Dawa v Kaliisa (Miscellaneous Application 43 of 2024) [2024] UGHC 470 (21 June 2024)

## **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT HOIMA MISC. APPLICATION NO. 43 OF 2024 (ARISING FROM CIVIL APPEAL NO. 13 OF 2022) FORMERLY MASINDI HIGH COURT CIVIL APPEAL NO 3 OF 2018) (ALSO ARISING FROM HOIMA CHIEF MAGISTRATES COURT CIVIL SUIT NO. 72 OF 2006)**

**DAWA STEPHEN** *(Administrator of the estate of the late Andrea Ogu Anyau)***::::::::APPLICANT VERSUS KALIISA JULIUS::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT**

*Before: The Hon. Justice Byaruhanga Jesse Rugyema*

## **RULING**

## **Introduction**

- [1] This application, brought under **Section 82 of the Civil Procedure Act CAP 71, O. 46 r. 1(b) & 8, O.52 of the Civil Procedure Rules SI 71-1,** seeks orders as follows: - a) The Judgment and Decree entered on the 1st day of February 2024 in Civil Appeal No. 13 of 2022, setting aside the Judgment and decree of the trial court dated 29/11/2017, be reviewed, set aside, and substituted with an order dismissing Civil Appeal No. 13 of 2022 with costs. - b) Costs of this Application be provided for. - [2] This Application is supported by the affidavit of **Dawa Stephen**, the Applicant herein dated March 12, 2024. The Application is opposed by the Respondent who filed an affidavit in reply dated April 17, 2024.

Grounds of the Application:

- 1) The Applicant is aggrieved by the finding of the court allowing **Civil Appeal No. 13 of 2022,** which was incompetently filed out of time. - 2) The Judgment and Orders entered in **Civil Appeal No. 13 of 2022,** setting aside the Judgment and Decree of the lower court decreeing

the suit land to the Applicant, were wrongly set aside and the suit land decreed to the Respondent.

- 3) The Judgment and Orders of the court dated 1st day of February 2024 in **Civil Appeal No. 13 of 2022** were made on account of some mistake or error apparent on the face of the record. - 4) The applicant has not preferred an appeal against the said judgment and/or decree. - 5) There is sufficient cause to warrant a review of the decree made in **Civil Appeal No. 13 of 2022** setting aside the judgment and decree of the lower court and decreeing the suit land to the Respondent. - 6) It is fair, just, and equitable that this application be allowed in all the terms prayed for - **[3] The law on review**

*Section 82 of the Civil Procedure Act* permits any person aggrieved by a decree or order of a court to apply for a review of the Judgment to the Court that passed the Judgment, and that Court may make such orders as it deems fit. This right is further saved under *O.46 rule 1 of the Civil Procedure Rules SI 71-1,* which allows an aggrieved person, who, 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, to apply for a review of the Judgment to the Court which passed the decree or made the order.

- [4] According to the case of *Edison Kanyabwera Vs Pastori Tumwebaza SCCA No.6 of 2004*, a *"mistake or error apparent on the face of the record"* must be an evident error which does not require any extraneous matter to show its incorrectness. Further, it must be an error so manifestly clear that no court would permit such an error to remain on the record. The error contemplated under the rule must be such that is apparent on the face of the record and not an error which has to be searched. The error should not require any long-drawn process of reasoning on points where there may conceivably be two options. - [5] According to the authority of *F. X Mubuuke Vs. Uganda Electricity Board HCMA No.98 of 2005* review refers to the reconsideration of the subject of the suit by the same Court under specific conditions set by the law;

- 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. - [6] ANALYSIS OF THE EVIDENCE AND SUBMISSION

Learned counsel for the Applicant, **Mr. Kasangaki Simon**, submitted that the Applicant is aggrieved by the finding of court allowing **Civil Appeal No. 13 of 2022,** which was incompetently filed out of time. The decision of the lower court was passed on **29/11/2017**. The Respondent filed a notice of appeal on **4.1.2018**, which, in counsel's view, was out of time. The Respondent also filed a memorandum of appeal on **6.8.2018,** which was also, in counsel's view, out of time. The Applicant thus invited the court to find that the head Appeal was incompetently filed before the court out of time without leave of court, and it was an error apparent on the face of the record to allow an appeal on merits, which suffered such a procedural defect.

- [7] Procedurally, under **O.43 (1) of the CPR SI 71-1**, an appeal is to be preferred by filing a memorandum of appeal. In the instant matter, the judgment of the lower court from which this appeal arose was delivered on **29/11/2017.** Upon delivery of the judgment, the appellant instead of filing a memorandum of appeal, filed a notice of appeal in the High Court of Uganda at Masindi on **4.1.2018** and did not file a memorandum of appeal till **6.8.2018**, after more than nine (9) months from the date when the judgment was delivered. The record of proceedings and judgment was certified by the lower court on **4/12/2017.** The Appellants did not write a letter asking for a certified copy of the proceedings in time to benefit from the provisions of law regarding exclusion of time taken in preparing the typed and certified record of proceedings by the trial court. - [8] Under **S. 79(1)(a) and (b) of the Civil Procedure Act cap 71,** it is enacted that an appeal shall be filed within 30 days of the date of the decree or order of the court; or within 7 days of the date of the order of a registrar.

It is also expounded under *S. 79(2) of the Civil Procedure Act cap 71,* that in computing the period of limitation prescribed by this section, the time taken by the court or the registrar in making a copy of the decree or order appealed against and of the proceedings upon which it is founded shall be excluded.

- [9] The gist of the argument of **Mr. Kasangaki Simon** for the Applicant is that this Court on appeal wrongly adjudicated upon an appeal which in law was incompetently filed out of time. That this was an error apparent on the face of the record by which court allowed an appeal incompetently filed out of time without the Respondent applying for an extension of time to appeal and validation of **Civil Appeal No. 13 of 2022**. That the order allowing **Civil Appeal No. 13 of 2022** was made on account of a mistake or error apparent on the face of the record. - [10] The Respondent in his affidavit in reply did not dispute the dates of filings cited by the Applicant. He simply stated that he filed the appeal in 30 days allowed by the law and filed the memorandum of appeal late because the record of proceedings delayed. He elaborated no more. He did not lead evidence to prove his assertions and/or rebut the evidence of the Applicant. - [11] The law governing review is provided under **Section 82 of the Civil Procedure Act Cap 71** which reads as follows:

*"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."*

[12] **O.46 r rules 1(1) and 2 of the CPR** provides for circumstances under which the aggrieved party may apply for review and to whom such an application may be made in the following terms:

*ORDER XLVI—REVIEW. 1. Application for review of judgment. (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.*

- [13] In this Application, the Applicant has tried to establish an error apparent on the face of the record i.e, adjudication of an appeal which in law was incompetently filed out of time without the Respondent applying for an extension of time to appeal. It is my view that court adjudicating upon an appeal which was filed out of time cannot be an error apparent on the face of the record because it is such an error that require arguments as it is not in itself evident on the face of the record. The Applicant's allegation call for an elaborate argument in order to establish the existence of the facts being alleged. The alleged error require extraneous matter for example, computation of days and examination of pleadings and/or other relevant documents to show its incorrectness. - [14] 2ndly, for a discovery of new and important evidence, it is qualified as that 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 orders made. - [15] In the instant case, the Applicant has not shown that there is discovery of new evidence which could not be availed to court at the time of hearing of the Appeal. In the Appeal, both parties filed their respective submissions, the Applicant did not raise the claim or objection that the appeal was incompetently filed out of time yet with due diligence, it ought to have been raised that the Appeal was incompetent on account for having been filed out of time. It cannot be said that it was not within the Applicant's knowledge or evidence so that it could not be produced by him at the time the decree was passed or order made. - [16] As regards "any other sufficient reason" no other reason has been raised by the Applicant for court to consider to grant the relief sought. The Application has been brought to court as an afterthought. The competence of the Appeal ought to have been raised during the hearing of the appeal. The Application is merely intended to prolong litigation yet it is cardinal principle of law that litigation must always come to an end.

[17] In conclusion, I find that this Application does not meet the conditions for the grant of the reliefs sought. There is no sufficient cause to warrant a review of the Judgment and order dated the 1 st day of March 2024 in **Civil Appeal No. 13 of 2022.** Consequently, this application is disallowed and dismissed with costs.

Dated at Hoima this 21st day of June, 2024.

**……………………….…………….. Justice Byaruhanga Jesse Rugyema**