Mukiibi v Sheroba & Another (Miscellaneous Application 47 of 2024) [2024] UGHC 660 (15 July 2024)

## THE REPUBLIC OG UGANDA

## IN THE HIGH COURT OF UGANDA HOLDEN AT MBALE

### **MISCELLANEOUS APPLICATION NO. 047 OF 2024**

# (Arising from Civil Appeal No. 108 of 2021)

(Arising from Mbale Chief Magistrate Court Land Matter No. 051 of 2020)

MUKIIBI IBRAHIM ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

#### 1. SHEROBA FRED

## 2. WANJUSI PHILIP ...................................

# BEFORE: HON. JUSTICE LUBEGA FAROUQ **RULING**

- 1. This Application was brought by way of notice of motion under sections 99 and 100 of the Civil Procedure Act, Section 33 of the Judicature Act, Order 52 rules 1, 2 and 3 of the Civil Procedure Rules for orders that- - (a) The mathematical error made by the trial court in the judgment of Civil Suit No. 51 of 2020, Mukiibi Ibrahim V. Sheroba Fred and another be rectified and put on record 60 feet by 138 feet which makes half of 120 feet by 138 feet of the suit land to be handed over to the Applicant by the first Respondent.

(b) Costs of the Application be provided for.

- 2. The Application is supported by the affidavit sworn by the Applicant and the grounds are briefly as follows- - (a) That the Applicant was the successful party in Civil Suit No. 051 of 2020 at magistrate court grade one in Mbale. He was also the successful party in Civil Appeal No. 108 of 2021 which arose from Civil Suit No. 51 of 2020; - (b) That the trial court ordered that the first Respondent to hand over half of the suit land to the Applicant/ Plaintiff which decision was upheld by this court-

- (c) That the trial court made a mathematical error in computing the measurements of the plot of land to be handed over to the Applicant by the first Respondent; - (d) That the 60 feet by 69 feet which the trial court ordered to be handed over to the Respondent makes a quarter of the 120 feet by 138 feet and it does not reflect the decision made by court to hand over half of the suit land to the Applicant; - (e) That the mathematical error is a slip rule that can be rectified by the honorable court; - (f) That it is in the interest of justice and equity that court rectifies the error and put on record 60 feet by 138 feet which makes half of 120 feet by 138 feet to be handed over to the Applicant by the first Respondent. - 3. This Application was opposed by the $2^{nd}$ Respondent in the affidavit in reply where he averred as follows- - (a) That the trial court made no mathematical error in computing the measurements of the plot of land it decreed to the Applicant. That the 60 feet by 69 feet of land the court decreed to the Applicant is a true reflection of the trial court's decision and the same indeed constitutes half the total suit land; - (b) That this honorable court is not mandated to rectify this error if at all because it did not pass the judgment in question; - (c) That it is just and equitable that the orders sought by the Appellant be denied because court orders are not issued in vein; - (d) That the interest of justice warrants that the orders sought herein be denied since this honorable court is not clothed with the mandate to award the same; - (e) He prayed that the Application be dismissed with costs.

## 4. Legal Representation

5. Counsel Nanguru Edmond represented the Respondents. The Applicant represented himself.

$\mathsf{2}$

#### 6. Submission

7. This Application proceeded by way of written submissions. The applicant complied and filed his submission while the respondent did not. I will consider them in the determination of this ruling.

# 8. Determination of court.

- 9. The Applicant submitted that the trial court made a mathematical error when computing the measurements of the plot to be handed over to the Plaintiff/Applicant in relation to the size of the suit land to be 60 feet by 69 feet which makes a quarter of the suit land and it does not reflect the intention of the trial court of an order to give half of the suit land to the Applicant. - 10. The Applicant cited the case of **Ranaiga (1965) EA at p.703**, where it was held that; "A court will, of course, only apply the slip rule where it is satisfied that it is giving effect to the intention of the court at time when judgment was given or in the case if a matter which was overlooked, where it is satisfied beyond doubt, as to the order which it would have made had the matter been brought to its attention. The above position still holds good..." - The Applicant further submitted that the trial court having 11. pronounced its final judgment in Civil Suit No. 51 of 2020, its powers to correct the mathematical error under slip rule ceased and therefore the honorable court being the court of high jurisdiction has all the powers/authority to correct the mathematical error under section 99 and 100 of the Civil Procedure Act. - 12. He cited Goodman Agencies Ltd V. Attorney General and Hassa Gencies (K) Ltd Constitutional Petition No. 03 of 2008 which cited with approval the decision of the Court of Appeal of Botswana in Magdeline Makinta V. Fostina Nkwe Court of Appeal No. 26 of 2001 the judge quoted *Odneste Monanyana V. the State, Criminal Appeal No. 8 of* 2001 (unreported) held: "The general principle is now well established in South Africa as well as Botswana is that once a court has duly

pronounced a final judgment or order it has itself no authority to correct, alter or supplement it. The reason is that it becomes thereupon *functus officio*, its jurisdiction in the case having been fully and finally exercised its authority over the subject matter has ceased."

#### 13. **Analysis of court**

14. Section 99 of the Civil Procedure Act Cap 282 provides that-

> "Clerical or mathematical mistakes in judgments, decrees or orders, or errors arising in them from any accidental slip or omission may at any time be corrected by the court either of its own motion or on the application of any of the parties."

- In Uganda Development Bank Ltd V. Oil Sees (U) Ltd MA 15 of 15. **1997 (SC)** Supreme Court held that- - (1) "In a situation like that, the Court has inherent jurisdiction to recall its judgments in order to give effect to its manifest intention or what clearly would have been the intention of the *Court had some matter not been inadvertently omitted, but the Court will not sit on appeal against its own Judgment in the same proceedings.* - (2) A slip order will only be made where the Court is fully satisfied that it is giving effect to the intention of the Court at the time when Judgment was given or in the case of a matter which was overlooked, where it is satisfied beyond reasonable doubt, as to the order which it would have made had the matter been brought to its attention. The applicant must therefore prove that there was a clerical or arithmetic mistake in the judgment or any error arising from an accidental slip or omission which did not give effect to the intention of the Court when it passed the judgment." - 16. In the instant case, the background of the case is that the Applicant instituted land suit No. 051 of 2020.

The trial magistrate found the suit in favour of the Applicant and in 17. his judgment he stated-

> "I note that the whole land which the $1<sup>st</sup>$ Defendant intended to sale to the $2^{nd}$ Defendant was measuring 120 feet by 138 feet.

> According to the Defendants, the $2^{nd}$ Defendant only paid six million and was given half of that land but no clear demarcation have been made because the clan has not sat.

> I therefore find that the land which the $1^{st}$ Defendant sold to the $2^{nd}$ Defendant measures 60 feet by 69 feet the same being half of 120 feet by 138 feet. Considering that the $2^{nd}$ Defendant bought the above land using the Plaintiff's money, I hereby find that the portion of 60x69 feet belongs to the Plaintiff.

> I accordingly direct the Defendants to hand over land measuring 60 feet by 69 feet to the Plaintiff within $a$ period of one week from today without fail....."

- 18. The Respondents being dissatisfied with the above decision, appealed to this court under Civil Appeal No. 0108 of 2021 but the same was dismissed and this court upheld the decision of the trial court. The alleged error was however not brought to the attention of this court. - However, before I delve into the merit of this Application, I note from 19. the affidavit in reply under paragraph 8 that the $2^{nd}$ Respondent averred that this court is not mandated to rectify the error because it did not pass the judgment in question. - 20. According to the court record, this court on appeal handled the questions in contention that were raised by the Respondents. The Applicant did not however, raise any question to be determined by this court in respect of the mathematical errors in the judgment of the trial

court and having failed to do so, this court went ahead to resolve the Respondents' questions and upheld the trial court's judgment.

- 21. Therefore, the appellate court having not tampered with the finding of the trial court, in the view of the authority cited, the trial court is the most appropriate court to correct the alleged errors in the judgment having passed the same. - 22. The Applicant submitted that the trial court having pronounced its final judgment in Civil Suit No. 51 of 2020, its powers to correct the mathematical error under a slip rule ceased. With due respect I did not agree. - 23. Section 99 cited above read together with **Uganda Development** Bank Ltd V. Oil Sees (U) Ltd (Supra) clearly indicates that the Court has inherent jurisdiction to recall its judgments in order to give effect to its manifest intention. - In the light of the above, the *functus officio* rule argued by the 24. Applicant does not apply to the slip rule. The trial court still has jurisdiction to recall the judgment which it passed to correct the arithmetical errors therein. - In the circumstance, this application is accordingly dismissed. The 25. Applicant is advised to file the same before the trial court to correct the mathematical errors in its judgment. - 26. There are no orders as to costs awarded.

I so order


Ruling delivered via the emails of the parties on 15<sup>th</sup> day of July, 2024

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