[2025] UGHC 573

# **IN THE HIGH COURT OF UGANDA**

## **SITTING AT MUKONO**

Reportable Miscellaneous Application No. 0012 of 2022 (Arising from Mukono Chief Magistrates Court Civil Suit No. 0044 of 2022) In the matter between

## **GULU UNIVERSITY APPLICANT**

**And**

# **PLANEX GROUP OF COMPANIES LIMITED RESPONDENT**

**Heard: 30th May, 2025. Delivered: 30th May, 2025.**

*Civil Procedure - Revision - an application for revision can lie only on the ground of jurisdiction, failure to exercise it, its wrongful assumption or improper exercise thereof - A court is said to exercise jurisdiction illegally when it assumes a jurisdiction that is not vested in it by law, and is said to exercise jurisdiction with material irregularity when such a court is seized with jurisdiction but does so wrongly through some procedural or evidential defect.*

*Civil Procedure - Pleadings - pleadings should identify the specific facts that support a claim or defence, instead relying on generalities or conclusions - The plaintiff must plead nonconclusory facts establishing or demonstrating the court's jurisdiction - a proper pleading of jurisdictional facts requires presenting specific, factual allegations that allow the court to reasonably infer that either, the defendant resides within the court's jurisdiction, the cause of action arose within the court's jurisdiction, or that the court has specific jurisdiction over the subject matter of the suit - documents attached as annexures to a pleading and referenced in the body of the pleading, are treated as if they were directly included within the main body of the pleading - Courts have always been liberal and generous in interpreting pleadings. The test is whether the Court can discern cognisable legal claims from them, constituted by the time, place, specific sequence of events and end with a prayer for relief.*


*Civil Procedure - geographical/local Jurisdiction - In determining issues of jurisdiction, the court looks at the pleadings alone and any annexures thereto - Where a defendant appears and pleads to the merits without contesting the jurisdiction there is clearly a voluntary submission - a defendant who seeks relief from the court pending an application to challenge jurisdiction submits to the jurisdiction of the court - while personal jurisdiction can be waived by a defendant, both subject matter and territorial jurisdiction cannot - an objection to jurisdiction can be introduced at any stage of the litigation regardless of whether it was brought to the attention of the court at the trial stage.*

# **RULING**

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## **STEPHEN MUBIRU, J.**

## Background;

[1] By way of a specially endorsed plaint, the respondent sued the applicant seeking recovery of shs. 30,000,000/= interest thereon at the rate of 24% per annum from the date of the invoices until payment in full, and the costs of the suit. The applicant was on 1st December, 2022 granted conditional leave to appear and defend the suit, conditioned on the requirement that it deposited shs. 15,000,000/= within fifteen days of that ruling, which requirement it failed to comply with. Consequently, judgment was on 14th September, 2022, entered against it, hence this application.

## The application;

[2] The application by Notice of motion is made under the provisions of sections 33 and 98 of *The Civil Procedure Act*, and Order 52 rule 1, 2 and 3 of *The Civil Procedure Rules*. The applicant seeks have the judgment reviewed and set aside. It is the applicant's case that according to the plaint, the underlying contract was not made in Mukono but rather was to be performed in Hoima District and the payment was to be made in Pallisa District. Hence the cause of action arose in Hoima District. The Magistrate's Court therefore exercised a jurisdiction that was not vested in it by law. The respondent did not state or plead in the plaint and affidavit verifying the plaint any facts disclosing where the contract was made or that the same was made in Mukono. The issue of jurisdiction was raised in the affidavit supporting the application for leave to appear and defend the suit but the Court did not determine it.

#### The affidavit in reply;

[3] In the respondent's affidavit in reply it is contended that it was specifically pleaded in the plaint that the cause of action arose within Mukono Municipality, Goma Division, Nantabulirwa Ward, Namanve Industrial Area. The Court therefore properly exercised its jurisdiction over the matter. Whereas the applicant raised the issue of jurisdiction it its pleadings, it abandoned it during its application for leave to appear and defend. The trial Magistrate had both territorial and pecuniary jurisdiction over the subject matter of the suit. Instead of complying with the conditional grant of leave to appear and defend the suit, the applicant filed a complaint to the Judicial Service Commission against the trial Magistrate.

### The submissions of Counsel for the applicant;

[4] Counsel for the applicant submitted that the issue of jurisdiction was raised before the Magistrate; in the motion and the affidavit supporting it. The Court's hands were tied until the issue of jurisdiction was issued. The Court found that there was no bona fide triable issue. The Court should have gone ahead to consider the issue of jurisdiction even though it was not addressees in the written submissions. The contract was to be performed in Hoima. From reading the plaint, the magistrate would not know the date of the contract and the place where it was executed. It is said to have been an oral contract but the applicant denied it. The applicant is a public university and the procedures of procurement were not followed. It must have been sometime during or after the month of May when three cheques were issued. They read Pallisa Branch, not Hoima. The pleading by inference is not proper. The date of the contract and the place where it was executed was never pleaded.

### The submissions of Counsel for the respondent;

[5] Counsel for the respondent, submitted that the applicant approached the respondent at Namanve Industrial Area when interest in the feeds was expressed; the agreement and the delivery happened in Namanve. There is a geographical connection to the jurisdiction of the Chief Magistrate's Court of Mukono by the place of the contract and part of the performance. They applicants are abusing Court process. Although they pleaded lack of jurisdiction, by their written submissions and the applicants abandoned the issue of jurisdiction in their submissions. They waived the objection by delving in the substance of the application for leave to appear and defend the suit. The application was allowed on condition that they deposit shs. 15,000,000/= in Court within 15 days which they failed to do. Judgment was entered against them and now only awaits execution once this application is disposed of.

#### The decision;

- [6] Under section 83 of *The Civil Procedure Act*, this Court may call for the record of any case which has been determined under the Act by any magistrate's court, and if that court appears to have; - (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, this Court may, after hearing the parties, revise the case and may make such order in it as it thinks fit, except where, from lapse of time or other cause, the exercise of that power would involve serious hardship to any person. The purpose of this revisionary jurisdiction is supervisory in nature, and its object is the proper administration of justice. The High Court in exercise of its power of revision is concerned with due process and not whether the court below has made the correct findings of fact or law. - [7] An application for revision can lie only on the ground of jurisdiction, and the High Court in exercise of its revisional jurisdiction is not a court of appeal on a question of law or fact. This provision applies to jurisdiction alone, the irregular exercise of

or non-exercise of it or the illegal assumption of it (see *Matemba v. Yamulinga [1968] EA 643*). This Court will not interfere under this section merely because the court below came to an erroneous decision on a question of fact or of law. This Court will not in its revisional jurisdiction consider the merits of the case however erroneous the decision of the court below is on an issue of law or of fact but will interfere only to see that requirements of law have been properly followed by the court whose order is the subject of revision.

- [8] Where a court has jurisdiction to determine a question and it determines that question, it cannot be said that it has acted illegally or with material irregularity because it has come to an erroneous decision on a question of fact or even of law. A court is said to exercise jurisdiction illegally when it assumes a jurisdiction that is not vested in it by law, and is said to exercise jurisdiction with material irregularity when such a court is seized with jurisdiction but does so wrongly through some procedural or evidential defect. - [9] Non jurisdictional errors are not subject to the power of revision. This power of the High Court is only available where the court below has exceeded its jurisdiction, refrained from exercising a jurisdiction vested in it, or it acted illegally or with material irregularity in the exercise of that jurisdiction, namely committed such an error of procedure and the error had resulted in failure of justice. Within those confines, an application for revision entails a re-examination or careful review, for correction or improvement, of a decision of a magistrate's court, after satisfying oneself as to the correctness, legality or propriety of any finding, order or any other decision and the regularity of any proceedings of a magistrate's court. It is a wide power exercisable in any proceedings in which it appears that an error material to the merits of the case or involving a miscarriage of justice occurred, except if from lapse of time or other cause, the exercise of that power would involve serious hardship to some person.

- [10] Acting illegally or with material irregularity in the exercise of jurisdiction comes after the Court has validly assumed jurisdiction. After assuming such a jurisdiction which is vested in the Court, the Court acts illegally or with material irregularity when there is exercise of jurisdiction which the Court possesses, but the exercise has been in a manner which is illegal or materially irregular i.e., by committing some error of procedure in which the question of jurisdiction is involved, in the course of the trial which is material in that it may have affected the ultimate decision. - [11] The power of revision is discretionary; it will not be exercised where, from lapse of time or other cause, it would involve serious hardship to any person. An application for revision should be filed within a reasonable time from the date of the Order which the applicant seeks to have quashed. What is reasonable time and what will constitute undue delay will depend upon the facts of each particular case. The High Court is not bound to interfere merely because the conditions are satisfied and therefore the power of revision will ordinarily not be exercised except where it would finally dispose of the suit or other proceeding, or if allowed to stand, the order would occasion a failure to justice or cause irreparable injury to the applicant. - [12] Where it would be practically unjust to give a remedy either because the party has, by his or her conduct done that which might fairly be regarded as equal to a waiver of it, or where by his or her conduct and neglect he or she has, though perhaps not waiving that remedy, yet put the other party in a situation in which it, would not be reasonable to place him or her if the remedy were afterwards to be asserted, in either of these cases lapse of time and delay are most material. - [13] Within those confines, an application for revision entails a re-examination or careful review, for correction or improvement, of a decision of a magistrate's court, after satisfying oneself as to the correctness, legality or propriety of any finding, order or any other decision and the regularity of any proceedings of a magistrate's court. It is a wide power exercisable in any proceedings in which it appears that an error material to the merits of the case or involving a miscarriage of justice occurred,

except if from lapse of time or other cause, the exercise of that power would involve serious hardship to some person.

### i. Propriety of pleading on jurisdiction;

- [14] Pleadings are the court documents that set out each party's case, including all material facts, the grounds of claim and the reliefs sought (if applicable). Order 6 rule 1 (1) of *The Civil Procedure Rules* requires every pleading to contain a brief statement of the material facts on which the party pleading relies for a claim or defence, as the case may be. Pleadings should identify the specific facts that support a claim or defence, instead relying on generalities or conclusions. Some of the material facts which a plaint must contain are those establishing the jurisdiction of the Court. - [15] The plaintiff must plead non-conclusory facts establishing or demonstrating the court's jurisdiction, i.e. the power or authority of the court to hear and decide the case. This is typically established by facts showing that the defendant resides within the court's jurisdiction, the cause of action arose within the court's jurisdiction, or that the court has specific jurisdiction over the subject matter of the suit. Pleading such material facts requires more than labels and conclusions, and a formulaic recitation that the cause of action arose within the jurisdiction of the Court, will not do. - [16] Conclusory statements such as "the cause of action arose within the jurisdiction of this Court," which are mere conclusions without supporting facts, are not sufficient as a pleading of material facts. A proper pleading of jurisdictional facts requires presenting specific, factual allegations that allow the court to reasonably infer that either, the defendant resides within the court's jurisdiction, the cause of action arose within the court's jurisdiction, or that the court has specific jurisdiction over the subject matter of the suit.

- [17] A case such as this, seeking recovery of money arising from a contract of supply of goods on credit, is essentially one for breach of contract. According to section 15 of *The Civil Procedure Act*, in suits arising out of contract, the cause of action arises at any of the following places; (a) the place where the contract was made; (b) the place where the contract was to be performed or its performance completed; (c) the place where in performance of the contract any money to which the suit relates was expressly or impliedly payable. Compliance with the requirements of Order 6 rule 1 (1) of *The Civil Procedure Rules* therefore necessitates pleadings facts showing one of the said three alternatives. - [18] However, in paragraph 4 (a) of the plaint, the respondent pleaded having been approached by the applicant's agent without specifying the place where they met; in paragraphs 4 (b) and (d) of the plaint, the respondent pleaded having received cheques of the applicant without specifying the place where that occurred; in paragraph 4 (c) of the plaint, the respondent pleaded having supplied the applicant with feeds without specifying the place of delivery; in paragraph 4 (g) of the plaint, the respondent pleaded the applicant made a commitment to ay without specifying the place where payment was to be made. In essence when the respondent stated in the final paragraph that "th4 cause of action arose within the jurisdiction of this Court," this was a mere conclusory statement to the extent that alleged jurisdiction without alleging observable facts to support the inference. - [19] In determining issues of jurisdiction, the court looks at the pleadings alone and any annexures thereto (see *Libyan Arab Uganda bank v. Messrs Intrepco Limited [1985] HCB 73*). It is trite that documents attached as annexures to a pleading and referenced in the body of the pleading, are treated as if they were directly included within the main body of the pleading. When a document is attached as an annexure to a pleading, it is treated as if its contents are incorporated into the pleading itself. This allows the court and the opposing party to readily access and consider the document when evaluating the claims or defences presented in the pleading. Although in the body of the plaint the respondent did not specifically disclose the

places where the contract was to be performed, or its performance completed, or where in performance of the contract any money payable under the contract was expressly or impliedly payable, this can be gleaned from the annexures to the plaint.

- [20] Annexure "A2," a gate-pass, shows that delivery of 5,000 Kgs contained in 200 bags was made at the respondent's warehouse at the Namanve Industrial Area on 30th March, 2020. A similar quantity was delivered in similar circumstances on 15th April, 2020 as per Annexure "A3." A similar quantity was delivered in similar circumstances on 2nd June, 2020 as per Annexure "A5." This therefore is a case in which the specific details required, such as dates, locations, or amounts, lacking in the plaint itself, are provided in the annexures thereto. The question then arises as to whether the deficiency in the plaint is cured by providing this information in the annexures. - [21] The law of pleadings has been undergoing changes in a bid to do substantial justice rather than uphold mere technicalities. By virtue of article 126 (2) (e) of *The Constitution of the Republic of Uganda, 1995*) which enjoins courts to administer substantive justice without undue regard to technicalities, a more liberal rule in the interpretation of pleadings is to be preferred, one that will give effect to all the material allegations whenever reasonably possible. For the purpose of determining its effect, all assertions and allegations contained in the plaint as well as in the annexures thereto, are liberally construed with a view to substantial justice between the parties. It is not desirable to place undue emphasis on form rather than the substance of the pleadings. A trial should be neither an obstacle course nor a trap where the technicalities of pleading may be used to inhibit or prevent a trial of the action on its merits. - [22] Courts are not expected to construe pleadings with such meticulous care or in such a hyper-technical manner so as to result in genuine claims being defeated on trivial grounds. Courts have always been liberal and generous in interpreting pleadings. The test is whether the Court can discern cognisable legal claims from them, constituted by the time, place, specific sequence of events and end with a prayer for relief. Pleadings tainted by inartful drafting, emotional language, legal jargon, tangents, and less direct or incomprehensible assertions of fact, may still yield to that test. To the extent possible, allegations in pleadings should be read only for substance, disregarding poor style, vocabulary, syntax, superfluities, and the like. To the extent possible, courts should restructure a pleading to invoke the most appropriate legal bases suggested by the allegations.

- [23] However, there are obvious limits upon the extent to which courts will liberally construe pleadings, such as will be the case where the allegations of a pleading are so indefinite that the precise nature of the claim or defence is not apparent. Pleadings manifesting a dilution of factual allegations needed to state a claim, where the factual basis of a legal claim or defence is presented in a vague, ambiguous, or incomplete manner, making it difficult for the opposing party to understand the case against them and for the court to determine the relevant issues, will not suffice. Pleading rambling and conclusory entangled facts, with extraneous material, unsupported assertions, and fallacious arguments may justify striking out of a plaint. Similarly, threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. A pleading that references laws under which the allegations provide no relief may also be subject to striking out. - [24] According to section 15 (a) and (c) of *The Civil Procedure Act* and section 215 (a) and (c) of *The Magistrates Courts Act*, every suit should be instituted in a court within the local limits of whose jurisdiction the defendant at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, or the cause of action, wholly or in part, arises. In addition, section 208 of *The Magistrates Courts Act* provides that every suit instituted in a magistrate's court should be instituted in the court of the lowest grade competent to try and determine it.

- [25] Local jurisdiction is the power of the court with reference to the territory within which it is to be exercised. The territorial jurisdiction of magistrates' courts is delimited by way of statutory instruments issued from time to time by the Minister of Justice, after consultation with the Chief Justice, in accordance with section 2 of *The Magistrates Courts Act*. According to section 6 of *The Magistrates Courts Act*, every magistrate appointed under the Act is deemed to have been appointed to, and have jurisdiction in, each and every magisterial area but may be assigned to any particular magisterial area or to a part of any magisterial area by the Chief Justice. - [26] According to section 3 of *The Magistrates Courts Act*, within each magisterial area, magistrates' courts are designated and are known as the magistrate's court for the area in respect of which they have jurisdiction. The purpose of these provisions is to ensure that the authority of the various magistrates is limited to certain well defined territory. Item 117 of *The Magistrates Courts (Magisterial Areas and Magistrates Courts) Instrument* designates Mukono Magisterial area as comprising; Mukono Municipal Court, Goma in Mukono Municipality, Nakifuma in Nakifuma County, Koome Islands in Mukono County South, Nama in Mukono County North, Nakisunga in Mukono County South. The respondent has the physical address of its warehouse listed as Plot 813, Kyagwe Road, Namanve Industrial Park, Mukono. Geographically, although the larger portion of Namanve Industrial Area is located within Kira Municipality, in Wakiso District portions of it are located in Mukono Municipality, in Mukono District. The respondent's physical address of its warehouse happens to be located within Mukono District. - [27] The liberal standard applied in construing pleadings does not mean courts are abandoning entirely the principle that requires pleading the specific material facts. Instead, they are seeking a balance between fairness to the plaintiff and ensuring that frivolous or insufficiently supported claims are weeded out early in the litigation process. In the instant case, the delivery notes were not only attached to the plaint, but they were also incorporated by reference, in the body of the plaint, and

therefore were integral to the plaint. A copy of a written instrument that is attached to and referenced in a pleading is a part of the pleading for all purposes. For that reason, it is proper for the Court to consider the content of the annexures in deciding whether or not the plaint made assertions of fact which established or demonstrated the court's jurisdiction. Having done so, it is then evident that the plaint disclosed breach of contract by the applicant, as the cause of action.

## ii. Timing of the objection on account of lack of jurisdiction;

- [28] In general, objections to a court's jurisdiction should be raised at the earliest possible stage of the proceedings, ideally before or during the initial appearance or within a specified timeframe for preliminary objections. According to Order 9 rule 3 (1) (g) of *The Civil Procedure Rules*, a defendant who wishes to dispute the jurisdiction of the court in the proceedings on any ground, is required to give notice of intention to defend the proceedings and, within the time limited for service of a defence, apply to the court for a declaration that in the circumstances of the case the court has no jurisdiction over the defendant in respect of the subject matter of the claim or the relief or remedy sought in the suit. - [29] Filing and service (on the plaintiff) of a notice of intention to defend the proceedings will not be construed as a submission to jurisdiction since the defendant is clearly reserving its right to challenge jurisdiction. According to rule 6 thereof, except where the defendant makes such an application, the filing of a defence by a defendant, unless the defence is withdrawn by leave of the court, is treated as a submission by the defendant to the jurisdiction of the court in the proceedings. - [30] When a party does not comply with this procedure and instead chooses to defend on the substance of the suit, that conduct implies acceptance of the court's power to hear the matter. Where a defendant appears and pleads to the merits without contesting the jurisdiction there is clearly a voluntary submission. The same is the case where a defendant does indeed contest the jurisdiction but nevertheless

proceeds further to plead to the merits, or agrees to a consent order dismissing the claims and cross claims, or where he fails to appear in proceedings at first instance but appeals on the merits.

- [31] A party who voluntarily appears or participates in proceedings is considered by the common law to have accepted an offer from the opposing party who commenced the proceedings to accept the jurisdiction and be bound by its judgment. The touchstone of submission to jurisdiction on this basis is therefore consent, although the question of whether consent has been given is to be judged objective (see *Golden Endurance Shipping SA v. RMA Watanya SA [2016] EWHC 2110 at para. 28*). - [32] In order to establish a waiver, it must be shown that the party alleged to have waived his or her objection has taken some step which is only necessary or only useful if the objection has been actually waived, or if the objection has never been entertained at all (see *Williams & Glyn's Bank Plc. v. Astro Dinamico Compania Naviera S. A. [1984] 1 W. L. R. 438*). Objections to jurisdiction may be waived, either expressly or tacitly, for example, by entering a general appearance, or by acts or conduct inconsistent with a special appearance entered solely for the purpose of raising a jurisdictional issue (see for example *Mighell v. Sultan of Johore, [1894] 1 Q. B. 149*; *Kahan v. Pakistan Federation [1951] 2 K. B. 1003; [1951] 2 TLR 697* and *NML Capital Ltd v Republic of Argentina [2011] UKSC 31*). - [33] The general requirements for waiver are relatively well-established and do not require detailed discussion. In essence, waiver can take the form of waiver by estoppel or waiver by election. The former refers to the situation where one party has (a) made a clear and unequivocal representation and (b) the other party has relied on that representation to his detriment. If both of these requirements are met it would be inequitable to allow the representing party to rely on his strict legal rights and therefore, he has waived those legal rights by estoppel.

- [34] A representation does not need to take any specified form: it can be express or implied, and it can be by words or conduct. Mere silence or inaction will not normally suffice because it is equivocal. In certain exceptional circumstances, particularly where there is a duty to speak, mere silence may amount to a representation, or where one would factually have been expected to speak up, and therefore the silence becomes "significant" (see *Greenwood (Pauper) v. Martins Bank Limited [1933] AC 51*). If the court considers a defendant's conduct sufficiently inconsistent with the later assertion of the defence of lack of jurisdiction, such conduct will be declared a waiver. Under the constructive waiver doctrine, a party that engages in an activity that demonstrates its submission to the Court's jurisdiction waives its objection to suits brought before that Court. Seen in this light, it would generally be the case that filing a substantive response to the claim without raising the objection, would be inconsistent with any subsequent position that the court lacks jurisdiction. - [35] A defendant who seeks relief from the court pending an application to challenge jurisdiction submits to the jurisdiction of the court (see A*elf MSN 242, LLC (a Puerto Rico limited liability company) v. De Surinaamse Luchtvaart Maatschappij N. V. D. B. A. Surinam Airways [2021] EWHC 3482 (Comm); [2021] WLR(D) 643]*). A useful test is whether a disinterested bystander with knowledge of the case, would regard the acts of the defendant (or his advocate) as inconsistent with the making and maintaining of a challenge to the validity of the writ or to the jurisdiction (see *Sage v. Double A Hydraulics Limited [1992] TLR 165*). The *Sage case* was one which might be called a common law waiver; the doing of an act inconsistent with maintaining a challenge to the jurisdiction. - [36] Such a waiver must clearly convey to the claimant and the court that the defendant is unequivocally renouncing his right to challenge the jurisdiction, and the application of a bystander test is plainly apt. For example, in *Deutsche Bank AG London Branch v. Petromena ASA [2015] 1 WLR 4225*), applying the disinterested bystander test, the court regarded the issue of a summons seeking an extension

of time, in the period when there was no extant challenge to the jurisdiction, as an act inconsistent with the maintenance of such a challenge. The challenge to the validity of the writ therefore failed.

[37] The test to be applied in determining whether any particular conduct amounts to a submission to the jurisdiction was considered in *SMAY Investments Ltd. v. Sachdev [2003] 1WLR 1973* at p.1976, thus;

> A person voluntarily submits to the jurisdiction of the Court if he voluntarily recognises, or has voluntarily recognised, that the Court has jurisdiction to hear and determine the claim which is the subject matter of the relevant proceedings. In particular, he makes a voluntary submission to the jurisdiction if he takes a step in the proceedings which in all the circumstances amounts to a recognition of the Court's jurisdiction in respect of the claim which is the subject matter of those proceedings. The effect of a party's submission to the jurisdiction is that he is precluded thereafter from objecting to the Court exercising its jurisdiction in respect of such claim. Whether any particular matter, for example an application to the Court, amounts to a voluntary submission to the jurisdiction must depend upon the circumstances of the particular case.

- [38] There will be an effective waiver, or a submission to the jurisdiction, only where the step relied upon as a submission to the jurisdiction, cannot be explained, except on the assumption that the party in question accepts that the court should be given jurisdiction. If the step relied upon, although consistent with the acceptance of jurisdiction, is a step which can be explained also because it was necessary or useful for some purpose other than acceptance of the jurisdiction, there will be no submission. The representation derived from the conduct of the party said to have submitted must be capable of only one meaning. - [39] A party's submission to jurisdiction is evinced by its unconditional filing of a defence (see *Rashida Abdul Karim Hanali and another v. Suleimani Adrisi, H. C. Misc. Civil Application No. 9 of 2017* and *Miruvor Ltd v. Panama-Globe Steamer*

*Lines SA [2007] 1 HKLRD 804*), a failure to file a prompt jurisdictional challenge, lack of protest against the court assuming jurisdiction over the parties, or if an unequivocal step has been taken which cannot be interpreted as consistent with a challenge to the jurisdiction, particularly where there has been no reservation of rights such as filing or contesting applications in the suit, e.g. contesting a summary judgment application and filing a striking out application. Submission is established where a party has taken a clear and unequivocal step that is incompatible with the position that the High Court of Uganda does not have jurisdiction.

- [40] The timing of the conduct alleged to constitute a submission to the Court's jurisdiction is important. If the conduct took place before an application contesting the Court's jurisdiction was intimated or issued, then it is more likely to be an unequivocal submission to the jurisdiction; if the relevant conduct occurred whilst there was a pending application to contest the Court's jurisdiction or a reservation of the right to do so, then it is unlikely, perhaps very unlikely, to constitute a submission to the jurisdiction (see *Zumax Nigeria Ltd v. First City Monument plc [2016] EWCA Civ 567; [2016] 1 CLC 953, para. 44-51*). Conduct motivated to forestall the entry of or the setting aside of a default judgment is not inconsistent with an intention to contest jurisdiction (see *Winkler and another v. Shamoon [2016] EWHC 217 (Ch), para. 48; [2016] WLR (D) 101*). - [41] A party can waive aspects of a court's jurisdiction, meaning they voluntarily agree to the court's authority over a case even if it might not otherwise have jurisdiction. A waiver of jurisdictional defences occurs when a party voluntarily gives up their right to challenge the jurisdiction of a court over themselves or their case. This can happen through actions such as failing to object to the court's jurisdiction in a timely manner or actively participating in the proceedings without raising the jurisdictional issue. Specifically, a party can waive personal jurisdiction, which refers to the court's authority over a specific person or entity. They can also waive temporal jurisdiction.

- [42] Courts as well acknowledge that unlike subject matter jurisdiction which cannot be conferred by consent of the parties, by selection of venue, territorial jurisdiction can be conferred by the consent of parties (see for example *People v. Jackson (1983)150 Cal. App. 3d Supp. 1, 198 Cal. Rptr. 135*). The classifications arrived at by the courts do not appear to be wholly consistent. Although subject-matter jurisdiction cannot be conferred on a court by consent of the parties, some courts have held that territorial jurisdiction can be so conferred (see *People v. Tabucchi (1976) 64 Cal. App. 3d 133, 141 [134 Cal. Rptr. 245*). Since venue is related to the convenience of the parties, it may generally be waived by consent. Some courts have, to the contrary, held that parties cannot alter any court's subject territorial jurisdiction. Hence, neither territorial jurisdiction nor subject matter jurisdiction can be "waived" by the defendant (see *State v. De La Sancha Cobos, 211 N. C. App. at 542, 711 S. E.2d*). Parties though cannot, through waiver, give a court the authority to hear a case that is outside of its general area of competence. Waiving jurisdictional defences often means that the party cannot later challenge the court's authority in subsequent appeals or motions. - [43] While personal jurisdiction can be waived by a defendant, both subject matter and territorial jurisdiction cannot. Subject matter jurisdiction refers to the court's power to hear a particular type of case, while territorial jurisdiction refers to the court's power over a specific geographical area. These types of jurisdiction are considered fundamental and cannot be waived by a defendant's consent or inaction Subject to aspects that can be waived, the defendant may assert a lack of jurisdiction at any time. An objection to jurisdiction can be introduced at any stage of the litigation regardless of whether it was brought to the attention of the court at the trial stage (see *Uganda Railways Corporation v. Ekwaru D. O and 5104 others, S. C. Civil Appeal No. 7 of 2019*). An objection to jurisdiction can therefore be entertained by the court at any time or even on appeal. The consequence of this is to preserve the non-waivable aspects of objections to a lack of jurisdiction apparent on the face of the record, notwithstanding a failure to present those objections in a timely fashion. Generally, a court may raise the non-waivable aspects of its jurisdiction

*sua sponte*, that is, they are never waived and can be raised by the Court even if the litigants did not present the issue for consideration.

[44] In the instant case, by filing a defence to the suit without complying with the requirements of Order 9 rule 3 (1) (g) of *The Civil Procedure Rules*, the applicant waived any objection to personal jurisdiction, but could nevertheless still assert lack of subject matter and territorial jurisdiction. The Court however has already found that the Magistrate's Court had both subject matter and territorial jurisdiction over the dispute. This argument thus fails.

## iii. Conclusion.

[45] The applicant has not proved that the Court below in arriving at the decision it did, exercised a jurisdiction not vested in it in law, or failed to exercise a jurisdiction so vested, or acted in the exercise of its jurisdiction illegally or with material irregularity or injustice.

## Final Orders;

[46] The application accordingly fails and is hereby dismissed with costs to the respondent, with directions for the return of the Magistrate's Court's file to that Court for the execution of its decree.

Delivered *ex-tempore* in the presence of the parties and their counsel this 30th day of May, 2025.

…Stephen Mubiru…….. Stephen Mubiru Judge, 30th May, 2025

## Appearances;

For the applicant : M/s Okecha Baranyanga & Co. Advocates. For the respondent : M/s Emoru & Co. Advocates.