Semakula v Gabura (Civil Revision 4 of 2023) [2024] UGCommC 235 (5 August 2024)

## 5 **THE REPUBLIC OF UGANDA**

#### **IN THE HIGH COURT OF UGANDA AT KAMPALA**

#### **(COMMERCIAL DIVISION)**

## **SMALL CLAIMS PROCEDURE REVISION NO. 0004 OF 2023**

#### **(ARISING FROM CHIEF MAGISTRATES COURT SMALL CLAIMS CASE NO. 0025 OF**

#### 10 **2023)**

**LOUIS SEMAKULA ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT**

#### **VERSUS**

**NERBERT GABURA :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

#### **BEFORE HON. LADY JUSTICE HARRIET GRACE MAGALA**

#### 15 **RULING**

#### **Background**

This Application was brought under sections 83(b), (c) and 98 of the Civil Procedure Act, Rules 3 and 4(4) of the Judicature (Small Claims Procedure) Rules 2011), seeking for orders that:

- 20 1. The judgment and orders delivered by His Worship Kirya Martins on the 18th day of May 2023 in the Small Claims Court Case No. 0025 of 2023 at the Chief Magistrates Court of Buganda Road at LDC be revised and set aside; - 2. The said judgment and orders be substituted with orders that the Applicant 25 be paid UGX. 4,992,421 (Uganda Shillings Four Million Nine Hundred

- 5 ninety-two thousand four Hundred twenty-one) by the Respondent arising out of rent arrears and water bills; - 3. In the alternative, the file is sent back to the trial magistrate to hear the matter on its merits; and - 4. Costs of the application be provided for. - 10 The Applicant filed an affidavit, the Respondent filed an Affidavit in reply and the Applicant further filed an affidavit in rejoinder. The grounds of the Application are contained in the sworn affidavit of the Applicant but briefly are that: - 1. The Applicant filed Small Claims Case No. 0025 of 2023 in the Chief Magistrates Court of Buganda Road at LDC, seeking for recovery of rent 15 arrears and water bills amounting to Ugx. 4,992,421 (Uganda Shillings Four Million Nine Hundred Ninety-Two Thousand Four Hundred Twenty-One) against the Respondent; - 2. That the trial Magistrate is clothed with jurisdiction to hear and determine a claim under the Judicature (Small Claims Procedure) Rules 2011, however, on the 18th 20 day of May 2023, he failed to exercise his powers vested under the said Rules and in the Landlord and Tenant Act of 2022; and dismissed the claim on grounds that the matter was not a subject for small claims procedure because it contained claims for failure to give termination notice and an ongoing tenancy between the parties; and - 25 3. That the learned Trial Magistrate, in the exercise of his jurisdiction, acted illegally or with material irregularity.

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## 5 **APpearance and representation**

The Applicant was represented by M/s Tumukunde & Co. Advocates while the Respondent was represented by M/s Kabega, Bogezi & Bukenya Advocates. The Applicant filed written submissions while the Respondent did not file any despite the Court directives to do so.

## 10 **Issues for determination**

- 1. Whether the decision of His Worship Kirya Martins in Small Claims Procedure Case No. 25 of 2023 should be revised - 2. What remedies are available to the parties?

## **Determination**

15 **Issue 1: Whether the decision of His Worship Kirya Martins in Small Claims Procedure Case No. 25 of 2023 should be revised.**

The law on revision is provided for under **Section 83 of the Civil Procedure Act Cap 282** and states that:

*"The High Court may call for the record of any case which has been* 20 *determined under this Act by any magistrate's court, and if that Court appears to have-*

- *a) exercised a jurisdiction not vested in law;* - *b) failed to exercise a jurisdiction so vested, or;* - *c) acted in the exercise of its jurisdiction illegally or with material* 25 *irregularity or injustice,*

- 5 *the High Court may revise the case and may make such order in it as it thinks fit; but no such power of revision shall be exercised* - *d) unless the parties shall first be given the opportunity of being heard; or* - *e) where, from lapse of time or other cause, the exercise of that power* 10 *would involve serious hardship to any person."*

It was submitted for the Applicant that the parties entered into a tenancy agreement with the Respondent. The Respondent in his defence admitted to having three-month's rent arrears. The Applicant further submitted that the Learned Trial Magistrate ruled that the matter before him was not subject to

- 15 small claims procedure because it contained claims for failure to give a termination notice and that the tenancy between the parties was still ongoing. Subsequently, the Applicant moved this Honorable Court to revise the decision of the Learned Trial Magistrate under **Section 17(1) of the Judicature Act and Rule 4(4) of the Judicature (Small Claims Procedure) Rules, 2011**. - 20 In respect to the tenancy agreement, **Section 29 of the Landlord and Tenant Act 2022** is to the effect that:

*"(1) Where a tenant defaults in paying rent and is in arrears, the landlord may apply to a court of competent jurisdiction to recover the rent owed.*

*(2) Where the default in subsection (1) continues for a period of more than* 25 *thirty days, the landlord shall be entitled to re-enter the premises and take possession in the presence of an area local council official and the police.*

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5 *(3) The landlord's right of re-entry in subsection (2) shall not prejudice the landlord's right to recover the rent arrears.*

> *(4) The Judicature (Small Claims Procedure) Rules, 2011 apply to any application to recover rent arrears under this section but only if the claim does not exceed the amount specified for small claims in the Judicature*

10 *(Small Claims Procedure) Rules, 2011.*

**Rule 5 of the Judicature (Small Claims Procedure) Rules, 2011** provides for the jurisdiction of the Small Claims Procedure in the following circumstances:

*"(1) A Small Claims Procedure shall cover a case whose subject matter does not exceed ten million Uganda shillings.*

# 15 *(2) These Rules shall not apply to-*

*(a) Family disputes relating to the management of an estate;*

*(b) A claim against the Government;*

*(c) A suit for defamation, malicious prosecution, wrongful imprisonment, wrongful arrest or seduction;*

20 *(d) A petition for divorce, nullification of marriage or separation of spouse;*

*(e) A case involving the validity of a will;*

*(f) A claim in which specific performance is sought without an alternative claim for payment of damages, except in the case of a claim for rendering an account or transferring movable property and disputes arising out of* 25 *tenancy agreements not exceeding ten million Uganda shillings in value; or*

*(g) Contracts of service and contracts for service."*

- 5 In the case of *Mabalaganya vs. Sanga [2005] E. A 152*, it was held that in cases where High Court exercises its powers of revision, its duty entails examination of the record of any proceedings before it for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, order or any other decision and the regularity of any proceedings before the High Court. - 10 In the instant facts, the Claim form attached on the court file explicitly shows the Applicant claimed for a recovery of a total of Ushs. 5,071,421/= from the Respondent, which he did not dispute. It is also not in dispute that the tenancy was still ongoing at the time of default, as per the tenancy agreement. However, it was the Respondent's defense in the Chief Magistrate Court, that he erected a 15 permanent shelter in front of the Applicant's premises at a total cost of Ushs. 20,000,000/=. He submitted that by the time the Applicant repossessed his - premises, he had outstanding arrears of 3 months without refunding the Ushs. 1,100,000 security deposit he had made. The Respondent also mentioned that the Applicant repossessed his premises without any notice. - 20 According to the facts and the law, the claim of Ugx. 4,992,421 in the Small Claims Procedure was within the jurisdiction of the Chief Magistrate Court and subsequently, a case that could have been heard in the Chief Magistrate's Court of Buganda Road at the Law Development Centre. On perusing His Worship Kirya Martins decision, I find that the decision largely relied on the parties' oral - 25 submissions and did not cite and or rely on any relevant law; and did not evaluate any evidence before it.

In my considered opinion, **Section 29 (1) & (4) of the Landlord and Tenant Act 2022** and **Rule** *5(2)(f) of the Judicature (Small Claims Procedure) Rules, 2011*,

5 when read together, the parties' tenancy agreement and recovery of rental arrears are not an exception to Small Claims Procedure. I will respectfully agree with the Applicant's arguments that the Learned Trial Magistrate did not exercise his powers under the relevant laws and thus occasioned a material injustice.

Notwithstanding the above, the Respondent avers that he demands the Applicant

- 10 a total of Ugx. 31,100,000/= as the extra expenses he has incurred and the security month deposit. The Respondent further averred that the Applicant terminated the tenancy agreement without issuing him a two months' notice. In rejoinder, the Applicant averred that according to Clause 5 of the Tenancy Agreement, the Applicant did not consent to the Respondent erecting any of the - 15 structures stated under paragraph 8(iii) of the Affidavit in rejoinder and neither was there an agreement between the parties regarding a refund of all the monies he incurred as expenses.

The Applicant averred in rejoinder, that he did not breach the tenancy agreement because it was the Respondent who voluntarily handed over the keys of the

- 20 premises as he could not raise the rent, thus terminating the tenancy agreement and waiving Clause 10 of the tenancy agreement. The Applicant averred that the Respondent made unauthorized alterations on the premises, causing a lot of damage and as such he was not entitled to the refund of the security deposit of Ugx. 1,100,000/=. - 25 On perusing the tenancy agreement which was attached as annexures "A" & "B" to the affidavit in rejoinder, the parties did not agree on the refund of the expenses incurred by the Respondent in the event that the tenancy was terminated. It was also the agreement of the Parties that the premises would be

5 restored to their original state as was the case at the commencement of the tenancy.

The Respondent did not in any way dispute the Applicant's averments in his affidavit in rejoinder. I am agreement with the Applicant that the Respondent incurred these expenses voluntarily. The changes / renovations made to the

- 10 rental premises were undertaken by the Respondent without the approval of the Applicant. Consequently, the Respondent should be not expecting a refund of the expenses incurred. Secondly, it was a term of the Tenancy Agreement that the premises would be restored to their condition as at the commencement of the Tenancy. This was not done by the Respondent. Lastly, the Respondent cannot be - 15 seen to claim the security deposit when he had rent arears of three (3) months.

According to **Section 29 of the Landlord and Tenant Act, 2022** the Landlord has a right to re-enter his premises and take possession in the presence of an area local council official and the police, after continuous default of the tenant for a period of thirty days and also recover the rent arrears in a competent court with 20 jurisdiction.

In my considered opinion, the Applicant re-entered the premises when the Respondent waived his right to a two months' notice termination of the tenancy agreement by willfully giving the keys back to the Applicant for failure to pay the rent; and his failure to restore the premises to its initial state as at the time of

25 executing the Agreement.

Having reconsidered all evidence on the record of proceedings, I find that the Learned Trial Magistrate's decision was misconceived because there was nothing

5 complex about this matter for it not to have been handled under the Small Claims Procedure in the Chief Magistrate Court.

I therefore find that the Trial Magistrate failed to exercise a jurisdiction so vested in him. This Application is hereby allowed and the decision and orders of the Trial Magistrate are hereby set aside.

- 10 This court finds as below: - a) That the Respondent should pay the outstanding rent arrears and utility bills to the tune of Ugx. 4, 992,421/= to the Applicant; and - b) Costs of this Application are awarded to the Applicant.

# **Signed and dated at Kampala this 5th day of August 2024.**

**Harriet Grace MAGALA**

**Judge**

**Delivered online (ECCMIS) this 8 th day of August 2024.**