Nakato v The Management Committee of Kyamulibwa Mixed Primary School (Miscellaneous Application 208 of 2022) [2023] UGHC 378 (2 October 2023)

## **THE REPUBLIC OF UGANDA**

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

# **MISCELLANEOUS APPLICATION NO.208 OF 2022**

# **(ARISING FROM OF HCCA. NO. 65 OF 2018)**

# **(ARISING FROM CIVIL SUIT NO.38 OF 2008 IN THE CHIEF MAGISTRATES COURT OF RAKAI AT RAKAI)**

**JENIFER NAKATO:::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT**

#### **VERSUS**

# **THE MANAGEMENT COMMITTEE OF KYAMULIBWA MIXED PRIMARY SCHOOL::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT**

*Before; Hon. Justice Victoria Nakintu Nkwanga Katamba*

## **RULING**

This Application was brought under Section 82 of the Civil Procedure Act Cap 71 and Order 46 Rules 1 and 8 of the Civil Procedure Rules SI 71-1 seeking orders that;

- 1. The Judgement of Hon. Lady Justice Winfred N. Nabisinde dated 22nd February 2020 be set aside and reviewed owing to an error apparent on the face of the record and discovery of a new and important matter of evidence. - 2. The pleadings and orders issued by the Chief Magistrate vide Rakai Civil Suit No.0038 of 2008 be held as null and void. - 3. Costs of the Application be provided for.

The Application was supported by an affidavit deponed to by the Applicant wherein she states as follows, that;

1. She was the Appellant in HCCA. No.65 of 2018


- 2. She is aggrieved by the decision of this Honorable Court which gave the Respondent a right to land which she says belongs to her and that she was evicted from her house. - 3. She brings this Application for review on account of an error and also discovery of new evidence. - 4. The Respondent brought a suit against the Applicant in the trial Court in 2013 but that the Respondent was not a legal entity as required under the law and therefore had no capacity to sue or be sued. - 5. The value of the subject matter is Ugx. 500.000.000/= as per the Respondent's bill of costs and therefore, the trial court lacked pecuniary jurisdiction. - 6. Since the Respondent does not qualify as a legal person, it cannot therefore own land. - 7. Based on the above, she seeks a review of the judgement of this Court on Appeal and the decision of the Magistrates Court to be declared null and void.

An affidavit in reply was deponed by Ssempa Muhamad wherein he states as follows, that;

- 1. He is the chairman of the Respondent entity. - 2. Judgement was delivered in favour of the Respondent both at trial and at Appeal in the High Court. - 3. Despite filing a notice of Appeal to the Court of Appeal, the Applicant did not pursue her Appeal. - 4. The Respondent holds a lease on the land from the Uganda Muslim Supreme Council while the Applicant was declared a trespasser on the land. - 5. The Respondent took possession of the suit land and is in occupation. - 6. The value of the suit land stated in the bill of costs was not the value of the suit land at the time the suit was instituted.

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

- 1. Whether the Applicant is an aggrieved Party? - 2. Whether there are any grounds for Court to grant an order of review? - 3. Whether the Applicant is entitled to the orders sought?


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

#### **1. Whether the Applicant is an aggrieved party.**

It was submitted that the Applicant was a party to the Civil suit at the trial court and the Appeal. It was further submitted that the decisions reached deprived her of her property and therefore, she qualifies as a party aggrieved by the orders of the Court. Counsel relied on the cases of Kaloli Tabuta versus Transroad Uganda Limited, HCMA. No.478 of 2019 and Wakera Vitalis versus Sulaiman Owor, HCMA. No.0044 of 2016 to support his submissions.

### **2. Whether there are grounds for Court to grant an order for review.**

While quoting the provisions of Section 82 of the Civil Procedure Rules and order 46 of the Civil Procedure Rules, Counsel submitted that review is an avenue available where an Appeal is not preferred. Counsel submitted that the Applicant has not taken any steps to prosecute his intended Appeal in the Court of Appeal.

On the grounds for review, Counsel submitted that there is a mistake or error apparent on the face of the record. Counsel then goes ahead to quote portions of the Appellate Court's judgement at Pages 3, 4 and 11. What is central to all the portions is Court's finding that the Uganda Muslim Supreme Council (UMSC) has a lease on the suit land and that UMSC leased the land to the Respondent. Counsel argued that both the UMSC and the Respondent have a lease interest on the same suit land, however, two competing lease interests owned by different people cannot exist on the same suit land and this is an error that ought to be corrected.

Counsel further submitted that an error apparent on the face of record can be an error of law. It was submitted that the Court erred at page 25 of the Judgement when it only considered S.91(1)(c) of the Land Act because on consideration of the evidence, the Applicant was a bonafide occupant but not a lawful occupant.

Counsel also submitted that the Respondent did not have locus standi to institute the suit because she did not avail any evidence to demonstrate that she is a body corporate as required under the Education (Pre-primary, Primary and Post –Primary) Act 2008.


Counsel submitted that the Court ought to have considered this an illegality. Counsel cited multiple authorities addressing the issue of locus standi.

On discovery of new fact, Counsel submitted that the Respondent concealed the value of the suit land and only revealed the same during taxation. It was Counsel's submission that the value of the suit land is Ugx. 500.000.000/= and this was above the pecuniary jurisdiction of the trial Court.

#### **Submissions for the Respondent.**

Counsel addressed all grounds concurrently.

It was submitted that the Applicant seeks to review the decision of this Court as well as the decision of the trial Court however, according to Section 82 of the civil Procedure Act, this Court can only review its decision and not the decision of the lower Court.

Counsel submitted that the Applicant complains of errors in the decision of the trial Court and not this Court. That Annexure A to the affidavit is an order of the trial Court and not this Court. Counsel submitted that since all errors complained of refer to the decision of the trial Court, the review Application should have been made to the trial Court.

On mistake apparent on the face of record, Counsel submitted that the error complained of is the fact that the Respondent is not a legal person under the law and the fact that two leases exist on the same land however this cannot be said to be an error apparent on the face of record.

On discovery of new evidence pertaining to the value of the suit land, Counsel submitted that it is imperative that such evidence must not only be discovered after the decree but it must be evidence which after exercise of due diligence, was not in the knowledge of the Applicant and could not be produced at trial. Counsel then submitted that there was no attempt to show that there was any due diligence done or why the evidence of the value of the subject matter was not produced at trial. In the alternative,


Counsel submitted that the suit land has since appreciated in value ever since the suit was first filed.

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

Counsel submitted that this Court has jurisdiction to review the decision of the Chief Magistrates Court. Counsel also submitted that an illegality can be brought to the Court's attention at any point and as a result, the proceedings before the Chief Magistrates Court should be declared null and void.

Counsel then submitted that the Respondent has failed to furnish proof that they are legal person under the law.

Counsel submitted that the Applicant has duly proved discovery of new fact and that is; the Respondent did not have capacity to sue or be sued and, the value of the suit land being Ugx. 500,000,000/=.

I have carefully considered the Affidavits to this Application and the Submissions. I now proceed to determine this Application.

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

Before delving into the merits of the Application, I consider it necessary to first address the fact that the Applicant seeks for a review of both the decision of this Court and that of the trial Court to which I respectfully consider as an error.

Section 82 of the Civil Procedure Act is clear in its wording that an Application for review can only be made to the Court that passed the decree or made the order. Therefore, in this Application, this Court cannot review any other decision but its own.

It is my opinion that maybe on account of over sight, Counsel meant revision under Section 83 of the CPA which allows this Court to revise the decision of the Magistrates Court however considering this Application, the Application is specifically for review under Section 82 and Order 46 and the provisions do not extend Court's power to


review the decision of the Trial Court therefore, in the determination of this Application, this Court shall restrict itself to the decision of this Court.

#### **Merits of the Application.**

*Section 82* of the *Civil Procedure Act* establishes court`s jurisdiction to review its own decrees or orders. It provides that:- "*Any person considering him/her self-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 appeal for review of the 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.*"

Section 82 CPA has been enlarged by *Order 46 rule 1* of the CPR which provides that:- "*Any person considering him/her self-aggrieved by a decree or order from which an appeal is allowed but from which no appeal has been preferred or 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 order was 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 the judgment to the court which passed the decree or made the order.*"

The grounds for review are clearly provided for and were outlined in *FX Mubuuke vs UEB High court Misc. Application No. 98 of 2005*; *(1) That there is a mistake manifest 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)any other sufficient reason exists.*

It is my observation that the Applicant relies on both mistake apparent on the face of the record and discovery of new and important evidence to support her Application for review. I shall consider the ground, "error apparent on the face of record", first.

In *Nyamogo & Nyamogo Advocates v. Kago [2001] 2 EA 173*, an error apparent on the face record was held to mean: "*An error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. There is a real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares one in the face, and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by a long drawn process of reasoning or on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the court in the original record is a possible one, it cannot be an error apparent on the face of the record even though another view was also possible. Mere error or wrong view is certainly no ground for a review although it may be for an appeal.* "

The Applicant contends that it was an error to hold that two leases can exist on the same piece of land and secondly, it was also an error when this Court did not properly evaluate the evidence thus reaching a finding that the Applicant is a bonafide occupant rather than a lawful occupant. I also note that the Applicant contends that it amounted to an error when this Court did not consider some provisions of the Land Act in reaching its decision.

It is intelligibly evident that the Applicant is challenging the merits of the Appellate Court's findings of fact and law that is; failure to apply the appropriate, reaching a finding that the Appellant was a lawful occupant and not bonafide occupant and a finding that the UMSC had a lease on the suit land and therefore, the Respondent could not also have a lease hold on the same piece of land. On face value, the issues raised by the Applicant constitute grounds for Appeal rather than grounds for review.

Wrong Application of the law or failure to apply the appropriate law does not amount to an error apparent on the face of record. (See: *F. X Mubuuke versus UEB (supra*))


Also, 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.*)

It is also my opinion that the issues as raised by the Applicant would require arguments and reevaluation of evidence which is not the purpose of review. In further consideration of the Applicant's submissions, I come to the conclusion that the Applicant largely considers the decision of this Court erroneous for the reasons he listed and I already referred to earlier. An order cannot be corrected merely on the ground that a different view could have been taken by the court. (See; *Farm Inputs Care Centre Ltd versus Klein karoo Seeds Marketing (PTY) Ltd (supra)*)

I therefore find that the issues raised by the Applicant do not amount to errors apparent on the face of the record.

Regarding discovery of new and important matter, a party seeking to rely on the ground must show that he/she has discovered some new and important matter of evidence which in spite of the exercise of due diligence was not within his/her knowledge at the time judgment was entered. (see: *Busoga Growers Coop Union Ltd v. Nsamba & Sons Ltd HCMA 123/2000.*

Besides being new evidence, it should be evidence relevant to the case or evidence affecting the outcome of the case and secondly, the evidence should be compelling and convincing. (See: *Kabagambe Grace versus Mbabazi Resty and Another, HCMA. No.002 of 2022*).

I also note that the Applicant must prove that they duly exercised due diligence however, they were unable to obtain this new evidence.

Though due diligence commonly arises in land matters, I am of the opinion that the cases there in can assist this Court in coining a definition for due diligence. Due diligence means conduction reasonable inquiries. (See: *Jennifer Nsubuga versus*


# *Michael Mukundane and Another, COACA. No.208 of 2018* and *Namusisi Kellen versus Nakamya Getrude and others, HCMA. No.312 of 2020*)

The Applicant contends that it was only discovered later that the suit land costs Ugx. 500,000,000/= and that the Respondent is not a legal entity. The Respondent on the other hand contends that the Respondent is a legal entity and secondly, that the value of the land has appreciated for the past 13 years since the suit was first filed.

In the determination of this ground and on the strength of the authorities cited earlier on, the following issues need to be answered; is the evidence referred to new, does it have a bearing on the outcome of the decision, is the evidence compelling and convincing and did the Applicant exercise due diligence previously but still fail to obtain the evidence at the time.

Concerning the new evidence adduced by the Applicant, I am of the view that the same would have been discovered with reasonable diligence. The value of the subject matter is ascertainable by subjecting it to a registered valuer. Whether the Respondent was a body corporate at the time of institution of the suit was also capable of being ascertained. This evidence fails on the test of due diligence and the need to be compelling and convincing as no proof has been adduced to demonstrate that attempts to achieve the above facts were ever undertaken.

Further, there has been a span of over 13 years between the suit at trial and conclusion of the Appeal. I find it unprecedented that matters which were never raised at trial or on Appeal should surface now.

In addition to the above, I am inclined to agree with the Respondent that the remedy of review of the decision of the trial court is not available in this court that did not try the matter. In a nutshell, no review over matters that originated in this court has been brought for trial in the instant Application.

More also, review is only available where no appeal has been preferred. In the instant case, the Applicant opted to appeal against the decision of the trial court instead of applying for review and lost the appeal.


Suffice to note, it is a canon principle of law that litigation has to come to an end at some point. Litigation will never end where parties opt to appeal and having lost appeals still choose to explore review even in cases where the remedy is not available to them.

Having observed that the Applicant has failed to satisfy grounds to warrant a review, I find no merit in this Application and it is hereby dismissed with costs to the Respondent.

I so order.

Dated and delivered electronically at Masaka this 02nd day of October, 2023.


# **Victoria Nakintu Nkwanga Katamba.**

**Judge.**