Okoya v Layet (Miscellaneous Application 59 of 2023) [2024] UGHC 279 (24 April 2024)

Full Case Text

## THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA HOLDEN AT GULU

## MISCELLANEOUS APPLICATION NO. 59 OF 2023

ARISING FROM MISC. APPLICATION NO. 04 OF 2023 (ARISING FROM CIVIL SUIT NO. 01 OF 2023)

OKOYA DENIS ARABMOI......... ......................................

#### **VERSUS**

**LAYET HELLEN..................................** ......................................

$\mathsf{S}$

$15$

## BEFORE: HON. MR. JUSTICE GEORGE OKELLO

#### **RULING**

# **Background**

The title of the application as drawn purports that it is an appeal where 30 the first party is an Appellant and its adversary, a Respondent. The Application is also purported to be a miscellaneous cause yet it is not purporting to originate a matter as the present action is shown to arise from the Application which springs from the main Civil Suit. At the same time, the matter is purported to be a review suit founded on section 82 of 35 the Civil Procedure Act Cap 71 (CPA) and Order 46 of the Civil Procedure Rules SI 71-1 (CPR). The confusion in the manner the proceeding has been commenced is further compounded when the provisions of Order 50 rule 8 of the CPR which deals with appeals against Registrar's order has been

Hudolew

$\mathsf{S}$ invoked. Matters do not end there. Order 51 rule 8 of the CPR on reckoning of days has been cited. What however is clear is that His Worship Ntalo Nasulu Hussein issued a temporary injunction order pending determination of the head suit No. 1 of 2023 by a Judge. I will give the details of the parties in that suit shortly. When this court sought clarity during the appearance for hearing, learned Counsel Mr. Canwat Ronald, $10$ appearing together with Ms. Dinah Jesca Nandutu, for the Applicant, were some-what surprised about the mix-up in the nature of the action, but nonetheless proffered that, the suit was strictly a review matter and not an appeal against the order of the learned Deputy Registrar. That verbal 15 clarity was, however, strangely not followed with any attempt to amend the Motion to strictly conform to a review suit. In their final written address, learned Counsel for the Applicant purport to further strengthen their assurance about the nature of the proceeding, claiming it is review. No wonder, a preliminary objection was raised by learned Counsel Mr. Tonny 20 Kitara, in his written arguments. I will deal with the point of law later in this Ruling.

Be that as it may, this matter traces its root to an order of a temporary injunction granted on 30 March, 2023. It was issued in favour of the present Respondent. The order was to restrain Centenary Bank, Okoya Denis Arabmoi (the Applicant), and Registrar of Titles and their agents, from further trespassing, intimidating, alienating, selling off by public

$25$

Hussour

$\mathcal{L}$

$\mathsf{S}$ auction or otherwise, entering into tenancy agreements and collecting rent or making any other developments on the land at plot 21 coronation road, Gulu City vide a Certificate of Title comprised in leasehold register 18587, Volume 2941, Folio 23, among other pieces of land within Gulu City. I will not refer to the other pieces of land that are the subject of the order, $10$ because, they are not at issue in the instant proceeding. I however note that, Centenary Bank was aggrieved with the order respecting the land along Coronation road, plus other plots located elsewhere, and indeed, filed a separate challenge by way of appeal in this court, *vide* Civil Appeal No. 36 of 2023, but withdrew it by notice to court, dated 02 April, 2024, $15$ under reference SL/11627/170941. Thus, the present Applicant/ Appellant is the only aggrieved party as he claims interest in the land along coronation road. He has no claims to other plots of land affected by the Court Order. He is said to have purchased the property from Centenary Bank through a Bailiff appointed for the purpose by the Bank. The Bank had sought to realize a debt alleged to have been due from the Respondent 20 (Layet Hellen). It appears upon the purchase of the property which is developed with commercial rental building, the Applicant got registered and communicated to the tenants of the Respondent, asking them to start remitting rent to him as the new property owner. Having gotten wind of the sale, registration, and the notice issued to her tenants, the Respondent 25 lodged Civil Suit No.1 of 2023 against the Bank, the Applicant, Registrar of Titles, and the Attorney General, challenging the transactions between

Heaven

$\mathfrak{Z}$

$\mathsf{S}$ the first three Defendants regarding the land at Coronation road, among other property. She also takes issue with the fourth Defendant (Attorney General) for Government's alleged failure to fulfil some commitments towards the Respondent. The Respondent then lodged an application for interim order which the parties consented to, on 07 February, 2023, agreeing to maintain the status quo on all the property, until the $10$ determination of the application for temporary injunction.

As noted, the learned Deputy Registrar granted the temporary injunction order, pending the determination of the head suit. The head suit came up before this court on 19 October, 2023, and leave was granted, and time enlarged for the Respondent (Plaintiff) to serve the Registrar of Titles with summons and plaint, before the matter can come up for further direction.

## Grounds of the Motion

$15$

The Applicant predicates his complaints on the alleged mistakes and 20 errors of law and fact claimed to be apparent on the face of the record. It is averred, the errors have caused a miscarriage of justice to the Applicant. The Applicant also avers, there is sufficient cause to warrant review. He proceeds to plead the alleged mistakes and errors of law. I have noted that 25 the detailed complaints are couched as if they were grounds of appeal. They are reproduced below, for effect.

Hhrodun

$\overline{4}$

- a) The learned Registrar erred in law and in fact when he failed to apply the principles of the law for grant of a temporary injunction to the case and arrived at the wrong conclusions. - b) The learned Registrar erred in fact and in law when he failed to properly determine and apply the purpose of a temporary injunction to the case. - c) The learned Registrar erred in fact and in law when he failed to properly ascertain and determine the status quo to be maintained with regard to the suit property. - d) The learned Registrar erred in fact and in law when he held that the Respondent proved a prima facie case with a probability of success against me in Civil Suit No. 01 of 2023. - e) The learned Registrar erred in fact and in law when he held that the Respondent would suffer irreparable damage if a temporary injunction was not granted in her favour in the case.

$\mathsf{S}$

$10$

After the above averments, the Applicant goes on, in a some-what repetitive manner, to aver that, sufficient reason exists for review and setting aside the impugned Ruling and orders, premised on the following grounds;

a) The learned Registrar erred in fact and in law when he failed to properly apply the purpose of a temporary injunction to the case.

Hhrodu

$\mathsf{S}$

- b) The learned Registrar erred in fact and in law when he failed to properly ascertain and determine the status quo to be maintained with regard to the suit property. - c) The learned Registrar erred in fact and in law when he held that the Respondent proved a prima facie case with a probability of success against me in Civil Suit No. 01 of 2023. - d) The learned Registrar erred in fact and law when he held that the Respondent would suffer irreparable damage if a temporary injunction was not granted in her favour in the case. - e) The learned Registrar erred in law and in fact when he failed to determine that the balance of convenience favoured me in the circumstances. - f) The learned Registrar erred in fact and in law when he failed to safeguard and ring-fence the purchase price and commercial proceeds of the suit property until the determination of the head suit, as the justice of the case called for.

The Applicant concluded his averment by invoking the 'just and equitable' principle, asking this court to allow the Application.

25 The Applicant swore an affidavit in support. He deposed that the Applicant (he sought to mean the Respondent) obtained a loan facility from centenary bank. It was secured by property along coronation road. The Applicant (he

Heradan.

$10$

$\mathsf{S}$

$\mathsf{S}$ meant the Respondent) failed to redeem the property prompting the Bank to advertise it for sale. The Applicant successfully bid it, and the property was sold, transferred into his name, and handed over to him. The consideration was used to credit the Respondent's loan account held with the Bank. The property was allegedly handed over by the Auctioneer in the $10$ presence of the tenants, the lawyers, the LCI Chairman, and the wife of the Applicant. The Respondent then lodged the head suit against the Applicant and others. The Applicant deposes that, at the time he purchased the property, the Respondent was not in physical possession but her tenants, thus she was only in constructive possession. The $15$ Respondent obtained the impugned order, prompting the Applicant to seek legal advice. The Applicant deposes that he believes the advice of his lawyers that there are mistakes and errors of law and fact apparent on the face of the record which have occasioned a miscarriage of justice to him, thus warranting its review and setting aside. The Applicant reproduces the 20 grounds highlighting the alleged errors, in his affidavit.

In her opposing affidavit, the Respondent denied that she failed to repay the loan with the Bank, deposing, she fully repaid it. She challenges the Applicant's bidding, alleging there was no open bidding of the property. She further deposes that the property was sold without her knowledge, and without valuation, thus the entire transaction regarding the property is illegal, and, therefore, the illegality will be a question for determination

Hurodun

$\overline{7}$

$\mathsf{S}$ in the head suit. The Respondent also impugns the sale, transfer of title, and purported handover of the property. She further deposes that she has been in possession of the property since time immemorial, and even before she filed the Application for temporary injunction, and after its disposal. She claims there was threat of alienating, selling, transfer, collecting rent $10$ from the property, by the Applicant. She boasts that the Applicant and his agents had to be restrained. Basing on her lawyer's advice, the Respondent deposes that there are no errors of law and fact apparent on the face of the record and in any case, the status quo was ordered to be maintained pending the determination of the main suit. The Respondent supported the decision of the learned Deputy Registrar, contending, the court $15$ appreciated and applied the correct principles of law regarding the grant of temporary injunction.

## **Issues**

- 20 1. Whether the Application being omnibus, is competent before court? - 2. Whether the ground for review has been proved? - 3. What remedies are available to the parties?

## **Resolution**

I will resolve the issues in their order. The first issue arises from the 25 preliminary point of law raised by learned counsel for the Respondent. It was argued that the Applicant purports to seek review under section 82 of

Hussour.

$\mathsf{S}$ the CPA and Order 46 of the CPR, and at the same time, purports to appeal under Order 50 rule 8 of the CPR. It was argued, the application is an abuse of court process.

In their response, learned counsel for the Applicants gave a lengthy $10$ explanation as to why the Application also invokes the provisions for appealing the Registrar's decision. Counsel argued to the effect that, they cited the provision on appeal but also cited Order 51 rule 8 of the CPR to show that, since the Applicant had run out of time for appealing the Registrar's order (within 7 days as per under section 79 (1) (b) of the CPA), they had to seek review instead. Learned counsel insisted this is review $15$ matter and not an appeal.

The answer to the objection is straight forward. I think it has merit because the Applicant purports to pursue both appeal under Order 50 rule 8 of the CPR, and, review under section 82 of the CPA and Order 46 of the CPR yet the two modes of moving court cannot be invoked simultaneously. Whereas a decision of the Deputy Registrar High Court (as well as Assistant and Registrar of the Court is appealable to the High Court Judge, and equally reviewable by a Judge as held in **Attorney General** and Uganda Land Commission Vs. James Mark Kamoga Vs. and

James Kemala, Civil Appeal No. 8 of 2004 (SCU), the powers of review, and appeal to the High Court, cannot be invoked at the same time by an

Hurodu.

aggrieved person. The two procedures are mutually exclusive. I have $\mathsf{S}$ perused the Motion and, as noted, Okoya Denis Arabmoi is described as Appellant although in his submission, he has since been described as an Applicant. However, the Motion still cites the provision on appeal against Registrar's decision. The grounds of complaint are also framed as if it were an appeal. The reason advanced for the manner in which the Motion was $10$ prepared, is not convincing. It was certainly pointless to cite the provision relating to appeal under the guise of demonstrating that, whereas the Appellant/ Applicant had that right, he has instead preferred the review route. I think, and with respect, learned counsel for the Applicant is not being honest in their explanation. The explanation came in submission $15$ after court had pointed out the apparent defect in the Motion before the start of the hearing as it sought clarity. It appears the Applicant/ Appellant believes in shooting two birds with one stone. I am afraid, the provision of section 82 of the CPA and Order 46 of the CPR, does not allow for that. Whereas the provisions make it clear that, review can be sought in a matter 20 which is appealable but where no appeal has been preferred, it does not. mean an aggrieved party is permitted to pursue both appeal and review at the same time or one after the other. An aggrieved party has to choose one mode and not both. For completeness, section 82 of the CPA and Order 46 of the CPR also apply to decrees not appealable, as is the case with consent 25 decree under section 67 (2) of the CPA. Thus, whereas one may have a right of appeal but prefers not to exercise it and instead seeks review, the

Huroden

- law does not create a leeway for lodgment of an appeal and review at the $\mathsf{S}$ same time or at different times. I hope this pronouncement settles the matter. I therefore, find the Application incompetent and the preliminary objection is upheld. - 10 Regarding the argument that the application constitutes an abuse of court process, it has been held that, use of court process for improper purpose constitutes an abuse of the process. See: Attorney General and Uganda Land Commission Vs. James Mark Kamoga and James Kemala, Civil Appeal No. 8 of 2004 (supra) (Mulenga, JSC). In the case of Hon. Gerald - $15$ K. Karuhanga & Kiiza Eron Vs. Attorney General & 2 Others, Misc. Cause No. 060 of 2015, Musota, J (as he then was) cited the persuasive Nigerian case of R Vs. Benkay Nigeria Ltd Vs. Cadbury Nigerian PLC **SC29** of 2006 in which several circumstances that give rise to abuse of court process were outlined. One such circumstance is where two actions are commenced, the second asking for a relief which may have been 20 obtained in the first. Musota, J, concluded that, a common feature of abuse of court process is in the improper use of the judicial process by a party to litigation. In my opinion, the instant Application constitutes an abuse of court process aside from being fatally defective, given its omnibus nature. See: Odongping Paul & 3 others Vs. Amuru District Land 25 Board and 4 Others, Misc. Cause No. 15 of 2013, in which this court disapproved of omnibus applications especially that which seek to move

Hurodu

$\mathsf{S}$ court in a manner that is legally incompatible, and which flout the law, thus rendering the matter incapable of proper adjudication. This is the case at hand. In the circumstances, I would uphold the second limb of the objection and strike out the Application on the ground of abuse of court process.

$10$

In the event that I am wrong, I proceed to consider the merit of the application on the basis of the claim that it is strictly a review matter, and not an appeal.

15 To begin with, review, according to Black's Law Dictionary, 9th Ed. page 1434, means, consideration, inspection, or re-examination of a subject or thing. It connotes a judicial re-examination of the case in order to rectify or correct grave and palpable errors committed by court in order to prevent a gross miscarriage of justice. See: Watwero Enterprises Limited Vs. Board of Governors of Lukome Secondary School & Attorney General, 20 Misc. Application No. 123 of 2021; John Imaniraguha Vs. Uganda

Revenue Authority, Misc. Application No. 2770 of 2023;

It is thus correct to state that section 82 of the CPA confers an unfettered right to apply for review. See: Kimita & another Vs. Wakibiru [1967-25 **1985 1 E. A 229**. A person applying for review of the Deputy/ Registrar's Order under section 82 of the CPA and Order 46 of the CPR must be a

HUADDIN

- person who is aggrieved by a decree or order of the Deputy/ Registrar. As $\mathsf{S}$ stated, the order sought to be reviewed may be that from which an appeal is allowed by the CPA but where the aggrieved person has opted not to exercise the right of appeal. - $10$ Under Order 46 rule 1 (1) of the CPR, an applicant for review must satisfy one of the three conditions, namely, discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his or her knowledge; mistake or error apparent on the face of the record; or any other sufficient reason which must be analogous to the first two 15 grounds above.

Regarding the order of the Deputy/Registrar High Court, only a Judge of the High Court can review it and not the particular Registrar himself/herself. This was the view espoused in the case of Attorney General & Another Vs. James Mark Kamoga & another (supra). The special auxiliary powers of the Registrar High Court or Deputy, and Assistant Registrar, have been prescribed in Order 50 of the CPR and is circumscribed, thus not extending to review of its own orders.

25 For the purposes of section 82 of the CPA and Order 46 rule 1 (1) of the CPR, an "aggrieved person" means a person who has suffered a legal grievance. See: **Re Nakivubo Chemist (1979) HCB 12.** In the case of **Ex**

Hurson.

$\mathsf{S}$ Parte Side Bothan (1880) 14 Ch. D 458 at page 465, James, L. J., observed:

"the words 'person aggrieved' do not really mean a man who is disappointed by a benefit which he might have received if no other order had been made: a person aggrieved must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongly deprived him of something or *wrongly affected his title.*"

$10$

- 15 The above passage was cited with deference in **Re Nakivubo Chemist** (1979) HCB 12. In Mohammad Alibhai Vs. W. E Bukenya Mukasa & Others, SCCA No. 56 of 1996, Odoki, JSC (as he then was) held that a person considers himself aggrieved when he has suffered a legal grievance. - 20 In the instant matter, the Applicant argues that there are mistakes and errors apparent on the face of the record. The phrase 'error apparent on *the face of the record'*, as noted, is one of the three known grounds for review. According to the editors of *Mulla on the Code of Civil Procedure* **Act V of 1908 16th Ed.**, an error apparent on the face of the record must not be that which has to be searched. It must be an error of inadvertence. 25 The error should not require any long-drawn process of reasoning on matters where there may conceivably be two points. The error must be

HUADOW

$\mathsf{S}$ obvious and self-evident, and should not require an elaborate argument to be established. Thus, if the court applies its mind to a particular fact or law and then comes to a conclusion after conscious reasoning, it can never be contended, even if the conclusion was wrong, that the error is one apparent on the face of the record. Thus an error apparent on the face of $10$ the record is one which is based on clear ignorance or disregard of the provisions of the law. It is a patent error and not a mere wrong decision. Conclusions arrived at on appreciation of the evidence cannot, therefore, be classified as error apparent on the face of the record. Courts, however, do recognize that it is not possible to define the term *'error apparent on the* face of the record' precisely or exhaustively as there is an element of 15 indefiniteness inherent in its nature. Thus, error apparent on the face of the record will always be left to be determined judicially and on the facts of each case. This was the view expressed in the case of **Nyamogo &** Nyamogo & Co. Advocates Vs. Kago [2001] 2 EA 173. Therefore, where 20 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 have been made out. However, 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. Therefore, a wrong view is no basis for 25 review although it may be a ground for an appeal.

HUADOW

- In Edison Kanyabwera Vs Pastori Tumwebaze, Civil Appeal No. 06 of $\mathsf{S}$ **2004,** Oder, JSC, cited with approval A. I. R Commentaries: the code of Civil Procedure by Manohar and Chitaley, Volume 5, 1908, where it is opined that in order that an error may be a ground for review, it must be one apparent on the face of the record, that is, an evident error which does not $10^{\circ}$ require any extraneous matter to show its correctness. 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 matter of fact, and includes also error of law. - 15 In the instant case, having perused the record, especially the Ruling of the learned Deputy Registrar, and having juxtaposed it with the grounds canvassed and argued, I note that the Applicant's complaints relate to the alleged erroneous decision. The Applicant in my view, has totally failed to point out any errors in the orders of the learned Deputy Registrar. Rather, the numerous repetitive grounds would be grounds for appeal which in 20 any case is already time-barred, as conceded by the Applicant. The grounds canvassed are not grounds of review. To discern the alleged error of law and fact, as contended for the Applicant, this court had to go through several legal principles regarding the grant of temporary injunction. I find that none was misstated or misapplied by the learned 25 Deputy Registrar. The learned Deputy Registrar properly exercised his discretion in the circumstances. He committed no obvious error of law or

HertoDum

fact. He proceeded on the basis of the material before him. The learned $\mathsf{S}$ Deputy Registrar did maintain the status quo. It was clear the Applicant had written to the tenants of the Respondent, asking them to pay rent direct to him, yet at the material time, they were paying to the Respondent. The tenants did not have any tenancy agreements with the Applicant. The mere fact that the Applicant has a Certificate of Title which the Respondent $10^{\degree}$ alleges was illegally transferred and processed in his name, in my view, did not mean the status quo on the land had changed. At least, the tenants were the Respondent's tenants. By purporting to impugn the learned Deputy Registrar's order of temporary injunction, the Applicant wishes this court to interfere with the exercise of judicial discretion and alter the 15 status quo yet it is not shown that the discretion was exercised injudiciously. It appears the Applicant's main objective in engaging the process of this court is to be allowed to collect rent from the property when the process leading to his acquisition is at issue in the head suit. I find no reason to fault the decision of the learned Deputy Registrar, His Worship 20 Ntalo Nasulu Hussein.

For the reasons given, the Application would still fail on merit. I would, therefore, dismiss it with an order that each party bears its own costs.

Dated and signed this 19th April, 2024.

#### Hassan George Okello **JUDGE**

$\mathsf{S}$ This Ruling will be read on my behalf by the Deputy Registrar, His Worship George Obong, on 23rd April, 2024, as I will be on official duties out of the station.

$10$

Hunge George Okello **JUDGE**

Ruling read in Open Court

#### 24th April, 2024 $15$

## **Attendance**

Okwera Mesach for the Applicant.

Richard Luganya Bongowat for the Respondent.

Jennifer Court Clerk.

# alth.

## George Obong

Ag. Deputy Registrar