Setengeri v Asiimwe (Miscellaneous Application 56 of 2024) [2024] UGHC 1034 (30 October 2024)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT FORT PORTAL** 3 **MISC. APPLICATION NO. 0056 OF 2024 (ARISING FROM MISC. APPLICATION NO. 110 OF 2023 (ORIGINATING FROM CIVIL SUIT NO. 56 OF 2023)** 6 **SETENGERI CLEVER ::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT VERSUS**

## **ASIIMWE PHILEMON ::::::::::::::::::::::::::::::::::::::::::: RESPONDENT** 9 **BEFORE: HON. JUSTICE VINCENT WAGONA RULING**

This ruling determines the motion by the applicant brought under sections 82 and 98 12 of the Civil Procedure Act, and Order 46 rules 1(b) and 8 of the Civil Procedure Rules for orders that:

*(a)The order granting the Respondent unconditional leave to appear and* 15 *defend Civil Suit No. 056 of 2023 be reviewed and set aside. (b)The costs of taking out the application be provided to the applicant.*

The motion is supported by the affidavit of Setengeri Clever, the applicant who 18 deposed as follows;

(a) The applicant filed a summary suit vide Civil Suit No. 056 of 2023 for recovery of shs 60,000,000/= and summons were served upon the respondent on 28 21 th November 2023.

(b)The respondent later filed Misc. Application No. 110 of 2023 seeking unconditional leave to appear and defend Civil Suit No. 56 of 2023. The said


application was filed outside the 10 days allowed under the law and this fact was not contested by the respondent.

(c) The court delivered a ruling on 25 3 th March 2024 granting the respondent unconditional leave to appear and defend Civil Suit No. 056 of 2023.

(d)While computing the 10 days, court in its ruling excluded 28th of November

- being the day the pleadings were served and started from 29 6 th November. When counting 10 days from 29th November 2023, the last day is 8th December 2023 which was a working day which was the day the respondent ought to have filed his application. Even if the last day being 8 th 9 is excluded, the last day is 11th December which was a Monday. - (e) There is a mistake or error apparent on the face of the court record, 12 constituting sufficient cause to grant this application. It is in the interests of justice that the order granting leave is reviewed and set aside.

The application was opposed by respondent through an affidavit in reply filed in Court on 17th 15 July 2024 where he deponed as follows:

- (a) The respondent was served with the summons in Civil Suit No. 056 of 2023 electronically through watsapp. He later instructed his attorneys who filed the application for leave to appear and defend on 12 18 th December 2023. - (b)The court in its ruling in Misc. Application No. 110 of 2023 found that the application was filed within time. - 21 (c) The applicant being aggrieved lodged a notice of appeal to the Court of Appeal which was subsequently withdrawn on 19th June 2024.

(d)There is no error apparent on the face of the court record and the application 24 does not raise any ground for review.


(e) The application is misconceived, frivolous, an abuse of court process and should be dismissed with costs.

#### 3 **Representation and Hearing:**

M/s Ligopedia advocates appeared for the applicant while M/s Kesiime & Co. Advocates represented the Respondent. Both counsel addressed me on the merits of

6 the application by way of written submissions which I have duly digested herein.

**Issues:**

9 **Whether there is a mistake or error apparent on court record in Civil Misc. Application No. 110 of 2023 that calls for review.**

#### 12 **Consideration of the application:**

*order made; or,*

Order 46 (1) of the Civil Procedure Rules limits review upon proof of the following 15 grounds:

*a) 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* 18 *be produced by him or her at the time when the decree was passed or the*

*b) On account of some mistake or error apparent on the face of the record;*

21 *or,*

*c) For any other sufficient reason.*

- 24 The term mistake or error apparent on court record was extensive considered in the case *Nyamogo & Nyamogo Advocates v. Kago [2001] 2 EA 173* which position was adopted by my brother Justice Stephen Mubiru in *Farm Inputs Care Centre Ltd v* - 27 *Klein Karoo Seeds Marketing (PTY) Ltd* thus: *"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*

- 3 *judicially on the facts of each case. There is a 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* - 6 *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* - 9 *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* - 12 *possible. Mere error or wrong view is certainly no ground for a review although it may be for an appeal"* - 15 In Edison *Kanvabwera v. Pastori Tumwebaze SC CA No. 6 of 2004*, it was held that the error in review proceedings could be one of fact or one of law. The Supreme Court in the *Kanyabwera case* cited with approval *A. I. R. Commentaries: The Code* - 18 *of Civil Procedure by Manohar and Chitaley, vol. 5. 1908* where it is 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 21 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. - 24 The phrase "error on the face of the record" was further explained in the *East African Court of Justice (Appellate Division) decision of Independent Medico Legal Unit v. The Attorney General of the Republic of Kenya (Application No. 2*


*of 2012; Arising from Appeal No. 1 of 2011)* cited in *MK Creditors Ltd vs. Owora Patrick MA No. 143 of 2015,* the term "error apparent on face of the record" was 3 explained thus*:*

*"The expression "error apparent on the face of the record" has not been definitively defined by statute, it must be determined by courts sparingly and* 6 *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 an error apparent where one has to "travel beyond the record" to see the correctness* 9 *of the judgment. it must be an error which strikes one by mere looking at the record, and would not require any long drawn process of reasoning on points where there may conceivably be two opinions.*

*That 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,* 15 *here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it. It must be a patent, manifest and self-evident error which does not require elaborate* 18 *discussion of evidence or argument to establish."*

I have previously in *Bamugaya Deo Vs. Peter Tinkasimire & Anor, Misc.* 21 *Application No. 090 of 2018* stated thus:

*"A mistake or error apparent on the face of the record must be glaring on the face of the court record. It should not require an extensive evaluation of* 24 *the law and the evidence in order to find and see it. It should not be about the legality or validity of the judgment or decision of court in relation to the laws applicable on the merits. Its resolution should not result in the court*


### *sitting as an appellate court to examine the legality and correctness of its own decision, which is a preserve of the appellate court."*

The applicant herein claims that in computation of time within which Misc. Application No. 110 of 2023 was to be filed, court erred when it found that the said 6 application was filed within the 10 days provided for under Order 36 of the Civil Procedure Rules. The court still holds the position that Misc. Application No. 110 of 2023 was filed within the 10 days as previously held by this court. I therefore find 9 that this application requires court to re-examine, re-evaluate and re-visit its decision in accordance with the timeline provided for under Order 36 so as to arrive at another decision sought or desired by the applicant. This court in its consideration 12 pronounced itself on the issue and if the applicant was aggrieved with the court's computation, or the order granting the respondent unconditional leave to appear and defend the suit, he ought to have appealed. I therefore find that the issue raised by 15 the applicant does not fall within the precincts of review.

The applicant seems to be suffering from indecisiveness on the proper course of 18 action to take. He lodged a notice of appeal and later wrote a letter which was received by court on 19th June 2024 asking for a hearing date and withdrew the appeal. On the same date he also filed the current application for review. I believe 21 the best recourse would be to focus on the merits and substance of the main suit instead of dragging court into endless applications. I thus dismiss this application for want of merit with costs to the respondent.

Vincent Wagona


**High Court Judge FORTPORTAL**

3 **DATE: 30/10/2024**