Dr.Bweyale Nnalongo v Jomayi Property Consultants Limited (Civil Revision 13 of 2020) [2021] UGHCCD 121 (4 November 2021)

Full Case Text

## THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA

(LAND DIVISION)

## CIVIL REVISION CAUSE NO.13 OF 2020

(Arising from Wakiso Chief Magistrate's Court. Civil Suit No. 70 of 2018)

DR. BWEYALE JOSEPHINE NNALONGO:::::::::::::::::::::::::::::::::::

$10$

$\mathsf{S}$

# **VERSUS**

JOMAYI PROPERTY CONSULTANTS LIMITED::::::::::::::::::::::::::::::::::::

### Before: Justice Alexandra Nkonge Rugadya.

#### RULING.

# Introduction:

The applicant brought this application under **sections 83 & 98 of the Civil Procedure Act,** Cap 71; sections 17 (2) & 33 of the Judicature Act, Cap.13 and Order 52 rule 1 of the **Civil Procedure Rules SI 71** $-1$ against the respondent; seeking among others an order of revision and setting aside the orders of Her Worship Esther Nakadama Mubiru, the Chief Magistrate at Wakiso Chief Magistrate's Court (referred to as the "trial court") in Civil Suit No.70 of 2018; and costs of the application.

The grounds of the application are contained in the affidavit in support sworn by Dr. Bweyale Josephine Nnalongo, the applicant wherein she depones that while the respondent filed **Civil**

Suit No.70 of 2018 on 6th June, 2018, the summons to file a defence were issued on 7th 25 June, 2018 and that the same were purportedly served on her, whereas not.

That the respondent's lawyers then applied to effect service by way of substituted service and when the application was granted, the defendants in the main suit were served by advertisement in the Daily Monitor and Bukedde Newspapers on 4th and 5th October, 2018.

Further, that on the basis of advice from her lawyers, not only was the said service ineffective 30 but the affidavit of service sworn by Namudu Mary a court clerk at Wakiso Chief Magistrate's Court was defective and that by proceeding to hear the suit *exparte* basing on the substituted service, the trial magistrate acted irregularly, unjustly and illegally since service did not have the desired effect.

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In addition, that the failure to serve the applicant personally and proceeding *exparte* without her input was not only prejudicial to the applicant, but it was also an illegality since she was deprived of her lawfully acquired property and that the *exparte* judgement and orders were materially irregular, illegal and unjust as she had a valid defence to the suit.

- $\mathsf{S}$ The applicant further contends that she filed *Miscellaneous Application No.114 of 2019* to set aside the judgement as well as **Miscellaneous Application No.116 of 2019** and **Miscellaneous Application No.115 of 2019** for interim stay and stay of execution but the same were all illegally dismissed by the trial magistrate who also illegally, irregularly and unjustly exercised her jurisdiction when she sanctioned a warrant of vacant possession in - Civil Suit No.70 of 2018 against the applicant. 10

That at the time the respondent filed the suit, the value of the estimated market value of the suit land was over *Ugx 50,000,000/=* and the Chief Magistrate therefore lacked the pecuniary jurisdiction to hear and determine the suit and issue orders thereby acting illegally, with material irregularity and occasioned an injustice.

The respondent company opposed the application through an affidavit in reply sworn by Mr. 15 Kasozi Charles, wherein he stated that proper efforts were made to make the applicant aware of the summons but she purposely avoided service and the only option was to serve her through substituted service.

That a magistrate not only has power and jurisdiction to entertain an application for substituted service but also has the jurisdiction to hear the matter exparte and the applicant 20 adamantly and carelessly refused to be served thereby sleeping on her rights. The claims therefore were unfounded as she was aware of the suit.

Further, that the applicant did not apply for setting aside but instead applied for stay of execution which application was heard and dismissed. That the allegation of trespass was in relation to 6 acres valued at an amount that falls within the jurisdiction of the trial Magistrate.

The applicant did not file an affidavit in rejoinder.

### Representation:

The applicant is represented by M/s Barya Byamugisha & Co. Advocates while the respondent by M/s A. W. Bukenya & Co. Advocates

Both counsel filed written submissions in support of their clients' respective cases and I have 30 taken the same under consideration in resolving the issues herein.

Employe

# Issues for determination by this court:

The following issues were framed for determination by this court:

- a. Whether the trial magistrate acted in the exercise of her jurisdiction, illegally, with material irregularity and injustice when she proceeded to hear Civil Suit No.70 of 2018 exparte, basing on substituted service of summons. - b. Whether the trial magistrate exercised her jurisdiction illegally, irregularly and unjustly in allowing vacant possession of the suit land to the respondent. - c. Whether the trial magistrate had the pecuniary jurisdiction to hear the suit. - d. Whether the applicant is entitled to costs and compensation from the respondent.

It is worth noting that this court has wide powers under Order 15 rule 5 of the Civil **Procedure Rules S. I 71-1** to amend issues in order to be able to arrive at a correct decision 15 in the case and to finally determine the controversy between the parties. (See also Oriental Insurance Brokers Ltd vs Transocean Ltd, S. C. Civil Appeal No. 55 of 1995).

In light of the above and after consideration of the pleadings, submissions and listening to all the evidence in the case, I am inclined to settle on one single issue, that is: Whether this is a proper case for revision to entitle the applicant to the orders sought.

# Consideration by court.

Counsel for the respondent in their submissions raised two preliminary points of objection, which I will deal with first:

- 1. That there is no application for revision in this court since service had not been effected within the 21 days and no such application for extension of time was filed by the applicant, the application therefore ought to be dismissed without notice; and. - *2. That the application does not raise any sustainable ground for review.*

I have looked at the law and the pleadings. This application raises a number of issues 30 regarding the effectiveness of service by or to each side. The procedure for service of summons is found in **0.5** r 1 (2) of the Civil Procedure Rules for applications of this nature.

**0.5 r1 (2) of the Civil Procedure Rules** stipulates that:

$\n\left(\begin{array}{c}\n\text{1} \\ \text{2}\n\end{array}\right)\n$

$\mathsf{S}$

"Service of summons issued under sub rule (1) of this rule, shall be affected within twenty one days from the date of issue, except that time may be extended on application to court, made within fifteen days after the expiration of twenty one days, showing sufficient reasons for the extension".

The above procedure equally applies to service of hearing notices and applications. (Micheal $5$ Mulo Mulaggussi vs Peter Katabalo Miscellaneous Appeal No.6 of 2016; Supreme Court decision in the case of Edison Kanyabwera versus Tumwebwa (2005) 2 EA 86.).

Counsel for the respondent further referred this court to the Supreme Court case of **Bitamisi** Namuddu vs Rwabuganda Godfrey Civil Appeal No. 16 of 2014 on consequences of failure to effect service within 21 days from the date of issue and failure to obtain leave for extension of time within the prescribed period, as it would entitle court to dismiss the action without notice. I cannot agree more that the above provisions are mandatory.

By way of a brief background to this application, it is to be noted that the application had been filed on 18th August, 2020 and endorsed by the Registrar of this division on that same day.

- 15 The judge had also issued directives on $2^{nd}$ November 2020, a month or so after the Registrar had signed the application. The practice in this court however has always been that the file is presented to the trial Judge to issue a hearing date before the same is forwarded to the Registrar to endorse. These were two separate conflicting procedural aspects by court; and the failure to comply with the law as stipulated could not be visited upon the applicant. - 20 Through the directives of court issued on 2nd November, 2020 the applicant was to file and serve the application and written submissions by 16th November, 2020, which was done. The respondent was directed to file the response by 30th November, 2020; and a rejoinder by 4th December, 2020.

The respondent, Jomayi Consultants Ltd, claiming that there was late service to the company later filed an application in this court vide: **MA No. 476 of 2021**, seeking extension of time 25 to file its reply.

This court, after failing to locate a reply in objection to the said application: MA No. 476 of 2021, proceeded to grant the leave on 21st June, 2021 believing that the matter was not contested. It was not until much later however that a response which had been filed by Dr. Bweyale was located on the file, objecting to the application for the extension of time.

Bweyale's counsel had on 4th August, 2021 written to court drawing its attention to that anomaly and indeed as rightly pointed out in that letter, had the same been drawn to court's attention at the appropriate time, it would have been taken into consideration.

UNDY

Be that as it may, the order by this court under MA No. 476 of 2021 required Jomayi Consultants Ltd, to file its reply within 14 days from the date of the ruling. The said ruling was delivered by court email on 12th July, 2021 (not 21st June, 2021 as suggested by counsel for the applicant in their letter to court dated 23rd August, 2021). This implies that the reply by Jomayi Consultants Ltd, had to be filed at least by 26th July, 2021.

It is not in doubt that as early as April, 2021 Jomayi Consultants Ltd, had been fully aware of this application; were granted leave on 12th July, 2021 to file its reply within 14 days but not until 19th August, 2021 was the response filed, about 38 days after the delivery of the ruling. They did not seek further leave and indeed no explanation was made to justify the delay.

$\mathsf{S}$

Court takes judicial notice of the fact that a partial lockdown had been declared around that period but later eased on 31st July, 2021. Courts were still in operation during that time, in accordance with the guidelines as set by the Chief Justice.

I could not agree more therefore as pointed out in the applicant's submissions that the reply 15 itself to this application as well as the submissions thereon (which raises the preliminary points of objection) had been filed out of time.

That notwithstanding, a point of law may be raised and disposed of at any time before the hearing. (Ref: Order 6 rule 28 of the Civil Procedure Rules). This may be done orally or by way of an application and/or by way of submissions.

20 Needless to say, a court indeed has no jurisdiction to deal with an action until summons to file a defence have been served and a return of service filed. Until that is done, the suit or such other action is remains redundant. (Rashida Abdul Karim Hanali & Anor vs Suleimani Adrisi HC MA No. 0009 of 2017).

But that also goes for non-compliance with the requirement for renewal of summons to file a defence which is considered a fundamental defect and not a mere technicality that could be 25 curable under article 126 (2) (e) of the Constitution.

In relation to this present application, court thus noted that as per affidavit of service dated 21st January, 2021 the process server averred that on 3rd November, 2020 upon receiving the court papers he had visited the offices of Jomayi Consultants Ltd, found a lady receptionist who declined to tell him her names but who had directed him to an officer authorized to accept service on behalf of the company. He too had not only declined to tell him his names but also refused to acknowledge receipt of the court papers, upon which the process server had returned the papers unsigned.

Juliant

Order 29 rule 2 of the CPR provides that subject to any statutory provision regulating service of process, where the suit is against a corporation, the summons may be served on a secretary, or any director or other principal officer or by leaving it or sending it by post address at the registered office or at the place where the corporation carries on business.

- Thus if service is to be effected onto a company, it is not to be treated as any other ordinary $\mathsf{S}$ service where the actual litigant may be known or easily identifiable. The applicant in this case was fully aware that one Joseph Yiga was the Chief Executive Officer of the Company, having filed a reply to an application vide: MA No. 119 of 2019 for a stay of execution; and having testified as **Pw3**, in the exparte proceedings on 12th November, 2018, which proceedings are availed on the court record. - 10

As per the proceedings vide MA No.0476 of 2021 by which the respondent company was seeking leave to file a reply, Mr. Charles Kasozi was also a director. He had filed an affidavit on behalf of the company, and could have been served by the applicant.

Dr. Bweyale the applicant therefore knew whom to serve but chose rather to serve some 15 unknown person and could not avail court with any cogent evidence to prove that he was actually served.

Court also noted that Dr. Bweyale's submissions had been filed on 15th December, 2020 more than a year after the application was filed, and beyond the time that court had directed on 2nd November, 2020. The rejoinder itself was filed on 6th September, 2021. As it turned out

20 therefore both parties had not duly complied with the directives of court dated 2nd November, 2020.

Be that as it may, a revision can be made through a written request to court. It can also be initiated informally in a form of a complaint by letter. (See: Tusiime LAuben vs Nkiinze Gaadi Revision Cause No. 002 of 2010 citing LDC vs. Edward Mugalu HCMA No. 63 of **1990).** What is important is that the respondent must be made aware of that fact.

It is therefore sufficient for any aggrieved party or his lawyer to write to the Registrar, High Court, drawing his attention to any irregularity of any subordinate court in any decision and requesting that the matter be brought to the attention of court. That leads therefore to the consideration of the merits of this case.

30 According to **Black's Law dictionary (9th edition)**, revision is defined as a re-examination or careful review for correction or improvement or an altered version of work. The High Court's power of revision is provided under section 83 of the Civil Procedure Act, Cap. 71 which states 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-

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- a) exercised a jurisdiction not vested in it in law; - b) failed to exercise a jurisdiction so vested; or - acted in the exercise of its jurisdiction illegally or with material irregularity or injustice, $c)$ - $5$

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—

- (a) unless the parties shall first be given the opportunity of being heard; or - (b) where, from lapse of time or other cause, the exercise of that power would involve serious hardship to any person.

Clearly, the applicability of the above provisions is strictly in respect to the exercise of, or the wrongful exercise of and/or the failure to properly exercise the jurisdiction so vested, by a subordinate court. (See: Tayebwa vs. Bangonzya & Anor [1992-1993] HCB) 143.

It would thus appear that an injustice or irregularity arising out of the exercise of jurisdiction 15 by a subordinate court is to be remedied by an appeal or review, rather than by way of a revision.

The only issue therefore which court has to deal with is whether or not the trial Magistrate had pecuniary and geographical jurisdiction to handle this matter.

The jurisdiction of Magistrates is presently provided for by **section 207 of the Magistrates** courts (Amendment) Act. Under Section 207 it states that;

- 1. Subject to this section and any other written law, the jurisdiction of magistrates presiding over magistrates courts for the trial and determination of causes and matters of a civil nature shall be as follows- - 25 (a) a chief magistrate shall have jurisdiction where the value of the subject matter in dispute does not exceed fifty million shillings and shall have unlimited jurisdiction in disputes relating to conversion, damage to property or trespass;

#### [paragraph (a) amended by section 11(a) of Act 7 of 2007]

- In the instant case, Dr. Bweyale in her affidavit in support alludes to the fact that at the time 30 the suit was filed, the estimated market value of the land was over Ugx. 50,000,000/= therefore the trial Magistrate lacked the pecuniary jurisdiction to hear and determine the suit and issue orders and thus acted illegally, with material irregularity and occasioned an injustice. - A copy of a valuation report found on record and marked **Annexure 'J**, describes the land as 35 measuring 10 (ten) acres, off plot 5 Block 153 Busiro land at Mpeggwe Kakiri, valued at Ugx. 250,000,000/=, (Ugx.25, 000,000/= per acre). As per sale agreement however, each of the 10 acres as at 23rd October, 2012 was sold at 4,000,000/=.

Vertal

Court besides also noted that the suit was filed in 2018. The sale transaction between the defendants dates back to 23rd October, 2012; the plaintiff company on its part had got registered on the land on 26th April, 2012. The exparte judgment had been passed on 11th January, 2019; and the valuation report had been filed in September, 2019, some nine or so months later.

$\mathsf{S}$

At the time of filing the suit, the presumption was that the value of the suit land *Ugx* **40,000,000/=** would fall squarely within the jurisdiction of the trial court; and the court had no basis to think differently by the time it heard the case and passed the judgment on 11th January, 2019. Any figure beyond that amount at that point therefore called for speculation.

- Indeed section 207 (supra), imposes upon the Magistrate a duty to study the claim, 10 understand the pecuniary reliefs sought by the plaintiff or counter claimant. If he or she finds that the claim is beyond his or her pecuniary jurisdiction he or she will advise the parties to seek the relief sought in another or refer the matter to the right court with jurisdiction to handle or allocate it. - 15 In the present case before the Chief Magistrate there was no need to estimate the claim since the plaintiff's pleadings spoke loud and clear. I therefore find that the Chief Magistrate was well within the trial magistrate's statutorily designated pecuniary limit.

The argument was raised that the trial magistrate exercised her jurisdiction illegally and with material irregularity and injustice when she proceeded to hear the main suit exparte.,

20 According to **Order 9 rule 20 (1) (a) of the Civil Procedure Rules**, where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, if the court is satisfied that the summons or notice of hearing was duly served, it may proceed *ex parte*.

In the instant case, the applicant faults the service of court process upon him as having been ineffective and improper and the cause for his nonappearance to defend herself. Substituted 25 service is a recognized mode of service of process in accordance with Order 5 rules 18(1) of the Civil Procedure Rules. It is specifically provided in sub rule (2) of rule 18 thereof that such service under an order of court shall be effectual as if it had been made on the defendant personally.

In the case of David Ssesanga Vs Greenland Bank Ltd H. C. M. A No. 406 of 2010, court 30 held that substituted service can be rightly ordered and can produce the desired results when the defendant is within jurisdiction.

In the instant case, the respondent applied to have service effected on the applicant through substituted service and the application was granted by the trial Magistrate. The principle is that a party who willfully and voluntarily absents himself or herself from proceedings cannot claim breach of fair hearing where he or she has willfully absented himself from the hearing

(Jular 2)

or failed to give evidence when called upon to do so (see Attorney-General of Rivers State v. Gregory Obi Ude and 12 others, (1993) 2 NWLR (Pt.278) 638; (1993) 2 SCNJ 47).

A court without the requisite jurisdiction may arrive at a correct conclusion but the lack of jurisdiction alone would justify a revision. On the other hand however, a court with jurisdiction may arrive at a wrong conclusion which may occasion an injustice. When the latter happens the aggrieved party has recourse to a review.

Therefore, the issue of whether or not the magistrate properly exercised her discretion in allowing the matter to proceed exparte would not fall under the categories within which powers of revision are exercisable by this court.

In the present case, the applicant could have sought for a review of the decision under **section** 10 82 of the Civil Procedure Act, Cap. 71. From the record, MA No. 114 of 2019, was filed but I found no evidence that it was followed up to its logical conclusion.

I therefore hold that the trial magistrate had the jurisdiction and exercised her discretion when she allowed the matter to proceed exparte. The application which is rather a veiled appeal against her decisions must therefore fail. Costs to the respondent company.

Land conge Rugadya Alexandra

Judge.

$\mathsf{S}$

4th November, 2021

Delivered by email Ankoly J 4/11/2021