Nanyama v Kituyi (Civil Revision 2 of 2024) [2025] UGHC 21 (24 January 2025)

Full Case Text

## THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT MBALE

# SMALL CLAIMS REVISION CAUSE NO. 002 OF 2024

(ARISING FROM BUBULO CHIEF MAGISTRATE'S COURT SMALL CLAIM NO. 09 OF 2023)

**MARY NANYAMA ::::::::::::::::::::::::::::::: .....................................**

#### **VERSUS**

KITUYI JULIET SAITOTI ::::::::::::::::::::::::::::::::::

#### **BEFORE HON. JUSTICE LUBEGA FAROUQ**

### **RULING**

#### 1. Introduction

- 2. This application was brought by way of notice of motion under Article 126 (2) (e) of the Constitution of the Republic of Uganda, 1995, section 83 & 98 of the Civil Procedure Act Cap 282, order 22 rules 23 & 26 and order 52 rules 1 & 3 of the Civil Procedure Rules SI.71 for orders that; - a. The judgment given on 27th April, 2023 by His Worship MALOBA IVAN, Magistrate Grade One, Bubulo Chief Magistrate's Court by which the Applicant was ordered to pay the Respondent UGX. 1,600,000/= be revised and/or set aside; $\frac{1}{2}$ - b. The execution of the decree vide small claim suit No. 09 of 2023 be stayed until the final determination of this application; - c. The small claims suit filed by the Respondent be dismissed with costs; - d. In the alternative and without prejudice to the foregoing, the matter be referred back to the small claims court for it to be retried and heard

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properly taking into account the Rules under the Judicature (small claims Procedure) Rules, 2011; and

- e. Costs of this application be awarded to the Applicant. - 3. The grounds in support of this application are contained in the affidavit sworn by the applicant which has been relied upon in the determination of this application but briefly states that - a. The Respondent instituted small claim No. 09 of 2023 against her at Bubulo chief Magistrate's Court and judgment was entered against her on 27th April 2023; - b. During the trial of the said claim, the Respondent alleged that she bought construction materials worth UGX. 1,500,000/= (One million and five hundred thousand shillings only) from her hardware and failed to pay whereas not; - c. She can verily state that the lower court failed to investigate and take into account that she has never in her lifetime either constructed a house worth those construction materials or owned any such house in order to give judgment against her hence occasioning a miscarriage of justice; - d. The lower court also acted illegally and with material irregularity when it failed to accord her an opportunity to call witnesses to support her defence yet she requested to bring them; - e. The right to be heard is non-derogable and in that case it was fatally curtailed; - f. The lower court acted illegally and with material irregularity when it granted costs of UGX. $100,000/$ = (One hundred thousand shillings only) to the Respondent against the provisions of the Judicature (Small claims procedure) Rules, 2011; - g. As a mere peasant farmer, the lower court also acted with material irregularity when it issued a warrant of arrest against her on $21^{st}$ December 2023, without firstly inquiring into her financial position as espoused under the law hence occasioning an injustice against her;

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- h. The execution of the decree vide small claim suit No. 09 of 2023 be stayed until the final determination of this application; - i. She also prays that this court be pleased to dismiss small claim No. 09 Of 2023 suit with costs for failure to show a cause of action against her; - j. In the alternative and without prejudice to the foregoing, she prays that the matter be referred back to the small claims court for it to be retried and heard properly taking into account the Judicature (Small Claims Procedure) Rules, 2011. - 4. The grounds opposing this application are contained in the affidavit sworn by the Respondent which has been relied upon in the determination of this application but briefly states that - a. The Applicant approached her to acquire the construction materials on credit worth Ugx $1.500.000/$ = with a promise of paying back and the materials were given on trust since the Respondent knows the Applicant; - b. The lower court at first passed default judgment in her favour which was set aside and the case was hard interparty, both parties produced evidence and judgment was still delivered in her favor; - c. The successful party in the matter is always entitled to costs of the suit and the case was filed in 2023, for which she has incurred a lot in the prosecution of the same through filing fees, serving the documents, transporting herself and witnesses, the award of Ugx $100.000/$ = as costs by the lower court was even not sufficient; - d. The warrant of arrest was issued when the Applicant in the presence of her lawyer promised to pay the decretal sum of money at court but on several occasions failed to comply; - e. She has put a lot of money in this case and in execution being a small claim case which was supposed to be concluded within a period of 1 month but it has now taken over 2 years without the Applicant paying the said money and the Respondent is still incurring costs;

f. The file was forwarded to this court two times and the deputy registrar advised that the file be taken back to Bubulo for further management and conclude the execution.

# 5. Legal representation

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6. Counsel Makayi Samuel appeared for the Applicant while Counsel Ntuyo Shafiq on brief for Mr. Kisambira Isma represented the Respondent.

# 7. Submissions

8. At the hearing of this application, both counsel for the Applicant and for the Respondents were granted schedules within which to file their respective written submissions. Only counsel for the Applicant complied and the same have been relied upon in the determination of this application.

# 9. Analysis of court

- 10. Counsel for the Applicant proposed two issues which were adopted by court in the determination of this application, to wit - a. Whether the lower court acted with material irregularity and injustice? - *b. What remedies are available to the parties?*

### 11. Determination of legal issues

12. Issue 1: Whether the lower court acted with material irregularity and injustice?

13. Section 83 (1) of the Civil Procedure Act Cap 282 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, the High Court may revise the case and may make such order in the record as the court considers fit."

14. In Mabalaganya vs Sanga (2005) EA 132, it was held that-

"In cases where a High Court exercises its revision powers, its duty entails examination of the record of any proceeding before it for the

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purpose of satisfying itself as to the correctness, illegality or *propriety* ...... It is worth noting that in an application for revision one has to prove that the judicial officer acted without jurisdiction or failed to exercise Jurisdiction vested or acted illegally, irregularly or unjustly."

- 15. The Applicant averred at paragraph 4 of her affidavit in support that the lower court failed to investigate and take into account that she has never in her lifetime either constructed a house worth the amount of the said construction materials. She said she does not own such house in order to give judgment against her hence, occasioning a miscarriage of justice. - 16. In reply the Respondent averred in paragraph 4 of her affidavit in reply that the Applicant approached her to acquire the construction materials on credit worth Ugx 1.500.000/= with a promise of paying back and the materials were given on trust since the Respondent knows the Applicant. - 17. On the perusal of the record of the lower court, it is clear that Respondent adduced evidence of her claim through her-self and 3 other witnesses. Their evidence was collaborated by **Exh. 1** which is the Shop Record Book for the Respondent. - 18. The Respondent testified at page 2 to 3 of the record that-

"the respondent came one morning and told me that the builders had reached at her son's site. This was in 2021, the $1st$ of September. That the son was in Kampala and I give her materials for the builders to start the work. I give her as a friend and neighbor. I gave her 42 bags of cement and 4 kgs of nails. She promised that evening. After 2 days, I saw no signs of money. I went to her, she told me they had poisoned her son and he got sick. In June last year I went back to demand for my money and report to court. I even called the LCs. It is then that she told me she's hiring her piece of land and selling the cow to pay the balance and I became patient.......even when I was coming to open up a case here this mama (def) told the

LC1 that by 15th February 2023 she would have paid my money."

19. PW2 Walumbasi Patrick at page 5 to 6 of the record of the lower court testifies-

> "I know the claimant she's a neighbor. I also know the respondent she's is a neighbor. I remember on first September 2021, I had gone to be at the claimant Juliet's shop. The respondent also came alone and asked Juliet to give her cement. Juliet then gave her 42 bags of cement and for kilograms of nails. Juliet then asked about the money and she said it would be sent by mobile money. She then called the builders who were at the house to come and carry the cement. There are some builders I know that came and corrected the cement."

- 20. PW3 **Watasa Joseph** at page 8 to 9 of record of the lower court testifies that-"It was around the month of September 2021, I went to the respondent's home after her son called Tonny had called that we should go and build. When we reached, the respondent called Tonny who was not around but the respondent told us to go and get cement from the claimant's shop.....it was the respondent who sent a young boy to go and tell the claimant to open the shop so we could pick cement. It was the respondent who told her grandson to take there potters (site builders) to go and collect cement." - 21. On the other hand, the Applicant led evidence through herself and DW2 where she does not deny the existence of the Respondent's claims but avers that the same is supposed to be settled by her son. This is also evident from this application and the affidavit in support. - 22. The Applicant testified in her cross examination at page 4 of the record of the lower court that-

$\mathsf{6}$ "I see my children building. They go to her place for material and now she is putting me in their issue. I have never personally gone there myself to get any building materials."

23. DW2 Khauka James testified at page 10 to 11 of the record of the lower court that-

> "I am the LC1 Chairperson. I know the parties to the case. What I know about this case is that the claimant sent me to $a$ man called Tonny. She told me to tell Tonny that she had sold to him cement........ When Tonny had returned from Kampala. I went to Tonny's home and told him and he said that he was unwell but he was returning to Kampala then sends the money to the claimant. Since then, we once called Tonny in presence of the claimant but he said that he was still sick but I will send the money when gets well."

- 24. Although the Applicant's evidence attributes the liability for the said claims to her son, Tonny, there is no evidence to show that Tonny authorized the Applicant to borrow from the Respondent on his behalf. Accordingly, this court finds that the Applicant must personally bear the liability for the said claims. - 25. In the foregoing, am convinced that the trial court properly investigated the claims between the parties and held that the Applicant is indebted to the Respondent. - 26. The Applicant averred at paragraph 5 and 6 of her affidavit in support that the lower court also acted illegally and with material irregularity when it failed to accord her an opportunity to call witnesses to support her defence yet she requested to bring them and that the right to be heard is nonderogable and in that case it was fatally curtailed. - 27. In reply the Respondent averred in paragraph 5 of her affidavit in reply that the lower court at first passed default judgment in her favour which was set aside and the case was heard interparty, both parties produced evidence but judgment was still delivered in her favor.

- 28. It is an established fact that the right to a fair hearing is paramount and non-derogable, as guaranteed under Articles 28 and 44 of the Constitution of the Republic of Uganda, 1995. - 29. Rule 25 (a) and (b) of the Judicature (Small Claims Procedure) Rules, 2011 SI No. 25 of 2011 provides that-

"The Court shall hear every case before it expeditiously and without undue regard to technical rules of evidence or procedure, but in exercising its jurisdiction, the Court shall be guided by the principles of fairness, impartiality without fear or favour and adhere to the rules of natural justice, and in particular, shall ensure that-

(a) each party is given an opportunity to be heard;

(b) each party is accorded ample opportunity to call witnesses and to adduce any other evidence as he or she requires to support his or her case."

30. Rule 20 (a) and (b) of the Judicature (Small Claims Procedure) Rules, 2011 provides-

"The parties to a small claim shall, on the day and time of hearing-

(a) appear in person with all the relevant documents and *exhibits to the claim, written statement of defence or counterclaim;*

(b) ensure that any witness or witnesses in support of his or her claim are present in Court."

31. As already observed above, the Respondent led evidence through herself and DW2. It is also clear at page 7 of the record of the lower court that the Respondent was given opportunity to call for more witnesses and she had this to say-

## "I don't have any witnesses except God."

32. In light of the above, this court is not persuaded that the lower court acted illegally or with material irregularity, as the Applicant was given the opportunity to call additional witnesses but declined to do so.

- 33. The Applicant averred at paragraph 7 of her affidavit in support that the lower court acted illegally and with material irregularity when it granted costs of UGX. 100,000/= (one hundred thousand shillings only) to the Respondent against the provisions of the Judicature (Small claims procedure) Rules, 2011. - 34. I have reviewed the Judicature (Small Claims Procedure) Rules, 2011, and found no specific provision prescribing the amount or rate of costs to be awarded under the small claims procedure. In these circumstances, I will apply the general provisions of Civil Procedure Act relating to costs. - 35. Section 27 (1) of the Civil Procedure Act Cap 282, provides-

"Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of an incident to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent those costs are to be paid, and to give all necessary directions for the purposes aforesaid."

36. In Lyamulemye David Vs Attorney General SCCA No. 04 of 2013 at page18, where Odoki CJ, as he then was, held-

> "... It is trite law that the *award of costs* is in the discretion of the court, *the award of costs must follow the event..."*

- 37. Going with the above authorites, it is evident that the award of costs is at the discretion of court. - 38. In the present case, the trial magistrate after considering the circumstances of the case, he awarded costs of Ugx: $100,000/$ = to the successful party as it is stipulated by the law. - 39. It is well established that the exercise of a judicial officer's discretion cannot be interfered with unless it is shown to have been exercised illegally, which is not the case here. - 40. The Applicant further averred at paragraph 8 of her affidavit in support that as a mere peasant farmer, the lower court also acted with material irregularity when it issued a warrant of arrest against her on 21st December

2023, without firstly inquiring into her financial position as espoused under the law hence occasioning an injustice against her;

- 41. In reply, the Respondent averred in paragraph 7 of her affidavit in reply that the warrant of arrest was issued when the Applicant in the presence of her lawyer promised to pay the decretal sum of money at court but on several occasions failed to comply; - 42. Rule 28 (1) of the Judicature (Small Claims Procedure) Rules, 2011 provides-

"Where court has granted judgment for payment of a sum of money, the court shall inquire from the judgment debtor whether he or she is able to comply with the judgment without delay, and if he or she indicates that he or she is unable to do so, the court may, in camera, conduct an inquiry into the financial position of the judgment debtor and into his or her ability to pay the judgment debt and costs."

- 43. Rule 31 (3) of the Judicature (Small Claims Procedure) Rules, 2011 provides-"Where a judgment debtor fails to comply with the judgment or order of the Court, the judgment creditor, may with the guidance of the court apply for execution of the judgment or order under section 38 of the Civil Procedure Act and order XXII, rule 7 of the Civil Procedure Rules" - 44. From the lower court record, it is evident on page 16 that on 30th May 2023, the Applicant requested additional time from the court and the Respondent to settle the judgment debt, leading to an adjournment to 13th June 2023. According to page 17 of the record, the Respondent was absent without explanation, and the matter was further adjourned to 22nd August 2023, during which the Applicant was also absent. When the matter finally came up on 27th November 2023, instead of paying the judgment debt, the Applicant merely expressed intentions to file this instant application.

45. Section 38 (d) of the Civil Procedure Act Cap 282, provides-

"Subject to such conditions and limitations as may be prescribed, the court may, on the application of the decree holder, order execution of the decree-

by arrest and detention in prison of any person." See also order 22 rule 7 of the Civil Procedure Rules.

46. My learned senior brother Stephen Mubiru, J. in **Miscellaneous Appeal No.** 318 of 2024 Abdul Latif vs Blaise Twagirayesu, while discussing circumstances under which arrest as form of execution can be done held-

> "A Judgment Creditor is at liberty to employ one or all of the modes of *execution to enforce payment, and in no particular order. The courts have been careful in applying this measure (arrest and imprisonment)* and they only apply it when it appears that the Judgment Debtor is trying to make a mockery of the system of justice. The Court has to mandatorily undertake an enquiry as to whether the Judgment Debtor has the means to make the payment of the sum or *not..... Certain factors will be considered before resort to arrest and imprisonment as a mode of execution, such as;*

- the judgment debtor being an obstructionist and using $(i)$ *delaying tactics;* - the judgment debtor conspiring to leave the jurisdiction (ii) *of the Court;* - *where the judgment debtor has dishonestly transferred,* (iii) *hidden, or removed any property in full or part in order not to pay the debt;* - the judgment debtor has the means to pay a full or $(iv)$ *significant part of the debt but has neglected or refused* to pay that part; - *the judgment debtor had a position of trust to pay such* $(v)$ *debt but avoided such payment."* - 47. In light of the above, the lower court fulfilled its duty by conducting proceedings during which the Applicant promised to pay the judgment debt. However, the Applicant failed to fulfill this promise without providing any

reasons to the court and did not at any point inform the court of her inability to pay within the stipulated timeframe.

- 48. In the final result, it is found that the trial magistrate properly determined Small Claim No. 09 of 2023 according to the law. - 49. Issue No.1 is answered in the negative. - 50. Issue 2: What remedies are available to the parties? - 51. Having resolved issue 1 in the negative, this application is accordingly dismissed with costs to the Respondent.

I so order.

LUBEGA FAROUO Ag. JUDGE

Ruling delivered via the emails of the advocates of the parties on $24th$ day of January, 2025.