Senteza & Another v Tibesigwa (Civil Revision 3 of 2013) [2024] UGHC 383 (29 May 2024)

## IN THE HIGH COURT OF UGANDA AT MBARARA THE REPUBLIC OF UGANDA HCT-05-CV-CR-0003-2013

(Arising from MBR-00-CV-MA-0028-2012) (All arising from MBR-00-CV-CS-0022-2012)

### 1. JIMMY SENTEZA

#### 2. REGINA SENTEZA VERSUS APPLICANTS

ISSA TIBESIGWA RESPONDENT

BEFORE: HON LADY JUSTICE JOYCE KAVUMA

## RULING

Introduction.

[] This was an application for revision of the ruling and orders of the learned Chief Magistrate sitting at the Chief Magistrate's Court of Mbarara at Mbarara in MBR-00-CV-MA-0028-2012. It was brought by way of Notice of Motion under Order 46 of the Civil Procedure Rules, SI 71-1, Sections 83 and 98 of the Civil Procedure Act, Cap 71 and Article 44(c) of the 1995 Constitution.

## Background.

[2] The grounds upon which the application was based were as follows:

- 1. An order doth issue staying execution of the ruling and orders of HW Phillip Odoki, in Mbarara Chief Magistrate's Court Misc. Appn. No. 0028 of 2012 arising from Civil Suit no. 022 of 2012 proceeding ex parte and granting the Respondent's application in the absence of the Applicants and their counsel. - 2. The High Court revises orders and ruling in Mbarara Chief Magistrate's Court Misc. Appn. No. 0028 of 2012 arising from Civil Suit no. 22 of 2012.

3. The ruling and orders of HW Phillip Odoki, in Mbarara Chief Magistrate's Court Misc. Appn. No. 0028 of 2012 arising from Civil Suit no. 022 of 2012 proceeding ex parte and granting the Respondent's application in absence of the Applicants and their counsel be revised/ set aside and Misc. Appn. No. 0028 of 2012 be set down for hearing of the Applicants and the Respondent on its merits.

$[3]$ The application was supported by an affidavit deposed to by Mr. Mwene-Kahima Mwesigye and opposed by an affidavit sworn by Mr. Issa Tibesigwa the Respondent. I have taken cognizance of the content of both affidavits in coming to my decision.

#### Representation.

The Applicants were represented by M/s Mwene-Kahima, $[4]$ Mwebesa & Co. Advocates while the Respondent was represented by M/s Ntambirweki Kandeebe & Co. Advocates. Both counsel in the matter filed submissions in the matter which I have considered.

#### Analysis and decision of court.

Counsel for the Applicants raised the following issues for $[5]$ resolution by this court;

- 1. Whether this is not a proper case for grant of the orders of revision. - 2. What are the remedies in the circumstances?

# Issue 1: Whether this is not a proper case for grant of the orders of revision.

Having read the affidavits both in support and opposition of the $[6]$ instant application and submissions of both counsel, I found that the gravamen of the instant application lay in the fact that the Applicants complained of the learned trial Chief Magistrate's action of hearing and deciding MBR-00-CV-MA-0028-2012 in their absence.

The Applicants contended that on the day that the application was heard and decided had been gazetted by the Judiciary as a public holiday in observance of the Pro-Bono Day of the Uganda Law Society. That per a notice sent by the then Learned Acting Chief Registrar, all matters that were falling on that day were supposed to be adjourned.

[71 The jurisdiction of this court to revise decisions of the subordinate courts is provided for under Section 83 of the Civil Procedure Act. The section provides as follows;

"The High COurt may call for the record of any case which has been determined under this Act by any Magistrates COurt and if that court appears to have;

a) Exercised a jurisdiction not vested in it in law b) Failed to exercise Jurisdiction SO vested ) Acted in the exercse of its jurisdiction ilegally or with material irregularity or injustice, The High court may revise the case arnd may make such order in it as it thinks fit"

In the case of Mabalaganya vs Sanga (2005) E. A 152, it was held that: in cases where High Court exercises its Revisional powers, 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 Magistrate court.

Therefore, decisions are revised when the trial Magistrate fails to exercise his or her Jurisdiction or where he or she acts illegally or with material irregularity or unjustly. In an application for revision, one has to prove that the judicial officer acted without jurisdiction, or failed to exercise the jurisdiction so vested or acted illegally, irregularly unjustly. or

[8] It therefore follows that Section 83 of the Civil Procedure Act can only be invoked when or if it appears that the lower Court acted in the exercise of its jurisdiction illegally or with material irregularity or injustice.

In the case of Matembe vs Yamulonga (1968) 1 EA 643, court held that;

"Revision applies to jurisdiction alone, the irregular or non exercise of it, or the illegal assumption of it. The section is not directed against concusions of law or fact in which the question of jurisdiction is not involved." [Emphasis mine]

In Otto vs Onyut (High Court Civil Revision no. 5 of 2020) this court rightly in my view observed that:

> "Revision, as stated before, relates to jurisdiction, viz., want of jurisdiction, failure to exercise a jurisdiction or illegal or irregular exercise ofjurisdiction, and not against conclusions of law or fact in which the question of jurisdiction is not involved. An application for revision therefore is not a substitute for an appeal. A right of appeal is a substantive right given by statute. There is no rightof revision, It is only a privilege. The ordinary jurisdiction of a court of law

encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has the authority and power to determine. Ifa subordinate court falls intO an error of law which causes it to identify a wrong isSue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, it does not necessarily exceed its authority or powers." Per Mubiru LJ (Emphasis mine]

[91 Ihave examined the instant application including the annexures attached to the affidavits of both parties, the learned trial Chief Magistrate had the jurisdiction to handle MBR-O0-CV-MA-0028-2012 which was properly before him. He made his conclusions and orders within his discretion and jurisdiction.

If at all the learned trial Chief Magistrate errored in handling the application on a day gazetted by the Judiciary as a Pro-Bono Day of the Uganda Law Society. this was an error not falling within the purview of the remedy of revision which is concerned with jurisdiction only.

As rightly observed by the Applicant in their affidavit in support of the instant application under paragraph 4 and 14 the error was one that was apparent on the face of the record and therefore one that the sanme court could remedy in an application for review.

[10] In the upshot, I have not found any jurisdictional aspect in the way the learned trial Chief Magistrate handled, heard and concluded

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MBR-00-CV-MA-0028-2012. The trial Chief Magistrate may have erred in handling the application that day but there is no reason in law or at all for this court to exercise its power to revise the final orders made by him.

The instant application is therefore with no merit and it is therefore dismissed with costs to the Respondent.

Before I leave this matter, considering how long this matter has taken in this court, the learned Deputy Registrar of this court by this ruling is directed to expeditiously forward the lower court files to the trial court for trial and conclusion of the matter.

I so order.

Dated, delivered and signed at Mbarara this 29th day of May 2024.

Joyce Kavuma

Judge