Okot & Another v Otto & 2 others (Miscellaneous Application 248 of 2022) [2024] UGHC 549 (26 June 2024)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT GULU MISCELLANEOUS APPLICATION NO. 248 OF 2022 (ARISING FROM MISCELLANEOUS APPLICATION NO. 76 OF 2022) (ARISING FROM CIVIL SUIT NO. 30 OF 2014)**

| 1. | OKOT BILLY TONY | | |--------|-----------------|-----------------------------------------------------------------| | 2. | | JAWOKO STEPHEN ===================================== APPLICANTS | | VERSUS | | | | 1. | OTTO FRANCIS | | | 2. | MWAKA SUNDAY | | | 3. | | LALAM GRACE======================================= RESPONDENTS |

## **BEFORE HON. MR. JUSTICE PHILLIP ODOKI**

## **RULING**

## **Introduction:**

[1] The Applicants filed this application by Notice of Motion under Sections 47, 82 and 98 of the Civil Procedure Act Cap 71; Section 33 of the Judicature Act; Order 46 Rule 1 (a) & (b), 4, 8, and Order 52 Rule 1, 2 and 3 of the Civil Procedure Rules S1 71-1. The application seeks for orders that this Court should review its decision in Miscellaneous Application No. 76 of 2022, dated 13th September 2022 and the costs of the application to be provided for.

#### **Background:**

[2] The background of this application, as can be discerned from the Court record is that the Applicants together with a one Anywar Julius instituted Civil Suit No. 30 of 2014 against the 1st Respondent. They sought for an order specific performance of their contract with the 1st Respondent and in the alternative damages for breach of contract. On the 20th March 2019, the parties entered into a consent settlement/decree before the Registrar of this Court in which it was agreed that the 1st Respondent was to pay the Applicants and Anywar Julius a total sum of Ugx 274,134,158/=, interest at 18% per annum and the costs of the suit. By consent of the parties, the bill of costs of the judgment creditors was taxed on 16th September 2020 and allowed at UGX 6,000,000/=. On the 9th day of April 2021, counsel for the judgment creditors applied for execution of the decree by way of attachment and sale of immovable properties of the 1st Respondent. A Notice to Show Cause was issued on the 21st April 2021 and on the 16th May 2021 Samuel Openy received Ugx 10,000,000/= from the 1st Respondent on behalf of the Applicants as part payment of the decretal sum. On the 1st June 2021 the Registrar of this Court issued a Warrant of Attachment and Sale of two immovable properties of the 1st Respondent to Aciro Janeth T/A Jed Court's Bailiffs and Auctioneers Associates. The properties were, un -surveyed land measuring approximately 29.89 meters x 27meters, 83meters x 27meters, 46meters x 36.34meters located along Hostel Close Road, near pioneer Bar (PJ) Gulu East Division, Gulu City and land and a residential building next to Laroo Road measuring approximately 30meters x 40meters.

[3] By a letter dated 6th September, 2021 the 3rd Respondent (Lalam Grace) through her lawyers Ms. Soita & Co Advocate, wrote to the Registrar of this Court complaining that the warrant of attachment affected property which she jointly owns with her husband the 1st Respondent. She further stated that the property is matrimonial property where she lives with the 1st Respondent. She sought the administrative intervention of the Registrar to recall the warrant. On the same day (6th September, 2021), the 2nd Respondent (Mwaka Sunday) through his lawyers Ms. Stanley Omony & Co Advocate, wrote to the Registrar of this Court complaining that property comprised in FRV HQT 168, Folio 13, block road plot 8, Laroo Agwee which was included in the warrant of attachment belongs to him having purchased it in 2017 from the 1st Respondent but registered in his name on the 11th June 2021. He also sought the administrative intervention of the Registrar of this Court to recall the warrant. On the 12th October 2021 the Registrar recalled the warrant of attachment. On the 23rd February 2022 the Court bailiff wrote to the Registrar requesting that the mode of execution be changed to arrest of the judgment debtors in execution of the decree since the properties attached had become a point of contention. On the 7th March 2022 the Registrar issued a warrant of arrest of the 1st Respondent. The 1st Respondent was arrested and, on the 17th March 2022, he was committed to civil prison. On 25th August 2022 the Registrar issued an order releasing the 1st Respondent from civil prison because the judgement creditors were considering another mode of execution.

[4] On the 31st March 2022, the Applicants filed Miscellaneous Application No. 76 of 2022 against the Respondents, under Section 34 of the Civil Procedure Act, seeking for orders that, the transfer by the 1st Respondent and subsequent registration of the 2nd Respondent as the legal owner of property described as FRV HQT 168, Folio 13, plot 8, when the same was already under attachment was fraudulent and thus inconsequential; the complaint by the 3rd Respondent claiming interest as joint registered owner of freehold title in land described as un -surveyed land measuring approximately 29.89 meters x 27meters, 83meters x 27meters, 46meters x 36.34meters, the subject of attachment and sale in the main suit, is not supported by evidence, was brought in bad faith and should be declared a travesty of justice; the said properties be declared to belong to the 1st Respondent, the transfer to the 2nd Respondent be cancelled for fraud and the property be available for attachment and sale in execution of a decree without further advertisement; and costs of the application be provided for.

[5] The 2nd and 3rd Respondents filed affidavits in reply to the application. The 2nd Respondent contended that the transfer of the land which was attached in execution into his name was made before and without knowledge of attachment and without any intention to defeat the administration of justice. The 3rd Respondent contended that together with the 1st Respondent she has always been in joint ownership, possession and occupation of the untitled land which was attached in execution.

[6] On the 13th September 2022 my learned brother judge Alex Mackay Ajiji dismissed the application. He reasoned that the question to be decided in objector proceedings is whether on the date of attachment, the judgment debtor or objector was in possession. He held that the property attached was not in possession the judgment debtor but in possession of another person. He ordered that the property of the 2nd and 3rd Respondent should not be attached in execution. He advised the Applicants to conduct a proper search so as to ascertain the property of the judgment debtor to be attached in order to discharge his debt.

#### **Grounds of this application:**

[7] The grounds of the application are contained in the Notice of Motion. The Applicants contend that there are mistakes or errors apparent on the face of the Court record on the following reasons. First, that the application was in respect of the law that bars private alienation after attachment and had nothing to do with possession. Secondly, that the attached of property comprised in FRV HQT 168, Folio 13, plot 8 is regulated by the provisions of the Registration of Titles Act. Thirdly, that the judge accepted the affidavit of Lalam Grace as objector proceedings in respect of un-surveyed land located along Hostel close road, Gulu East Division Gulu city without filing a formal application.

## **The Respondents' reply:**

[8] The Respondents opposed this application. The 2nd Respondent filed an affidavit in reply in which he deponed that the application is incompetent, misconceived, naked and an abuse of Court process for reasons that, the Notice of Motion is not supported by an Affidavit; this Court does not have jurisdiction to revise its own decisions; the Notice of Motion was served on 5th December, 2022 way out of the time; and the application was brought under a wrong law. The Respondents further contends that the Applicants are trying to bring to this Court an appeal against the decision of Justice Alex Mackay Ajiji disguised as an application for review. He prayed that the Application should be dismissed and/or struck out with costs.

## **Legal representation and submissions:**

[9] The Applicants were represented by Mr. Ocorobiya of M/s Ocorobiya & Co. Advocates while the Respondents were represented by Mr. Moses Oyet of M/s M. Oyet & Co. Advocates. Counsel for Respondents informed Court that they abandoned the point of law on late service. Both counsel filed written submissions. Counsel for the Applicant did not make any submissions regarding the merit of his client's case. His submissions were only on the points of law which were indicated in the affidavit in reply.

[10] Counsel for the Respondents submitted that this application is incurably defective because it lacks a sworn affidavit in support of the application. According to counsel, a Notice of Motion under Order 52 Rule3 of Civil Procedures Rules must contain grounds, which grounds must be supported by evidence which is adduced by affidavit. Counsel argued that the failure to attach to the Notice of Motion a supporting affidavit makes the application incurably defective. Counsel relied on the case of *Okana David versus Ocaya Robert high Court Revision Cause No. 05 of* *2022* in which my learned brother Judge George Okello expressed the view that a motion must be supported with evidence. He cited with approval the case of *Kaingana versus Boubou [1986] HCB 59,* in which Justice Karokora Ag. J (as he then was) held that a Notice of Motion cannot on its own be a complete application without an affidavit.

[11] Counsel further submitted that this application is a disguised appeal. He argued that this Court has no jurisdiction to sit as an appellate Court in its own decision. According to counsel, the Applicants should have appealed to the Court of Appeal. Counsel cited the case of *Owners of Motor Vessel Lillian versus Caltex Oil Kenya Limited (1989) 1 KALR,* where it was held that jurisdiction is a crucial aspect of litigation. Without it, a Court has no power to make any step. A Court of law downs its tools in respect of a matter before it the moment it holds the opinion that it is without jurisdiction. Counsel also cited the case of *Katende Sarah Nakitende versus Mpwanyi Samuel Revision Cause No. 11 of 2019* where the Court held that issues of jurisdiction are substantive and go to the core of the case*.* Counsel prayed that the application should be dismissed with costs to the Respondents.

[12] Counsel for the Applicants, on the other hand, submitted that under Order 52 Rule 3 of Civil Procedures Rules, an affidavit is only required where the Notice of Motion will be supported by affidavit evidence. Counsel further submitted that even if the application is incompetent, it raises a serious issue of breach of the provisions of Section 47 the Civil Procedure Act which is an illegality. He relied on the case of *Makula International s. His Eminence Cardinal Nsubuga and another reported in [1982] HCB 11* to submit that an illegality once brought to the attention of the Courts supersedes all questions of pleadings, including admissions therein.

## **Analysis and determination of the Court:**

[13] I shall begin with the point of law raised by counsel for the Respondent that this application is incompetent because the Notice of Motion was not supported by an affidavit. Order 52 Rule 3 of the *Civil Procedure Rules S1 71* provides that:

*"Every notice of motion shall state in general terms the grounds of the application, and, where any motion is grounded on evidence by affidavit, a copy of any affidavit intended to be used shall be served with the notice of motion*."

[14] I do not agree with the submission of counsel for the Respondents that in all applications under Order 52 Rule 3 of the Civil Procedure Rules, the application has to be supported by an affidavit. The rule only makes it mandatory that the Notice of Motion must state in general terms the grounds of the application. The rule does not make it mandatory that all applications brought under Order 52 Rule 3 of the Civil Procedure Rules, there must be evidence in support of the grounds. There are applications which are grounded purely on points law and do not require evidence. In such applications there is no need to attach affidavits to the Notice of Motion.

[15] I am fortified by the decision in *Odongkara and others versus Kamanda and another [1968] 1 EA 210* where counsel for the respondent raised a similar objection that the Notice of Motion was defective, in that, it was not supported by affidavit as required by Order 52 rule 3 of the Civil Procedure Rules. Counsel for the applicant on the other hand submitted that no affidavit was necessary as no question of evidence arose from the application. **Sheridan J.** agreed with the submissions of counsel for the applicant that no affidavit was necessary in that case as there was no question of evidence, the application being on purely a point of law. See also the case of ## *Grace Namulondo and 3 others versus Jone Johns Serwanga Salongo High Court Misc. Cause*

*No. 001 of 2019* where by brother Judge Ssekaana Musa expressed the same view.

[16] I respectfully disagree with the holding in the case of *Okana David* that a motion must be supported with evidence. In my view, it is only where the rules expressly provide the Motion must be supported by evidence or where the application by its very nature requires evidence that affidavit evidence is required. In the *Kaigana* case which was relied upon in the *Okana David* case, the application was for setting aside /discharging or varying an interlocutory judgment which, I must add, requires evidence of sufficient cause being shown. The Application was grounded on the affidavit of the husband of the applicant. The affidavit was found to be incompetent and defective. Karokora Ag. J., held that:

*"Where an application is grounded on evidence by affidavit, a copy of that affidavit intended to be used must be served with the motion. In such a case, the affidavit becomes a part of the application. The Notice of Motion cannot on its own be a complete application without the affidavit. Therefore in the instant case the Notice of Motion alone was not enough."*

[17] The decision in the *Kaigana* case cannot in any way be interpreted to mean that in a motion must be supported with evidence. It is only where an application is grounded on evidence by affidavit that the Notice of Motion cannot on its own be a complete application without the affidavit. In this case, the only ground in support of the application is that there is an error apparent on the face of the record. It does not require any evidence. The Court has to examine the court record to come to the conclusion whether the allegation is true or not. This objection therefore has no merit.

[18] On the argument by counsel for the Respondents that this application is a disguised appeal and therefore this Court has no jurisdiction to entertain it, it is very clear from the reading of this application that it seeks for orders that this Court should review its decision in Miscellaneous Application No. 76 of 2022, dated 13th September 2022. The law applicable for review of judgments, decrees and orders of this Court is found in Section 82 of the Civil Procedure Act which provides that:

*"Any person considering himself or herself aggrieved—*

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

*(b) 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."* Underlined for emphasis.

[19] The conditions which must be met by the Applicant before the order for review is granted is set out in Order 46 Rule 1 of the Civil procedure Rules which provides that;

*"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."* Underlined for emphasis.

[20] It is very clear from the reading of the above provisions of the law that an application for review of judgments, decrees and order must be made to the Court that passed the decree, order or judgement. I therefore find that this Court has the jurisdiction to entertain this application.

[21] The Applicants relied on, "error apparent on the face of the record" as a ground for this Court to review its orders. In *Edison Kanyabwera versus Pastri Tumwebaze SCCA No. 6 of 2004* Oder JSC relying on **A. I. R. Commentaries: The Code of Civil Procedure by Manohar and Chitaley, volume 5 , 1908,** stated 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 the record. The "error" may be one of fact, but it is not limited to matters of fact, and includes also error of law."* (Underlined for emphasis).

[21] In *Nyamo &Nyamogo Advocates versus Kago (2001)2 EA 173* the Court stated that: *"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 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 review although it may be for appeal."*

## [22] Similarly, in the *Independent Medico Legal Unit versus Attorney General of the Republic of Kenya, East African Court of Justice Application No. 2 of 2012* the Court stated that:

*"First and foremost, the term "error apparent on the face of the record" is not/hardly a term of art: one whose meaning has been definitively settled, once and for all. Rather, it is a nebulous legal concept the fluidity of whose content must be interrogated in every case – using the rich jurisprudence that has grown up around it. Second, implicit in that term, is the notion that review of a judgment has a limited purpose. It must not be allowed to be* *an appeal in disguise. The purpose of review is not to provide a back door method by which unsuccessful litigants can seek to re-argue their cause. On these two principles hang all the law of "apparent error". In this regard, most significant among the principles (gleaned from the rich jurisprudence that we have alluded to), are the following:*

- *As the expression "error apparent on the record" has not been definitively defined by statute, etc, it must be determined by the Court's sparingly and with great caution.* - *The "error apparent" must be self-evident; not one that has to be detected by a process of reasoning.* - *No error can be said to be an error apparent where one has to "travel beyong the record" to see the correctness of the judgment – see paragraph 2 of the Document on "REVIEW OF JURISDICTION OF THE SUPREME COURT OF INDIA" (supra)* - *It must be an error which strikes one on mere looking at the record, and would not require any long drawn process of reasoning on points where there may conceivably be two opinions – see Smti Meera Bhanja v. Smti Nirmala Kumari (Choudry) 1995 SC 455.* - *A clear case of "error apparent on the face of the record" is made out where, without elaborate argument, one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it – see Thugabhadra Industries Ltd v. The Government of Andra Pradesh 1964 AIR*

*1372; 1164 SCR (5) 174; also quoted in Haridas Das v. Smt. Usha Rani Banik & Ors, Appeal (civil) 7948 of 2004.*

- *In summary, it must be a patent, manifest and self-evident error which does not require elaborate discussion of evidence or argument to establish – see Sarala Mudgal v. Union of India M. P. Jain, page 382, Vol. I* - *Review of a judgment will not be considered except where a glaring omission or a patent mistake or like grave error has crept into that judgment through judicial fallibility – see Document: "REVIEW JURISDICTION OF SUPREME COURT OF INDIA" (supra).*

[23] In this case, the errors which were stated to be apparent on the face of the record were, first that the application was in respect of the law that bars private alienation after attachment and had nothing to do with possession, secondly, that the attached property comprised in FRV HQT 168, Folio 13, plot 8 is regulated by the provisions of the Registration of Titles Act and thirdly that the judge accepted the affidavit of Lalam Grace as objector proceedings in respect of un-surveyed land located along Hostel close road, Gulu East Division Gulu city without filing a formal application.

[24] In my view, the alleged errors are not apparent on the face of the record. It is very clear from the application and the submissions of counsel for the Applicants that the Applicants are aggrieved by the decision of this Court because it did not determine the issue whether the transfer of the property comprised in FRV HQT 168, Folio 13, plot 8, which was attached in execution, was void in view of Section 47 of the Civil Procedure Act and whether the alleged sale by the 1st Respondent to the 3rd Respondent, prior to the attachment, was valid in view of the Registration of Titles Act. The Applicants are also aggrieved by the decision of this Court in considering the affidavit in reply of the 2nd Respondent as an objector application without a formal application by her. The alleged errors require elaborate discussion of the law and evidence or a long process of reasoning as to whether the Court was right in adopting the course it took. In my view, those are issues of appeal and not review. I therefore agree with counsel for the Respondent that this application is a disguised appeal.

[25] In the end, I find that this application has no merit. It is accordingly dismissed with costs to the Respondents.

I so order.

Dated and delivered by email this 26th day of June 2024

Phillip Odoki **Judge**