Nanfuka v Nyakerah and Another (Miscellaneous Application No. 552 of 2022) [2023] UGHCLD 25 (10 February 2023)

# **THE REPUBLIC OF UGANDA** 5 **IN THE HIGH COURT OF UGANDA AT KAMPALA (LAND DIVISION) MISC. APPLICATION NO. 552 OF 2022 (ARISING OUT OF CIVIL SUIT NO. 670 OF 2016)**

10 **ANGELLA NANFUKA:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT**

#### **-VERSUS-**

#### **1. REBECCA NYAKERAH YAK PUOL**

**2. JAMES THEAM DUOT::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENTS**

#### 15 **BEFORE: Hon. Lady Justice Olive Kazaarwe Mukwaya.**

## **RULING**

This is an application for review of this Court's judgment in Civil Suit No. 670 of 2016. It is brought by Ms. Angella Nanfuka who was the unsuccessful party in the suit.

I have perused the application, the affidavit in support, the Respondent's reply and 20 Counsel's submissions.

#### **Issue**

# **Whether there are sufficient grounds for review of the judgment of this court in Civil No. 670 of 2016?**

#### **Section 82 of the Civil Procedure Act** provides that;

25 *"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* 30 *made the order, and the court may make such order on the decree or order as it thinks fit."*

## 5 **Order 46 of the Civil Procedure Rules** provides;

*"1. Application for review of judgment: -*

*(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*

- 10 *(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* - 15 *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.*

An error apparent on the face of the record was defined as one which is manifest or selfevident and does not require an examination or argument to establish it (see **Batuk K. Vyas v Surat Municipality AIR (1953) Bom 133.** Accordingly in the case of **Kalokola** 20 **Kaloli Vs Nduga Robert Misc. Application No. 497 of 2014 ,** the learned Justice

Stephen Musota cited examples of situations that may be described as mistake or manifest mistake or error apparent on the face of the record such as *where a suit proceeds ex-parte when there is no affidavit of service on record; (see the case of Edison Kanyabwere Vs Pastori Tumwebaze SCCA 6/2004), or where the court enters a default* 25 *judgment when there is no affidavit of service or where a summary judgment is entered under Order 36 when there is a pending application for leave to appear and defend on*

*record…. A misdirection or error in judgement by a judicial officer on a matter of law cannot be said to be an error on the face of the record.*

In this particular case, the Applicant is aggrieved. The nature of the grievance as I 30 understand it is contained in Paragraph 6 of the Notice of Motion which states;

"*6. That it was a mistake or error apparent on the face of the record for the Court to redefine the provision in the lease agreement".*

5 In the affidavit in support, the Applicant explains this ground using facts that arose after the Judgment of the Court was delivered. She concludes by stating in paragraph 24 that;

"*It is now appropriate for the Court to review the Judgment and Orders in Civil Suit No. 670 of 2016 and grant the prayer in my counter claim."*

The Respondents oppose this application. They aver interalia that this court is *functus* 10 *officio* regarding the specific issues raised by the Applicant.

I find I must agree. The Applicant has a complaint about the way the Court made its decision. But that complaint is not an error apparent on the face of the record, in my view. It is more than that, as paragraph 15-23 of the affidavit in support clearly demonstrate. And there is always a danger in such matters, of crossing the thin line between review

15 and an appeal. A line that must never be crossed in the application of Order 46 of the CPR.

**In conclusion, I find no merit in this application and it is hereby dismissed with costs.**

**……….………………………** 20 **Olive Kazaarwe Mukwaya**

**JUDGE**

**10th February 2023**

**Delivered by email to Counsel for the parties.**

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