Lubyayi v Nalumansi and 3 Others (as administrator of late kiwanuka aloysious) (Miscellaneous Application 1428 of 2022) [2022] UGHCLD 263 (6 October 2022)

## THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA

### **LAND DIVISION**

## MISCELLANEOUS APPLICATION No. 1428 OF 2022 (ARSING FROM MISCELLANEOUS APPLICATION No. 939 OF 2021, MISCELLANEOUS APPLICATION No. 1241 OF 2018 & CIVIL SUIT NO. 115 OF 2012)

НАЈЛ IDI LUBYAYI KISIKI :::::::::::::::::::::::::::::::

#### **VERSUS**

1. NALUMANSI IMMACULATE

2. SSENOGA LEONARD

3. NANTEZA MILLY

4. NAKAYIZA KEVINA

(Administrators of late Kiwanuka

Aloysious.) ::::::::::::::::::::::::::::::::::::

**BEFORE: HON. JUSTICE TADEO ASIIMWE.**

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**RULING**

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### **BACKGROUND**

This Application was brought under Section 98 of the Civil Procedure Act and Order 46 Rules 1 (a) (b), (2) (8) and Order 52 rules 1,2,3 of the Civil Procedure Rules seeking review of the Order made in Miscellaneous Application No. 939 of 2021 reinstating Civil Suit No.115 of 2012 and costs of the Application.

The background of this Application is that Civil Suit no.115 of 2012 was dismissed under order 9 Rule 22 and Section 17 (2) of the Judicature Act. That the respondent filed Miscellaneous Application No.939 of 20121 for reinstatement of the suit which court allowed. That the applicant was dissatisfied with the order reinstating Civil Suit no.115 of 2012 arguing that court had no jurisdiction to handle the same hence this application seeking for review.

The grounds of this Application are contained in the affidavit dated $22/8/2022$ but briefly that;

- 1. There is an error apparent on the face of record and sufficient cause necessitating a review of the decision made. - 2. That the suit was re-instated on a different application.


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3. That advocates who appeared for the applicants did not have instructions in the matter. And it just and equitable that orders sought be granted.

At the hearing, only one ground was argued by the applicant's counsel

On the other hand, the respondents filed an affidavit in reply dated 29/9/2022 opposing the Application. At the hearing, the applicant was represented by Counsel Sam Sserwanga while the respondents were represented by Counsel Mugarura Jamil together with Counsel Kigula. Both Counsel made oral submissions which I shall consider in this Ruling.

#### **RESOLUTION:**

Applications for review is governed by Section 82 of the Civil Procedure Act and Order 46 of the Civil Procedure Rules which I shall quote verbatim.

Section 82 of the Civil Procedure Act provides that;

"Any person considering himself or herself aggrieved by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or by a decree or order from which no appeal is allowed by this Act, may apply for a review object ement to the court

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which passed the decree or made the order, and the court may make 'iu,. h order orr the decree or order as it thinks fit'"

Order 46 of the Civil Procedttre Rules provides;

" l . Application for review of judgment:-

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(l ) Any person considering himself or herself aggrieved;

(a) By a decree or order from which an appeal is allowed, but from rvhich rro appeal has been preferred; or

(b) by a decree or order from which no appeal is hereby allowed, and rvho from the discovery of new and important matter of evidence w'hich, after the exercise of due diligence, was not within his or her krroivlcclge 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. plssed or order made agairrsl hinr or her, rnay apply for a review ofjudgment to the Court u'lrich passed the decree or made the ogder 1^l\ \ roJ?-. I

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(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party, except where the ground of the appeal is common to the applicant and the appellant, or when, being respondent, he or she can present to the appellate Court the case on which he or she applies for the review.

The grounds for review were enunciated in the case of FX Mubuuke Vs UEB High Court Misc. Application No.98 of 2005 to be;

- 1. That there is a mistake or manifest mistake or error apparent on the face of the record. - 2. 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. - 3. That any other sufficient reason exists.

This Application is based on the first ground of a mistake or error apparent on the face of the record.

Court in the case of Edison Kanyabwera versus Pastori Tumwebaze, Supreme Court Civil Appeal No. 6 0f 2004 highlighted the meaning of an error in the face of record as follows;

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"In order that an 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 so manifest and clear that no Court would permit such an error to remain on record. The error may be one of fact but it is not limited to matters of a fact and includes also error of law."

To support the above ground, Counsel for the applicant in his oral submissions argued that there is need for review of orders made in Miscellaneous Application No.939 of 2022 since there was an error apparent on the face of record. From the record, Civil Suit No.115 of 2012 was dismissed under Order 9 Rule 22 and Section 17 (2) of the Judicature Act. In his view, a suit dismissed under Section 17 of the Judicature Act can only be reinstated on Appeal or by bringing a fresh suit since a dismissal of a case under Section 17 (2) of the Judicature Act creates a final decree of court and cannot be reinstated by the dismissing court.

Counsel for the applicant finally submitted that the suit was improperly reinstated and that the Application should be allowed with costs.

In response, Counsel for the Respondents submitted that court has inherent powers under Section 98 of the Civil Procedure Act to reinstate such suits and that the suit was properly reinstated. He further submitted that Section 17 (2) of the Judicature Act does not refer to a

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flnal decree and invited court to dismiss the Application for the same reasons

FromthepleadingsbybothpartiesandsubmissionsofbothCounsel, the cluestior.r for court's determination is whether a suit dismissed under orclergRule22orandSection|7(2)oftheJudicatureActcanbe reinstatcd b1 the dismissing court' To answer this question' I shall c0rrsider orclcr 9 rule 22 and section 17 (2) of tbe Judicature Act'

t)rclcr 9 l{ule 22 CPR provides as follows;

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" Ill here the de./bndant appears , and the plaintiff does not appear' when thc s'trit is ttrlleri onJor hearing, the court shall make an order that the suit he tlismi.ssed, unless the defendant admits the claim, or part of it, in v,hich cqse the court shall pass a decree againsl the defendant upon .tuch qdmission, and, where part only of the claim hqs been odmitted, shall clisrniss the suit so far as it relates to the remainder"'

When a suit is wholly or partly dismissed under Rule 22 of

Order 9, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action as per rule 23 of order 9 w[gh-.,'. pnrvides that;-. q\ ,v^

1l t Ll/here a suit is u,holly or partly dismissed <sup>u</sup> lt <sup>h</sup> ! Orclcr, the plaintiff'shall be precluded from bri 'g a fresh <sup>s</sup>,"1,i te\pt'(t of th<: same cause o.f action. But he or she may applyfor an 1r(lttt' to set lhe dismissal aside, and, if he or she satisfies the court that lhtre wos sfficient cause for nonappearance when the suit was called

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on for hearing, the court shall make an order setting aside the dismissal, upon such terms as to costs or otherwise as it thinks fit, and *shall appoint a day for proceeding with the suit.*

My understanding of the above order is that a dismissal under O.9 Rule 22 doesn't create a final decree so as to bar reinstatement. The remedy is an application for reinstatement under rule 23 of the same order.

My view is that Only cases dismissed for want of prosecution under order 17 are barred from reinstatement since dismissal for want of prosecution creates a final decree and the remedy lays only in appeal or fresh suit as per order 17 sub rule 5 (2) of the CPR.

Dismissal for want of prosecution should never be confused for dismissal of non-appearance. Whereas dismissal for want of prosecution creates a final decree of court, dismissal for nonappearance is not a final decree of court.

In addition, this application was also dismissed under section 17 of the judicature act.

As already stated above, Dismissal for want of prosecution is provided for under order 17 rule 5 of the CPR. This should also not be confused with section $17(2)$ of the judicature act which is to the effect that;-

With regard to its own procedures and those of the magistrate's courts, the High Court shall exercise its inherent powers to prevent abuse of the process of the court by curtailing delays, including the power to $1H$

limit and stay delayed prosecutions as may be necessary for achieving the ends of justice.

Unlike order 17 rule 5 whose remedy is explicitly provided under order 17 rules (2), section 17(2) of the Judicature Act is premised on the inherent powers of court and so does the remedy in my view. Therefore dismissal of a suit for abuse of court process equally is not a final decree of court.

Therefore the learned judge in reinstating the original case rightly exercised his inherent powers court to entertain the Application for reinstatement and grant it. I have not found any error apparent on the face of record to warrant a review.

I therefore find no merit in this Application and the same is here by dismissed with costs.

IHLIORA **TADEO ASIIMWE**

**JUDGE**

$6/10/2022$