Nabasinga v Nakintu & Another (Revision Cause 20 of 2022) [2023] UGHC 387 (7 September 2023)

# **THE REPUBLIC OF UGANDA**

# **IN THE HIGH COURT OF UGANDA AT MASAKA**

# **REVIEW CAUSE NO.20 OF 2022**

## **(ARISING FROM CIVIL APPEAL NO.84 OF 2016)**

## **(ARISING FROM CIVIL SUIT NO.121 OF 2015)**

## **MAXENSIA NABASINGA::::::::::::::::::::::::::::::::::::::::::APPLICANT**

## **VERSUS**

## **1. MARIA NAKINTU**

## **2. NAMPEERA MARIANE:::::::::::::::::::::::::::::::::::::::::::RESPONDENTS.**

## *Before; Hon. Justice Victoria Nakintu Nkwanga Katamba*

## **RULING.**

#### **Introduction.**

This Application for review was brought under Sections 82 and 98 of the Civil Procedure Act and Order 46 Rule 8 of the Civil Procedure Rules SI 71-1 seeking orders that;

- 1. The Judgment in Civil Appeal No.84 of 2016 be reviewed and set aside. - 2. Costs of the Application be provided for.

The Application was supported by the affidavit of the Applicant, Maxensia Nabasinga, where she states as follows; that;

- 1. The Respondents filed Civil Suit No.121 of 2021 in the Magistrates Court against a one, Senabulya Joseph seeking a declaration that they are the lawful owners of the suit land belonging to part of the estate of the late Byansi Benedicto. - 2. The suit was decided in the Respondents favour. - 3. Senabulya Joseph appealed to the High Court but the Appeal was dismissed.


- 4. She is dissatisfied with the Judgement since it bestowed ownership of the suit land to only the Respondents in isolation of the rest of the beneficiaries of the estate of the late Byansi Benedicto to wit she is part being a granddaughter of the deceased. - 5. The Judgement was erroneous as it declared only the Respondents as the rightful owners of the suit land and this was an apparent error on record which needs to be corrected. - 6. The suit land acts as burial grounds for the family. - 7. There is a likelihood of the Respondents chasing the Applicant and her family from the property.

An affidavit in reply was deponed by the 2nd Respondent, Nampeera Mariane, both on her behalf and on behalf of the 1st Respondent. In her affidavit, she states as follows, that;

- 1. The Courts rightly held that following the death of their father Byansi Benedicto, the suit land comprising the residential holding belonged to their mother Baseka and following her death, then same became devolved to the Respondents. - 2. The Court rightly held that Daniel Lubowa under whom the Applicant claims to derive interest has never owned the suit property and that the Applicant is therefore not an aggrieved person. - 3. The Applicant is a stranger to Civil Appeal No.84 of 2016 and Civil Suit No.121 of 2015. - 4. The Applicant has not shown any evidence that there is an error apparent on the face of the record.

In rejoinder, the Applicant stated as follows, that;

- 1. The Trial Court and the Appellate Court were misled to arrive at a finding that the suit land belonged to the Respondents to the exclusion of all the other children of Benedicto Byansi and Baseka including Matiya Lubowa from whom the Applicant derives interest. - 2. Since the suit land belonged to the Applicant's grand father, she is entitled to a share in the suit land.


- 3. She is an aggrieved party and she therefore has locus to bring the Application. - 4. The error apparent on the face of the record is the finding that the Respondents are rightful owners of the suit land which disregards the interests of other beneficiaries.

I note that there were supplementary affidavits filed by the Respondents on 27th April 2023 and 15th May 2023 while there is also a supplementary affidavit filed by the Applicant dated 4th May 2023. However, I shall address the status of these affidavits later on in the ruling.

## **Representation.**

Musamali Martin appeared for the Respondents while Luteete Denis appeared for the Applicant.

Both Parties filed written submissions and two issues were raised for determination;

- 1. Whether the Applicant is an aggrieved Person within the meaning of Section 82 of the Civil Procedure Act. - 2. Whether application meets the criteria for review.

#### **Submissions for the Applicant.**

1. Whether the Applicant is an aggrieved Person within the meaning of Section 82 of the Civil Procedure Act.

It was Counsel's submission that an aggrieved person is person against whom judgement has been past or where a judgement passed affects that person's interests. Counsel relied on the authority of Ladak Adulla Mohamed Hussein versus Griffs Isingoma and others, SCCA. No.8 of 1995 to support his submissions. Counsel then submitted that the Applicant is a daughter of the late Matiya Lubowa, a brother to the Respondents and that the Applicant is a grand daughter to the late Byansi Benedicto and Baseka who were the owners of the suit land and as a result, the Judgement affects her interests.

2. Whether application meets the criteria for review.


It was Counsel's submission that it is an error apparent on the face of the record that properties belonging to the late Byansi Benedicto or Baseka were never distributed in line with the provisions of the Succession Act and the several other beneficiaries were excluded.

Counsel submitted the Applicant is aggrieved by the Judgement as far as it vests the entire suit land in the Respondents to the exclusion of all other beneficiaries . It was Counsel's submission that even when the property devolved to the Byansi's wife, Her son Matiya Lubowa, from whom the Applicant derives her interest was still entitled to a share in the estate.

Counsel relied on the authority of Paul Muhimbura and another versus Patrick Lwanga and others, HCMA. No.2018 of 2019 to support his submission.

#### **Submissions in reply.**

# **1. Whether the Applicant is an aggrieved person under Section 82 of the Civil Procedure Act.**

While relying on the case of Yusuf versus Nokrach (1971) EA 104, Counsel was in agreement that an aggrieved person is a person against whom judgement has been passed or the judgement passed affects the Person's interests. Counsel submitted that at the time of determination of the Appeal, the Applicant had no pre-existing interest in the suit land and the Applicant therefore has no locus to bring the Application.

Counsel submitted that the late Byansi Benedicto died intestate and the suit land which formed part of matrimonial property devolved to his wife Baseka where upon her death, the property devolved to her children, the Respondents.

Counsel relied on the cases of Labak Abdallah versus Isingoma SCCA. No.8 of 1995 and Mohamed Albhai versus Bukenya Mukasa and another, SCCA. No.56 of 1996 to support his submissions.


#### 2. **Whether the Application meets the criteria for review.**

It was submitted that the Applicant has not shown any direct evidence that there was an error apparent on the face of the record. Counsel submitted that the estate of the late Byansi or Baseka not being distributed according to the Succession Act or that the property devolved to the Respondents was a matter duly considered by the Courts and is therefore not new.

Counsel also submitted that the matters raised by the Applicant do not amount to errors on the face or record because they require extraneous evidence to be established.

#### **Submissions in rejoinder.**

# **1. Whether the Applicant is an aggrieved person under Section 82 of the Civil Procedure Act.**

It was submitted that the Applicant is an aggrieved person because the Judgement deprived her of her share in the estate which she derives from her father's share. Counsel submitted that the gist of the Application is that there is an error apparent of the face of the record which is that the Court bestowed ownership of the suit land to the Respondents disregarding the interests of other beneficiaries.

#### **2. Whether the Application meets the criteria for review.**

Counsel reiterated his submissions in support. He stated that granting ownership of the land to the Respondents is an error that ought to be rectified. Counsel submitted that there is no evidence to show that the Applicant's father got a share from the late Byansi or Baseka's estate therefore, it was erroneous to grant ownership of the entire estate to the Respondents.

Having considered the affidavits in support and in opposition of this Application together with the submissions of the Parties, I now proceed to determine this Application.


#### **Determination of Application.**

As earlier observed in the ruling, there were numerous supplementary affidavits filed. For ease of determination, I shall refer to the sequence of events leading up to the additions affidavits.

The notice of motion and the affidavit in support were filed on 07th November 2022 where upon the Respondent filed their affidavit in reply on 21st February 2023. Thereafter, the Applicant filed a rejoinder on 23rd March 2023. The matter first came for hearing on 29th March 2023. On that day, Applicant's counsel was absent and the matter was adjourned to 4th May 2023 then later adjourned to 17th May 2023 where parties were instructed to file written submissions. It appears that sometime in April and May though after the matter had already come up for hearing, the Respondent filed two supplementary that is; one on the 27th April 2023 and another on 15th May 2023. It also my observation that the Applicant filed on 4th May 2023 albeit the same being a response to the Respondent's supplementary affidavit dated 27th April 2023.

I have no issue with the affidavit in support, reply and in rejoinder however I take issue with the affidavits filed after the matter had come up for hearing. When the matter came up for hearing, receipt of evidence had closed and in case any of the Parties desired to adduce any further evidence, they ought to have obtained leave of Court to do so.

In *Surgipharm (U) Ltd versus Uganda Investment Authority and another, HCMC. No.65 of 2021*, it was held that the position is that in an application to be determined on basis of affidavits, all affidavits and pertinent documents should be filed and served on the opposite party before the date fixed for the hearing of the particular application, failure of which, the affidavit ought to be struck off the Court record. It was further held that, "*If a party waits up to after the matter has come up for hearing, and for some reason the matter does not takeoff, a party seeking to file any supplementary affidavit would need to seek leave of the court and to notify the opposite party*." (emphasis is mine)

In the instant case, the Respondent never obtained leave to file any additional evidence (affidavit) despite having attended Court on the first day fixed for hearing

 and the subsequent adjournments. It also my observation that the Applicant never filed a response to one of the supplementary affidavits filed by the Respondent. The Respondent actions in my view amount to trial by ambush which is against the principles of natural justice. (Also see: *Namaasa Alred versus Mafabi Muhammed High Court Election Petition No.20 of 2021 for the proposition that a rejoinder is the last of pleadings and leave is required to adduce any supplementary evidence*).

For the reasons above, I consider it necessary to expunge all the affidavits filed after the matter came up for hearing and in determination of this Application, I shall only rely on the affidavits in support, in reply and in rejoinder.

## **Resolution of issues.**

## **1. Whether the Applicant is an aggrieved party within the meaning of Section 82 of the Civil Procedure Act.**

*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 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.*

An aggrieved party was defined by Justice Karokora as he then was in *Mohammed Allibhai vs W. E. Bukenya and Another, C. A 56 of 1996, citing, Re Nakivubo Chemists (U) Ltd; In the matter of the Companies Act (1979) HCB 12;* to include any party who has been deprived of his property. He also cited the case of *Kawdu vs Bever Ginning Co. Ltd, Akot and Others 1929 AIR Nagpur 185;* where it was noted that, whereas court has inherent powers to review an order passed where it affected a third party; it must be a person who has suffered a legal grievance and the principle applies depending upon the peculiar circumstances of each case.

In *Mohammed Alibhai versus Bukenya Mukasa and another (supra)*, it was further held held that where a third party can prove that he or she is an aggrieved person and


has suffered a legal grievance, he or she can apply for review. In addition, in *Adonia versus Mutekanga [1970] E. A 429*, it was held that the right to apply for review is not restricted to parties but is available to any person considering himself aggrieved that is; though the order was not against the Person specifically, it operated against the person making them an aggrieved person.

On the strength of the holdings above, the question this Court seeks to answer is whether the Applicant has an interest in the subject matter of the Appeal and whether the orders affect the Applicant's interests.

The orders on Appeal, though dismissing the Appeal, have the effect that the suit land belongs to the Respondents and not the Plaintiff or estate of the late Byansi.

It is not in dispute that the land previously belonged to the late Byansi and that the Applicant is a grand-daughter to the late Byansi. *Section 27* of the *Succession Act* recognizes lineal descendants as beneficiaries to an estate. (See: *Prince Kalemera and another versus Commissioner Land Registration and 3 others, HCCS, No.535 2017*).

A lineal descendant means a person who is descended in a direct line from the deceased, and includes a child, "a grandchild" of the deceased and any person related to the deceased in a direct descending line up to six degrees downwards. (See: *Jumba Ronald and Another versus Suzan Namuddu and Another, HCCS. No.849 of 2018*).

With the above put into consideration, it is my finding that being the granddaughter(lineal decendant) of the late Byansi, the Applicant had an interest in the estate of the late Byansi and the orders issued by the Court had the effect of interfering with her interests as a beneficiary to the estate of the late Byansi.

I therefore find that the Applicant is an aggrieved party within the meaning of Section 82.

## **2. Whether the Application meets the criteria for review.**


*Order 46 Rule 1* of the *Civil Procedure Rules SI 71-1* provides for an Application for review of judgment and it provides that;

*(1) Any person considering himself or herself aggrieved—*

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

*(b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter of 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 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 passed or order made against him or her, may apply for a review of judgment to the court which passed the decree or made the order.*(emphasis is mine)

From the above provision, the Court may exercise review powers where an Applicant establishes; (1) the discovery of new and important matter of 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 made, or (2) on account of some mistake or error apparent on the face of the record, or for any other sufficient reason. (See: *FX Mubuuke vs UEB, HCMA. No. 98 of 2005*)

The Applicant's contention is that there is an error apparent on the face of the record. In *F. X Mubuuke versus UEB (supra),* it was held that for a review to succeed on the basis of an error on the face of record, the error must be so manifest and clear that no Court would permit such an error to remain on the record. A wrong application of the law or failure to apply the appropriate law is not an error on the face of the record.

In *Batuk K. Vyas Vs Surat Municipality AIR (1953) Bom 133* cited with approval in *Kaloli versus Nduga, HCMA. No. 497 OF 2014,* it was held that, "*No error can be said to be apparent on the face of the record if it is not manifest or self evident and requires an examination or argument to establish it…………..*"

Under Paragraphs 6 and 7 of the Affidavit in support, the Applicant contends that the error arose from the Court's holding that the Respondents were the owners of the suit land, disregarding the rest of the beneficiaries of the estate of the late Byansi Benedictio.

I have had the opportunity of perusing the record and it is my observation that the court's finding that the suit property belonged to the Respondents was based on findings of fact and application of the relevant law.

At trial, the Defendant, Senabulya Joseph also averred that he derived his interest in the property from a one, Matiya Lubowa (son to the late Byansi Benedicto) whom the Applicant in this Application also avers to derive her interest from. Upon re evaluation of evidence and application of various laws therein, the Court on Appeal made a finding that the suit land was no longer part of the estate of the late Byansi but devolved to Baseka (the late Byansi's widow) becoming her property and on the passing of the late Baseka, the suit property was part of the estate of the late Baseka which thereafter devolved to the Respondents who are now the owners.

The Court duly made its findings of fact and applied the appropriate law to reach its decision. It cannot therefore be said to have been an error for the Court to reach a decision that the suit property belonged to the Respondents in disregard of beneficiaries to the estate of the late Byansi because both Courts gave due consideration to beneficiaries claiming under the estate of the late Byansi.

Counsel submitted that the Applicant is aggrieved by the Judgement as far as it vests the entire suit land in the Respondents to the exclusion of all other beneficiaries. It was Counsel's submission that even when the property devolved to the Baseka's wife, Matiya Lubowa, her son from who the Applicant derives her interest was still entitled to a share in the estate.

It is evident that Counsel raises arguments that go to the root of Court's findings of fact and law. It would therefore require examination and arguments to establish Counsel's perspective which is not the purpose of review. It is my opinion that Counsel


largely faults the Court for its findings on issues of fact and law however, where a court has made a conscious decision on the matters in controversy and exercised its discretion in favour of the successful party in respect of a contested issue, a ground for review does not arise. (See: *Farm Inputs Care Centre Ltd versus Klein karoo Seeds Marketing (PTY) Ltd HCMA. No.861 of 2021.*)

In *Farms Inputs Care Centre Ltd versus Klein (supra),* it was held that, "*A review should not seek to challenge the merits of a decision but rather irregularities in the process towards the decision. Some instances of what constitutes a mistake or error apparent on face of record are: where the applicant was not served with a hearing notice; where the court has not considered the amended pleadings filed or attachments filed along with the pleadings; where the court has based its decision on a ground without giving the applicant an opportunity to address the same; and violation of the principles of natural justice.*"

As already observed, Counsel's submissions if considered in light of the decision of the Court, go to the merits of the decision and not to the process towards the decision. To put it simply, Counsel wants Court to reconsider the evidence and findings and as already stated in this ruling, this is not the purpose of review.

For the above reasons, it is my finding that there is no error apparent on the face of record to warrant a review of the order. This Application is without merit and is hereby dismissed. Since it is a family issue and this Court seeks to promote reconciliation and harmony, I make no order as to costs.

I so order.

Dated and delivered at Masaka this 7th day of September, 2023.


**Victoria Nakintu Nkwanga Katamba.**

**Judge.**