[2024] UGHCCD 94

#### THE REPUBLIC OF UGANDA

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

## [CIVIL DIVISION]

## **REVISION CAUSE NO. 002 OF 2022**

WABWIRE YOWERI JUSTUS =================== APPLICANT

#### VERSUS

RIKASA INVESTMENTS LTD ==================== RESPONDENT.

# **BEFORE: HON. JUSTICE EMMANUEL BAGUMA RULING**

This application is by notice of motion under Article 126 (1) of the Constitution, section 83 and 98 of the Civil Procedure Act, order 52 rule 1, 2 and 3 of the CPR seeking for orders that; -

- 1. Court revises the consent/settlement/judgment/order/decree of the trial Magistrate in CS No. 452 of 2019 for the payment of 10,483,000/= (Ten million four hundred eighty-three thousand shillings only) and set it aside. - 2. The earlier judgment by the same court be set aside. - 3. The trial Magistrate disposes off MA No. 580 of 2021 for which the applicant had sought leave to defend the summary suit to wit CS No. 452 of 2019. - 4. The trial Magistrate entered a consent without the knowledge of the applicant - 5. Costs of the Application be provided for.

The application is supported by the affidavits **Wabwire Yoweri Justus** the applicant whose details are on record but briefly stated that; -

- 1. I was originally sued vide summary suit No. 452 of 2019 in the Chief Magistrates' court of Mengo seeking for recovery of Shillings 10,160,000/= (Ten million one hundred sixty thousand shillings only). - 2. I instructed a firm of lawyers to wit Atugonza & Co Advocates wherein I paid instruction fees to one counsel Paul Semengo Kato who was attached to the law firm.

- 3. I was surprised to see a notice to show cause why execution should not issue against me being served on 7th of December 2021 and when I checked I realized that the lawyer I instructed never filed an application for leave to appear and defend the summary suit. - 4. I subsequently filed MA No. 580 of 2021 on 8th December 2021 to enable me defend myself. - 5. The trial Magistrate ignored my application No. 580 of 2021 for leave to appear and defend and instead proceeded to issue a warrant of arrest against me on the 9th December 2021. - 6. While I was in prison, the trial Magistrate domesticated a consent judgment/settlement with my relatives without my consent and authority which is illegal and caused a miscarriage of justice. - 7. I have been informed by my lawyers of Madibo Mafabi Advocates & Solicitors that the trial Magistrate had no jurisdiction where a none existent court is disclosed i.e. Kampala at Mengo.

In reply, the Respondent opposed the application and in an affidavit sworn by **Richard Kato Kakongoro the managing Director** of the respondent whose details are on record but briefly stated that; -

- 1. I have been advised by my lawyers that the application is incompetent for being served out of time and the same should be struck out. - 2. There is no consent judgment that was entered in the trial court, rather upon default by the applicant to file for leave to defend, the trial court entered default judgment for the amount claimed in the plaint and execution commenced whereupon a warrant of arrest was issued and the applicant was committed to Civil Prison. - 3. Upon commitment to Civil Prison, the applicant's wife and relatives approached me with payment/settlement plan for the decretal sum which I asked them to put in writing and that is the alleged consent settlement which only came about after the applicant was committed to civil prison. - 4. When the applicant was released from prison he refused to sign the same and therefore we cannot talk of a consent since he refused to sign it. - 5. The applicant upon realizing that his lawyers never filed the application for leave should have filed an application to set aside default judgment entered against him and seek extension of time to file an application which he never did.

6. The applicant has not raised grounds for setting aside the proceedings and judgment by the trial court and there are no grounds for revision raised by the applicant.

## **Representation.**

Initially the applicant told court that he was represented by Counsel Mafabi Geofrey who never attended court at all. The applicant later informed court that he would be self -represented which was granted while counsel Okiot Raphael represented the Respondent.

At hearing parties agreed to file written submissions whose details are on record.

## **Submissions by the Applicant.**

The applicant cited section 83 of the Civil Procedure Act which empowers High Court to handled cases of revision. He defined the term revision according to Black's Law Dictionary 8th Edition on page 1346 as re-examination or careful review for correction or improvement.

The applicant submitted that the trial Magistrate sealed a consent judgment which was executed in the absence of the applicant (judgment debtor) who was in prison and never signed it and never had knowledge of whatever transpired which amounted to an illegality, a material irregularity and caused injustice to the Applicant.

That there was no consent of the parties at all. This is because for an agreement to be binding, parties must have a meeting of the minds supported by the signing of the agreement.

The applicant stated that the record shows that on the day of signing the consent the judgment debtor was represented by one Robinah Adong and Kisibo Paul. We cannot tell in which capacity were these representing the applicant. There is no evidence to show that the two were his agents or holders of powers of attorney. The applicant never signed it. It was accordingly erroneous for the trial Magistrate to seal that consent.

He referred to the case of **Tibaingana Godfrey Vs Kabwende Steven CR No. 006 of 2012** where court set aside a consent judgment which was not being endorsed by the parties and sealed in parties absence.

The applicant concluded that since the consent was concluded in the absence of the applicant, the same should be set aside and allow the applicant's application for leave to appear and defendant proceed on its merit.

## **Submissions by counsel for the Respondent.**

Counsel submitted that the applicant did not file an application for leave to appear and defend the suit within time and filed the same after 2 years when the matter was at execution stage. The applicant was arrested in execution and while in prison, the applicant's wife Robina approached the Respondent with a payment schedule which she put in writing and it was signed in order to secure the Applicant's release.

Counsel submitted that according to section 83 of the CPA, the applicant has not demonstrated any ground for revision.

Counsel submitted that the applicant's application No. 580 of 2021 was overtaken by events and attempts to fault the trial Magistrate for not hearing the same are attempts in futility.

In rejoinder, the applicant reiterated his submissions in chief.

# **Analysis of court.**

**Section 83 of CPA** empowers the High Court to revise decisions of Magistrates' Courts where the Magistrate's Court appears to;

# *(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.*

It is also important to point out that the said provision of Section 83 of the CPA has two other limiting factors which have to be excluded before the Court goes ahead to revise the record, namely, that; (a) the parties shall first be given the opportunity of being heard; and (b) where, from lapse of time or other cause, the exercise of that power would involve serious hardship to any person.

As regards lapse of time. This court wishes to make the following observations.

The summary suit was filed on 18th June 2019 and summons in the same were effectively served on the applicant on 5th July 2019. The applicant did not file an application for leave to appear and defend. On 12th September 2019, the trial court entered a default judgment. On 14th November 2019 a bill of costs was taxed.

Execution commenced and a warrant of arrest was issued on 9 th December 2021 but before that warrant the applicant had filed MA No. 580 of 2021 to set aside the exparte judgment.

From the court record, when the applicant was produced in court for committal, on 13th December 2021the judgment debtor on record admitted the debt and in his words stated that; -

# *"I have been with the judgment creditor as a friend and business friend, I ask for court to grant me 2 days to make payment to creditor so as to be able to get money and pay loan in 3 instalments. I had proposed to pay one million today"*

The judgment creditor refused the one million and asked court to commit the applicant/judgment debtor.

There is evidence on court record that on 20th December 2021 the Applicant's wife (Robina) together with one Paul entered a consent for payment of the debt. She paid 5,000,000/= and pledged to pay the balance by paying one million every month. The Respondent/Judgment Creditor accepted this arrangement and the applicant was released from Civil Prison.

In the instant case, basing on section 83 of the CPA the applicant has not demonstrated to this court that there is any exercised a jurisdiction not vested in the trial court or failed to exercise a jurisdiction so vested; or acted in the exercise of its jurisdiction illegally or with material irregularity or injustice.

The applicant wants this court to evaluate evidence on findings of law and facts by the trial court. This amounts to a disguised appeal and this court cannot allow. There is no reason whatsoever to fault the trial court under section 83 CPA.

Basing on the above analysis, this court declines to revise and set aside the orders and decree of the trial Court.

#### **Conclusion.**

In the final result this application is dismissed with the following orders; -

- **1. The orders and the decree in CS No. 452 of 2019 in the trial court are hereby upheld.** - **2. Basing on the nature and circumstances of this a revision application, I make no orders as to costs.**

Dated, signed, sealed and delivered by email on this **5 th** day of **June 2024**.

Emmanuel Baguma

Judge