[2024] UGHC 989

# **THE REPUBLIC OF UGANDA**

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

### **MISCELLANEOUS CAUSE NO. 01 OF 2023**

# **ADMINISTRATOR GENERAL::::::::::::::::::::::::::: APPLICANT VERSUS**

# **NAKINTU SCOVIA DWORI :::::::::::::::::::::::::::::::::: RESPONDENT RULING**

## **BEFORE: HON. DR. JUSTICE HENRY 1. KAWESA**

This application was brought under **Section 83(a) of the Civil Procedure Rules and Order 52 Rule 1 & 3 of the Civil Procedure Rules SI 71-1**

It seeks orders that:

- 1. The proceedings, judgment and subsequent orders in Busia Chief Magistrate's Court Civil Suit No.0024 of 2011 be revised and declared a nullity for want of jurisdiction; and - 2. Costs to be in the cause.

The application is supported by the affidavit of Isaac Olocho; a State Attorney in the Ministry of Justice and Constitutional Affair/ Attorney General's Chambers Mbale Regional Office. It is opposed by the affidavit of Yunusu Ntazi Kasirivu, a holder of the Respondent's power of attorney.

### **Representation**

The Applicant is represented by M/S Attorney General's Chambers, Mbale Regional Office; and the Respondent is represented by her

Attorney. The parties filed written submissions, which have been considered.

The Respondent informed court that the Respondent's submissions were filed one day outside time and therefore invalid. However, no prejudice was caused to the Respondent; and court shall accordingly consider them notwithstanding.

### Preliminary Objection

The Applicant's Counsel argued that the affidavit in reply was deposed to without authority on ground that the attached power of attorney vested the deponent only with authority to the Respondent in **Miscellaneous Civil Application No.84 of 2018 of the High Court of Uganda at Mbale, Barasa Alex & Anor vs. Nakintu Scovia**. Counsel relied on authorities with a proposition that a power of attorney must be construed strictly; and that an affidavit filed on behalf of another without authority is fatally defective, to wit; **Moris Mugwiri & Anor vs Kyanamira Yosia HCMA; No. 177 of 2022; Frederick Zaabwe vs Orient Bank & Others SCCA No.04 of 2006; Prince Kalemera H. Kirncra vs The Kabaka of Buganda & Anor HCMA No. 1086 of 2017**, among others.

The Respondent's attorney responded by stating that the attached powers of attorney state that he is to represent the donor in Civil Appeal No. 177 of 2018 of the High Court of Uganda at Mbale, Barasa Alex and Anor vs Nakintu Scovia. He seemed to have admitted to the rest of the Applicant's submissions.

It is indeed true that the attached powers of attorney vested the donee to represent the donor in Civil Appeal No. 177 of 2018 of the High Court of Uganda at Mbale, Barasa Alex and Anor vs Nakintu Scovia. The said appeal is different from the instant application.

Nevertheless, considering the proposition that powers of attorney must be construed strictly, the court observes that attached powers of attorney restrict the donee to representing the donor in Civil Appeal No. 177 of 2018 only. For that cause, it concludes that the deponent lacked the power/authority to depose to it. Consequently, it strikes it out.

I will now determine the merits of the application ex parte.

The issue for determination is:

Whether the trial Magistrate exercised a jurisdiction not vested in her in law?

It is the Respondent's evidence that Civil Suit No.24 of 2011 was tried and disposed of by a Grade One Magistrate, but the subject matter was Ugx.300,000,000/- well beyond her pecuniary jurisdiction.

The evidence that the subject matter was valued at Ugx.300,000,000 is a copy of a taxed bill of costs attached to the affidavit in support as annexure "A" and nothing else.

Item two shows that the Respondent/Plaintiff is Counsel sought for instruction fees to prosecute a case for property "worth over 300,000,000". However, the item was taxed and allowed at Ugx.5,000,000 only, which implies that the subject matter was not taken to be "worth over 300,000,000". If that wasn't the case, then the taxed figure would certainly be higher than Ugx.5,000 000 in view of the **Advocates (Remuneration and Taxation of Costs) Regulations S.1 123 of 1982, as amended**.

Accordingly, I am unable to rely on annexure "A" alone to infer that the subject matter of Civil Suit No.24 of 2011 was Ugx. 300,000,000 /- or beyond the pecuniary jurisdiction of the lower court. The court further to look at the parties' pleadings on the record of the said suit, but still found no material to assist it.

It suffices to state that the judgment of Civil Suit No.24 of 201 1 was delivered on the 12th of November, 2014. Therefore, almost 10 years had passed when this application was filed. There is no indication that the Applicant ever raised the subject of jurisdiction during the hearing of the suit, despite being represented and filed a written statement of defence submitting to the jurisdiction of the lower court.

In the circumstances and absence of cogent evidence, this court is unable to conclude that the subject matter of Civil Suit No.24 of 201 1 goes beyond the pecuniary jurisdiction of a Grade One Magistrate.

It is also my considered view that this application is an afterthought and has no merit.

It is dismissed with ach party ordered to bear its own costs.

I so order.

Delivered at Tororo this .2024

In the presence of: