Amoko v Wasige & 6 Others (Miscellaneous Application 463 of 2023) [2023] UGCommC 216 (3 May 2023)


# **IN THE HIGH COURT OF UGANDA SITTING AT KAMPALA COMMERCIAL DIVISION**

Reportable Miscellaneous Application No. 463 of 2023

In the matter between

**JACQUELYN AMOKO APPLICANT**

**And**

- **1. NOAH WASIGE** - **2. RUSA BRIAN** - **3. ZAHARA BHATTY** - **4. ROBERT KIRUNDA** - **5. DENIS BABIGUMIRA** - **6. EDWIN WALTER TUMUSIIME** - **7. PRESTIGE PINE VILLAGE LTD RESPONDENTS**

**Heard: 03 May, 2023. Delivered: 26 September, 2023.**

*Civil Procedure - review - discovery of new matter of evidence - such matter of evidence must be relevant and must be of such a character that if the same had been produced, it might have altered the judgment - The matter of evidence must have emerged after passing of the judgment or order - Evidence that would reasonably be in the knowledge of and, with due diligence, available to an applicant will not qualify.*

# **RULING**

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## **STEPHEN MUBIRU, J.**

Introduction:

- [1] The 1st to 6th respondents are shareholders and / or directors of the 7th respondent, which is a private limited liability company. Sometime before the year 2020, the respondents conceived the idea of acquiring 23 acres of land comprised in Kyadondo Block 185 Plot 546 for the development of an upscale housing estate to be known as "Prestige Pine village." The respondents incorporated M/s African Kings (U) Limited specifically as a special purpose vehicle to run that project. That land on which the project was to be constructed was accordingly registered in its name. - [2] The applicant being desirous of purchasing two units of the planned housing estate, paid a total of US \$ 83,963 and shs. 46,307,500/= to the 7th respondent as part payment towards the purchase price. For various reasons, the project could not be executed as planned which prompted the applicant to file HCCS No. 24 of 20l9 against the 7th respondent for the recovery of that sum. The 7th respondent entered a Consent Judgment dated 14th June 2019 by which it undertook to pay the applicant the sum claimed together with interest and costs. - [3] When the applicant later discovered that the land comprised in Kyadondo Block 185 Plot 546 did not belong to the 7th respondent but to M/s African Kings (U) Limited and that it was also mortgaged to Absa Bank, she filed HCMA No. 407 of 2020 seeking to lift the 7th respondent's corporate veil, citing inability to enforce the decree against the 7th respondent for lack of assets to its name. The Court granted the application on ground that the acts of the 7th respondent were indicative of fraud, rendering it necessary to lift the corporate veil in order to satisfy the decree. The Court permitted execution to proceed against the directors of the 7th respondent. The applicant then filed EMA No. 498 of 2021 seeking execution of the decree. The learned Deputy Registrar issued warrants of arrest and detention of the 1st - 6th respondents, for recovery of the decretal sum.

[4] The respondents being aggrieved by the said ruling applied to court by way of Appeal No. 0042 of 2022 for orders that the warrants of arrest be set aside on account of the fact that they were willing and capable of paying the judgment debt and that they had property which was in their possession which could satisfy the judgment debt. Court ruled in their favour, set aside the orders issued by the learned Deputy Registrar with costs, and ordered that the Judgment creditor sells property they had offered, comprised in Kyadondo Block 185 Plot 456, to satisfy the debt. The applicant now contends that the said property is unsellable, hence this application.

#### The application.

- [5] The application is by Notice of motion made under the provisions Orders 46 rules 1 (1) (b) and 8 of *The Civil Procedure Rules.* The applicant seeks a review and setting aside of the orders made in Civil Appeal No. 0042 of 2022. It is the applicant's case that the order directing the attachment and sale of property comprised in Kyadondo Block 185 Plot 13869 in satisfaction of the judgment debt owed by the respondents to the applicant under Civil Suit No. 24 of 2019 is incapable of enforcement because the land is in a water-logged area and cannot be utilised without approval from the National Environment Management Authority (NEMA); the real acreage on the ground is less than that reflected on the title deed since some of the land has third party interests and parts of it constitute a network of access roads, among other reasons. - [6] The actual size of the property (as per the cadastral drawings) is 1.0615 hectares and not 2.153 hectares as indicated on the duplicate certificate of title to the Property which was availed to court. Of the 1.0615 hectares available, 0.62 of an acre is in a water logged area with restricted use and requires a User Approval Certificate from the National Environment Management Authority (NEMA) to utilise it. Another portion measuring 2.003 acres is designed for access roads to serve several properties subdivided within the neighbourhood. That information was

known to the applicants who withheld it from court and misled court to issue orders which cannot be enforced. In the circumstances, the mode of execution ordered by court, being sale of immovable property comprised in Kyadondo Block 185 Plot 13869 is not possible.

[7] The applicant prays that the court be pleased to reinstate the warrants of arrest issued in EMA No. 498 of 2021 to enable the judgment creditor obtain the fruits of her long-awaited decree since this information was not reasonably available to the applicant before or during the prosecution of her claim in the application against which an order for review is made nor the main suit.

#### The 4th respondent's affidavit in reply;

- [8] In the 4th respondent's affidavit in reply, it is contended that the information pertaining to the property does not constitute new and important information which, with the exercise of due diligence, could not be obtained by the applicant before the court issued the orders that the applicant seeks to review. The applicant's lawyers held the certificate of title for five months before formal execution proceedings commenced. They then held the certificate of title for an additional two months as part of the formal execution proceedings. That was more than sufficient time for the applicant to exercise due diligence over the property, undertake a valuation of the property and compile a valuation report showing that that the title was what she claims it is. The 5th respondent first handed the said certificate of title to the 4th respondent's lawyers on the 11th November 2022, three days before the court proceedings on 14th November 2022. That period of time was insufficient for the 4th respondent to carry out due diligence to ascertain its value and whether it was in a wetland, as the applicant claims. - [9] The 4th respondent has since identified several other properties capable of attachment and sale to satisfy the judgment debt. These properties are land belonging to M/s African Kings (U) Limited comprised in Kyadondo Block 185,

Plots 13828, 13858, 13859, 13860 and 13861; all at Kira Municipality, Wakiso District. The applicant also has the option of attaching the proceeds from a Framework Contract with a value of receivables to M/s African Kings (U) Limited that far exceed the outstanding decretal amount. M/s African Kings (U) Limited has wholly assumed liability for the judgment debt and demonstrated willingness and the means to settle it. It is in the interests of justice that the court denies the application for a warrant of arrest against the 4th respondent, given that he has made every effort in his means to ensure that the applicant receives her payment to settle the judgment debt.

# Submissions of counsel for the applicant

[10] Counsel for the applicant submitted that the judgment debtors have expressed wilful failure to clear the judgment debt which keeps accumulating with every passing year, in spite of the sufficient means and absence of more urgent pressing claims on their resources. The new information on the face of court's record in terms of misleading court to believe that; the size of the land is 2. 153 hectares as seen on the certificate of title as opposed to the actual size of the property being 1.0615 hectares out of which 0.25 hectares (0.62 acres) is a wetland and 0.81 hectares (2.003 acres) are designed access roads. The subject property therefore is incapable of being sold which is contrary to the representations made by the respondents in court. The portion available is not sellable. They concealed information from the Court. The applicant was condemned in costs. There were sub-divisions.

# Submissions of Counsel for the 4th respondent;

[11] Counsel for the 4th respondent submitted that there is evidence that at the time the appeal was heard, the respondents had notice that it was a wetland. Paragraph 6 of the affidavit in reply is to that effect. The applicant had had the title in her custody for seven months. It was handed to her as security for repayment of the debt. It was offered by the 5th respondent. The applicant paid her lawyers some money to value the property. The valuation was done post the application. It was not concealment of information. The respondents were not in positon to tell the factual status. The land has not been valued yet.

#### The decision.

- [12] Decisions of this Court on appeal are considered final and binding as far as the court itself is concerned. Once the court has delivered its decision on a matter, it ceases to be seized of the case and in law it becomes *functus officio* and cannot re-open it for any purpose whatsoever, save by way of review. Review is the act of looking over something again with a view of correction or improvement. Order 46 rule 1 (b) of *The Civil Procedure Rules*, empowers this court to review its own decisions upon discovery of new and important matter of evidence (see *Kasule Sowedi v. Kasujja Henry [1979] HCB 99* and *Ndawula J. v. G. B. Mubiru and Departed Asians Custodian Board [1976] HCB 106*). The party seeking review must show that he or she exercised greatest care in adducing all possible evidence and that the new evidence is relevant and that if it had been given in the suit it might possibly have altered the judgment. It must be a new and important matter which was not within the knowledge of the party when the decree was passed or order made. Absence of such important matter of evidence on record at the time of decision, must not be the result of negligent attitude of the concerned, - [13] Where a review is sought on the ground of discovery of new matter of evidence, such matter of evidence must be relevant and must be of such a character that if the same had been produced, it might have altered the judgment. It must have emerged after passing of the judgment, and was not within the knowledge of the party seeking review or could not be produced before the passing of the judgment, despite the party having undertaken an exercise of due diligence. In other words, mere discovery of new and important matter of evidence is not sufficient ground for review; the party seeking review has also to show that such additional matter

of evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the Court, earlier.

- [14] An application for review, it must be remembered, has a limited purpose and cannot be allowed to be an appeal in disguise. A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the Court. It may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of an appellate court. Re-evaluation of new points of arguments or questions of law is excluded from the scrutiny of the Court in valid exercise of review jurisdiction. If it is suggested that the Court has come to an erroneous decision either in regard to fact or law then amendment of its order cannot be sought, but recourse must be had to an appeal to the extent to which appeal is available. - [15] In the instant application, it is argued that the fact that Kyadondo Block 185 Plot 13869 being unsellable in satisfaction of the judgment debt owed by the respondents to the applicant under Civil Suit No. 24 of 2019 because it is in a water-logged area which cannot be utilised without approval from the National Environment Management Authority (NEMA); the real acreage on the ground being less than that reflected on the title deed since some of the land has third party interests and parts of it constitute a network of access roads, qualify as a new and important matters of evidence which, after the exercise of due diligence, were not within the applicant's knowledge or could not be produced by her at the time when the order was made. - i. Discovery of a new matter of evidence; - [16] The matter of evidence must have emerged after passing of the judgment or order. It should be newly discovered evidence which existed at the time of the hearing but came to the applicant's notice only after the decision was delivered. It may take

any form of material items, information or assertions of fact that may be submitted to a competent Court as a means of ascertaining the truth of any alleged matter of fact under investigation before it.

[17] In the instant case, the applicant relies on a valuation and survey report as supportive of the assertion that Kyadondo Block 185 Plot 13869 is unsellable on account of being largely located in a restricted or controlled wetland, that on the ground it is significantly smaller than the acreage depicted in the title deed, and that the usable part is much smaller since parts of the land are traversed by access roads while others are affected by third party claims. It is clear from the report dated 5th December, 2022 that these facts were ascertained after the decision of this court delivered on 14th November, 2022. The instructions given to the valuer M/s Synergy Surveys & Associates, were for carrying out a field survey of the land "in order to verify its location, opening its boundaries and verification of its existence." This was done by measuring the length of its boundaries, locating the mark-stones and aligning them with those indicated on deed plan in the Certificate of Title. The report describes the land as follows;

## Location and Access;

Three of the mark-stones for the Plot were physically located on the site: the others had been removed or deeply covered, but the Plot's extents were ascertained using Plot 13869's relative positions and direction with respect to the measured extents of the subject properties and the setup of the neighbouring plots. The results of the exercise showed that the boundaries of the subject property are the same measurements in length as indicated on the certificate of the title. The area of Plot 13869 computed from the field measurements is approximately 1.06 l 5 hectares/2.623 acres and not 2.153 hectares or 5.320 acres as indicated on the Title. This therefore requires rectification before any Legal transaction.

## Developments and Other Features;

The Plot is gently sloping partly designed as an access road to serve other plots and partly swampy. The neighbourhood features middle and high-income residential properties. Shimoni Schools plus vacant plots. It was noted that a portion measuring about 0.62 acres of the Plot is vacant and swampy.

[18] The nature of the instructions given having been to undertake a survey "in order to verify its location, opening its boundaries and verification of its existence," are indicative of the fact that at the time of hearing the appeal, the applicant was unaware of the actual boundaries of the land, although she may have had knowledge of its location in general terms. Consequently, the bailiff appointed to sell the land in execution of the decree, filed a return on 2nd January, 2023 explaining how those factors hindered a sale by public auction. He stated as follows;

> On the 18th day of November, 2022, this Honourable court issued warrant of attachment and sale of immoveable Property belonging to the Defendants/Judgment Debtors to wit: Plot No. 13869 Block 185 measuring approximately 2.153 area in Hectares at Namugongo, Kyadondo, Wakiso District of Uganda. I diligently did cause the advert in the New Vision Paper on the 22nd November, 2022 on page 32. Copy of the News Paper Advert and a valuation report of the, land are hereto attached and marked "A" & "B" Respectively.

> However, upon obtaining the Valuation report and from my experience, I found that no sale can be done because of two reasons;

- 1. The size of the plot is approximately 1.0615 hectares and not 2.153 hectares as indicated on the Duplicate Certificate of Title that the Judgement debtors gave Court for sale. A copy of a search report to this effect is attached as "'C.". This appears to be a result of subdivisions which is not reflected in any amendment of the area of the land on the Duplicate Certificate of Title. Further the surveyed land (from what is represented on the Duplicate Certificate of Title) has third party rights as 2.003 acres constitutes designed access roads to serve the sub-divided plots which have developments. All this information was not brought to the attention of Court before the warrant was issued. Refer to the said valuation report as annexure "B" above at page 1 & 2. - 2. To make matters worse, about 0.62 of an acre of the said plot is water logged. This is restricted for use as one would require a certificate of approval for use from NEMA. Refer to the said valuation report as annexure "B" above at page 1 & 2.

It is against this background that I make a return in respect of the same and consequently apply to this Honourable Court for a warrant of arrest against all the Defendants/Judgment debtors so as to enable me complete execution. [19] On account of the material placed before Court, I am satisfied that the disparities in specifications of the land, its actual physical boundaries, its detailed topology and the fact that parts of it are traversed by access roads while others are affected by third party claims, and that all those factors combined render the land unsellable by public auction in execution of the decree, are newly discovered matters of evidence which existed at the time of the hearing, but came to the applicant's notice only after the decision was delivered.

## ii. An item or information that is relevant and admissible;

- [20] Evidence will be relevant where its existence tends to indicate that one of the facts in issue is more or less likely. It must be an item or information proffered to make the existence of a fact more or less probable; it has any tendency to make a fact more or less probable than it would be without the evidence and the fact is of consequence in determining the action, no matter how slight its probability is. This is decided by analysing the capability or capacity of the evidence to rationally affect the probable existence of a fact in issue. Once evidence is shown to be relevant, that evidence is admissible in court unless it is excluded by some other rule of law or evidence. In determining whether relevant evidence should still be excluded, the court is concerned with focusing on the legal issues in the case and avoiding distractions that certain pieces of evidence present. Consequently, the court may exclude relevant evidence when the probative value of the evidence is substantially outweighed by the danger of one or more of the following: unfair prejudice, confusing the issues, misleading the Court, undue delay, time wasting, and needlessly presenting cumulative evidence, or otherwise capable of provoking some irrational, emotional or illogical response, or by giving the evidence more weight than it deserves. - [21] The issues at hand at the hearing of the appeal related to whether or not the choice of mode of execution by way of arrest and imprisonment of the respondents was the most suitable in the circumstances for the execution of the decree. Evidence

relating to disparities in specifications of the land, its actual physical boundaries, its detailed topology and the fact that parts of it are traversed by access roads while others are affected by third party claims, and how all those factors combined render the land unsellable by public auction in execution of the decree, have the tendency to make the issue of whether or not Kyadondo Block 185 Plot 13869 is sellable in execution of the decree, more or less probable than it would be without the evidence. That issue happens to be of consequence in determining the mode of execution of the decree. I am therefore satisfied that the new matters of evidence discovered by the applicant, are relevant. Their probative value is not substantially outweighed by any danger likely to occasion an injustice.

## iii. An item or information of such character that if it had been produced, it might have altered the judgment or order sought to be reviewed.

[22] It should be an important matter of evidence in the sense of being highly probative, such as would potentially persuade the Court to reach a substantially different conclusion from that sought to be reviewed. It must be demonstrated that the item or information newly discovered has a significant probative value; the capacity to rationally affect the assessment of the probability of the existence of a fact in issue. The determination of whether or not the evidence has significant probative value involves an assessment and prediction of the probative value that the Court might ascribe to the evidence: An assessment of the significance of its probative value depends on both the nature of the fact in issue to which it is relevant and its importance in establishing that fact. Each piece of relevant evidence will be considered based on its "probative value," which is the weight or persuasive value that the court assigns to that particular piece of evidence when considering its value towards proving a point of fact in question for the case being heard. Some evidence may lack probative value not because it is unreliable, but because it is simply unconvincing.

- [23] In the instant case, the issues at hand at the hearing of the appeal having related to whether or not the choice of mode of execution by way of arrest and imprisonment of the respondents was the most suitable in the circumstances for the execution of the decree, and the court on the evidence before it then having decided to proceed with attachment and sale of a specific property instead, new evidence relating to disparities in specifications of the specific land, its actual physical boundaries, its detailed topology and the fact that parts of it are traversed by access roads while others are affected by third party claims, and how all those factors combined render the land unsellable by public auction in execution of the decree, has the capacity to rationally affect the assessment of the probability of the issue of whether or not Kyadondo Block 185 Plot 13869 is sellable in execution of the decree. - [24] That issue happens to be of consequence in determining the mode of execution of the decree. I am therefore satisfied that the new matters of evidence discovered by the applicant, could potentially persuade the Court to reach a substantially different conclusion from that sought to be reviewed. It is evidence which might have altered the judgment if it had been produced at or before the hearing of the appeal. - iv. The party having undertaken an exercise of due diligence, it was not within the knowledge of the party seeking review; or if it was, it could not be produced before the judgment was passed; - [25] Evidence that would reasonably be in the knowledge of and, with due diligence, available to an applicant will not qualify. Due diligence is assessed based on such personal knowledge as can be gained through first hand observation or experience, as distinguished from a belief based on what someone else has said, in circumstances where, by the standard of a reasonable person, there is a duty of finding out. It is trite that whatever is sufficient to put a person on inquiry amounts in point of law to notice, provided there is a duty to make the inquiry and such

inquiry could lead to a knowledge of facts which, under the circumstances of the particular case, calls for application of the rule in order to do equity. The law will not permit an applicant to remain wilfully ignorant of an item or information readily ascertainable by whatever puts him or her on inquiry, when the means of knowledge is at hand. If the applicant has either actual or constructive information and notice sufficient to put him or her on inquiry, he or she is bound, for his or her own protection, to make that inquiry which such information or notice appears to direct should be made. If the applicant disregards that information or notice which is sufficient to put him or her on inquiry and fails to inquire and to learn that which he or she might reasonably be expected to learn upon making such inquiry, then he or she must suffer the consequence of that neglect.

- [26] It is in essence contended by counsel for the 4th respondent that since the applicant had the certificate of title to the land in her possession for more than seven months before the appeal was heard, she would with exercise of due diligence, have obtained knowledge of the fact that there were disparities in the specifications of Kyadondo Block 185 Plot 13869, got acquainted with the actual location of its physical boundaries, its detailed topology inclusive of the wetland, the fact that parts of it are traversed by access roads while others are affected by third party claims, and how all those factors combined could render the land unsellable by public auction in execution of the decree. Determining whether or not the applicant failed in exercising due diligence calls for examination of the circumstances in which she obtained and took custody of the title deed. - [27] The process was triggered by the applicant filing an application seeking recovery of the debt by way of arrest and imprisonment of the 1st to 6th respondents. To avert their arrest, the respondents during or around the month of February, 2022 offered her the title deed to Kyadondo Block 185 Plot 13869 on which the project had been proposed to be constructed, as security to enable the 1st respondent pursue alternative financing through commercial banks. It is at the hearing of the appeal on 14th November, 2022 that it was first suggested that the land could be

sold in lieu of recovery by way of their arrest and imprisonment, hence the process of opening its boundaries.

[28] It appears to me that between the month of February, 2022 and 14th November, 2022, considering that the title deed to the land was in her custody only as security for payment of the debt, it would not be reasonably expected of her to undertake the costly process of opening the boundaries of the land. Without opening the boundaries, there is no way she could have obtained knowledge of the multiple latent limitations such as have subsequently emerged, affecting its marketability. By the standard of a reasonable person, there was no duty of finding out the marketability of the land until the decision made on appeal on 14th November, 2022. It is when that duty accrued that indeed she was able to find out. I am therefore satisfied that her lack of knowledge of these critical facts was not as a result of lack of due diligence.

## v. Variation as an alternative to setting aside.

[29] Section 82 of *The Civil Procedure Act* confers an unfettered discretion in the Court to make such orders as it thinks fit on review and the omission of any qualifying words in the section was deliberate (see *Sarder Mohamed v. Charan Singh Nand Sing and another [1959] EA 793*). While Order 46 of *The Civil Procedure Rules* restricts the grounds for review, this section does not. Consequently, the ground need not be analogous with the other grounds specified in the Rules because such restriction would be a clog on the unfettered right given to the Court by section. A significant change either in factual conditions or the law, that makes compliance with the order substantially more onerous, could suffice. However, this is a jurisdiction that has to be exercised cautiously and only where it will serve to promote public interest and enhance public confidence in the rule of law and our system of justice. This Court has inherent jurisdiction to vary, modify or extend its own orders if, in its view, the purposes of justice require that it should do so, instead of setting aside the order.

- [30] To set aside an order is to give a remedy that deprives the order of binding legal force where court committed fundamental errors in their ruling, by treating it as legally inoperative, in the sense of being disregarded. Once the court deprives its decision of binding force, it can declare that the applicant has no duty to comply. An order may not be set aside in the process of review unless clear or manifest error was committed in arriving at the decision; when the reviewing court, on the face of the record, is left with the definite and firm conviction that a mistake was committed. A finding is not clearly erroneous if it is arrived at on appreciation of evidence, save where there is a manifest ignorance or disregard of relevant provisions of law or facts. - [31] Judicially-imposed remedies must be open to adaptation when unforeseen obstacles present themselves, to improvement when a better understanding of the problem emerges, and to accommodation of a wider constellation of interests than is represented in the adversarial setting of the courtroom. The court may therefore vary its orders when it is proved that; - (i) aspects of the order were erroneously granted; (ii) there is an ambiguity, or a patent error or omission in the order, but only to the extent of such ambiguity, error or omission; (iii) the order was granted as the result of a mistake common to the parties, or the facts on which the original decision was made were (innocently or otherwise) misstated; (iv) circumstances have arisen that render the order inoperative or impracticable. Where there has been a material change of circumstances; (v) one or more of the obligations placed on the parties later becomes impermissible under law; (vi) statutory or decisional law has changed in such a way as to make legal what the order was designed to prevent; (vii) any other sufficient case. The court has a wide discretion to vary or revoke previous orders, but consideration must be given to the finality of litigation and the need to avoid undermining the concept of appeal. - [32] The power should not be used to circumvent the important principle that final orders are intended to be final and that the only way to set aside a final order is ordinarily by way of an appeal. It is either interlocutory or continuing orders that

may call for variation as they continue. Interim orders or interlocutory orders do not finally decide anything as of right between the parties. They include case management decisions which govern the procedure by which those rights will be determined. In contrast, final orders determine between the parties the issues which are the subject matter of the litigation and which give rise to a cause of action estoppel between those parties. Justice requires that any challenge to final orders is via the appeal process rather than applications for variation or revocation, unless there are exceptional circumstances.

- [33] Generally, this power will be invoked where the original order was made on the basis of erroneous information or where subsequent unforeseen events have destroyed the basis on which it was made, or where it is necessary for accommodation of a wider constellation of interests. However, given the public policy principle of finality of litigation, it does not automatically follow that where such facts are proved, the order will be varied where it is a final order. It will normally take something out of the ordinary to lead to variation of an order, especially where there has been no change of circumstances. The court will have performed its duty once it made a final order. That being so, save where the court has (exceptionally) retained jurisdiction and power over the performance of final orders, the only route of challenge is by way of appeal or by way of separate proceedings seeking to set aside the order as having been induced by false representations. - [34] It is not appropriate for an applicant making repeated applications for variation to have "innumerable bites of the cherry" without showing either a material change of circumstances or an obvious mistake in the original decision. Circumstances which were known to and within the control of the party at the material time cannot found a material change in circumstances. It sometimes happens that what was anticipated when a court order was made, does not occur, or the factors upon which it was based have since changed materially or substantially. In both cases the order may have to be varied to reflect the changed circumstances. If the

circumstances which were relevant to the making of the original order change in a way that cannot have been predicted, then an application to vary that order can be made.

[35] In the instant case, the decision to recover the debt by way of attachment and sale of the respondents' property, specifically Kyadondo Block 185 Plot 13869, rather than by their arrest and imprisonment, was not final so as to trigger the doctrine of *functus officio*. That decision was premised on the assumption that the land offered by the respondents in lieu of their arrest and imprisonment, could be sold and the proceeds applied toward liquidation of the judgment debt. The applicant has demonstrated not only that the facts on which the decision was made were (innocently or otherwise) misstated, but also that the order has turned out to be inoperative or impracticable. If not set aside, the applicant will be left with an unsatisfied decree.

## Order:

[36] For all the foregoing reasons, the order directing recovery of the judgment debt by sale of Kyadondo Block 185 Plot 13869 that was made on 14th November, 2022 in Appeal No. 0042 of 2022 is hereby set aside. The applicant is henceforth at liberty to seek recovery of the judgment debt by any of the modes specified by *The Civil Procedure Act* and *The Civil Procedure Rules*, save that in line with current practice (see *Geoffrey Opio v. Felix Obote and two others, H. C. Miscellaneous Civil Application No. 81 of 2018*), recovery by way of arrest and imprisonment of the respondents is to be adopted as a measure of last resort in the absence of any other practical alternative. Being the successful litigant, the costs of this application are awarded to the applicant..

> Stephen Mubiru Judge.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Appearances

For the applicant : M/s V. Agaba Advocates & Legal Consultants.

For the 4th respondent : M/s Kirunda & Wasige Advocates.