Court name
HC: Land Division (Uganda)
Judgment date
20 March 2020

Gusino v Kato (Civil Revision Cause-2018/10) [2020] UGHCLD 32 (20 March 2020);

Cite this case
[2020] UGHCLD 32

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

[LAND DIVISION]

REVISION CAUSE NO. 10 OF 2018

[Arising from Misc. Cause No 027 of 2018 Chief Magistrates Court of Kira at Kira]

GUSINO JAMES :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT

VERSUS

KATO EDWARD ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT

RULING

Before Hon. Lady Justice Immaculate Busingye Byaruhanga

This application was brought by way of Notice of Motion under Section 33 of the Judicature Act, Section 83 of the CPA, Section 98 of the CP and Order 52 rules 1 & 3 of the CPR seeking the following orders;

  1. Execution of the Decree in Misc. Cause No 027 of 2018 Kato Edward versus Gusino James be set aside.
  2. The Judgment in Misc. Cause No. 027 of 2018 Kato Edward versus Gusino James be set aside.
  3. Misc. Cause No. 027 of 2018 be struck out for illegality.
  4. Costs of the application be provided for.

The application is premised on the following grounds;

  1. That the applicant in Misc. Cause No. 027 of 2018 is not the proprietor of land comprised in Block 232 plot 173 at Kiseka.
  2. There was no list of properties or valuation report of the properties intended to be distressed in Misc. Application No. 027 of 2018 as such the application was incompetent and should be struck out.
  3. Court issued a distress order without listing the items to be distressed as such the order was illegal.
  4. The notice to show cause why Execution should not issue dated 6th April 2018 purports to recover costs whereas there is no bill of costs that was ever filed or taxed by the Trial Court.
  5. That consequently the said order is illegal and of no legal effect.
  6. In the interest of Justice that the said court order be set aside.

The application is supported by the affidavit of Gusino James (applicant). The respondents filed an affidavit in reply on the 27th of February 2020 while the applicant filed an affidavit in rejoinder on the 6th March 2020.

The issues for determination in this matter are based on the grounds of the application and they are;

  1. Whether the suit before court qualifies for revision?
  2. Whether an application for distress for rent can be filed by an unregistered proprietor?
  3. Whether the application of distress for rent must be accompanied by a list of properties or valuation report of the properties intended to be distressed?
  4. whether a notice to show cause must be premised on a bill of costs taxed by court?
  5. Whether the orders of Kira Magistrates court in Misc Cause No. 027 of 2018 were lawful?

Regarding Issue 1, it should be noted that matters of revision are governed by the provisions of Section 83 of the Civil Procedure Act which provides as follows; -

“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.

  1. Exercised jurisdiction not vested in it in law;
  2. Failed to exercise a jurisdiction so vested; or
  3. 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, but no such power of revision shall be exercised.
  4. Unless the parties shall first be given the opportunity of being heard; or (e) where, from the lapse of time or other cause, the exercise of that power would involve serious hardship to any person.”

In the instant application, Counsel for the applicant cited the case of Kemish Ibrahim versus Dima Dominic Poru Arua High Court Miscellaneous Civil Application No. 0016 of 2015, where Justice Mubiru Stephen held that Section 83 of the CPA entails a re-examination or careful review, for correction or improvement, of a decision of a Magistrates’ Court, after satisfying oneself as to the correctness, legality or propriety of any finding, order or any other decision and the regularity of any proceeding of a magistrates’ court. I associate myself with the decision of Justice Mubiru in the case referred to in relation to factors to be considered in an application for revision under Section 83 of the CPA. However, the case is distinguishable from the facts in the Instant case. In the case of Kemish Ibrahim (supra) Justice Mubiru was dealing with the jurisdiction of the local council courts in land matters under the Local Council Courts Act of 2006.

It should be noted that Section 83 of the CPA provides for revision in respect to jurisdiction which is not vested, not exercised, or jurisdiction exercised illegally or with material irregularity leading to injustice. In the instant application Counsel for the applicant could not show any nexus between the application for revision and the proceedings at Kira Chief Magistrates Court. The grounds of the application do not indicate anywhere that the Magistrate court of Kira exceeded its jurisdiction, failed to exercise its jurisdiction, or exercised its jurisdiction illegally or with material irregularity. In that respect, I do not find the application meriting revisional orders of the High Court under Section 83 of the CPA.

Issue 2 is whether an application for distress for rent can be filed by an unregistered proprietor or owner?

Counsel for the applicant submitted that in an application for distress for rent, there must be a landlord-tenant relationship. Counsel cited the case of Souza Figueiredo & Co Ltd versus George & ors (1959) EA 756. Counsel referred to paragraph 5 of the respondents’ affidavit in reply where the respondents deponed that he was a son or a beneficiary of the registered owner of the land and the tenanted premises are on land governed by the Registration of Titles Act. Counsel cited the provisions of Section 191 of the Succession Act to argue that since the respondent did not have Letters of Administration, he could not collect rent from the deceased’s properties.  Counsel went on to apply the provisions of Section 134 of the RTA to indicate that the respondent could only be a landlord upon acquiring the letters of administration and registering himself on the deceased’s title as owner by virtue of the letters of administration. In reply counsel for the respondent stated that at the trial level there was no question as to whether or not the applicant for distress was the registered proprietor of the said land. Counsel for the respondent submitted that it was an agreed fact that the applicant for revision was a tenant of the respondent and defaulted on rent and therefore, a tenant- landlord relationship existed.

According to Section 2 of the Distress for Rent (Bailiffs) Act, it is only a land lord who has the power to levy any distress for rent and such a landlord may opt to give such power to a bailiff. The Act does not refer to the registered owner. According to Miscellaneous Cause No. 027 of 2018 at Kira Magistrates Act, the respondent (applicant then) in ground 1 stated that he was the owner of the property situated at Kiseka- Kira Municipality Wakiso District on Plot No. 173, Block 232 which the applicant (respondent then) was renting.

In paragraph 2 of the affidavit in support, the applicant (respondent now) repeated the same statement under oath. The applicant (respondent then) filed an affidavit in reply and it was received by Kira Magistrate Court on 22nd February 2018 and did not question the respondent (applicant then) in relation to ownership of the rented premises. In paragraph 3 of the affidavit in reply to the application for distress, the applicant (respondent then) stated that he had paid rent for August, September, October, November and December 2017 to a tune of Ug. Shs. 1,400,000/= (One million four hundred thousand) and attached Annexure “A” as proof. Annetxure “A” shows a receipt NO. 702 issued to Gusino James on the 5th of May 2017 being payment of rent for May, June, July and August. This evidence indicates that the applicant in the instant application acknowledged the respondent as his landlord then. As already pointed out under the Distress for Rent (Bailiffs) Act, what has to be established is the landlord-tenant relationship under section 2. Since the applicant proved that he had paid rent to the respondent (his landlord then) the provisions of Section 2 of the Distress for Rent (Bailiffs) Act had been met and the Act does not state anywhere that the registered proprietor is the one who is entitled to distress for rent. Section 2 only refers to land lord. In this application, the applicant acknowledged the respondent as his landlord in the Magistrates Court and the respondent had the right to apply for distress for rent.

Issue 3

Whether the application for distress for rent must be accompanied by a list of properties or valuation report of the properties intended to be distressed?

Counsel for the applicant submitted that the list of items to be distressed or their value was never brought to court or attached to the application. Counsel further submitted that the order of distress could not be made for unknown property or value and therefore Misc. Cause No. 027 of 2018 was incompetent since it had no basis.

In reply, Counsel for the respondent submitted that there was no list of properties or valuation report of the properties intended to be distressed in Misc. Cause No. 027 of 2018 because the respondent (applicant now) removed all his properties to defeat the purpose of the application.  Counsel for the respondent submitted that the list of properties or a valuation report would have only been necessary if court was to make an order for sale of the distressed property.

In Misc. Cause No. 027 of 2018 at Kira, the applicant (respondent now) applied for a special certificate to levy distress. A special certificate for distress is governed by the Distress for Rent (Bailiff) Rules Statutory Instrument 76-1 and specifically rules 3(2) & (3) and the first schedule form 2. The schedule provides for the name of the bailiff, the address of the bailiff, the respondent, the names of the landlord and the amount owing. The schedule does not provide for the list or the valuation at this stage. Schedule 2 of the rules provides for fees, charges and expenses. This implies that the property is valued after distress. In the instant application, there is no proof that there was property which was distressed. The letter of the bailiff dated 5th April 2018 addressed to the Magistrate of Kira shows that there was no property to distress and the bailiff applied for an alternative mode of execution. This is equally reflected in the proceedings of 6th April 2018. On 18th April 2018, the bailiff stated before court that they proceeded to the shop of the applicant (respondent then) in the company of the respondent (applicant then), police, LC1 official, and there was nothing to attach. This statement was not challenged by the applicant. Since there was no property attached there could not be a list or a valuation report. 

Issue 4 is whether a notice to show cause must be premised on a bill of costs?

Counsel for the applicant submitted that the trial Magistrate did not issue any an order or decree awarding the respondent Ug. Shs. 2,450,000 (Two million four hundred and fifty thousand). That the orders made by court were limited to reliefs prayed for in the pleadings in Misc. Cause No. 027 of 2018, which were a special certificate of distress, eviction order and costs. Counsel further submitted that there was no bill of costs filed or taxed and the figure of Ug. Shs. 2,450,000 was imaginary and court should not have issued a notice to show cause and therefore, the execution proceedings which were commenced subsequent to filing of the report of distress were illegal and irregular and execution should be set aside. Counsel cited the case of Goustan Enterprises Ltd versus Kocas Owcim SCCA No. 8 of 2003. 

Counsel for the respondent in reply submitted that counsel for the applicant did not read the record of the lower court where the applicant was ordered to pay Ug. Shs. 1,800,000 from the date of filing until when the respondent was evicted.

It should be noted that a notice to show cause why execution should not issue is usually based on the Provisions of Order 22 rule 19 of the Civil Procedure Rule. The conditions under rule 19 are cases where the application for execution is made more than one year after the date of the decree or the application is against the legal representative of a party to the decree. Courts in Uganda have developed a practice of issuing a notice to show cause even where the conditions in rule 19 of Order 22 are non-existent to make sure that no one is taken by surprise. In addition, Order 22 rule 34(1) provides for a notice to show cause where arrest and detention in civil prison are applied for as a mode of execution. The court may issue a notice to show cause before issuing the warrant of arrest and detention. In the application before the magistrates court the bailiff applied for a warrant of arrest and the magistrate was wright in issuing a notice to show cause.

The notice to show cause is not premised on a bill of costs and certificate of taxation. In this case the magistrate issued an order for distress on 22nd of March 2018 and a special certificate to levy distress on 28th March 2018 to the tune of UGX 2,450,000. On the 22nd March 2018 the Magistrate in her ruling granted a special certificate to levy distress of outstanding rent for the months of September, October, November and December 2017 as well as January to the tune of Ug.Shs. 1,800,000.

In the Order dated 22nd March 2018 the Magistrate ordered for a special certificate to levy distress, eviction and costs of the suit. The difference between UGX 2,450,000 and UGX 1,800,000 must have been based on the Distress for Rent (Bailiff) Rules in terms of fees for the bailiff, since the Civil Procedure Rules and Specifically Order 19 rule 34 (1) does not provide for a notice to show cause to be based on taxed costs, I find no merit in the applicant’s arguments.

The last issue (5th) is whether the orders of Kira Magistrates Court in Misc. Application No. 027 of 2018 were lawful?

Given the decision I have made in respect of issue 1 to 4, I find the orders of Kira Court in Misc. Cause No 027 of 2018 lawful since they were based on the law of Distress for Rent (Bailiffs) Act Cap 76 Laws of Uganda and the Rules made thereunder. The orders were equally based on the Civil Procedure Act and the Civil Procedure Rules. Basing on the above reasons, I hereby make the following;

  1. The application for revision by the application has no merit and is accordingly dismissed.
  2. Misc. Cause No. 027 of 2018 at Kira Court in respect of Distress for Rent was properly filed in accordance with the Distress for Rent (Bailiffs) Act.
  3. An application for distress for rent does not have to be accompanied by a list of properties or valuation report of the properties intended to be distressed in all circumstances.
  4. A notice to show cause why execution should not issue does not have to be premised on a bill of costs in all circumstances.
  5. The orders issued by Kira Magistrates Court in Miscellaneous Cause No. 027 of 2018 were lawful.
  6. The applicant’s application is dismissed with costs to the respondent.

I so order.

 

_________________________________

Immaculate Busingye Byaruhanga

Judge

20/03/2020