Okwana v Oonyu (Miscellaneous Application 116 of 2022) [2023] UGHCLD 226 (15 February 2023)

The Republic of Uganda In the High Court of Uganda Holden at Soroti Miscellaneous Application No. 116 of 2022 (*Arising from Civil Appeal No. 78 of 2016*)

Okwana Stephen :::::::::::::::::::::::::::::::::::: 10

#### Versus

Oonyu Charles ::::::::::::::::::::::::::::::::::::

## Before: <u>Hon. Justice Dr Henry Peter Adonyo</u>

# **Ruling**

#### 1. <u>Background:</u> 15

This is an application brought by Notice of Motion under Section 99 of the Civil Procedure Act, Cap 71, Section 33 of the Judicature Act, Cap 13 and Order 52 Rules 1 and 3 of the Civil Procedure Rules SI 71-1, for orders that;

- a) The judgment of this Honourable court be corrected to reflect that the suit land in Civil Appeal No. 78 of 2016 is comprised in Plot 41 Block C, Market Street Ngora Town Council. - b) Costs of this application be provided for.

The grounds of the application as averred in the Notice of Motion are supported by the affidavit of the applicant, Okwana Stephen as follows;

a) The applicant is the successful party in Civil Appeal No. 78 of 2016.


$25$

$\mathsf{S}$

- $\mathsf{S}$ - b) while passing their judgments both the lower court and high court made a clerical error when they styled the suit land as comprised in Plot 14 Block C Market Street, Ngora Town Council instead of Plot 41 Block C Market Street, Ngora Town Council. - c) That it is a clerical error that can be corrected under *The Slip Rule*. - $10$

d) That the respondent shall not be prejudiced if the application is granted.

The application was opposed by the respondent in his affidavit in reply and averred that:

- a) The applicant instituted Civil Suit No.31 of 2011 in which he sought a declaration that he owns Plot No. 14 Block C Market Street in Ngora Town Council measuring 50 by 100 ft; - b) Judgement was entered against the applicant; - c) Being dissatisfied with the decision and the judgement of the lower court, the applicant filed Civil Appeal No.78 of 2016 in the High Court Soroti Circuit which was decided in favor of the applicant for Plot No. 14 Block C Market street in Ngora Town Council measuring 50 by Iooft. - d) There was no clerical error on the face of record as the applicant instituted Civil Suit No 31 of 2011 in respect of plot No. 14 block C Market street in Ngora town council measuring 50 by 100ft and not plot 41 block C market street in Ngora town council. - e) I upon being advised by his lawyers whose advice he believes to be true and correct that the applicant had enough time in the lower court to amend his pleadings before judgement was delivered which he did not.


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- f) That after being advised by my lawyers whose advice he believed to be true and correct that the applicant does not have clean hands and this application was riddled with fraud. - g) The applicant seeks to exploit the order of court by using the said order in respect of Plot 14 block c market street in Ngora Town Council to alienate plot No. 41 Block C, Market Street in Ngora Town Council. - h) The plots No. 41 43 Block C Market Street in Ngora Town Council belongs to the respondent and plot 41 was not the subject matter of Civil Suit No. 31 of 2011 and Civil Appeal No. 78 of 2016. - 2. Representation: - The applicant was represented by the Legal Aid Project of Uganda Law 15 Society, while M/s Engwau and Company Advocates appeared for the respondent. The parties filed written submissions which have been considered accordingly.

$3.$ Issues:

- a) Whether there was a clerical error or arithmetic mistake in the judgement of this and the lower court? - b) What are the remedies available to the parties? - 4. <u>Submissions:</u>

In his submission, Counsel for the applicant argued that the judgment passed by the Chief Magistrate's Court of Soroti Holden at Ngora on the 13<sup>th</sup> day of October 2016 and the judgement of this honourable court passed by Hon. Justice Taddeo Asiimwe on the 24<sup>th</sup> day of November 2021, both had clerical errors wherein both judgments described and styled the suit land to be comprised in "Plot 14, Block C Market Street Ngora Town Council" yet the land in dispute was "Plot 41, Block C Market street Ngora Town Council."


$\overline{5}$

He referred to the amended plaint wherein the plaintiff's claim and prayers $\mathsf{S}$ contained in the amended plaint dated 16<sup>th</sup> August 2013, the plaintiff, now the applicant sought a declaration as the lawful owner of Plot No. 41 Block C, Ngora Market Street.

Further, he argued that whereas the judgment delivered by this Honourable Court on 24<sup>th</sup> November 2021 on page 11 on its orders described the suit $10$ property as plot 14 block C Market Street, Ngora Town Council, measuring 50 by Ioo ft, the same judgment on page 7 paragraph 3 stated that the evidence is clear that an agreement between the plaintiff, now the applicant and the late Otim Aloysius was duly executed for the purchase of suit land Plot 41 block C market street, Ngora. 15

Counsel prayed that this Hon. Court makes a 'slip order' decision to address and rectify such omission and give effect to the Court's clear/manifest intention in that ruling, which was to declare the applicant as the lawful owner of Plot No. 41 Block C, Ngora Market Street. Counsel cited several authorities some of which are referred to in this ruling herein later.

In reply, Counsel for the respondent submitted in reply that in Civil Suit No.31 of 2011, there is no record of any amended plaint being admitted and or served onto the Respondent in respect of plot 41 Block C Market Street and if any, it was smuggled on court record to fraudulently defeat the respondent's interest in Plot 41 Block C Market Street in Ngora Town Council.

He added that this application renders the entire process of the court a nullity as the applicant's suit was instituted with respect to Plot 14 Block C Market Street in Ngora and not Plot 41 Block C Market Street in Ngora as his pleadings did not disclose a cause of action against the respondent.


Counsel submitted that this application cannot be granted. In his view, this $\mathsf{S}$ application is premised on fraud and Section 99 of the Civil Procedure Act does not apply.

He prayed that this court dismisses this application as granting it shall prejudice the respondent who will not been given a fair hearing in respect to Plot No. 41 Block C Market Street in Ngora.

5. Consideration by Court

The two issues are resolved concurrently.

Section 33 of the Judicature Act, Cap 13 provides that:

General provisions as to remedies:

The High Court shall, in the exercise of the jurisdiction vested in 15 it by the Constitution, this Act or any written law, grant absolutely or on such terms and conditions as it thinks just, all such remedies as any of the parties to a cause or matter is entitled to in respect of any legal or equitable claim properly brought before it, so that as far as possible all matters in controversy between the 20 parties may be completely and finally determined and all multiplicities of legal proceedings concerning any of those matters avoided.

Section 99 of the Civil Procedure Act provides that:

<u>Amendment of judgments</u>, decrees or orders: 25

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 $\overline{5}$ own motion or on the application of any parties.

Slip rule is the rule that allows the court to correct accidental slips or omissions in judgments and orders at any time

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 the purposes of correcting clerical errors and giving effect to the judgment of the court.

The sole purpose of the rule is to allow amendments to be made to judgments and orders that are the result of typographical errors or any accidental omissions: it does not give parties scope to attempt to insert any further clauses into a judgment and order that did not reflect the thinking and the intention of the court at the time the judgment and order were given. Any substantive mistake (i.e. a mistake of law) may only be rectified by way of appeal, although where the order or judgment has not yet been sealed, the Judge retains a power of review.

In Lakhamshi Brothers Limited versus R. Raja & Sons 20 $[1966]$ EA313 it was noted that;

> "... there has been a multitude of decisions by this Court on what is known generally as the <u>slip rule</u>, 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


Page $6 \circ 12$ 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 Raina case (2) [1965] E. A. at P. 703) as follows:

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"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." (Emphasis mine)

This principle was restated in the case of Fang min vs Dr. Kaijuka Mutabazi Emmanuel SCCA No. 06 of 2009.

In UDB VS Oil Seeds (U) Ltd Supreme Court Civil Application No. 15 of 1977, the Supreme Court of Uganda was of the view that;

"A slip order will only be made where the court is fully $\mathbf{A}$ 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 reasonable doubt, as to the order which it would have made had the matter been brought to its attention".

The holding in *UDB VS Oil Seeds* (above) is relevant in the determination of this application for this court needs to establish the intention of the court was when it made its judgment, specifically the order that is in contention.

The applicant avers in the affidavit in support of the application that;


- a) In paragraph 3, while passing their judgments both the lower court and high court made a clerical error when they styled the suit land as comprised in Plot 14 Block C Market Street, Ngora Town Council instead of Plot 41 Block C Market Street, **Ngora Town Council.** - b) Paragraph 4, that in the process of extracting the Judgment Order for purposes of execution, my lawyer's M/s Legal Aid Project of the Uganda Law Society discovered that there was a clerical error in the number of the plot that the court decreed to me. - 15

$\mathsf{S}$

c) Paragraph 7, That it's a clerical error that can be corrected under the slip rule.

The applicant in his submissions invited the court to refer to the amended plaint dated 16<sup>th</sup> August 2013 attached to the submissions to the effect that; the plaintiff now the applicant was seeking a declaration as the lawful owner

of Plot 41 Block C, Ngora Market Street whereas the judgement in the lower court and also at appellate stage, each in the orders reflected Plot 14 Block C Market Street, Ngora Town Council instead of Plot 41 Block C Market Street, Ngora Town Council.

The respondent vehemently objected to the applicant's averments and stated under the affidavit in reply that; 25

a) (Paragraph 5), there was no clerical error on the face of record as the applicant instituted Civil Suit No 31 of 2011 in respect of plot No. 14 block C Market street in Ngora Town Council measuring 50 by 100ft and not plot 41 Block C Market Street in Ngora Town Council.


- b) (Paragraph 6), I am being advised by my lawyers whose advice I believe to be true and correct that the applicant had enough time in the lower court to amend his pleadings before judgement was delivered which he did not. - c) (Paragraph 8), I am being advised by my lawyers whose advice I believe to be true and correct that the applicant does not have clean hands and this application is riddled with fraud. - d) (Paragraph 9), the applicant seeks to exploit the order of court by using the said order in respect of Plot 14 Block C Market **Street in Ngora Town Council to alienate plot No. 41 Block C, Market Street in Ngora Town Council.**

In his submissions and affidavit in reply, counsel for the respondent and the respondent aver and state that there is no record of any amended plaint being admitted and or served onto the respondent in respect of Plot 41 Block C Market Street and if any, it was smuggled on court record to fraudulently defeat the respondent's interest in Plot 14 Block C Market Street in Ngora Town Council. These are serious allegations of fraud which the court has to make a finding on.

Counsel for the applicant did not rejoin on the glaring issue of purported fraud, that is, the smuggling the amended plaint on the record.

I have, however, perused the lower court records including the pleadings and $25$ documents submitted by counsel, in the submissions of the applicant, they attached an amended plaint dated 15<sup>th</sup> August 2013 in Civil Suit No. 31 of 2011 at the Chief Magistrate's Court of Soroti at Ngora, paragraph 3 of the plaint clearly states that " *the plaintiff's claim against the defendant*

is for recovery of plot No.41 block C, Market street Ngora, a 30


$10$

$\mathsf{S}$

declaration that he is the lawful owner of the said plot of land, $\mathsf{S}$ general damages for tress pass and inconvenience, permanent injunction, interest and costs of the suit."

Further perusal of the entire court file shows that indeed an amended plaint dated 16<sup>th</sup> August ,2013 clearly describes the disputed property as plot

No.41 block C, Market street Ngora. This was pleaded and was not 10 opposed.

Even in his testimony of 23<sup>rd</sup> November, 2011, the applicant Okwana Stephen testifying as PW1 at page 9 of the hand written proceedings clearly informed court that "I have a dispute over land with the defendant, Plot 41

- Block C Ngora Market Street in Ngora District. The plot belongs 15 to me I first bought it from one Otim Aloysious . I bought it from $\;$ him on $4/3/1995$ at the agreed price of 250,000/= We made an **agreement to that effect...".** The agreement was admitted on record as PE1 with no objection from either the respondent or his then counsel Angura. - From all the above I am satisfied that the suit land is Plot No.41 block C, 20 Market street Ngora as reflected in the plaint under paragraph 3 and in the prayers thereof.

Furthermore, while I note that the appellate court while considering the appeal started by highlighting that in this case "Civil Suit No. 31 of 2011

the respondent for trespass to his land comprised in plot No. 14 25 **Block C Market Street in Ngora**", it went on while resolving the 1<sup>st</sup> and 2<sup>nd</sup> ground of appeal and stated that;


## "....it is clear, an agreement between the plaintiff and the late Omit Aloysius was duly executed for the purchase of the *suit land (plot 41, Block C...)"*

However, in it went on to make a contradicting order while allowing the appeal in the following terms;

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## "The suit land comprised in plot 14, Block C.... belongs to the <pre>appellant/plaintiff"</pre>

Also in its judgment dated 13/10/2016, the trial magistrate notes that DW4 Opolot Martin, the Physical Planner, Ngora District while testifying mentions plot 41.

- The circumstances for applying the slip rule include where the court is asked 15 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. - See: Lakhamshi Brothers Limited versus R. Raja & Sons [1966] 20 $EA.31.3.$

From the pleadings, and evidence on court record, I am convinced that the appellate judge intended to make orders in respect of "Plot 41, Block C Market Street Ngora Town Council" and not "Plot 14, Block C *Market street Ngora Town Council*" and thus pursuant to Section 99 of the Civil Procedure Act, Cap 71, this Honourable Court while applying the slip rule principle does now move to correct the error/omission in its judgement and substitute "Plot 41, Block C Market Street Ngora Town Council", accordingly as the suit land.


- This application is thus allowed with orders that the judgment of this court $\mathsf{S}$ and the lower court which mistakenly had "Plot 14, Block C Market street Ngora Town Council" be adjusted to "Plot 41, Block C Market **Street Ngora Town Council"**, accordingly as pleaded. - 6. Orders: - "Plot 14, Block C Market street Ngora Town Council" as indicated in the final judgments of the lower and the appellate court is ordered adjusted to "Plot 41, Block C Market Street Ngora *Town Council*" as pleaded. - I do make also no order as to costs.

I so order. 15

Hon. Justice Dr Henry Peter Adonyo

Judge

15<sup>th</sup> February, 2023

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