Mirembe v Walusimbi (Civil Revision 2 of 2021) [2023] UGHCCD 412 (16 May 2023)

### **THE REPUBLIC OF UGANDA**

# **IN THE HIGH COURT OF UGANDA AT KAMPALA**

# **(CIVIL DIVISION)**

### **CIVIL REVISION NO. 002 OF 2021**

### **[Arising from Nakawa Misc Cause No. 247 of 2020]**

**MIREMBE SUZAN ============================== APPLICANT**

## **VERSUS**

**WALUSIMBI SAMUEL =========================== RESPONDENT**

# **BEFORE: HON. JUSTICE EMMANUEL BAGUMA**

### **RULING**

#### **Background.**

The Respondent (Formerly applicant) filed an application against the Applicant (Formerly Respondent) for distress for rent in Nakawa Chief Magistrate court. The matter proceeded exparte and the application was granted. The applicant being dissatisfied with proceedings in the lower court applied for revision in this court.

### **The application.**

This application is by notice of motion under section 83 (c) and 98 of the CPR, order 52 rule 1 & 3 of the CPR seeking for orders that; -

- 1. The learned trial Magistrate's orders in NAK- MISC. CAUSE. NO. 247 OF 2020 against the Applicant to levy distress for rent arrears be levied and set aside. - 2. The Respondent compensates the applicant for the lost money, business items and personal items. - 3. The Respondent compensates the applicant for the inconvenience and business loss suffered as a resultof illegal eviction. - 4. Costs ofthis application be provided by the Respondent.

The application is supported by the affidavit of **Mirembe Suzan** the applicant whose details are on record but briefly states that; -

- 1. I rented House B1 on the Respondent's Hill Crest Apartment at Kezironi Zone Lc1, Kisasi Road, Bukoto 1 Parish, Nakawa Division, Kampala at a monthly pay of 1,200,000/= (One Million Two Hundred Thousand Shillings) which I used as my residence as well as for my business of Ebenezer Aromatherapy Massage Center. - 2. On 4 th July 2020, I received a letter from the Respondent's property manager Frank Mbatenda communicating a termination of my tenancy on ground that the Respondent intended to use the premises by August 2020. - 3. I asked the Respondent's agent to give me up to January 2021 to find alternative accommodation which was granted on condition that I continue paying rent which I did. - 4. To my shock on 30 th November 2020 my child and I were awakened by a group of about 10 people who claimed to be court bailiffs sentby the Respondent to evict me from the apartment in implantation of a court order. - 5. Because I had never defaulted in paying rent and I was never served with the court documents I called the Respondent's phone but it was off and I refused to open the door. However, the Respondents agents became violent and started cutting the doorwhich forced me to open and run out with only my child. - 6. As I result I lost valuable properties and savings of 10,000,000/= (Ten Million Shillings). - 7. I was never served with the application and the alleged service to Rose Mary as my manager was not effective service. - 8. I was rendered a destitute as all my cloths, money and business materials were taken by the Respondent yet I have never defaulted in paying rent which has made it very hard for me to take care of my child.

In reply, the Respondent in his affidavit in reply sworn by **Walusimbi Samuel** opposed the application and briefly stated that; -

- 1. The applicant rented House B1 at Kisaasi which she was using for massage parlor at a monthly pay of 1,200,000/=. - 2. The applicant was continuously defaulting on her rental payment and by June 2020, the outstanding balance was 4,800,000/= (Four Million Eight Hundred Thousand Shillings). - 3. My property manager issued her with a notice to give vacant possession of the house on 4 th July but she ignored it.

- 4. As a result of refusal to vacate the house the applicant was reported to Local Council Authorities who forwarded the matter to Kira Police but the applicant still adamantly refused to vacate. - 5. I instructed my manager to file for distress for rent which he did. The applicant was served with court papers through her manager Rose Mary but she ignored the same and the trial Magistrate having seen that there was proper service issued the orders sought. - 6. The house was opened in the presence of Chairman and the applicant was allowed to take her properties but she refused and vowed to file a suit and make money.

In a supplimentary affidavit in reply to the application sworn by Penny Walusimbi stated that the applicant was ever defaulting on rent and Rose Mary who was served with summons was the applicant's manager.

In rejoinder, the applicant reiterated her averments in chief but added that she has never employed a person by the names of Rose Mary and that she was never in default as she paid all her rent arrears.

### **Representation.**

Ms. Kyakuwa Lydia of Legal Aid Project represented the applicant while James Katono of Nambale Nerima & Co Advocates represented the Respondent.

At the hearing of this application both counsel agreed to file written submissions.

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

Counsel for the Applicant submitted that Section 83(c) provides that; -

*"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;*

### *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".*

Counsel submitted that the applicant's application is majorly citing lack of effective service of summons upon her by the Respondent. The entire contention in the application revolves around the issue as to whether there was effective and proper service of the application.

Counsel submitted that the learned trial magistrate exercised jurisdiction with material irregularity, illegally and unjustly when he heard the application ex perte thereby condemning the applicant unheard. The states that she was only shocked by a court order in Misc. Cause No.247 of 2020, where she was cited as a Respondent, since she was not aware of the ongoing case as she had not been served with any court process.

Counsel submitted that Service of court process is generally governed by Order 5 of the CPR, in particular it is a requirement under Order 5r10 CPR that service of summons shall be made to the defendant in person or his/her appointed agent. It states; -

### *"Wherever it is practicable, service shall be made on the defendant in person, unless he or she has empowered an agent to accept service in which case service on the agent shall be sufficient".*

Counsel referred to the case of **Erukana Omuchilo Vs Ayub Mudiiwa [1966] HCB 164** court held that service on the defendant's agent is effective service only if the agent empowered to accept service. It is also the settled position that proper effort must be made to effect personal service but if it not possible, service may be made to an agent or an Advocate.

Counsel also relied on the case of **MB Automobiles Vs Kampala Bus Services [1976] HCB 62** court held that failure to record the name and address ofthe person identifying the person to be served renders the affidavit of service incurably defective.

Counsel submitted that in the instantcase, the process server a one Bensony Gumisiriza of P. O Box 7217, Kampala c/o Nambale Nerima& Co. Advocates, states that the Application was received by the manager of the Applicant and there is no evidence whatsoever to suggest that the Applicant was personally served, in the affidavit of service the process server does not show that he made any effort or that it was impartible for him to serve the Applicant personally before resorting to serving the alleged manager, he does not even state how he came to the knowledge that the person served was in fact the manager of the Applicant. There isnothing which shows that the alleged manger was the agent of the Applicant empowered to accept and or receive the service.

Counsel referred to Order 3r2 CPR clearly spells out who a recognized agent is:

Recognized agent of parties by whom such appearances, applications and acts may be made or done are-

- a) Person holding powers of attorney authorizing them to make such appearance and applicants and do such acts on behalf of parties; and - b) Persons carrying on trade or business for and in the names of parties not resident within the local limit of the jurisdiction of the court within which limits of the appearance, application or act is made or done, in matters connected with such trade or business only,where no other agent is expressly authorized to make and do such appearances, applications and acts

Counsel concluded that the alleged manager of the Applicant does not fall in any of the categories of persons under the rule as recognize agent for purposes of accepting service. Besides it is also a mandatory requirement under Order 5 r 16 CPR, that the name of the person identifying the person to be served must be recorded in the affidavit of service.

#### **Submission by counsel for the Respondent.**

Counsel for the Respondent referred to section S. 83 of the CPA which is to the effect that;-

*"The High Court may call for the record of any case which has been determined under this act by any Magistrates Court, and if that court appears to have*

- *a) Exercised the jurisdiction not vested in it in law;* - *b) Failed to exercise the jurisdiction so vested;or* - *c) Acted in exercise of its jurisdiction illegally or with material irregularity or injustice"*

Counsel submitted that from the wording of the above Section, it is apparent that it applies to jurisdiction alone, the irregular exercise or none exercise of it, or illegal assumption of it. The section is not directed against conclusions of law or fact in which the question of jurisdiction is not involved. Where a court has jurisdiction to determine a question and it determines that question, it cannot be said that it has acted illegally or with material irregularity because it has come to an erroneous decision on a question of fact or even law. **He referred to the case of Matemba vs Yamulinga [1968] EA 643.**

Counsel contended that the Magistrates Court which granted the order in **Nak Misc Cause 247 of 2020** had jurisdiction to hearmatters arising from distress for rent actions under S. 2 of the Distress for Rent Act. The Applicant is not contesting that the court did not have jurisdiction to hear and determine that matter. What she is contesting is that the court proceeded exparte based on an affidavit of service indicating service on a one Rose Mary and not her. The learned trial Magistrate had jurisdiction to hear the application which he did and he was satisfied that there had been effective service on the Applicant and then granted the order for distress for rent.

Counsel referred to the case of **Kyawo David –vs Kamanyire Herbert High Court Civil Revision 001 of 2012** where court held that; -

"**A wrong decision or erroneous conclusion of law and fact or misinterpretation of the law but within the jurisdiction of a judicial officer cannot be a subject for revision because such conclusions are neither illegal nor irregular. They are independent conclusions within the Judicial Oath of any Judicial officer."**

Counsel further referred to the case of **Cissy Nanono – vs- Musimami Ramathan Civil Revision 003 of 2020 where court** held that "**itis trite law that the High Court has no power under S. 83 CPA to revise an intellectually order."**

We submit that the Magistrate whose orders the applicant seeks to be revised had jurisdiction to hear the matter and as such this application doesnot fall within the ambit for Revision under S. 83 of the Civil Procedure Act.

Regarding the issue of service, counsel submitted that the affidavit of service sworn by Gumisiriza Bensony indicated that he went to the Respondent's address at Hillcrest Apartments, and served the application for distress for rent which was received by Rose Mary a manager of the Respondent. At the time the Trial Magistrate heard the application this affidavit of service was on court record and he was satisfied that service had been effected. The affidavit in reply sworn by Penny Walusimbi in Civil Revision 002 of 2021 in paragrapgh 7 indicates that the said Rose Mary was well known to her as an employee / manager of the Applicant.

Counsel submitted that **Order 5 r 13 CPR** allows for service on an agent of a defendant empowered to accept service. Rose Mary who was served was found at the Applicant's place of business, she was wellknown to Penny Walusimbi the

wife of the Respondent and she duly accepted service and signed acknowledging receipt of the Application. This was the basis of the learned Magistrate authorizing the Respondent to proceed exparte and thereafter granted the orders of distress sought.

Counsel submitted that the Applicant alleges to have had no rental arrears. However, she doesn't have proof of payments for the entire year/ duration before her eviction. She admits receiving a notice of termination dated 4 th July, 2020 and does not show anything to contradict it. By the time the Applicant was evicted on 1 st December, 2020, in the presence of LCS & other witnesses she had rental arrears. The Respondent even allowed her to take her property without paying the arrears but she refused.

In rejoinder the applicant reiterated her submissions in chief.

## **Analysis ofcourt.**

Section S. 83 of the CPA provides that;-

*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,*

**Section 17 (2) of the Judicature Act Cap 13**, also empowers the High Court in exercise of its general powers ofsupervision over Magistrates' Courts to invoke its inherent powers to prevent abuse of the process ofthe court.

**Order 5 rule 10 of the CPR** provides that;-

*"Wherever it is practicable, service shall be made on the defendant in person, unless he or she has an agent empowered to accept service, in which case service on the agent shall be sufficient".*

**Order 5 rule 16 of the Civil Procedure Rules** provides for an affidavit of service and it provides that;-

*"The serving officer shall, in all cases in which the summons has been served under rule 14 of this Order, make or annex or cause to be annexed to the original summons an affidavit of service stating the time when and the manner in which the summons was served, and the name and address of the person, if any, identifying the person served and witnessing the delivery or tender of the summons".*

In determining whether the service was effective, In the decision of the Supreme Court of Uganda in *Geoffrey Gatete and Angela Nakigonya v William Kyobe Civil Appeal No. 7 of 2005* particularly in the judgment of Mulenga JSC who examined order 36 rule 11 and explained that the term *"Ef ective Service"* means service having the intended or desired effect and the contrary is true.

In the case of *D. Mbonigaba v CH. Nkinzehiki Civil Suit No. 687 of 1971* an affidavit of service was held to be defective since the process server did not disclose whether or not at the time of service of summons, the person on whom summons was served was personally known to him nor the name and address of the person so identifying the person served in addition to witnessing the service as required by Order 5 rule 16 of the CPR.

In the instant case, the process server Bensony Gumisiriza claims that he served the manager of the applicant. The affidavit of service which the trial court based on leaves a lot to be desired. The deponent of the affidavit in paragraph 2 states that the summons were issued on 21 st October 2020 yet the application was filed on 22 nd October 2020, this implies that summons were issued before the application was even filed.

The process server does not state how he got to know the applicant's premises, he does not state who showed him Rose Mary and how he got to know that Rose Mary is a manager of the Applicant as stated in paragraph 3 and 4 of his affidavit of service.

Order 5 rule 16 of the CPR envisages that the process server should state in the affidavit of service whether the person who accepted service was personally known to him and if not, the name and address of the person who identified the one on whom service was made and witnessed delivery of the summons. This is not the

case with the affidavit of service of Bensony Gumisiriza. The service of summons was not proper and effective.

It is my considered view that the affidavit of service fell below the standard laid down in Order 5 rule 16 of the CPR hence it was erroneous for the trial Magistrate to rely on the same as proof of service to proceed exparte.

In the final analysis I find that the trial Magistrate acted in the exercise of its jurisdiction illegally, with material irregularity and injustice when it heard the application exparte on the basis of an irregular/defective affidavit of service thereby condemning the applicant unheard which caused a miscarriage of justice.

### **Conclusion.**

In result, court makes the following orders;-

- 1. The application for revision is hereby granted. - 2. The ruling and orders ofthe lower court are hereby set aside. - 3. Basing on the nature and circumstances ofthis revision no order as to costs.

Dated, signed, sealed and delivered by email this **16 th** day of **May 2023**

Emmanuel Baguma

Judge.