Duncan Kizito Sematimba v The Board of Governors Kings College Buddo (Miscellaneous Application No. 458 of 2025) [2024] UGHCLD 302 (11 April 2024)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (LAND DIVISION) MISCELLENEAOUS APPLICATION NO.458 OF 2025 (ARISING FROM MISC. APPN NO.2677 OF 2024) (ALL ARISING FROM CIVIL SUIT NO. 762 OF 2020)**

**DUNCAN KIZITO SEMATIMBA ::::::::::::::::::::::::::::::::: APPLICANT VERSUS THE BOARD OF GOVERNORS**

**KINGS COLLEGE BUDDO ::::::::::::::::::::::::::::::::: RESPONDENT**

# **BEFORE; HON. LADY JUSTICE NALUZZE AISHA BATALA RULING**

## *Introduction;*

1. Duncan Kizito Sematimba hereinafter referred to as the applicant brought this application against The Board of Governors, Kings College Buddo hereinafter referred to as the respondents for orders that; -

- i) The ruling and orders of this court vide HCMA No. 2677 of 2024, the Board of Governors, Kings College Buddo v Duncan Kizito Sematimba be reviewed, varied, and or set aside. - ii) Costs of the application be provided for,

### *Applicant's evidence*

- 2. The application is supported by the affidavit in support of the application deponed by Benard Mabonga which briefly states as follows; - i) The applicant instituted HCCS No. 762 of 2020 on the 29th day of September 2020 against the respondents. - ii) That when the suit came up for scheduling, the respondent wished to amend its written statement of defence and a notice of motion was filed vide HCMA No. 2677 of 2024. - iii)The court delivered its ruling and granted the application allowing the amendment in the proposed terms and to file a counter-claim. - iv) That the ruling contains errors apparent on the face of the record for permitting an amendment that wholly erodes the

respondent's defense of bonafide and lawful owner of the suit land by way of purchase to the defence of adverse possession.

v) That the purported amendment offends the principles of law governing amendment of pleadings since it seeks to substitute one defence for another.

### *The respondent's evidence;*

- 3. The application is responded to with an affidavit in reply deponed by Alice Kaddu Galiwango which briefly states as follows; - i) That the court proceeded to make a ruling in the matter based on the pleading and evidence on record as it is not obligated to rely on the submissions of the parties. - ii) That the court duly considered all the evidence adduced by the parties and the objections raised therein and it allowed the amendments in the terms prayed for in the application. - iii)That the respondent duly filed an amended written statement of defence and counter-claim as stated in its proposed amended written statement of defence.

iv) That this application has no grounds for review as alleged or at all and as such this application is incompetent and ought to be struck out.

### *Representation;*

4. The applicant was represented by M/S Musoke & Marzuq Advocates and Legal Consultants whereas the respondent was represented by M/S Arcadia Advocates, M/S Katende Serunjoji & Co Advocates and M/S Kaaya, Birikujja Advocates & Legal consultants. Only the respondent filed written submissions which I have considered in the determination of this application.

### *Issues for determination;*

*Whether the applicant has demonstrated grounds to warrant this honorable court to review vary and set aside its ruling in HCMA NO. 2677 OF 2024?*

### *Resolution and Determination of the issue;*

*5.* Section 82(a) of the Civil Procedure Act provides 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 an appeal has been preferred; or b) by a decree or order of court 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.*

- 6. The same is elaborated under Order 46(1) of the Civil Procedure Rules. - 7. The grounds for review were enunciated in the case of *FX Mubuuke vs UEB HCMA No 98 of 2005*: - i) That there is a mistake or error apparent on the face of the record. - ii) 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.

iii)That any other sufficient reason exists.

8. The applicant's case as can be deduced from the affidavit in support of the application is that following the ruling of court HCMA No. 2677 of 2024, the respondent amended their written

statement of defense violating the principles providing for amendment of pleadings substituting a defense of adverse possession from the defense of bonafide and or legal owner.

- 9. It is stated under paragraph 12 by the deponent that from his many years of practice, he knows that amendment of pleadings is allowed on the following principles, namely; - i) There is no injustice caused to the other party, but if there is any, it can be compensated for with costs. - ii) Amendments are allowed by courts so that the real questions in controversy between the parties are determined and justice is administered without undue regard to technicalities. - iii)The amendment would not prejudice the rights of the opposite party. - iv) The application should not be malifide. - v) Multiplicity of proceedings should be avoided. - vi)A court will not allow an amendment that enables the substitution of one distinct cause of action for another or changes the subject matter of the suit into one substantially different character.

- 10. He adds that he perused the ruling of court in HCMA No 2677 of 2024 and can confirm that the said ruling of court omitted adherence to all the above principles. That for failing to adhere to the above-mentioned principles, the ruling of court contained errors of law apparent on the face of the record. - 11. I take note of the written submissions filed by Counsel for the respondent. - 12. For court to review its judgment or ruling there must be an error apparent on the face of the record. In the case of *Edison Kanyabwera v Pastori Tumwebaze SCCA No 6 of 2004* it was held that: -*"in order that an error may be a ground of 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 correctness. It must be an error so manifest and clear that no court would permit such an error to remain on the record."* - *13.* I have also carefully read the ruling of court dated 20th January 2025 issued by this court in HCMA No. 2677 of 2024. I find that this court directed itself on the law relating to amendment of pleadings and the tests set in *Gaso Transport Services (Bus) Ltd*

# *v Martin Adala Obene Supreme Court Civil Appeal No. 4 of 1994.*

- 14. The court before granting the order evaluated the tests *in Gaso Transport Services (Supra)* in light of the evidence before it to reach its conclusion. - 15. The applicant was at liberty to file a reply to the amended Written Statement of defence if he found a new matter that called for a reply. It was a right and not a privilege to reply to the amended Written Statement of defence and address any new matters that came up. - 16. It thus follows that what is perceived as an error apparent on the face of the record was never an error at all in so far as review is concerned. - 17. The court made its decision after considering established principles of law before reaching its conclusion and if the applicant desires to challenge the consideration of court he should appeal the decision and not apply for its review to give an opportunity to court to re-exercise its consideration. Such is not the way of review.

18. In the premises, the application lacks merit and is hereby dismissed with no orders as to costs.

### **I SO ORDER**.

#### **NALUZZE AISHA BATALA**

### **Ag. JUDGE**

### **11th/04/2024**

### **Delivered Electronically via ECCMIS on the 11th day of April**

### **2024.**