Atukundire v Banyenzaki and Another (Miscellaneous Application 377 of 2023) [2024] UGHC 991 (25 October 2024)


# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MBARARA MISCELLANEOUS APPLICATION 377 OF 2023 (ARISING FROM HCT CIVIL SUIT 008 OF 2020)**

**ATUKUNDIRE SMART BANYENZAKI ------------------------- APPLICANT**

## **VERSUS**

- **1. BANYENZAKI JAMES --------------------------------- RESPONDENTS** - 2. **MATAYO TUMWINE**

**BEFORE**: Hon. Justice Nshimye Allan Paul. M.

### **RULING**

#### **BACKGROUND**

The applicant filed this application for review by way of a notice of motion supported by an affidavit in support and a supplementary affidavit. She based her application on the law under Article 126 of the Ugandan Constitution, Section 82 of the Civil Procedure Act, Section 33 of the Judicature Act, Order 46 rule 1 and Order 52 Rule 1 CPR. The orders sought in the application are that

- 1. The order for costs in civil suit 008 of 2020 be reviewed and set aside. - 2. Costs of the application.

The 1 st respondent filed an affidavit in reply. The 2nd respondent did not file an affidavit in reply despite being served as per the affidavit of service of Nasasira Arnold filed on court record.

#### **SUBMISSIONS**

The court has considered the submissions on record, the pleadings and the affidavit evidence to determine the matter.

#### **DETERMINATION**

In principle this court is empowered to review and revise a judgment as was stated by Hon Justice Musa Ssekaana in his ruling in **LUITINGH LAFRAS AND ANOR V SPECIAL SERVICES LIMITED HCT CIVIL MISCELLANEOUS APPLICATION 572 OF 2020** where he said that**;**

*"A review is reconsideration of the subject matter by the same court and by the same judge. Since he/she is better suited to correct to remove any mistake or error apparent on the face of his/her own order. It is the duty of the court to correct grave and palpable errors committed by it to prevent miscarriage of justice."*

This court therefore has a duty, when moved by an aggrieved person, by way of an application to investigate the grievances raised, and where necessary address the them by way of a review. The law governing review is **SECTION 82 OF THE CIVIL PROCEDURE ACT CAP 282** and **ORDER 46 RULE 1 OF THE CIVIL PROCEDURE RULES S. L 71-1.**

Section 82 of the Civil Procedure Act CAP 282 states that;

#### *"Any person considering himself or herself aggrieved—*

*(a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or*

*(b) by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order on the decree or order as it thinks fit." (Bold emphasis added.)*

and Order 46 rule 1 of the Civil Procedure Rules S.l 71-1 which provides that;

*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 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 made against him or her, may apply for a review of judgment to the court which passed the decree or made the order.(Bold Emphasis added.)*

An aggrieved person was defined in **Mohamed Allibhai Vs W. E Bukenya Mukasa & Departed Asians Property Custodian Board Supreme Court Civil Appeal No. 56 of 1996**, where Hon Justice Odoki, JSC, explained that;

*"A person considers himself aggrieved if he has suffered a legal grievance. A person suffers a legal grievance if the judgment given is against him or affects his interest."*

This implies that the applicant has a legal burden under **SECTION 101 OF THE EVIDENCE ACT CAP 8** to prove that they have suffered a legal grievance.

The applicant claims in paragraph 5 of the affidavit in support that the case abated, and that the taxation of the bill of costs was done with out her participation. She also contends that whereas the bill of costs was taxed at UGX 6,467,800/=, the notice to show cause had UGX 7,695,800/= which is more than the taxed bill of cots by an unexplained UGX 1,228,00/= (*see paragraph 7,8 & 9 of the affidavit in support)*.

I note that the applicant neither attached the order that she seeks this court to review, nor the taxed bill of costs or notice to show cause that she is referring to in her paragraphs 7,8 & 9 of the affidavit in support. The evidence of an applicant proceeding by way of a notice of motion is supposed to come onto court record by way of an affidavit as implied in **ORDER 52 RULE 3 OF THE CIVIL PROCEDURE RULES**. In essence the applicant has made several averments but has not attached the necessary documentation she is referring to, to enable court study them and make its own analysis.

I find that the applicant has not discharged the duty required of her in **SECTION 101 OF THE EVIDENCE ACT CAP 8** to avail court with the evidence necessary to evaluate if she has suffered a legal grievance.

I will also address the applicant's main argument as can be deduced from the application. She contends that she reached a settlement with the respondents regarding the suit matter in HCCS 008 of 2020 and they signed a reconciliation agreement dated 20.06.2022 as per her evidence in paragraph 5 of the supplementary affidavit and annexture B to the said affidavit, which is the reconciliation agreement. It is her further evidence in paragraph 5 of the affidavit in support that on 20.04.2022 the suit in HCCS 008 of 2020 was dismissed for abatement.

In my analysis, the applicant after signing the settlement agreement ought to have either withdrawn the suit in HCCS 008 of 2020 on the terms of the reconciliation agreement or would have written to court giving information of the reconciliation or would have signed a formal consent judgement in in HCCS 008 of 2020 and put it on court record.

I find that the applicant signed a reconciliation and ignored the suit she filed in court, this means that by the date the order for dismissal of HCCS 008 of 2020 based on abatement was made, the alleged reconciliation agreement was not on record. The court followed the law in making the order of abatement, which is in any case not challenged. I therefore find that the applicant has not proved any legal grievance to justify the grant of the orders sought in this application.

In conclusion the court orders that;

- 1. The application is dismissed. - 2. Each party will cater for their own costs.

$\sqrt{2}$ . . . . . . . . . . . . . . . . . . .

NSHIMYE ALLAN PAUL M. **JUDGE** 25-10-2024