Nantale v Okubiriba (Miscellaneous Application No. 107 of 2019) [2021] UGHCCD 242 (18 February 2021)

### THE REPUBLIC OF UGANDA

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

#### MISC. APPN. NO. 107 OF 2019

#### (ARISING OUT OF CIVIL APPEAL NO. 83 OF 2017)

#### NANTALE JACKLINE ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT

#### VERSUS

#### OKUBIRIBA AMON ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT

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

## **RULING**

This is an application brought under Sections 64 (e), 98 & 99 of the Civil Procedure Act Cap 71, Section 33 of the Judicature Act Cap 13 and Order 52 Rule 1 & 2 of the Civil Procedure Rules; seeking orders that the judgment of this Court in Civil Appeal No. 83 of 2017 be corrected under the slip rule so as to specifically provide for the payment of the current commercial or market value of the suit property by the Respondent, in lieu of the Order that the Applicant retains the suit property, and costs of the application.

The grounds of the Application as contained in the affidavit of Kavuma Terrence one of the Applicant`s Lawyers are briefly that;

- a) On the 25th day of January 2019, this court delivered judgment in Civil Appeal No. 83 of 2017, maintaining the judgment and orders of the trial court; - b) There is discord between the Alternative orders made by the High Court in exercise of its appellate jurisdiction in Civil Appeal No. 83 of 2017 and the clear intention of the same court in its judgment at page 11 of its judgment, so far as regards the compensatory payment for the suit property by the Respondent, in lieu of the order for the Applicant herein to retain the suit property; - c) The dissonance derives from an apparent slip or error by the Learned Appellate Judge who upheld the orders of the trial court but then went on to inadvertently misstate the value payable in compensation for the suit property as the value of the

purchase price of Ug. Shs 5,800,000/=, instead of the current commercial/purchase price or market value of the suit property, to be determined by the Government Valuer;

- d) The error in the judgment of the High Court manifestly defeats the intention of the High Court on its Appellate Judgment and, unless corrected, the same constitutes injustice and undermines the Applicant`s proprietary rights, - e) It is fair, just and proper that the application be granted.

In his affidavit in reply, the Respondent Okibiriba Amon opposed the application and stated that the deponent is not a party to the application and has no authority to depone the affidavit in support of the application. The Respondent complied with the orders of court and deposited Ugshs. 7,800,000/= to the court as the purchase price and damages. The intention of the Appellate Court was to grant the orders as prayed for by the Appellant. The prayer for compensation for loss of the suit property at the current market value of the said property will be a slip if the judgment is corrected and it is included because court cannot grant orders that are not prayed for. The Applicant never made any prayer for compensation for the suit property at the current commercial rate. There is no contradiction because the orders made by the trial Court were unequivocally upheld by the Appellate court. It will be a slip if this court grants orders for a refund at the commercial rate yet there was no prayer for it. It is in the interest of justice that the Application is not granted.

Counsel for the Applicant raised three issues for determination by this Court;

- 1. Whether there is an existent Appeal against the judgment in Civil Appeal No. 83 of 2017, which is sought to be corrected herein under the slip rule provisions; - 2. Whether it is mandatory that applications under the slip rule must be heard by the judicial officer who made the judgment sought to be corrected; - 3. Whether the application falls within the slip rule provisions; if so whether it should be allowed;

Both parties filed written submissions.

Counsel for the Applicant submitted that there was never a valid Appeal as the Notice of Appeal was lodged within 20 days instead of 14 days as required by *Rule 76(2) of the Judicature (Court of Appeal Rules) Directions.* The notice of appeal was also affected by non-service which aggravates its invalidity. The Applicant also filed a notice withdrawing the said appeal as per *Rule 94 (1) of the Judicature (Court of Appeal Rules) Directions*. Counsel invited this court to find that no appeal by the Applicant herein exists in law. Section 99 of the Civil Procedure Act cap 71 gives the power to correct judgments to the court not necessary the judicial officer who made the judgment.

On whether this application falls within the slip rule provisions, counsel cited the case of *Fang Min vs Dr. Kaijuka Mutabaazi Emmanuel SCCA No. 06 of* 2009 in which the Applicant sought that the Supreme Court recalls its judgment to be corrected under the slip rule so as to remove the order for payment of the market value of the suit house in lieu of specific performance. The Supreme Court held that to give effect to the intention of the court, it would remove the alternative order. The learned Appellate Judge had founded on the Respondent`s acquiescence with the Applicant`s purchase of the property, the Applicant herein would retain the property. In her clear intention to give effect to the judgment of the trial Magistrate and refund orders that she had wholly upheld, the learned Judge slipped in making an alternative order for refund of the purchase price instead of the current commercial value. Counsel prayed that this application is entertained under the provisions of *Section 99 of the Civil Procedure Act,* and corrects the judgment in question to give effect to the clear intention of the learned Appellate Judge.

In response to the submissions, counsel for the Respondent raised a preliminary point of law that the deponent to the affidavit in support of the application is Kavuma Terrence who has no authority as he is not a party to the application. The affidavit should be struck off and without it the application fails. The deponent has no proof on court record to show that he has express authority of the applicant to sue or depone the affidavit in support of this application on behalf of the applicant which is an illegality. The deponent is also a lawyer from the firm representing the applicant which is a conflict of interest.

On the first issue, counsel submitted that the Applicant obtained interim and temporary orders arising from the appeal and the Respondent has never been served with a notice of withdrawal of appeal. If there was a withdrawal, then the Applicant should pay costs to the Respondent for the same. On the third issue, Counsel submitted that the orders sought fall short of the parameters of the slip rule in as much as the court is invited to invoke its powers. It does not indicate any error arising from the alleged slip. The Appellate Judge invoked Section 99 to correct the error made by the trial Magistrate who had included refund of the purchase price at a current commercial/purchase price. This application will create a contradiction as to the intention of this court as there is no discord in the judgment of the Appellate court which will warrant abuse by the Respondent. Counsel prayed that court finds that there is no error arising from accidental slip or omission necessary to correct the judgment in order to give effect to the Court`s intention.

#### Determination of the Application;

#### Preliminary point of law;

Counsel for the Respondent raised a preliminary point of law that the deponent to the affidavit in support of the Application is by a stranger who is no party to the Application, and is also a lawyer from the firm representing the Applicant.

*Regulation 9 of Advocates (Professional Conduct) Regulations and Rule 7 of the Commissioner for Oaths Rules* stand against an Advocate acting as counsel and witness in the same case.

However, it is important that before making an order as to the competence of an affidavit sworn by counsel, the court examines the same bearing in mind the gist of the application as a whole to establish whether the contents of the affidavit are formal or substantive matters.

The reason as to why affidavits by counsel are usually challenged is because if a matter is contentious, counsel might be invited to testify and be cross examined on the same matter he represents which would be absurd.

Court in the case of *Yunusu Ismail T/A Bombo City Store V. Alex Kamukamu & Others T/A OK Bazari (1992) 3 KALR 113 (SCU) (cited in HCT-04-CV-MC-004-2014 Kasajja Robert Versus Nasser Iga & Abdu Ngobi),* observed that "*this regulation shall not prevent an advocate from giving evidence whether verbally or by declaration or affidavit on formal or non-contentious matters in which he acts or appears…..*"

The instant application is brought under *Section 99 of the Civil Procedure Act* seeking to invoke this court`s powers under the provisions of the Slip Rule. Such an application is non-contentious and simply raises formal questions of law and clerical matters that Counsel would have knowledge of. Such matters do not require adducing evidence but rather examination of the parts of the judgment or orders sought to be corrected.

I have perused the affidavit being challenged by Counsel for the Respondent, and the application it supports. The application is non-contentious and there is no need for this court to consider the substantive issues of the suit between the Parties. The application clearly states that the deponent is one of the Applicant`s lawyers which purports to agency under *Order 3 Rule 1 Civil Procedure Rules* giving Counsel authority to depone the same.

I therefore find the affidavit competent in as far as this is a non-contentious application, and disallow the preliminary point raised by Counsel for the Respondent.

#### Consideration of the issues raised;

# *Issue one; whether there is an existent appeal against the judgment in Civil Appeal No. 83 of 2017, which I sought to be corrected herein under the slip rule provision;*

Counsel for the Applicant submitted that the notice of appeal initially filed by the Applicant was withdrawn and adduced a copy of withdrawal notice in writing to that effect and that the same was invalid for being filed out of time and not served on the Respondents.

Counsel for the Respondents argued that the Appeal is still pending as the notice of withdrawal was never served on the Respondents, and the Applicant obtained interim and temporary injunctive orders arising from the appeal.

*Rule 94 (2) of the Judicature (Court of Appeal Rules) Directions* requires an Appellant to serve the notice of withdrawal to each respondent who has complied with Rule 80. Rule 80 requires a Respondent who has received a notice of Appeal to serve on the intended appellant notice of full and sufficient address of service.

Counsel for the Respondent has not adduced evidence to show that they complied with Rule 80 above and for that reason, they cannot fault the Applicant`s Counsel for failing to serve the notice for withdrawal of the Appeal. (He who comes to equity must come with clean hands)

I would also like to note that the interim order of stay of execution granted by this court was granted pending determination of this Application and not the said appeal as argued by Counsel for the Respondent.

I therefore find that there is no pending appeal against the judgment in Civil Appeal No. 83 of 2017 as the notice of appeal was withdrawn by the Applicant.

# *Issue two; whether it is mandatory that applications under the slip rule must be heard by the Judicial Officer who made the judgment sought to be corrected;*

**Section 99 of the Civil Procedure Act** 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 on its own motion or on the application of any parties."*

The above provision gives this Court the power to correct its own judgments not the judicial officer who made the judgment.

## *Issue three; whether this application falls within the slip rule provision and; if so, whether the application should be allowed.*

The slip rule is a process by which the court may correct an accidental slip or omission in a judgment or order. This rule only covers genuine slips or omissions in the wording of a sealed court order or handed down judgment which were made by accident, e.g. the misdescription of a party or the incorrect insertion of a date. It cannot be used to correct substantive mistakes.

*Section 99 of the Civil Procedure Act* 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 on its own motion or on the application of any parties." The slip rule does not allow or permit a court to give an order which alters the judgment or orders made earlier. It is for purposes of correcting clerical errors and giving effect to the judgment of the court.

In *Lakhamshi Brothers Limited versus R. RaJa & Sons [1966] EA313 (cited in Constitutional Application NO.1 OF 2016 John Sanyu Katuramu And 49 Others Versus Attorney General),* at page 314 paragraph E-F, *Sir Charles Newbold, P.* made the following observation:-

*"Indeed there has been a multitude of decisions by this Court on what is known generally as the slip rule, in which the inherent Jurisdiction of the Court to recall a Judgment in order to give effect to its manifest intention has been held to exist. The circumstances however, of the exercise of any such Jurisdiction are very clearly circumscribed. Broadly these circumstances are where the court is asked in the application subsequent to Judgment to give effect to the intention of the Court when it gave its Judgment or to give effect to what clearly would have been the intention of the Court had the matter not inadvertently been omitted. I would here refer to the words of this Court given in the Rainga case (2) [1965] E. A. at P. 703) as follows:*

*"A Court will, of course, only apply the slip rule where it 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 doubt, as to the order which it would have made had the matter been brought to its attention."*

To determine this application, this court needs to establish what the intention of the Appellate court was when it made its judgment specifically the order that is in contention.

I will start by highlighting the order in issue from the trial Court. The trial Magistrates Court made orders in Civil Suit No. 40 of 2015 and one of the orders was that;

**v) Further since the 1st defendant admits illegally pledging and selling the suit property to the 4th defendant and is willing to refund that money of shs. 5,800,000/=, then court orders the 1st Defendant to refund the 4th defendant`s money but the same should be paid at the current commercial/purchase price or market value of the suit property, to be determined by the Government Valuer.**

This Court on appeal, made Orders in Civil Appeal No. 83 of 2017 as follows (summarized);

- **i) The principles of fairness and natural justice demand that the Appellant retains the suit property which in effect would have been the share of DW1** - **ii) The whole judgment and consequential orders of the lower court are hereby upheld.** - **iii) In the alternative, if the Respondent still wants to take back this suit property into the estate as an administrator, then he should redeem it by refunding the purchase price of shs. 5,800,000/= back to the Appellant and Ug shs. 2,000,000/= damages to the Respondent within 30 days from the date of this judgment. Failure of which, the appellant will remain in undisputed occupation of the suit property and a transfer executed in her favour.**

It is very clear from the Appellate Judge's judgment that she upheld the whole judgment and consequential orders of the trial Magistrate.

The order she gave as an alternative to the ordering respondent to refund the purchase price was also intended to give effect to the order given in the lower court in which the applicant would be compensated for the illegal sale at the current market value.

Reiterating the court's observation above stating the circumstances for applying the slip rule to include *where the court is asked in the application subsequent to Judgment to give effect to the intention of the Court when it gave its Judgment or to give effect to what clearly would have been the intention of the Court had the matter not inadvertently been omitte,(Lakhamshi Brothers Limited versus R. RaJa & Sons [1966] EA313),* it is my observation that the appellate judge intended to uphold the judgment of the trial court and indeed upheld the whole judgment and its entire orders. It was therefore a slip when she ordered for a refund of the purchase price.

I am therefore convinced that the intention of this court was to order for compensation at the current market value. I will therefore allow this application and order for the judgment to be adjusted accordingly to provide for compensation of the Applicant the current commercial or market value of the suit property by the 1st Defendant in Civil Suit No. 40 of 2015 and all the consequential orders of the trial Magistrate.

I so order.

Dated at Masaka this 18th day of February, 2021

# **Victoria Nakintu Nkwanga Katamba**

## **Judge**