Pioneer Easy Bus Limited V Bagenda Dyabe Tonny (MISC. APPLICATION NO. 704 OF 2018) [2019] UGHCCD 196 (6 February 2019)

## **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (CIVIL DIVISION) MISCELLANEOUSAPPLICATION NO.704 OF 2018 (ARISING FROM CIVIL SUIT NO. 36 OF 2016)**

# **PIONEER EASY BUS LIMITED :::::::::::::::::::::::::::: APPLICANT**

### **VERSUS**

#### **BAGENDA DYABE TONNY :::::::::::::::::::::::::::::::::::::: RESPONDENT**

#### **BEFORE: LADY JUSTICE LYDIA MUGAMBE**

#### **RULING**

#### **a) Introduction**

- 1. This application was brought under sections 82 and 98 of the Civil Procedure Act and Order 46 Rules 1 and 8 of the Civil Procedure Act seeking that: - i. The orders, judgment and decree of court in H. C. C. S No. 36 of 2016 be reviewed and/or set aside. - ii. Costs of this application.

- 2. Mr. Ojambo Robert Mugani together with Mr. Leonard Okiror of M/s. Ojambo & Ojambo Advocates represented the Applicant and the Respondent was represented by both Mr. Sebbowa Francis Kabali and Mr. Ainebyona Nelson of M/s. Sebbowa & Co. Advocates. - 3. The application was supported by the affidavit of Mr. Muganga Albert Director and share holder of the Applicant. The grounds of the application were briefly that the Applicant is aggrieved by the judgment and decree of this court. Further that after exercising due diligence, the Applicant discovered a new and important matter of evidence which it availed to its lawyers/counsel for the purposes of its defence but could not be produced in the course of the trial owing to the negligence of its lawyers and/or counsel. That the Applicant has a good defence against the Respondent's claim that was mismanaged and negligently and/or deliberately not demonstrated or pursued by its counsel thereby leading to and/or occasioning a miscarriage of justice. - 4. The Respondent filed an affidavit in reply opposing this application. First he raised a preliminary objection in which he averred that the act of reviewing the judgment in issue in the manner sought by the Applicant will in effect cause the trial court to sit in an appeal involving its own final judgment. That the act of setting aside the judgment by the trial court is tantamount to/or in effect the same as the trial court quashing and/or overturning its own judgment and re-opening the case. The evidence has at all material times been known and available to the Applicant and that the application is an afterthought and in abuse of court process which has been filed after one year since the passing of final judgment. - 5. In rejoinder Mr. Muganga deponed that the application is based on sound legal principles and provisions of the law and the averment to the effect that this matter is an appeal is false, misconceived and bad in law. That the court has power provided by law to order the review of its judgment and make all such lawful orders to meet the ends of justice. Further that upon the Applicant giving the said advocate instructions, an advocate-client relationship was created and the advocate was bound by law to represent the Applicant with utmost diligence, which duty she failed to fulfill as manifested by her grossly negligent and unprofessional conduct of the matter.

- 6. Section 82 of the Civil Procedure Act 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. - 7. Order 46 rule 1 of the Civil Procedure Rules 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. - 8. Rule 3 provides that; (1) where it appears to the court that there is not sufficient ground for a review, it shall dismiss the application. (2) where the court is of opinion that the application for review should be granted, it shall grant it; except that no such application shall be granted on the ground of discovery of new matter or evidence which the Applicant alleges was not within his or her knowledge, or could not be adduced by him or her when the decree or order was passed or made without strict proof of the allegation. - 9. The grounds for review are clearly provided for and were outlined in **FX Mubwike v. UEB High Court Misc. Application No.98 of 2005.** These are; (i) that there is a mistake or manifest mistake or error apparent on the face 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.

- 10. Regarding the preliminary objection, this court considers that the facts and circumstances of this case are different from the case the Respondent seeks to rely on. In that case the trial court was found to have vested in itself review powers over an issue it had conclusively addressed and concluded at trial. The Court of Appeal therefore considered that the trial judge could not consider in review the same issue it had already addressed. In this case, the evidence of three witnesses that were never heard by the trial judge in reaching his decision is sought to be considered as part of the review. It is new and important evidence. The preliminary objection is misconceived and rejected. - 11. In this case after looking at the trial record the evidence of the boda boda rider, the bus driver and the person in the bus which tend to exonerate the Applicant from liability for the accident were never tendered or considered by the trial judge. This evidence was retrieved from statements by these persons on the police file. - 12. The Applicant contends that it gave all these statements to their lawyer but it appears that the lawyer never tendered the same in court for the trial judge to consider. It would appear that the failure to tender this evidence at trial was due to the failings of the Applicant's counsel and not the Applicant. It would therefore be unfair to disregard this evidence as it would amount to punishing the Applicant for the sins of its counsel. - 13. In the interest of justice, I consider that for a proper determination of civil suit 36 of 2016, the evidence of these three witnesses needs to be considered along with all the other evidence already on record for a comprehensive and fair determination of the civil suit. This therefore is sufficient reason to allow the review. Accordingly judgment in civil suit 36 of 2016 is set aside to consider this additional evidence as part of the record. - 14. This court takes cognizance of the nature of this case in particular the condition of the Respondent and undertakes to have an expeditious hearing and conclusion of this case in regard to these additional witnesses. Civil suit 36 of 2016 is fixed for scheduling and hearing

on 25 March 2019 at 11:00am. To avoid acrimony between the parties, each party shall bear its own costs.

I so order.

**Lydia Mugambe Judge 6 February 2019.**