THE REPUBLIC OF UGANDA

IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

CIVIL APPEAL NO. 89 OF 2011

NALONGO BURASHE:::::::::::::::::::::::::::::::::::::::::::::::
5 APPELLANT

VERSUS

KEKITIIBWA
MANGADALENA::::::::::::::::::::::::::::::::RESPONDENT

CORAM: HON. MR. JUSTICE A.S NSHIMYE, JA

10 HON. MR. JUSTICE RUBBY AWERI OPIO, JA

HON. MR. JUSTICE KENNETH KAKURU, JA

(Appeal from ruling of the High Court delivered by the Hon. Justice
Kigundu Jane dated 15/06/2010 at Masaka in High Court
Miscellaneous Application No. 8 of 2010(Arising from M.A. No. 167
15 of 2009, Masaka) Arising from Kalagala L.C.II Court C.S No. 12 of
2009)

JUDGMENT OF THE COURT

This appeal arises from a Ruling of the High Court of Uganda at

Masaka in Misc Application No. 162 of 2009. The appellant was
20 the applicant at the High Court.

That application was brought under Sections 98 and 83 of the

Civil Procedure Act, Order 52, Rule 1 of the Civil Procedure Rules
1
 and Sections 30 and 32 of the Local Council Courts Act 13 of
2006.

The brief background to this appeal is as follows;-

Both the appellant and the respondent were parties to Kalagala

5 Parish L.C II Court in Civil Suit No. 12 of 2009 in which the
respondent was the plaintiff. The dispute was over the ownership
of a Kibanja (customary land) in the same area. The suit was
heard and Judgment was given in favour of the respondent.

The respondent who was the successful party applied to the Chief
10 Magistrate’s court for execution of the Judgment of the LCII parish
executive committee Court. The Chief Magistrate dismissed the
application contending that, the LCII Court had no jurisdiction to
entertain a matter of a civil nature as a court of first instance.

The matter then went to the High Court, by way of notice of

15 motion as already stated above.

The High Court held that the LCII court that tried the suit had
original jurisdiction to do so.

The appellant being dissatisfied with the decision of the High

Court then filed this appeal.

20 At the hearing of this appeal Mr. Gibbs Baryajunwa appeared

for the appellant while Mr. Alexander Tuhimbise appeared for
the respondent.

2
 Both parties adopted their respective conferencing notes and also
addressed court orally.

Mr. Tuhimbise raised a procedural issue to the effect that the

appeal was incompetent as it contravened Section 76 and
5 77(1) of the Civil Procedure Act (Cap 71).

Section 77 (1) of the Civil Procedure Act stipulates as follows;-

“Except as otherwise provided no appeal shall lie

from any order made by a court in the exercise of its
original or appellate jurisdiction”

10 He contended that this application having been brought under

Section 98 of the Civil Procedure Act and Order 52, Rule 1 of
the Civil Procedure Rules an order arising therefrom is not
appealable as of right. He submitted that this appeal was
therefore incompetent.

15 Mr. Baryajunwa conceded that the appellant had not sought leave
to appeal and that there was no right of appeal from the order
being appealed from.

He however, sought to rely on the decision of the Supreme Court

in Re Christine Namatovu Tibaijjukira [1992-93] HCB
20 85, that;-

“The administration of justice should normally require

that substance of disputes should be investigated and
decided on the merits and that error and lapses

3
 should not necessarily debar a litigant from the
pursuit of his right.”

With all due respect to learned counsel for the appellant we do

not accept the argument that leave to appeal is a simple
5 procedural matter.

It is long settled law that there is no such a thing as an inherent

right of appeal. An appeal is a creation of statute. In Attorney
General vs Shah No. 4 [1971] E.A P. 50 SPRY Ag President of
the Defunct East African Court of Appeal, noted that ;-

10 “Appellate jurisdiction springs only from statute.

There is no such a thing as inherent appellate
jurisdiction.”

In Baku Raphael Obudra and Obiga Kania vs Attorney General

(Supreme Court Constitutional Appeal No.1 of 2005, It was held by
15 Odoki CJ that;-
“Appellate jurisdiction must be specifically created by law.
It cannot be inferred or implied.”

We find that this court lacks jurisdiction to entertain a matter in which

20 leave to appeal is required but has not been sought or granted. The
Supreme Court in Dr. Sheik Ahmed Mohamed Kisuule vs Greenland
Bank (in liquidation) Civil Appeal No. 11 of 2010, held as follows on
this issue at page 10 of the Judgment of Kitumba JSC.
“Where leave is required to file an appeal and such leave is
25 not obtained, the appeal filed is incompetent and cannot
4
 even be withdrawn as an appeal. See Makhangu vs Kibwana
(1995-1998) 1 EA 175. It is not merely a procedural matter
but an essential step envisaged by Rule 78 of the Rules of
this Court”
5 We agree with the above proposition of the law and we find that
this appeal is incompetent and therefore liable to be stuck out on
that account.

However, it appears to us that this appeal raises very serious

issues of law which are of public importance that would require
10 this court to determine. For that reason alone we find that the
peculiar facts of this appeal and the justice of the case require us
to exercise the power granted to this court under Rule 42 of the
Rules of this court.

That Rule stipulates as follows;-

15 42 “Order of hearing applications.

(1)Whenever an application may be made either in

the court or in the High Court, it shall be made first in
the High Court.

(2)Notwithstanding subrule (1) of this rule, in any

20 civil or criminal matter, the court may, on application
or of its own motion, give leave to appeal and grant a
consequential extension of time for doing any act as
the justice of the case requires, or entertain an
application under rule 6(2) (b) of these Rules, in

5
 order to safeguard the right of appeal,
notwithstanding the fact that no application for that
purpose has first been made to the High court.”
(Emphasis added)

5 On this court’s own motion, we hereby grant the appellant leave

to appeal. The consequential effect of this, is to regularize this
appeal which would have otherwise been struck out.

The learned Judge before arriving at the decision that is the

subject of this appeal had observed and held as follows at Pages
10 3-4 of her ruling;-

“As far as this court is concerned, the main issue to

be decided upon is the issue of jurisdiction of the LC
11 court.”

15 Learned counsel Baryajunwa argued that an LC 11

court has no original jurisdiction in Civil matters. He
quoted S. 30 and S. 32(2)of the local council Courts
Act. Act 13/2006. He submitted that S.32 (2) gives Lc
courts powers to handle matters arising from cases
20 and causes from LC1 courts. That this section only
confers jurisdiction to LC 11 courts as appellate
courts.

Learned counsel Mr. Mulindwa Fredrick did not

25 address this issue. Court has taken note and has this
to say. The matter in this case arose on 21.12.2008.
The applicable law therefore is the Land Act,
6
 (Cap227),and the Land (Amendment) Act, Act 1 of the
2004 and the Local Council courts Act, Act 13 of 2006.
S. 50(1) of the local council Act, Act 13 of 2006
repealed the Executive Committees (Judicial Powers)
5 Act (Cap 8).”

S. 30 of the Land (Amendment) Act, 2004 introduced

S. 76 A of the land Act which states that ‘’.... The
Parish or Ward Executive Committee courts shall be
10 the courts of first instance in respect of Land
disputes". It therefore follows that these two pieces
of legislation removed the legal jurisdiction from a
village executive committee court to try and
determine land disputes. My opinion is that the court
15 of first instance in respect of Land disputes is the
Parish or ward executive committee court and NOT
the village executive Committee court.

In dismissing the application for execution, this

20 court is not sure which law the Chief Magistrate
relied on. May be relied on the argument of counsel.

The applicant brought this application to this court

for orders nullifying the orders of the LC 11 court on
25 the ground that the LC 11 court had no original
jurisdiction to try a Civil matter. This court finds that
in cases of Land, the LC 11 court has original
jurisdiction to hear and determine Land matters.
7
 In conclusion, this court has no choice but to dismiss
the application herein with costs and it is hereby so
ordered.”
5
We agree with the proposition of the law as set out by the learned
Judge, that indeed in respect of land matters the parish or ward
executive committee court and not the village executive
committee court is the court of first instance.

10 We also agree with position of the law as set out by Bashaija J in

Busingye Jamiya versus Mwebaze Abdu and another High
Court (Civil Revision No.033 of 2011) in which the learned
Judge while determining a matter similar to the one at hand held
as follows;-

15 “It is my view that provisions of the Land Act

were intended to modify the provisions of the
Executive Committee (Judicial Powers) Act
(supra) with regard to jurisdiction over land
disputes and the forum of appeals from Division
20 or Sub-County Executive Committee Courts.

The Local Council Courts Act has by, it's Section

10 (1) (b) regarding "legal jurisdiction", and
Section 32 (2) (c) regarding the right of appeal,
25 re-enacted with slight modification the provisions
which were contained in Section S (1) (b) on
jurisdiction, and Section 28 (2) (c) on appeals, in
the Executive Committees (Judicial Powers) Act
(Cap 8), now repealed. Therefore, according to
30 Section 13 (1) of the Interpretation Act (supra)
on "effect of repeal", references by Land Act,
8
 Section 76 A (1) and (2) to the provisions so
repealed have to be construed as
references to the provisions so re-enacted, that
is; Section 10 (1) (b) and Section 32 (2) (c) of
5 Local Council Courts Act).

I am acutely aware of the principles of

construction which require that an earlier Act
stands impliedly repealed by a later Act. See
10 Kariapper vs. Wijesinlta [1968J AC 716, which
was the provisions, of Section 76 A (1) and (2) of
the Land Act (Cap 277), because the provisions
contained in Sections 10 and 32 (supra) are
expressed to be subject to the provisions of any
15 other written law. Accordingly, a Local Council
Court established at the village level has no
jurisdiction to try and determine land dispute or
matters relating to land. Section 76 A (1) and
(2) of the Land Act (Cap.227) have to be read
20 with all the necessary modifications and/or
adoptions in light of changes in names of courts
established under the Local Council Courts Act,
(2006) have followed by the Court of Appeal of
Uganda in Civil Appeal No. 12 of 1985 between
25 David Ssejaaka Nalima and Rebecca Musoke, per
Odoki, JA. (as he then was). In that case, the
Learned Justices of Appeal agreed with the
forestated statement of the principles of
construction of statutes. I am of the strong view,
30 however, that situation in the instant case is
properly covered by Section 13 (1) of the
Interpretation Act (Cap 3). This is so because the
general principles of construction of statutes
would not apply where the local interpretation
35 Act provides
for a specific situation. I will conclude the above
point by stating that Section 10 (1) (b) and (e)
and Section 32 (2) (c) of the Local Council Courts'
Act (2006) have to be construed subject to the
9
 provisions of Section 76 A (1) and (2) of the Land
Act (Cap 277), because the provisions contained
in Sections 10 and 32 (supra) are expressed to be
subject to the provisions of any other written
5 law. Accordingly, a Local Council Court
established at the village level has no jurisdiction
to try and determine land dispute matters
relating to land. Section 76 A (1) and (2) of the
Land Act (Cap.227) have to be read with all the
10 necessary modifications and/or adoptions in light
of changes in names of courts established under
the Local Council Courts Act, 2006.

We agree entirely with the above decision of the High Court and
15 we adopt it.

In conclusion, we uphold the decision of the High Court that the

Parish or Ward Executive Committee court has original Jurisdiction
in land matters.

This appeal therefore substantively fails.

20 However, there are other issues which the High Court failed to
take into account while disposing of this matter.

The Judgment of the L.CII Court from which this appeal emanates
was delivered on 25th April 2009.

By that time in Ruranga vs Electoral Commission and the

25 Attorney General [2008] 1EA P. 387 the Constitutional Court
had already made a decision that had far reaching implications on
the nature and legality of Village, Parish or Ward Local Council
Committees.

10
 That petition was challenging the Constitutionality of a number of
laws, regulations and policies in respect of local council
committees and local council elections. The constitution Court
made the following orders and declarations.

5
1. Section 160 of the Local Governments' Act,
regulation 12(1) of the National Women's Council
(Council and Committee) Elections Regulations are
inconsistent with article 61 (1)(g) of the
10 Constitution.
2. Section 161 (4) of the Local Governments' Act
regulation 14(3) of both SI 318-1 and SI 319-1 are
inconsistent with article 1 (4) of the Constitution.
3. Section 161(2) of the Local Governments' Act,
15 regulation 14(1) of both SI 318-1 ofS1319-1 are
inconsistent with article 1(4) of the Constitution.
4. Sections 46(1)(c) and 160 of the Local
Governments' Act, section 6(1) the National Youth
Council Act, regulation 12(1) of Sl 318-1and regula-
20 tion 12(1) of Sl 319-1 are inconsistent with articles
61(1)(a) and (e) and
1(4) of the Constitution.
5. Regulations 3, 6(1)(a), 7, 8, 9, and 11(3) of the
National Youth Council (Councils and Committee)
25 Elections Regulations are inconsistent with articles
1 (4) and 62 of the Constitution.
6. Regulation 22(4) of 51 318-1 is neither inconsistent
with nor contravenes articles 1(4) and 61(1)(a) and
68(1) of the Constitution.
30 7. Regulation 25 of SI 319-1 is neither inconsistent
with nor contravenes articles 1(4).61(1)(0) and
68(1) of the Constitution.

11
 8. Section 46(1)(c) of the Local Governments' Act,
sections 6(1), 2(2), 5(2), of the National Women's
Council Act and sections 6(1), 2(2).
9. The guidelines issued by the Electoral Commission
5 ion are inconsistent with articles 1(4) and 180(3) of
the Constitution.
10. The impugned provisions of the Local
Government's Act, the National Youth Council Act,
the National Women's Council Act, and certain
10 regulations of S [ 318-1 and 319-1 as existing laws,
are subject to
Article273.

As a result of the above decision the elections of village, parish

15 and ward councils which were under way at the time could not
take place. The village, parish and ward councils which were in
place at the time and which remain in place were not and are
not validity constituted, their members having been elected
under the Movement Political System that ceased to exist after
20 the amendment of the Constitution in 2005 and the general
elections that followed under a multi-party system in 2006.

The executive arm of Government was required by the

Constitutional Court to initiate an amendment in Parliament of
the impugned provisions of the laws set out in that decision, to
25 reflect and embrace multiparty system. This has not been
done. At least it had not been done by the time the decision
the subject of this appeal was made in 2009. It means
therefore that the decision from which this appeal emanates
was made by a court that was not legally constituted at the

12
 time. That decision is no decision at all and is devoid of any
force of law.

The decision and orders L.C II executive committee court at

Malongo, Masaka District dated 24 April 2009 are accordingly
5 set aside on account that, the court was not legally in office as
the elective term of all its members had expired.

This appeal therefore succeeds in part.

The parties to this appeal are at liberty to institute fresh

proceedings in a court of competent jurisdiction should they
10 wish to do so.

Since the appeal has been determined on a question of law

that had not been raised by either party, we make no order as
to costs.

15 Dated at Kampala this 10th day of November 2014.

…………………………………………….
HON. MR. JUSTICE A.S NSHIMYE
JUSTICE OF APPEAL
20

……………………………………………..
HON. MR. JUSTICE RUBBY AWERI OPIO
JUSTICE OF APPEAL
25

…………………………………………………
HON. MR. JUSTICE KENNETH KAKURU
30 JUSTICE OF APPEAL
13
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