FINCA Bank (U) Limited v Opio (Civil Appeal 16 of 2012) [2023] UGHC 349 (21 February 2023)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF KAMPALA AT LIRA CIVIL APPEAL NO. 016 OF 2012

#### (ARISING FROM CIVIL APPEAL NO. 081 OF 2012)

FINCA BANK (U) LTD :::::::::::::::::::::::::::::::::::

#### VERSUS

### OPIO PETER GEORGE ::::::::::::::::::::::::::::::::::::

CIVIL PROCEDURE: appeal arising from the ruling of the Magistrate Grade One on Jurisdiction.

HELD: the trial magistrate has jurisdiction to hear Civil Suit No. 081 of 2012

## **BEFORE: HON. JUSTICE ALEX MARCAY AJIJI**

### **JUDGMENT**

- 1. This appeal arises from the ruling of His Worship Wagana Annie Margrete. In the trial court the plaintiff herein referred to as the respondent sued the defendant herein referred to as the appellant for special damages; Ushs. 2,000,000/=, Ushs. 400,000/=, Ushs. 50,000/= per day from $12/6/2012$ till release of the vehicle, Ushs. 800,000/ $=$ per day from 13/6/2012 till release of the key to the vehicle, general damages, costs of the suit and any other remedy. - 2. The facts of the case were that the plaintiff is the owner of the motor vehicle Reg No. UAJ 497m a fuso vehicle, a commercial vehicle. That in about the 12<sup>th</sup>/June 2012 at Dokolo the plaintiff's vehicle in Dokolo was hired to ferry sand and marram. That on the same day a driver of the plaintiff one Opio Alex was arrested by the defendant's loan officer where he was executing the said contract for transportation of sand and marram. Upon his arrest the plaintiff

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and the plaintiff's driver one opio informed the defendant's officers to have the plaintiff's vehicle keys released to the plaintiff where the defendants demanded for the payment of Ugshs. 100.000/= which the plaintiff paid. However, upon payment of the money, the defendant's officers refused and later informed the plaintiff to pay an additional Ugshs. $100,000/$ = to have the plaintiffs key and the driver released which the plaintiff could not comply since he was not the defaulter. That the plaintiff later paid the money for the key but still the key was never given to him claiming that it was with the police. He then went to police but the police could not give it to him since he was not the one who took it there. Hence the suit.

- 3. The hearing of the suit started on $28^{th}/8/2012$ . The plaintiff called three witnesses and at the time of the defence case, the defendant raised an objection on the ground that the trial magistrate did not have pecuniary jurisdiction to hear the case. - 4. The trial magistrate overruled the objection in the following terms - $\dot{1}$ . That the court has jurisdiction over the subject matter in the suit - $\dddot{1}\dot{1}.$ That the defendant ought to raise the preliminary objection at the commencement of the trial - 5. The appellant was dissatisfied with that ruling hence this appeal. The appeal is based on the following grounds; - $i.$ That the learned trial magistrate erred in law and fact when she held that she had jurisdiction to try Civil Suit No. 081 of 2012

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- The trial magistrate erred in the fact and law when she failed to properly $\ddot{1}\dot{1}.$ evaluate the evidence and came to a wrong conclusion. - 6. He prayed that the appeal be allowed, the appellant be granted the remedies sought in the trial court and the respondent pay costs of this appeal and of the civil suit in the court below. - 7. Counsel Omara Innocent David represented the respondent whereas the appellant was represented by Counsel Shamim Amolo. - 8. This court takes note that it the first appellate court and therefore must put the entire evidence to a fresh evaluation. See Fr. Narsensio Begumisa and 3 ors **Vs. Eric Kibebaga SCCA NO.17 OF 2002 (Unreported)** - 9. Court Resolution

# 10. Ground No. 1: That the learned trial magistrate erred in law and fact when she held that she had jurisdiction to try Civil Suit No. 081 of 2012

- 11. I have looked at the record and in the plaint, the respondent made the following prayers; - $\dot{i}$ . Special damages; Ushs. 2,000,000/=, - $ii$ . Ushs. $400,000/=$ , - Ushs. 50,000/= per day from $12/6/2012$ till release of the vehicle, $\overline{111}.$ - Ushs. 800,000/= per day from $13/6/2012$ till release of the key to the iv. vehicle. - $\mathbf{V}.$ General damages,

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- Costs of the suit and any other remedy. vi. - 12. This was a suit for damages hence the value of the subject matter was not indicated in the plaint. - 13. Looking at the prayers above, the trial magistrate had jurisdiction to hear the matter at the start per Section 207 of the Magistrates Courts Act. However, since the prayers had the condition of "TILL", the trial magistrate must have noticed that that word would tie her hands from hearing the matter as far as pecuniary jurisdiction is concerned if it is not disposed off quickly and I believe it's the reason she ordered for the release of the key on 22<sup>nd</sup> of October, 2012 before the matter was completed. - 14. It is trite to note that award of damages is at the discretion of court. The fact that the plaintiff asked for it, it is not automatic that the same will be awarded as requested. I am very much alive to the fact that the trial magistrate had jurisdiction to hear the matter at the start of the hearing. The issue of increase in damages as time goes by in my view does not affect the jurisdiction of the court before any decision is made by the respective court. - 15. Court makes a decision upon evaluation of the entire evidence on the court record. In the instant case, the hearing of the matter was not complete for one to be able to determine whether the trial magistrate acted beyond her jurisdiction or not. - 16. Consequently, it is found that the trial magistrate has jurisdiction to hear Civil Suit No. 081 of 2012.

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17. Ground one of the appeal fails.

18. Having found that the trial magistrate has jurisdiction to hear the matter, ground two cannot stand.

19. This appeal therefore fails.

- 20. It is ordered that the file be sent back to the trial magistrate for the hearing of the defence case. - 21. Costs of this appeal are awarded to the respondent.

22. GIVEN under my hand and seal of this Court at Lira this 2 day of ................................... 2023.

$\sigma$ **ALEX MACKAY AJIJI JUDGE**