Zirungura v Mutebe (Revision Cause No. 23 of 2021) [2022] UGHCLD 232 (30 November 2022)

### **THE REPUBLIC OF UGANDA**

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

#### **(LAND DIVISION)**

#### **REVISION CAUSE No. 23 OF 2021**

### 10 **(ARISING FROM MENGO MISCELLANEOUS APPLICATION NO. 40 OF 2020)**

### **(ARISING FROM CIVIL SUIT NO. 10 OF 2020)**

15 **ZIRUNGURA JACKSON…………………………………………………………APPLICANT**

**VS**

**MUTEBE GEORGE…….……………………………………………………... RESPONDENT**

### **Before: Hon. Lady Justice Olive Kazaarwe Mukwaya**

### **RULING**

- 25 The Applicant, Zirungura Jackson brought this motion under Section 83 & 98 of the Civil Procedure Act and Order 52 r 1, 2 and 3 of the Civil Procedure Rules seeking for; - a) An order calling for the record in Mengo Miscellaneous Application No. 40 of 2020. - b) An order revising the orders of Mengo Chief Magistrate Her Worship Aciro Joan, - 30 directing the Applicant to furnish security for costs of UGX. 5,000,000/= within 30 days from the date of delivery of the ruling. - c) Costs be provided for.

### **Grounds for the application**

35 In the Applicant's view, the amount imposed by the Court as security for costs is unreasonable and excessively high, given that the value of the subject matter is approximately UGX 10,000,000/=. And secondly, the Chief Magistrate did not take into account the factors that are to be considered in an application for security for costs and therefore acted with material irregularity and injustice. In her ruling, the learned Chief Magistrate did not consider whether the suit was frivolous or vexatious. Instead, she found that since the Applicant did not disclose the properties which he owned in Kampala and Kisoro, security for costs were justified.

# **Respondent's reply**

Naturally, the Respondent, Mr. Mutebe George is opposed to the application. He averred that the learned Chief Magistrate was alive to the law on the grant of security for costs. She based her decision on the fact that the suit was frivolous and vexatious. The 10 Applicant, had no place of abode within the jurisdiction of the Court. And further, the Applicant's claim is a portion of land measuring 3ft x 100ft which land is insufficient for anything productive. The Respondent was advised by his lawyers that an injustice or irregularity, other than in the exercise of jurisdiction by a subordinate court must be remedied by appeal rather than revision. Therefore, the Respondent prayed for dismissal

15 of this application.

# **Representation**

The Applicant was represented by Mr. Himbiza Godfrey from M/S OSH Advocates while the Respondent was represented by Mr. Gilbert Nuwagaba from M/S KGN Advocates.

Both Counsel filed written submissions which I have duly considered.

## **Issues**

- **1. Whether these revision proceedings are properly before this Court?**

25 **2. Whether the orders of the learned Chief Magistrate ought to be revised?**

## **Resolution**

**Issue 1**

**Whether these revision proceedings are properly before this Court?**

**Section 83 of the Civil Procedure Act** provides that the High Court may call for the record of any case which has been determined by any subordinate court and may revise the case if that court appears to have done any or one of three things;

- *a. Exercised a jurisdiction not vested in it by law;* - 5 *b. Failure to exercise a jurisdiction vested in that court;* - *c. Acted in the exercise of its jurisdiction illegally or with material irregularity or injustice.*

In this particular instance, the complaint is that the court acted in the exercise of its 10 jurisdiction illegally or with material irregularity or injustice. The Respondent's advocate advised that the Applicant ought to have filed an appeal instead since the learned Chief Magistrate was clothed with the jurisdiction to act.

I must disagree. The law is clear that revision proceedings apply beyond questions of 15 jurisdiction or lack thereof and extend to the nature of exercise of that jurisdiction. Specifically, the High Court is enjoined to interrogate the question of whether the jurisdiction of the subordinate court was exercised illegally (illegitimately) or with material irregularity (wrong doing). This is the nature of the application before this court and I find that these proceedings are properly before this court.

# **Issue 2**

# **Whether the order of the learned Chief Magistrate ought to be revised?**

The question for revision is whether the learned Chief Magistrate ought to have awarded security for costs as she did in the ongoing suit between the parties?

# 25 **Order 26 rule 1 of the Civil Procedure Rules** provides;

*The court may if it deems fit order a plaintiff in any suit to give security for the payment of all costs incurred by the defendant.*

In the case of **Paul Nyamarere & 3 Ors Vs Dison Okumu & 6 Ors SCCA No.35 of 2020**,

30 Justice Arach-Amoko JSC while dealing with an application for security for costs held that;

*"The purpose of an order for security for costs is to protect the Defendant from situations in which he is dragged to Court and made to lose even the costs of litigation. It is also meant to prevent frivolous and useless litigation. Courts are however required to ensure that the parties with just claims are not prevented from accessing the seat of justice for*

5 *their claims to be determined"*

I find it is of utmost relevance and importance that the nature of the suit before the lower court is a land matter. The learned Chief Magistrate in allowing the security for costs was persuaded that because of a number of reasons, the plaintiff's suit was frivolous and 10 vexatious. The reasons stated were that;

- i. The plaintiff failed to attach proof that he owns properties in both Kisoro District and Kampala District. - ii. The plaintiff failed to disclose the value of the subject matter (of the suit property). - 15 iii. The plaintiff failed to disclose the name and description of his residence.

The learned Chief Magistrate finally stated that the defendant's defence has chances of success and went on to grant security for the defendant's costs.

In my view, there were material irregularities in this decision. Since the subject matter of 20 the suit was recovery of land, the court, stating that the plaintiff had failed to prove that he owns property within Kampala District, where the suit land was situated, amounted to a strong insinuation that the plaintiff had no cause of action. The duty of the court in land matters is to hear the evidence from both sides and then make a decision on whether the plaintiff has a valid claim. I find that it is a material irregularity in the proceedings, 25 amounting to injustice, for the court to have declared, that the plaintiff had no proof of ownership of properties in Kampala District.

The other two considerations by the court; (ii) &(iii) related to the propriety of the plaint under Order 7 of the Civil Procedure Rules. It was irregular, in my view, for the court to 30 base its decision on whether to grant security for costs on the impropriety of the plaint. If the court was convinced that the plaint was missing some critical particulars, it should have struck out the plaint under Order 7 rule 11 of the CPR or directed an amendment in the interests of justice. Deploying security for the defendant's costs as a penalty for poor drafting of the plaint was irregular in my view.

5 I find that there is an inherent and pervasive danger in Courts entertaining applications for security for costs in recovery of land matters. To arrive at a decision on whether to grant security for costs, the Courts must interrogate the question of whether the suit is frivolous or vexatious. In land matters, such a question can only be judiciously handled by the hearing of the suit. Slapping the Plaintiff with an order for security for the 10 defendant's costs, and thereby imposing an arbitrary cash payment as a prerequisite to being heard, is in essence an act of grave injustice. In my view, by taking such a step, the Court has already taken sides and lost its impartiality.

Again in land matters, the parties before Court are duty bound to establish their claim 15 before the Court through adducing of evidence. If it turns out that the claim lacked merit, there is a bouquet of remedies that is available for the party who has been dragged through the unmeritorious process of defending the suit. But for the lower Court to loudly imply in advance that the Plaintiff's suit for recovery of land lacks merit and therefore security for costs are warranted, is in my view an act of injustice requiring revision of the

20 Court's order.

**In conclusion, I allow the application with costs and order as follows;**

- **1. The order by the learned Chief Magistrate for security for costs is hereby revised and set aside.** - 25 **2. File forwarded back to the Chief Magistrate's court for conclusion of the suit.**

**Olive Kazaarwe Mukwaya JUDGE**

…………………………….

**30th** 30 **November 2022**

**Delivered by email to Counsel for the parties.**