Adong v Ilalu (Revision Cause 30 of 2022) [2024] UGHCCD 183 (11 October 2024)

## **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (CIVIL DIVISION) REVISION CAUSE NO. 030 OF 2022 (ARISING OUT OF NAKAWA CHIEF MAGISTRATE'S COURT MISCELLANEOUS CAUSE NO. 003 OF 2022)**

**SARAH ADONG ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT VERSUS ILALU MALISA MARY :::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

## **BEFORE: HON. JUSTICE BONIFACE WAMALA**

## **RULING**

### **Introduction**

[1] This application was brought by Notice of Motion under Sections 83 and Order 51 rule 1 of the Civil Procedure Rules SI 71-1 seeking orders that;

a) The decision of the Grade 1 Magistrate, HW Nyamwenge Immaculate in Miscellaneous Cause No. 003 of 2022 be revised as the magistrate exercised jurisdiction on a subject matter beyond her pecuniary jurisdiction.

b) The decision of the Magistrate Grade One be revised as she failed to exercise jurisdiction so vested in her when adjudging Mr. Okiror Richard Patrick as a person with mental illness.

c) The order adjudging Mr. Okiror Richard Patrick as a person with mental illness and not being able to manage his affairs be revised and cancelled.

d) The order appointing Ms. Ilalu Malisa Mary as personal representative and guardian of Mr. Okiror Richard Patrick be revised and cancelled.

e) Miscellaneous Cause No. 003 of 2022 is tainted with fraud, illegalities and irregulaties.

f) The costs of the application be provided for.

[2] The brief facts and grounds of the application are set out in the Notice of Motion and in the affidavit in support of the application deposed by **Sara** **Adong**, the applicant and a biological daughter of Mr. Okiror Richard Patrick. Briefly, the grounds are that on 8th November 2022, the deponent received information that an order had been issued by the court declaring her father to be a person of unsound mind and appointing Ms. Ilalu Marisa Mary his personal representative with permission and powers to fully access funds from his account held in ABSA Bank. The deponent immediately informed her lawyers to secure a copy of the said application and order which they did. Upon perusal of the application, she noticed that Ms. Ilalu Malisa Mary was claiming that a sum of UGX 40,000,000/= had been transferred to the bank account. The deponent was informed by her lawyers that the trial magistrate did not have the pecuniary jurisdiction to hear, adjudicate and make the order permitting the respondent to operate the bank account and manage the affairs of her father, Mr. Okiror Patrick as the value of the estate under consideration exceeded her pecuniary jurisdiction. She averred that the value of the bank account to which the respondent was granted access as well as the wider estate far exceeded the pecuniary jurisdiction of the trial magistrate. She also averred that the lower court failed to exercise a jurisdiction vested in it when determining whether her father was a person with mental illness and not able to manage his affairs.

[3] The deponent further averred that her father suffered a stroke in November 2021 and was undergoing treatment as recommended by his physician and he had made tremendous improvement. She stated that her father is not mentally ill or unable to manage his duties as the respondent led the lower court to believe. She averred that in support of the application to declare her father mentally ill, the respondent secured a report from a one Dr. Abbo Catherine Adito who is not known to her father. She further averred that the claim by the respondent that she required access to the bank account in order to foot the medical bills was baseless and fraudulent since the applicant and her siblings have since November 2021 been in charge of all their father's medical bills. The deponent also stated that it was not true that her father lives with the respondent as he had since been removed from his residence by his biological children. She stated that the suit in the lower court was filed after her father had been removed from his residence in Luzira. She concluded that the orders of the trial court if not vacated will continue to occasion a great loss and injustice and far reaching consequences to Mr. Okiror Patrick and will be detrimental to his estate and affairs.

[4] The respondent opposed the application through an affidavit in reply deposed by herself. She stated that she is the wife to Mr. Okiror Richard Patrick and has stayed with him for over 25 years. At the time she applied to be appointed the personal representative, they were staying together at the rented property. The applicant and her siblings never provided any financial assistance to their father. She denied ever committing any acts of fraud or illegality as alleged. She stated that Dr. Abbo Catherine who made the report which the court relied on to allow her application acted in good faith after interviewing the people who used to take care of her husband. She averred that the Court of Nakawa had jurisdiction to hear and grant the application and that after the obtaining the order, the applicant and her siblings kidnapped their father and she does not know his current whereabouts. She finally averred that the doctors alleged by the applicant never treated her husband while she stayed with him and that she is better placed to take care of her husband.

#### **Representation and Hearing**

[5] At the hearing, the applicant was represented by **Ms. Priscilla Agoe Apenya** from M/s Agoe Advocates & Legal Consultants while the respondent was represented by **Mr. Kenneth Kajeke** of M/s Kajeke, Maguru & Co. Advocates. The hearing proceeded by way of written submissions, which were duly filed by both counsel and have been adopted by the Court.

### **Issues for Determination by the Court**

[6] Two issues are up for determination by the Court, namely;

a) *Whether the application discloses any sufficient ground for revision of the orders in Mengo Miscellaneous Cause No. 003 of 2022? b) What remedies are available to the parties?*

## **Resolution of the Issues**

# **Issue1: Whether the application discloses any sufficient ground for revision of the orders in Mengo Miscellaneous Cause No. 003 of 2022?**

### **Submissions by Counsel for the Applicant**

[7] Counsel for the applicant submitted that under Section 17 of the Judicature Act, the High Court has supervisory powers over magistrates' courts which it is mandated to exercise in a bid to prevent abuse of court process. Counsel further stated that under Section 83 of the Civil Procedure Act, the High Court may call for a record of any case which has been determined by the magistrates' courts where that court appears to have exercised a jurisdiction not vested in law, failed to exercise a jurisdiction so vested in law or acted in exercise of its jurisdiction illegally or with material irregularity or injustice. Counsel submitted that in the present case, the trial magistrate was not clothed with jurisdiction to hear the matter before it and in so doing made illegal orders. Counsel cited Section 207(1)(b) of the Magistrates Courts Act which grants the magistrates court presided over by a magistrate grade one power in respect to cases whose value of the subject matter does not exceed UGX 20,000,000/=. Counsel submitted that the application by the respondent in the Magistrates Court was for an order to fully access funds held on Patrick Okiror's bank account in ABSA Bank.

[8] Counsel relied on the case of *Onzuu Brothers Enterprises v Ayikoru HCCD CR No. 2 of 2016 UGHCCD 73* where the court held that a court cannot entertain a cause which it has no jurisdiction to adjudicate upon and a court must have jurisdiction and competence in order to be properly seized of a cause or matter. The court further held that jurisdiction is a creature of statute and so is the power conferred on a court by statute or the constitution. Counsel referred the court to paragraph 4 of the application in the lower court where the respondent (then applicant) stated that the school (the former employer of Mr. Okiror) had decided to make an ex-gratia payment to Mr. Okiror of UGX 200,000,000/= which would be paid in such installments as circumstances would permit; and paragraph 11 of the affidavit in support of the application where it was averred that so far a sum of UGX 40,000,000/= had been transferred to the account. Counsel argued that the above averments showed that the respondent was aware that a lot more than UGX 40,000,000/= was to be paid to that account. Counsel prayed that the Court sets aside the orders of the lower court for being a nullity as they were given by a court that had no jurisdiction to entertain and determine the matter.

### **Submissions by Counsel for the Respondent**

[9] It was submitted by Counsel for the respondent that the Magistrates Court at Nakawa had jurisdiction to hear and determine the application and to issue the orders which the applicant seeks to set aside. Counsel argued that the pertinent issue is as to who is better suited to take care of the patient, Mr. Okiror. Counsel argued that the children cannot purport to take better care of their father when the respondent is her legally married wife and is ready and willing to take care of her husband. Counsel further submitted that the applicant has not proved on a balance of probabilities that she and her siblings have been meeting the financial needs of the patient and the persons that used to care for him. Counsel also disputed the assertion by the applicant to the effect that the health of Mr. Okiror had improved since no photographs or medical reports were produced to enable the court assess his current health condition. Counsel finally submitted that the applicant had failed to plead and prove the alleged acts of fraud committed by the respondent to the required standard.

### **Determination by the Court**

[10] Revision is a power granted to the High Court to re-examine or carefully review proceedings and decisions of the magistrates' courts for correction and/or improvement under specific grounds. The jurisdiction of the High Court and the conditions for revision of a record of a magistrate's court are provided for under **Section 83 of the CPA** which provides 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 have —*

*(a) exercised a jurisdiction not vested in it in law;*

*(b) failed to exercise a jurisdiction so vested; or*

*(c) acted in the exercise of its jurisdiction illegally or with material irregularity or injustice,*

*the High Court may revise the case and may make such order in it 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*

*(e) where, from lapse of time or other cause, the exercise of that power would involve serious hardship to any person".*

[11] On the case before me, it is clear that this application is not barred by virtue of any of the conditions in paragraphs (d) and (e) of the above provision. This application was taken out by the applicant, the respondent was notified and both parties have been heard. The application was also brought without delay. Therefore, no apparent hardship is likely to be occasioned to the respondent due to the exercise by the Court of the power to revise the decision of the trial court and to make such orders as the Court may deem fit. This application is therefore properly before the Court for consideration as to whether to revise the trial court's proceedings and orders.

[12] The main complaint in this application is based on the ground under Section 83(a) of the CPA; to the effect that the trial magistrate exercised a jurisdiction not vested in her in law on account of lack of pecuniary jurisdiction. It is a settled position of the law that jurisdiction is a creature of statute. A proceeding undertaken and/or an order passed by a court or tribunal without jurisdiction is a nullity. The specific complaint in this case is that the trial Magistrate Grade One entertained a matter beyond her pecuniary jurisdiction contrary to section 207(1)(b) of the Magistrates Courts Act which limits the pecuniary jurisdiction of a court presided over by a magistrate grade one to UGX 20,000,000/=.

[13] Section 4 of the Civil Procedure Act also makes provision for the pecuniary jurisdiction of courts as follows;

*"Pecuniary jurisdiction*

*Except insofar as is otherwise expressly provided, nothing in this Act shall operate to give any court jurisdiction over suits the amount or value of the subject matter of which exceeds the pecuniary limits, if any, of its ordinary jurisdiction."*

[14] The pertinent question in the present case is as to what the subject matter in the lower court was. According to the pleadings before and the orders passed by the lower court, the respondent (then applicant) sought and the court granted a number of orders; one adjudging Mr. Okiror Richard Patrick as a person with mental illness and unable to manage his affairs; two, appointing the respondent (then applicant) as a personal representative and guardian of the said Okiror Richard Patrick; and three, granting the respondent permission and powers to fully access funds on the named bank account in the name of Okiror Richard Patrick. In essence, the person and estate (affairs) of Mr. Okiror Richard Patrick were in issue. The effect of the orders issued was to place the estate and affairs of Okiror Patrick under the management of the respondent. It follows, therefore, that the value of the estate was in issue and was, indeed, the major determinant of jurisdiction.

[15] There is evidence that one of the ascertainable assets owned by Mr. Okiror Richard was a bank account No. 0031010055 in ABSA Bank Kampala Branch. The said bank account had a deposit of UGX 40,000,000/= from Mr. Okiror's former employer. The respondent (then applicant) also was in possession of a document indicating that Mr. Okiror had been given an ex-gratia payment of UGX 200,000,000/= which would be deposited in instalments as circumstances permitted. Indeed, the UGX 40,000,000/= that was already on account was part of this arrangement. That being the case, the fact that the known assets constituting Mr. Okiror's estate (or affairs) amounted to UGX 40,000,000/= with a prospect of rising up to UGX 200,000,000/= was sufficient to indicate to the trial magistrate that she was not seized with the pecuniary jurisdiction to handle the matter. By proceeding to entertain the matter, the learned trial magistrate exercised jurisdiction that was not vested in her by the law. The resultant decision is, therefore, a nullity and ought to be set aside by the Court in exercise of the power of revision.

[16] The other arguments made by Counsel for the respondent really touched the evidence and merits of the dispute which do not form part of the consideration in an application for revision. Such aspects would only have been addressed if the matter was before the Court by way of an appeal. As far as the application for revision is concerned, the Court's determination is to be based on proof of any of the grounds under Section 83 of the CPA. Issue 1 is therefore answered in the affirmative.

# **Issue 2: What remedies are available to the parties?**

[17] In light of the above finding, the application succeeds and is allowed with orders that;

a) The ruling and orders of the magistrate's court in Miscellaneous Cause No. 003 of 2022 are revised and set aside. As a consequence, the affairs of Mr. Okiror Richard Patrick revert to the status before issuance of the said orders of the court.

b) The costs of the application shall be paid by the respondent.

It is so ordered.

# *Dated, signed and delivered by email this 11th day of October, 2024.*

**Boniface Wamala JUDGE**