Atim and Another v Opio (Miscellaneous Application 16 of 2024) [2024] UGHC 735 (12 July 2024)

Full Case Text

# The Republic of Uganda

In the High Court of Uganda at Soroti Miscellaneous Application No. 0016 of 2024 (Arising from Execution Miscellaneous Application No. 037 of 2023)

(Arising from Taxation Application No. 033 of 2022) (Arising from Miscellaneous Application No. 029 of 2021) (All arising from Civil Suit No. 0005 of 2012)

Atim Sarah Francis

**#####################################**

2. Achiro Jennifer

(Both suing as legal representatives of the estate of the late Lamunu Margaret) 15

#### Versus

Opio Alvin *(Represented by Anyimo Harriet as Guardian Ad Litem)* ::::::::::::::::::::::::::::::::::::

$5$

# Before: Hon. Justice Dr Henry Peter Adonyo

Ruling

### 1. Introduction.

This is an application brought by way of notice of motion under Section 33 of the Judicature Act, Sections 82 & 98 of the Civil Procedure Act and Order 46, Order 9 rule 12, Order 52 rules 1& 3 of the Civil Procedure Rules for orders that the order of court for the arrest and detention of the applicants in the execution of costs in

- MA 29 of 2023 be reviewed and set aside, the 2nd applicant be released from Civil $5$ prison and costs of this application be provided for. - 2. Grounds.

The grounds of this application as set out in the application and supporting affidavit as sworn by Achiero Jennifer are that;

- a) The respondent was granted costs in his application to review a judgment in CS. 005 of 2012 in MA. 29 of 2023. - b) The costs were awarded against the late Lamunu Margaret during her life time, who was then the respondent in the application. - c) The applicants who are the daughters of the deceased joined the legal proceedings herein as legal representatives of the estate of the deceased specifically for the suit. - d) The respondents filed for taxation of costs and subsequently applied for execution of the costs as against the persons of the legal representatives of the estate of the deceased instead of recovering them from the estate itself. - e) The applicants were not represented neither were they informed of any such proceedings as to taxation and execution by the respondent nor their former advocates and the applications for taxation and execution proceeded *ex parte*. - f) The realisation of costs against the person of the legal representatives was in error as the costs were awarded to the estate of the deceased not their legal representatives of the deceased nor their property. - g) The applicants are prospective administrators of the estate of the late Lamunu Margaret who have not yet been granted letters of administration

- and are not in a position to assist the respondent realise his costs without letters of administration. - h) The applicants have not deliberately refused to cause payment of costs or wilfully acted to defeat the respondent from realising his costs. - i) The applicants have attempted to make payments to the respondent of six million shillings from their personal income but the respondent rejected payment. - j) If this application is not granted the estate of the deceased will go to waste. - k) The applicants have not preferred an appeal from the decision of this court. - 1) There is an error apparent on the face of the record of court. 15

The respondent in an affidavit in reply sworn by his guardian ad litem Anyimu Harriet stated as follows;

- a) The affidavit in support of the Notice of motion offends the provisions of the Illiterate's Protection Act. - b) That the 1st applicant has neither deponed the affidavit in support of the motion nor given Achiero Jennifer authority to depone one on her behalf. - c) That the late Lamunu Margaret initially filed CS. O5 of 2012 against Etengu Jotham and later sought leave to add the respondent as a defendant and the Hon. Justice Batema NDA, without the respondent's participation, entered a consent judgement. This consent judgement was successfully set aside vide MA. 29 of 2021 by Hon. Justice Tadeo Asiimwe with costs. - d) The respondent instructed his lawyers to pursue the issue of costs and vide Taxation Application 33 of 2022 a bill of costs was drafted and served on the applicants' former lawyers Erabu & Co. Advocates. However, before

$\mathsf{S}$

- the same could be taxed Lamunu Margaret passed on and the late Lamunu was later substituted by the applicants in CS 05/2012. - e) The court granted his lawyers authority to substitute the names of the late Lamunu with those of the applicants in TA. 33 of 2022. The amended bill reflecting the applicants was served on the law firm of Erabu & Co. Advocates. - f) On the 3rd day of November 2023, the bill of costs was taxed and allowed at Uganda Shillings Eleven Million Seven Hundred Ninety-Seven Thousand Two Hundred and on the 8th day of November 2023 his lawyers applied for execution by way of arrest and the notice to show cause why execution should not be issued. On the 13th day of November 2023, the court issued the notice to show cause why execution should not issue and the same was served by the court process server Okello Edward on the former lawyers Erabu & Co. Advocates. - g) Upon the applicants failing to show cause why execution should not issue, the court on the 28th of November 2023 issued a warrant of arrest in execution and the bailiff managed to execute the same. - h) That the 2nd applicant has not shown any willingness to pay the taxed costs at of Uganda Shillings Eleven Million Seven Hundred Ninety-Seven Thousand Two Hundred and has never made any commitment to pay the same.

i) The law permits execution by way of arrest and commitment to civil prison.

The respondent further filed a supplementary affidavit in reply sworn by Okaale Alfred the court bailiff who executed the warrant of arrest in EMA 37. of 2022. Therein he states that on 28th November he received a warrant of arrest in execution against the applicants and on the 8th day of December 2023 he managed to arrest the 2nd applicant and produce her before court. when the 2nd

$5$

applicant showed no signs of paying the debt she was committed to civil prison $5$ and he has never at any one time received money from the 2nd applicant and on 29th January 2024 he filed his return of execution.

In rejoinder the $2^{nd}$ applicant stated that she has the capacity to swear the affidavit jointly and on behalf of the 1st applicant as they have the same interests

- 10 which are in their common knowledge. That MA.29 of 2021 was successful as against Lamunu Margaret to whom costs were issued and the addition of the applicants to CS 05 of 2012 was for the purpose of its continuation and it does not override the principles under succession in respect of an estate of the deceased, where benefits and liabilities of an estate of the deceased can only be - enforced by a person with letters of administration which the applicants do not 15 have. That the execution of costs in EMA 37 of 2022 was done without her lawyers input or presence and she was never informed of the proceedings by her lawyer or the respondent. That the mistake of counsel should not be vested on a litigant.

#### 3. Representation. 20

The applicants were represented by M/s Wanambugo & Co. Advocates while the respondent was represented by Amodoi Associated Advocates. This matter proceeded by way of written submissions and the same have been duly considered and will be referred to as and when necessary.

4. Determination. 25

a) Preliminary points.

Counsel for the respondent submitted that the 2nd applicant's affidavit in support offends the requirements of section 3 of the Illiterates Protection Act which makes the application incurably defective and inadmissible. The sum of counsel's

submissions is that the affidavit in support does not have a certificate of $\mathsf{S}$ translation, yet the 2nd applicant thumb printed the same which is clear proof of illiteracy.

While the applicant made no submissions in this regard, the 2nd applicant in her affidavit in rejoinder stated under paragraph 6 that she is a literate person capable of fluently speaking, reading and writing in the English language.

The presence of a thumb print on a document does not on its own mean that the deponent is illiterate and without proof that the 2nd applicant cannot read, write or speak in English the language in which the affidavit was sworn, I find this objection unnecessary and the same is overruled.

Secondly, counsel for the respondent submitted that the 1st applicant did not file 15 any affidavit in support of the application and never granted any authority for the 2nd applicant to depone the affidavit on her behalf and therefore has not set out any evidence in regard to this application.

The 2nd applicant in her affidavit in rejoinder stated that she has the capacity to swear an affidavit jointly and on behalf of the $1^{\ensuremath{\text{st}}}$ applicant as they have the same 20 interests which are in their common knowledge.

I note that the 2nd applicant did not attach authority to swear the affidavit on her behalf and that of the 1st applicant as required by order 1 rule 12 of the Civil Procedure Rules, therefore it will be taken that the application was only

substantiated by the affidavit of the 2nd applicant. Second objection is sustained. 25 Be the above as it may, I will now turn to examine this application on its own merit.

5. Issue: $\mathsf{S}$

> Whether the application provides sufficient grounds for review of the order/warrant of arrest and detention of the applicants.

6. Submissions.

Counsel for the applicants having submitted on the law governing review under

section 82 of the Civil Procedure Act and Order 46 of the Civil Procedure Rules $10$ stated that the applicants were erroneously substituted in the place of the late Lamunu Margaret as "legal representatives" without an application and without being served or notified.

Counsel submitted that the applicants were not substituted as legal representatives to the estate of the late Lamunu as required by the law under 15 Order 24 of the Civil Procedure Rules and section 222 of the Succession Act and as such did not meet the legal requirements to be the legal representatives of the deceased.

Counsel further submitted that the applicants were not effectively served with

- 20 court process in TA.33 of 2022 and EMA 37 of 2022, whereby the respondent presumed that the former advocates of the deceased was the advocate for the applicants. That the served advocates did not participate in the applications causing the applications to proceed ex parte, thereby causing a miscarriage of justice. - Counsel for the applicants additionally submitted that the respondents were 25 erroneously executed in their personal capacity.

That the costs were granted upon the person of the late Lamunu Margaret which by law devolves to her estate upon her demise and it was therefore erroneous for the execution to be done by arrest of the applicants.

That this error would never have happened if the applicants were represented or $\mathsf{S}$ properly served.

In reply, counsel for the respondent submitted that the applicants were rightly substituted in the place of the late Lamunu as legal representatives after court granted the prayer to substitute them in the main suit.

Regarding service, counsel submitted that the applicants' current advocates only 10 received instructions from the applicants after the 2nd applicant was arrested and therefore are not the advocates on record prosecuting EMA 37 of 2022, TA 33 of 2022, MA 29 of 2021 and CS 005 of 2012.

That court process in all these applications was served on M/s. Erabu & Co. Advocates, the law firm on court record and documentary evidence to this effect 15 was attached to the respondent's affidavit in reply.

Court's findings.

First and foremost, it is the general principle of law that the court, after passing judgement, becomes functus officio and cannot revisit its judgement or purport to exercise judicial power over the same.

However, there are exceptions to this general principle of law because Section 82 of the Civil Procedure Act, Cap 71 (CPA), and Order 46 Rules 1 and 2 of the CPR, allow the High Court to sit in its judgement through the process of Review. This right Review is a creature of the statute and is found in section 82 of the CPA

which provides that; 25

(1) Any person considering himself or herself aggrieved—

(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or (b) by a decree or order from which no appeal is hereby allowed, and who from $5$ the discovery of new and important matter of evidence which, after the exercise of due diligence, was not within his or her knowledge or could not be produced by him or her at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order 10 made against him or her, may apply for a review of judgment to the court which

passed the decree or made the order.

(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party, except where the ground of the appeal is common to the applicant and the appellant, or

15 when, being respondent, he or she can present to the appellate court the case on which he or she applies for the review.

The grounds of review as seen in order 46 rule 1(b) was further elaborated in the case of FX Mubwike vs UEB HCMA No. 98 of 2005 thus;

- 20 - a) That there is a mistake or manifest mistake or error apparent on the face of the record. - b) That there is discovery of new and important evidence which after exercise of due diligence was not within the applicant's knowledge or could not be produced by him or her at the time when the decree was passed or the order made. - c) That any other sufficient reason exists.

In this application, the applicant focuses solely on mistakes or error apparent on the face of the record.

$5$ An error apparent on the face of the record is one which is manifest or selfevident and does not require examination or argument to argue it.

In Nyamogo and Nyamogo Advocates v Kogo [2001] 1 EA 173 (CAK), an error apparent on the face of the record was defined thus;

"An error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. There is a real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares one in the face, and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by a long drawn process of reasoning or on points where there may conceivably be two opinions, can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the court in the original record is a possible one, it cannot be an error apparent on the face of the record even though another view was also possible. Mere error or wrong view is certainly no ground for a review although it may be for an appeal."

In the same case the learned justices relied on the AIR Commentaries on the Code of Civil Procedure by Chitaley and Rao (4 ed) Volume 3 at 3227 where it was stated that:

A point which may be a good ground of appeal may not be a ground for an application for review. Thus, an erroneous view of evidence or of law is no ground for a review though it may be a good ground for an appeal.

In respect of this matter, I find it necessary to deal with the issue of service in $\mathsf{S}$ EMA No. 37 of 2023 and TA No. 33 of 2022, both which arose from MA No. 29 of 2021.

The record of Taxation Application No. 33 of 2022 against the late Lamunu Margaret, indicates that on the 27th day of April 2022, Ms. Erabu & Co. Advocates filed a notice of withdrawal of instructions.

In that letter it is stated that M/s Erabu & Co. Advocates are no longer representing Lamunu in the Taxation Application or Civil Suit No. 005 of 2012. However, there is no proof that this notice of withdrawal was ever served on Ms. Amodoi Associated Advocates, who are counsel for the applicant in Taxation

Application No. 33 of 2022. 15

> Interestingly, a letter dated 22nd of May 2023 from M/s Amodoi Associated Advocates, addressed to the applicants herein as c/o Ms Erabu & Co. Advocates, in regards to a pre-taxation conference was received by a one Benjamin of M/s Erabu & Co. Advocates on the 22nd of May 2023 and the same bears the law firm's receiving stamp.

> Also the record of Execution Miscellaneous Application No. 37 of 2023 indicates that a Notice to Show Cause Why Execution Should Not Issue dated 13th of November 2023 was addressed to M/s Erabu & Co. Advocates.

The affidavit of service on record dated 24th of November 2023 and deponed by a one Okello Edward, a process server, indicates that when he received the Notice to Show Cause Why Execution Should Not Issue and the application for execution on the 16th of November 2023, he proceeded to M/s Erabu & Co. Advocates where he met counsel in person whom he served him with the above documents which was received and acknowledged receipt on the court copy.

Indeed, the copies of the Notice to Show Cause Why Execution Should Not Issue $5$ and execution application attached to the affidavit indicate that they were received by a one Timothy who signed and it is dated 17th November 2023.

Further, the record of proceedings in EMA 37 of 2023 indicate that Mr. Erabu as counsel for the respondents, now applicant herein and on the date when the 2nd applicant herein was produced before court, court noted that counsel Erabu for the respondents was absent and the 2nd applicant did not raise any objection to

- him being her advocate. When the reason for her arrest was given, she simply stated that amongst others that her lawyer's phones is off and she does not have any money. - The record in Civil Suit No. 005 of 2012 indicates that on the 15th of February 15 2023, M/s Erabu & Co. Advocates filed a notice of instructions on behalf of Atim Sarah and Aciro Jennifer, the legal representatives of Lamunu Margaret and all correspondences in respect of the suit were to be addressed to them.

I have laboured to the sequence of events and the legality of the facts which show that the applicants prior to this application were fully and effectively represented 20 by M/s Erabu & Co. Advocates and that is the reason why the respondent herein directed service of all court process to this firm.

The fact is that the M/s Erabu & Co. Advocates never at any one time rejected any of the service of court process in TA No. 33 of 2022 and EMA No. 37 of 2023.

This acceptance is in itself proof that they were representing the applicants and $25$ were their agents and thus there was proper service.

Where M/s Erabu & Co. Advocates failed to inform the applicants of the court process in TA No. 33 of 2022 and EMA No. 37 of 2023, of which as rightly noted by counsel for the respondent that no proof in this regard has been adduced, the

same cannot be used as a ground for review of the orders made in TA No. 33 of $\mathsf{S}$ 2022 and EMA No. 37 of 2023.

Accordingly, I am satisfied that there was effective service on the applicants through their counsel, with court process in TA No. 33 of 2022 and EMA No. 37 of 2023.

The next and main issue raised by this application is that it was erroneous for the 10 applicants to be arrested in execution of the costs granted to the late Lamunu Margaret as they were not yet her legal representatives as required by the law.

The record of proceedings in Civil Suit No. 005 of 2012 from which all these applications arise, indicates that on the 18th of October 2022, Counsel Amodoi

for the 2nd defendant sought directions from court since the plaintiff Lamunu 15 Margaret was deceased.

The Court then adjourned the matter to enable a legal representative to be in court.

On the 14th of March 2023, counsel Erabu who undertook to file a fresh notice of instructions, informed court that he had consulted with the beneficiaries of the 20 late Lamunu and they had agreed that Atim Sarah and Aciro Jennifer be appointed under section 222 of the Succession Act to enable the matter proceed. He further stated that he had reprinted the amended plaint and served the same to his colleagues and that the defendants raised no objections undertaking to file amended Written Statements of Defence in that respect. That same suit was then 25 later on dismissed on the 20th day of September 2023 for want of prosecution.

I further note that there is a handwritten letter from M/s Wanambugo & Co. Advocates, the advocates for the applicants herein which was addressed to the Deputy Registrar of this court and received in court on the 11th of January 2024 a

one Wesonga Helga Mercy requests to peruse the record in MA No. 29 of 2021 $\mathsf{S}$ arising from Civil Suit No. 005 of 2012 and therein she states and I quote verbatim:

"We have been instructed by the family of the late Lamunu Margaret whose daughter, the administrator of her estate was imprisoned in civil prison in this matter."

Order 24 rule 3(1) of the Civil Procedure Rules provides for the procedure in case of death of a sole plaintiff, it states thus;

Where one of two or more plaintiffs dies and the cause of action does not survive or continue to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole

surviving plaintiff dies and the cause of action survives or continues, the court, on 15 an application made for that purpose, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit.

The procedure for making a legal representative a party to a suit under Order 24 rule 12 of the Civil Procedure Rules is by motion.

Section 180 of the Succession Act provides that the executor or administrator, as 20 the case may be, of a deceased person is his or her legal representative for all purposes, and all the property of the deceased person vests in him or her as such.

Section 2(a) of the Succession Act defines an administrator as a person appointed by a court to administer the estate of a deceased person when there is no executor.

Section 222 of the Succession Act provides for administration limited to suit and it provides thus;

When it is necessary that the representative of a person deceased is made a party to a pending suit, and the executor or person entitled to administration is unable

![](0__page_13_Picture_11.jpeg)

- or unwilling to act, letters of administration may be granted to the nominee of a $\mathsf{S}$ party in the suit, limited for the purpose of representing the deceased in that suit or in any other cause or suit which may be commenced in the same or in any other court between the parties, or any other parties, touching the matters at issue in that cause or suit, and until a final decree shall be made in it, and carried into - **complete execution**. (Emphasis Mine) 10

The record in Civil Suit No. 005 of 2012 as noted above clearly indicates that an oral application was made by Counsel Erabu in open court whereby the applicants herein substituted the late Lamunu Margaret as her legal representatives. Thereafter, the applicants' names were included in all the amended pleadings and

subsequent applications as the legal representatives of Lamunu Margaret. 15

The authority granted to the applicants as legal representatives of Lamunu Margaret in Civil Suit No. 005 of 2012, extended to TA No. 033 of 2022 and EMA No. 037 of 2023 as they arose from the said Civil Suit No. 005 of 2012.

Therefore, any orders made against the applicants in any of the applications following thereof were legally granted and in accordance with the grant made in 20 Civil Suit No. 005 of 2012 and as such I do not find any error apparent on the face of the record that would necessitate any review of the record of the court.

I also note that by their acquiescence the applicants DID NOT deny this authority but only now seek to question it because the 2nd applicant has been arrested in execution of the bill of costs.

## 8. Conclusions and Orders:

The above being so, I find that this application for that the order of court for the arrest and detention of the applicants in the execution of costs in MA 29 of 2023 be reviewed and set aside and that the 2nd applicant be released from Civil prison

does not have any merit as it was misconstrued and thus would thus be dismissed $\mathsf{S}$ with costs to the respondent.

I so order.

Hon. Justice Dr Henry Peter Adonyo

$\ldots\ldots$

Judge

12th July 2024