Nantumbwe and Another v Namazzi and 10 Others (Civil Miscellaneous Application 119 of 2023) [2024] UGHC 506 (27 February 2024)

Full Case Text

### THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MPIGI MISCELLANEOUS APPLICATION NO. 119 OF 2023 (Arising from H. C. C. S No. 46 of 2021)

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#### BEFORE: HIS LORDSHIP HON. JUSTICE OYUKO ANTHONY OJOK 25

#### Ruling

The applicants brought the instant application by way of Notice of Motion under Sections 82 and 98 of the Civil Procedure Act, Section 33 of the Judicature Act, Order 46 Rules 1, 2, 4 and 8 of the Civil Procedure Rules against the respondents seeking the following orders;

- 1. That the judgment of court in H. C. C. S No. 46 of 2021 delivered on the 19th June, 2023 be reviewed to include the order "that the 3rd respondent be evicted from the 12 acres comprising of the estate of the late Eneriko Male a.k.a Asoni Male. - 2. The original copies of the judgment issued by court to both counsel for both parties be recalled and a new judgment be issued by court including the said eviction order. - 3. Costs of the application be provided for.

The application is supported by an affidavit sworn by the 1st applicant and it is opposed through an affidavit in reply sworn by the 7th respondent whose 40 grounds I will not reproduce.

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#### Brief background:

The applicants filed Civil Suit No. 46 of 2021 which was determined in their favour. Judgment was read and delivered in the open court in the presence of both parties and their respective counsel where among the orders issued was

an eviction order against the 3rd defendant from the 12 acres comprising of $\mathsf{S}$ the estate of the Eneriko Male.

However, in the typed copies of the judgment that were signed and issued to the parties, the said eviction order was not included which prompted the filing of the instant application to review the said judgment to include the omitted order.

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#### Representation:

Mr. Kivumbi Ibrahim appeared for the applicants while Mr. Felix Ampeire appeared for the respondents. Both parties filed written submissions.

The law:

Section 82 of the Civil Procedure Act provides that; 15

> "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."

Order 46 of the Civil Procedure Rules provides; 25

"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

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(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

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order made against him or her, may apply for a review of judgment to the Court which passed the decree or made the order.

(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party, except where the ground of the appeal is common to the applicant and the appellant, or when, being respondent, he or she can present to the appellate Court the case on which he or she applies for the review.

In the case of Outa Levi v. Uganda Transport Corporation [1975] HCB 353, it was held that; an application for review ought to be made to the judge who $10$ made it except where the said judge is no longer a member of the bench. Order 46 rule 2 of the Civil Procedure Rules provides that an application for review of a decree or order of a court, upon some ground other than the discovery of the new and important matter or evidence as is referred to in rule 1 of this Order, or the existence of a clerical or arithmetical mistake or error 15 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.

The grounds for review were enunciated in the case of F. X Mubuuke v. U. E. B High Court Misc. Application No.98 of 2005 as follows;

- That there is a mistake or manifest mistake or error apparent on the face $20$ $i.$ of the record - ii. 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. - iii. That any other sufficient reason exists.

Counsel for the applicants relied on the case of Mohamed Allibhai v. W. E. Bukenya, S. C. C. A No. 56 of 1996 for the definition of "any person aggrieved" as:

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# "A person considers himself aggrieved if he suffered a legal grievance. A person suffers a legal grievance if the judgment given is against him or affects him."

Counsel for the applicants submitted that the applicants in the instant case are aggrieved by the omission to include the order evicting the 3rd respondent from the 12 acres comprising of the estate of Eneriko Male as the omission in effect, requires the applicants to file either a fresh suit or another application for a consequential order for eviction of the 3rd respondent and are thus aggrieved.

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$\mathsf{S}$

Counsel went on to submit that this application is premised on two grounds which are; that the error apparent on the record of court is sufficient cause. That the error in the instant case is the omission to include an order in the typed copy of the judgment availed to the parties that the 3rd respondent be evicted yet the same order was made by the trial judge and read in open court while delivering the judgment. That the omission is a mistake or error apparent on the record of court which is clear and does not require an extraneous application.

Counsel concluded that the fact that the judgment was read in open court and the eviction order was omitted in the typed judgment is not denied by the $10$ respondents in their affidavit in reply.

In regard to sufficient reason counsel for the applicant submitted that there being a mistake apparent on the face of the record is sufficient reason for court to grant this application to also avoid multiplicity of suits.

The respondents on the other hand in their submissions contended that court 15 refused to grant an eviction order against the 3rd respondent and that is not an error apparent on the face of the record. That court made its decision and its findings in the determination of the suit and these did not include the eviction order thus the applicants being dissatisfied should have appealed and not applied for a review which is procedurally wrong. 20

# Analysis of court:

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The instant application as submitted for the applicants is premised on two grounds that is a mistake apparent on the face of the record and the existence of a sufficient ground.

In the case of Edison Kanyabwera v. Pastori Tumwebaze, Supreme Court Civil $25$ Appeal No. 6 Of 2004 it was held that;

> "In order that an error may be a ground for review, it must be one apparent on the face of the record, i.e. an evident error which does not require any extraneous matter to show its incorrectness. It must be an error so manifest and clear that no Court would permit such an error to remain on record. The error may be one of fact but it is not limited to matters of a fact and includes also error of law."

The applicants in this case contend that court made an omission to add an eviction order in its typed copies of the judgment having issued the same while reading its decision in open court.

It is my considered view that this omission does suffice as an error apparent on the face of the record, for indeed this court did issue an eviction order against the 3rd respondent off of the 12 acres comprising of the estate of the

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late Eneriko Male a.k.a Asoni Male while delivering judgment in open court in the presence of both parties and their respective counsel.

I hereby totally disagree with the submissions for the respondents which are extremely misleading. This court did indeed issue an eviction order while reading the judgment in open court, however, the same was mistakenly $\mathsf{S}$ omitted during the typing of the judgment as such it was missing in the hardcopies that were availed to both parties. The applicants are therefore not seeking court to add an order that it did not issue to begin with. The said order was issued and both parties became aware of the same, it was only mistakenly omitted during the typing of the judgment. 10

I find that the applicants have proved to the satisfaction of this court that there is an error apparent on the face of the record which also amounts to sufficient reason.

This court therefore orders that in addition to the orders granted in Civil Suit No. 46 of 2021, an eviction order against the 3rd respondent off of the 12 15 acres comprising of the estate of the late Eneriko Male aka Asoni Male is hereby added as the same was already issued by this court in open court and only omitted during the typing of the judgment.

This court also recalls all the hard copies issued to the parties dated 19th June, 2023 to be replaced with the rectified copies of the judgment to include the $\overline{20}$ reviewed orders.

This application is hereby allowed. Each party will bear their own costs.

I so order.

Right of appeal explained.

OYUKO ANTHONY OJOK JUDGE

27/2/2024

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