Don Dino Institute for Orphans' Care Limited v The Management Committee of St. Kizito Ediofe Orphans Primary School (Miscellaneous Cause 5 of 2020) [2024] UGHC 1000 (4 October 2024)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT ARUA MISCELLANIOUS CAUSE NO. 0005 OF 2020 (ARISING OUT OF MISC. APPN. NO.0084 OF 2020 AT ARUA CHIEF MAGISTRATE **COURT**

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# 1. DON DINO INSTITUTE FOR ORPHANS' CARE LTD:::::::::::::::::::::::::::::::::::: **VERSUS**

# 1. THE MANAGEMENT COMMITTEE OF ST. KIZITO

# EDIOFE ORPHANS PRIMARY SCHOOL: RESPONDENT

### **RULING**

### BEFORE HON. JUSTICE COLLINS ACELLAM

### **Brief Introduction**

This is an Application brought by way of Notice of Motion under sections 14,17,33 & 39 of the Judicature Act, section 83 (c), 90 and 98 of the CPA and Order 52, rule 1,2 &3 of the CPR for 20 orders that;

- 1) The lower Court record be called from the Chief Magistrate's Court of Arua. - 2) That the trial Magistrates' court appears to have acted in exercise of its Jurisdiction but with material irregularity and injustice. - 3) Costs of the Application to be provided for. 25

### Grounds in Support of the Application.

In support of this Application, Mary Assumpta Ginamia, director of the Applicant deponed an affidavit on the 16<sup>th</sup> July 2020 briefly that;

- 1) That on the 13<sup>th</sup> May 2020 during lockdown, Mr. Kedi Paul, a magistrate Grade 1 attached to Arua Chief Magistrate Court issued an interim order exparte against KCB Bank Uganda Limited and immediately restrained the bank from continued blocking of account number 2202511008 and ordered the bank to unconditionally make the respondent have normal transactions until the determination of the main Application. - 2) That the Applicant then filed Misc. Application No. 034 of 2020 with the same court seeking the review of the orders due to among other reasons that the Registered Trustees


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of Arua Diocese had illegally confiscated the respondent which was a project of the Applicant and proceeded to withdraw funds to commit contempt of court.

- That the Magistrate's order in Miscellaneous Application No. 32 of 2020 was not $\mathfrak{Z}$ founded in the respondent's prayers in the main suit and the order essentially disposed of the main suit without hearing. - 4) That the matters surrounding the operation of the said Bank Account were already before this court with the filing of Misc. Application No. 05 of 2020 seeking remedies of contempt of court. - 5) That the trial Magistrate Acted in exercise of its jurisdiction but with material irregularity and injustice when he dismissed the Application for review with costs in his ruling dated 3<sup>rd</sup> July 2020. - 6) That this Application was brought without undue delay and it is in the interest of Justice that this court be pleased to grant the prayers sought in the Application.

### Grounds in Opposition

In opposition to the Application, MSGR KASTO ADETI, chairman school management committee of the Respondent deponed on the 28<sup>th</sup>. oct .2020 briefly that;

- 1) That Applicant is merely on a fishing expedition and it was never ever a party to any High Court matter with the Applicant concerning its bank account it operates with KCB Bank and its relation to maintain with the bank. - 2) That the Magistrate acted within its jurisdiction in an application filed before the same court by the Applicant and the purported directors of the Applicant are masquerades but not duly constituted directors of the said Applicant. - 3) That this Application is opposed and ought to be dismissed with costs.

#### **Background**

It is contended that the Respondent filed Civil suit No. 0101 of 2020 against KCB Bank in the chief Magistrate court of Arua for breach of contract and unlawful blocking of its accounts held at the bank. They then went ahead and filed Misc. Application No. 32 of 2020 against the bank for an interim relief to it from interfering with the account number 2202511008 until the main suit is determined as the same account held money for paying teachers , other staff and the service providers. On the 13<sup>th</sup> May 2020 during lockdown due, the Magistrate Grade 1 attached to Arua

Chief Magistrate's court issued an interim order exparte against KCB Bank Uganda Limited, 35 Arua Branch and immediately restrained the bank from continued blocking of account number 2202511008 and ordered the bank to unconditionally allow the respondent have normal

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transaction until the determination of the main Application. Aggrieved by the said decision, the Applicant filed miscellaneous Application No. 034 of 2020 for orders that the Magistrate reviews 5 his decision to stop KCB Bank from interfering with the Respondent's bank Accounts. The Magistrate dismissed the Applicant's Application for review on grounds that the Applicant was not legally aggrieved as it was not a party in the main suit and it had filed the Application without a mandatory resolution of the company. Dissatisfied with the said ruling, the Applicant filed this 10

instant Application.

### Representation

During hearing, the Applicant was represented by Alaka & Co. Advocates while the Respondents was represented by Abiyo Ivan from Ederu & Gama

#### Issues

Whether the trial Magistrate acted in exercise of its Jurisdiction but with material irregularity and injustice.

#### Resolution

Position of the law 20

Section 83 of the Civil Procedure Act provides that:-

### "Revision

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; 25

(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 30

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(e) where, from lapse of time or other cause, the exercise of that power would involve serious hardship to any $\mathsf{S}$ person".

Section 98 of the civil procedure Act cap 71 provides that; -

# "Savings of inherent powers of court

"Nothing in this Act shall be deemed to limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court".

Section 33 of the Judicature Act, Cap. 13

# "General provisions as to remedies.

The High Court shall, in the exercise of the jurisdiction vested in it by the Constitution, this Act or any written law, grant absolutely or on such terms and conditions as it thinks just, all such remedies as any of the parties to a cause or matter is entitled to in respect of any legal or equitable claim properly brought before it, so that as far as possible all matters in controversy between the parties may be completely and finally determined and all multiplicities of legal proceedings concerning any of those matters avoided".

And

0.52 r. 1& 3 CPR SI. 71-1) Civil Procedure Rules provides for the procedure that an application of this nature must take.

Having satisfied myself and taken due recognition of the Law and rules of evidence applicable, I will now turn to the substantive matters as raised in this case.

### Determination

I have carefully analysed this Application and the submissions of both sides. In the written submissions, learned counsel for the Applicant, raised the issue for determination by court that The issue is whether the trial Magistrate acted in exercise of its Jurisdiction but with material irregularity and injustice.

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# Submission of the Applicant.


It is the Applicant's submission during lock down due to Covid 19, Mr. Kedi Paul, a magistrate $\mathsf{S}$ Grade 1 issued an interim order ex-parte against KCB Bank Uganda Limited, Arua Branch and immediately restrained the bank from continued blocking of Account number 2202511008 and ordered the bank to unconditionally make the respondent have normal transactions until the determination of the main Application. That the trial magistrate entertsained the Application in total disregard of the directives of the Chief Justice, Bart Katureebe while still in 10 office baring the hearing of Civil Cases unless under very special circumstances upon issuance of certificate of urgency.

The Applicant argue that the Registered Trustees of Arua Diocese had illegally confiscated the Respondent which was a project of the Applicant and proceeded to withdraw funds to commit

contempt of court. 15

# Submission of the Respondent

Counsel for the Respondent argues that the Applicant has not demonstrated in any way the stakes it holds between KCB and the bank to the extent that it suffers a legal grievance. Counsel adds that for the Applicasnt to feel aggrieved, it should have applied to either be added as a party or file a fresh suit against the Respondent and KCB Bank to determine its grievances as the

Applicant is smuggling in itself by filing Misc. Application No. 34 of 2020.

Counsel concludes that the Applicant is not a signatory to the said Account and the trial magistrate did not decide the merits of the main suit but the suit is still pending the outcome of this Application.

#### Analysis of court 25

I have had the honour to listen to both parties, it is not in dispute that there is a pending suit between the Respondent and KCB Bank in respect of an alleged Breach of contract and unlawful blocking of the Respondent's Account by the bank for which the Applicant herein is not a signatory.

I see no evidence how a third party can lay a claim to the judiciary relationship between the 30 Respondent and the Bank.

It is evident from the pleadings that the Applicant does not claim to have direct contact with any of the Respondent and KCB Bank in negotiating the terms of the contract on which its claim is founded in respect to the said Accounts. Although a contract or its performance can affect a third party, as a general rule, a contract cannot confer rights or impose obligations arising under

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it on any person except the parties to it (see Dunlop Pneumatic Tyre Co Ltd v. Selfridge Ltd $\mathsf{S}$ [1915] AC 847).

party from suing on a contract to which he or she is not a party.

an illegality that glares deep on to record.

This is the doctrine of privity whose implication is that, (i) a person cannot enforce rights under a contract to which he is not a party; (ii) a person who is not party to a contract cannot have contractual liabilities imposed on him or her; and that (iii) contractual remedies are designed to compensate parties to the contract, not third parties. The doctrine of privity prevents a third

The Applicant is neither a principal or Alternate signatory to the Account that the Respondent is holding in KCB Bank (U) Ltd, Arua Branch. There indeed no evidence to also show by way of Resolution that the Applicant has the right to sue or instruct any of its managers to represent the company. These are not minor illegalities hence can't be condoned, court cannot sanction

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I also agree with the Respondent that the Applicant has not demonstrated in any way the stakes it holds in the relationship between the bank and the Respondent. I believe that after all disputes has been invested, any damage accrued in transactions between the Respondent and the Bank can still be cure by the Respondent. there is no need to file numerous Applications. The Applicant can wait on the decision in main suit where all disputes can be settled on its merits.

Pursuant to the above, having carefully analysed all the evidence in this appeal, this Application fails with no orders as to costs.

**ISO ORDER**

Delivered this.....

Refeber

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**JUDGE**

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