Dorina Akera v Jererimson Okema Opira and Irene Opira (Civil Appeal No. 194/ of 2023) [2025] UGHC 373 (4 June 2025)

Full Case Text

## **THE REPUBLIC OF UGANDA**

### **IN THE HIGH COURT OF UGANDA HOLDEN AT KITGUM**

#### **CIVIL APPEAL No. 194/2023**

## **(Formerly HIGH COURT GULU - CIVIL APPEAL No. 063/2023)**

# **(Arising from MISC. APPLICATION No. 033/2023 - REVIEW: THE CHIEF MAGISTRATE'S COURT OF KITGUM HOLDEN AT KITGUM).**

# **(ARISING FROM CIVIL SUIT No. 034/2016: THE CHIEF MAGISTRATE'S COURT OF KITGUM HOLDEN AT KITGUM).**

#### **DORINA AKERA APPELLANT**

**Versus**

#### **1. JERERIMSON OKEMA OPIRA**

**2. IRENE OPIRA RESPONDENTS**

#### **BEFORE: HON. MR. JUSTICE PHILIP W. MWAKA.**

# **JUDGEMENT.**

## **Introduction and Background.**

[1]. This Appeal was instituted *vide* Memorandum of Appeal filed in this Court on the 30th June, 2023. The Appeal is in respect of a Ruling of His Worship Odwori Ponsiano Romans, Magistrate Grade One, Kitgum in **Miscellaneous Application No. 033/2023** delivered on the 1st June, 2023 in favour of the Respondents herein being a Review arising from the Judgment and Orders in his earlier decision in the Main Suit, **Civil Suit No. 034/2016**, delivered on the 17th February, 2023 in favour of the Appellant, Plaintiff therein, declaring her owner of the suit land and finding the Defendant therein, Opoka Benson, in trespass.

- [2]. The decision (Ruling) of the Learned Trial Magistrate in **Miscellaneous Application No. 033/2023** in which by virtue of **Section 82 and 98 of the Civil Procedure Act, Cap, 282** and **Order 46 Rules 1, 2, 3(2), 6 and 8 of the Civil Procedure Rules, SI No. 71-1** he had granted the Application to Review his Judgment in **Civil Suit No. 034/2016** and Ordered that - **"The Application is granted to review the Judgment in Civil Suit No. 34 of 2016 to include the Applicants as Defendants"** - is the subject of this Appeal. Thus, the Lower (Trial) Court is now poised to effectively rehear the Main Suit in its discretion with the Respondents herein (Jererimson Okema Opira and Irene Opira) - whom were not party to its original adjudication against Opoka Benson as the sole Defendant therein - now standing as a trio of Defendants jointly with Opoka Benson whom the Trial Court had already found was in trespass on the suit land. - [3]. The Court observes that the correct number of the Main Suit is No. **34** of 2016 and not No. **33** of 2016 as indicated in the Order extracted by Counsel. - [4]. The premise of the decision (Ruling) of the Learned Trial Magistrate in the Application for Review, which was granted, was - firstly, the Applicants therein (Jererimson Okema Opira and Irene Opira) were under **Section 82 of the Civil Procedure Act** and **Order 46 Rule 1 of the Civil Procedure Rules "person<sup>s</sup> aggrieved"** by his Judgement in **Civil Suit No. 034/2016** by virtue of the fact that they were not included, incorporated or otherwise impleaded in the Main Suit as parties (Defendants) in the concluded Trial inspite of them holding Letters of Administration of their Late Father (Opira Jeremiah Lucas) by which they lay claim to the suit land subject of the adjudication and secondly, the failure to include the Applicants therein (Jererimson Okema Opira and Irene Opira) as Defendants in the Main Suit and thus their not being heard by the Court at the Trial prior to its determination of the Main Suit amounted to and constituted **"an error and, or mistake apparent on the face of the record"**.

- [5]. A close scrutiny of the Ruling determining the Application for the Review indicates that the Learned Trial Magistrate did not pronounce himself on the Applicants' third ground contained in the Motion contending the **"discovery of new and important evidence"** which could not be produced at the Trial at the time of the hearing since they were not parties to the Main Suit. Notwithstanding, the Application was granted on the foregoing determinations of the Trial Court. - [6]. This Court observes that the Letters of Administration by which the Respondents herein founded their claim as **"persons aggrieved"** seeking Review before the Trial Court in **Miscellaneous Application No. 033/2023** and as claimants (by virtue of being Administrators) of the suit land subject of the litigation in **Civil Suit No. 034/2016** - described as land situate at Obiya Village, Yepa Parish, Mucwini Sub County, Chua County in Kitgum District estimated at four (4) Hectares or ten (10) Acres with a Lease Offer Form of 13th February, 2001 - were issued by the Late Hon. Justice V. F. Musoke - Kibuuka on the 28th May, 2002 to Jererimson Okema Opira described as the son of and Irene Opira described as the daughter of and respectively designated as Administrators of the Estate of the Late Opira Jeremiah Lucas. This was annexed to the Affidavit of Irene Opira which supported the Application for Review. - [7]. The Applicants had persuaded the Learned Trial Magistrate to grant the Review arguing that Opoka Benson, the sole Defendant cited in the Main Suit, whom the Trial Court found in trespass on the land and made other adverse declarations had in his testimony even denied ownership of the suit land, hence the suit was instituted against a wrong party. Instead, the suit should have included them as the rightful and lawful owners of the land. This was testified to at the Trial by their mother DW2. Moreover, the Trial Court's pronouncements of ownership of the land in favour of the Plaintiff would have the effect of depriving them of **"their land"** unheard, especially in the event of execution of the Decree.

- [8]. The Applicants had further ascribed blame to their Counsel for not earlier filing an appropriate Application seeking to include them as parties to the suit which the Learned Trial Magistrate was persuaded should not be visited on them. - [9]. The Respondent had in turn unsuccessfully opposed the Review arguing that the Applicants have themselves to blame and ought to have themselves affirmatively sought to be joined or impleaded as parties in the Trial upon realising that they had a claim over the suit land and as such their negligence and the negligence of their Counsel in not taking steps in being joined in the litigation did not amount to an error apparent on the face of the Record and further contended that the documents attached to the Applicants' Affidavit did not relate to the suit land. - [10]. The Learned Trial Magistrate found in favour of the Applicants allowing Review of his Judgment with the Applicants joined as Defendants, hence this Appeal. - [11]. Significantly, the designated Defendant in the Main Suit, Opoka Benson, did not Appeal the Judgement in the Main Suit.

#### **Grounds of the Appeal.**

[12]. The Appellant, previously the Respondent, raised three (3) grounds of Appeal: - **Ground 1: The Learned Trial Magistrate erred in Law and in fact when he held that the Applicants were aggrieved parties, thereby leading to a miscarriage of Justice to the prejudice of the Appellant.**

**Ground 2: The Learned Trial Magistrate erred in Law and in fact when he held that the Applicants met the criteria for review, thereby leading to a miscarriage of Justice to the prejudice of the Appellant.**

**Ground 3: The Learned Trial Magistrate erred in Law and in fact when he held that the Applicants be given a chance to be heard in a matter which was already heard and determined, hence leading to a miscarriage of Justice to the prejudice of the Appellant.**

#### **The Appellant's Case and Submissions.**

[13]. The Appellant filed submissions on the 12th June, 2024. In respect of the first ground of the Appeal, it was her contention citing **Section 82 of the Civil Procedure Act**, **Order 46 Rules 1 and 2 of the Civil Procedure Rules** and *inter alia* **Re Nakivubo Chemists (U) Ltd (1971) HCB 12** that an aggrieved person is one who suffers a Legal grievance and that one would suffer a Legal grievance if a Judgement against them affects their interests. As such, the Learned Magistrate should have simply focused on ascertaining the nature of the grievance in respect of the Judgement and established whether the Judgement was against the Respondents' interests - in the suit land. It is her submission that, in the circumstances of the case, the Judgement was not passed against the Respondents' interests as they were never party to the Main Suit and further that none of the documents presented by the Respondents in their Affidavit in the Lower Court established any interest in or ownership of the suit land - moreso the Lease Offer Form presented which was not supported by a grant thus reinforcing the argument of absence of proof of the Respondents' ownership of the land and impugning the Respondents' claim to be persons aggrieved by the Judgement. It is the Appellant's case that the Application for Rural Land Form and the Lease Offer Form with its sketch map referenced by the Respondents relates to land completely different from the suit land and the suit land is distinct and did not form part of the Estate of the Late Opira Jeremiah Lucas which she submits the Learned Trial Magistrate did not ascertain presupposing that grant of the Letters of Administration automatically proved that the suit land was a part of the Estate. Moreover, the Late Opira Jeremiah Lucas did not claim to have land in the area. In sum, the Appellant submits as regards to the subject matter being the same that the Learned Magistrate based his decision to grant the Application for Review on speculation without concrete proof.

- [14]. The Appellant further contends that the Respondents as Administrators of the Late Opira Jeremiah Lucas were never prevented from being heard. Citing *inter alia* **Civil Review Application No. 28/2019: Paul Muhimbura & Another Vs. Patrick Lwanga & 2 Others**, she contends that the Application for Review in that case was granted owing to the Applicant neither being a party to the Main Suit nor having been served or given notice of the proceedings in the Main Suit prior to cancellation of his Certificate of Title. However, in the instant case the Respondents failed to apply to be joined as Parties and did not notify the Trial Court of their interest inspite of their mother DW2 testifying in respect of her interest in the suit land. As such, the Respondents did not suffer any Legal grievance and did not qualify as **"persons aggrieved"** for purposes of Review. - [15]. In respect of the second ground of Appeal, the Appellant cited **Order 46 Rules 1 and 2 of the Civil Procedure Rules** and *inter alia* **Nyamogo & Nyamogo Advocates Vs. Kago [2001] 2 EA 173 and Levi Outa Vs. Uganda Transport Company [1995] HCB 340** contending that Review is a creature of Statute similar to Appeals and submitted that the Respondents did not meet the criteria for Review under the Rules and faulted the Learned Magistrate for in her view wrongly determining that the Respondents' not having been made a party to the Main Suit constituted an error or mistake apparent on the face of the Record as envisaged by the Rules and stipulated in the pertinent Authorities. The Appellant highlighted the broad and in-exhaustive scope of the Rule which must be Judiciously applied by the Courts in the circumstances of each case. This, however, does not include *inter alia* a merely erroneous decision which would be the subject of an Appeal. Upon these considerations, the Appellant submitted that the failure to join the Respondents in the suit was too remote a consideration to constitute an error or mistake apparent on the face of the Record and the Learned Magistrate should have forthwith dismissed the Application.

- [16]. In respect of the third ground of Appeal, the Appellant contends that the Learned Trial Magistrate was *functus officio* having already pronounced himself in his Judgement in the Main Suit **Civil Suit No. 034/2016** and highlights the protracted nature of the litigation which she contends must come to an end. - [17]. In concluding, the Appellant prays that the Appeal succeeds, the Ruling in **Miscellaneous Application No. 033/2023** granting the Review and impending rehearing is set aside and quashed, the Judgement in **Civil Suit No. 034/2016** is upheld and she is granted costs in this Court and in the Lower Court.

#### **The Respondents' Case and Submissions.**

[18]. The Respondents filed Written Submission on the 27th June, 2024 - and opposed the Application. In respect of the first ground of Appeal, the Respondents submitted citing **Section 82 of the Civil Procedure Act** and **Order 46 Rules 1 and 2 of the Civil Procedure Rules** that they qualified as **"persons aggrieved"** by virtue of the fact that the suit land which the Lower (Trial) Court determined belongs to the Appellant in fact belonged to the Estate of their Late Father Opira Jeremiah Lucas of which they are Administrators and had commenced the process of obtaining a Certificate of Title and their non-inclusion in the litigation amounted to an error or mistake apparent on the face of the Record of the Lower (Trial) Court since they had suffered a Legal grievance having been adversely affected by the determination of the Trial Court. Moreover, contrary to the Appellant's submissions, one needn't have been a party to a suit in order for them to apply for Review - as in the circumstances of their case. The test is whether their interests are affected by the Judgement of the Trial Court. In substantiating their claim to the suit land, the Respondents highlighted the Application for Rural Land Form and the Lease Offer Form as well as the Letters of Administration issued in respect of the Estate of their Late Father.

- [19]. It is the Respondents' case that the Application for Rural Land Form and the Lease Offer Form together with the Sketch Map concretely establish their interest in the land at Mucwini Sub County, Chua County in Kitgum District which they claim is one and the same as the suit land in **Civil Suit No. 034/2016** and over which they claim interest by virtue of the Letters of Administration cited. As regards the pleadings in the Trial, the Respondents highlighted that it was clearly stated in the Written Statement of Defence filed by Opoka Benson the sole Defendant at the Trial that the suit land belonged to the Estate of the Late Opira Jeremiah Lucas of whom they were his Administrators. In as far as not being included in the Trial, the Respondents assail their Counsel for not having taken the appropriate steps to have them joined as parties. In sum on the ground, the Respondents contend that the Learned Magistrate duly considered the evidence presented and reached the right conclusion in finding them **"persons aggrieved"** and accordingly granting the Review sought. - [20]. In respect of the second ground of Appeal, the Respondent citing *inter alia* **High Court Misc. Application No. 098/2005: F. X. Mubuuke Vs. Uganda Electricity Board** submitted in respect of the broad scope of an error or mistake apparent on the face of the Record that as the Administrators of the Estate of the Late Opira Jeremiah Lucas whom they aver was the Lawful owner of the suit land in **Civil Suit No. 034/2016** which they insist forms part of his Estate their non-inclusion in the suit as parties to the litigation prior to the Judgement in favour of the Appellant constituted an error or mistake apparent on the face of the Record reiterating that they attribute the omission to join them to their Counsel whom they blame for not applying to have them joined - well knowing that the designated Defendant had pleaded that they own the land and DW2 had testified as much - which failure by Counsel should not be visited on them. It is their case that this constituted sufficient cause for grant of the Review. - [21]. In respect of the third ground of Appeal, the Respondents submit that the Learned Trial Magistrate is not *functus officio*. It is their case citing **Misc. Application No. 2770/2023: John Imaniraguha Vs. Uganda Revenue Authority** that the doctrine of *functus officio* has exceptions including in matters of Review of a Judgement of a Court under **Section 82 of the Civil Procedure Act** and **Order 46 Rules 1 and 2 of the Civil Procedure Rules**. - [22]. In concluding, the Respondents pray that the Ruling of the Trial Court granting the Review and consequently the impending rehearing is upheld. - [23]. There were no Rejoinders filed on the Record of the Court.

## **Representation.**

- [24]. Counsel, Mr. Edward Okot, represented the Appellant. The Appellant was present. - [25]. Counsel, Mr. Louis Odongo, represented the Respondents. The Respondents were absent.

## **Considerations and Determination of the Court.**

[26]. This is an Appeal from the decision (Ruling) of the Learned Trial Magistrate in exercising his discretion to grant Review under **Section 82 of the Civil Procedure Act** and **Order 46 Rules 1, 2, 3 and 4 of the Civil Procedure Rules** of his Judgement in **Civil Suit No. 034/2016.** The basis for the grant of the Application for Review sought by the Respondents herein - the Applicants in the Lower (Trial) Court - who were not party to the proceedings in **Civil Suit No. 034/2016** is that they were **"persons aggrieved"** by his Judgement having suffered a Legal grievance in as far as being deprived of land they had an interest in by virtue of being holders of Letters of Administration of their Late Father Opira Jeremiah Lucas which they claimed was one and the same as the suit land.

- [27]. The Learned Trial Magistrate determined that the failure or omission to include and involve the Respondents as parties to the proceedings and adjudication in **Civil Suit No. 034/2016** and the fact that they were not heard in the Trial over the suit land at Obia Village, Yepa Parish, Mucwini Sub County, Chua County in Kitgum District which they claim belonged to their Late Father Opira Jeremiah Lucas - as the Administrators of his Estate - in which the Appellant herein was declared to be the owner amounted to a **"mistake or error apparent on the face of the Record"** of the Trial Court within the meaning of **Order 46 Rule 1 of the Civil Procedure Rules**. It is on this basis that the Application for Review was granted and the Learned Trial Magistrate allowed the Respondents - as the Administrators of the Estate of the Late Opira Jeremiah Lucas - to be joined to the Trial proceedings by way of the Review so as to be given their Constitutional right to be heard in respect of their claim to the suit land and consequently enable the Trial Court to make a final determination as to the ownership of the suit land involving all the parties with stated interests in and claims to the suit land. - [28]. The pertinent provisions applicable to the Appeal from the decision of the Trial Court granting the Review of its own decision (Decree/Order) duly considered *Mutatis Mutandis* are - **Order 44 Rule 1(t) of the Civil Procedure Rules** the subject of which is **"Appeals from Orders"** provides: **"An Appeal shall lie as of right from the following Orders under Section 76 of the Act - an Order under Rule 4 of Order XLVI granting an Application for Review"** and **Order 46 Rule 4 of the Civil Procedure Rules** the subject of which is - **"Application for Review to be to same Judge or Judges"** - provides for the Judge (or Magistrate, as is the case herein) who made the decision (Judgement) and thereby passed the Decree subject of the Application for the Review and still presiding over the same suit subject of the Review, otherwise un-precluded by any cause, to hear the Application for the Review.

- [29]. Moreover, the practical actual effect of grant of the Application for the Review of its own decision (Judgement or Ruling) and the attendant Decree/Order by a Trial Court on the basis of a **"mistake or error apparent on the face of the Record"** as is the case herein is that under **Order 46 Rule 6 of the Civil Procedure Rules** the same Trial Court **"may at once rehear the case or make such Order in regard to the rehearing as it thinks fit"** - including *De Novo*. - [30]. As such, the Appellant herein Respondent in the Lower Court Ruling in grant of the Application for the Review of its own decision - having been the Plaintiff in the Main Suit before the Lower (Trial) Court which had previously passed Judgement and issued a Decree in her favour is entitled to an automatic Appeal which may be instituted as of right. The Court accepts that the substantive provision an Appeal is given rise to following grant of a Review lies in **Order 46 Rule 4 of the Civil Procedure Rules**. Otherwise, an aggrieved party denied a Review would be required to obtain leave or may simply Appeal the Judgement itself. **See: Supreme Court Civil Appeal No. 08/2004: The Attorney General & Another Vs. James Mark Kamoga & Another and High Court Civil Appeal No. 027/2017: Zura Mohammed Nassim Vs. Latim Andrew.** - [31]. The duty and scope of consideration of an Appellate Court in an Appeal most especially arising from a decision based on the merits following factual determinations on the cause of action by a Trial Court after testimony and evidence has been led and duly evaluated is generally stated as rehearing the case by subjecting the evidence presented to the Trial Court to fresh and exhaustive scrutiny and reappraisal before coming to its own conclusion. In addition, the Appellate Court shall take into account any material that may have been overlooked and scrutinize matters unduly considered by the Trial Court in its determination and will only interfere with the decision of the Trial Court where an error in the decision Appealed has occasioned a miscarriage of Justice.

**See: Kifamunte Henry Vs. Uganda: SCCA No. 10/1997 citing with approval Pandya Vs. R (1957) EA 336; Okeno Vs. Republic (1972) EA 32; Charles B. Bitwire Vs. Uganda: SCCA No. 023/1985; SCCA No. 04/2016: Fredrick Zaabwe Vs. Orient Bank Ltd; Father Begumisa Nanensio & 3 Others Vs. Eric Tiberaga: SCCA No. 017/2000. [2004] KALR 236; Lovinsa Nankya Vs. Nsibambi: [1980] HCB 81 and High Court Civil Appeal No. 053/2015: Acaa Bilentina Vs. Okello Michael.**

- [32]. However, in the instant Appeal premised on the exercise of discretion based on **"opinion"** cited in **Order 46 Rule 3(2) of the Civil Procedure Rules**, the grounds, core and thrust of the Appeal relate more to the manner in which the Learned Trial Magistrate exercised his discretion in granting the Application for the Review under **Section 82 of the Civil Procedure Act** and **Order 46 Rules 1 and 2 of the Civil Procedure Rules** and arrived at the conclusion that the Respondents were **"persons aggrieved"** who had suffered a Legal Grievance on the one hand and on the other hand their exclusion from the Trial amounted to and constituted a **"mistake or error apparent on the face of the Record"**. - [33]. In that regard, the scope of consideration in matters regarding decisions reached by virtue of discretion highlighted in **American Express International Banking Vs. Atul [1990 – 1994] EA 10 (SCU)** is that an Appellate Court can interfere with the exercise of discretion of a Trial Court in reaching a decision in circumstances namely where - (1). The Learned Trial Judge/Magistrate misdirects himself with regard to the principles governing the exercise of his discretion. (2). Where the Learned Trial Judge/Magistrate takes into account matters which he ought not to consider. (3). Where the Learned Trial Judge/Magistrate fails to take into account matters which he ought to have considered. (4). Where the exercise of discretion by the Learned Trial Judge/Magistrate is plainly wrong. **See: The Abidin Daver [1984] 1 All ER 470.**

- [34]. **In Mbogo Vs. Shah [1968] EA 10 (SCU)** the Supreme Court held that a Court of Appeal should not interfere with the exercise of the discretion of a Judge (Magistrate, as appropriate) unless it is satisfied that the Judge (Magistrate) in exercising his discretion has misdirected himself in some matter and as a result has arrived at a wrong decision or unless it is manifest from the case as a whole that the Judge (Magistrate) has been clearly wrong in the exercise of his discretion and that as a result there has been a miscarriage of Justice. - [35]. It is significant that a miscarriage of Justice must have arisen from and, or been occasioned by and, or otherwise occurred from the impugned and duly Appealed decision of the Lower (Trial) Court as a Judicious basis in Justification of interference by an Appellate Court with its decision in the exercise of its discretion. This is so as to avoid absurdities and mootness. These are the considerations which shall be duly applied in the determination of this Appeal. It is not for this Court to simply second guess the Lower (Trial) Court or simply substitute the decision of the Lower Court with its own preferences.

**See: East African Court of Justice (EACJ) Appeal No. 01/2013: The Attorney General of the Republic of Uganda Vs. The East African Law Society & Another; Supreme Court Civil Appeal No. 08/1998: Banco Arabe Espanol Vs. Bank of Uganda; Supreme Court Civil Appeal No. 028/1995: Uganda Development Bank Vs. National Insurance Corporation & Another; Manubhai Bhailabhai Patel Vs. R. Gottfried [1953] 20 EACA 81; and, H. K. Shah & Another Vs. Osman Allu [1947] EACA 45.**

[36]. Thus, the matters cited by the Appellant in her respective grounds of Appeal framed for consideration relate to the manner in which the Trial Court exercised its discretion including in determining that the Respondents - (1). Are **"persons aggrieved"**. (2). Met the **"criteria for Review"**. (3). Are granted the opportunity and thereby **"given a chance to be heard in the matter"**.

**Ground 1: The Learned Trial Magistrate erred in Law and in fact when he held that the Applicants were aggrieved parties thereby leading to a miscarriage of Justice to the prejudice of the Appellant.**

- [37]. As regards the first ground of the Appeal, this Court observes that in as far as the tests which would be applicable to the Lower (Trial) Court in determining whether the Respondents were in fact adversely affected by its decision and actually suffered a Legal grievance as a result of the adjudication, albeit inspite of not being parties to the Main Suit; the initial and primary due consideration of the Lower (Trial) Court would be whether the subject matter of the Application for Review *vide* **Miscellaneous Application No. 033/2023** described as land at Mucwini Sub County, Chua County in Kitgum District referenced in the Lease Offer Form and the Application for the Rural Land Form and the Sketch Map had a nexus with the subject matter of the Main Suit *vide* **Civil Suit No. 034/2016** described as Obiya Village, Yepa Parish, Mucwini Sub County, Chua County in Kitgum District and as a consequence requiring the Trial Court to rehear the matter inter-parties meaning here to include all those with stated interests as well as those affected, having suffered Legal grievances, and determine if the land is in fact one and the same and in proof of its ownership. - [38]. In its consideration of the sufficiency in similarity of the subject matter in dispute arising in the Main Suit and as such the nexus between the Main Suit and the Application for the Review, it is apparent that the Lower (Trial) Court took into account the following factors - firstly, the description of the subject matter land in as far as its locale being in Mucwini Sub County, Chua County in Kitgum District and other commonalities including the land area and its potential and, or extent of overlap indicating it's the same. This being in a Region predominated by Customary Land Tenure land most often un-surveyed and un-registered is certainly not obvious and care must be taken in making a determination.

- [39]. Secondly, the nature of the Respondents' claim, in as far as their interest in the land, based on the Lease Offer Form addressed to the Late Opira Jeremiah Lucas giving rise to either a Legal interest which may indicate either ownership or title or which may alternatively indicate an equitable interest, less than title, required to be ascertained by the Court now being pursued by the Respondents in contest with the Appellant's claim to the same land requiring resolution. - [40]. Thirdly, the Record arising from the Trial itself including on the one hand the pleadings by the designated Defendant, Opoka Benson, in his Written Statement of Defence - highlighted by the Respondents - who had denied ownership of the suit land and had stipulated that he was simply the caretaker of the property in the Main Suit and on the other hand the testimony of DW2 wife of the late Opira Jeremiah Lucas and mother of the Respondents who had testified as to her claim to an interest in the suit land as well as that of the Respondents as her children and also the Administrators of the Estate of the Late Opira Jeremiah Lucas. - [41]. Fourthly, the averment by the Appellant that the land in the Lease Offer Form and the Application for Lease of Rural Land Form said to be part of the Estate of the Late Opira Jeremiah Lucas is entirely distinct and does not constitute or otherwise form any part of the suit land - contrary to the Court's presuppositions. - [42]. It is the finding of this Court that these considerations which were taken into account by the Lower (Trial) Court in determining that the Respondents were persons aggrieved by its Judgement following the Trial were indeed relevant considerations which in any case were apparent from its Trial Record and could not simply be disregarded or ignored. These considerations clearly led the Learned Trial Magistrate to conclude that there were sufficient grounds to establish that the land subject of the Application had similarities or a nexus with the land subject of the Main Suit. The Learned Trial Magistrate, therefore, cannot be faulted on account of this finding based on these considerations.

- [43]. Moreover, it is the observation of this Court that it is enough that the claims over the subject matter land in the circumstances of this case involving rural land which is typically un-surveyed and un-registered land under customary tenure are not far-fetched by virtue of its often ambiguous nature. The vindication shall come from surveys which may be considered at the rehearing or from the Lower (Trial) Court's findings at the *Locus in Quo*. - [44]. In its consideration of the Respondents' *Locus Standi* the Lower (Trial) Court took into account the following factors - firstly, the fact that the Respondents hold Letters of Administration of the Late Opira Jeremiah Lucas and are thus the designated Administrators of his Estate; secondly, the averments by the Appellant that the Lower (Trial) Court wrongly based its decision in granting the Review on the pre-supposition and assumption that the Letters of Administration automatically established and proved that the land was part of the Estate of the Late Opira Jeremiah Lucas; and thirdly, the averments by the Appellant that the Respondents had instituted the Application for Review in their own respective personal capacities and not as the Administrators of the Estate of the Late Opira Jeremiah Lucas. - [45]. It is the finding of this Court that the Lower (Trial) Court duly took into account these considerations as relevant factors in determining that the Respondents had *Locus Standi* to institute the Application for Review and did not disregard or ignore their significance. Much as it was conceded and accepted by the Learned Trial Magistrate that the title of the Application for Review reflected the Respondents' individual names without stipulating that they were acting as the Administrators of the Estate of the Late Opira Jeremiah Lucas, this Court is satisfied that the Learned Trial Magistrate in determining that substantive Justice would prevail without undue regard to technicalities neither committed an error in principle in exercising his discretion nor wrongly exercised his discretion. - [46]. In any case, it is trite and accepted that litigation instituted and pursued in protecting or preserving an Estate of a person deceased by the Administrators of the Estate is by mandate given under the **Succession Act, Cap. 268** and this Court has previously observed, accepted and found on the basis of precedent that even for that matter litigation instituted and pursued by Beneficiaries of an Estate designated under the **Succession Act, Cap. 268** is generally accepted with the test being whether the litigants are instituting and pursuing the claims in the best interests of the Estate of the Deceased and with it the interests of the other Beneficiaries, or in their personal interests for their own benefit. The former cited in the test are accepted as having *Locus Standi* to pursue the claims as may Trustees with fiduciary obligations to the Estate and other Beneficiaries; whilst the latter cited in the test are not accepted as having *Locus Standi* to pursue the claims as possibly intermeddlers. This should, however, not be taken as license for abuse of the processes of the Courts and any litigants instituting or pursuing claims as the Administrator of an Estate as herein should take every and all steps to ensure that their *Locus Standi* is unambiguous and is ascertainable by clearly stating the nature of their standing in the title and in the content of the Pleadings. **See: High Court Civil Suit No. 050/2014 (Kitgum): Otim Julius Peter Vs. Pader District Local Government, Etc.** - [47]. It is a Constitutional tenet that substantive Justice shall be administered by the Courts without undue regard to technicalities *vide* **Article 126(2)(e) of the Constitution** and therefore the Learned Trial Magistrate cannot be faulted for exercising his discretion in accepting the standing of the Respondents in the interests of substantive Justice inspite of the deficiencies in the technicalities in pleadings. Moreso, as the matter does not go to the root or credibility of the Respondents' *Locus Standi* since they do in fact hold Letters of Administration in respect of the Estate nor is the exercise of here discretion vitiated by any illegality.

[48]. In respect of the Appellant's contentions that the Respondents and their Counsel failed and, or neglected to earlier at or during the Trial in the Lower (Trial) Court seek to be added, joined or substituted as parties to the Main Suit well knowing and, or claiming to in fact be the proper parties to the Main Suit as the Administrators of the Estate of the Late Opira Jeremiah Lucas and their related claim of ownership of the suit land as opposed to the designated Defendant in the Main Suit, Opoka Benson said to simply be the caretaker of the land in dispute and not it's owner; this Court finds that the determination of the Learned Trial Magistrate that the negligence and, or faults of Counsel in failing and, or neglecting to make the required Application for addition or joinder or substitution - who should have known better - should not be visited on the Respondents as lay persons in *"Ignorantia Juris"* is not unreasonable and does not amount to an error in principle in exercising his discretion in granting the remedy of Review or to a wrong exercise of his discretion. It is significant that the determination of the Learned Trial Magistrate was also premised on the Constitutional tenet of the Courts administering substantive Justice without undue regard to technicalities. No miscarriage of Justice was occasioned and in any case the Respondents seek to be added or joined or substituted in the Main Suit at their own peril in as far as costs involved in this now protracted litigation. In addition, while this may not in itself necessarily constitute a sufficient ground on its own, it is a pertinent and relevant consideration in circumstances where a Court is duly considering and evaluating the totality of the grounds presented and, or evidence adduced which should neither be disregarded nor ignored. This is also significant in dispelling any notion that an Application before a Court may amount to an abuse of the process of the Courts simply being an opportunistic filing to undermine a decision (Judgement or Ruling) of the Court, including deliberately forestalling its implementation or execution without cause.

[49]. In conclusion on the first ground of the Appeal as regards to whether the Learned Trial Magistrate properly exercised his discretion in coming to the conclusion and finding that the Respondents were in fact and in Law **"persons aggrieved"** by the Judgement of the Lower (Trial) Court; this Court is satisfied that the Learned Trial Magistrate properly exercised his discretion as already highlighted herein-above and came to the right conclusion after duly considering the relevant factors in determining that the Respondents were **"persons aggrieved"** having suffered a Legal grievance. The finding is therefore upheld.

[50]. The Appellant correctly cited the grounds required to be established in an Application for Review as provided by **Section 82 of the Civil Procedure Act, Cap. 282** and **Order 46 Rules 1 and 2 of the Civil Procedure Rules, SI 71-1** so as to meet the criteria for Review and merit its grant including - (1). The discovery of a new and important matter of evidence which after the exercise of diligence was not within an Applicant's knowledge and could not be produced at the time when the Decree was passed or the Order made. (2). A mistake or error apparent on the face of the record. (3). Any other sufficient reason. This Court has already observed that whereas the Applicants relied on two criteria in the Application with the first being an error apparent on the face and the second being the discovery of new and important evidence which could not be produced at the Trial as they were not parties, the Learned Trial Magistrate did not make any determination on the latter ground and only resolved the former. This oversight in not considering the latter ground was not raised as a ground of the Appeal or traversed and therefore this Court shall let sleeping dogs lie.

- [51]. As regards the second ground of the Appeal, this Court observes that the Lower (Trial) Court relied on the Respondents' absence from the Trial Proceedings and Adjudication to determine that their not being heard amounted to an **"error apparent on the face of the Record"** and as such they met the **"criteria for Review"**. The Lower (Trial) Court relied on the Authority of **High Court Miscellaneous Review Application No. 028/2019: Paul Muhimbura & Another Vs. Patrick Lwanga & 2 Others** - in which the Court in determining whether the Application in which the Applicant had not been a party to the proceedings and adjudication in the Main Suit constituted an error apparent on the fact of the Record cited **Miscellaneous Application No. 08/2019: Mushabe Apollo Vs. Mutumba Ismael & Another** and was satisfied that the Applicant had suffered a Legal grievance by virtue of having had his Certificate of Title cancelled without first having been heard or even being given Notice of the hearings in the proceedings and adjudication involving other individuals which amounted to the Applicant being condemned unheard contrary to the Constitutional tenet of granting all parties to a dispute a fair hearing. - [52]. This Court therefore accepts that a fundamental mis-step or omission in procedure in the conduct of a suit and its adjudication resulting in undermining one's fundamental and non-derogable Constitutional right to be heard including non-parties to the suit with an unambiguous and ascertainable interest in its subject matter found to have suffered Legal grievances including deprivation as a result may constitute a mistake or an error apparent on the Record of the Court most especially where an injustice is found to have been occasioned.

**See: High Court Miscellaneous Application No. 1028/2020: Ojijo Paschal Vs. Eseza Catherine Byakika and High Court Miscellaneous Application No. 2770/2023: John Imaniraguha Vs. Uganda Revenue Authority & Another, Etc.**

- [53]. Precedent considered by this Court on instances tantamount to a mistake or an error apparent on the Record of the Court include - instances of *Ex Parte* proceedings and Judgements; non-service of hearing notices or substantive pleadings especially those instituting Motions; failure or omission by a Court to consider relevant pleadings and, or exhibits and determinations by Courts on grounds not traversed by parties. This is not exhaustive. The general test would appear to be whether the impugned action, failure or omission was in violation of the principles of natural justice. It, however, remains the responsibility of the presiding Court to Judiciously determine whether an injustice was occasioned therein thereby justifying grant of a Review. - [54]. Thus, this Court finds that the Learned Trial Magistrate arrived at his determination consistent with accepted grounds constituting a mistake or an error apparent on the face of the Record in as far as the Respondents not being parties or heard at the Trial. As such, the Appellant's contention that the Respondent's grounds of non-appearance at the Trial is too remote to meet the Review criteria - which would constitute an error in principle - is without merit. - [55]. In concluding on this ground of the Appeal, this Court is satisfied that the Learned Trial Magistrate in determining that the Respondents being unheard at the Trial in which their rights to the subject matter suit land were not considered constituted a mistake or an error apparent on the face of the Record duly gave proper consideration to the relevant factors in exercising his discretion to grant the Review as has already been elaborated herein-above. This included finding that the failure or omission occasioned a miscarriage of Justice in violation of the Respondents' Constitutional right to be heard. This Court, therefore, upholds the finding by the Learned Trial Magistrate that the Respondents met the requirements and criteria for Review and further upholds the decision of the Learned Trial Magistrate in exercising his discretion in granting the Review.

- [56]. As regards the third ground of the Appeal and the Appellant's contention that the matter is not amenable to Review since the Learned Trial Magistrate is *functus officio*, this Court hereby highlights the following provisions which address the role of a Trial Court upon grant of an Application for Review which includes - **Order 46 Rule 6 of the Civil Procedure Rules** which provides - **"When an Application for Review is granted, a note of the Application shall be made in the Register, and the Court may at once rehear the case or make such Order in regard to the rehearing as it may think fit"** and **Order 21 Rule 3(3) of the Civil Procedure Rules** which provides – **" A Judgement once signed shall not afterwards be altered or added to except as provided by Section 99 of the Act or on Review"**. This is not exhaustive and includes instances of *inter alia* setting aside *Ex Parte* Judgements and Rulings allowed by Statute and, or by relevant Regulations. Thus, the Appellant's contentions are clearly misconceived and Review provides an exception to the concept of *functus officio*. - [57]. Having considered the three (3) grounds raised in the Memorandum of Appeal, the submissions filed on the Record of this Court, the Ruling by the Learned Trial Magistrate granting the Review being the subject of this Appeal, the Judgement in the Main Suit preceding the Application for Review and all relevant factors and the circumstances of the case; this Court finds that this Appeal is without merit for the reasons given herein-above and accepts that the Learned Trial Magistrate did in fact consider the relevant factors in reaching his decision to in his discretion grant the Review. Consequently, this Court upholds the decision granting the Review. Each party shall bear their own costs.

## **Orders of the Court.**

- [58]. Accordingly, this Court makes the following Orders: - 1. The Appeal, **Civil Appeal No. 194/2023**, is hereby dismissed. - 2. The Ruling of the Learned Trial Magistrate in **Miscellaneous Application No. 033/2023** granting the Review of his own Judgement in **Civil Suit No. 034/2016** premised on a mistake or an error apparent on the face of the Record of the Court is hereby upheld. - 3. The Lower (Trial) Court's files including **Civil Suit No. 034/2016** and **Miscellaneous Application No. 033/2023** shall be returned to enable the Court conclude its Review. - 4. Each party shall bear their own Costs of this Appeal.

It is so Ordered.

**Signed and Dated on the 4th day of June, 2025. (High Court, Kitgum Circuit).**

**Philip W. Mwaka**

**Acting Judge of the High Court.**

## **Delivery and Attendance.**

This signed and dated Judgement on Appeal, upon the directions of the Presiding Judge, shall be delivered to the Parties electronically by the Deputy Registrar, High Court, Kitgum Circuit on **Wednesday, the 4th day of June, 2025 at 10:00am**. Certified copies of the Judgement shall be retained on the Record of this Court to be availed to the respective Parties.

| 1. | Counsel for the Appellant | : | Mr. Okot Edward. | |----|-----------------------------|---|-----------------------------| | 2. | The Appellant | : | Ms. Dorina Akera. | | 3. | Counsel for the Respondents | : | Mr. Louis Odongo. | | 4. | The Respondents | : | Mr. Jererimson Opira-Okema. | | | | | Ms. Irene Opira. | | 5. | Court Clerk, present | : | Mr. Atube Michael. |

**Philip W. Mwaka**

**Acting Judge of the High Court.**

**4 th day of June, 2025.**