[2024] UGHC 766

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MBARARA HCT-05-CV-CR-0010-2023

(Arising from MBR-00-CV-MA-0177-2022) (All arising from MBR-00-CV-CS-0046-2022)

# **MUKUNDANE JOSEPHINE ::::::::::::::::::::::::::::::::::::** VERSUS

## PLINTLIFE TECHNOLOGIES LIMITED ::::::::::::::::: RESPONDENT

*(Being an application for revision of the ruling of Her Worship Ainembabazi* Doreen, Magistrate Grade One delivered 9^th November 2022 while sitting at the *Mbarara Chief Magistrate's Court at Mbarara)*

# **BEFORE:** HON LADY JUSTICE JOYCE KAVUMA **RULING**

### introduction.

[1] By a notice of motion dated 2^nd February 2023. Mukundane Josephine (hereinafter referred to as the Applicant), sought for orders that a revision order be issued by this court against the judgment, ruling and orders of the trial Magistrate in MBR-00-CV-CS-0046-2022 and MBR-00-CV-MA-0177-2022 and provision of costs of the application.

### Background.

**T21** The factual background of the application is ably stated in the body of the application and an affidavit sworn by Mukundane Josephine the Applicant as follows;

The Applicant contends that she was a resident of Rubirizi district where she was approached by a one Katwesigye Andrew with an offer of selling to her solar energy.

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That on 10^th July 2018, the said Katwesigye made her sign an agreement she did not understand for UGX 4,150,000/= for supply and installation of solar and the agreement was to run for a period of twenty-four months. That the said solar was installed and she paid a deposit of UGX 500,000/=. That the agreement was executed in Katunguru, Rubirizi District and at all times she never left Rubirizi district to go to Mbarara for anything.

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That the Respondent who was not in existence at the time of execution of the agreement commenced MBR-00-CV-CS-0046-2022 against the Applicant in the Chief Magistrate's Court of Mbarara at Mbarara which was heard ex parte.

That as a result of the above decision, the Applicant was arrested and committed to civil prison where she alleges that she was forced to pay $UGX$ 3,000,000/= before release. That the Respondent was incorporated on 25^th August 2019 months after the execution of the agreement with Katwesigye.

That the Applicant instructed her lawyers to have the judgment and orders of the court set aside so that the case be heard on merit citing the fact that the court lacked jurisdiction. That the Respondents were served on $30$ ^th August 2022 but only filed a reply on the hearing day of 6^th October 2022.

That an objection was raised during trial in relation to the late filing without leave of court which was overruled without any reason by the trial Magistrate.

In their reply, Mr. Katwesigye Andrew the Respondent's manager $[3]$ who deposed on its behalf stated that the Applicant's affidavit in support was full of falsehoods. That the application had no ground for revision. That the Respondent's place of business was in Mbarara and the same was recorded in the memorandum of understanding between the Applicant and the Respondent the basis of the suit and it was where the contract was concluded.

#### Representation.

The Applicant was represented by M/s Prism Advocates while the $[4]$ Respondent was represented by M/s Tumwebaze Emmanuel Advocates and Solicitors.

Both counsel addressed this court by way of written submissions which I took cognizance of while preparing this ruling.

#### Analysis and decision of the court.

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Two issues were raised by counsel for the Applicant for resolution $[5]$ by this court;

1. Whether revision is applicable here at.

2. If so whether the reliefs prayed for are tenable.

#### Issue 1: Whether revision is applicable here at.

$[6]$ On this issue, counsel for the Applicant simply only made a restatement of the law on revision but made no arguments in support of the issue.

Counsel for the Respondent in that regard prayed for the issue to be disallowed.

#### Resolution.

I acknowledge the lapse in the arguments made by counsel for the $[7]$ Applicant in handling the instant issue wherein he made no arguments at all to the detriment of their client's case.

I am conversant with a now general principle of application by our courts that the administration of justice should normally require that the substance of all disputes should be investigated and decided on their merits and that errors or lapses should not necessarily debar a litigant from the pursuit of his or her rights and unless a lack of adherence to rules renders the consideration of the matter difficult and inoperative. The main purpose of litigation which is, the hearing and determination of disputes, should always be fostered rather than hindered. (See for example Banco Arabe Espanol vs Bank of Uganda [1999] 2 EA 22 $(SCU)$ .

A procedural error, or even a blunder on a point of law, on the part of an advocate, such as a failure to make proper arguments as it was in the instant matter should be taken lightly and with a humane approach and not without sympathy for the parties. (See generally Githere vs Kimungu [1976-1985] 1 EA 101).

In the Kenyan decision of **Phillip Keipto Chemwolo and another vs Augustine Kubende [1986] KLR 495, it was persuasively held that:**

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"Blunders will continue to be made from time to time and it does not follow that because a mistake has been made a party should suffer the penalty of not having his case determined on its merits."

Guided by the above legal positions, I moved to look beyond the **[8]** lapses of counsel for the Applicant in not making proper submissions on this issue and proceeded to determine this matter on its merit considering the pleadings filed before me.

The jurisdiction of this court in matters related to revision is set out under **Section 83** of the Civil Procedure Act. That section provides that;

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

Exercised a jurisdiction not vested in it in law $a)$ Failed $b)$ to *exercise* $\overline{a}$ Jurisdiction vested so c) Acted in the exercise of its jurisdiction illegally or with material irregularity or injustice, The High court may revise the case and may make such order in it as it thinks fit"

The above jurisdiction of this court is exercised by this court examining the record of any proceedings before it for the purpose of satisfying itself of the correctness, legality or propriety of any finding, order or any other decision and the regularity of any proceedings before the Magistrate court. (See Mabalaganya vs Sanga (2005) E. A 152).

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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 or unjustly

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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 nonexercise of it, or the illegal assumption of it. The section is not directed against conclusions of law or fact in which the question of jurisdiction is not involved." [Emphasis mine]

In her notice of motion, the Applicant stated *inter alia* that the **[9]** trial Magistrate did not have jurisdiction to entertain MBR-00-CV-CS-0046-2022 as the cause of action arose in Rubirizi district.

In her affidavit in support of the motion, she deposed that the agreement the subject matter of MBR-00-CV-CS-0046-2022 was executed in Katunguru, Rubirizi District. She annexed the agreement as **annexure "A"** to her affidavit.

[10] According to the trial court record, when the issue of jurisdiction was raised before the learned trial Magistrate, she reserved her ruling on it for the final ruling in MBR-00-CV-MA-0177-2022.

At page 3 of her ruling in MBR-00-CV-MA-0177-2022, the learned trial Magistrate stated as follows;

> "Section 15 of the CPA, provides that the suits not otherwise specified should be instituted where the cause of action arises or where the Defendant resided but a contractual matter's cause of action raises where the contract was made or where the performance was completed or where any money was payable expressly or impliedly.

> I find that the Respondent is located in Mbarara, its place of business where it is alleged that the contract was executed, and for that matter, the case was filed in a court with territorial jurisdiction. The first ground fails."

It was the above finding of the learned trial Magistrate that formed the gravamen of the instant application.

$\Gamma$ In the instant matter, counsel for the Applicant while submitting on the second issue stated that the dispute before the trial Magistrate arose from an agreement between life solar power, a non-registered company which was represented by Andrew Katwesigye and was executed at Katunguru, Rubirizi District on 6^th July 2018. That Andrew Katwesigye used unscrupulous means and brought to court a memorandum of understanding the terms of the Rubirizi district

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agreement for enforcement. That whereas the issue was raised in their affidavit in support of MBR-00-CV-MA-0177-2022, it was over looked by the learned trial Magistrate. They therefore pray that this court finds that the trial Magistrate did not have territorial jurisdiction to entertain the matter as the cause of action arose in Rubirizi district.

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On the other hand, counsel for the Respondent submitted that the Respondent led evidence through their affidavit in reply that the Applicant signed a memorandum of understanding with the Respondent on 23^rd October 2019. That the said memorandum showed that the Respondent was located at Tank Hill cell, Ruti Ward, Mbarara South City. That the Respondent also led evidence in his affidavit in reply that his work place was Mbarara which was the basis of bringing the suit to the Chief Magistrate's Court of Mbarara at Mbarara.

[12] Institution of civil suits in Magistrate Courts is guided by **Section** 215 of the Magistrates Courts Act. The provision, in as far as it relates to the matter at hand provides that;

> 215. Other suits to be instituted where defendants reside or cause of action arises

(1) Subject to the limitations aforesaid, every suit shall be instituted in a court within the local limits of whose jurisdiction—

(a) the defendant or each of the defendants, where there are more than one, at the time of the commencement of

Page 8 of 16 the suit, actually and voluntarily resides, or carries on business, or personally works for gain;

(b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, if in that case either the leave of the court is given, or the defendants who do not reside, or

carry on business or personally work for gain, as aforesaid acquiesce in such institution; or

(c) the cause of action wholly or in part arises.

(2) Where a person has a permanent dwelling at one place and also a temporary residence at another place, he or she shall be deemed to reside at both places in respect of any cause of action arising at the place where he or she has a temporary residence.

(3) A corporation shall be deemed to carry on business at its sole or principal office in Uganda or, in respect of any cause of action arising at any place where it has also a subordinate office, at that place.

(4) In suits arising out of contract, the cause of action arises within the meaning of this section 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 the performance of the contract is completed:

(c) the place where in performance of the contract any money to which the suit relates was expressly or impliedly payable."[Emphasis added]

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The above provision is in *pari materia* with the provisions of **Section 15** of the Civil Procedure Act which the learned trial Magistrate relied upon in her ruling in MBR-00-CV-MA-0177-2022 as summarized above.

[13] **Section 15** of the Civil Procedure Act which has already received extensive interpretation from this court only applies to courts subordinate to this as this court has unlimited jurisdiction. (See Riddlesbarger and another vs Robson and others [1958] EA 375).

In Sebaggala and Sons Electric Centre vs Kenya National Shipping Lines UCL [1997-2001] 388 it was held that Section 15 of the Civil Procedure Act provides for the institution of suits at the place where the Defendant resides or where the cause of action arose.

The provision therefore postulates that a suit may be instituted within the local limits of a court based on where the cause of action arose wholly or in part, or depending on Defendant's residence and not that of the Plaintiff or the suit can be commenced at the Defendant's place of business at the time when the suit is commenced. (See Nkwasi vs Pride Microfinance (MDI) (Civil Suit no. 72 of 2021) and Roko Constructions ® Limited vs Enson Global Limited and Another (Civil Suit no. 675 of 2016).

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[14] The dispute in the instant matter as it can be observed arises from the place where the agreement between the parties was concluded.

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The determinants of where MBR-00-CV-CS-0046-2022 ought to have ordinarily been instituted would therefore, in line with Sections 15 and **215** of the Civil Procedure Act and Magistrates Courts Act respectively have been within the local jurisdiction limits of a court based on;

(a) Where the cause of action arose wholly or partly, (b) The Defendant's residence; and; (c) The Defendant's place of business at the time of commencement of the suit.

A cursory reading of the plaint filed by the Respondent in the trial court on 2^nd February 2022, indicates that MBR-00-CV-CS-0046-2022 was based on the Applicant's failure to pay a sum of UGX 3,950,000/ $=$ a sum that accrued from breach of an agreement that the she entered into with the Respondent on 23^rd October 2019. The said agreement was annexed to the plaint and marked as **annexure "A"**.

The above would in view of this court, without any evidence to the contrary, mean that MBR-00-CV-CS-0046-2022 was initiated out of breach of **annexure "A"** thus placing the matter within the ambit of "Where the cause of action arose wholly or partly" in accordance with **Section 215 (4)** of the Magistrates Courts Act above.

[15] In the ABC Laminart Pvt Ltd vs AP Agencies, Salem (AIR 1989 SC **1239), the Indian Supreme Court while interpreting a similar provision.**

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in the Indian Civil Procedure Code persuasively laid down the following propositions regarding venue for suits based on a contract within the meaning of the Ugandan Section 215(4) of the Magistrates Courts Act;

- (a) Ordinarily, acceptance of an offer and its intimation, result in a contract, hence a suit can be filed in a court within whose jurisdiction the acceptance was communicated, - (b) The performance of a contract is part of the cause of action and a suit in respect of the breach can always be filed at the place where the contract should have been performed or its performance completed, - (c) In suits for agency actions, the cause of action arises at the place where the contract of agency was made or the place where the actions are to be rendered and the payment is to be made by the agent, - (d)Part of the cause of action arises where money is expressly or impliedly payable under a contract, - (e) In cases of repudiation of a contract, the place where the repudiation is received, is the place where the suit would lie, and: - (f) If a contract is pleaded as part of the cause of action giving jurisdiction to the court where the suit is filed and the contract is found to be invalid, such part of the cause of action disappears."

The above is a correct statement of the law and this court adopts it in the instant case.

It would therefore follow that a suit whose cause of action arose out of a contract may be filed at the place where the contract was accepted, where it was performed or performance finally completed, where money is expressly or impliedly payable under the contract and finally in case of repudiation, where repudiation is received.

[16] Herein, the Applicant deposed that the agreement she signed on 10^th July 2018 was executed in Katunguru, Rubirizi District. She annexed a copy of the said agreement as "A".

The Respondent, having been the instigator of the action in MBR-00-CV-CS-0046-2022 had the initial burden when the issue of jurisdiction was raised, of showing the trial court that indeed the suit fell within its $\mathbb{P}$ jurisdiction.

The Respondent in the instant application deposed that the suit in the trial court was based on a memorandum of understanding they annexed to the plaint as annexure " $A$ ".

[17] Annexure "A" to the Respondent's plaint was a memorandum of understanding executed between the Applicant herein and the Respondent.

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I have examined the said annexure; nowhere does it indicate where it was executed from or where it was accepted save for having the addresses of both parties to the instant application.

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In relation to performance of the contract, it is not in dispute that the agreement was to be done by installation of a 120W/100AH solar system at the Applicant's residence in Kigabo, Katunguru, Rubirizi.

In the circumstances, it is clear to me that the court in Rubirizi had the territorial jurisdiction to entertain the instant matter and not the one in Mbarara Chief Magistrate's Court. In Remo Habib vs Juma Saidi (High Court Civil Revision no. 6 of 2015), this court while commenting on this issue observed that:

> "Whereas the rules of venue in criminal cases are of fundamental importance to territorial jurisdiction so as not to compel an accused person to move to and appear in a different court from that within whose territory the crime was committed as it would cause him or her great inconvenience in looking for his or witnesses and other evidence in another place, in civil suits they are procedural. Although it has been argued by the respondent that non compliance with local jurisdiction may not necessarily nullify a civil proceeding if both courts are within the same Chief Magisterial area, I am of the opinion that the four aspects of civil jurisdiction; the nature and pecuniary value of the subject matter, personal, temporal, and territorial are of equal importance. A court that lacks one lacks jurisdiction

> > Page 14 of 16

and competence entirely to try the suit, irrespective of whether or not it is operating within the same Chief Magisterial area. Proceedings undertaken by a court without jurisdiction are a nullity, be it subject matter (ratione materiae), personal (ratione personae), temporal (ratione temporis), or territorial (ratione loci)."[Emphasis mine_l

I found no reason from departing from the above exposition of the law by my learned brother Judge on the matter.

[18] It is trite that in the absence of power conferred by statute, parties cannot confer jurisdiction on a court which lacks jurisdiction even by consent where no part of cause of action has arisen and has no inherent jurisdiction to entertain a suit. (See Baku Raphael Obudra & Anor v AG (Supreme Court Civil Appeal no. 1 of 2005), Assanard and Sons (U) Ltd v East African Records Ltd [1959] EA 360, Re, Aylmer Exp. Bischoftsheim [1887] 20 QB 258 and Hinde vs Hinde [1953] 1 ALL ER. $171).$

Where from the facts, only one court has jurisdiction it is said in law to have exclusive jurisdiction. However, where on the facts, more than one court has jurisdiction over a subject-matter, they are called courts of available or natural jurisdiction. (See for example Modi Entertainment Network and another vs W. S. G. Cricket Pte. Ltd 2003 AIR SCW 733).

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In the instant matter, on the evidence before me, only the court in Rubirizi had exclusive jurisdiction to entertain the dispute between the parties.

In the upshot, and in answer to the first issue herein, revision is therefore applicable in the instant matter.

[19] The above being the case, it is the position of the law, that a judgment or ruling of court without jurisdiction is a nullity and the orders which follow such a judgment or ruling must be set aside $ex$ debito justitiae (as of right). (See Peter Mugoya vs James Gidudu & Anor [1991] HCB 63).

Having found as I did above, it follows that the judgment and orders of the learned trial Magistrate in MBR-00-CV-CS-0046-2022 and ensuing applications and execution are hereby set aside for having been made by a court without territorial jurisdiction.

This application accordingly succeeds the costs of the application are awarded to the Applicant.

I so order.

Dated, delivered and signed at Mbarara on this ... 83^th day of August ... 2024.


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