Kasule & Another v Departed Asians Property Custodian Board (Civil Suit 751 of 1991; Civil Suit 752 of 1991) [1992] UGHC 56 (7 December 1992)

### THE REPUBLIC OF UGANDA

The Itic. Mr. Suchas Expands wherever

## IN THE HIGH COURT OF UGANDA AT KAMPALA

## CIVIL SUIT NO. 751 OF 1991

7. HAWA KASULE ď $\ldots = \ldots$ APPLICANTS/DECREE HOLDERS. 2. NURU KASULE $\check{Q}$

#### VERSUS

DEPARTED ASIANS PROPERTY CUSTODIAN BOARD .... RESPONDENT/JUDGMENT DEBTOR. CIVIL SUIT NO. $752$ OF $1991$

$\ldots \quad \ldots$

1. HAWA KASULE ð ............ APPLICANTS/DECREE HOLDERS. 2. NURU KASULE Ĭ

### VERSUS

DEPARTED ASIANS PROPERTY CUSTODIAN BOARD ... RESPONDENT/JUDGMENT DEBTOR. BEFORE:- The Honourable Mr. Justice J. W. N. Tsekooko

# ORDER

$\mathcal{M} = \mathcal{M} \mathcal{M} = \mathcal{M} \mathcal{M}$

This Order concerns Notice of Motion instituted under Orders 42 (1) and $48$ of the Civil Procedure Rules by Hawa Kasule and Nuru Kasule hereinafter respectively referred to as the first and second applicant. The two applicants are now decree holders in HCCS No. 751 of 1991 and HCCS No. 752 of 1991 wherein they were joint plaintiffs and the present respondent was the defendant in each of the two suits.

The applicants seek to obtain an order for review of my judgment and decree in the suits I delivered on 22nd September, 1992.

The grounds in support of the application and which were recited at the hearing appear in the Notice of Motion to which was annexed an affidavit of the applicant Nuru Kasule who is actually directly concerned. The Notice of Motion has these grounds (quoted verbatim):

"1. That there was an error on the face of the record or an evident omission when evidence was lead on ownership of land comprised in Block 29 Plot 536 and through inadvertence the certificate of title was not gendered in court.

2. That the purported lease to the defendants (Patels) through whom the defendant claimed management of the land have been nullified by court thus entitling the applicant to claim her reversionery interest in Plot 536.

3. That failure to declare Plot as being the property of the applicant would work injustice against her as she would be left as the registered proprietor buy without a court Order to claim it.

$\mathcal{L}$

4. That in the interest of justice it is fair and equitable that the declaration earlier on sought in respect of Plot 536 be made".

Mr. Lubega-Matovu had represented the applicants during the trial of the action. He is the same one who argued this application.

Mr. Muloba appeared for the respondent during the hearing of the application but not in the suit. In his submission Mr. Muloba submitted, quite correctly in my view, that the applicant failed to lead evidence on Plot 536 since she had the title deed. In all probability the fault was with Mr. Lubega-Matovu, counsel who conducted the suit. Nor do I assept the submission by Mr. Lubega-Matovu that there is an error on the face of the record.

I think that notwithstanding the negligence by counsel for the applicant to lead evidence, that portion of $0.42$ Rule (1) whose relevant portions reads that:-

"1. Any person considering himself aggrieved -

- (a) by a decree or order from which any appeal is allowed, but from which no appeal has been preferred. - $(b) \cdots \cdots \cdots \cdots \cdots$

and who for any other sufficient reason desires to obtain a review of the decree passed ......, may apply for a review of judgment to court which passed the decree or made the order is authority for me to review the judgment".

In my view the applicant is an aggrieved party since this court did not make an order doclaring Plot No. 535 her property.

. . . . . . /3

Because of the provisions of rule **<sup>1</sup>** which I have just **reproduced** above, I am satisfied that I should grant this application to **review toy** judgment.

• 3 -

Mr. Lubega-Matovu gave the impression that if the application for review is granted, then the judgment/decree is automatically revised. That is not the law.

Order 42 Rule 6 states

'•When an application for review is granted, a note thereof shall be made in the register, and the court may at once theeca&e or make such order in regard to tho re-hearing as it things fit\*1\*

Obviously, the applicant has to give evidence and tender the title deed to prove her case before a proper review of the judgment can be made. Thus I have to fix a day for the hearing.

In the result the application is granted. The applicant **will** pay to the respondent the costs of this application.

«? 9/12/199^ at 9.01 a.m. Applicant Hawa Kasule present Lubega-Matovu for applicant. Respondent absent. Ssensonga-court clerk. Order pronounced.

9/12/1992

Mra Lubega-Matovu: I request that hearing be fixed on 1^th December, 1992.

Court: Hearing evidence to review judgment on l^th December, 1992<sup>3</sup> at 9\*00 a<sup>c</sup>m<sup>o</sup> Judgment debtor to be servedo