Rubeihayo v Magoba (Miscellaneous Application 623 of 2021) [2024] UGHCCD 91 (31 May 2024)

#### THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT KAMPALA

## [CIVIL DIVISION]

### **MISC. APPLN. (REVISION) NO. 623 OF 2021**

[Arising out of Misc. Cause No. 105 of 2021 at Mengo]

RUBEIHAYO AMON ============================ APPLICANT

### VERSUS

MAGOBA JOHN =============================== RESPONDENT

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

# **RULING**

This application was brought by notice of motion under section 83 and 98 of the CPA, section 33 of the Judicature Act and Order 52 rules 1, 2 & 3 of the CPR seeking for orders that; -

- *1. The order by His Worship Matovu Hood granting special certificate to distress for rent against the respondent be revised and set aside.* - *2. The bailiff's taxed bill of costs be revised and set aside.* - *3. The distressed property be released from the said distress if not yet sold and the remaining none distressed property be released and handed over to the applicant.* - *4. The applicant, in his capacity as the managing director of leaisure zone be allowed access to the demised premises to assess and take possession of any properties therein or an inspector be appointed by court to verify the remaining property.* - *5. The respondent compensates for the lost, damaged and distressed but already sold properties.*

The grounds of this application are that: -

1. The Magistrate Grade One lacked pecuniary Jurisdiction to entertain the matter of 25,000,000/= (Twenty-Five Million Shillings)

2. The learned magistrate further with material irregularities granted a special certificate for distress and sale without proof of service of demand notice and the application for distress on the applicant.

The application is supported by the affidavit of **Rubeihayo Amon** whose details are on record but briefly stated that; -

- 1. I entered into a contractual agreement with the respondent for a period of seven years which was renewable. I made payments and there is no pending balance. - 2. I used 150,000,000/= to do renovations and developments on the premises. - 3. The applicant filed Mengo Misc. Cause No. 27 of 2021 which was dismissed. - 4. The Respondent filed CS No. 03 of 2021 where the application for temporary injunction and vacant possession were dismissed. - 5. Instead of fixing the main matter for hearing and determination, the respondent went ahead and filed Mengo Misc. Cause No. 105 of 2021 which gives rise to this application. - 6. The applicant filed a suit for declaratory orders on who owns a valid contractual agreement, served the respondents but still pending in court and it was wrong to move court to grant certificate of distress at a time all matters were pending in court. - 7. It was wrong for court to hear the certificate for distress exparte. - 8. The distressed properties were not valued since there is no valuation report attached yet they were over and above the decretal sum. - 9. In the supplementary affidavit the applicant stated that he was not indebted to the Respondent in the sum claimed and that the distress order was fraudulently and illegally obtained.

In reply, the respondent opposed the application and in an affidavit sworn by **Magoba John** the Respondent whose details are on record briefly stated that; -

- 1. There was an agreement between the applicant and the respondent which was supposed to be renewed after two years. - 2. The respondent only paid UGx 19,000,000/= defaulting on the remaining balance up to date. The applicant also failed to remit monthly arrears ever since this agreement was made. - 3. According to the contractual agreement in clause 4, the applicant was not supposed to make any alterations on the premises without written consent from the Respondent.

- 4. The applicant breached the agreement by failing to pay the agreed rent to the respondent which prompted the respondent to terminate the agreement as per paragraph 6 of the agreement. - 5. The applicant breached paragraph 4(a) (b) and (j) when he did not pay the reserved rent dues in the manner aforesaid, the water bill, electricity charges hence leading to breach of the tenancy agreement. - 6. In MC No. 27 of 2021, the respondent applied for distress for rent with arrears and eviction orders which are not covered under the Distress of Rent (Bailiff) Act. - 7. I have never been served by the applicant's alleged application and the matters pending in this court were not absolved by the aforementioned application. - 8. It is not a requirement that a certificate of valuation should be attached before filing for distress for rent and before auctioning the said properties, the valuation certificate was made, attached and advertised in newspapers.

In further reply contained in a supplementary affidavits sworn by Kiwanuka Jjagwe and Nakku Clair whose details are on record but buttressed the fact that the applicant failed to pay rent, he is harboring unsuspecting people on the premises and has failed to keep the premises in tenantable conditions.

## **Representation.**

Counsel Banturaki represented the Applicant while counsel Mutyaba Joseph Geoffrey represented the Respondent.

At hearing parties agreed to file written submissions whose details are on record.

# **Submissions by counsel for the Applicant.**

Counsel submitted that the trial court lacked jurisdiction to handle a distress application whose claimed rent arrears were 25,000,00/=. He referred to section 207 of the Magistrates Court Act which limits the pecuniary jurisdiction of a Magistrate grade one to 20,000,000/= (Twenty Million shillings).

Counsel referred to the cases of **Makula International Ltd Vs His Emminence Cardinal Nsubuga 1982 HCB 11** and **Blakes Tours and Travels Ltd Vs Crane Bank ltd SCCA No. 71 of 2009** all to the effect that fraud or illegalities ounce discovered by court cannot be condoned.

Counsel submitted that the applicant was never served with the application for distress for rent (Misc. Cause No. 105 of 2021) in total violation of his right to be heard. He submitted that the same proceeded exparte and the Respondent in his affidavit in reply simply generally evaded this claim by the Applicant.

Counsel further submitted that in the lower court there was no proof of service of demand notice, no valuation report and no step was taken by the trial court to prove existence of a debt.

Counsel concluded that this court be pleased to revise and set aside the proceedings in MC No. 105 of 2021.

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

Counsel referred to section 83 of the CPA and submitted that it provides for revision in respect to jurisdiction which is not vested, not exercised or jurisdiction exercised illegally or with material irregularity. He contended that in the instant case, the trial Magistrate was vested with jurisdiction and no evidence to the contrary has been adduced.

Counsel submitted that the distress application is guided by the distress for rent (Rent) Act and order 52 rules 1, and 3. That the practice is to apply for distress for rent under section 2 of the distress for rent Act exparte. He contended that the Respondent followed that procedure and the trial court rightly granted the orders sought.

The Respondent attached a tenancy agreement which showed a Land lord tenant relationship and proved that the applicant had failed to pay rent and hence the trial Magistrate was justified when he granted the orders sought.

## **Analysis of court.**

**Section 83 of CPA** empowers the High Court to revise decisions of Magistrates' Courts where the Magistrate's Court appears to;

*(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.*

Counsel for the applicant submitted that the trial Magistrate lacked jurisdiction to handle a distress application where the rent due is 25,000,000/= (Twenty-five millions) he relied on section 207(1) (b) of the MCA.

It is trite that Jurisdiction of court is a creature of statute and it is expressly conferred by law. If proceedings are conducted by a court without jurisdiction, they are a *nullity*. See: *Desai vs. Warsaw (1967) EA 351*. Any award or judgment and or orders arising from such proceedings of a court acting without jurisdiction are also a nullity. Most importantly, jurisdictional issues can be raised at any time or stage and they override all other matters in the proceedings, including pleadings and admissions thereon.

## **Section 1 of the Distress for Rent Act**, provides that : –

*In this Act –*

*'Certifying officer' means a Chief Magistrate or a Magistrate Grade 1."*

In the case of **Mabirizi Kiwanuka & Anor Vs Owere Franco & 3 Ors High Court Miscellaneous Application 2673 of 2014** court held that;

*" jurisdiction is strictly a creature of a specific law; and as such, neither can it be assumed nor be usurped by any Court……………... It is unmistakably clear, from the provision of the law cited above, that the jurisdiction to issue a certificate for the levying of distress, and the appointment of the bailiff in that regard, vests solely in a Magistrate's Court; and this mandate is exclusively exercisable either by a Chief Magistrate or by a Magistrate Grade 1. Accordingly, in issuing the certificate to levy distress for rent, the Registrar Execution acted without jurisdiction; for which his act was illegal, and cannot be allowed to stand".*

In this instant case, the distress order was issued by a Magistrate Grade One HW Matovu Hood who in this case was a certifying officer.

In view of the above therefore, the trial Magistrate Grade One had jurisdiction to hear an application for distress for rent of 25,000,000/= (TwentyFive Million shillings).

Counsel for the applicant tried to import section 207 (1) (b) of the Magistrate Court Act into distress for rent which has a specific Act governing distress for rent matters.

I accordingly find that the trial Magistrate had jurisdiction to handle a distress for rent matter.

The other contention by the applicant is that he was never served with the distress application which violated his right to be heard.

### According to **Section 2 of the Distress for Rent (Bailiffs) Act**.

*"No person other than a landlord in person or his or her attorney or the legal owner of a reversion shall act as a Bailiff to levy any distress for rent unless he or she shall be authorized to act as Bailiff by a certificate in writing of a certifying officer and such certificate may be general or apply to a particular distress or distresses." See* the case of **Assist (U) Limited Vs Italian Asphalt and Haulage Limited & Tito Twijukye t/a trust Master Agencies HCCS No. 1291 of 1999.** Where it was emphasized that once rent is demanded from a tenant, and remains unpaid by the Respondent/tenant the landlord is justified to seek for and be granted a certificate to levy Distress for rent.

In this instant case, I have read the record of proceedings and found that the Land Lord adduced exhibits to show that the applicant was a tenant, he had paid him some money and remained with a balance of 25,000,000/=. The landlord fulfilled his duty to show that there was a justifiable cause for the issuance of a certificate for distress for rent. There was evidence on record that rent was being demanded and for that reason the landlord was justified to seek for distress for and be granted certificate to levy distress for rent.

The applicant has not shown that he had paid rent. This court is satisfied that the trial court was right to issue certificate to levy distress for rent and I see no reason that warrants revision in this case.

# **Conclusion.**

This application fails with the following orders; -

- **1. The application is hereby dismissed** - **2. The ruling and orders in MC No. 105 of 2021 are upheld.** - **3. Basing on the nature of this application for revision, I make to orders to costs.**

Dated, signed, sealed and delivered by email on this **31 st** of **May 2024.**

Emmanuel Baguma

Judge.