Wakilii

Barugahare v Kenyi & Anor (HCT-01-CS-CA-067 OF 2016)

High Court · [2017] UGHCLD 238 · 2017 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from Chief Magistrate's Court decision dismissing claim for land ownership declaration and eviction
Decision
Appeal dismissed as incompetent and premature; matter referred back to arbitration under the Co-Operative Societies Act

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that non-extraction of a formal decree before filing an appeal from a Chief Magistrate's Court is a mere technicality curable under Article 126(2)(e) of the Constitution, and an appeal lies from the judgment itself. However, disputes between members of a registered co-operative society concerning their shares must first be referred to arbitration under Co-Operative Societies Act s.73, then to the board, and courts have jurisdiction only on appeal. The High Court cannot exercise original jurisdiction over such disputes. Appeal dismissed as incompetent and premature.

Outcome

Appeal dismissed as incompetent and premature; matter referred back to arbitration under the Co-Operative Societies Act

Facts

The appellant sued the respondents in the Chief Magistrate's Court at Kasese claiming ownership of land comprising his shares in Rugendabara Co-Operative Farming Society Ltd, which he alleged he purchased from John Karani. The appellant sought a declaration of ownership, eviction of the first respondent, a permanent injunction, mesne profits, general damages, and costs. The first respondent claimed to have purchased the same shares from John Karani, who allegedly authorised the second respondent to act as his agent in the sale. The trial Chief Magistrate dismissed the appellant's claim with costs. The appellant appealed on grounds that the trial court erred in evaluation of evidence, in holding that the dispute required prior arbitration under s.73 of the Co-Operative Societies Act, and in finding that the first respondent acquired the land bonafide. The respondents raised preliminary objections challenging the competence and timeliness of the appeal.

Issues

  1. Whether the appeal was competent despite non-extraction of a formal decree before filing.
  2. Whether the appeal was filed within the prescribed time limit under Civil Procedure Act s.79.
  3. Whether the dispute concerning shares in a co-operative society must be resolved through arbitration under the Co-Operative Societies Act s.73 before being brought to court.

Orders

  • First preliminary objection (failure to extract decree) overruled.
  • Second preliminary objection (time limitation) overruled.
  • Matter referred back to arbitration under Co-Operative Societies Act s.73.
  • Appeal dismissed as incompetent and premature.
  • Costs awarded to the respondents.

Rules and key headnotes

Civil Procedure — Appeals — Formal Decree — Requirement for Appeal from Magistrate's Court
Non-extraction of a formal decree embodying a judgment of a Chief Magistrate's Court before filing an appeal is a mere technicality that can be cured under Article 126(2)(e) of the Constitution, which requires that substantive justice be administered without undue regard to technicality. An appeal by its nature is against the judgment or reasoned order, not the decree extracted from the judgment.
Civil Procedure — Appeals — Magistrate's Courts — Statutory Right of Appeal
Under s.220(1)(a) of the Magistrates Courts Act, an appeal lies from the decrees or orders of a Magistrate's Court presided over by a Chief Magistrate or Magistrate Grade I in the exercise of original civil jurisdiction to the High Court. Subsection 220(2) provides that this right of appeal has effect notwithstanding anything in the Civil Procedure Act or rules of court requiring that a decree be drawn up and extracted before an appeal is filed.
Arbitration & ADR — Co-Operative Societies — Mandatory Arbitration Before Court Action
Under s.73 of the Co-Operative Societies Act, disputes arising among members, past members, or persons claiming through members of a registered co-operative society concerning the business of that society must be referred to an arbitrator or arbitration for decision. Such disputes cannot be commenced in court as matters of first instance, even in the High Court exercising its unlimited original jurisdiction under Article 139(1) of the Constitution and s.14 of the Judicature Act. Courts have jurisdiction only as appellate bodies under s.75 of the Act after the internal arbitration and board mechanisms have been exhausted.
Land & Property — Co-Operative Societies — Shares and Ownership — Jurisdiction
Where land forms the shares of members of a registered co-operative society and the society is the registered proprietor holding title to the entire block, disputes between members concerning their shares in that land fall within the mandatory arbitration provisions of the Co-Operative Societies Act s.73. Such disputes must first be resolved through arbitration, not by court proceedings in the first instance.

Legislation cited (10)

Cases cited (9)

  • Fredrick Zaabwe v Orient Bank Ltd (SCCA No. 4 of 2006)
  • Kampefu Farm Ltd v Bunkedekko Livingstone (Civil Appeal No. 28 of 2009)
  • Robert Bwiso v Mary Tibamwenda (HCCA No. DR. MFP 5 of 1989)
  • Yakuze v Nakabembe (1958-1990) HCB 138
  • Kemirembe Sarah Vs National Housing & Construction Company NO. 83/2010
  • Gumisiriza v Hajji Muhammed Kanjanjure (HCCA No. 5 of 2014)
  • John Byekwaso & 2 Ors v Yudaya Ndagire (Civil Appeal No. 078 of 2012)
  • Standard Chartered Bank (U) Ltd v Grand Hotel (U) Ltd (Civil Appeal No. 13 of 1999)
  • Ibanda Co-Operative Savings & Credit Society Ltd v Sarah Kyarikunda & Anor (HCT-05-CV-MA-0060 of 2011)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Barugahare v Kenyi & Anor (HCT-01-CS-CA-067 OF 2016) [2017] UGHCLD 238 (31 October 2017)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.