Court name
HC: Civil Division (Uganda)
Case number
Civil Revision 5 of 2015
Judgment date
15 December 2016

Kabahweza v Hofokam Ltd (Civil Revision 5 of 2015) [2016] UGHCCD 129 (15 December 2016);

Cite this case
[2016] UGHCCD 129

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT FORT PORTAL

CIVIL REVISION APPLICATION NO. 005 OF 2015

(Arising from MISC. APPLICATION NO. 003/2015)

ORIGINAL CIVIL SUIT NO. 15/2014

 

KABAHWEZA GRACE MARY........................................................APPLICANT

VS

    HOFOKAM LTD.....................................................................RESPONDENT

 

BEFORE: HON. MR. JUSTICE OYUKO. ANTHONY OJOK

RULING

This is an application for revision of the orders in Civil Suit No. 15/2014 and Misc. Application No. 3 of 2015 and for setting aside the decree and orders therefrom; setting aside the sale in execution, stay of execution, payment of general damages and costs. This was done by way of letter for revision.

Background

The applicant took a micro-business loan facility from the Respondent sometime on the 4th September 2013, Ushs 2M. The loan was secured by security Kibanja at Kagote Mpanga west Division with eucalyptus trees, repayable within 6 months at an interest of 30% per annum (see copy of the loan agreement).

The applicant having failed to service the loan, the Respondent instituted a summary suit no. 15/2014 to recover the balance of 1920,000/= being money owed and due, summons were served on the applicant as noted in her affidavit in support para 4, unfortunately she did not apply for leave to appear and defendant and as such the suit proceeded exparte, Judgment, execution and bill of costs taxed and the applicant was committed to civil prison. The matter was heard by His Worship Oji Phillips and later his Worship Asuman Muhumuza all of the Chief Magistrate Court of Fort Portal at Kabarole District who dismissed the suit.

 

The applicant served 5 months in civil prison but was later released on the 25th November,2014, while in prison, the respondent changed the mode of execution after 5 months and applied for attachment and sale of the applicant’s property, which was granted.

 

The bailiff advertised the so-called property, valued, sold it and even filed the execution report in court. The applicant being dissatisfied applied in court in Misc. Application No. 3/2015 for orders that the attachment and sale of the applicant’s property and the entire execution be set aside and execution be declared null and void. Unfortunately this application was also dismissed on the 28/5/2013 with costs still being dissatisfied wrote a letter to High Court to exercise its discretion under S. 83 of the CPA, S. 17 and 33 of the Judicature Act and brought the grounds as follows;

  1. That the learned trial Magistrate erred in law and in fact when he committed the applicant to civil prison over a debt arising from a loan obligation that was secured by a mortgage created over the applicant’s property hence causing great injustice to the applicant.
  2. That trial Magistrate erred in law and in fact when he issued a warrant of attachment and sale of the property that was never pledged as security by the applicant, despite the fact that the applicant had pledged a specific piece of land as security for the said loan.
  3. That the trial Magistrate misdirected himself in law and in fact when he issued a warrant of attachment over a decretal amount that was for less the value of the attached property thus occasioning great injustice to the applicant.
  4. The entire execution process was marred by fraud and illegalities that rendered it void and a nullity. Since the bailiff lacked a valid licence to practice and did not deposit the proceeds of sale in court as required by law.

Ms Emiru & Co. Advocates represented the applicant and Ms Kaahwa, Kafuuzi, Bwiruka & CO. Advocates appeared for the Respondent. By consent both parties agreed to file written submissions.

 

 

Resolution

Grounds 1 & 2

  1. That the learned trial Magistrate erred in law and in fact when he committed the applicant to civil prison over a debt arising from a loan obligation that was secured by a mortgage created over the applicant’s property hence causing great injustice to the applicant.
  2. That trial Magistrate erred in law and in fact when he issued a warrant of attachment and sale of the property that was never pledged as security by the applicant, despite the fact that the applicant had pledged a specific piece of land as security for the said loan.

  It is true from the record that the applicant applied for a business loan on the 4/9/2013 and given Ushs 2M for 6 months payable at 30% per annum, meaning that since the loan was for 6 months, the interest was 15% for 6 months and payable in equal instalments of Ushs 50,000/= shillings. The applicant gave her Kibanja as security for the loan. The Kibanja had no title, therefore the provision of the Mortgage Act and Regulations would not apply in the instant case. The Respondent had a choice of either selling that particular Kibanja or any other properties of the applicant to recover its money. It would have been different if the land had a title and a mortgage was registered on it. Therefore in my opinion there was no injustice caused to the applicant. Ground 1 and 2 fails.

Ground III 

That the trial Magistrate misdirected himself in law and in fact when he issued a warrant of attachment over a decretal amount that was for less the value of the attached property thus occasioning great injustice to the applicant.

It is on record, that valuation report was done by Katuramu & Co. Consultants and Surveyors on the 31st October 2014 and approved by court to ascertain the value of the property. Indeed according to the valuation report it was found out that the market value of the property was 13 million but forced sale value was Ushs 7,000,000/=. Indeed the sale was by public auction and the highest bidder took the property at 7.5M/=. It does not matter whether it was the bailiff or any other person who bought the property, the question would be did they follow the proper procedure?? The answer is yes and as such there was no miscarriage of justice. It is not the applicant to choose the valuer but court. This ground also fails.

Ground 4: The entire execution process was marred by fraud and illegalities that rendered it void and a nullity. Since the bailiff lacked a valid licence to practice and did not deposit the proceeds of sale in court as required by law.

Upon careful perusal of the file the applicant made an application in court in Misc. App. No. 003/2015 for orders that the attendant and sale of the applicant’s properties at Kigote/Mpanga D Cell, Kagote Ward, West Division, Fort Portal be set aside and the entire execution be declared null and void, the application was dismissed with costs, the applicant never appealed against the decision, secondly the bailiff Bulemu Richard, attached his practicing licence of 2014, thirdly in the Bailiff’s return, he made it clear that the Judgment debtor acknowledged receipt of his money together with another Bulemu Richard who took 1.5M/= for arresting the Judgment debtor and clearly pointed out that the balance is on his account pending directive of court although the practice should be the money should always be on Court’s account not bailiff’s account. I do not see any miscarriage of justice occasioned to the applicant. This ground again fails.

Ground 5

On the issue of the applicant not being informed about the attachment and sale of her other property while incarceration amounted to an illegality.

Surface to say that once an advert has been put in a paper with wide circulation like Red pepper, it is enough notice to the entire world regardless whether you are in prison or not. It is not in doubt that the sale was put in Red Pepper publication dated 17th 10 2014. I therefore see no miscarriage of justice occasioned to the applicant. This also fails.

To me what puzzles me is the money given to the bailiff the Ushs 1.5M/= and 300,000/= paid by the applicant, what was it for?? I sought the bailiff was supposed to put in his bill of costs, which was taxed at Ushs 1,843,000 plaintiff’s bill of costs taxed at Ushs 700,000/=. Judgment Creditor was given UShs 2,896,800 and then the balance of Ushs 1,060,200 plus 300,000/= be given back to the applicant.

An application for revision can be entertained under S. 83 of the CPA where by magistrate’s court has exercised jurisdiction not vested in it in law, failed to exercise a jurisdiction so vested, acted in the exercise of its jurisdiction illegally or with material irregularity or injustice.

In fact the applicant would have applied for leave to appeal out of time if the applicant sought he had grounds of appeal.

What seems to be lost sight of is that revision proceedings are meant to put right irregularities or illegalities concerning jurisdiction. That is clear from the wording of the section.

Revision proceedings are not meant to deal with substantive issues of the merits of the case, where jurisdiction and the exercise of the same are not in dispute.

The provision has been applied in many situations where parties fail, fear, neglect or delay to file appeals. Such parties have often times resorted to provisions of section 83 CPA, and an application for revision is invariably filed by notice of motion and the parties parade before court to argue substantive grounds of appeal, which have no bearing or relevance to jurisdiction. This is effect is an appeal in a disguised form.

The provisions of section 83 were not meant to be a substitute for, or a short cut for an appeal. I believe they were meant to assist the High Court to keep in check the lower courts in exercise of the Jurisdictions. The provision would appear to be hijacked to rescue failed would be appeals.     

In a nutshell therefore all the grounds lack merit, however I do order that the applicant be paid UShs 1,360,2000/= as the balance having deducted the Judgment creditor’s money, Bailiff’s costs and the Advocates costs. This application partially succeeds and order no costs.

 

................................

Oyuko Anthony Ojok

Judge

15/12/2016

 

Delivered in open Court in the presence of;

  1. Richard Bwiruka – Counsel for the Respondent
  2. Court Clerk – Clovis

In the absence of:

  1. Counsel for the Appellants
  2. Both parties.

 

................................

Oyuko Anthony Ojok

Judge

15/12/2016