Ongee v Onzia (Civil Revision 3 of 1999) [1999] UGHC 28 (2 March 1999)

Full Case Text

## **HIE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT GULU I •' CIVIL REVISION NO. |D3 OF 1999 (from: Gulu Civil No. MG. 56 of 1997)**

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**DAVID ONGEE APPLICANT ROSE KIB1BI ONZIA RESPONDENT** versus!

## **BEFORE: HIS LORDSHIP,** AG. JUSTICE **RUBBY OPIO - AWERI.**

## **RULING**

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1 i The application was brought by notice ofmotion under ^section 84 (c) CPA and 048 r. 1 and 3 CPR. It was brought for revisional orders from the older of Magistrate Grade II which was given on 4th Sept. 1997.

The background to this matter is that, the Respondent Rose Kibibi Onzia filed a civil suit No. MG. 56/97 against the applicant for maintenance of his children whom he is produced with the Respondent between 1990 and 1996. i

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When the matter came up for hearing before Magistrate Grade II sitting at Gulu, Mr. Kinyera P'Lodi who represented the applicant/defendant raised; a preliminary objection that the suit\* should have been brought by way of a complaint on oath as provided under the repealed Affiliation Act and not by plaint. The said preliminary' objection was overruled by the trial Magistrate. Hence this application for revision. The general ground for this application was that the trial Magistrate acted in the exercise of his jurisdiction acted illegally and with material irregularity and injustice to the applicant/defendant.

The application was supported by other grounds specified in this affidavit of the applicant, David Ongee, which was deponed on 29/1/99 and filed on the same date. The said affidavit is fairly short and it would cost me nothing if I reproduce its salient paragraphs here for the, purpose ofthis ruling:- i

-3. That on the 13th day ofJune, 1997 he Respondent/plaintiffinstituted in Gulu Civil Suit No. 56/97 against me claiming money for the maintenance of my two children. David Olema QjO then 6 years old and Anna Grace Angom, 3 years old with her. A photocopy of the plaint is attached hereto and marked "A". I

4. That on the 31st day ofJuly, 1997 my lawyers, M/S Kinyera P'Lodi & Co. Advocates filed my written statement of defence stating interalia, that the suit was bad in law, frivilous, vexatious an abuse of court process. A photocopy Ojf the written statement of defence is attached hereto and marked £CB".

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5. That when the suit came up for hearing on the 2nd day of Sept. 1997, my counsel, Mr. Kinyera P'Lodi submitted as a preliminary objection that the case should have been brought by way of complaint on oath as provided under the repdalei Affiliation Act and not by plaint. A photocopy ofthe proceedings and ruling are attached [hereto and marked "C".

**6.** That in his ruling on the 4th day of Sept. 1997 the -kail Magistrate erroneously overruled the preliminary objection according to my counsel, Mr. Kinyera P'Lodi whose information verily believe to be true.

7. That the subject matter of the respondent/plaintiff claim exceeded the jurisdiction Magistrate Grade II court according to my lawyer, Mr.; Kinyera P'Lodi whose information I verily believe to be true.

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**1** 8. That according to my said lawyer whose information I believe to be true the suite should have been brought by way of a complaint on oath under the repealed Affiliation Act and not by plaint.

Both counsel made submissions before me in court. Mr. Kinyera P'Lodi for the applicant submitted among other things, that this matter should have been brought by way of complaint on oath as indicated in the Affiliation Act, Cap. 217 and not by way of a plaint. He submitted further that the trial Magistrate lacked jurisdiction in this matter in so far as the plaint indicated that the Respondent was claiming maintenance of Shs. 20.000/=. he submitted that the Magistrate court Act as amended by statute 9/90 did not bestow jurisdiction on Magistrate Grade II and III. He concluded accordingly that the proceedings before the trad Magistrate

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Uganda Vs Vialima (1977) HCB 158.

Mr. Louis Odongo, who represented the Respondent on his part submitted among other things, that they moved this Honourable court by way of the plaint and not by the complaint on oath as required by the Affiliation Act because by the time they filed the suit on 13/6/97 the Affiliation Act had been repealed by the Children Statute, Statute 6/1996.

was a nullity. He relied on the case of Mukiibi & 20 others Vs Kayiwa (1979) HCB 212 and

learned The **beamed** counsel contended further that there were many ways of filing suits before Magistrate Grade II courts. One way was by letter of complaint and another way was by plaint.

· learned On the question of jurisdiction, learned counsel submitted that the trial court had jurisdiction since what the respondent was claiming was for proper maintenance of the children. He contended that under the Magistrate's Court Act, Magistrate Grade II have pecuninary jurisdiction upto the tune of Shs. 500.000/=. He accordingly concluded that there was no illegality and injustice in this matter.

60 I have carefully listened to the submission of both counsel in this matter. I would like to start with the issue of jurisdiction as jurisdiction overrides all issues. According to the case of MUBIRU & Others Vs KAYIRA (1979) HCB 212 it was held that a judgement of a court

without jurisdiction is a nullity and as such a person affected by it is entitled to have it set a side ex-debits justitiae.

**6e&gt;** Jurisdiction is normally granted by law. In the instant case one has to look at the Magistrates. Court Act and the Affiliation Act Cap. 217 to see whether the trial court had cognisance in the 'matter before it.

Civil jurisdiction in the Magistrate's Court are provided under sections 219 and 202 of the Magistrates Court Act as amended by Statute 9/1990. There is also case laws as we shall see in due course.

Section 219 ofthe Magistrates Court Act. As amended by Statute 9/1990 provides:-

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*Os~* (a) (b) 4 A Chief Magistrate shall have jurisdiction where the value ofthe subject matter in dispute does not exceed ;Shs. 5,000,000/= and shall have unlimited jurisdiction in disputes relating to conversion, damage to property and trespass, (c) (d) (2) (3) (4) **i** A Magistrate Grade I shall have jurisdiction where the value ofthe subject matter does not exceed Shs. 2,000,000/= "219(1) subject to the provisions ofthis seption and of any other written law, the jurisdiction ofMagistrates presiding over Magistrates court for the trial and determination of causes and matters of a civil natures shall be as follows,

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*(5)* A Magistrate's Court may grant any reliefwhich it has power to grant under this Act or under any other written law and make such orders as may be provided for by this Act or any written law in respect of any case or matter before the court".

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Section 220 ofthe same Act provides:-

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Every Magistrate's Court shall, subject to the provision'ofthis Act, have jurisdiction to try all **i I** suits of a civil nature excepting suits of which its cognisance is either expressly or impliedly barred:

Provided that every suit instituted in a Magistrate's court shall be instituted in the court with the lowest grade competent to try and determine it.

I would like to point out that the pecuniary jurisdiction ^Magistrate Grade II and III was not enhanced by statute 9/1990 which amended the Magistrate's Court Act. However according to the case of Peter Mugoya Vs James Gidudu, it was jheld by Karokora, J. (As he then was the currency reform Statute, Statute 2/1987 in which our currency was demonelised by **i j** knocking off two zero e.g. also demonelised the pecuniary jurisdiction of the above category ofMagistrates reducing theirjurisdiction to Shs. 5000, and 2500/= respectively.

As I pointed earlier, we should look at the law to determine jurisdiction of any court. The matter which was placed at the temple ofjustice was an Affiliation proceedings for an order of **I** maintenance ofillegitimate children.

The matters was filed on 13th June 1997, this was a few months before the Children Statute which repealed the Affiliation Act. Cap. 217 had come into force. The Children Statute 6/1997 came into force on 1st Sept. 1997. Therefore when this mater was filed in court, the repealed Affiliation Act was still operational. The said Ajct was headed.

$105$ "An Act to provide for the maintenance of illegitimate children". Section 3 thereof provides:-

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$\overline{3}$ . Any unmarried woman who may be with a child or who may be delivered of a child. $may -$

$(a)$ before the birth of the child; or

$(b)$ at any time within twelve months from the birth of the child; or

$(c)$ at any time thereafter upon proof that the man alleged to be the father of the child has within twelve months next after the birth of the child paid money for its maintenance; or

$(d)$ at any time within the twelve months next after the return to Uganda of the man alleged to be the father of the child, upon proof that he ceased to reside in Uganda within the twelve months next after the birth of the child.

115 Make an application, by complaint on oath to a Magistrate with jurisdiction in the place where she resides ....................................

Section 2 of the repealed Affiliation Act (as amended by Act 7/84) defines a Magistrate, Resident Magistrate, Magistrate Grade I or Magistrate of the first or second class.

On the above findings it is very clear that the Respondent was correct in filing this matter before the trail Magistrate.

The trial Magistrate was by the difination in section 2 above was more than competent to try the matter by virtue of section 220 of the Magistrates Court Act, being the lowest grade of Magistrate competent to try and determine the same.

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In conclusion, I find that section 219 and 220 of the Magistrate's Court Act (as amended by Statute 9/1990) and section 2 of the repealed Affiliation Act do empower the trial Magistrate to try the matter which was placed before it. The trial court was therefore seized with jurisdiction to make an order of maintenance of the illegitimate children of the applicant, I therefore find Mr. Kinyera's contention on the issue of jurisdiction very misleading and 130 outrageous. There are many other instances that where Magistrates are granted unlimited jurisdiction. See for example the Local Government Rating Decree 3/1979.

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irregularity. It was the contention of on 'I would then proceed to consider the issue of procedural - learned counsel for the applicant that the matter should have been brought by complaint oath and not by a plaint.

135 The repealed Affiliation Act under which this action was initiated provides for the mode of procedure under section 3. (Quoted above). The words "may make application by complaint on oath" are not couched in mandatory terms.

as used in legislation has two basic The learned According to a criminal Misc. Application No. 184/98 Steven Bazanye & others Vs Uganda unreported Byamugisha J. held that the word "may" meaning. The first is obligatory and the second is discretionary or enabling. Judge observed that the word itself can never mean, "must" or "shall" as long as the English Language retains its meaning (underlining is for emphasis). That is the position ofthe law and there are 101 authorities on that.

**I 46** In views of the above reasoning and authorities, I see no basis for Kinyera P'Lodi argument that the trial Magistrate acted irregularity by allowing this matter to be brought by way of a plaint instead of complaint on oath. I would think the legislative hinted on complaint on oath because it is very single and not technical. It is preferable especially before lay Magistrates. Indeed there are many ways of initiating court proceedings as suggested by counsel for the Respondent /Plaintiff.

**'5c>** In the instant case I do not see anything wrong in the matter proceeding by way of a piaai as it was not mandatory. In any case I would also agree with the teatl Magistrate that the learned counsel was dealing with form rather than substance of the matters. See also the case of Brook Bond Liebig Vs Mallya (1975) EA 266 where ijt was held that where an application is brought under a wrong rule but jurisdiction to grant the order exists, the irregularity can be ignored to do otherwise in my considered opinion, would turn our courts from courts of

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Justice to courts of discipline. The most important index for court law is to consider whether pleading brings out the claims clearly for determination.

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on the part of the trial for my For the above reasons I do not see any irregularity or illegality - Magistrate. I am therefore persuaded that there are no justifying circumstances exercise ofrevisional powers. This application would therefore be dismissed with costs.

tGo **/ II** And I would order that the costs be paid by the Advocate who misled the applicant in this matter. It was a matter of sheer negligence on the part of the applicants counsel to have raised the preliminary objection in the question. He should therefore carry his own burden. It has been the spirit ofthis honourable court that an Advocate who handles a matter negligently or carelessly can be ordered to pay costs personally.! aL advocate must be prepared to carry his own cross. Fie should therefore be prepared to Jet with professional diligence. I am fortified by Mbarara High Court Civil Appeal No. 8/93.

Banyankole Kweterana Co-operative Union Ltd. Vs. Mugume Kabeho (Karokaro. J. as he then was) (unreported) where and Advocate who negligently filed a suit in a court which 1 i lacked jurisdiction was ordered to bear costs ofthe appeal.

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**no ns'** But before I take leave of this case, there is one thing which amused me so much as I was perusing the record of which was annexed to this application. I discovered that the learned (Mr. Kinyera P'Lodi) was being addressed as senior counsel with due respect, to counsel, I feel this kind of address was a misnomer and quiet misleading. In my view, a Senior Counsel (S. C) equivalent of Queen's Counsel is not a casual address. It is a special rank granted to an advocate who has excelled on the bar due to his *I* her loijig standing, skill and experience. It is also accorded to any person who has served or is serving as Attorney General ofUganda. The rank is granted by the President and the notice of the grant is always gazette. It is granted under the Advocates Act and the Advocates Special Rank Regulations, 1998.

I ^0 It should be noted that the Advocates (Special Rank) regulations, 1978 Statutory Instruments, 1978 No. 18 appointed the Chief Justice as the Chairman of the Special Ranks Committee.

Other members are the Attorney General, the Chairman (President) of the Uganda Law Society and the Secretary to the Law Council.

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I \$5 Any Advocate aspiring to become a Senior Counsel has: to lodge his application in a prescribed **I I** \* form. The Committee shall then consider the application after hearing the Advocate and then forward the same with its recommendations to the Attorney General for transmission to the President.

Once appointed a Senior Counsel shall take silk (i.e' wear silk gown). A senior counsel shall not practise before a court below that of a Magistrate Grade I. He or she therefore has no audience before Magistrate Grade II and III. Also a Senior Counsel is not allowed to practise without a junior, unless the Law Counsel, for any sufficient cause, permits him or her told do so.

Furthermore, a Senior Counsel may appear in court alone, but if he appears with hisjunior, the junior shall be entitled to a fee not exceeding one third; of the fee charged for the brief. See Regulation 7 of Statory Instrument 1978 No. 18.

H5 As an officer of the court, counsel Q-00 Lastly, a Senior Counsel takes precedence over other Advocates i.e. they are granted audience before other lawyers. I am sure Mr. Kinyera P'Lodi could be a wrong Senior Advocate. But he can only be a Senior Counsel under Presidential prerogative, not withstanding his long standing experience and skill. The ball is in his court should have guided the lower court as to proper address. I am ofthe view that his (counsel's) conduct did not accord the lower court. Its due dignity.

> All in all this application is dismissed with costs which in all fairness should be paid by the applicant's advocate for the reasons given above. I sol order. The matter can proceed on its merits in the lower court.

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## OPIO AWERIRUBBY

AG. JUDGE.

'' 2/3/99

2/3/99

Applicant present Respondent Absent Counsel for Respondent present Counsel for Applicant absent Odur Court Clerk

Court Ruling read in chambers as in open court and signed.

OPIO AWERI RUBBY AG. JUDGE. 2/3/99

I CERTIFY THAT IS A TRUE COPY OF THE ORIGINAL.

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## **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT GULU CIVIL REVISION NO. 03 OF -1999**

(Arising from Gulu Civil Suit No. 56/97)

| ONGEE DAVID | APPLICANT | |---------------------|------------| | VERSUS | | | KIBIBIINZ1A ROSE | RESPONDENT | | | |

## **ORDER**

This application coming this 2nd day of March, 1999 before Ag. Justice Aweri Opio Rubby for final disposal in the presence of Kinyera p'Lodi, counsel for the applicant and Louis Odongo, counsel for the respondent.

It is ordered that this application be and is hereby dismissed with costs to be paid by the applicant's advocate-.

**11 Ik** day of GIVEN under my hand and the Seal of the Court this 1999.

**RE STRAR**

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