[2024] UGHC 1153

#### THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT HOIMA

## **REVISION APPLICATION NO.0005 OF 2024**

### (Arising From MSD Civil Suit No.117 of 2019)

## VIVO ENERGY COMPANY (U) LTD :::::::::::::::::::::::::::::::::::

#### **VERSUS**

KAMARAYO SUNDAY ::::::::::::::::::::::::::::::::::::

#### Before: Hon. Justice Byaruhanga Jesse Rugyema

### **RULING**

- This is an application brought under Ss.83(a) & (c), 98 CPA Cap 282 $\bigcirc_{[1]}$ (Revised Edition 2023), and O.52 rr. 1,2 & 3 CPR for revision of the ruling of the Chief Magistrate of Hoima at Hoima in C. S No.117 of 2019 on the following grounds: - a) That the learned trial Magistrate exercised jurisdiction that he was not clothed with when on $27/10/2020$ , he delivered a ruling in C. S. No.117/2019 wherein he condemned the Applicant to pay $Ugx$ **5,000,000/=** as general damages to the Respondent yet he was *functus* officio as the matter had already been resolved by the parties and endorsed by court. - b) That in the alternative and without prejudice to the above, the learned trial Magistrate exercised his jurisdiction with material irregularity and injustice when he condemned the applicant to pay damages to the Respondent without first hearing evidence to justify or refute the claim for damages. - c) That it is in the interest of justice that this application be granted to save the Applicant of the grave injustice it has faced. - $[2]$ The application was supported by an affidavit deposed by a one **Andrew** Munanura, Counsel retained to represent the Applicant company, wherein the grounds of the application are contained and opposed by an affidavit in reply deposed by Sunday Kamarayo, the Respondent, which is to the following effect: - a) That on $7/10/2019$ , the Respondent sued the Applicant and among the reliefs in the plaint was an order for payment of **punitive** and **general**

damages for malicious retention of the plaintiff's/Respondent's certificate of title. That on $28/11/2019$ , the parties partially consented on some of the issues and further agreed to file submissions in respect of the unresolved issues in the plaint to wit, general damages and costs.

- b) That the trial Chief Magistrate was right to rule on **general damages** and therefore, there is no sufficient reasons advanced by the applicant to warrant the grant of this application but rather to delay the cause of justice. - $[3]$ In the premises, the Respondent sought for the dismissal of this application with costs.

# **Counsel legal representation**

$[4]$ The Applicant was represented by Mr. Allan Waniala of Ms S & L Advocates (formerly Sebalu & Lule Advocates), Kampala while the Respondent was represented by Mr. Allan Arekaho of Ms Kaggwa & Partners & Co. Advocates, Kampala. Both counsel filed their respective submissions for consideration in the determination of this application.

## **Background**

- The Respondent sued the Applicant in C. S No.117 of 2019 seeking among $[5]$ others, an order to compel the Applicant to surrender the owner's copy of certificate of title for land comprised in plot 228 vol.529 Folio 23 land at **Bughaya, Hoima** (the suit land). - In 1995, the Respondent leased the suit property to the Applicant $[6]$ whereupon his original certificate of title was surrendered to the Applicant for purposes of registering a lease thereon. That however, after the Applicant had successfully registered a lease on the certificate of title in 2015, the Applicant never surrendered back the land title to the Respondent despite several requests. Due to the Applicant's failure or refusal to surrender back the owners certificate of title, it prompted the Respondent to institute C. S No.117 of 2019 to inter alia, compel the Applicant surrender the land title. - When the suit came up for hearing on $28/11/2019$ , the parties entered into $[7]$ a Partial Consent judgment wherein the Applicant handed over the said certificate of title to the Respondent.

# **Counsel submissions**

- $[8]$ Counsel for the Applicant submitted briefly that upon the parties entering into a partial consent judgment wherein the Applicant handed over the certificate of title to the Respondent, the only issue left for the determination of court was the issue of costs of the suit. That however, in his ruling for the remaining issue, the trial Magistrate went on to award **Ugx** $5,000,000/$ = to the Respondent as general damages hence, the present application for revision of the orders of the learned Chef Magistrate. According to counsel, the trial Magistrate was functus officio when he awarded general damages. - $[9]$ Counsel for the Respondent on his part submitted that upon the parties reaching a Partial consent settlement, issues regarding other reliefs pleaded in the main plaint, to wit punitive and general damages for malicious retention of the plaintiff's/Respondent's title and costs of the suit with **interest** were left unresolved. That the parties agreed to proceed by way of filing submissions over the un agreed issues for the trial Magistrate to adjudicate over.

# **Determination of the Application**

- [10] Under **S.83 CPA**, the High Court may call for the record of any case which has been determined 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. - In cases, where the High Court exercises its revision jurisdiction, its duty $[111]$ entails examination of any proceedings before it for purposes of satisfying itself as the correctness, legality or propriety of any finding, order or any other decision and the regularity of any proceedings before it, Munobwa Mohammed Vs UMSC, H. C Civil Revision No.1/2006. - [12] Decisions are revised whenever the trial Magistrate fails to exercise his/her jurisdiction or where he/she acts illegally or with material irregularity or injustice. The High court will however not ordinarily interfere with every irregular order made by a subordinate court, it will only exercise its revisionary powers where failure to do so would result in substantial injustice, Muhinga Mukono Vs Rushwa Native Farmers Co-op Society Ltd [1959] EA 595.

[13] In in instant case, the issue for determination is: "Whether the learned trial" Chief Magistrate erred in law when he awarded the Respondent general damages of $Ugx$ 5,000,000/=." As per the lower court record, in Civil Suit **No.117 of 2019,** the parties on $28/11/2019$ entered into a Partial consent judgment which I produce hereunder as follows:

#### "PARTIAL CONSENT JUDGMENT

By CONSENT of both parties, judgment be entered on the terms hereunder agreed:-

- 1. THAT the defendant admits being in possession of the plaintiff's land title registered under Freehold as plot 22, volume 528, Folio 23. - 2. THAT the certificate of title for land comprised in Freehold as Plot 22, volume 528, Folio 23 in the names of KAMARAYO SUNDAY is hereby handed over to the plaintiff upon signing of this consent and the plaintiff acknowledges receipt of the same for onward delivery to Uganda National Roads Authority.

3. THAT the issue of costs shall be determined by court. We consent to the above Dated at Hoima this $28^th$ day of November 2019."

[14] The above partial consent judgment which admittedly was endorsed by both parties and their respective counsel clearly show that the suit was conclusively determined by consent save for costs which were to be determined by court. Counsel for the Respondent submitted that upon the parties reaching a Partial consent settlement, issues regarding other reliefs pleaded in the main plaint were left unresolved and the parties agreed to proceed by way of filing submissions over the un agreed issues so that the trial magistrate can adjudicate over them. I find this position as put across by counsel for the Respondent not correct. I am amplified in this position by the lower court record of $11/2/2020$ at page 1. It is as follows:

> "Sojja Ismail for plaintiff **Mwebaza Christopher** holding brief for Allan Arekaho for defendant **Both parties absent** Easter: Court clerk **Sojja:** Parties filed a partial consent on court record but it has never been signed and tendered (sic) by this court. We pray that the same is signed and filed. **Parties failed to agree on costs** and have filed submissions in respect of the costs. We pray. **Court:** The partial consent judgment is hereby entered and tendered (sic) by court and hearing on costs will be on the $10^{th}$ March 2020."

- [15] As per the above, it is clear that what was left unresolved upon the parties reaching a consent settlement was only the issue of costs which were left to be adjudicated upon by court and parties were urged to file their respective submissions in that respect. - [16] Upon submission having been filed by both the respective counsel, the trial Magistrate however, besides ruling on the issue of costs which he rightly granted to the Respondent because which are not contested in this application, proceeded to also award $Ugx$ 5,000,000/= to the Respondent as general damages. - [17] I do agree with counsel for the Applicant that the learned trial Chief Magistrate was not clothed with jurisdiction when he proceeded to condemn the Applicant to general damages and award $Ugx$ 5,000,000/= to the Respondent because the trial magistrate was already *functus officio*. The trial magistrate was bound by the agreement of the parties which he had accordingly entered as a consent judgment save for the issue of costs. The Respondent did forego the damages upon entering the consent judgment. - [18] Therefore, by the trial Magistrate's failure to respect the Consent judgment entered between the parties and delving into the issue of general damages was erroneous for he did so without jurisdiction as he was functus officio, Goodman Agencies Ltd Vs A. G & Anor. Constitutional Petition No.3/2008. The trial Magistrate should have restricted his ruling to the determination of only the **costs of the suit** which remained pending as per the Partial consent judgment and not allow himself to be misguided by the parties' submissions which diverted him to the issue of **general damages**. The trial Magistrate's delving into the issue of general damages that had ceased to exist by virtue of the consent judgment definitely occasioned the Applicant grave injustice and the awarded general damages cannot therefore be left to stand. - [19] In the premises, the issue at hand is found in the affirmative. The learned trial Chief magistrate erred in law when he awarded the Respondent general damages of $Ugx$ 5,000,000/=. He acted unlawfully when he considered general damages that had ceased to be an issue by virtue of the consent judgment. - $[20]$ The revision application succeeds. The lower court order regarding the award of general damages is accordingly set aside but with no order as to costs on the following grounds: - a) This is a revisional application that was intended to correct errors that were occasioned to the Applicant by the trial Magistrate.

- b) It was both counsel for the parties who in their submissions misguided the trial Magistrate to award the unlawful general damages. - c) It is important that the spirit of reconciliation between the parties exhibited in the consent judgment is maintained by not jeopardising their relationship with costs.

Dated at Hoima this 13^th day of December, 2024.

Byaruhanga Jesse Rugyema **JUDGE**