THE REPUBLIC OF UGANDA
IN THE HIGH COURT AT NAKAWA
CIVIL REVISION NO.11 OF 2012
BAZIRA TUMWINE ::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT
MUKUNGU FRED:::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT
BEFORE: HON JUSTICE MR.WILSON MASALU MUSENE
This was an Application by Notice of Motion under Section 83 and 98 of the Civil Procedure Act, Section 39 of the Judicature Act and Order 52 Rules 1, 2 and 3 of the Civil Procedure Rules for Revision. The Application was filed by Bazira Tumwine Callist, represented by M/S Sewankambo, Mubiru and Company Advocates, while the Respondent, Mukungu Fred was represented by M/S Ambrose Tebyasa and Company Advocates.
The Applicant was seeking orders that;
- The lower court record be recalled for Revision.
- That the lower court order transferring the suit from Makindye Chief Magistrate’s Court to Entebbe be declared irregular, and incompetent.
- That the Civil Suit No.338 of 2009 transferred to Entebbe Chief Magistrate’s Court be declared incompetent.
- Costs of the Application.
The background to this Application is that some time in 2008, the Applicant sold his house at Ndejje to the Respondent. However, the Applicant did not give vacant possession of the said house to the Respondent. Then the Applicant’s wife Pamela Tumubweine Bazira filed a suit against the Applicant and the Respondent as Defendants in Makindye Chief Magistrate’s Court (Civil Suit No.34 of 2008). After the Respondent learnt of the suit by the Applicant’s wife, he also filed Civil Suit No.338 of 2009 against the Applicant now in the same court of Makindye.
After the Plaintiff/ Respondent had testified, the Applicant through his Counsel alluded to the jurisdiction of the suit contending that the suit should be heard by the Entebbe Chief Magistrate’s Court. And it was after the transfer of the case to Entebbe Chief Magistrate’s Court that the Applicant has now filed this Application for Revision.
Counsel for the Applicant submitted that the territorial jurisdiction of the Chief Magistrate’s Court of Makindye is restricted to Makindye Division of Kampala. And that since the cause of action arose outside Makindye Division; the Chief Magistrate’s Court of Makindye had no territorial jurisdiction to entertain the suit.
Counsel for the Respondent on the other hand, submitted that the Applicant relies on an order from Makindye Chief Magistrate’s Court to frustrate the Respondent/Plaintiff from taking possession of the said land. And that the suit filed by the Applicant’s wife in the same court of Makindye has never been withdrawn and that the Applicant has never sought the orders therein to be vacated on account of alleged lack of territorial jurisdiction.
Before a Revision is undertaken, this court has to be satisfied that the lower court exercised jurisdiction not vested in it or failed to exercise such jurisdiction so vested or acted with material irregularity resulting into a miscarriage of justice.
As far as the present case is concerned, there is no decision or Judgment or order of the Chief Magistrate’s Court of Makindye or Entebbe being complained of which has occasioned a miscarriage of justice.
In my view, as soon as the Chief Magistrate’s Court of Makindye’s attention was drawn to the territorial jurisdiction, the Chief Magistrate transferred Civil Suit No.338 of 2009 to Entebbe Chief Magistrate’s Court. The Chief Magistrate’s Court of Makindye did not hear the case and did not give Judgment. If that had been done, then the Judgment and orders of the Chief Magistrate Makindye would have been revised on the basis of lack of territorial jurisdiction. In the present circumstances, there is nothing to revise by this court as the case is still pending.
Secondly, given the fact that the suit was filed by a lay person Mukungu Fred who was in turn prompted by a suit filed by Applicant’s wife and as no Judgment was given at Makindye, and whereas two wrongs do not make a right (as both Respondent and Applicant’s wife filed cases in a wrong forum with regard to territorial jurisdiction, then the Chief Magistrate Makindye did nothing wrong to transfer the file to Entebbe Chief Magistrate’s Court for hearing.
That was a matter of common sense and administrative expediency. There was no prejudice caused to either party and there was no need of a formal ruling by the Chief Magistrate Makindye. A mistake was realized and the Chief Magistrate sent the file to the court which had territorial jurisdiction. There was therefore no error as the Chief Magistrate did the correct thing and it would have amounted to more delay to wait for the Registrar to transfer the case which would be the same result.
In view of the constitutional mandate of the courts in Uganda to administer substantive justice, this court is not impressed by the vague reasoning of Counsel for the Applicant. Advocates are officers of Court and will not be allowed to use semantics and outdated advocacy tactics to delay the hearing of cases and consequent administration of justice. Even to a 1st year law student of Makerere University, it would be obvious that the moment Makindye court did not have jurisdiction as the cause of action arose at Ndejje in Wakiso District then Entebbe Chief Magistrate’s Court had jurisdiction.
How can Counsel for the Applicant then complain or apply for Revision when the file/case is in the correct forum of Entebbe Chief Magistrate’s Court. What is there to Revise in the circumstances? What prejudice has been caused as a result of the transferring a case to the correct court to hear it on its merits?
I take this opportunity to warn Advocates that as officers of Court, they should adhere to professionalism and correct Application of the law and advise their clients correctly, and be practical, as opposed to the laisser fair attitude leading to prolonged stay of the case filed in 2008 in the courts without hearing. This is 2014 and 6 years down the road the case is not heard on the merits .And Counsel has the courtesy to come to this court under the guise of Revision so that I declare that the Chief Magistrate acted illegally and so the case should be dismissed without being heard? Will that be justice in the eyes of the peasant in Ndejje, Wakiso District? And yet the same Applicant Bazira Tumwine and his advocate have not denied the submissions by M/S Ambrose Tebyasa and Company Advocates that the Applicant relies on an order from the same Makindye Magistrate’s Court through the suit filed by his wife to frustrate the Plaintiff/Respondent from taking possession of the suit property.
Counsel for the Applicant in reply to what M/S Ambrose Tebyasa stated said;
“The order is being used by Pamela Tumubweine as a rightful owner thereof and as an independent party……”
And moreover that is in reference to an order of the same court which he has correctly challenged as having no territorial jurisdiction. To make matters worse, the subject matter of both cases, by Applicant’s wife and by Respondent is in respect of the same property at Ndejje. It is indeed an irony and justice must not only be done but must be seen to be done by all concerned parties.
In conclusion, therefore I find mo merit whatsoever in this Application which is hereby dismissed with costs.
And in further exercise of this court’s powers under Section 98 of the Civil Procedure Act and Section 33 of the Judicature Act, I do hereby order that the file be remitted or sent back to Entebbe Chief Magistrate’s Court for hearing the case on the merits expeditiously. (Fast trucking).
Finally, and without pointing any accusing fingers, I appeal to all Advocates in Uganda to remain officers of Court and to assist the Courts in this country to dispense Justice fairly to all manner of people without distinction.
WILSON MASALU MUSENE