Ruryabeita v Beyunga & 3 Others (Miscellaneous Application 50 of 2023) [2024] UGHC 449 (11 June 2024)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT RUKUNGIRI **MISCELLANEOUS APPLICATION NO. 50 OF 2023** (ARISING FROM CIVIL APPEAL NO.59 OF 2020) (ARISING FROM CIVIL SUIT NO.008 OF 2015)

RURYABEITA FRANK ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

- 1. BEYUNGA KENNETH - 2. KAKWERERE JULIUS - 3. KYARABARWEIRE KISHEIJA - 4. AKANKWASA BEATRICE ::::::::::::::::::::::::::::::::::::

## BEFORE: JUSTICE HON. TOM CHEMUTAI **RULING**

This is an application for review brought by way of Notice of Motion under Sections 33 of the Judicature Act, Sections82 and 98 of the Civil Procedure Act, Order 43, Rule 16 and Order 52 Rule 1, 2 and 3 of the Civil Procedure Rules and seeking for the following orders;

- 1. The Judgment in Civil Appeal No. 59 of 2020 be reviewed and made conclusive by granting the remedies sought by the Applicant in the appeal. - 2. That the holding of the learned trial Judge that ownership was subject to ligation in Mbarara be expunged from the Judgment. - 3. That since grounds 1, 2, 3, and 4 which were the main grounds of appeal succeed, the Judgment be made final.

### 4. That the costs of this application be provided for

The grounds of the application are stated as follows;

- 1. That there is an apparent error on the face of the record that vitiates the whole intent and purpose of the judgment. - 2. That at the time when the Judgment was made, there was no any pending litigation in the High Court of Uganda at Mbarara and this fact was not known to the parties and the Judge. - 3. That it was discovered after the judgment that the litigation referred to by the Judge vide Civil Misc. Application No.129 of 2007 had been dismissed on 2nd July, 2014 by Justice Michael Elubu Judge of High Court of Uganda. - 4. It is just, equitable and in interest of justice that this application for review be granted.

The application was supported by an affidavit of the Applicant, sworn on 19th October, 2023.

The 1st Respondent filed in Court his affidavit in reply, dated 18th January, 2024. The $2^{nd}$ and $4^{th}$ Respondent duly authorized the 1st Respondent to present them in this application. The 1st Respondent utterly opposed the application. He contended that the dismissal of Civil Miscellaneous Application No. 129 of 2007, settled the question of ownership of land as determined by the lower Courts.

#### Representation

The Applicant was represented by M/s Alma Associated Advocates while the Respondents were represented by M/s Mark Mwesigye & Co. Advocates.

#### **Background**

The brief background to this application is that; - the Respondents filed Civil Suit No.008 of 2015 against the Applicant. The Respondents claimed that the Applicant was trespassing on the suit land they had bought from different sellers (Ann Maria Bakeine and Kazooba Manjeri) in 2007 and 2008 respectively. The said sellers were relatives of the Applicant's father. The Respondents alleged that the Applicant in 2015 trespassed on the suit land by harvesting their crops and thereafter, he threatened them in the course.

The Applicant on the other hand contended that his father known as Bitereshoni Geoffrey had acquired a Certificate of title for the suit land in 1963 and he also denied being a trespasser on the suit land. The Applicant challenged the Respondent's purchase transactions of the suit land being null and void.

The trial Magistrate found the Respondents were bonafide purchasers for value without notice and that the suit land was titled land. The Court also observed that the LC11's Court had determined the issue of suit land between the Applicant's father and the Respondent's sellers.

The Applicant being dissatisfied with the judgment, he appealed to the High Court of Uganda at Kabale in Civil Appeal. No 59 of 2020. The Applicant's appeal partly succeeded. The Court found that the Respondent's ownership of their respective portions of the suit lands was still subject to litigation at the High Court in Mbarara. That the Respondents' occupation on the suit land would not be disturbed until the appeal/case was resolved. The trial

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Magistrate's judgment and orders were set aside as they were prematurely arrived at.

The Applicant was not contended with the 1st appellate Court's judgment and filed this application for review of the same.

#### Submissions.

The parties filed submissions and authorities thereto, which I will take into consideration while determining the merits of the application.

### Court's determination

I have perused the judgment of the 1st Appellate Court, the trial Court's judgment, the record of the appeal, pleadings to this application and the parties' written submissions and authorities thereto cited by Counsel.

This is an application for review, whereby the Applicant wants this Court to review its judgment in Civil Appeal No.59 of 2020 and expunge from it the holding of the judge that the issue of ownership of land between parties was still subject to litigation in High Court at Mbarara.

Section 82 of the Civil Procedure Act, under which the application is mainly based, provides that;

"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."

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Order 46 of the Civil Procedure Rules provides;

"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

(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.

(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.

The grounds for review have been enunciated several cases of this Court, most notably in the case of FX Mubuuke Vs UEB High Court Misc. Application No.98 of 2005 where they outlined as follows;

- 1. That there is a mistake or manifest mistake or error apparent on the face of the record. - 2. 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. - 3. That any other sufficient reason exists.

Furthermore, in Edison Kanyabwera vs Pastori Tumwebaze, Supreme Court Civil Appeal No. 6 Of 2004, the Court 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."

Counsel for the Applicant contended that there is an apparent error on the face of the record in judgment in Civil Appeal No.59 of 2020 that vitiates the whole intent and purpose of the judgment. That by the time when the Judgment was made, there was no pending litigation in the High Court of Uganda at Mbarara and this fact was not known to the parties and the Judge. That it was discovered after the judgment that the litigation referred to by the Judge vide Civil Misc. Application No 129 /2007 was dismissed on 2nd July, 2014 by Justice Michael Elubu Judge of the High Court of Uganda.

In the judgment in Civil Appeal No.59 of 2020, the judge clearly noted that the issue of ownership of suit land had been subject to LC11 Court between the Appellant's father and the Respondent's sellers. The Applicant's father lost the case at the Local Council II Court and appealed to the Chief Magistrate where he also lost the Case. Thereafter he applied to the High Court of Uganda in Mbarara in Civil Misc. Application No 129 /2007 for review and unfortunately the Applicant's father passed on before the application was heard and determined.

The trial Judge based on the Applicant's averments and evidence to hold that the issues of ownership of the suit land, was still subject to litigation at the High Court at Mbarara. The judge correctly in my view held that this Court cannot inquire into matters pending hearing and determination in another Court with the same jurisdiction.

It is clear from the record that the issue of ownership of suit land has had prolonged litigation right from the Local Council II Court to the High Court at Mbarara. It was before between the Applicant's father and former owners of the land (sellers to the Respondent).

I concur with the reasoning of the learned judge that the issue of ownership of the suit land could be best determined in Civil Misc. Application No. 129 of 2007 and not in Civil Appeal No.59 of 2020. Needless to say, the Civil Misc. Application No.129 of 2007 was dismissed on 2nd July,2014.

It is therefore upon the parties to have the said Civil Misc. Application No.129 of 2007 reinstated at High Court of Uganda at Mbarara, so that the issue of ownership of suit land can be determined.

Consequently, the Applicant has failed to show sufficient grounds for review of the Judgment and Orders of this Court in Civil Appeal No.59 of 2020.

The application is accordingly dismissed with costs to the Respondents.

Dated this day ...11th .......of ............ June............2024

TOM CHEMUTAI JUDGE