Namutebi v Bumba (Revision Cause 2 of 2024) [2024] UGHCLD 186 (11 July 2024)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA LAND DIVISION REVISION CAUSE NO. 002 OF 2024 (ARISING FROM MISC. CAUSE NO.263 OF 2021) (ARISING FROM CHIEF MAGISTRATE COURT OF KAMPALA AT NATETE, RUBAGA)**

**NAMUTEBI PROSSY :::::::::::::::::::::::::::::::::::::::: APPLICANT**

#### **VERSUS**

**BUMBA JOHN LIVINGSTONE (T/A Diggers & Associates On behalf of Bitwaye Robert) ::::::::::::::::::::::::::::::::::: RESPONDENT**

## **BEFORE: HON. LADY JUSTICE NALUZZE AISHA BATALA**

#### **RULING.**

1. Namutebi Prossy hereinafter referred to as the applicant brought this application against Bumba John Livingstone (t/a diggers & associates on behalf of Bitwaye Robert) hereinafter referred to as the respondent under Section 83 and 98 of the Civil Procedure Act, and Order 52 rules 1, 2 and 3 of the Civil Procedure Rules for orders that;

- i) The ruling and orders of Chief Magistrate's Court delivered by His Worship Mugezi Amon Magistrate Grade One dated the 21st day of February' 2022 be revised for want of legality. - ii) Costs of the application be provided for.

# *Background;*

- 2. The applicant being dissatisfied with the decision of the chief magistrate court of Kampala at Natete in Misc. Cause no.263 of 2021 by His Worship Mugezi Amon delivered on the 21st February 2022 in favor of the respondent. - 3. The said application was brought under the Distress for Rent (Bailiffs) Act Cap 76 by the respondent against the applicant, the learned magistrate in the heading of his ruling indicated that he was determining Misc. Cause No.29 of 2021 instead of Misc. Cause 263 of 2021, the applicant being dissatisfied with the same ruling, hence this application.

# *Applicant's evidence;*

4. The application is supported by an affidavit in support deponed by Namutebi Prossy the applicant which briefly states as follows;

- i) That the respondent filed Misc. Cause No.263 of 2021 seeking for orders for distress for rent. - ii) That the aforementioned application was heard but not yet determined, instead court determined Misc. Application No.29 of 2021 which I was not aware of. - iii) That the said decision further determines the proprietaryrights between the applicant and the Respondent wherein the learned Grade One Magistrate states that the applicant has no proprietary rights in the contested property. - iv) That proprietary rights cannot be determined in an application for distress for rent as it was done by the learned magistrate. - v) That the ruling of the learned Grade one Magistrate is tainted with illegality/material irregularity and injustice which necessitates revision of his orders by this Honorable Court. - vi) That the suit property comprises of developments of over nineteen rental units valued at UGX 200,000,000(two hundred million shillings and that it was wrong for the learned grade one magistrate to continue hearing the party's


proprietary rights in Misc. Cause without ascertaining the value of the subject matter.

- vii) That the respondent has made several attempts to evict me but instead of filing a suit, he filed an application for distress for rent which determined our contested/disputed proprietary rights. - viii) That there is imminent threat of execution of the illegal orders in Misc. Cause No.29 of 2021 by the respondent as the respondent has commenced taxation proceedings and has already taxed its bill of costs.

### *Respondent's evidence;*

- 5. The application is responded to by an affidavit in reply deponed by Bitwaye Robert on behalf of the respondent which briefly states as follows; - i) That the respondent avers and contends that Miscellaneous Cause No. 263 of 2O21 was heard and the same determined in a ruling that was delivered by His Worship Mugezi Amon on the 2lst day of February 2O22 but however mistakenly

numbered by court as Misc. Cause No.29 of 2O21 instead of Misc Cause 263 of 2O21.

- ii) That the said mistake or error on the face of the record of the ruling dated 21st February 2022 has since been corrected and the same rectified by court. - iii) That the respondent avers that there is no Misc. Cause No. 29 of 2O21 as the same refers to Misc. Cause No. 263 for which the respondent / applicant instituted against the applicant (herein) and a ruling was delivered on the 21st day of February 2021, and as such the applicant's allegations of Misc. Cause No. 263 of 2O21 being undetermined is a total lie and unfounded. - iv) That Misc. Cause No.263 of 2O21 was in respect to distress for rent and indeed the ruling delivered by His Worship Mugezi Amon on the 21st February 2O21 was in respect of distress for rent in which it was established and proved that Bitwaye Robert was the Landlord, ownership of the premises and proof of payment of rent, as elements to prove distress for rent.

- v) That the respondent avers and contends that in no way did the ruling /decision in the application for distress for rent delivered by His Worship Mugezi Amon determine the applicant's proprietary rights. - vi) That the applicant filed H. C. C. S No. 910 of 2021 and Civil. Appeal No.29 of 2022 before this Honorable court regarding the same claim, which she all failed to prosecute.

## *In rejoinder;*

- 6. The applicant rejoined to the affidavit in reply briefly as follows; - i) That Misc. Cause No.263 of 2021 was heard but the same has never been determined and what was determined was Misc. Cause 29 of 2021 by a ruling dated 21st of February 2022 - ii) That mistakes and errors on the face of record are handled and entertained by moving court through an application by way of notice of motion. - iii) That the respondent's averment of having the same errors or mistakes corrected is unfounded.

- iv) That the learned trial magistrate determined my proprietary rights in an application for distress for rent and of which I have never been a tenant to the respondent but rather an owner of the suit property. - v) That I have never executed any tenancy agreements between myself and the respondent neither do I bear any receipts from him whatsoever.

# *Representation;*

7. The applicant was represented by Mr. Nelson Wamala holding brief for Brian Kirima of Lawgic Advocates whereas the respondents were represented by Mr. Matovu Charles of M/s Ssekyewo, Matovu &Co. Advocates. Both parties filed their affidavits and submissions which I have considered in the determination of this application.

## *Issues for determination;*

- **i) Whether this court should revise the orders granted in Misc. Cause No.263 of 2021?** - **ii) What remedied are available to the parties?**

*Resolution and determination of the issues;*

#### Submissions by counsel for the applicant;

- 8. Counsel for the applicant submits that the application is brought under section 83 and 98 of the civil procedure act and order 52 rules 2 and 3 of the civil procedure rules that the decision of the chief magistrate courts delivered by His Worship Mugezi Amon on the 21st February 2022 by revised for want of legality. - 9. The high court may call for a record of any case which has been determined under this act by any magistrate's court and if that court appears to have exercised a jurisdiction not vested in it in law, failed to exercise a jurisdiction illegally or with material irregularity or injustice, 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 as it thinks fit. - 10. Counsel relied on the decision in **Dubo And Anor Vs Minduni & Ors Civil Revision No.001 of 2017** where the learned justice Stephen Mubiru stated that section 83 of the civil procedure act entails a re-examination or careful review for correction or improvement of a decision of a magistrate's court after satisfying oneself as to the correctness, legality or propriety of any finding,

order or any other decision and the regularity of any proceedings of a magistrate's court it is a wide power exercisable in any proceedings in which it appears that an error material to the merits of the case or involving a miscarriage of justice occurred.

- 11. Counsel submits that the learned Magistrate failed to exercise jurisdiction so vested in him, that the learned magistrate did not bother at all to find out about the value of the subject matter the mere fact that the same was not ascertained during trial. - 12. Further counsel submits that the application that was filed was Misc. Cause No.263 of 2021 which was heard but not determined, however the trial magistrate determined Misc. Cause No.29 of 2021 which the applicant was not aware of. - 13. The applicant submits that the learned trial magistrate determined the applicant's proprietary rights in an application for distress for rent there by excising his jurisdiction illegally or with material irregularity.

#### Counsel for the respondent's submissions;

14. It is the submission of counsel for the applicant that the Misc. Cause No.263 of 2021 filed by the respondent before the

magistrate court was purely and entirely for distress for rent when he claimed a sum of rental arrears of Ugx 700,000(seven hundred thousand shillings only a sum that was within the pecuniary jurisdiction of the trial magistrate grade one and it was not of any essence for the trial magistrate to ascertain the value of the suit property since the matter before him was for distress for rent.

- 15. Counsel submits that Misc. Cause 263 of 2021 was well heard and the same determined by the trial magistrate on the 21st day of February 2022 and a ruling of court being numbered as Misc. cause was a clerical mistake which has since been corrected by the court on its own motion as stated under section 99 of the Civil Procedure Act and the decision in the case on **Hon. Obiga Kania vs Wadri Kassano Ezati and Anor Misc. Application No.142 of 2017** to reflect the correct Misc. Cause No.263 of 2021 and a copy of the corrected ruling is attached onto the affidavit in reply. - 16. Further in his submission counsel stated that the trial magistrate grade one properly examined and looked out for the main elements for distress for rent hence he rightly exercised his jurisdiction without any material irregularity as alleged by the applicant and the said ruling was not tainted with any illegalities,

material irregularity nor injustice as alleged by the applicant herein wanting a revision of the said ruling.

#### **Analysis by court;**

- 17. Before I proceed with the analysis of the case at hand visa-vis the law on revision, I will first determine the question as to whether the trial magistrate was right in proceeding to correct the error in the said ruling under his own motion. - 18. It is the submission of both parties that the respondent filed Misc. Cause No.263 of 2021 but instead the learned magistrate in the heading of the ruling to the said application he indicated that he was determining Misc. Cause No.29 of 2021 instead of Misc. Cause No.263 of 2021. - 19. The learned magistrate rectified the same mistake in his own motion, the edited signed and dated ruling is attach onto the affidavit in reply. - 20. The applicant averred in his affidavit in rejoinder that mistakes or errors of such kind are handled by moving court through an application by way of notice of motion.

- **21.** I put it to the notice of the parties that the civil procedure Act under section 99 states that "*Clerical or mathematical mistakes in judgments, decrees or orders, or errors arising in them from any accidental slip or omission may at any time be corrected by the court either of its own motion or on the application of any of the parties"* The same position was buttressed by court in the decision of **Hon. Obiga Kania Vs Wadri Kassiano Ezati And Anor(Supra)** - **22.** The said authorities speak to the fact that; an accidental slip or omission may be corrected at any time by court either in its own motion or on application of any of the parties. - **23.** Therefore, the learned trial magistrate rightly corrected the said mistake in his ruling as provided for under the civil procedure act. - **24.** Proceeding with the law on revision, The High Court's power of revision is provided for 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 —(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…"*

- 25. Clearly, the applicability of the provision is strictly in specific 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- 93] HCB 143)* - 26. In the decision of **Mabalaganaya Vs Sanga (2005)EA 152** it was held that in cases where high court exercises its revision powers, its duty entails examination of the record of any proceedings before it for purposes of satisfying itself as to the correctness, legality or propriety of any finding, order or any other decision and the regularity of any proceedings. - 27. Arising from the position of the law above and the holding in the above cited cases, the decisions of the lower courts may be revised when a trial magistrate is alleged to have failed to exercise his or her jurisdiction or where he or she acts illegally or with material irregularity.

- 28. As to whether the trail magistrate exercised jurisdiction not vested in him; counsel for the applicant states that the trial magistrate did not bother about the value of the subject matter while determining Misc. Cause No.263 of 2021 yet the suit property is valued at ugshs 200,000,000 (two hundred million shillings), In reply counsel for the respondent states that Misc. Cause No.263 of 2021 was for distress for rent where the sum claimed was UGshs 700,000(seven hundred thousand shillings only) which was within the pecuniary jurisdiction of the magistrate grade one court. - 29. The gist of this condition is that; what amounts to a subject matter? The expression "subject matter" includes the cause of action and the relief claimed, It is frequently defined as "the right which one party claims as against the other*. ( See; Black's Law Dictionary (4th ed. 1968); The Cyclopedic Law Dictionary (3d ed. 1940); Cyclopedia of Law and Procedure (William Mack, ed. 1911)* - 30. I will draw reference to the decision in Visare Ug. Ltd Vs M/S Gadala & Nshekanabo Advocates Civil Appeal No.1322 of 2021 before Justice Stephen Mubiru, where he held that *"at common*

*law, the "subject matter" of a suit is understood to refer to the primary right or core legal claim of the plaintiff, as opposed to the underlying facts of a case or the property in relation to which the right springs. Consequently, the value of the subject-matter of suit is not necessarily the value of the property in respect of which the suit is filed, When the suit is founded on some claim to or question respecting property, it is the value of the claim or question and not the value of the property which is the determining factor. Just as different legal issues may arise from the same underlying facts, so may they arise out of the same physical property. It follows that claims of a different nature based upon the same physical property would not necessarily be the "same subject matter." It is constituted by the plaintiff's main or primary right which has been broken, and by means of whose breach a remedial right arises. It is the right which one party claims as against the other, and demands the judgment of the court upon.*

31. The underlying dispute between the applicant and the respondent is that the trial magistrate pronounced himself over a subject matter that was not within his pecuniary jurisdiction, the perusal of the ruling of the said trial magistrate clearly states how the respondent's claim against the applicant in Misc. Cause No.263 of 2021 is that of distress for rent for a sum of Ugshs. 700,000.

- 32. This means that the claim which formed the subject matter of the said cause was Ughs. 700,000 only. - 33. I find the applicant's averments of referring to the value of the subject matter to be the value of the entire property misplaced because the dispute in Misc. Cause No.263 Of 2021 was not one that involved the proprietorship of the property and the trial magistrate did not pronounce himself over the same but rather pronounced himself over the action for distress for rent. - 34. Therefore, I do not find that the trial magistrate exercised jurisdiction not vested in him at law because the value of the claim in Misc. Cause 263 of 2021 which was the subject matter was Ugshs.700,000 something that is within the pecuniary jurisdiction of magistrate grade one court. - 35. As to whether the trial magistrate failed to exercise jurisdiction so vested in him; Counsel for the applicant submitted that the

magistrate court is vested with authority to ascertain the value of the subject matter of a suit in case of uncertainty and that the value of the subject matter was not within the pecuniary jurisdiction of the trial magistrate.

- 36. The expression "**to have failed to exercise a jurisdiction so vested"** requires the court to have refrained from invoking an authority or power vested in it by reason of misdirection as regards the limits of jurisdiction. - 37. Misc. Cause No.263 of 2021 that was determined by the learned trial magistrate was brought under the distress for rent bailiffs act where the magistrate rightfully resolved all the conditions a party should meet in an application for distress for rent and the subject matter being ugshs.700,000 as resolved earlier, something that's within the jurisdiction of the trial magistrate. - 38. Therefore, I do not find it right that the trial magistrate failed to exercise the jurisdiction so vested in him. - 39. As to whether the trial magistrate acted in the exercise of his jurisdiction illegally or with material irregularity or injustice; Counsel for the applicant submitted that the learned trial magistrate went on to determine ownership or proprietorship of

the suit property in an application for distress for rent something that was illegal and irregular.

- 40. Where a subordinate court has jurisdiction to determine a question, the same court has jurisdiction to decide wrong as well as right, hence a wrong decision is not an irregular exercise of jurisdiction. The mere fact that the decision of a subordinate court is erroneous, whether it be upon question of fact or law, does not amount to an illegality or material irregularity unless its an error that affected the jurisdiction of that court. - *41.* Acting illegally or with material irregularity in the exercise of jurisdiction comes as a result of the court validly assuming jurisdiction, after assuming the said jurisdiction, the court acts illegally or with material irregularity when there is exercise of jurisdiction which the court possesses but the exercise has been in a manner which is illegal or materially irregular*.(See; Connect*

# *Financial Services Ltd Vs Middlenorth Co-Operative Union Ltd, CR No.065 of 2017 before Justice Stephen Mubiru)*

*42.* The perusal of the ruling by the trial magistrate, the said ruling was based in the following issues; *Whether Bitwaye Robert is the landlord of the respondent? Whether the respondents*

*have defaulted in their obligation? and what remedies are available to the parties?* Where the learned magistrate proceeded to resolve the said issues in line with the conditions a party need to meet in an application for distress for rent.

- *43.* In the determination of the said application, the learned magistrate had this to say, *I find in the circumstances that the said Bitwaye Robert is the land lord of the respondents, he also deposed that the respondents last paid rent in July 2021, the monthly rent payable is ugshs 100,000 per month as can be deduced from the receipts for rent payment attached to the affidavit of Bitwaye Robert. The respondents have not adduced any proof of rent payment of the subsequent months they have been in occupation of the rental unit. They therefore owe the landlord rent from the month of February 2021 to date, I find that the application has merit and it's granted with costs to the applicant.* - *44.* I do not find the decision of the learned trial magistrate tainted with any illegality or material irregularity since it was based on the law and principles of distress for rent.

- *45.* This court is of the finding that the court below had jurisdiction to decide a claim of distress for rent, the same court never failed to exercise any jurisdiction so vested in it nor did it exercise its jurisdiction illegally or with material irregularity. - *46.* In the final result, the court below decided the matter on merit considering the affidavit and documentary evidence which was adduced before it. I cannot find fault with the same decision that justifies revision, the instant application is accordingly dismissed with no orders as to costs.

## **I SO ORDER.**

#### **NALUZZE AISHA BATALA**

#### **JUDGE**

## **11/07/2024**