Dr. Kanyesigye v Batalingaya (Civil Miscellaneous Application 165 of 2023) [2024] UGHC 512 (21 March 2024)

Full Case Text

#### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT MPIGI

# **MISCELLANEOUS APPLICATION NO. 165 OF 2023**

#### (Arising from Civil Suit No. 41 of 2019)

DR. CHARLES KANYESIGYE.................................... $5$

#### **VERSUS**

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BATALINGAYA FRED RESPONDENT

#### BEFORE: HIS LORDSHIP HON. JUSTICE OYUKO ANTHONY OJOK

# Ruling

The applicant brought the instant application by way of Notice of Motion under Sections 82 and 98 of the Civil Procedure Act, Section 33 of the Judicature Act and Order 46 Rules 1, 2, 3 and 8 of the Civil Procedure Rules against the respondent seeking the following orders;

- 1. That the decree of court dated 30th September, 2022 extracted by counsel for the respondent in H. C. C. S No. 41 of 2019 be reviewed and set aside. - 2. That the new decree be extracted by court. - 3. The costs of the application be provided for.

The application is supported by an affidavit sworn by the applicant dated 15th August 2023 and the grounds briefly as follows;

- a. The applicant is aggrieved by the decree as extracted by the respondent's counsel as it left out some orders of court. - b. There is an error apparent on the record of court. - c. There is a sufficient cause for the court to review and set aside the impugned decree. - d. That it is in the interest of justice that this application be allowed.

The application is opposed through an affidavit in reply sworn by the respondent and it briefly states that the respondent's counsel notified court about his client's desire to appeal against the judgment delivered on the $4th$ July, 2022. That the said omitted orders were included in the decree and whatever was not captured was not ordered by court. That there is no error apparent on the face of the record and that the applicant's application is not tenable.

# Representation:

Mr. Kivumbi Ibrahim appeared for the applicant while Mr. Frank Ssemakade appeared for the respondent. Both parties filed written submissions.

# Submissions:

Counsel for the applicant submitted that this being an application for review the $\mathsf{S}$ applicant ought to prove that he is aggrieved by the decree as provided under Section 82 of the Civil Procedure Act and Order 46 of the Civil Procedure Rules.

An aggrieved person is defined in the case of Mohamed Alibhai v. W. E. Bukenya Mukasa & Another, Civil Appeal No. 56 of 1996 as;

$10$

"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 "

Counsel relied on the case of F. X. Mubuke v. Uganda Electricity Board, H. C. M. A No. 98 of 2005, for the grounds which a party must prove to succeed in an application for review and these are;

- a. Discovery of new and important evidence which was not within his knowledge. - b. There was a mistake or error apparent on the face of the record of court. - c. Any other sufficient reason. - Counsel went on to submit that in the instant case the respondent's lawyer $20$ extracted the decree dated 30th September, 2022 omitting some orders in the judgment. The applicant being the successful party in the judgment dated 4th July, 2022 is entitled to enjoy the fruits of the judgment and by omitting some orders, it disentitles the applicant from taking the benefit and thus he is aggrieved by the extracted decree. $25$

Counsel added that the instant application is based on two grounds which are; an error apparent on the record of court and sufficient cause.

#### a. There is an error apparent on the record of court:

Counsel defined what amounts to an error as per the case of Edison Kanyabwera v. Pastori Tumwebase, S. C. C. A No. 6 of 2004 which quoted A. I. R Commentaries: 30 The Code of Civil Procedure by Monohar and Chitaley, Vol. 5/1908 where it was stated that; in order that the error may be a ground for review, it must be one apparent on the face of the record, i.e an evident error which does not require any extraneous matter to show its incorrectness. It must be an error manifest and clear

that no court would permit such an error to remain on the record. The error may be one of fact, but it is not limited to matters of fact and includes also errors of law.

That there is an error in the impugned decree dated 30th September, 2022 where the respondent's lawyer omitted some orders that were in the judgment of court dated 4th July, 2022. The decree omitted the following orders;

- That the defendant avails the plaintiff with the certificate of title within $i$ . one month from the date of delivery of the judgment. - That the wall be demolished with immediate effect and the defendant is ii. restrained from blocking the plaintiff's access road ever again. - Further, that the fact that the decree as extracted did not reflect all that was $10$ ordered; this amounts to an error which no court can leave on record. That the decree must agree with the judgment and it must among others clearly specify the relief granted or other determination of the suit as provided under Order 21 Rule 6(1) of the Civil Procedure Rules.

#### 15 b. Sufficient reason to review the judgment:

Counsel for the applicants submitted that the decree omitting some of the orders in the judgment is sufficient reason to review and set aside the impugned order because it cannot remain on record with all the errors apparent on it. That under Order 21 Rule 7(2) of the Civil Procedure Rules it is the primary obligation of the successful party in a suit is to prepare the decree and submit it for approval to the $20$ other party and upon approval the draft is submitted to the registrar who if satisfied that it was drawn in accordance with the judgment, signs and seals the decree accordingly.

That in the instant case, counsel for the respondent solely prepared the decree and submitted it to the Registrar without sharing the same with counsel for the $25$ applicant to approve the content. Thus, the application should be allowed with costs since the errors are the fault of counsel for the respondent.

Counsel for the respondent on the other hand submitted that the application is misconceived and not tenable under Section 82 of the Civil Procedure Act and Order 46 Rule 1 of the Civil Procedure Rules. Counsel relied on Sarkar's Law of 30 Civil Procedure, 8th Edition, Volume 2 at page 1592 to support his submissions where it is stated as follows:

> "Review application should be filed before the appeal is lodged. If it is presented before the appeal is preferred, court has jurisdiction to hear it although the appeal is pending. Jurisdiction of a court to hear review is not taken away if after the review petition, an appeal is filed by any party. An

$\mathsf{S}$

appeal may be filed after an application for review but once the appeal is heard, the review cannot be proceeded with."

That the instant application is therefore incompetent because it was filed after the notice of appeal had been filed and the decision of this court is one that is appealable. That the applicant in the instant case is not aggrieved because the judgment was in his favour as such he cannot seek for review.

Counsel for the respondent submitted that under Section 22 of the Mortgage Act, the applicant's interest cannot take precedence over Stanbic Bank's interest in the same title that had been mortgaged prior to the decision of the honourable court. Thus, court's decision was made in vain. He concluded that the decree as extracted conforms to the judgment of this court and as such the application should be dismissed with costs

# Analysis of court:

I have carefully considered the submissions of both parties and looked at the impugned order. 15

Counsel for the respondent submitted that the instant application was brought under the wrong law and is not tenable nor could it succeed under Section 99 of the Civil Procedure Act because there is no clerical or mathematical error that needs to be corrected. That the decree as extracted was in conformity with the judgment.

$\mathsf{S}$

$-10$

It is my considered view that the application for review is this case is not instituted against the decision of court but one that seeks to correct an omission that was made in regard to the decree extracted. That would constitute an error apparent on the face of the record which is one of the grounds that one must prove for an application for review to be granted.

The applicant did not proceed only under Section 82 of the Civil Procedure Act and Order 46 of the Civil Procedure Rules. But also invoked Section 98 of the Civil Procedure Act which provides that;

"Nothing in this Act shall be deemed to limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court."

And Section 33 of the Judicature Act which provides as follows;

"The High Court shall, in the exercise of the jurisdiction vested in it by the Constitution, this Act or any written law, grant absolutely or on such terms and conditions as it thinks just, all such remedies as any of the parties to a

cause or matter is entitled to in respect of any legal or equitable claim properly brought before it, so that as far as possible all matters in controversy between the parties may be completely and finally determined and all multiplicities of legal proceedings concerning any of those matters avoided."

Indeed the extracted decree omitted some of the orders contained in the judgment dated 4th July, 2022 as pointed out by the applicant. The said omissions are the basis of the applicant's grievance which makes him an aggrieved party in this case falling under the provisions of Section 82 of the Civil Procedure Act.

Counsel for the applicant further submitted that the decree in this case cannot be $10$ reviewed because an appeal has been preferred by the respondent. Whereas, it is true that a notice of appeal had been filed by the respondent before the application for review was lodged; no proof was adduced in this court to show that a Memorandum of appeal has ever been filed by the respondent. It is therefore not known if that an appeal has indeed been instituted by the respondent. Nor did the 15 respondent prove to this court that he has since obtained the certified copy of proceedings to enable him proceed with the institution of the appeal.

Rule 83 (1) of the same directions provides for what constitutes institution of an appeal as follows;

$25$

$\mathsf{S}$

"Subject to rule 113 of these Rules, an appeal shall be instituted in the court by lodging in the registry, within sixty days after the date when the Notice of appeal was lodged –

- a. A memorandum of appeal, in six copies, or as the registrar shall direct; - b. The record of appeal, in six copies, or as the registrar shall direct; - c. The prescribed fee; and - *d. Security for the costs of the appeal.*"

In the instant case, it is my finding that the respondent had not yet instituted an appeal as is required by law. Thus, the applicant in the instant case has not contravened any law by filing the instant application for review as there is no appeal that was lodged in law. Therefore, there is no pending appeal in the instant case.

Counsel for the respondent submitted that the orders made by this court were in vain because the interest of Stanbic Bank takes precedence over the court order. However, court orders once issued must be obeyed, whether one agrees with them

or not and in the instant case, counsel for the respondent deliberately eliminating some parts of the court orders while extracting the decree just because he believes them to be in vain is very wrong.

In the case of Housing Finance Bank Ltd & Another v. Edward Musisi, Civil Appeal No. 22 of 2010 at page 11, it was held that;

> "The principle of law is that the whole purpose of litigation as a process of judicial administration is lost if orders issued by Court through its set judicial process, in the normal functioning of the Courts; are not complied with in full by those targeted and /or called upon to give due compliance."

I accordingly find that the applicant has satisfactorily proved to this court that $10$ there is an error apparent on the face of the record and as such there is sufficient reason for the application to be granted. The order extracted by the respondent dated 30th September, 2022 in H. C. C. S No. 41 of 2019 is hereby set aside. A new decree in conformity with the judgment dated 4th July, 2022 will be extracted by this court. $15$

$\mathsf{S}$

The application is accordingly allowed with costs.

I so order.

Right of appeal explained.

OYUKO ANTHONY OJOK JUDGE

$21/3/2024$

$25$