeit 'graciously' ruling

that both parties were at liberty to file their submissions before 16tt' December 2005.

37. In the event, the suit was decided in the present appellant's favour on 1st March 2006. ln his

judgment, the learned trial magistrate relied on the survey report, the court's visit to lhe locus in quo

and the written statement of defence. There is no record of the /ocus in guo visit nor is there any

indication in the ludgment as to who of the parties (if any) pailcipated in that exercise. Dissatisfied

with that judgment, the third and fourth defendants (including the present respondent) invoked the

High Court's revisionary powers vide Miscellaneous Application No. 4 of 2007, but the matter was

dismissed with costs on the premise that the proper course of action should have been to appeal

against the trial court's decision.

38. The trial court's conduct of the proceedings before it is most aptly addressed by the Court of Appeal
in its decision in Civil Appeal No, 61 of 2012 as follows: 'it is amazing how the trial magistrate chose

to make assumptions for the defendants instead of calling for thei oral evidence which would then
be subjected to cross examination by the plaintiff through a proper hearing.' The appellate court then

held:

Based in the findings, and after subkcting the evidence to frcsh appraisal and scrutiny, the grievances

raised in Miscellaneous Application No. 42007 passed the requirements under section 83(c) of the Civil

Procedure Act. lt is very clear that there were illegalities, mateial irregularities, and inlustice regarding

the way the leaned tial nagistrate conducted the trial, to the prejudice ot the appellants.

39. To compound matters, the Court of Appeal observed that even the survey report that was relied upon
by the trial court was irrelevant to the dispute before it, addressing as it did an entirely different
property, block 647 plot'19 rather than block 647 plot 7 that was the property in contention between

t2
Civil Appeal No. 8 of202l
 the parties. The Court of Appeal thereupon declared a mrstrial before the trial court and ordered a

retrial before another magistrate.

40. lt thus becomes glaringly apparent that we have before us a gross miscarriage of justice by a trial
court, which was compounded by the inexplicable disregard for both procedural and substantive
justice by the High Court in exercise of its revisionary powers. This is a case that would require this

Court to be as concerned about the ends of justice as it should be with the dictates of procedural law.

That is the import of the enkeaty in Besiqye Kiiza v Museveni Yoweri Kaquta & Another [200'11

UGSC 3 that 'rules of procedure should be used as handmaidens of justice but not to defeat

it,' ln The lron & Steelwares Limited v C. W. Ma rtv r& Comoanv 11956] EACA 175 , where a trial

court rendered its judgment without hearing the legal arguments of one of the parties or its response

to the arguments of the opposite party, the principle on the purpose of procedural rules was more

succinctly stated as follows:

Procedural rules are intended to serve as handmaidens of justice, not to defeat it, and we think that the

(Court) in its inherent jurisdiction to control its own procedure, ... has a duty to ensure that each party is

given a fair opportunity to state its case and answer the case made against it.

41. To my mind, that now settled legal maxim aptly emphasises that rules of procedure are not an end
in themselves but rather are formulated with the over-riding objective of engendering authentic and

just outcomes from litigation, as opposed to delivering superficial miscaniages of justice. This is the

essence of substantive justice or justice that is grounded in substance rather than form, So that, the

procedural defects in the appeal that was before the Court ofAppeal, which in any case were never

brought to that court's attention, should not whittle down the gravity of the flagrant miscarriage of
justice by the trial court in the conduct of its proceedings.

42. I therefore take the view that the lustice of the matters in controversy in this Appeal would require
that the most regrettable passage of time notwithstanding, the parties' conflicting claims to the land

in dispute be determined on their merits in a trial de novo. In the result, I would uphold the Court of

Appeal's order for the retrial ol Civil Suit No. 47 of 2003 before another magistrate, I would

accordingly resolve Grounds 3 and 4 of the Appeal in the negative.

43. Before taking leave of this matter, I am constrained to observe that it is extremely disheartening that
a judicial officer at the level of a Magistrate Grade I would be so unconversant with basic judicial

process as to deny pa(ies their right to be heard in their respective cases. This could speak to the

13

Civil Appeat No. 8 of202l

 nature of induction extended to newly appointed magistrates in preparation for their judicial office but

would, in any event, be a matter of concern to the Judiciary's Inspectorate of Courts.

C. Conclusion

44, The upshot of my judgment is that this Appeal substantially fails with the following orders

L The judgment and orders of the C out ol Appealin Civil Appeal No. 61 of 2012 are hereby

upheld, and accordingly Civil Suit No. 47 of 2003 should undergo retrial before anolher

magistrate.

ll. By copy of this judgment, the lnspectorate of Courts is directed to interest itself in the

conduct of the trial magistrate in Civil Suit No. 47 of 2003 with a view to appropriate

corrective action,

lll. Costs in this Court and the lower court to abide the event.

I would so order

Dated and delivered at Kampala *,i. ....../f*.y "r

......,2025.

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Monica K. Mugenyi
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Justice of the Supreme Court

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Civil Appeal No. 8 of202l
 THE REPUBLIC OF UGANDA
SUPREME COURT OF UGANDA
AT KAMPALA
CIVIL APPEAL NO. 8 OF 2O2I
(Coram: Musoke, Musota, Madrama, Bamugemereire, Mugenyi, JJSC)

FAUSTINE NTAMBARA APPELLANT

AND
BENON SEBUJISHO RESPONDENT

JUDGMENT OF THE HON. LADY JUSTICE CATHERINE BAMUGEMEREIRE JSC

I did consider the draft opinion of my learned brother Christopher

Madrama JSC. I would wish to associate myself with him and would agree

that revisional orders are not amenable to appeal under the Civil Procedure Rules.

I also agree with the other orders my learned brother Madrama makes.

I would accordingly dismiss this appeal.

Catherine B ugemereire
Justice of the Supreme Court
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