Natuhwera v Mulondo (Civil Revision 5 of 2023) [2024] UGCommC 243 (9 July 2024)

#### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

# [COMMERCIAL DIVISION]

#### CIVIL REVISION NO. 0005 OF 2023

**JENINAH NATUHWERA=================APPLICANT**

#### VERSUS

MULONDO CISSY=======================RESPONDENT

### Before Hon. Lady Justice Patricia Kahigi Asiimwe

### Judgment

# Introduction

- 1. The Applicant brought this Application under sections 83 and 98 of the Civil Procedure Act and sections 17 and 33 of the Judicature Act seeking orders that: - The Judgment of Her Worship Sanyu Mukasa Magistrate $a)$ Grade 1 at Nabweru Chief Magistrates Court in Civil Suit No. 0026 of 2021 delivered on $2^{nd}$ May 2023 be revised and set aside; - Civil Suit No.0026 of 2021 be retried before another $b)$ Magistrate; and - c) Costs of the Application be provided for. $\mathcal{L}$ - 2. The grounds of the Application are laid down in the Notice of Motion and in the Affidavit in Support deponed by the Applicant where she stated as follows:

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- That the Respondent sued her via Civil Suit No. 0026 of $a)$ 2021 in the Chief Magistrates Court for recovery of UGX 12,000,000 being rental arrears, general damages and costs of the suit. - That through her lawyers then, she applied to file her $\mathbf{b})$ Written Statement of Defence out of time which was granted. - $c)$ That prior to filing the Defence she had $\overline{a}$ misunderstanding with her lawyer who withdrew from the matter. - $d$ That she self-represented herself and filed what she believed was a Defence yet it was a Witness Statement. - That whatever is contained in the Court proceedings is $e)$ not the correct reflection of the record of proceedings. - That the matter came up for hearing on 8<sup>th</sup> November $\mathbf{f}$ 2022, and judgment on admission was entered in her presence for the sum of UGX 10,000,000 and the Plaintiff closed her case and the suit was adjourned to 13th December 2022 for hearing of the Defendant's case. - $g$ That the record indicates that on 13<sup>th</sup> December 2022, the matter was adjourned by the Court to $2^{nd}$ February 2023 at 10:00 am because of absence of the parties, however, this is not true because on the same date the parties were in Court and consented to an adjournment of 12<sup>th</sup> January 2023.

- That even after the Court on its own motion adjourned the $h$ matter to 2<sup>nd</sup> February 2023, the Court did not notify the parties and did not issue hearing notices to her. - That the record also indicates that on $2^{nd}$ February 2023 $i)$ the Respondent's Counsel was in Court and prayed that the matter be closed and the Court granted one more adjournment to 21<sup>st</sup> February 2023 so that she can attend Court. However, she was not given a hearing notice and neither was she informed about that new date. - That further the Record indicates that on 21<sup>st</sup> February $\mathbf{i}$ 2023 neither the parties nor their Counsel attended Court and the Court adjourned the matter to 14<sup>th</sup> March 2023. However, she was not informed of the new date. - That the Record further indicates that the matter was $k)$ coming up for judgment on 14<sup>th</sup> March 2023 and that neither parties nor their Counsel was present, and that there was no prayer made by the Respondent to have the matter closed, therefore it was illegal for Court on its own motion to close the case without hearing the Defendant. - That basing on the information from her Counsel, it is not $1)$ clear what happened on 14<sup>th</sup> March 2023 but the matter was adjourned to $2^{nd}$ May 2023 for delivery of judgment and judgment was entered against her on the same day. - m) That she got to know about the Judgment on 10<sup>th</sup> July 2023 when she was served with Taxation Hearing Notices via WhatsApp. - That the trial Magistrate invoked Court's inherent powers $n)$ and adopted her Witness Statement as her Written

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Statement of Defence yet she was not accorded the opportunity to tender in the same which amounts to procedural irregularity.

- 3. The Respondent opposed the Application through an Affidavit in Reply deponed by Kuddiza Patience, an advocate. She stated as follows; - That the Applicant was served with hearing notices $a)$ concerning the matter and she was contacted via phone and WhatsApp on the number 0784349860 informing her of all the Court set dates for the suit. The Deponent attached Affidavits of Service to support this averment. - That also during the hearing of the Application to file $b)$ Written Statement of Defence out of time, the Court found that she had been effectively served and only granted the application in the interest of justice. - That the parties were accorded days to hear their case but $\mathbf{c}$ the Applicant did not come to Court and that the Judgement was granted based on the Court proceedings and her own admission.

4. In her affidavit in rejoinder, the Applicant stated as follows;

- That the admission was in respect to UGX 10,000,000 $a)$ but the judgment was entered for UGX 12,000,000 and other reliefs were granted without her being heard. - That she was granted leave to file a defence out of time $\mathbf{b}$ because she was not duly served with summons to file a Defence.

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# **Representation**

5. The Applicant was represented by M/S Stanley Omony & Co Advocates and the Respondent was represented by M/S Niwagaba Advocates & Solicitors.

# Resolution

- 6. The issue for resolution is whether the Applicant should be granted an order for Revision. Both parties filed submissions which I have taken into consideration in resolving this matter. - 7. Under section 83 (1) of the Civil Procedure Act, 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 exercised a jurisdiction not vested in it in law, or failed to exercise a jurisdiction so vested; or 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. - 8. In the case of Mbalaganya V Sanga [2005] 2 EA 152 court held that:

Revision entails examination by this Court [of] the Record of any proceedings before the High Court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, or order or any other decision and the regularity of any proceedings before the High Court.

- 9. Counsel for the Applicant raised the following irregularities: - The learned trial Magistrate erred in law when she adopted i. procedure unknown in law by adopting the Applicant's

witness statement as her Written Statement of Defence and also relying on it as evidence when it was un-tendered.

- The learned trial Magistrate erred in law when she ii. proceeded to close the case for judgment without a prayer thereof and without according the Applicant a fair opportunity to present her case. - The learned trial Magistrate erred when she entered two iii. judgments on admissions over same subject matter. - The trial Court failed in its general duty towards an iv. unrepresented litigant - 10. I have reviewed the record and note that on 19<sup>th</sup> March 2021, the Respondent sued the Applicant for recovery of rent arrears of UGX. 12,000,000. According to the Affidavit of Service on record, the Applicant was served but she refused to acknowledge service. The Applicant did not file a defence. On 26<sup>th</sup> October 2021 the trial Magistrate set the suit down for formal proof. The matter was set for hearing on 16<sup>th</sup> November 2021, and the Plaintiff's case was taken. The matter was adjourned for judgment. - 11. On 11<sup>th</sup> March 2022, the Applicant filed an Application seeking leave to file her defence out of time. The Application was granted and the Applicant directed to file her defence by the 30<sup>th</sup> of August 2022. The matter was called for hearing on 27<sup>th</sup> September 2022 by that date she had not filed her defence. Below is an extract from the court's record of the hearing:

**Counsel for the plaintiff:** The defendant's despite being given leave to file a written statement of defence have not done so. This was in disobedience of court's directions. We pray an interlocutory judgment be entered under Order 9 Rule 8 of the CPR. If so granted, we pray the court adopt the plaintiff's evidence and sets down the matte for judgment.

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We so pray.

**Defendant**: We started negotiations I am on treatment. My lawyer has not paid. It is true that plaintiff is demanding the rent of 10 months. I was paying $1,000,000/=$ (one million shillings) per month. It is $10,000,000/$ = (ten million shillings). **Court:** Judgment and on omission is entered for $10,000,000/$ = (ten million shillings).

# **Sqd**

# Sanyu Mukasa **Magistrate Grade one**

**Defendant:** It is rent from April 2020 to January, 2021. The building managers took desktop, CPU with its monitors, chairs, laptop, and files. I vacated on the 25/01/22. The things were taken by the building manager. He is the one who controls the building. Cissy owns the building. The property is said to be in storage. The manager clamped the car and returned it.

**Counsel for the plaintiff:** The defendant has gone out of the building so we abandoned the prayer for eviction.

**Court:** The pray for eviction is withdrawn. Matter is for hearing. The defendant as she is unrepresented. The total submission of the defendant will be the written statement of defence. Adjournment for cross examination and for scheduling for hearing on 08.11.2022 at 10:30am.

- 12. Under Order 9 Rule 1 of the Civil Procedure Rules a defendant on or before the day fixed in the summons for him or her to file a defence shall file the defence by delivering to the proper officer a defence in writing dated on the day of its filing, and containing the name of the defendant's advocate, or stating that the defendant defends in person and also the defendant's address for service. - 13. Therefore, under the law a defence shall be in writing. I note from the above quoted proceedings that there was no defence on record at the time of the hearing. It should also be noted that there is no defence on the file. The trial Magistrate opted to consider the Applicant's oral submissions in court on that day as her written statement of defence which was contrary to the law. - 14. In the case of Odoch Jenasio Vs. Okot Ceasar and others Civil Appeal No. 008 of 2018 Mubiru J while dealing with a matter involving unrepresented litigants held that "For purposes of enforcing the right to a fair hearing, it may be necessary for the court to intervene so as to give self-represented litigants additional latitude, assistance and information." - 15. Therefore, the trial Magistrate in view of the Applicant's limitations as a self-represented litigant should have explained to her the legal requirement to file a written statement of defence. - 16. I find that the trial magistrate erred in law when she considered the applicant's oral submissions as her defence. This error led to further irregularities in the trial of the case. In light of this finding I have not deemed it necessary to consider the other grounds for revision raised by the Applicant. - 17. In conclusion therefore the Application is allowed with the following orders:

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- a) The judgment of the trial Magistrate in Civil Suit No. 0026 of 2021 is hereby revised and set aside; - b) The file be referred back to the chief magistrate's court for retrial of the suit before a different Magistrate; and - c) The costs shall be in the main cause.

# Dated this 9<sup>th</sup> day of July 2024

freely. . . . . . . . . . . . . . . . . . . .

Patricia Kahigi Asiimwe

Judge

$\tilde{\mathcal{F}}$

Delivered on ECCMIS