Musa Mwanje v John Lule Ssebakijja (Miscellaneous Application 203 of 2022) [2023] UGHC 242 (5 December 2023)

Full Case Text

#### THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT JINJA **MISCELLANEOUS APPLICATION NO 203 OF 2022** (ARISING OUT OF CIVIL APPEAL NO. 033 OF 1999 (FROM MUKONO CHIEF MAGISTRATE'S COURT CIVIL SUIT NO. 028 OF 1994)

MUSA MWANJE ::::::::::::::::::::::::::::::::::::

**VS**

# **JOHN LULE SSEBAKIJJA :::::::::::::::::::::::::::::::::::**

## **BEFORE: HON. LADY JUSTICE FARIDAH SHAMILAH BUKIRWA NTAMBI**

#### **RULING**

#### **Background**

This application was brought by Notice of Motion under Sections 82 & 98 of the Civil Procedure Act and Order 46 rule 1 & 5 and Order 52 of the Civil Procedure Rules as amended, seeking orders that;

- 1. The Civil appeal and the orders issued therefrom be reviewed and set aside. 2. Civil Appeal No. 33 of 1999 be dismissed for being incompetent and or for want of prosecution. - 3. The costs of the application be provided for.

The grounds upon which this application is premised are briefly that;

- 1. There are quite a number of errors on the face of record. - 2. That the orders in the said appeal were illegally obtained. - 3. That there are apparent illegalities on the face of the record that can be resolved without explanation. - 4. The order is being used to destroy the applicant's properties.

The application is supported with an affidavit sworn by Sebuwuufu Dirisa, the Applicant's son and caretaker wherein he states that on Friday 1st July, 2022, the Respondent's children armed with a court order entered onto the land on which the applicant and his siblings occupy as children of the applicant and started cutting down trees.

He contended that the alleged order was issued under an appeal that arose from a case the applicant had won long ago in Mukono Court. That the said appeal was

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filed on 5th October 1999 and had never been served on the Respondent and there is no affidavit of service.

The Respondent did not file an affidavit in reply and neither did he attend Court. On 8/11/2022, Court allowed the Applicant to proceed exparte.

#### **Representation**

At the hearing of this application, the Applicant was represented by Counsel Martin Asingwire who made oral submissions which have been considered in this ruling.

#### **Submissions**

Counsel for the Applicant submitted that $0.46 r 1(a)$ of the Civil Procedure Rules (CPR) provides that were a person considers himself aggrieved by an order from which an appeal is allowed but no appeal has been preferred and desires to obtain a review of the order, he may apply to Court which passed the order for review and that Section 82 of the Civil Procedure Act (CPA) gives Court power to grant such applications as it thinks fit.

Counsel for the Applicant cited the case of Paul Muhimbula & Anor Vs Patrick Lwanga & 2 Ors, Review Application No. 28 of 2019 in which case it was stated that the orders of the Court in HCCS 85 of 2005 which gave rise to the direction to surrender their certificate of title for cancellation made without giving the Applicants the opportunity to be heard clothed the Applicants with a title of aggrieved persons within the meaning of Section 82 of the Civil Procedure Act.

It was Counsel's submission that Appeal No. 033 of 1999 from which the order arose has no record of proceedings in Jinja High Court which means that the appeal was never heard and that is an error or mistake that is so apparent which Court should not ignore.

Counsel referred to annexures 'E1-E4" attached to the affidavit in support of the application to which he submitted that the sum of the letters is that Counsel for the Respondent in the appeal made every reasonable effort to have the appeal heard but did not succeed.

Counsel further referred to annexture 'F' attached to the affidavit in support of the application which is a hearing notice and indicates that the matter had been fixed for hearing on 18th January 2001. However, the hearing notice was not signed by any judicial officer neither was it served on the Respondent. That one more attempt was made to hear the matter on 14th November 2001 but the hearing notice was still not served on the Respondent. Counsel further submitted that

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there is no record of proceedings for the said date which is further proof that there was no service and that there is no affidavit of service for the appeal or any

It was counsel's further submission that there is no judgement on record and it is impossible to know where the order was extracted from and that it is strange that after disposal of an appeal, the appellant extracted an order rather than a decree.

In further submission, counsel for the applicant argued that although it is alleged in that order that the matter had been disposed of by Hon. Lady Justice Patricia Basaza Wasswa in 2015, the order is dated 15th March 2016 and therefore the date on the order does not correspond with the date when the matter was allegedly disposed of. That although there is no original file copy of the order on Court record, it is alleged that it was certified in June 2022.

Furthermore, Counsel submitted that the order cannot be executed following such flight of time more than 2 years without any proceedings under a notice to show cause why execution should not issue. From the facts of this case, the order of 2015 was sought to be executed in 2022 which is a period of 7 years.

## Counsel referred to the decision in Paul Muhimbura & Anor Vs Patrick Lwanga & Others C. R. A No. 28 of 2019 wherein it was explained that;

"a mistake or error apparent on the face of record" refers to an evident error which does not require extraneous matter to show its incorrectness. It is an error so manifest and clear that no Court would permit such an error to remain on the record. It may be an error of law, but the law must be definite and capable of

In light of the above, Counsel submitted that he had labored to demonstrate multiple errors on the face of record without accusing anybody of fraud and that these errors cannot be allowed to stand.

It was Counsel's further argument that an illegality once brought to the attention of Court cannot be allowed to stand. Counsel relied on the case of Musoke Mike & Anor Vs Kalumba James in Revision Cause No. 09/2019 for the principle that illegalities once brought to the attention of Court cannot be allowed to stand because Court cannot sanction an illegality.

Furthermore, Counsel for the applicant submitted that O. 43 r 11 of CPR requires a party to serve a notice of hearing on the Advocate/Respondent in a manner provided for the service of summons and that the provisions of the law with regard to the service of summons shall apply to service of hearing notices. If such

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hearing notice is not served within 21 days, the matter is automatically dismissed without notice to the other party.

In conclusion, counsel submitted that since 1999, no hearing notice for the appeal has ever been served on the Respondent despite hearing notices having been extracted. Counsel prayed that Court finds the appeal is automatically dismissed by operation of law under 0. 5 r. 1(3) and O. 43 r 11 of the CPR.

#### **Issues**

- 1. Whether the Civil appeal and the orders issued thereunder can be reviewed and set aside. - 2. Whether Civil Appeal No. 33 of 1999 should be dismissed for being incompetent and or for want of prosecution.

#### **Analysis**

The jurisdiction of this Court to handle this application is derived from **O. 46 r 2** of the CPR which provides as follows;

"An application for review of a decree or order of a Court upon some ground other than discovery of the new and important matter or evidence as referred to in rule (1) of this order or the existence of a clerical or arithmetical mistake or error apparent on the face of the decree shall be made only to the judge who passed the decree or made the order sought to be reviewed."

According to paragraphs 5, 8, 9, 10 and 11 of the affidavit in support of this application, it is clear that the applicant seeks review on the ground of an error apparent on the face of the record wherefore this type of application is not restricted to the judge who passed the order sought to be reviewed.

I find the two issues interconnected since they are based on the same grounds. I will thus resolve them concurrently.

Review is provided for under Section 82 of the CPA which provides that; Any person considering himself or herself aggrieved;

By a decree or order from which an appeal is allowed by this Act, but $(a)$ from which no appeal has been preferred; or

By a decree or order from which no appeal is allowed by this Act, $(b)$ may apply for a review of judgement 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."

The same is reechoed under **O. 46 r. 1 of CPR** which goes further to state the grounds for review as;

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- *a) discovery of new and important matter or evidence which after the exercise* of due diligence, was not within his or her knowledge or could not be produced by him or her at the time when the decree was passed or the order - b) Mistake or error apparent on the face of the record. - c) For any other sufficient reason.

As earlier noted, in this matter, the Applicant seeks for review based on an error apparent on the face of the record and that the order was illegally obtained. To support this ground, the Applicant adduced evidence in the affidavit in support of the application sworn by his son to the effect that the alleged order was issued under an appeal that arose from a case the Applicant had won a long time ago at the Chief Magistrates Court in Mukono. That although the appeal was filed on 5th October 1999, it was never served on the Respondent and that there is no affidavit of service on the court record to prove service. That although hearing notice were extracted for the appeal to be heard on 18th January 2001 and on 14th November 2001, the same were never served on the Respondent (Applicant in the instant application) and that there is no record of any proceedings of the Judge for the appeal allegedly heard and disposed of.

An error apparent on the face of record is one that could reasonably be made out where an error on a substantial point of law stares one in the face and there could reasonably be no two opinions. (Refer to Nyamogo & Nyamogo Advocates vs Kago cited in Abdala Ramathan (Administrator of the estate of the late Noah Ramathan) Vs Agony Swaib M. A No. 0067 of 2016).

In this case, I have perused Civil Appeal No. 033 of 1999 and as Counsel for the Applicant submitted, I have not found the record of proceedings, judgment nor a copy of any order therein. As earlier stated, review is based on the error apparent on the face of record and is aimed at correcting the said error or

In absence of the record of proceedings, the Judgment or order, I am extremely puzzled as to whether the impugned order was ever issued and doubtful that the order was issued by this court.

On the contrary and in the event that the order was issued, I am convinced that the same was issued in error since in the uncontested evidence of the Applicant contained in the affidavit in support, it is clearly stated under paragraph 5 that the appeal was filed on 5th October 1999 and had never been served on the Respondent (Applicant) and that there is no affidavit of service to prove service. Hearing notices were issued for the appeal to be heard on 18/1/2001 and 14/11/2001(Paragraphs 8 and 9 of the affidavit in support of the application) but

the same were not served on the Applicant and neither was an affidavit of service filed by the Appellants in proof of service.

According to the impugned order (annexture A of the affidavit in support), it was issued on 8th September, 2015 in the presence of the Appellant (Respondent herein) and in the absence of the Respondent (Applicant herein). This in my opinion corroborates the Applicant's evidence that he was never served with the appeal and the subsequent hearing notices and that is the reason why he did not attend. In other words, he was not aware of the appeal from which the impugned

### O. 5 r 16 of the CPR provides that;

"The serving officer shall, in all cases in which the summons has been served under rule 14 of this order, make or annex or cause to be annexed to the original summons an affidavit of service stating the time when and the manner in which the summons was served, and the name and address of the person, if any, identifying the person served and witnessing the delivery or tender of the

Order 43 r 11 of the CPR makes 0. 5 r 17 of the CPR applicable to service of notices for the day fixed for hearing of the appeal.

In Edison Kanyabwera Vs Pastori Tumwebaze SCCA No. 6 of 2004, it was observed that:

The provisions of this rule is mandatory, ........ what the rule stipulates about service of summons in my opinion, applies equally to service of hearing notices."

## In the same case, it was held that;

"There was no affidavit of service on the record. The absence of such affidavit inevitably leads to the conclusion that the defendant was not properly served with the hearing notice before the suit was heard in his absence."

From the foregoing, I find that the absence of affidavits of service for the appeal and the subsequent hearings (if any) which culminated into the impugned order coupled with the Applicant's absence in Court only indicate that the Applicant was never served. This was an error. It is a material error because it resulted in the applicant being denied his right to be heard which Court cannot leave to stand.

It is a principle of law that an application for review may be granted whenever the Court considers that it is necessary to correct an apparent error or omission on the part of the Court. See Farm Inputs Care Centre Ltd Vs Klein Karoo Seeds Marketing (PTY) Ltd M. A No. 0861 of 2021.

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From the above principle, I find no reason to deny the application. Review application is hereby allowed.

Be that as it may, this is an appeal that was filed in 1999. The Civil Suit from which the appeal arose was filed in 1994. Therefore, since 1994, the parties herein have been in Court.

Having observed that there is no proof of service of the appeal on record and no proof of service of the hearing notices for the appeal on the Respondent, I have also noted that neither did the Appellant file an application for extension of time within which to serve the appeal as required under $0.5 r 1 (3)$ (b) of the CPR.

In the absence of the record of proceedings and the judgment from which the impugned order emanates, this court finds that the order stands in a vacuum and the authenticity of this order is highly doubted by this court. As such, the order is

There is no plausible explanation as to why the Respondent omitted to serve the appeal and the hearing notices. This being a 1999 appeal, I find the Respondent's conduct in violation of the Applicant's right to a fair and speedy trial as guaranteed under Article 28(1) of the Constitution of the Republic of Uganda.

Bearing in mind the principle that justice delayed is justice denied and the failure by the Appellant to serve court process on the Respondent (the Applicant herein) coupled with the absence of the judgment from which the order emanates, I find no plausible reason to uphold the appeal. Civil Appeal No. 33 of 1999 is hereby dismissed for being incompetent and for want of prosecution under O.5 r 1(3) and O.46 r. 11 of the CPR with costs to the Applicant.

I so order.

JUSTICE FARIDAH SHAMILAH BUKIRWA NTAMBI Ruling delivered in Court on 5th December, 2023.